Exhibit 10.23
ASSIGNMENT, ASSUMPTION AND
CONSENT
1. Assignment of
Lease
FOR A VALUABLE CONSIDERATION, the
receipt and adequacy of which are hereby acknowledged, the
undersigned COPPER MOUNTAIN NETWORKS, INC., a California
corporation (“Assignor”) hereby assigns and transfers
to NEUROTHERMIA, INC., a California corporation
(“Assignee”), all of Assignor’s right, title and
interest in and under that certain lease (the “Lease”)
with a Lease Reference Date of August 12, 1997 by and between
Assignor and R. G. HARRIS CO. and ELIZABETH G. HARRIS, HENRY K.
WORKMAN and DON C. SHERWOOD, TRUSTEES OF THE HARRIS FAMILY
REVOCABLE TRUST (“Landlord”), covering those certain
premises (the “Premises”) located at 3931 Sorrento
Valley Blvd., San Diego, California, as more particularly described
in the Lease and that certain Sublease with VidiMedix Corporation
dated December 1, 1997.
This assignment is made in
connection with an agreement by and between Assignor and Assignee
and in connection therewith, the undersigned:
(a) Agrees that the effectiveness of
this assignment and the Assumption of Lease provided for herein are
subject to the consent of Landlord; which consent is predicated
upon satisfaction of the conditions set forth in Section 3
hereof.
(b) Assignor shall be released from
Assignor’s liability for any of the obligations of the tenant
under the Lease arising or occurring after the Effective
Date.
(c) Assignor warrants that as of the
Effective Date specified below there will be no uncured default on
the part of Assignor pursuant to the Lease and agrees to indemnify
and defend Assignee against any claims arising out of such a
claimed default.
(d) Assignor shall deliver
possession of the Premises to Assignee on or before August 2,
1999 (the “Date of Delivery”) but Assignor shall
continue to pay all rent and the other sums due Landlord under the
Lease until the Effective Date, as defined hereinbelow, except that
Assignee shall pay utilities, janitorial and shall maintain
insurance for the Premises from the Date of Delivery. In the event
that the Date of Delivery occurs after August 2, 1999,
Assignor shall reimburse Assignee for all rent and the other sums
due Landlord subsequent to October 1, 1999, equal to the
number of days that the Date of Delivery is delayed.
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(e) Assignor agrees that if Assignee
spends at least $30,000.00 on tenant improvement construction,
(including construction necessary to bring the existing bathrooms
in that portion of the Premises not currently subleased into ADA
compliance) then Assignor shall contribute $20,000.00 towards
Assignee’s tenant improvement costs. If Assignee spends at
least $40,000.00 on tenant improvement construction, (including
construction necessary to bring the existing bathrooms in that
portion of the Premises not currently subleased into ADA
compliance) then Assignor shall contribute $30,000.00 toward
Assignee’s tenant improvement costs (“Assignor’s
Contribution”). Assignor shall deliver fifty percent
(50%) of Assignor’s Contribution upon submission to
Assignor by Assignee of an accepted bid for the tenant improvement
construction. Assignor shall deliver the remaining portion of
Assignor’s Contribution upon completion of the work and
submission to Assignor by Assignee of copies of paid invoices
showing the total amount expended for the tenant improvement
construction. In no event shall Assignor’s Contribution
exceed $30,000.00. Assignee shall be responsible for all other
tenant improvement costs and Landlord shall have no responsibility
therefor except as otherwise specifically provided in the Lease.
Assignor hereby releases to Assignee any and all of
Assignor’s claims to any prepayment or deposit held by any
person or entity relating to the Premises or any leasehold
improvements (including, without limitation, any utility deposits,
performance and/or completion bonds, and the like). All such sums
shall be held by such person or entity for the benefit of Assignee,
subject to the provisions of the applicable agreement requiring
such prepayment or deposit. Additionally, Assignor shall convey to
Assignee prior to the Date of Delivery the full amount of the
Security Deposit held by Assignor pursuant to the Sublease, in the
amount of $21,845.00, which shall be held by Assignee in accordance
with the terms and conditions of Section 5 of the
Sublease.
(f) Assignor represents that to the
best of its knowledge, the Premises and all building systems are in
good working order and in good cosmetic condition. As of the date
hereof and the Date of Delivery, Assignor represents and warrants
that to the best of its knowledge: (a) Assignor is lawfully
possessed of the lessee’s interest in and to the Lease and
all of the improvements and alterations made by or for Assignor to
the Premises, including, but not limited to, those certain
furnishings, trade fixtures and equipment that will remain in the
Premises after the Date of Delivery pursuant to the terms of the
Lease, if any (the “Personal Property”), and the
sublessor’s interest in and to that certain sublease with
Vidimedix Corp. (the “Sublease”), which is in full
force and effect and, to the best of Assignor’s knowledge,
pursuant to which, the subtenant thereunder has no claim to any
offset, defense or abatement of any amounts payable pursuant to
such Sublease; (b) Assignor has the right and authority to
assign its interest in the Lease, the
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Personal Property and the Sublease to Assignee
(subject to the terms of the Lease and the Sublease); (c) the
copy of the Lease attached hereto as Exhibit “B” is a
true, full and correct copy of the Lease and the same has not been
modified except as set forth herein; (d) the copy of the
Sublease attached hereto as Exhibit “C” is a true, full
and correct copy of the Sublease and the same has not been
modified; (e) the Lease and the Sublease are in full force and
effect; (f) Assignor is not in default under the Lease and, to
the best of Assignor’s knowledge, Landlord is not in default
thereunder, and Assignor is not aware of any event or existing
condition which, with the giving of notice and/or the passage of
time, would constitute such a default; (g) Assignor is not in
default under the Sublease and, to the best of Assignor’s
knowledge, Vidimedix Corp. (“Sublessee”) is not in
default thereunder, and Assignor is not aware of any event or
existing condition which, with the giving of notice and/or the
passage of time, would constitute such a default;
(h) Assignor’s interest in the Lease, the leasehold
improvements (including without limitation the Personal Property),
and the Sublease shall be delivered to Assignee free and clear of
all liens, encumbrances and creditor’s rights held by any
party claiming by, through or under Assignor, and (i) the
Premises, and all portions thereof that Assignor is obligated to
repair and maintain under the Lease, and the Personal Property, are
in good operating condition and repair and, to the best of
Assignor’s knowledge, free of any Hazardous Materials. Within
two (2) weeks prior to the Date of Delivery, Assignor shall
obtain from Sublessee and provide to Assignee an executed Estoppel
Certificate from Sublessee in the form of Exhibit “D”
attached hereto. Within forty-five (45) days following the
Date of Delivery, Assignor shall, at Assignor’s sole cost and
expense, remove all of its signage from the building in which the
Premises are located and from any monuments of the surrounding
property and restore any and all damage arising from such removal.
If Assignor fails to timely remove its signage and repair such
damages, Assignee shall have the right, but without any obligation,
to remove such signage and perform such restoration work, and
Assignor shall be obligated to reimburse Assignee for any actual
and reasonable amount expended by Assignee in performing such work
of removal and restoration within fifteen (15) days following
delivery of written evidence of such payment by
Assignee.
As between Assignor and Assignee,
Assignor hereby assigns the Lease and Sublease to Assignee, and
shall be responsible for the performance of all obligations of the
tenant under the Lease and the sublessor under the Sublease that
accrued prior to the Date of Delivery (with the exception of
Assignor’s obligations to be performed after the date of
Delivery as expressly set forth herein), for all liabilities
arising from Assignor’s particular use of the Premises to the
extent arising prior to the Date of Delivery and for all claims,
costs, expenses and liabilities
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relating to Assignor’s material breach of
any term, condition, covenant or agreement of the Lease or the
Sublease to be performed by Assignor prior to the Date of Delivery,
and Assignor agrees to indemnify and hold harmless Assignee from
any claims, losses, costs or expenses (including reasonable counsel
fees) suffered or incurred by Assignee arising out of or resulting
from any failure by Assignor to perform any such obligations. To
the extent Assignee is billed or otherwise becomes obligated to pay
any amount attributable to any period prior to the Date of Delivery
relating to the Lease, the Sublease, the Personal Property or the
Premises, Assignor shall reimburse Assignee for such amounts no
later than fifteen (15) days after delivery of written
evidence that such amounts are attributable to such period of
Assignor’s responsibility and have been paid by
Assignee.
(g) Acknowledges tha
