LANDLORD’S RELEASE AND WAIVER
Exhibit
10.13
This Landlord’s Release and Waiver
(this “Agreement”),
dated as of July 13, 2009 is entered into among Premier Power Renewable Energy,
Inc., a Delaware corporation (“Borrower”), whose address is
0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xx Xxxxxx Xxxxx, XX 00000, Umpqua Bank, an
Oregon corporation, whose address is 0000 Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx,
XX 00000(“Lender”) and
Xxxxxx Family ILP, whose address is 000 Xx. Xxxx Xxxxx, Xxxxx, XX 00000 (“Landlord”) on the following
terms and conditions.
RECITALS
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A.
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Borrower
and Landlord are parties to that certain oral month-to-month lease
pursuant to which Borrower leases from Landlord the premises commonly
known as 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000
(the “Premises”).
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B.
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Borrower
and Lender have entered into, or are about to enter into, a loan agreement
and promissory note pursuant to which Lender has agreed to lend, and
Borrower has agreed to borrow, a line of credit and advised guidance line
not to exceed, in the aggregate, Twelve Million and 00/100 Dollars
($12,000,000.00) (collectively, the “Loan”). Lender
has acquired or will acquire a security interest in the Collateral, as
hereafter defined, to secure the Loan. Some or all of the
Collateral is located or may become located at the
Premises.
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Now,
therefore, for valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Borrower, Lender and Landlord agree as
follows:
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1.
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Lender
has acquired or will acquire a security interest in the following
(collectively, the “Collateral”): The
following described property of Borrower and/or its subsidiaries, whether
now owned or hereafter acquired, whether now existing or hereafter
arising, and wherever located: All personal and fixture property of every
kind and nature including without limitation all Goods (including
Inventory, Equipment and any accessions thereto), Instruments (including
promissory notes), Documents, Accounts, Chattel Paper (whether tangible or
electronic), Deposit Accounts, Letter-of-Credit Rights (whether or not the
letter of credit is evidenced by a writing), Investment Property
(including securities) and all Supporting Obligations and
proceeds, and all General Intangibles (including Payment
Intangibles).
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In
addition, the term “Collateral” includes all the
following, whether now owned or hereafter acquired, whether now existing or
hereafter arising, and wherever located:
(a) All
attachments, accessions, accessories, tools, parts, supplies, increases, and
additions to and all replacements of and substitutions for any property
described above.
(b) All
products and produce of any of the property described in this Collateral
definition.
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(c) All
accounts, general intangibles, instruments, rents, monies, payments, and all
other rights, arising out of a sale, lease, or other disposition of any of the
properly described in this Collateral definition.
(d) All
proceeds (including insurance proceeds) from the sale, destruction, loss, or
other disposition of any of the property described in this Collateral
definition.
(e) All
records and data relating to any of the property described in this Collateral
definition, whether in the form of a writing, photograph, microfilm, microfiche,
or electronic media, together with all of grantor’s right, title, and interest
in and to all computer software required to utilize, create, maintain, and
process any such records or data on electronic media.
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2.
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Landlord
hereby consents to Lender’s security interest in the Collateral and
disclaims any interests, liens and claims which Landlord now has or may
hereafter acquire in the Collateral. Landlord agrees that any
lien or claim it may now have or may hereafter have in the Collateral will
be at all times subject and subordinate to Lender’s existing or future
security interest in the Collateral and will be subject to the rights
granted to Lender by Landlord under this
Agreement.
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3.
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Landlord
and Borrower grant to Lender the right to enter upon the Premises for the
purpose of inspecting the Collateral, removing the Collateral from the
Premises or conducting sales of the Collateral on the
Premises. The rights granted to Lender in this Agreement will
continue until a reasonable time after Lender receives notice in writing
from Landlord that Borrower no longer is in lawful possession of the
Premises. During that time, Landlord shall not remove any
Collateral from the Premises. If Lender enters into the
Premises and removes the Collateral, Lender agrees with Landlord not to
remove any Collateral in such a way that the Premises are damaged without
repairing any such damage or reimbursing Landlord for the cost or
repaid.
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4.
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Landlord
agrees that if Borrower is in default under the Lease, it will provide
written notice of that default to Lender. Borrower and Landlord
each agree that they will not terminate the Lease without giving Lender at
least thirty (30) days’ notice prior to the date of the proposed
termination.
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5.
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This
Agreement is entered into in the State of California and shall be
construed under the laws of the State of
California.
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6.
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If
any party to this Agreement brings any action or proceeding to interpret
or enforce this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys fees and costs of
suit.
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7.
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This
Agreement represents the full and final understanding of the parties with
respect to the subject matter hereof and supersedes all prior oral or
written discussions, agreements, negotiations, and
understandings.
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8.
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Lender
shall not be deemed to have waived any rights under this agreement unless
such waiver is given in writing signed by Lender. No delay or
omission on the part of Lender in exercising any right shall operate as a
waiver of such right. No prior wavier or omission to exercise
any right shall constitute a wavier of Lender’s rights or Landlord’s
obligations as to any future
events.
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9.
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This
Agreement may be executed in any number of duplicate original counterparts
that, taken together, shall constitute one and the same
instrument.
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Whereupon,
this Agreement is entered into as of the date first above written.
BORROWER:
PREMIER
POWER RENEWABLE ENERGY, INC., a Delaware corporation
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By:
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Xxxx
Xxxxx
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President
and Chief Executive Officer
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LENDER:
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UMPQUA
BANK, an Oregon corporation
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By:
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Xxxxxx
Xxxxxx
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Vice
President
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LANDLORD:
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XXXXXX
FAMILY ILP.
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By:
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Xxxx
Xxxxxx
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Its:
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General
Partner
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