SUBLEASE
THIS SUBLEASE (this "Sublease") is dated for reference purposes as of
November 5 1998, and is made by and between GENUS, INC., a California
corporation ("Sublessor"), and ECLIPSE SURGICAL TECHNOLOGIES, INC., a California
corporation ("Sublessee"). Sublessor and Sublessee hereby agree as follows:
1. RECITALS: This Sublease is made with reference to the fact that The
Xxxx X. & Xxxxx X. Xxxxxxx 1979 Revocable Trust, as landlord ("Master Lessor"),
and Sublessor, as tenant, entered into that certain Lease Agreement dated as of
April 7, 1991, with respect to those certain premises consisting of
approximately 100,517 rentable square feet of space (the "Premises") in that
certain building (the "Building") located at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxx. A copy of the Master Lease is attached hereto as EXHIBIT A.
Capitalized terms used and not defined herein shall have the meaning ascribed to
them in the Master Lease.
2. SUBLEASED PREMISES: Subject to the terms and conditions of this
Sublease, Sublessor hereby subleases to Sublessee, and Sublessee hereby
subleases from Sublessor, a portion of the Premises deemed to be approximately
27,400 rentable square feet of space as more particularly described on EXHIBIT B
attached hereto and incorporated herein by reference (hereinafter, the
"Subleased Premises"). The Subleased Premises shall also include access to (via
the common corridor and through a secured door), and non-exclusive use of the
front lobby entrance, common restroom facilities and common cafeteria
facilities.
3. TERM:
A. TERM: The term (the "Term") of this Sublease shall commence on
the later of November 1, 1998 or the date by which all of the following have
occurred: (i) Sublessor substantially completes Sublessor Improvements in
accordance with Paragraph 25 of this Sublease, (ii) Sublessor obtains Master
Lessor's consent to this Sublease and (iii) Sublessor delivers the Subleased
Premises to Sublessee (the "Commencement Date"), and shall expire on September
30, 2002 (the "Expiration Date") unless this Sublease is sooner terminated
pursuant to its terms or the Master Lease is sooner terminated pursuant to its
terms.
B. OPTION TO EXTEND: Sublessee shall have no option to extend the
Term or expand the Premises, whatsoever.
4. RENT:
A. FIXED RENT: Commencing on the Commencement Date and continuing
each month throughout the term of this Sublease (as the same may be extended),
Sublessee shall pay to Sublessor as fixed rent for the Subleased Premises equal
monthly installments of Fifty-Two Thousand Sixty Dollars ($52,060) ("Fixed
Rent"). Fixed Rent and Additional Rent, as defined in Paragraph 4.B below,
(collectively, hereinafter "Rent") shall be paid in advance on or before the
first (1st) day of each month. Rent for any period during the Term hereof which
is for less than one (1) month of the Term shall be a pro rata portion of the
monthly installment based on a thirty (30) day month. Rent shall be payable
without notice or demand and without any deduction, offset, or abatement, in
lawful money of the United States of America. Rent shall be paid directly to
Sublessor at the Premises, Attention: Chief Financial Officer, or such other
address as may be designated in writing by Sublessor.
B. ADDITIONAL RENT: Additional rent shall consist of all monies
other than Fixed Rent required to be paid by Sublessee under this Sublease;
provided, however, Fixed Rent already includes and Sublessee shall have no
further obligation to pay for "Landlord's Insurance" (as defined in Section 12.B
of the Master Lease), utilities (except excess use as set forth in Paragraph 8
of this Sublease), "Capital Improvements" (as defined in Section 11.C of the
Master Lease), taxes (except as specifically set forth in this Sublease) or
"Tenant Maintenance" (as defined in Section 11.A of the Master Lease).
Sublessee, shall, however, be liable for, and Additional Rent shall include, all
taxes levied against Sublessee's personal property and trade or business
fixtures.
C. PREPAYMENT OF RENT: Upon execution hereof by Sublessee,
Sublessee shall pay to Sublessor the sum of Fifty-Two Thousand Sixty Dollars
($52,060), which shall constitute Fixed Rent for the first (1st) month of the
Term.
5. SECURITY DEPOSIT: Upon execution hereof, Sublessee shall deposit with
Sublessor the sum of Fifty-Two Thousand Sixty Dollars ($52,060)(the "Security
Deposit"), in cash, as security for the performance by Sublessee of the terms
and conditions of this Sublease. If Sublessee fails to pay Rent or other
charges due under this Sublease or otherwise defaults with respect to any
provision of this Sublease, then Sublessor may draw upon, use, apply or retain
all or any portion of the Security Deposit for the payment of any Rent or other
charge in default, for the payment of any other sum which Sublessor has become
obligated to pay by reason of Sublessee's default, or to compensate Sublessor
for any loss or damage which Sublessor has suffered thereby. If Sublessor so
uses or applies all or any portion of the Security Deposit, then Sublessee,
within ten (10) days after demand by Sublessor therefor, shall deposit cash with
Sublessor in the amount required to restore the Security Deposit to the full
amount stated above. Sublessor may commingle the Security Deposit with its own
funds and Sublessee shall not be entitled to interest on the Security Deposit.
Upon the expiration of this Sublease and Sublessee's vacation of the Subleased
Premises, provided Sublessee is not in default under the terms of this Sublease,
Sublessor shall return to Sublessee so much of the Security Deposit as has not
been applied by Sublessor pursuant to this Paragraph, or which is not otherwise
required to cure Sublessee's defaults.
6. ADDITIONAL SERVICES: At no extra charge to Sublessee, Sublessor shall
make available for Sublessee's use during the Term the cubicles (the "Cubicles")
and the phone wiring / data cabling (the "Wiring") currently existing in the
Subleased Premises. The cost to use the foregoing during the Term is already
included in Fixed Rent. Sublessor makes no representations, express or implied,
whatsoever, with respect to the Cubicles and the Wiring including, without
limitation, their suitability for Sublessee's intended use. Sublessee accepts
the same in their "AS IS" condition and may use the same at Sublessee's sole
risk, and Sublessor shall not be liable for any costs claims, liabilities,
damages or injury arising in connection with Sublessee's use of the same.
Sublessee shall be responsible for the cost of additional telephone lines or
additional data cabling required by Sublessee.
7. HOLDOVER: Sublessee shall indemnify, defend and hold harmless
Sublessor from and against all losses, costs, claims, liabilities and damages
resulting from Sublessee's failure to surrender the Subleased Premises on the
Expiration Date in the condition required under the terms of this Sublease
(including, without limitation, any liability or damages sustained by Sublessor
as a result of a holdover of the Premises by Sublessor occasioned by the
holdover of the Subleased Premises by Sublessee). In addition, Sublessee shall
pay Sublessor holdover rent equal to on hundred fifty percent (150%) of Fixed
Rent plus any Additional Rent payable hereunder for any period from the
Expiration Date through the date Sublessee surrenders the Premises in the
condition required hereunder.
8. EXCESS UTILITIES: Should Tenant require air conditioning in excess of
the normal capacity (as opposed to maximum capacity) of the current air
conditioning system in the Premises, Sublessor reserves the right to reasonably
charge Sublessee for such excess use as additional rent. In addition, Sublessee
shall pay to Sublessor the cost of electricity consumed by Sublessee in excess
of electric power consistent with normal office use for lighting and small
office machines such as desktop computers, copiers and fax machines as
determined by meter, or if not metered, as otherwise reasonably estimated by
Sublessor, plus any actual reasonable accounting expenses incurred by Sublessor
in connection with said determination. Sublessor may cause the Subleased
Premises to be separately metered. Such separate metering shall be done at
Sublessee's expense, including, without limitation, the cost of installing,
maintaining repairing and replacing such meters, if Sublessor reasonably
determines that Sublessee is consuming electricity in excess of electric power
consistent with such normal office use.
9. REPAIRS AND MAINTENANCE: The parties acknowledge and agree that
Sublessee is subleasing the Subleased Premises on an "AS IS" basis, and that
Sublessor has made no representations or warranties, express or implied,
whatsoever, with respect to the Subleased Premises, including, without
limitation, any representation or warranty as to the suitability of the
Subleased Premises for Sublessee's intended use. Sublessor shall have no
obligation whatsoever to make or pay the cost of any alterations or improvements
to the Subleased Premises (except as specifically set forth in Paragraph 25 of
this Sublease), including, without limitation, any improvement required to
comply with any law, regulation, building code or ordinance (including the
Americans with Disabilities Act of 1990, as may be amended). Sublessee shall,
at its sole cost and expense, keep and maintain in good condition, repair and
replace, the Subleased Premises and every part thereof (including, without
limitation, the Cubicles, the Wiring and improvements constructed by or for the
benefit of Sublessee) provided, however, that Sublessee shall not be required to
perform or to pay for any repair, maintenance or improvements, except to the
extent of the negligence or willful misconduct of Sublessee or its
agents, contractors or invitees, (a) to the structural portions of the
Subleased Premises, (b) to the heating, ventilating, air conditioning,
electrical, water, sewer, and plumbing systems serving the Subleased Premises
and the Building, and (c) to any portion of the Building outside of the
Subleased Premises. Sublessor shall have no obligation to perform any
repairs or any other obligation of Master Lessor required to be performed by
Master Lessor under the terms of the Master Lease (including, without
limitation, Master Lessor's obligations under Articles 11, 17, 18, 27 and 29
of the Master Lease and Master Lessor's obligation to comply with laws) and
Sublessee shall look solely to Master Lessor for performance of said
obligations. Sublessor shall, however, request performance of the same in
writing from Master Lessor promptly after being requested to do so by
Sublessee, and shall use Sublessor's reasonable efforts (not including the
payment of money, the incurring of any liabilities, or the institution of
legal proceedings) to obtain Master Lessor's performance. Sublessee expressly
waives the provisions of Section 1932, subsection 1, and Sections 1941 and
1942 of the Civil Code of California and all rights to make repairs at the
expense of Sublessor as provided in Section 1942 of said Civil Code.
10. INDEMNITY: Except to the extent caused by the negligence or willful
misconduct of Sublessor, its agents, employees or contractors, Sublessee shall
indemnify, defend with counsel reasonably acceptable to Sublessor, protect and
hold Sublessor harmless from and against any and all claims, liabilities,
judgments, causes of action, damages, costs and expenses (including, without
limitation, reasonable attorneys' and experts' fees), caused by or arising in
connection with: (i) the use or occupancy by Sublessee or condition of the
Subleased Premises; (ii) the negligence or willful misconduct of Sublessee or
its agents, employees, contractors or invitees; or (iii) a breach of Sublessee's
obligations under this Sublease or the provisions of the Master Lease assumed by
Sublessee hereunder. Sublessee's indemnification of Sublessor shall survive
termination of this Sublease.
11. RIGHT TO CURE DEFAULTS: If Sublessee fails to pay any sum of money to
Sublessor, or fails to perform any other act on its part to be performed
hereunder, then Sublessor may, but shall not be obligated to, after passage of
any applicable notice and cure periods, make such payment or perform such act.
All such sums paid, and all reasonable costs and expenses of performing any such
act, shall be deemed Additional Rent payable by Sublessee to Sublessor upon
demand, together with interest thereon at the interest rate set forth in Section
41.D of the Master Lease (the "Interest Rate") from the date of the expenditure
until repaid.
12. ASSIGNMENT AND SUBLETTING: Sublessee may not assign this Sublease,
sublet the Subleased Premises, transfer any interest of Sublessee therein or
permit any use of the Subleased Premises by another party (collectively,
"Transfer"), without the prior written consent of Sublessor (Sublessor's consent
not to be unreasonably withheld) and Master Lessor. A consent to one Transfer
shall not be deemed to be a consent to any subsequent Transfer. Any Transfer
without such consent shall be void and, at the option of Sublessor, shall
terminate this Sublease. Sublessor's waiver or consent to any assignment or
subletting shall be ineffective unless set forth in writing, and Sublessee shall
not be relieved from any of its obligations under this Sublease unless the
consent expressly so provides. In addition to the Fixed Rent and Additional
Rent hereunder, Sublessee hereby covenants and agrees to pay to Sublessor all
rent and other consideration which it receives which is in excess of the Fixed
Rent payable hereunder within ten (10) days following receipt thereof by
sublessee. Notwithstanding the foregoing, Sublessee may, without the prior
written consent of Sublessor, but subject to the consent of Master Lessor and
subject to Section 28 of the Master Lease, to "Permitted Transferees" as defined
in Section 28.A of the Master Lease.
13. USE:
A. Subject to any restrictions and limitations on use set forth in
the Master Lease, Sublessee shall use the Subleased Premises for general office,
sales, service, manufacturing, research and development, and shipping and
receiving only, and for no other purpose whatsoever.
B. Sublessee shall not use, store, keep, handle, manufacture,
transport, release, discharge, emit or dispose of any hazardous material in, on,
under, about, to or from the Subleased Premises. Without limiting the
generality of the foregoing, Sublessee, at its sole cost, shall comply with all
laws relating to hazardous materials. Sublessee shall indemnify, defend with
counsel reasonably acceptable to Sublessor and hold Sublessor harmless from and
against all claims, actions, suits, proceedings, judgements, losses, costs,
personal injuries, damages, liabilities, deficiencies, fines, penalties,
damages, attorneys' fees, consultants' fees, investigations, detoxification,
remediations,
removals, and expenses of every type and nature, to the extent caused by the
use, storage, handling, manufacture, transportation, release, discharge,
emission or disposal of hazardous materials on or about the Subleased
Premises or the Building during by Sublessee or its agents, employees,
contractors or invitees. For purposes of this Sublease, "hazardous
materials" shall mean any material or substance that is now or hereafter
prohibited or regulated by any statute, law, rule, regulation or ordinance or
that is now or hereafter designated by any governmental authority to be
radioactive, toxic, hazardous or otherwise a danger to health, reproduction
or the environment. Sublessor shall indemnify, defend with counsel reasonably
acceptable to Sublessee and hold Sublessee harmless from and against all
claims, actions, suits, proceedings, judgements, losses, costs, personal
injuries, damages, liabilities, deficiencies, fines, penalties, damages,
attorneys' fees, consultants' fees, investigations, detoxification,
remediations, removals, and expenses of every type and nature, to the extent
caused by the use, storage, handling, manufacture, transportation, release,
discharge, emission or disposal of hazardous materials on or about the
Subleased Premises or Building by Sublessor or its agents, employees,
contractors or invitees.
C. Sublessee shall not do or permit anything to be done in or about
the Subleased Premises which would (i) injure the Subleased Premises; or (ii)
vibrate, shake, overload, or impair the efficient operation of the Subleased
Premises or the sprinkler systems, heating, ventilating or air conditioning
equipment, or utilities systems located therein. Sublessee shall not store any
materials, supplies, finished or unfinished products or articles of any nature
outside of the Subleased Premises. Sublessee shall comply with all reasonable
rules and regulations promulgated from time to time by Sublessor and Master
Lessor.
14. EFFECT OF CONVEYANCE: As used in this Sublease, the term
"Sublessor" means the holder of the Tenant's interest under the Master Lease.
In the event of any assignment, transfer or termination of the Tenant's
interest under the Master Lease, which assignment, transfer or termination
may occur at any time during the Term hereof in Sublessor's sole discretion,
Sublessor shall be and hereby is entirely relieved of all covenants and
obligations of Sublessor hereunder, and it shall be deemed and construed,
without further agreement between the parties hereto, that any transferee has
assumed and shall carry out all covenants and obligations thereafter to be
performed by Sublessor hereunder. Sublessor may transfer and deliver any
security of Sublessee to the transferee of the Tenant's interest under the
Master Lease, and thereupon Sublessor shall be discharged from any further
liability with respect thereto.
15. DELIVERY AND ACCEPTANCE: If Sublessor is unable to deliver possession
of the Subleased Premises to Sublessee on or before the November 1, 1998, for
any reason whatsoever, then this Sublease shall not be void or voidable, nor
shall Sublessor be liable to Sublessee for any loss or damage, nor shall the
Expiration Date be extended; provided, however, that in such event, Rent shall
xxxxx until Sublessor delivers possession of the Subleased Premises to
Sublessee. Sublessee may have access to the Subleased Premises prior to the
Commencement Date (but not before Sublessor obtains Master Lessor's consent to
this Sublease) for the purpose of installing cabling and other
telecommunications facilities and otherwise preparing the Subleased Premises for
occupancy ("Early Access"). Such Early Access shall be subject to all of the
terms and conditions of this Sublease except for the provisions for the payment
of Fixed Rent. Sublessee has fully inspected the Subleased Premises and is
satisfied with the condition thereof. By taking possession of the Subleased
Premises, Sublessee conclusively shall be deemed to have accepted the Subleased
Premises in its then-existing, "as-is" condition, with all faults, without any
representation or warranty whatsoever from Sublessor with respect thereto.
16. IMPROVEMENTS: Sublessee shall not make any alterations or
improvements to the Subleased Premises, except in accordance with the Master
Lease, and with the prior written consent of both Master Lessor and Sublessor.
17. RELEASE AND WAIVER OF SUBROGATION: Notwithstanding anything to the
contrary in this Sublease: Sublessor and Sublessee hereby release each other
from any damage to property or loss of any kind which is caused by or results
from any risk insured against under any property insurance policy carried by
either party which contains a waiver of subrogation by the insurer. This
release shall be in effect only so long as the applicable insurance policy
contains a clause to the effect that this release shall not affect the right of
the insured to recover under the policy. Each party shall use its best efforts
to cause each insurance policy obtained by it to provide that the insurer waives
all right of recovery against the other party and its agents and employees in
connection with any damage or injury covered by the policy, and each party shall
notify the other party if it is unable to obtain a waiver of subrogation.
Sublessor shall not be liable to
Sublessee, nor shall Sublessee be entitled to terminate this Sublease or to
xxxxx Rent for any reason, including, without limitation: (i) failure or
interruption of any utility system or service; or (ii) failure of Master
Lessor to maintain the Subleased Premises as may be required under the Master
Lease. The obligations of Sublessor shall not constitute the personal
obligations of the officers, directors, trustees, partners, joint venturers,
members, owners, stockholders or other principals or representatives of the
business entity.
18. INSURANCE: Sublessee shall obtain and keep in full force and effect,
at Sublessee's sole cost and expense, during the Term the insurance required to
be carried by the "Tenant" under the Master Lease. Sublessee shall include
Sublessor and Master Lessor as an additional insured in any policy of insurance
carried by Sublessee in connection with this Sublease.
19. DEFAULT: Sublessee shall be in material default of its obligations
under this Sublease if any of the following events occur:
A. Sublessee fails to pay any Rent when due, when such failure
continues for three (3) days after written notice from Sublessor to Sublessee
that any such sum is due; or
B. Sublessee fails to perform any term, covenant or condition of
this Sublease (except those requiring payment of Rent) and fails to cure such
breach within fifteen (15) days after delivery of a written notice specifying
the nature of the breach; provided, however, that if more than fifteen (15) days
are reasonably required to remedy the failure, then Sublessee shall not be in
default if Sublessee commences the cure within the fifteen (15) day period and
thereafter diligently completes the cure within thirty (30) days after delivery
of such written notice; or
C. Sublessee makes a general assignment of its assets for the
benefit of its creditors, including attachment of, execution on, or the
appointment of a custodian or receiver with respect to a substantial part of
Sublessee's property or any property essential to the conduct of its business;
or
D. Sublessee abandons the Subleased Premises; or
E. Sublessee commits any other act or omission which constitutes a
default under the Master Lease, which has not been cured after delivery of
written notice and passage of the applicable grace period (if any) provided in
the Master Lease as modified, if at all, by the provisions of this Sublease.
20. REMEDIES: In the event of any default by Sublessee, Sublessor shall
have all remedies provided to the "Landlord" in the Master Lease as if an event
of default had occurred thereunder and all other rights and remedies otherwise
available at law and in equity. Without limiting the generality of the
foregoing, Landlord shall have the remedy described in California Civil Code
Section 1951.4 (Sublessor may continue the Sublease in effect after Sublessee's
breach and abandonment and recover rent as it becomes due, if Sublessee has
right to sublet or assign, subject only to reasonable limitations). Sublessor
may resort to its remedies cumulatively or in the alternative.
21. SURRENDER: On or before the Expiration Date, as the same may be
extended, or any sooner termination of this Sublease, Sublessee shall remove all
of its trade fixtures, personal property and all alterations constructed by
Sublessee in the Subleased Premises which are required to be removed under the
terms of this Sublease or the Master Lease and shall surrender the Subleased
Premises (including the Cubicles and the Wiring) to Sublessor (a) in the
condition received by Sublessee and (b) free of hazardous materials used,
stored, handled, manufactured, transported, released, discharged, emitted or
disposed of by Sublessee or it agents, employees, contractors or invitees in, on
under or about the Building. Sublessee shall repair any damage to the Subleased
Premises caused by Sublessee's removal of its personal property, furnishings
and/or equipment. If the Subleased Premises are not so surrendered, then
Sublessee shall be liable to Sublessor for all costs incurred by Sublessor in
returning the Subleased Premises to the required condition, plus interest
thereon at the Interest Rate.
22. SIGNAGE: Subject to the provisions of the Master Lease, Sublessee
may, at its sole cost and expense, place a sign, reasonably approved by
Sublessor, in or about the lobby entrance in a location designated by Sublessor,
and on the grass berm facing Karlstad Drive.
23. BROKER: Sublessor and Sublessee each represent to the other that they
have dealt with no real estate brokers, finders, agents or salesmen other than
BT Commercial, representing Sublessor, and Catalyst Real Estate Group,
representing Sublessee, in connection with this transaction. Each party agrees
to hold the other party harmless from and against all claims for brokerage
commissions, finder's fees or other compensation made by any other agent,
broker, salesman or finder as a consequence of said party's actions or dealings
with such agent, broker, salesman, or finder. Sublessor shall pay the brokers'
fees in connection with this transaction to BT Commercial pursuant to a separate
agreement, subject, however, to Sublessee's obligations set forth in this
paragraph.
24. NOTICES: Unless at least five (5) days' prior written notice is given
in the manner set forth in this paragraph, the address of each party for all
purposes connected with this Sublease shall be that address set forth below
their signatures at the end of this Sublease. All notices, demands or
communications in connection with this Sublease shall be properly addressed and
delivered as follows: (a) personally delivered; or (b) submitted to an
overnight courier service, charges prepaid; or (c) deposited in the mail
(certified, return-receipt requested, and postage prepaid). Notices shall be
deemed delivered upon receipt, if personally delivered, one (1) business day
after being submitted to an overnight courier service and two (2) business days
after deposit in the United States mail, if mailed as set forth above. All
notices given to Master Lessor under the Master Lease shall be considered
received only when delivered in accordance with the Master Lease.
25. SUBLESSOR IMPROVEMENTS: Sublessor shall construct a demising wall
(including a secured entrance to the Subleased Premises and one emergency exit)
and a chain link fence on the mezzanine in the warehouse area of the Subleased
Premises to separate the Subleased Premises from the rest of the Premises as
shown on Exhibit B attached hereto.
26. UNRESTRICTED ACCESS: The Facilities Maintenance Supervisor (currently
Xxxxx Xxxxxx) and the Director of Facilities (currently Xxxx Xxxxxxxx) of
Sublessor shall have unrestricted access to the Subleased Premises for the
purpose of maintaining the Premises subject, however, to Sublessee's reasonable
security measures to meet FDA mandates.
27. OTHER SUBLEASE TERMS:
A. INCORPORATION BY REFERENCE. Except as set forth below or
otherwise set forth in this Sublease, the terms and conditions of this Sublease
shall include all of the terms of the Master Lease and such terms are
incorporated into this Sublease as if fully set forth herein, except that:
(i) each reference in such incorporated sections to "Lease" shall be deemed a
reference to this "Sublease"; (ii) each reference to the "Premises" shall be
deemed a reference to the "Subleased Premises" (as defined herein); (iii) each
reference to "Landlord" and "Tenant" shall be deemed a reference to "Sublessor"
and "Sublessee", respectively, except as otherwise expressly set forth herein;
(iv) with respect to work, services, utilities, electricity, repairs (or damage
caused by Master Lessor), restoration, insurance, indemnities, reimbursements,
representations, warranties or the performance of any other obligation of Master
Lessor under the Master Lease, whether or not incorporated herein, the sole
obligation of Sublessor shall be to request the same in writing from Master
Lessor promptly after being requested to do so by Sublessee, and to use
Sublessor's reasonable efforts (not including the payment of money, the
incurring of any liabilities, or the institution of legal proceedings) to
obtain Master Lessor's performance; (v) with respect to any obligation of
Sublessee to be performed under this Sublease, wherever the Master Lease grants
to "Tenant" a specified number of days to perform its obligations under the
Master Lease, except as otherwise provided herein, Sublessee shall have three
(3) fewer days to perform the obligation, including, without limitation, curing
any defaults; (vi) with respect to any approval required to be obtained from the
"Landlord" under the Master Lease, such consent must be obtained from both
Master Lessor and Sublessor, and the approval of Sublessor may be withheld if
Master Lessor's consent is not obtained; (vii) in any case where the "Landlord"
reserves or is granted the right to manage, supervise, control, repair, alter,
regulate the use of, enter or use the Premises or any areas beneath, above or
adjacent thereto, such reservation or grant of right of entry shall be deemed to
be for the benefit of both Master Lessor
and Sublessor; (viii) in any case where "Tenant" is to indemnify, release or
waive claims against "Landlord", such indemnity, release or waiver shall be
deemed to run from Sublessee to both Master Lessor and Sublessor; and (ix) in
any case where "Tenant" is to execute and deliver certain documents or
notices to "Landlord", such obligation shall be deemed to run from Sublessee
to both Master Lessor and Sublessor.
Notwithstanding the foregoing, the following provisions of the Master Lease
are not incorporated herein: Sections 1, 2, 3, 4, 5, 7, 8 (except subsection
C), 10, 11, 12 (Except subsections A and C), 13, 14, 17 (except first two
sentences), 18 (except subsection D), 19, 20, 25, 31, 36, 37, 38, 39, 40 and 41P
and Exhibits A and B.
B. ASSUMPTION OF OBLIGATIONS. This Sublease is and at all times
shall be subject and subordinate to the Master Lease and the rights of Master
Lessor thereunder. Sublessee hereby expressly assumes and agrees: (i) to comply
with all provisions of the Master Lease which are assumed by Sublessee
hereunder; and (ii) to perform all the obligations on the part of the "Tenant"
to be performed under the terms of the Master Lease during the term of this
Sublease which are assumed by Sublessee hereunder. In the event the Master
Lease is terminated for any reason, this Sublease shall terminate simultaneously
with such termination without any liability of Sublessor to Sublessee. In the
event of a conflict between the provisions of this Sublease and the Master
Lease, as between Sublessor and Sublessee, the provisions of this Sublease shall
control.
28. RIGHT TO CONTEST: If Sublessor does not have the right to contest any
matter in the Master Lease due to expiration of any time limit that may be set
forth therein or for any other reason, then notwithstanding any incorporation of
any such provision from the Master Lease in this Sublease, Sublessee shall also
not have the right to contest any such matter.
29. COVENANT OF QUIET ENJOYMENT: Sublessee peacefully shall have, hold
and enjoy the Subleased Premises, subject to the terms and conditions of this
Sublease, provided that Sublessee pays all Rent imposed hereunder and otherwise
performs all of Sublessee's covenants and agreements contained herein.
30. CONDITIONS PRECEDENT: Notwithstanding anything to the contrary in
this Sublease: this Sublease and Sublessor's and Sublessee's obligations
hereunder are conditioned upon the written consent of Master Lessor to this
Sublease. If Sublessor does not receive such consent within thirty (30) days
after execution of this Sublease by Sublessor, then Sublessor may terminate this
Sublease by giving Sublessee written notice thereof, and upon such termination,
Sublessor shall return to Sublessee its payment of the first month's Fixed Rent
paid by Sublessee pursuant to Paragraph 4 hereof and the Security Deposit.
31. CHOICE OF LAW; SEVERABILITY: This Sublease shall in all respects be
governed by and construed in accordance with the laws of the State of
California. If any term of this Sublease is held to be invalid or unenforceable
by any court of competent jurisdiction, then the remainder of this Sublease
shall remain in full force and effect to the fullest extent possible under the
law, and shall not be affected or impaired.
32. AMENDMENT: This Sublease may not be amended except by the written
agreement of all parties hereto.
33. AUTHORITY TO EXECUTE: Sublessee and Sublessor each represent and
warrant to the other that each person executing this Sublease on behalf of each
party is duly authorized to execute and deliver this Sublease on behalf of that
party.
34. NO DRAFTING PRESUMPTION: The parties acknowledge that this Sublease
has been agreed to by both the parties, that both Sublessor and Sublessee have
consulted with attorneys with respect to the terms of this Sublease and that no
presumption shall be created against Sublessor because Sublessor drafted this
Sublease. Except as otherwise specifically set forth in this Sublease, with
respect to any consent, determination or estimation of Sublessor required or
allowed in this Sublease or requested of Sublessor, Sublessor's consent,
determination or estimation shall be given or made solely by Sublessor in
Sublessor's good faith opinion, whether or not objectively reasonable. If
Sublessor fails to respond to any request for its consent within the time
period, if any, specified in this Sublease, Sublessor shall be deemed to have
disapproved such request.
35. COUNTERPARTS: This Sublease may be executed in one (1) or more
counterparts each of which shall be deemed an original but all of which together
shall constitute one (1) and the same instrument. Signature copies may be
detached from the counterparts and attached to a single copy of this Sublease
physically to form one (1) document.
SUBLESSOR: SUBLESSEE:
GENUS, INC., ECLIPSE SURGICAL TECHNOLOGIES, INC.,
a California corporation a California corporation
By: By:
---------------------------- -------------------------------
Print Name: XXXX XXXXXXXX Print Name: XXXXXXX X. XXXXXXX, XX.
Title: DIRECTOR OF OPERATIONS Title: PRESIDENT, CHIEF OPERATING
& FACILITIES OFFICER AND DIRECTOR
Date: 11/5/1998 Date: 11/4/98
By: By:
---------------------------- ------------------------------
Print Name: XXXXXXX XXXXXXXX Print Name: XXXXXXX X. XXXXXXX
Title: VICE PRESIDENT, FINANCE Title: CHIEF FINANCIAL OFFICER
Date: 11/10/98 Date: 11/5/98
ADDRESS: ADDRESS:
Genus, Inc. Eclipse Surgical Technologies, Inc.,
0000 Xxxxxxxx Xxxxx 0000 Xxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer Attn: Chief Financial Officer
