Exhibit 10.24
ASSIGNMENT AND ASSUMPTION
AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION
AGREEMENT (this “Assignment”) dated October 19, 2006
for reference purposes only is made by and between FoxHollow
Technologies, Inc., a Delaware corporation
(“Assignor”), and Google, Inc., a Delaware corporation
(“Assignee”).
This Assignment is made with
reference to the following facts and circumstances:
A. Britannia Hacienda VIII LLC, as
“Landlord” (“Landlord”), and Assignor, as
“Tenant,” are parties to that certain Lease dated as of
November 1, 2005 (the “Lease”), whereby Landlord
leased to Assignor those certain premises (the
“Premises”) consisting of approximately 124,274
rentable square feet of space constituting the building commonly
known as 2081 Stierlin Court located in the Britannia Shoreline
Technology Park in the City of Mountain View, County of Santa
Clara, State of California, as more particularly described in the
Lease.
B. Assignor desires to assign to
Assignee all of Assignor’s right, title and interest in,
under and to the Lease, and Assignee desires to accept such
assignment and assume all of the obligations of
“Tenant” under the Lease, except as mutually agreed in
writing between Assignee and Landlord under separate agreement
between the parties.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor and Assignee hereby agree as
follows:
1. Lease . A copy of the
Lease is attached hereto as Exhibit A and it has not been
assigned, modified, supplemented or amended in any way. Capitalized
terms used and not defined herein shall have the meaning ascribed
to them in the Lease. Assignor represents that (a) the Lease
is in full force and effect, (b) no event of default on the
part of Tenant exists under the Lease, (b) to Assignor’s
knowledge without duty of inquiry, no default on the part of
Landlord exists under the Lease, and (c) to Assignor’s
knowledge without duty of inquiry, no event has occurred or
situation exists which, with the passage of time or the giving of
notice, would become an event of default under the Lease by either
Assignor or Landlord.
2. Effective Date . This
assignment and assumption of the Lease shall be effective as of the
date by which this Assignment is fully executed by the parties
hereto and Landlord’s consent to this Assignment is obtained
(the “Effective Date”).
3. Assignment : Assignor
hereby assigns, transfers and conveys to Assignee, as of the
Effective Date, all of Assignor’s right, title and interest
in, under and to the Lease and the Premises (including, without
limitation, all of Assignor’s right to the Tenant Improvement
Allowance under the Lease). Also effective as of the Effective
Date, Assignee accepts this assignment and hereby assumes and
agrees to keep, perform and fulfill, as a direct obligation to
Landlord and for the benefit of Assignor, all of the terms,
covenants, conditions and obligations required to be kept,
performed and fulfilled by the “Tenant” under the Lease
from and after the Effective Date, including, without limitation,
the making of all payments due to Landlord under the Lease which
may become due and payable on or after the Effective
Date.
4. Indemnity Obligations
.
A. Assignee shall indemnify, defend,
and hold harmless Assignor from and against any and all losses,
costs, claims, liabilities and damages arising from or relating to
(i) the Premises and/or the Lease which shall have accrued on
or after the Effective Date or (ii) Assignee’s breach of
any of its
obligations under the Lease. The
provisions of this paragraph shall survive the expiration or
termination of the Lease and this Assignment.
B. Assignor shall indemnify, defend,
and hold harmless Assignee from and against any and all third party
claims for losses, costs, claims, liabilities and damages occurring
during the period commencing on the Construction Access Date under
the Lease and ending on the Effective Date hereunder to the extent
the same resulted from the occupancy of or entry into the Premises
by Assignor or its agents, contractors or vendors. The provisions
of this paragraph shall survive the expiration or termination of
the Lease and this Assignment.
5. Condition of the Premises
. As between Assignor and Assignee, the parties acknowledge and
agree that Assignee is accepting the Premises on an “AS
IS” basis and that Assignor has made no representations or
warranties, express or implied, whatsoever, with respect to the
Premises, including, without limitation, any representation or
warranty as to the suitability of the Premises for Assignee’s
intended use. Assignor shall have no obligation whatsoever to make
or pay the cost of any alterations, improvements or repairs to the
Premises, including, without limitation, any improvement or repair
required to comply with any law, regulation, building code or
ordinance (including the Americans with Disabilities Act of 1990,
as may be amended). To Assignor’s knowledge without duty of
inquiry, neither Assignor nor its agents, contractors or vendors
have caused any physical damage to the Premises.
6. Accommodation Fee : In
order to induce Assignee to enter into this Assignment, subject to
the satisfaction of the conditions set forth in Paragraph 8 below,
Assignor shall pay to Assignee, on or before December 31,
2006, One Million Five Hundred Thousand Dollars ($1,500,000) (the
“Accommodation Fee”).
7. Security Deposit : Within
ten (10) days following the full execution of this Assignment
and the satisfaction of the conditions set forth in Paragraph 8
below, Assignee shall deposit with Landlord either a cash Security
Deposit in the amount of Five Hundred Thousand Dollars ($500,000)
or a Letter of Credit in the same amount that satisfies the
requirements of Article 16 of the Lease. The original Letter of
Credit deposited by Assignor with Landlord in the amount of Five
Hundred Thousand Dollars ($500,000) (the “Assignor’s
Letter of Credit”) shall be returned to Assignor and
cancelled.
8. Condition Precedent :
Notwithstanding anything to the contrary in this Assignment, this
Assignment and the parties’ obligations under the Assignment
are conditioned upon the written consent of Landlord to this
Assignment, which consent shall contain the following provisions
except to the extent waived by Assignor in writing:
(a) Landlord shall release Assignor from all of
Assignor’s obligations and liabilities under the Lease
(subject to the provisions in (b) below regarding
Assignor’s Letter of Credit); and (b) upon
Assignee’s deposit with Landlord of a cash Security Deposit
or Letter of Credit complying with the requirements of
Paragraph 7 above, Landlord shall return to Assignor the
Assignor’s Letter of Credit and shall execute the
documentation reasonably required to cancel the Assignor’s
Letter of Credit (provided, however, that until Assignee so
deposits with Landlord such cash Security Deposit or Letter of
Credit, Assignor’s Letter of Credit shall continue to be held
by Landlord as security for the faithful performance of all the
obligations of “Tenant” under the Lease in accordance
with Article 16 of the Lease).
9. Commissions : Assignor and
Assignee each represent to the other that they have dealt with no
real estate brokers, finders, agents or salesmen in connection with
this Assignment other than Warren Wixen and Colliers International
representing Assignee (collectively, “Assignee’s
Broker”) and Cornish & Carey Commercial representing
Assignor (“Assignor’s Broker”). Subject to the
full execution of this Assignment and the satisfaction of the
condition precedent set forth in Paragraph 8 above, Assignor shall
pay the following real estate commissions in connection with this
Assignment: (a) Assignor shall pay to
Assignee’s Broker a real estate commission
in the amount of three percent (3%) of the Minimum Monthly
Rental under Section 3.1(a) of the Lease for the initial Term
only after deducting therefrom the Accommodation Fee; and
(b) pursuant to a separate agreement, Assignor shall pay to
Assignor’s Broker a real estate commission in the amount of
two percent (2%) of the Minimum Monthly Rental under
Section 3.1(a) of the Lease for the initial Term only, after
deducting therefrom the Accommodation Fee. The commission payable
to Assignee’s Broker shall be made by Assignor in the
following installments: Fifty percent (50%) of such commission
on or before December 31, 2006 and the balance of such
commission on or before March 31, 2007. Such commission
payable to Assignee’s Broker shall be made payable to
Colliers International, and Colliers International shall pay Warren
Wixen his share of such commission pursuant to a separate agreement
between Colliers International and Warren Wixen. The commission
payable to Assignor’s Broker shall be due on or before
March 31, 2007. Assignee shall indemnify, defend and hold
Assignor harmless from and against all claims for any other
brokerage commissions, finder’s fees or other compensation
made by any agent, broker, salesman or finder as a consequence of
Assignee’s actions or dealings with such other agent, broker,
salesman, or finder. Assignor shall indemnify, defend and hold
Assignee harmless from and against any and all costs, liabilities,
losses and expenses resulting from any claim, suit, action or
proceeding brought by Assignor’s Broker or any other agent,
broker, salesman or finder used in connection with this Assignment
and Assumption Agreement.
10. Refusal Notice : Assignee
acknowledges that Assignor has informed Assignee that Assignor
previously received from Landlord a First Refusal Notice under
Section 1.3(b) of the Lease and that Assignor did not accept
the offer contained therein.
11. Miscellaneous : Assignor
and Assignee shall execute and deliver such additional documents as
may reasonably be required to carry out the purposes of this
Assignment. This Assignment shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs,
successors and assigns. If either party brings an action or legal
proceeding with respect to this Assignment, the prevailing party
shall be entitled to recover its reasonable attorneys’ fees
and costs. All captions contained in this Assignment are for
convenience of reference only and shall not affect the construction
of this Assignment. This Assignment may be executed in one or more
counterparts, each of which shall be an original, but all of which,
taken together, shall constitute one and the same Assignment.
Facsimile signatures shall be as binding as signatures on original
counterparts. This Assignment shall be governed by the laws of the
State of California. If any one or more of the provisions of this
Assignment shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or
impaired thereby.
[Remaind
