EXHIBIT 10.2
SUBLEASE AGREEMENT
THIS SUBLEASE (this “
Sublease ”) is made and entered into as of the 12th
day of February, 2009, by and between FAIR ISAAC CORPORATION
, a Delaware corporation (“ Sublandlord ”) and
VOLCANO CORPORATION , a Delaware corporation (“
Subtenant ”).
RECITALS
A. Kilroy
Realty, L.P., a Delaware limited partnership, (“ Prime
Landlord ”), as landlord, and Sublandlord, as tenant, are
parties to that certain Office Lease dated February 14, 2003
attached hereto as Exhibit A (the “ Prime Lease
”), covering certain leased premises containing approximately
129,752 rentable square feet (the “ Prime Lease
Premises ”) in the building commonly located at 3661
Valley Centre Drive, San Diego, California (the “
Building ”).
B. Sublandlord desires to
sublease a portion of the Prime Lease Premises to Subtenant, and
Subtenant desires to sublease the same from Sublandlord, on the
terms and conditions of this Sublease.
C. Capitalized terms not
otherwise defined in this Sublease shall have the meanings set
forth in the Prime Lease.
NOW, THEREFORE, Sublandlord and
Subtenant agree as follows:
1.
Sublease; Personal Property; Parking .
1.1
Sublease . Sublandlord hereby leases to Subtenant, and
Subtenant hereby leases from Sublandlord the Sublease Premises (as
defined in Section 2 below) for the term and for the rent and
on all other terms and conditions set forth herein.
1.2
Personal Property . Sublandlord shall deliver the Sublease
Premises to Subtenant together with those items of personal
property identified on Exhibit B attached hereto (the
“ Personal Property ”). During the Sublease Term
(as defined below) Subtenant shall have the right to use the
Personal Property in their “ AS-IS ” condition.
Subtenant agrees to maintain the Personal Property in good order
and condition and surrender the Personal Property to Sublandlord in
such condition (reasonable wear and tear excepted) upon the
expiration or sooner termination of this Sublease. Sublandlord has
made no representations or warranties to Subtenant with regard to
the condition of the Personal Property, the suitability thereof for
any particular purpose and Sublandlord shall have no obligation to
repair, replace or otherwise maintain the Personal Property during
the Sublease Term.
1.3
Parking . During the Sublease Term, Subtenant shall have the
non-exclusive right to use its pro rata share (i.e., 16.96%) of the
parking spaces made available to Sublandlord under Item 9 of
the Basic Lease Information contained in the Prime Lease, subject
to the terms and provisions of the Prime Lease, including, without
limitation, Article 28. Subtenant acknowledges that the parking
spaces are non-reserved.
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1.4
Common Areas . Subtenant shall have the non-exclusive right,
during Building Hours, to use those common areas located on the
first floor of the Building as depicted as “shared
space” on Exhibit C attached hereto, subject to any
reasonable rules and regulations as may be imposed by
Sublandlord.
2.
Sublease Premises . The “ Sublease Premises
” shall be deemed to consist of: (a) approximately
20,000 square feet of rentable space in the Prime Lease Premises
located on the 2nd floor of the Building (the “
2 nd
Floor Sublease
Premises ”) and
(b) approximately 2,000 square feet of rentable space in the
Prime Lease Premises located on the 1 st floor of the Building (the
“ 1 st
Floor Sublease
Premises ”) as shown on the floor
plans attached hereto as Exhibit D . Subtenant shall have no
right to exercise any rights under the Prime Lease to expand the
Prime Lease Premises. Sublandlord shall deliver the 1
st
Floor Sublease
Premises to Subtenant upon receipt of the last of the following:
(i) an executed Sublease from Subtenant; (ii) the first
months’ payment of Sublease Base Rent and (iii) a fully
executed Landlord Consent (as defined in Section 3 below).
Sublandlord shall deliver the 2nd Floor Sublease Premises to
Subtenant on April 1, 2009. If any portion of the Sublease
Premises is delivered after the latest of the dates set forth
hereinabove, then as of the Rent Commencement Date, Subtenant shall
only be obligated to pay Sublease Base Rent with respect to that
portion of the Sublease Premises which has been delivered to
Subtenant. Such amount shall be determined by multiplying the
square footage of the portion of the Sublease Premises that has
been delivered to Subtenant by the rentable square foot rate set
forth in Section 5 below. Notwithstanding anything to the
contrary herein, the parties acknowledge and agree that the
2 nd Floor Sublease Premises does
not include approximately 5,000 square feet of contiguous, rentable
square feet located on the 2 nd floor of the Prime Lease
Premises (herein referred to as the “ Excluded Sublease
Premises ”) as such area is mutually agreed upon by the
parties. Within sixty (60) days after the Sublease
Commencement Date, the parties shall meet to determine a mutually
agreeable area to serve as the Excluded Sublease Premises and
Subtenant shall immediately surrender any portion of the Excluded
Sublease Premises that is occupied by Subtenant. The Excluded
Sublease Premises will not be occupied on a permanent basis by
Subtenant; provided that it will also not be taped off or otherwise
separately demised from the remainder of the Sublease Premises and
Subtenant will be permitted to walk through or otherwise pass
through the Excluded Sublease Premises to the extent required to
access the remainder of the Sublease Premises or as may be required
for exiting requirements or other code compliance or legal
requirements. If the parties, acting in good faith, are unable to
agree upon the location of the Excluded Sublease Premises, the
Excluded Sublease Premises will be the area outlined on Exhibit
F attached hereto.
3.
Term . The term of this Sublease (the “ Sublease
Term ”) shall commence on the date upon which Sublandlord
delivers the 2 nd Floor Sublease Premises to
Subtenant (the “ Sublease Commencement Date ”)
and shall continue until July 30, 2010. Subtenant
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shall have no right to exercise any rights under
the Prime Lease to extend the term of the Prime Lease.
Notwithstanding the foregoing, this Sublease shall not be effective
unless Prime Landlord consents in writing by executing a consent in
substantially the same form attached hereto as Exhibit E
(the “ Landlord Consent ”), which consent shall
include Prime Landlord’s approval of Subtenant’s
intended use as set forth in Section 2.6 of the Landlord
Consent.
4.
Use . Subtenant shall use the Sublease Premises only for
general office purposes, and for no other purposes, except as
expressly permitted in the consent executed by Prime Landlord.
Subtenant’s use of the Sublease Premises shall at all times
conform to all applicable governmental laws, statutes, ordinances,
rules and regulations (collectively, “ Laws
”).
5.
Rent .
5.1.
Sublease Rent . Commencing on April 1, 2009 (the
“ Rent Commencement Date ”), and continuing on
the first day of each month thereafter during the Sublease Term,
Subtenant shall pay to Sublandlord base rent equal to $2.50 per
rentable square foot of the Sublease Premises per month (the
“ Sublease Base Rent ”); provided, however, that
Subtenant shall only be required to pay 50% of the Sublease Base
Rent during the period beginning on the Rent Commencement Date and
ending on December 31, 2009. Notwithstanding the foregoing,
Subtenant agrees to pay the Sublease Base Rent due for the month of
April, 2009, upon the execution of this Sublease by Subtenant. In
addition to paying Sublease Base Rent, commencing on the earlier of
(a) the Rent Commencement Date and (b) the date upon
which Subtenant commences business operations within any portion of
the Sublease Premises, and continuing on a monthly basis during the
remaining Sublease Term, Subtenant shall pay as additional rent,
the cost of electricity furnished to the Sublease Premises. If the
Sublease Premises are separately metered, such amount shall be paid
by Subtenant, prior to delinquency, directly to the applicable
utility provider. If the Sublease Premises are not separately
metered, Subtenant shall pay to Sublandlord, within twenty days
following written notice from Sublandlord, the share of electricity
charges reasonably attributable to the Sublease Premises, as
reasonably determined by Sublandlord, provided that the amount of
Subtenant’s share of such monthly electricity charges shall
not exceed $.20 per rentable square foot of the Sublease Premises.
All rent due under this Sublease (hereinafter referred to as
“ Sublease Rent ”) shall be paid in advance and
without notice, demand, deduction or offset (except as provided in
this Sublease) on the first day of each month during the Sublease
Term for which such Sublease Base Rent is payable. Sublease Base
Rent for any partial months shall be prorated on a per diem
basis.
5.2.
Security . Contemporaneously with the execution of this
Sublease, Subtenant shall deliver to Sublandlord a security deposit
equal to $55,000.00 (the “ Security Deposit ”).
If Subtenant defaults in the performance of its obligations,
covenants and conditions under this Sublease, including without
limitation Subtenant’s obligation to remove any subtenant
improvements if required by this Sublease, Sublandlord may use the
Security Deposit, or any portion of it, to cure the default or to
compensate Sublandlord for all damage sustained by Sublandlord
resulting from Subtenant’s default. If any of the Security
Deposit is so used, Subtenant shall
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deposit cash with Sublandlord in an amount
sufficient to restore the Security Deposit to the full amount
stated above within five (5) days after Sublandlord has
demanded such replenishment. If Subtenant is not in default at the
expiration or termination of this Sublease, Sublandlord shall
return the Security Deposit (or such portion thereof as remains) to
Subtenant within thirty (30) days after expiration or
termination of this Sublease subject to the conditions that
(a) Subtenant has surrendered possession of the Sublease
Premises to Sublandlord free of any subtenants or other persons
claiming possession or right to occupy the Sublease Premises and
(b) Subtenant has performed all of its obligations under this
Sublease. Sublandlord may commingle the Security Deposit with
Sublandlord’s general and other funds and shall not be
required to pay interest on the Security Deposit. The use of the
Security Deposit by Sublandlord in the manner stated above shall
not limit or restrict Sublandlord from exercising any other rights
or remedies provided to Sublandlord under this Sublease or under
law or equity if Subtenant defaults.
6.
Subtenant Improvements . Sublandlord shall deliver the
Sublease Premises to Subtenant in broom clean condition with all
plumbing, electrical, mechanical and lighting in good working
order. Subject to the foregoing obligations on the part of
Sublandlord, Subtenant acknowledges that it has inspected the
Sublease Premises and agrees to accept the Sublease Premises in
their “ AS IS ” condition. Subtenant
acknowledges that, except as provided in this Sublease, Sublandlord
has made no representations or warranties concerning the condition
of the Sublease Premises or their fitness for any particular use
and Subtenant shall rely solely on its own investigations and
inspections to determine the suitability of the Sublease Premises
for its intended use. Except as provided in this Sublease, any work
necessary to prepare the Sublease Premises for Subtenant’s
occupancy shall be performed at Subtenant’s sole cost and
expense. All such work shall be done in a good and workmanlike
manner, free of mechanics liens and in accordance with all other
provisions of the Prime Lease, including, without limitation, those
provisions of the Prime Lease requiring consent of Prime Landlord,
and with all Laws.
7.
Alterations .
7.1. Subtenant shall not
make or permit anyone to make any alterations, decorations,
additions or improvements, structural or otherwise (collectively,
“ Subtenant Alterations ”), in or to the
Sublease Premises without the prior written consent of Sublandlord,
which consent may be withheld in Sublandlord’s sole
discretion, provided that Sublandlord will not unreasonably
withhold its consent if Prime Landlord consents to any proposed
Subtenant Alterations by Subtenant. Any Subtenant Alterations shall
be made at Subtenant’s sole expense and subject to the Prime
Lease. As a condition precedent to consent of Sublandlord
hereunder, Sublandlord may require that any Subtenant Alterations
be removed at the end of the Sublease Term and that the Sublease
Premises be restored to the condition existing on the Sublease
Commencement Date, unless Prime Landlord agrees in writing that any
Subtenant Alterations may remain upon the Sublease Premises upon
the expiration of the Prime Lease. Subtenant agrees to obtain and
deliver to
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Sublandlord such security against
mechanic’s liens as Sublandlord shall reasonably request. If
any mechanic’s lien is filed against any part of the Sublease
Premises for work claimed to have been done for, or materials
claimed to have been furnished to, Subtenant, such mechanic’s
lien shall be discharged by Subt
