LEASE TERMINATION AGREEMENT
This
LEASE TERMINATION AGREEMENT (this "Agreement") is made this 30th day of January,
2009 by and between TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York corporation, for the
benefit of its Separate Real Estate Account ("Landlord"), and PEERLESS
SYSTEMS IMAGING PRODUCTS, INC., a Washington corporation
("Tenant").
RECITALS
A.
Landlord, as successor-in-interest to Intrarock 1 LLC and BIT Holdings
Forty-Eight, Inc., is the landlord and Tenant is the tenant under a certain
lease dated March 15, 2000, as amended by Amendment to Lease dated October 1,
2004 (collectively, the “Lease”), for premises (“Premises”) consisting of 10,756
rentable square feet and located on the fourth (4th) floor
of the building commonly known as the Creekside One Building at 20415 – 00xx Xxxxxx
Xxxxx, Xxxx, Xxxxxxxxxx.
B. Tenant
wishes to obtain early termination of the Lease.
C.
Landlord is willing to agree to early termination of the Lease on the terms and
conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, for good and valuable consideration, the parties agree as
follows:
1. Termination of
Lease. The Expiration Date of the Lease hereby is accelerated to
January 31, 2009. However, if Tenant fails to comply with any or all
of its covenants or obligations under the following Article 2 (time being of the
essence), then without any limitation on Landlord’s options or remedies,
Landlord at its option may void this Agreement upon providing written notice to
Tenant, in which case the Lease shall continue in full force and
effect.
2. Termination
Payments. As material consideration for Landlord's agreement to such
accelerated lease termination, Tenant covenants and agrees as
follows:
a. Tenant
shall pay Landlord the total sum of Two Hundred Ninety-Five Thousand Eight
Hundred Eighty-Five and 41/100 Dollars ($295,885.41) (the "Lease Termination
Payment"), by good and sufficient check drawn on good and sufficient funds, on
or before February 2, 2009. The Termination Payment consists of the
following amounts:
(i) A
termination fee in the amount of Two Hundred Eighty-Nine Thousand Nine Hundred
Eleven and 0/100 Dollars ($289,911.00);
(ii) Late
Rent for January 2009 in the amount of Nine Hundred Seventy-Four and 41/100
Dollars ($974.41); and
(iii)
Five Thousand and 0/100 Dollars ($5,000.00) to be held as the Security Deposit
under the Lease. (As of January 29, 2009, the entire Security Deposit
previously paid under the Lease had been applied towards Tenant’s prior Lease
defaults.) Within a reasonable time following the Expiration Date,
Landlord shall inspect the Premises and determine whether Tenant has left the
same in a good and clean condition, free of personal property and otherwise in
compliance with Tenant’s Lease obligations related to surrender of the
Premises. Landlord may apply this $5,000 Security Deposit towards any
failure by Tenant to comply with the previous sentence (but this $5,000 Security
Deposit shall not limit Tenant’s liability for the same). To the
extent that all or any portion of the $5,000 Security Deposit is not required to
remedy any such failure by Tenant, the same shall be refunded to Tenant on or
prior to March 31, 2009.
b. Tenant shall not be
obligated to pay Landlord any outstanding charges for Operating Expenses, to the
extent that Tenant’s estimated payments towards said Operating Expenses were
less than the actual obligation owed, and Landlord shall not be obligated to
reimburse Tenant for any overpayment towards Operating Expenses, to the extent
that Tenant’s estimated payments towards said Operating Expenses were more than
the actual obligation owed.
c. On or
before January 31, 2009 (5:00 p.m. (PST)), Tenant shall vacate the Premises,
return all keys or access devices, and leave the Premises in a good and clean
condition and otherwise in the condition required by the Lease as if it had
expired by its terms. However, Landlord acknowledges that some of
Tenant’s personal property may remain in the Premises after January 31, 2009 but
no later than February 15, 2009. Tenant may enter the Premise between
January 31, 2009 and February 15, 2009 so long as Tenant signs and delivers
Landlord’s form of license agreement prior to any such
entry. Landlord will forward its form of license agreement to Tenant
on February 2, 2009. Any personal property remaining in the Premises
following February 15, 2009 may be removed and disposed of by Landlord, and
Tenant shall pay Landlord all costs related to the same within ten (10) days of
invoice.
3. Entire
Agreement. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and there are no
representations, agreements, arrangements, understandings, oral or written
between and among the parties hereto with respect to the subject matter hereof
except as set forth herein. No amendment or supplement to this
Agreement shall be valid or effective unless in writing and executed by both
parties hereto.
4. Attorneys'
Fees. In the event of litigation between the parties hereto,
declaratory or otherwise, in connection with this Agreement, the prevailing
party shall recover its costs and attorneys' fees actually incurred, which shall
be determined and fixed by the court as part of the judgment.
5. Not an
Offer. Transmission of this unsigned Agreement to Tenant does not
constitute an offer. Only the full, mutual execution and delivery of
this Agreement will evidence Landlord’s acceptance of the terms of this
Agreement.
6. Successors and
Assigns. This Agreement shall be binding upon the heirs,
administrators, executors, successors and assigns of each of the parties
hereto.
7. Counterparts. This Agreement may be
executed in counterparts and transmitted by fax or pdf, each of which shall be
deemed an original, and all such counterparts shall together constitute one and
the same instrument.
8. Confidentiality. Tenant acknowledges that
the terms and conditions of this Agreement are to remain confidential for
Landlord’s benefit, and may not be disclosed by Tenant to anyone, by any manner
or means, directly or indirectly, without Landlord’s prior written
consent. The consent by Landlord to any disclosures shall not be
deemed to be a waiver on the part of Landlord of any prohibition against any
future disclosure.
9. Estoppel. Tenant
hereby confirms that, to the best of its current knowledge (without specific
investigation or study), upon Landlord’s complying with the terms and conditions
of this Agreement, Landlord shall not be in default under the Lease and there
shall be no further amounts owing by Landlord under the
Lease. Landlord hereby confirms that, to the best of its current
knowledge (without specific investigation or study), upon Tenant’s complying
with the terms and conditions of this Agreement, Tenant shall not be in default
under the Lease and there shall be no further amounts owing by Tenant under the
Lease.
LANDLORD:
TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,
a
New
York
corporation, for the benefit of its Separate Real Estate
Account
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By:
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Name:
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Xxxxx
Xxxx
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Title:
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Director,
Asset Management
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TENANT:
PEERLESS
SYSTEMS IMAGING PRODUCTS, INC.,
a
Washington corporation
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By:
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Name:
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Title:
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