Exhibit 10.1
LEASE TERMINATION AGREEMENT
This Lease Termination Agreement (this "Agreement") is entered into as of
the 10th day of May, 2006, by and among PATCO PROPERTIES, L.P., a California
limited partnership ("Landlord"), UWINK, INC., a Utah corporation ("Tenant") and
XXXXX XXXXXXXX ("Guarantor").
RECITALS:
A. Landlord and Tenant entered into that certain Standard
Industrial/Commercial Multi-Tenant Lease-Net ("Lease") dated April 21, 2005,
whereby Landlord leased to Tenant, and Tenant leased from Landlord, those
certain premises more particularly described in the Lease (the "Premises").
B. The Lease is guaranteed by Guarantor pursuant to that certain Guaranty
dated April 26, 2005 ("Guaranty").
C. Tenant and Landlord desire to enter into this Agreement in order to
terminate the Lease and Guaranty and to release one another from their
respective obligations thereunder, except as otherwise provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
conditions and the covenants hereinafter contained, and for other consideration
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. EFFECTIVENESS OF THIS LEASE TERMINATION AGREEMENT. Notwithstanding
anything to the contrary contained in this Agreement, and the rights and
obligations of the parties hereunder shall be subject to and conditioned upon
Landlord, at its sole discretion, and a new tenant for the premises having fully
executed and delivered a lease for the Premises with a term commencing as of
June 1, 2006. In the event that such lease is not fully executed and delivered
on or prior to May 15, 2006, this Agreement shall be deemed to be null and void
and the Lease and Guaranty shall remain in full force and effect according to
their terms.
2. TERMINATION OF THE LEASE AND GUARANTY. Landlord and Tenant hereby agree
that conditioned upon the performance by the parties of the provisions of this
Agreement, and subject to those provisions which survive the Termination Date
pursuant to this Agreement, the Lease and the Guaranty shall terminate and be of
no further force or effect as of May 31, 2006 (the "Termination Date").
3. SURRENDER OF PREMISES. Tenant hereby agrees to vacate the Premises and
surrender and deliver exclusive possession of the Premises to Landlord on or
before the Termination Date in accordance with the provisions of the Lease,
including without limitation, the following: Paragraph 7.4 of the Lease, Exhibit
H of the Lease and Tenant shall leave the Premises in a broom-clean condition
and free of all movable furniture and equipment and shall deliver the keys to
the Premises to Landlord or Landlord's designee.
4. CONSIDERATION TO LANDLORD. In consideration for Landlord's execution of
this Agreement, (i) Tenant shall pay to Landlord all monetary amounts owing
under the Lease up to and through the Termination Date, including without
limitation, all rental charges, (ii) Tenant agrees that Landlord shall be
entitled to retain an amount equal to $20,000.00 of the security deposit held by
Landlord under the Lease without liability to Tenant, and Tenant hereby
relinquishes such amount to Landlord to reimburse Landlord for Landlord's
unamortized costs in connection with entering into the Lease as of the
Termination Date and other expenses associated with the re-leasing of the
Premises; and (iii) in accordance with the provisions of the Lease, Landlord
shall be entitled to retain any other portion of the security deposit to the
extent Tenant does not surrender possession of the Premises in the condition
required by the Lease and this Agreement.
5. RELEASE OF LIABILITY. Except as otherwise provided in Paragraphs 3, 4, 6
and 7 hereof, and conditioned on the performance by the parties of the
provisions of this Agreement for valuable consideration, the receipt and
adequacy of which are hereby acknowledged:
(a) Landlord, on the one hand, and Tenant and Guarantor, as applicable
on the other hand, shall, as of the Termination Date, be fully and
unconditionally released and discharged from their respective obligations
arising after the Termination Date from or connected with the provisions of the
Lease and Guaranty, as applicable; and
(b) this Agreement shall fully and finally settle all demands,
charges, claims, accounts or causes of action of any nature, including, without
limitation, both known and unknown claims and causes of action that may arise
out of or in connection with the obligations of the parties under the Lease and
Guaranty, as applicable, after the Termination Date.
Each of the parties expressly waives the provisions of California
Civil Code Section 1542, which provides:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
Each party acknowledges that it has received the advice of legal
counsel with respect to the aforementioned waiver and understands the terms
thereof.
6. REPRESENTATIONS OF TENANT. Tenant and Guarantor represent and warrant to
Landlord that (a) Tenant has not heretofore assigned or sublet all or any
portion of its interest in the Lease; (b) no other person, firm or entity has
any right, title or interest in the Lease; (c) Tenant and Guarantor have the
full right, legal power and actual authority to enter into this Agreement and to
terminate the Lease and Guaranty, as applicable, without the consent of any
person, firm or entity; (d) Tenant has the full right, legal power and actual
authority to bind Tenant to the terms and conditions hereof; and (e) Tenant has
no knowledge of any fact or circumstance which would give rise to any claim,
demand, obligation, liability, action or cause of action arising out of or in
connection with Tenant's occupancy of the Premises. Tenant and Guarantor further
represent and warrant to Landlord that as of the date hereof there are no, and
as of the Termination Date, there shall not be any, mechanic's liens or other
liens encumbering all or any portion of the Premises, by virtue of any act or
omission on the part of Tenant, its predecessors, contractors, agents,
employees, successors or assigns. Notwithstanding the termination of the Lease
and Guaranty and the release of liability provided for herein, the
representations and warranties set forth in this Paragraph 6 shall survive the
Termination Date and Tenant and Guarantor shall be liable to Landlord for any
inaccuracy or any breach thereof. Notwithstanding anything to the contrary
contained herein, Landlord hereby pre-approves any sublease of the Premises by
Tenant to Quality Art Auctions, Inc. prior to the Termination Date and any
sublease by Tenant from Quality Art Auctions, Inc., Xxx Xxxxxxx and Xxxxxxx
Xxxxxx, jointly and severally, following the Termination Date.
7. CONTINUING LIABILITY. Notwithstanding the termination of the Lease and
Guaranty and the release of liability provided for herein, Tenant and Guarantor
shall remain liable, with respect to the period of Tenant's tenancy prior to the
Termination Date, for the performance of all of its obligations under the Lease
and Guaranty, as applicable, and fulfill all covenants and obligations of Tenant
under the Lease applicable to the period prior to and including the Termination
Date. Tenant shall remain liable for of its obligations as Tenant under the
Lease arising prior to the Termination Date, including, without limitation, all
year-end adjustments with respect to Common Area Operating Expenses for that
portion of the calendar year up to and including the Termination Date. Such
adjustments shall be paid at the time, in the manner and otherwise in accordance
with the terms of the Lease, unless otherwise specified herein. Notwithstanding
anything contained in this Agreement to the contrary, Tenant and Guarantor shall
indemnify, protect, defend (with counsel approved by Landlord) and hold Landlord
harmless from and against any and all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses (including, without limitation,
reasonable attorneys' fees) which may be imposed upon, incurred by, or asserted
against Landlord and arising, directly or indirectly, out of or in connection
with the use, nonuse, possession, occupancy, condition, operation, maintenance
or management of the Premises or any part thereof by Tenant or any of its
assignees, concessionaires, agents, contractors, employees or invitees prior to
and including the Termination Date, any act or omission of Tenant or any of its
assignees, concessionaires, agents, contractors, employees or invitees, or any
failure on the part of Tenant to perform or comply with any of the covenants,
agreements, terms or conditions contained in the Lease to be observed or
performed by Tenant.
8. ATTORNEYS' FEES. Should any dispute arise between the parties hereto or
their legal representatives, successors and assigns concerning any provision of
this Agreement or the rights and duties of any person in relation thereto, the
party prevailing in such dispute shall be entitled, in addition to such other
relief that may be granted, to recover reasonable attorneys' fees and legal
costs in connection with such dispute.
9. GOVERNING LAW. This Agreement shall be governed and construed under the
laws of the State of California.
10. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but such counterparts, when taken together,
shall constitute one agreement.
11. BINDING EFFECT. This Agreement shall inure to the benefit of, and shall
be binding upon, the parties hereto and their respective legal representatives,
successors and assigns.
12. TIME OF THE ESSENCE. Time is of the essence of this Agreement and the
provisions contained herein.
13. FURTHER ASSURANCES. Landlord and Tenant hereby agree to execute such
further documents or instruments as may be necessary or appropriate to carry out
the intention of this Agreement.
14. VOLUNTARY AGREEMENT. The parties have read this Agreement and mutual
release as contained herein, and on the advice of counsel they have freely and
voluntarily entered into this Agreement.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior or contemporaneous agreements, understandings, negotiations
and discussions, whether oral or written, of the parties in connection with the
subject matter hereof. No supplements, amendments, or modifications of this
Agreement shall be binding unless executed in writing by the parties hereto. No
waiver or termination of this Agreement shall be binding unless executed in
writing by the party who, pursuant to the terms of this Agreement, has the right
to waive any rights, conditions, or obligations hereunder. No waiver of any
provision of this Agreement shall be deemed or shall constitute a waiver of any
other provision herein (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
16. SUCCESSORS AND ASSIGNS. All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, their assigns, heirs, administrators, executors or successors.
17. GUARANTOR. This Agreement shall be of no force and effect unless and
until accepted by Guarantor, unless such requirement is waived by Landlord in
writing.
18. FORWARDING ADDRESS. All notices to Tenant and Guarantor shall hereafter
be deemed to be delivered to Tenant and Guarantor if sent to Tenant and
Guarantor at _______________________________________, _______________,
______________, _______ Attention: __________________.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURES BEGIN ON NEXT PAGE]
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as of
the day and year first above written.
"LANDLORD":
PATCO PROPERTIES, LTD.,
a California limited partnership
By: WDFA, LLC
a Nevada limited liability company
Its General Partner
By: Xxxxxxx Properties L.P.,
a Nevada Limited Partnership
Its Member
By: Xxxxxxx X. Xxxxxxx Associates,
a California Corporation
Its General Partner
By: _____________________________
Xxxxxxx X. Xxxxxxx, President
"TENANT":
UWINK, a Utah corporation,
By:___________________________________
Its:__________________________
By:___________________________________
Its:__________________________
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
"GUARANTOR":
___________________________________
Xxxxx Xxxxxxxx
