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EXHIBIT 10.13
SUBLEASE
[LOGO] CB Commercial Real Estate Group, Inc.
Brokerage and Management
Licensed Real Estate Broker
1. PARTIES.
This Sublease, dated May 19, 1997, is made between Endocare, Inc.
("Sublessor"), and XL Vision, a Delaware corporation ("Sublessee").
2. MASTER LEASE.
Sublessor is the lessee under a written lease dated September 20,
1995, wherein Irvine Technology Partners II ("Lessor") leased to
Sublessor the real property located in the City of Irvine, County of
Orange, State of California, described as Technology Plaza I, 18
Technology, Suites 133 and 134, Irvine, consisting of approximately
5,161 rentable square feet in a larger multi-tenant, R&D, and
business park ("Master Premises"). Said lease has been amended by
the following amendments:
The First Amendment to Lease dated April 29, 1996
said lease and amendments are herein collectively referred to as the
"Master Lease" and are attached hereto as Exhibit "A."
3. PREMISES.
Sublessor hereby subleases to Sublessee on the terms and conditions
set forth in this Sublease the following portion of the Master
Premiss ("Premises"): Approximately 5,161 rentable square feet. The
address is 18 Technology, Suites 133 and 134, Xxxxxx, Xxxxxxxxxx
00000.
4. WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee that the Master Lease
has not been amended or modified except as expressly set forth
herein, that Sublessor is not now, and as of the commencement of the
Term hereof will not be, in default or breach of any of the
provisions of the Master Lease, and that Sublessor has no knowledge
of any claim by Lessor that Sublessor is in default or breach of any
of the provisions of the Master Lease.
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5. TERM.
The Term of this Sublease shall commence on June 1, 1997
("Commencement Date"), or when Lessor consents to this Sublease (if
such consent is required under the Master Lease), whichever shall as
occur, and end on September 30, 1998 ("Termination Date"), unless
otherwise sooner terminated in accordance with the provisions of
this Sublease. In the event the Term commences on a date other than
the Commencement Date, Sublessor and Sublessee shall execute a
memorandum setting forth the actual date of commencement of the
Term. Possession of the Premises ("Possession") shall be delivered
to Sublessee on the commencement of the Term. If for any reason
Sublessor does not deliver Possession to Sublessee on the
commencement of the Term, Sublessor shall not be subject to any
liability for such failure, the Termination Date shall not be
extended by the delay, and the validity of this Sublease shall not
be impaired, but rent shall xxxxx until delivery of Possession.
Notwithstanding the foregoing, if Sublessor has not delivered
Possession to Sublessee within thirty (30) days after the
Commencement Date then at any time thereafter and before delivery of
Possession, Sublessee may give written notice to Sublessor of
Sublessee's intention to cancel this Sublease. Said notice shall set
forth an effective date for such cancellation which shall be at
least ten (10) days after delivery of said notice to Sublessor. If
Sublessor delivers Possession to Sublessee on or before such
effective date, this Sublease shall remain in full force and effect.
If Sublessor fails to deliver Possession to Sublessee on or before
such effective date, this Sublease shall be cancelled, in which case
all consideration previously paid by Sublessee to Sublessor on
account of this Sublease shall be returned to Sublessee, this
Sublease shall thereafter be of no further force or effect and
Sublessor shall have no further liability to Sublessee on account of
such delay or cancellation. If Sublessor permits Sublessee to take
Possession prior to the commencement of the Term, such early
Possession shall not advance the Termination Date and shall be
subject to the provisions of this Sublease, including without
limitation the payment of rent.
6. RENT.
6.1 Minimum Rent. Sublessee shall pay to Sublessor as
minimum rent, without deduction, setoff, notice, or
demand, at 7 Studebaker, Xxxxxx, Xxxxxxxxxx 00000, or at
such other place as Sublessor shall designate from time
to time by notice to Sublessee, the sum of three
thousand seven hundred sixteen and 0/100 Dollars
($3,716.00) per month, in advance on the first day of
each month of the Term. Sublessee shall pay to Sublessor
upon execution of this Sublease the sum of three
thousand seven hundred sixteen and 0/100 Dollars
($3,716.00) as rent for June 1- June 30, 1997. If the
Term begins or ends on a day other than the first or
last day of a month, the rent for the partial months
shall be prorated on a pier diem basis.
Additional provisions:
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6.2 Operating Costs. If the Master Lease requires Sublessor
to pay to Lessor all or a portion of the expenses of
operating the building and/or project of which the
Premises are a part ("Operating Costs"), including but
not limited to taxes, utilities or insurance, then
Sublessee shall pay to Sublessor as additional rent, one
hundred percent (100%) of the amounts payable by
Sublessor for Operating Costs incurred during the Term.
Such additional rent shall be payable as and when
Operating Costs are payable by Sublessor to Lessor. If
the Master Lease provides for the payment by Sublessor
of Operating Costs on the basis of an estimate thereof,
then as and when adjustments between estimated and
actual Operating Costs are made under the Master Lease,
the obligations of Sublessor and Sublessee hereunder
shall be adjusted in a like manner, and if any such
adjustment shall occur after the expiration or earlier
termination of the Term, then the obligations of
Sublessor and Sublessee under this Subsection 6.2 shall
survive such expiration or termination. Sublessor shall,
upon request by Sublessee, furnish Sublessee with copies
of all statements submitted by Lessor of actual or
estimated Operating Costs during the Term.
7. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this
Sublease the sum of three thousand seven hundred sixteen and 00/100
Dollars ($3,716.00) as security for Sublessee's faithful performance
of Sublessee's obligations hereunder ("Security Deposit"). If
Sublessee fails to pay rent or other charges when due under this
Sublease, or fails to perform any of its other obligations
hereunder, Sublessor may use or apply all or any portion of the
Security Deposit for the payment of any rent or other amount then
due hereunder and unpaid, for the payment of any other sum for which
Sublessor may become obligated by reason of Sublessee's default or
breach, or for any loss or damage sustained by Sublessor as a result
of Sublessee's default or breach. If Sublessor so uses any portion
of the Security Deposit, Sublessee shall, within ten (10) days after
written demand by Sublessor, restore the Security Deposit to the
full amount originally deposited, and Sublessee's failure to do so
shall constitute a default under this Sublease. Sublessor shall not
be required to keep the Security Deposit separate from its general
accounts, and shall have no obligation or liability for payment of
interest on the Security Deposit. In the event Sublessor assigns its
interest in this Sublease, Sublessor shall deliver to its assignee
so much of the Security Deposit as is then held by Sublessor. Within
ten (10) days after the Term has expired, or Sublessee has vacated
the Premises, or any final adjustment pursuant to Subsection 6.2
hereof has been made, whichever shall last occur, and provided
Sublessee is not then in default of any of its obligations
hereunder, the Security Deposit, or as much thereof as had not the
theretofore been applied by Sublessor, shall be returned to
Sublessee or to the last assignee, if any, of Sublessee's interest
hereunder.
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8. USE OF PREMISES.
The Premises shall be used and occupied only for general office, and
storage of medical products, and for no other use or purpose.
9. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet all or
any part of the Premises without the prior written consent of
Sublessor (and the consent of Lessor, if such is required under the
terms of the Master Lease).
10. OTHER PROVISIONS OF SUBLEASE.
All applicable terms and conditions of the Master Lease are
incorporated into and made a part of this Sublease as if Sublessor
were the lessor thereunder, Sublessee the lessee thereunder, and the
Premises the Master Premises, except for the following:
___________________________________________________________________
___________________________________________________________________
Sublessee assumes and agrees to perform the lessee's obligations
under the Master Lease during the Term to the extent that such
obligations are applicable to the Premises, except that the
obligation to pay rent to Lessor under the Master Lease shall be
considered performed by Sublessee to the extent and in the amount
rent is paid to Sublessor in accordance with Section 6 of this
Sublease. Sublessee shall not commit or suffer any act or omission
that will violate any of the provisions of the Master Lease.
Sublessor shall exercise due diligence in attempting to cause Lessor
to perform its obligations under the Master Lease for the benefit of
Sublessee. If the Master Lease terminates, this Sublease shall
terminate and the parties shall be relieved of any further liability
or obligation under this Sublease, provided however, that if the
Master Lease terminates as a result of a default or breach by
Sublessor or Sublessee under this Sublease and/or the Master Lease,
then the defaulting party shall be liable to the nondefaulting party
for the damage suffered as a result of such termination.
Notwithstanding the foregoing, if the Master Lease gives Sublessor
any right to terminate the Master Lease in the event of the partial
or total damage, destruction, or condemnation of the Master Premises
or the building or project of which the Master Premises are a part,
the exercise of such right by Sublessor shall not constitute a
default or breach hereunder.
11. ATTORNEYS' FEES.
If Sublessor, Sublessee, or Broker shall commence an action against
the other arising out of or in connection with the Sublease, the
prevailing party shall be entitled to recover its costs of suit and
reasonable attorneys' fees.
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12. AGENCY DISCLOSURE.
Sublessor and Sublessee each warrant that they have dealt with no
other real estate broker in connection with this transaction except:
CB COMMERCIAL REAL ESTATE GROUP, INC., who represents Endocare,
Inc., and CB COMMERCIAL REAL ESTATE GROUP, INC., who represents XL
VISION. In the event that CB COMMERCIAL REAL ESTATE GROUP, INC.
represents both Sublessor and Sublessee, Sublessor and Sublessee
hereby confirm that they were timely advised of the dual
representation and that they consent to the same, and that they do
not expect said broker to disclose to either of them the
confidential information of the other party.
13. COMMISSION.
Upon execution of this Sublease, and consent thereto by Lessor (if
such consent is required under the terms of the Master Lease),
Sublessor shall pay Broker a real estate brokerage commission in
accordance with Sublessor's contract with Broker for the subleasing
of the Premises, if any, and otherwise in the amount of per a
separate agreement __________ Dollars ($__________), for services
rendered in effecting this Sublease. Broker is hereby made a third
party beneficiary of this Sublease for the purpose of enforcing its
right to said commission.
14. NOTICES.
All notices and demands which may or are to be required or permitted
to be given by either party on the other hereunder shall be in
writing. All notices and demands by the Sublessor to Sublessee shall
be sent by United States Mail, postage prepaid, addressed to the
Sublessee at the Premises, and to the address herein below, or to
such other place as Sublessee may from time to time designate in a
notice to the Sublessor. All notices and demands by the Sublessee to
Sublessor shall be sent by United States Mail, postage prepaid,
addressed to the Sublessor at the address set forth herein, and to
such other person or place as the Sublessor may from time to time
designate in a notice to the Sublessee.
To Sublessor: 7 Studebaker, Xxxxxx, Xxxxxxxxxx 00000
To Sublessee: 00000 000xx Xxxxxxx, Xxxxxxxxx, Xxxxxxx 00000
15. CONSENT BY LESSOR.
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS CONSENTED TO BY
LESSOR WITHIN 10 DAYS AFTER EXECUTION HEREOF, IF SUCH CONSENT IS
REQUIRED UNDER THE TERMS OF THE MASTER LEASE.
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16. COMPLIANCE.
The parties hereto agree to comply with all applicable federal,
state and local laws, regulations, codes, ordinances and
administrative orders having jurisdiction over the parties, property
or the subject matter of this Agreement, including, but not limited
to, the 1964 Civil Rights Act and all amendments thereto, the
Foreign Investment in Real Property Tax Act, the Comprehensive
Environmental Response Compensation and Liability Act, and The
Americans With Disabilities Act.
Sublessor: Endocare, Inc. Sublessee: XL Vision
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By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
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Title: CEO 6/10/97 Title: VP of Administration 6/6/97
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By: By:
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Title: Title:
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Date: Date:
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LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), lessor under the Master Lease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Master Lease
concerning further assignment or subletting. Lessor certifies that, as of the
date of Lessor's execution hereof, Sublessor is not in default or breach of any
of the provisions of the Master Lease, and that the Master Lease has not been
amended or modified except as expressly set forth in the foregoing Sublease.
Lessor:
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By:
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Title:
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By:
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Title:
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Date:
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CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney. No representation or recommendation is made by Broker as to the legal
sufficiency or tax consequences of this document or the transaction to which it
relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
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ADDENDUM TO SUBLEASE
This Addendum to Sublease (this "Addendum") is entered into as of
May 19, 1997 between Endocare, Inc. ("Sublessor") and XL Vision ("Sublessee")
concurrently with the execution and delivery of the Sublease dated May 19, 1997
between Sublessor and Sublessee relating to Suites 133 and 134 of the building
commonly known as Technology Plaza I in Irvine, California. All references in
this Addendum to the "Sublease" refer to said Sublease as amended and
supplemented by the Addendum except where the context otherwise requires,
including without limitation where specific sections of the Sublease are
referred to.
The purpose of this Addendum is to make certain changes and
additions to the Sublease. All capitalized terms not otherwise defined in this
Addendum shall have the same meaning as in the Sublease, and all inconsistencies
between this Addendum and the Sublease shall be resolved in favor of this
Addendum.
1. Term. Notwithstanding the provisions of Section 5 of the
Sublease:
(a) the Term of the Sublease shall commence on the later of (i)
June 9, 1997 or (ii) five days after Sublessor obtains and delivers to Sublessee
the written consent to the Sublease from the Lessor under the Master Lease.
(b) the failure of Sublessor to obtain the written consent of the
Lessor under the Master Lease shall result in the termination of the Sublease as
provided in Section 15 of the Sublease unless Sublessor and Sublessee otherwise
agree to the contrary in writing; and
(c) Sublessor agrees to vacate the Premises prior to June 9, 1997
and shall be liable to Sublessee for any failure to do so.
2. Rent and Deposit. Notwithstanding the provisions of Sections 6
and 7 of the Sublease, Sublessor shall have no obligation to pay any amount
contemplated by those sections until the Lessor under the Master Lease has
consented to the Sublease as amended and supplemented by this Addendum. No rent
or other charges shall accrue or be payable for any period before such consent
is obtained.
3. Assignment and Subletting. Supplementing the provisions of
Section 9 of the Sublease, Sublessor shall not unreasonably withhold its consent
to any assignment of the Sublease or further subletting of the Premises by
Sublessee.
4. Other Provisions of Sublease. Notwithstanding the provisions of
Section 10 of the Sublease:
(a) To clarify the obligation to pay rent to the Lessor under the
Master Lease which is already set forth in Section 10 of the Sublease, the
Sublessee shall pay to Sublessor and Sublessor shall pay to the Lessor under the
Master Lease any additional rent as provided in Section IIIA(4) of the First
Amendment to Lease dated April 29, 1996 between said
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Lessor under the Master Lease and Sublessor and such amount shall be based upon
the Basic Rent under the Master Lease, not the Sublease.
(b) All amounts payable as Tenant's Share of Operating Expenses
pursuant to Section 4.2 of the Master Lease for the Term of the Sublease shall
be payable by Sublessee to Sublessor, and a Sublessee shall have no obligation
to make such payments directly to the Lessor under the Master Lease. Sublessor
will assert to the Lessor under the Master Lease any objection to Operating
Expenses as contemplated by Section 4.2(b) of the Master Lease as Sublessee may
reasonably request and will cooperate in good faith with Sublessee to have such
objection resolved to the reasonable satisfaction of Sublessee. If Sublessee
requests that Sublessor assert any such objection, Sublessee will reimburse
Sublessor for its reasonable, direct, out-of-pocket expenses ("Out-Of-Pocket
Expenses") incurred in asserting the objection (excluding any allocation of
general and administrative expense, overhead, employee salaries and the like).
If Sublessor has the right to recover any of such expenses from the Lessor under
the Master Lease and Sublessee requests that Sublessor do so, Sublessor will
assert its right to collect such expenses and, to the extent Sublessor has been
reimbursed by Sublessee with respect thereto, Sublessor will pay over to
Sublessee the amount so recovered. All Out-Of-Pocket Expenses incurred by
Sublessor in asserting such rights will be reimbursed by Sublessee as provided
above for expenses incurred in asserting objections to Operating Expenses.
(c) Sublessee shall have no obligation to Sublessor or the Lessor
under the Master Lease with respect to any Hazardous Materials brought upon,
stored, used, generated, released or disposed of on, under, from or about the
Premises by Sublessor at any time or by another person prior to the Commencement
Date.
(d) Sublessee shall have no obligation to remove any alteration,
decoration, fixture, addition, improvement or the like installed by Sublessor on
the Premises or by the Lessor under the Master Lease at the request of the
Sublessor, notwithstanding the provisions of Section 7.3 and 15 and any other
provision of the Lease to the contrary.
(e) Sublessee's right to assign the Sublease and to sublet the
Premises shall be governed by Section 9 of the Sublease and by Article IX of the
Master Lease incorporated by reference into the Sublease pursuant to Section 10
of the Sublease.
(f) In the event of damage or destruction referred to in Article
XI of the Master Lease or a taking referred to in Article XII of the Master
Lease;
(i) Sublessor shall have no obligation to rebuild or restore
the Building or the Project;
(ii) Any decision by the Lessor under the Master to terminate
the Master Lease shall result in a concurrent termination of the Sublease;
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(iii) Sublessor cannot terminate the Sublease unless the
Lessor under the Master terminates the Master Lease or Sublessor has the right
to terminate the Master Lease in accordance with its terms and elects to do so;
(iv) If Sublessor has the right to terminate the Master Lease
in accordance with the terms thereof, Sublessee will have the right to terminate
the Sublease, whether or not Sublessor exercises its right to terminate the
Master Lease, but such right to terminate under Article XI, if exercised, must
be exercised not later than five business days before the last day by which
Sublessor has the right to terminate the Master Lease; and
(v) Any insurance proceeds or condemnation award payable to
Sublessor under the Master Lease shall be payable to Sublessee under the
Sublease, except to the extent that the amount of any payment is attributable to
the difference between the rent under the Master Lease and the rent under the
Sublease.
(g) Sublessee is not assuming Sublessor's obligations to the
Lessor under Sections 13.3 of the Master Lease with respect to the financial
statements of Sublessor referred to therein, but said Section 13.3 is
incorporated by reference into the Sublease pursuant to Section 10 of the
Sublease so that it refers to the financial statements provided by Sublessee to
Sublessor.
(h) Sublessee will deliver to Sublessor an estoppel certificate
as contemplated by Section 13.2 of the Master Lease upon 7 days prior written
notice form Sublessor provided that, for this purpose, all reference in said
Section 13.2 to "Tenant" shall be deemed to refer to "Sublessee", all references
to "Landlord" shall be deemed to refer to "Sublessor" and all references to
"this Lease" shall be deemed to refer to the Sublease. Sublessee shall have no
other obligations with regard to said Section 13.2 and Sublessor shall continue
to be obligated to deliver the estoppel certificate referred to therein to the
Lessor under the Master Lease.
(i) Sublessee does not assume any liability or obligation under
the Master Lease arising out of or relating to any default by Sublessor
thereunder, except to the extent that such default is caused by a default by
Sublessee in the performance of a corresponding covenant incorporated by
reference into the Sublease.
(j) Although Section 14.5 of the Master Lease is incorporated by
reference in the Sublease as provided in Section 10 of the Sublease, the thirty
(30) day period of time referred to in said Section 14.5 shall be reduced to
three (3) days as incorporated into the Sublease insofar as it relates to any
breach of the Sublease by Sublessor involving the failure to pay money to
Sublessee, the Lessor under the Master Lease or any other party or to any breach
of the provisions of this Addendum.
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(k) Sublessee does not assume any obligation of Sublessor under
the Master Lease set forth in Section 15.1, except to the extent the holdover of
Sublessor under the Master Lease consists of the holdover of Sublessee under the
Sublease.
(l) The following additional sections of the Master Lease are not
incorporated into the Sublease as provided in Section 10 of the Sublease and
Sublessee is not assuming and agreeing to perform any of Sublessor's obligations
with respect thereto: Sections 4.3, 14.8, Article XVI (to the extent that it
relates to the giving of notices, elections, demands, consents, approvals and
other communications), Article XIX and Sections 20.10, 22.3, and 22.4.
5. Obligations Assumed. To clarify the provisions of Section 10 of
the Sublease, Sublessee is assuming and agreeing to perform only those
obligations of Sublessor under the Master Lease referred to therein which arise
during, and are attributable to, the Term of the Sublease. By way of example,
Sublessee is agreeing to pay the Operating Expenses contemplated by Section 4.2
of the Master Lease which are attributable to the period from June 1, 1997 to
September 30, 1998 (the Term of the Sublease) but is not agreeing to pay
Operating Expenses attributable to the period prior to June 1, 1997 even though
the amount thereof may be payable during the Term of the Sublease.
6. Performance of Obligations of Sublessor Under Master Lease.
Sublessor will perform in full all of its obligations under the Master Lease not
assumed by Sublessee pursuant to the Sublease and will use its best efforts to
cause the Lessor under the Master Lease to perform all of its obligations
thereunder. If Sublessee requests that Sublessor use its best efforts to cause
the Lessor under the Master Lease to perform any of its obligations thereunder,
Sublessee will reimburse Sublessor for its Out-Of-Pocket Expenses incurred in
doing so. If Sublessor has the right to recover its Out-Of-Pocket Expenses from
the Lessor under the Master Lease and Sublessee requests that Sublessor do so,
Sublessor will use its best efforts to collect such Expenses and, to the extent
Sublessor has been reimbursed by Sublessee with respect thereto, Sublessor will
pay over to Sublessee the amount so recovered. All Out-Of-Pocket Expenses
incurred by Sublessor in asserting its right to so collect from the Lessor under
the Master Lease will likewise be reimbursed by Sublessee as provided above for
expenses incurred in causing the Lessor to perform its obligations under the
Master Lease.
Any default by Sublessor in the performance of any such obligations
shall be deemed to be a default under the Sublease. In the event Sublessor fails
to perform any of such obligations under the Master Lease, Sublessee will have
the right, but not the obligation, to tender such performance directly to the
Lessor under the Master Lease, and any such performance by Sublessee shall be
deemed to satisfy the corresponding obligation to Sublessor under the Sublease.
Sublessor will deliver to Sublessee and Sublessee will deliver to
Sublessor, promptly after receipt by either of them, a copy of any notice of
default and any other notice, request, demand or other communication delivered
to such party by the Lessor under and
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pursuant to the Master Lease and shall keep the other such party advised of any
litigation, claim or other event relating to the Premises, the Sublease or the
Master Lease.
7. Surrender of Master Lease. In no event shall Sublessor surrender
or otherwise agree or consent to any termination of the Master Lease which would
cause a termination or otherwise adversely affect the rights of Sublessee under
the Sublease, except as provided in the last sentence of Section 10 of the
Sublease.
8. Performance by Sublessee. The parties acknowledge that Section 10
of the Sublease provides (subject to certain exceptions) both
(a) that all applicable terms and conditions of the Master Lease
are incorporated into and made a part of the Sublease as if Sublessor were the
lessor thereunder, Sublessee were the lessee thereunder and the Premises were
the Master Premises and
(b) that Sublessee assumes and agrees to perform Sublessor's
obligations under the Master Lease arising during and attributable to the Term
of the Sublease to the extent that such obligations are applicable to the
Premises.
The parties further acknowledge their understanding that, taken
literally, the provisions in (a) and (b) above could overlap and that Sublessee
could be obligated to perform the same obligation twice. For example, (a) and
(b) taken together and literally read could require the Sublessee to pay both
the Sublessor and the Lessor under the Master Lease for utilities that are not
separately metered or assessed to the tenant under the Master Lease, as provided
in Section 6.1. Sublessor and Sublessee intend Section 10 to incorporate into
the Sublease only applicable terms and conditions of the Master Lease, and
Sublessor agrees that to the extent of any overlap in Sublessee's obligations
under the Sublease and applicable obligations under the Master Lease which have
been assumed by Sublessee, any performance by Sublessee of such assumed
obligations shall be deemed to satisfy Sublessee's obligations under the
Sublease.
9. Disclaimer of Third-Party Beneficiary Rights. Sublessee's
assumption of certain of Sublessor's obligations under the Master Lease and the
incorporation of certain provisions of the Master Lease into the Sublease by
reference are intended to create rights and obligations only between Sublessor
and Sublessee and are not intended to make the Lessor under the Master Lease a
third-party beneficiary of any such rights and obligations.
10. Compliance with Law. The obligations of the parties pursuant to
Section 16 of the Sublease to comply with provisions of law apply only to such
provisions of law which affect the Sublease, the Premises or the operations of
either party on the Premises.
11. Parking. Sublessee's rights under the Sublease shall include the
right to the 15 parking spaces contemplated by the Master Lease.
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12. Entire Agreement. The Sublease and this Addendum cover in full
each and every agreement of every kind between the Sublessor and the Sublessee
concerning the Premises, and all preliminary negotiations, all agreements,
understandings and/or practices except those set forth or referred to in the
Sublease or this Addendum are superseded and of no further affect. No verbal
agreement or implied covenant shall be held to modify the provisions of this
Sublease or this Addendum.
ENDOCARE, INC. XL VISION
By:/s/ Xxxx X. Xxxxx By:/s/ Xxxxx X. Xxxxxxx
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Xxxx X. Xxxxx Xxxxx X. Xxxxxxx
CEO 6/10/97 VP of Administration 6/6/97
6.
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CONSENT TO SUBLETTING
I. PARTIES AND DATES.
This Consent to Subletting ("Consent") dated May 19, 1997, is by and
between IRVINE TECHNOLOGY PARTNERS II ("Landlord"), ENDOCARE, INC. ("Tenant"),
and XL VISION ("Subtenant").
II. RECITALS.
On September 20, 1995, Landlord and Tenant entered into a lease
("Lease") for space in a building owned by Landlord and located at 18
Technology, Suites 133 and 134, Irvine, California. The Lease has subsequently
been amended on April 19, 1996.
The Lease contains provisions which require, among other things
Tenant to obtain Landlord's consent to any subletting of the Premises. Tenant
has requested Landlord to consent to a subletting of the Premises to Subtenant.
III. CONSENT TO SUBLETTING.
For valuable consideration including Tenant's and Subtenant's
agreement to the provisions of this Consent, Landlord consents to a subletting
to Subtenant of approximately 5,161 rentable square feet of the Premises. Tenant
and Subtenant agree that this Consent is conditioned upon their agreement that:
A. The sublease agreement ("Sublease") between Tenant
and Subtenant is expressly subject to the provisions of the Lease, a copy of
which Subtenant acknowledges it has received.
B. Tenant will deliver a copy of the Sublease to
Landlord within five (5) business days of landlord's request, provided that if
the Sublease is not in writing, Tenant may deliver a reasonably detailed summary
of the Sublease including information respecting the length of the term and the
amount of rent and other charges payable under the Sublease, which summary shall
be approved by Subtenant.
C. Tenant's obligations under the Lease shall not be
affected by this Consent.
D. Landlord shall be entitled to receive profits derived
by Tenant from this subletting in accordance with the provisions of the Lease.
E. The provisions of the Lease respecting assignment and
subletting are not waived with respect to future assignments and sublettings.
15
F. Subtenant is not claiming any interest in a right
belonging solely to Tenant pursuant to the Lease.
G. The Lease is in full force and effect and that
Landlord is not in breach of any provision of the Lease.
H. That if the Sublease terminates by reason of a
termination of the Lease, landlord may, at its option, by delivering written
notice to Subtenant, assume the obligation of Tenant under the Sublease in which
event Subtenant shall recognize Landlord as if it were Sublandlord under the
Sublease.
IV. SUBTENANT'S PRINCIPAL PLACE OF BUSINESS.
The address of Subtenant's principal place of business is 00000
000xx Xxxxxxx, Xxxxxxxxx, XX 00000.
V. GENERAL.
A. EFFECT OF SUBLETTING. The Lease and Tenant's
obligations to Landlord shall not be deemed to have been modified by this
Consent.
B. ENTIRE AGREEMENT. This Consent embodies the entire
understanding between Landlord, Tenant and Subtenant with respect to the
subletting and can be changed only by an instrument in writing signed by the
party against whom enforcement is sought.
C. COUNTERPARTS. If this Consent is executed in
counterparts, each is hereby declared to be an original; all, however, shall
constitute but one in the same Consent. In any action or proceeding, any
photographic, photostatic, or other copy of this Consent may be introduced into
evidence without foundation.
D. DEFINED TERMS. All words commencing with initial
capital letters in this Consent and defined in the Lease shall have the same
meaning in this Consent as in the Lease.
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 Consent for the corporation or partnership represents
that he or she is duly authorized to execute and deliver this Consent on behalf
of the corporation or partnership and that this Consent 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 Consent to
Subletting.
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VI. EXECUTION.
Landlord, Tenant and Subtenant have entered into this Consent as of
the date set forth in "I. PARTIES AND DATE" above.
LANDLORD: TENANT:
ENDOCARE, INC.
IRVINE TECHNOLOGY PARTNERS II, /s/ Xxxx X. Xxxxx
a California general partnership ------------------------------------
CEO 6/10/97
------------------------------------
By: THE IRVINE COMPANY, By:
a Michigan corporation ------------------------------
Its General Partner Title:
------------------------------
By: /s/ J. Xxxxxx XxXxxx By:
-------------------------- ------------------------------
J. Xxxxxx XxXxxx, Senior Title:
Vice President, Irvine ------------------------------
Industrial Company, a
division of The Irvine
Company
By: /s/ Xxxx X. Xxx SUBTENANT:
--------------------------
Xxxx X. Xxx, Assistant
Secretary
XL VISION
------------------------------------
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Title: Xxxxx X. Xxxxxxx
-----------------------------
VP of Administration
6/6/97
By:
------------------------------
Title:
------------------------------
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