EXHIBIT 10.40
TERMINATION OF STANDARD OFFICE LEASE--GROSS
WHEREAS the XXXXXXXXXX FAMILY TRUST, as Lessor, and GLOBETROTTER SOFTWARE, INC.,
as Lessee, have entered into that certain Standard Office Lease--Gross dated
February 1, 2000, as amended, pertaining to the occupation of premises located
at 0000 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx (the "Lease"); and
WHEREAS, subject to the terms and conditions below, the parties now desire to
terminate the Lease as and when set forth herein;
NOW THEREFORE, the parties agree as follows:
The Lease is hereby terminated, effective as of close of business on March 15,
2002 (the "Termination Date"), which shall be the last day of the term of the
Lease.
Xxxxxx's right to possession of the Premises after the Termination Date shall
terminate and be of no further force or effect after the Termination Date.
Lessee's obligation to pay rent and other amounts accruing after the Termination
Date shall terminate and be of no further force or effect after the Termination
Date, provided, however, that any and all provisions of the Lease which by their
express terms or under applicable law survive termination of the Lease shall so
survive, and provided further that Lessor does not waive any rights or claims
for (i) any Base Rent or Operating Expense Increase (as such terms are defined
in the Lease) accrued through the Termination Date; (ii) damages that it might
have against Lessee with respect to Xxxxxx's obligations under the Lease,
including with respect to the use or condition of the Premises, that may arise
or have arisen prior to Xxxxxx's surrender of the Premises, and (iii) damages
that may arise from Xxxxxx's failure to surrender the Premises in accordance
with the terms of the Lease by the Termination Date. The alterations,
improvements, additions and Utility Installations to the Premises that Lessor is
requiring Lessee to remove and restore pursuant to the provisions of the Lease
are set forth on Schedule A attached hereto. On or before the Termination Date,
Lessee shall pay Lessor the amounts submitted on the invoices set forth on
Schedule B attached hereto.
The above termination of Lessee's obligation to pay rent and other amounts
accruing after the Termination Date is based upon the parties' mutual
understanding and belief that Macrovision Corporation's acquisition of
GLOBEtrotter Software, Inc. in August 2000 is, and continues to qualify as, a
"pooling of interests" for financial reporting purposes under GAAP and under the
SEC rules and regulations. If such acquisition is determined by the SEC or
Macrovision's auditors not to qualify as a "pooling of interests", then Lessor
may assert a claim for rent and other amounts, subject to mitigation, that would
have accrued under the Lease after the Termination Date had the lease continued
until January 31, 2005. The preceding sentence shall apply only if the SEC or
auditor determination occurs on or before January 31, 2005, or such earlier date
as Lessor, together with the grantors of Lessor, their children, and any trusts
created for one or more of their benefits, owns less than five hundred thousand
(500,000)shares of the capital stock of Macrovision Corporation. Xxxxxx agrees
that it will not take any action that is intended to cause the loss of the
"pooling of interests" treatment. The preceding sentence shall not be construed
to preclude the grantors of Lessor from seeking to enforce any rights they may
have to indemnification under section 7.8 of the Agreement and Plan of Merger
dated June 19, 2000, by and among Macrovision Corporation, GSI Acquisition
Corp., Globetrotter Software, Inc. and the grantors of Lessor (the "Merger
Agreement") and, without limiting the foregoing, Lessee hereby acknowledges and
confirms its obligations under section 7.8 of the Merger Agreement.,
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IN WITNESS THEREOF, this Termination Agreement has been executed and delivered
by the parties hereto.
GLOBETROTTER SOFTWARE, INC. XXXXXXXXXX FAMILY TRUST
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxxxxxx
--------------------------------- ---------------------------------
Name: Name: Xxxx Xxxxxxxxxx
------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx (Print)
Title: Trustee
------------------------------
Title: President/CEO (Print)
------------------------------
(Print) Date: March 19, 2002
-------------------------------
Date: March 19, 2002
-------------------------------
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
(Print)
Title: Trustee
------------------------------
(Print)
Date: March 19, 20002
-------------------------------
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SCHEDULE A
Pursuant to Section 7.3 of the Lease, Lessor hereby requests Lessee, at its sole
cost and expense, to do the following:
1. Remove all "day care center" alterations and improvements and
restore suite 150 to its prior or equivalent condition. The day care center
alterations and improvements and the demolition plan showing the prior condition
of this area are reflected on Sheets A-1, A-2 and A-3 of Revision 2 (dated
December 7, 1999) of Plans dated August 20, 1999, prepared by Xxxxxx X.
Xxxxxxxxx, Architectural Alliance, 000 Xxxxxxx Xxxxxx, Xxx. 0, Xxxx Xxxx, XX
00000, as job number: 98340.
2. Remove all computer room alterations and improvements and restore
suite 108 to its prior or equivalent condition.
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SCHEDULE B
INVOICES
1. Invoice # 2002-1 in the amount of $5,077.08, dated February 26, 2002;
2. Invoice # 2002-2 in the amount of $10,600.00, dated February 26, 2002;
3. Invoice # 2002-3 in the amount of $3,547.50, dated February 26, 2002; and
4. Invoice # 2002-4 in the amount of $9,667.50, dated March 11, 2002
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