STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE MODIFIED NET

1. Basic Provisions (Basic Provision).

1.1 Parties: This Lease (Lease), dated for reference purposes only, January 25, 2005, is made by and between Fremont Ventures, LLC (Landlord) and Rita Medical Systems, Inc. (Tenant), (collectively the Parties, or individually a Party).

1.2(a) Premises: That certain portion of the Building comprising approximately 14,480 sq. ft. of space, including all improvements therein or to be provided by Landlord under the terms of this Lease, commonly known by the street address of 46421 Landing Parkway, located in the City of Fremont, County of Alameda, State of California, as outlined on Exhibit A attached hereto (Premises). The Building is that certain building containing the Premises and generally described as building F of the Fremont Technology Park. In addition to Tenants rights to use and occupy the Premises as hereinafter specified, Tenant shall have non-exclusive rights to the Common Areas (as defined in Paragraph 2.6 below) as hereinafter specified, but shall not have any rights to the roof, exterior walls or utility raceways of the Building or to any other buildings in the Industrial Center. The Premises, the Building, the Common Areas, the land upon which they are located, along with all other buildings and improvements thereon, are herein collectively referred to as the Industrial Center. (Also see Paragraph 2.)

1.2(b) Parking: 58 unreserved vehicle parking spaces (Unreserved Parking Spaces); and no reserved vehicle parking spaces (Reserved Parking Spaces). (Also, see Paragraph 2.6)

1.3 Term: Five years and one month (Original Term) commencing April 15, 2005 (Commencement Date) and ending May 14, 2010 (Expiration Date). (Also Paragraph 3.)

1.4 Early Possession: Upon Lease Execution (Early Possession Date). (Also Paragraphs 3.2 and 3.3.)

1.5 Base rent: $12,163 per month (Base Rent), payable on the first day of each month commencing May 15, 2005 (Also see Paragraph 1.6(a) and Paragraph 4.) Base Rent to be adjusted as follows:

1.6(a) Base Rent Paid Upon Execution: $12,163 as Base Rent for the period May 15, 2005 through June 14,2005.

1.6(b) Tenants Share of Common Area Operating Expenses: 9.31 % (Tenants Share) as determined by prorata square footage of the Premises as compared to the total square footage of the Building.

1.7 Security Deposit: $13,900 in cash and ($83,400 in additional security in either a letter of credit or cash which shall decrease by 20% on each one year anniversary of the Commencement Date of the Lease assuming Tenant is not in default and which shall be waived entirely upon Tenant having their second consecutive profitable quarter (Security Deposit). (Also see Paragraph 5)

1.8 Permitted Use: general office, manufacturing, sales and marketing, R&D and R&D of medical devices (Permitted Use) (Also see Paragraph 5.)

1.9 Insuring Party. Landlord is the Insuring Party. (Also see Paragraph 8)

1.10(a) Real Estate Brokers. The following real estate broker(s) (collectively, the Brokers) and brokerage relationships exist in this transaction and are consented to by the Parties (check applicable boxes):

1.10(b) Payment to Brokers. Upon the execution of this Lease by both Parties, Landlord shall pay to said Broker(s) according to separate written agreement between Landlord and said Broker(s).

1.11 [Intentionally Deleted].

2. Premises, Parking and Common Areas.

2.1 Letting. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises, for the term, at the rental, and upon all of the terms, covenants and conditions set forth in this Lease. The leaseable area is measured to the outside edge of the outside walls and drip lines to the centerline of any demising walls, including a pro rata share of the electrical room and other common spaces. Unless otherwise provided herein, any statement of square footage set forth in this Lease, or that may have been used in calculating rental and/or Common Area Operating Expenses, is an approximation which Landlord and Tenant agree is reasonable and the rental and Tenants Share (as defined in Paragraph 1.6(b) based thereon is not subject to revision whether or not the actual square footage is more or less.

2.2 Condition. Landlord shall deliver the Premises to Tenant clean and free of debris on the Commencement Date and warrants to Tenant that the Premises and the plumbing, electrical systems, fire sprinkler system, lighting, air conditioning and heating systems and loading doors, if any, in the Premises, other than those constructed by Tenant, shall be, on the Commencement Date, in good operating condition and in compliance with all laws, including, without limitation, The Americans With Disabilities Act of 1990 and its California counterpart (together with the regulations promulgated pursuant thereto). If a non-compliance with said warranty exists as of the Commencement Date, Landlord shall, except as otherwise provided in this Lease, promptly after receipt of written notice from Tenant setting forth with specificity the nature and extent of such non-compliance, rectify same at Landlords expense. If Tenant does not give Landlord written notice of a non-compliance with this warranty within sixty (60) days after the Commencement Date, correction of that non-compliance shall be the obligation of Tenant at Tenants sole cost and expense.

2.3 Warranties. Tenant acknowledges that neither landlord nor any of its agents made any representations or warranties respecting the project, the buildings, or the leased premises, upon which Tenant relied in entering into this Lease, which are not expressly set forth in this Lease. Tenant further acknowledges that neither Landlord nor any of its agents made any representations as to (i) whether the leased premises may be used for Tenants intended use under existing law or; (ii) the suitability of the leased premises for the conduct of Tenants business or; (iii) the exact square footage of the leased premises; that Tenant relied solely upon its own investigations-respecting said premises (including but not limited to the electrical and fire sprinkler systems, security, environmental aspects, seismic and earthquake requirements, and compliance with the American with Disabilities Act and applicable zoning, municipal, county, state and federal laws, ordinances and regulations and any covenants or restrictions of record (collectively, Applicable Laws) and that upon its execution of this Lease, accepts the leaseable area as specified herein. Tenant expressly waives any and all claims for damage by reason of any statement, representation, warranty, promise or other agreement of landlord or landlords agent(s), if any, not. contained in this Lease or in any addenda hereto.

2.4 Tenant as Prior Owner/Occupant. The warranties made by Landlord in this Paragraph 2.2 shall be of no force or effect if immediately prior to the date set forth in Paragraph 1.1 Tenant was the owner or occupant of the Premises. In such event, Tenant shall, at Tenants sole cost and expense, correct any non-compliance of the Premises with said warranties.

2.5 Vehicle Parking. Tenant shall be entitled, at no additional charge at any time, to use the number of Unreserved Parking Spaces and Reserved Parking Spaces specified in Paragraph 1.2(b) on those portions of the Common Areas designated from time to time by Landlord for parking. Tenant shall not use more parking spaces than said number. Said parking spaces shall be used for parking by vehicles no larger than full-size passenger automobiles or pick-up trucks, herein called Permitted Size Vehicles. Vehicles other than Permitted Size Vehicles shall be parked and loaded or unloaded as directed by Landlord in the Rules and Regulations (as defined in Paragraph 40) issued by Landlord. (Also see Paragraph 2.9.)

(a) Tenant shall not permit or allow any vehicles that belong to or are controlled by Tenant or Tenants employees, suppliers, shippers, customers, contractors or invitees to be loaded, unloaded, or parked in areas other than those designated by Landlord for such activities.

(b) If Tenant permits or allows any of the prohibited activities described in this Paragraph 2.6, then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Tenant, which cost shall be immediately payable upon demand by Landlord.

(c) Landlord shall at the Commencement Date of this Lease, provide the parking facilities required by Applicable Law.

2.6 Common Areas - Definition. The term Common Areas is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Industrial Center and Interior utility raceways within the Premises that are provided and designated by the Landlord from time to time for the general non-exclusive use of Landlord, Tenant and other tenants of the Industrial Center and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways and landscaped areas.

2.7 Common Areas - Tenants Rights. Landlord hereby grants to Tenant, for the benefit of Tenant and its employees, suppliers, shippers, contractors, customers and invitees, during the term of this Lease, the non exclusive right to use, in common with others entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by Landlord under the terms hereof or under the terms of

any rules and regulations or restrictions governing the use of the Industrial Center. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas. Any such storage shall be permitted only by the prior written consent of Landlord or Landlords designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Tenant, which cost shall be immediately payable upon demand by Landlord.

2.8 Common Areas - Rules and Regulations. Landlord or such other person(s) as Landlord may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable Rules and Regulations with respect thereto in accordance with Paragraph 40. Tenant agrees to abide by and conform to all such Rules and Regulations and to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform. Landlord shall not be responsible to Tenant for the non-compliance with said rules and regulations by other tenants of the Industrial Center.

2.9 Common Areas - Changes. Landlord shall have the right, in Landlords sole discretion, from time to time:

(a) To make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways;

(b) To close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains available and such closure does not interfere with Tenants business operations;

(c) To designate other land outside the boundaries of the Industrial Center to be a part of the Common Areas;

(d) To add additional buildings and improvements to the Common Areas;

(e) To use the Common Areas while engaged in making additional improvements, repairs or alterations to the Industrial Center, or any portion thereof; and

(f) To do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Industrial Center as Landlord may, in the exercise of sound business judgment, deem to be appropriate.

3. Term.

3.1 Term. The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3.

3.2 Early Possession. If an Early Possession Date is specified in Paragraph 1.4 and if Tenant totally or partially occupies the Premises after the Early Possession Date but prior to the Commencement Date, the obligation to pay Base Rent and Tenants Share of Common Area Operating Expenses shall be abated for the period of such early occupancy. All other terms of this Lease, however, (including but not limited to the obligations to carry the insurance required by Paragraph 8) shall be in effect during such period. Any such early possession shall not affect nor advance the Expiration Date of the Original Term.

3.3 Delay in Possession. If for any reason Landlord cannot deliver possession of the Premises to Tenant by the Early Possession Date, if one is specified in Paragraph 1.4, or if no Early Possession Date is specified, by the Commencement Date, Landlord shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease, or the obligations of Tenant hereunder, or extend the term hereof, but in such case, Tenant shall not, except as otherwise provided herein, be obligated to pay rent or perform any other obligation of Tenant under the terms of this Lease until Landlord delivers possession of the Premises to Tenant. If possession of the Premises is not delivered to Tenant within sixty (60) days after the Commencement Date, Tenant may, at its option, by notice in writing to Landlord within ten (10) days after the end of sixty (60) day period, cancel this Lease, in which event the parties shall be discharged from all obligations hereunder; provided further, however, that if such written notice of Tenant is not received by Landlord within said ten (10) day period, Tenants right to cancel this Lease hereunder shall terminate and be of no further force or effect.

4. Rent

4.1 Base Rent. Tenant shall pay Base Rent and other rent or charges, as the same may be adjusted from time to time, to Landlord in lawful money of the United States, without offset or deduction, on or before the 1^st day of each month. Base Rent and all other rent and charges for any period during the term hereof which is for less than one full month shall be prorated based upon the actual number of days of the month involved. Payment of Base Rent and other charges shall be made to Landlord at its address stated herein or to such other persons or at such other addresses as Landlord may from time to time designate in writing to Tenant.

4.2 Common Area Operating Expenses. Tenant shall pay to Landlord during the term hereof, in addition to the Base Rent, Tenants Share (as specified in Paragraph 1.6(b)) of all Common Area Operating Expenses, as hereinafter defined, during each calendar year of the term of this Lease, in accordance with the following provisions:

(a) Common Area Operating Expenses are defined, for purposes of this Lease, as all costs incurred by Landlord relating to the ownership and operation of the Industrial Center, including, but not limited to, the following:

(i) The operation, repair and maintenance, in neat, clean, good order and condition, of the following:

(aa) The Common Areas, including parking areas, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways, landscaped areas, striping, bumpers, irrigation systems, Common Area lighting facilities, fences and gates, elevators and roof.

(bb) Exterior signs and any tenant directories.

(cc) Fire detection and sprinkler systems.

(ii) The cost of water, gas, electricity and telephone to service the Common Areas.

(iii) Trash disposal, actual property management fees not to exceed 4% of the gross monthly rental and security services and the costs of any environmental inspections.

(iv) Reserves set aside for maintenance and repair of Common Areas.

(v) Real Property Taxes (as defined in Paragraph 10.2) to be paid by Landlord for the Building and the Common Areas under Paragraph 10 hereof.

(vi) The cost of the premiums for the insurance policies maintained by Landlord under Paragraph 8 hereof.

(vii) Any deductible portion of an insured loss concerning the building or the Common Areas.

(viii) Any other services to be provided by Landlord that are stated elsewhere in this Lease to be a Common Area Operating Expense.

(b) Notwithstanding anything to the contrary contained in subparagraph (a) above, Common Area Operating Expenses shall not include, without limitation:

(i) Costs paid for directly by Tenant or any other tenant of the Building.

(ii) The cost of additional or extraordinary services provided to other tenants of the Building.

(iii) Principal and interest payments on loans secured by deeds of trust recorded against the Premises.

(iv) Real estate sale or leasing brokerage commissions.

(v) Executive salaries of off-site personnel employed by Landlord except for the charge (or pro rata share) of the manager of the Premises.

(vi) Costs paid by proceeds of insurance or other third parties,

(vii) The cost of capital improvements, except as set forth above.

(viii) The cost of repairs or other work to the extent Landlord is reimbursed by insurance or condemnation proceeds.

(c) Any Common Area Operating Expenses and Real Property Taxes that are specifically attributable to the Building or to any other building in the industrial Center or to the operation, repair and maintenance thereof, shall be allocated entirely to the Building or to such other building. However, any Common Area Operating Expenses and Real Property Taxes that are not specifically attributable to the Building or to any other building or to the operation, repair and maintenance thereof, shall be equitably allocated by Landlord to all buildings in the Industrial Center.

(d) The inclusion of the improvements, facilities and services set forth in subparagraph 4.2(a) shall not be deemed to impose an obligation upon Landlord to either have said improvements or facilities or to provide those services unless the Industrial Center already has the same, Landlord already provides the services, or Landlord has agreed elsewhere in this Lease to provide the same or some of them.

(e) Tenants Share of Common Area Operating Expenses shall be payable by Tenant within thirty (30) days after a reasonably detailed statement of actual expenses is presented to Tenant by Landlord. At Landlords option, however, an amount may be estimated by Landlord from time to time of Tenants Share of annual Common Area Operating Expenses and the same shall be payable monthly or quarterly, as Landlord shall designate, during each 12-month period of the Lease term, on the same day as the Base Rent is due hereunder.

Landlord shall deliver to Tenant within sixty (60) days after the expiration of each calendar year a reasonably detailed statement showing Tenants Share of the Common Area Operating Expenses incurred during the preceding year (Landlords Statement). If Tenants payments under this Paragraph 4.2(e) during said preceding year exceed Tenants Share as indicated on the Landlords Statement, Landlord shall be credited the amount of such over-payment against Tenants Share of Common Area Operating Expenses next becoming due. If Tenants payments under this Paragraph 4.2(e) during said preceding year were less than Tenants Share as indicated on the Landlords Statement, Tenant shall pay to Landlord the amount of the deficiency within thirty (30) days after delivery by Landlord to Tenant of the Landlords Statement.

(f) Tenant may designate, by written notice to Landlord within ninety (90) days after receipt of the Landlords Statement, an independent certified public accountant to inspect Landlords books and records for such 12-month period. Landlord shall provide Tenants certified public accountant access to Landlords books and records during Landlords regular business hours and upon reasonable prior notice. Tenants accountant must be a member of a nationally or regionally recognized accounting firm and must not be retained on a contingency fee basis. If after Tenants accountants inspection, Tenant disputes the Landlords Statement, a final and conclusive certification of the proper amount shall be made, at Tenants expense, by an independent certified public accountant designated by Landlord. If the certification shows that the actual Tenants Share of Common Area Operating Expenses was less than reported in the Landlords Statement, Tenant shall be credited against the next installment of Base Rent in the amount of any overpayment by Tenant. Likewise, if the certification shows that the actual Tenants Share of Common Area Operating Expenses was greater than reported in the Landlords Statement, Tenant shall pay Landlord the amount of any underpayment within thirty (30) days. If the certification shows that Landlord overstated Tenants Share of Common Area Operating Expenses by five percent (5%) or more in the Landlords Statement, Landlord shall pay the costs related to such certification plus the out-of pocket fees incurred by Tenant in its original audit. Tenant shall keep any information gained from the inspection of Landlords books and records confidential and shall not disclose it to any other party, except as may be required by law.

5. Security Deposit. Tenant shall deposit with Landlord upon Tenants execution hereof the Security Deposit set forth in Paragraph 1.7 as security for Tenants faithful performance of Tenants obligations under this Lease. Tenant is to deposit with landlord an additional security deposit of $83,400 in either cash or an irrevocable letter of credit from an institution acceptable to landlord naming Landlord as beneficiary and guaranteeing the full and faithful performance of all of the terms and conditions of this Lease including any re-tenanting costs if need be. Provided Tenant is not in default of the terms and conditions of the Lease, Tenant may reduce the amount of the additional security by 20% on each one year anniversary from the commencement date assuming that Tenant is not in default of the Lease. Upon Tenant becoming profitable for two consecutive quarters said additional security deposit shall be waived. If Tenant fails to pay Base Rent or other rent or charges due hereunder, or otherwise Defaults under this Lease (as defined in Paragraph 13.1), Landlord may use, apply or retain all or any portion of said Security Deposit, Tenant shall within ten (10) days after written request therefore deposit monies with Landlord sufficient to restore said Security Deposit to the full amount required by this Lease. Landlord shall not be required to keep all or any part of the Security Deposit separate from its general accounts. Landlord shall, at the expiration or earlier termination of the term hereof and after Tenant has vacated the Premises, return to Tenant (or, at Landlords option, to the last assignee, if any, of Tenants interest herein), that portion of the Security Deposit not used or applied by Landlord. Unless otherwise expressly agreed in writing by Landlord, no part of the Security Deposit shall be considered to be held in trust, to bear interest or other increment for its use, or to be prepayment for any monies to be paid by Tenant under this Lease.

6. Use.

6.1 Permitted Use.

(a) Tenant shall use and occupy the Premises only for the Permitted Use set forth in Paragraph 1.8, or any other legal use which is reasonably comparable thereto, and for no other purpose. Tenant shall not use or permit the use of the Premises in a manner that is unlawful, creates waste or a nuisance, or that disturbs owners and/or occupants of, or causes damage to the Premises or neighboring premises or properties.

(b) Landlord hereby agrees to not unreasonably withhold or delay its consent to any written request by Tenant, Tenants assignees or subtenants, and by prospective assignees and subtenants of Tenant, its assignees and subtenants, for a modification of said Permitted Use, so long as the same will not impair the structural integrity of the improvements on the Premises or in the Building or the mechanical or electrical systems therein, does not conflict with uses by other Tenants, is not significantly more burdensome to the Premises or the Building and the improvements thereon, and is otherwise permissible pursuant to this Paragraph 6. If Landlord elects to withhold such consent, Landlord shall within five (5) business days after such request give a written notification of same, which notice shall include an explanation of Landlords reasonable objections to the change in use.

6.2 Hazardous Substances.

(a) Reportable Uses Require Consent. The term Hazardous Substance as used in this Lease shall mean any product, substance, chemical, material or waste whose presence, nature, quantity and/or intensity of existence, use, manufacture, disposal, transportation, spill, release or effect, either by itself or in combination with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the environment, or the Premises; (ii) regulated or monitored by any governmental authority; or (iii) a basis for potential liability of Landlord to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substance shall include, but not be limited to, hydrocarbons, petroleum, gasoline, crude oil or any products or by-products thereof. Tenant shall not engage in any activity in or

Home        Intelligence        Services        Subscriptions        News        About Us

Contact Us       Terms of Use       Resend Documents       Shopping Cart

Copyright © 2008 The Consus Group LLC