California-Fremont-47266 Benicia Street Sublease - Cardima Inc. and Target Therapeutics Inc.
SUBLEASE BETWEEN CARDIMA, INC. AND TARGET THERAPEUTICS, INC.
1. PARTIES.
This Sublease, dated November 14, 1996 is made between Cardima, Inc., a
Delaware corporation ("Sublessor"), and Target Therapeutics, Inc., a
Delaware corporation ("Sublessee").
2. MASTER LEASE.
Sublessor is the Tenant under a written lease dated April 25, 1992, wherein
the State of California Public Employee's Retirement System ("Landlord")
leases to Sublessor the real property commonly known as 47266 Benicia
Street, Fremont, CA 94538, and consisting of approximately 44,810 square
feet of office, R&D and warehouse space (the "Premises"). Said lease, as
amended by that certain Lease Amendment No. 1, dated September 28, 1994
(collectively, the "Master Lease"), is attached hereto as Exhibit "A".
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3. PREMISES.
Sublessor hereby subleases to Sublessee, and Sublessee hereby subleases from
Sublessor, on the terms and conditions set forth in this Sublease, that
portion of the Premises depicted on Exhibit "B" attached hereto (the
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"Subleased Premises"). The parties stipulate that the Subleased Premises
contains approximately 6,695 rentable square feet of warehouse space.
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, to Sublessor's knowledge, the default or breach of any of the
provisions of the Master Lease,and that Sublessor has no knowledge of any
claim by Landlord that Sublessor is in default or breach of any of the
provisions of the Master Lease.
5. TERM.
5.1 Commencement.
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5.1.1 The term of the Sublease (the "Term") shall commence on
November 15, 1996 (the "Commencement Date"), and end on November 14,
1997 (the "Termination Date"), unless otherwise sooner terminated in
accordance with provisions of this Sublease.
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5.2 Renewal. At the Termination Date, the Term may be extended for
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successive periods of one (1) year each provided that: (a) Sublessee shall
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give Sublessor written notice of its intent to extend the Term not less than
ninety (90) days prior to the expiration of the then existing Term, (b)
Sublessor and Sublessee shall mutually consent to the extension of the Term,
and the amount of the rent to be paid by Sublessee during such extension,
(c) the unexpired term of the Master Lease, as of the commencement of each
extended Term, shall not be less than one (1) year, and (d) there shall be
no Event of Default by Sublessee hereunder either as of the date of exercise
of any such extension option or as of the date on which the ensuing Term
extension would otherwise commence. If the Term of this Sublease is so
extended, Sublessor and Sublessee shall enter into a written amendment of
this Sublease setting forth the commencement and expiration dates of the
Term as so extended and any other modifications of this Sublease to which
the parties may agree. Notwithstanding anything in this Sublease to the
contrary, the Term of this Sublease shall not be extended beyond the
expiration or sooner termination of the Master Lease, and Sublessor shall
have no obligation to extend the term of the Master Lease.
5.3 Cancellation. At any time during the Term, either party may cancel
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this Sublease by giving the other party not less than six (6) months prior
written notice of cancellation; provided, however, that no notice of
cancellation from Sublessee shall be effective if there is an uncured Event
of Default by Sublessee existing as of the date on which such cancellation
would otherwise be effective, and such cancellation shall be effective only
as of the date that such Event of Default is cured. No cancellation of this
Sublease pursuant to this provision shall relieve either party of any of its
obligations or liabilities which have accrued under this Sublease prior to,
and remain unsatisfied as of, the effective date of such cancellation.
6. RENT.
6.1 Minimum Rent. Beginning on November 15, 1996, (the "Rent Start
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Date"), Sublessee shall pay to Sublessor, without deduction, setoff, notice,
or demand, at the address of Sublessor provided in Section 12 hereof, the
sum of Four-Thousand Five-Hundred Fifty-Two Dollars and Sixty Cents
($4,552.60) minimum monthly rent ("Monthly Rent").
Monthly Rent shall be due and payable to Sublessor in lawful money of the
United States, in advance, on the first (1st) day of each calendar month of
the Term.
6.2 Prorations. If the Commencement Date is not the first (1st) day of a
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month, or if the expiration of the Term of this Sublease is not the last day
of a month, a prorated installment of Monthly Rent based on a thirty (30)
day month shall be paid for the fractional month during which the Term
commences or terminates.
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6.3 Operating Expenses. Sublessee shall pay to Sublessor, as Additional
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Rent, Fifteen percent (15%) of the Operating Expenses, as described in
Paragraph 7.1 of the Master Lease, as and when such Operating Expenses are
payable by Sublessor to Landlord. Sublessor shall provide notice to
Sublessee of the required payments promptly following receipt of notice
thereof from Landlord.
6.4 Sublessor's Maintenance Costs. In addition to the payment required
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under Section 6.4 hereof, Sublessee shall pay to Sublessor, as Additional
Rent, Eighteen percent (18%) of all costs incurred by Sublessor in the
operation and maintenance of the Premises ("Sublessor's Maintenance Costs")
which are not included among the Operating Expenses.
Sublessor shall provide to the Subleased Premises water, gas electricity,
heat, light, power, refuse pickup, janitorial service and all other
utilities, materials, and services provided to or utilized by Sublessor in
the operation and maintenance of the Premises, and reasonably applicable to
the Subleased Premises, and Sublessor's Maintenance Costs shall include the
reasonable cost of providing such services. Sublessor will provide Sublessee
a detailed monthly invoice of such charges. Sublessee agrees to pay
Sublessor the amount due under such invoice within thirty (30) days of
invoice date.
6.5 Late Payment Charges. If any installment of Monthly Rent or any
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payment of Additional Rent or any other sums due from Sublessee hereunder is
not received by Sublessor in good funds by the fifth (5th) calendar day from
the applicable due date, Sublessee shall pay to Sublessor an additional sum
equal to five percent (5%) of the amount overdue as a late charge for every
month or portion thereof that such amount remains unpaid.
6.6 General Rent Payment Terms. All Monthly Rent and Additional Rent
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shall be paid to Sublessor in lawful money of the United States, at
Sublessor's address provided in Section 12 hereof, without abatement,
deduction, claim or offset, and without prior notice, invoice or demand,
except as specifically provided herein.
7. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this Sublease the
sum of Seven Thousand Five Hundred and no/100 Dollars ($7,500.00) 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 fifteen (15) days after written demand Sublessor, restore the
Security Deposit to the full amount originally deposited, and Sublessee's
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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
interests 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 Subleased
Premises, or any final adjustment pursuant to Subsection 6.2, 6.3, 6.4 and
6.5 hereof has been made, whichever shall last occur, and provided there is
no Event of Default on the part of Sublessee hereunder, the Security
Deposit, or so much thereof as had not theretofore properly been applied by
Sublessor, shall be returned to Sublessee or to the last assignee, if any,
of Sublessee's interest hereunder.
8. USE OF SUBLEASED PREMISES.
The Subleased Premises shall be used and occupied only for storage of
Sublessee's goods, manufacturing and office equipment and office files, and
related uses, and for no other use or purpose. Sublessee may perform
alterations, additions or improvements only with the prior written consent
of the Sublessor, which shall not be unreasonably withheld and, if consent
is required under the Master Lease, with the prior written consent of the
Landlord. Any such alterations, additions or improvements will be made at
the expense of Sublessee, and will remain the property of Sublessee,
subject to any provisions of the Master Lease requiring the surrender of
such alterations, additions or improvements to the Landlord.
9. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet all or any part
of the Subleased Premises without the prior written consent of Sublessor,
which shall not be unreasonably withheld or delayed (and the consent of
Landlord, if such is required under the terms of the Master Lease).
10. OTHER PROVISIONS OF SUBLEASE.
10.1 Terms of Sublease. This Sublease is subject and subordinate to the
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terms and conditions of the Master Lease. All applicable terms and
conditions of the Master Lease are incorporated into and made a part of
this Sublease, with each reference therein to Landlord deemed to mean
Sublessor, each reference to Tenant therein deemed to mean Sublessee, each
reference to the Premises deemed to mean the Subleased Premises, and each
reference therein to the Lease deemed to mean this Sublease. Sublessee
assumes and agrees to perform the Tenant's obligations under the Master
Lease during the Term to the extent that such obligations are incorporated
herein. Sublessee shall not commit or suffer any act or omission that will
violate any provision of the Master Lease. Sublessor shall exercise
reasonable diligence in attempting to cause Landlord to perform its
obligations under the Master Lease for the benefit of Sublessee, but shall
have no liability to Sublessee for any default of Landlord under the Master
Lease or any
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breach by Landlord under the Master Lease, except to the extent resulting
from the acts or omissions of Sublessor.
10.2 Incorporation of Master Lease Terms.
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10.2.1 Notwithstanding the foregoing, the following provisions of
the Master Lease are not incorporated herein: the Basic Lease Provisions
summary page, Paragraphs 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 4.1, 4.2, 4.6, Rider
14.1, 15.7, 15.8, 21.27, Lease Rider No. One, Exhibit A, Exhibit C, Exhibit
C, Exhibit D, Exhibit E, and Exhibit L. With respect to the representations
and warranties made pursuant to Paragraph 6.8 of the Master Lease and
incorporated herein, the parties acknowledge that Sublessor has undertaken
no independent investigation of the accuracy of those representations and
warranties.
10.2.2 For purposes of incorporation into this Sublease, the terms
of the Master Lease are subject to the following additional modifications:
(i) in all provisions of the Master Lease requiring the approval or consent
of Landlord, Sublessee shall be required to obtain the approval or consent
of Landlord and Sublessor, which shall be subject to the same standard of
approval as would apply to the approval of Landlord under the Master Lease,
(ii) in all provisions of the Master Lease requiring the Tenant to submit,
exhibit, supply or provide to Landlord evidence, certificates or any other
matter or thing, Sublessee shall be required to submit, exhibit, supply or
provide, as the case may be, the same to both Landlord and Sublessor. In
any such instance, Sublessor shall determine, according to the same
standard applicable to Landlord under the Master Lease, if such evidence,
certificate or other matter or thing shall be satisfactory, (iii) in all
provisions of the Master Lease obligating Landlord to provide to Tenant
statements, certificates, or other documents or information, Sublessor
shall provide to Sublessee copies of such statements, certificates or other
documents or information immediately following receipt from Landlord,
insofar as they are applicable to this Sublease, (iv) any rent abatement,
refund, credit, or other amount that may be allowed or become due from
Landlord to the Tenant under the Master Lease shall be allowed, refunded or
credited by Sublessor to Sublessee only to the extent applicable to
Sublessee's occupancy of the Premises pursuant to this Sublease and only if
and to the extent allowed to or received by Sublessor under the Master
Lease. Without limiting the foregoing, in no event shall Sublessee have any
right or claim to any abatement, refund, credit, or other amount that may
be allowed or become due from Landlord to Sublessor with respect to any
portion of the Premises not included within the Subleased Premises, and (v)
Sublessor shall have no obligation, pursuant to Article XII of the Master
Lease, to restore or rebuild any portion of the Premises after any damage
or destruction or, pursuant to Article XIII, after any taking by eminent
domain, except as expressly set forth therein.
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10.3 Termination of Master Lease. If the Master Lease terminates, this
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Sublease shall terminate and the parties shall be relieved of any further
liability or obligation under this Sublease, except for such liability as
may have accrued and remained unsatisfied as of the date of termination. 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. Sublessor shall provide to
Sublessee a copy of any notice of default of the obligations of Sublessor
under the Master Lease in the event of the partial or total damage,
destruction, or condemnation of the Premises or the building or project of
which the Premises, are a part, subject to Section 10.5(ii) below, the
exercise of such right by Sublessor shall not constitute a default or
breach hereunder.
10.4 Representations Regarding Master Lease. Sublessor represents and
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warrants (i) that the document attached as Exhibit A to this Sublease is a
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true, correct and complete copy of the Master Lease, and that the Master
Lease represents the entire agreement between Sublessor and Landlord with
respect to the lease of the Subleased Premises, and (ii) Sublessor has not
assigned, encumbered or otherwise transferred any interest of Tenant under
the Master Lease.
10.5 Master Lease Obligations. During the term of this Sublease,
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Sublessor: (i) shall perform all obligations of the Tenant under the Master
Lease, insofar as such obligations are applicable to this Sublease, (ii)
shall not terminate the Master Lease without the express written consent of
Sublessee, except following an event of damage or destruction which would
permit Sublessor to terminate the Master Lease pursuant to Paragraph 12.3
thereof, and which event of damage or destruction affects the Premises and
not the Subleased Premises, and (iii) shall not amend, modify or alter any
terms or conditions of the Master Lease which may affect the use or
operation by Sublessee of the Subleased Premises, without the consent of
Sublessee. Sublessee's consent hereunder shall not be unreasonably withheld
or delayed.
10.6 Default by Sublessor under Master Lease. Effective as of the date
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that Sublessee receives written notice that a default by Sublessor has
occurred under the Master Lease, or under this Sublease, Sublessee shall be
entitled (i) to withhold from any payments of Monthly Rent due to Sublessor
hereunder an amount reasonably estimated by Sublessee as necessary to cure
such default, until such time as Sublessee shall have received reasonably
satisfactory written evidence from Landlord that the default under the
Master Lease has been cured, or until such time as the default of Sublessor
hereunder is cured, and (ii) to apply such sums as are reasonably necessary
to cure such default (but without any obligation on the part of Sublessee
to cure any such default). Sublessee shall have no duty to investigate the
veracity of any alleged notice of default of Sublessor received by
Sublessee. Immediately following receipt of evidence that Sublessor's
default
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under the Master Lease and/or the Sublease has been cured, Sublessee shall
pay to Sublessor all amounts withheld hereunder, less any sums expended by
Sublessee in curing such defaults, together with invoices or other evidence
confirming all sums so paid by Sublessee.
Sublessor shall indemnify, defend and hold harmless Sublessee from and
against any loss, cost, demand, or liability, including attorney's fees and
expenses resulting directly or indirectly from the (i) negligence or
willful misconduct of Sublessor, its agents or contractors, or (ii) a
breach of the obligations of Sublessor hereunder or as Tenant under the
Master Lease.
11. ATTORNEYS' FEES.
If Sublessor or Sublessee shall commence an action against the other
arising out of or in connection with this Sublease, the prevailing party
shall be entitled to recover its costs of suit and reasonable attorney's
fees.
12. NOTICES.
All notices and demands which are required or permitted to be given by
either party hereunder shall be in writing. All notices and demands shall
be (i) personally delivered (including delivery by courier or overnight
delivery service), (ii) sent by facsimile or telecopy transmittal and
confirmed by United States mail, as provided in the next clause, or (iii)
sent by United States mail, postage prepaid, to the address noted below for
the respective parties, or to such other place as either party may from
time to time designate in a notice to the other. Notices and demands sent
by personal delivery shall be deemed effective upon delivery to the
addressee, and notices sent by facsimile or telecopy transmission shall be
deemed effective upon transmission to the addressee, and electronic or
telephonic confirmation of receipt. Notices and demands sent by the United
States mail shall be deemed effective on the third (3rd) business day
following deposit in the United States mail in the manner required herein.
To Sublessor: 47266 Benicia Street, Fremont, CA 94538
Attention: Controller
Telephone: 510/354-0300
Facsimile: 510/657-4476
To Sublessee: 47201 Lakeview Blvd., Fremont, CA 94538-5120
Attention: Chief Financial Officer
Telephone: 510/440-7784
Facsimile: 510/440-7630
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13. PARKING.
Sublessee shall have the non-exclusive right to use, in common with
Sublessor and other occupants of the property of which the Premises are a
part, a number of parking spaces among the total number of parking spaces
allocated to Sublessor under the Master Lease which is reasonably adequate
for the use by Sublessee of the Subleased Premises.
14. CONSENT BY LANDLORD.
Sublessor represents and warrants to Sublessee that the consent of
Landlord to the transaction contemplated by this Sublease is not required.
IN WITNESS WHEREOF the parties have executed this Sublease intending to be
bound as of the date first set forth above.
SUBLESSOR: SUBLESSEE:
CARDIMA, INC., TARGET THERAPEUTICS, INC.,
A Delaware corporation A Delaware corporation
/s/CARDIMA, INC. /s/TARGET THERAPEUTICS, INC.
By:_______________________________ By:______________________________
Title:____________________________ Title:___________________________
EXHIBIT A: Master Lease
EXHIBIT B: Subleased Premises Floor Plan
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LEASE AMENDMENT NO. 1
This Lease Amendment No. 1 (the "Amendment"), dated September 28, 1994
for reference only, is made by and between STATE OF CALIFORNIA PUBLIC
EMPLOYEES' RETIREMENT SYSTEM ("Landlord"), and CARDIMA, INC., a California
Corporation ("Tenant"), on the basis of the facts, intentions and
understandings of the parties set forth in the following Recitals.
Recitals
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A. Landlord and Tenant have heretofore entered into that certain
Standard Form Lease (Industrial; Multi-Tenant; Net), dated as of April 25,
1994 (the "Lease"), providing for the lease by Tenant of the premises located
at 47266 Benicia Street, Fremont, California 94538 (the "Premises").
B. The parties desire to amend the Lease in certain respects to
provide, among other things, for the sublease of a portion of the Premises to
Target Therapeutics, Inc. and to modify the provisions of the Lease relating
to the determination of the date on which the term of the Lease shall
commence.
Agreement
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NOW, THEREFORE, for and in consideration of the mutual covenants set
forth in this Amendment, and for other valuable consideration the receipt and
sufficiency of which are acknowledged, Landlord and Tenant hereby amend the
Lease as follows:
1. Definitions. Capitalized terms used in this Amendment without
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definition have the same meanings as are ascribed to such terms in the Lease.
2. Commencement of Lease. Section 3.2 of the Lease is amended to
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provide that the Commencement Date shall occur on the first to occur of the
dates set forth in subclauses (i) or (ii) thereof or November 15, 1994.
3. Permitted Lease Transfers. Rider 14.1, subsection (a) (i), of the
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Lease is amended to read in its entirety as follows:
(i) any assignment of this Lease or sublease of all or a portion of
the Premises to either (A) Target Therapeutics, Inc., or (B) any entity which
is controlled by, under common control with, or controls Tenant ("control"
being defined as the ownership of equity interests constituting fifty percent
(50%) or more of the total voting power of all outstanding equity interests of
the entity over which control is asserted);
4. Subtentant Improvements. In connection with the proposed sublease
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of a portion of the Premises to Target Therapeutics, Inc. ("Subtenant"),
Subtenant may (a) install a chain link demising wall separating its subleased
portion of the Premises from the remainder of the Premises, (b) install its
trade fixtures and equipment within its subleased
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portion of the Premises, and (c) store within its subleased portion of the
Premises equipment, materials and supplies, without such installation and
storage constituting occupancy of the Premises for purposes of determining the
Commencement Date.
5. Continuation of Lease. As amended by this Amendment, all terms and
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conditions of the Lease shall remain unchanged and in full force and effect.
6. General Provisions.
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6.1 Captions. Captions and headings used in this Amendment are for
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convenience of reference only and shall not affect the meaning or
interpretation of any provision of this Amendment.
6.2 Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall be deemed an original as against the party
whose signature appears thereon, and together which shall constitute but one
and the same agreement.
6.3 Recitals. The Recitals set forth in this Amendment are
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incorporated into and made a part of this Amendment.
Landlord and Tenant have caused this Amendment to be executed by their
respective duly authorized officers on the date set forth opposite their
respective signatures below.
Landlord:
Date:______________________, 1996 STATE OF CALIFORNIA PUBLIC
EMPLOYEES' RETIREMENT SYSTEM
By: Alex. Brown Kleinwort Benson
Realty Advisors Corporation,
its duly authorized agent
By:_______________________________ By:_______________________________
Name:_____________________________ Name:_____________________________
Its:______________________________ Its:______________________________
Tenant:
Date:______________________, 1996 CARDIMA, INC.
a California corporation
By:_______________________________
Name:_____________________________
Its:______________________________
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EXHIBIT B
[FLOOR PLAN OF SUBLEASED PREMISES.]