Exhibit 10.31
LEASE TERMINATION AGREEMENT
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THIS LEASE TERMINATION AGREEMENT ("Termination Agreement") is made as
of the 7th day of April, 2003 by and between CA-MARINA BUSINESS CENTER LIMITED
PARTNERSHIP, a Delaware limited partnership ("Landlord") and L90, INC., a
Delaware corporation ("Tenant").
RECITALS:
A. Landlord (as successor in interest pursuant to conversion from
EOP-MARINA BUSINESS CENTER, L.L.C., a Delaware limited liability
company, as successor in interest pursuant to merger with Xxxxxxx
Properties, L.P., a California limited partnership) and Tenant are
parties to that certain lease dated as of October 25, 2000 (the "Lease")
relating to approximately 23,729 rentable square feet, known as Suite
No. 150 (the "Premises") located on the first (1st) floor and mezzanine
level of the building commonly known as Marina Business Center-Building
2, located at 0000/0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx (the
"Building"), all as more particularly described in the Lease.
B. The Term is scheduled to expire on December 31, 2005 (the "Stated
Expiration Date"), and Tenant desires to terminate the Lease prior to
the Stated Expiration Date. Landlord has agreed to such termination on
the terms and conditions contained in this Termination Agreement.
NOW, THEREFORE, in consideration of the above recitals, which by this
reference are incorporated herein, the mutual covenants and conditions contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant agree as follows:
1. Retroactively effective as of March 31, 2003 (the "Early Expiration
Date") and subject to the agreements, representations, warranties and
indemnities contained in this Termination Agreement, including, without
limitation, payment of the Termination Fee described in Section 7 below,
the Lease and all obligations and liabilities of Landlord and Tenant are
terminated and the Term of the Lease shall expire with the same force
and effect as if the Term was, by the provisions thereof, fixed to
retroactively expire on the Early Expiration Date.
2. Retroactively effective as of the Early Expiration Date and subject to
the agreements, representations, warranties and indemnities contained in
this Termination Agreement, Tenant remises, releases, quitclaims and
surrenders to Landlord, its successors and assigns, the Lease and all of
the estate and rights of Tenant in and to the Lease and the Premises,
and subject to the provisions of Section 8 below, Tenant forever
releases and discharges Landlord from any and all claims, demands or
causes of action whatsoever against Landlord or its successors and
assigns arising out of or in connection with the Premises or the Lease
and forever releases and discharges Landlord from any obligations to be
observed or performed by Landlord under the Lease after the Early
Expiration Date.
3. Subject to the agreements, representations, warranties and indemnities
contained in this Termination Agreement, Landlord agrees to accept the
surrender of the Lease and the Premises from and after the Early
Expiration Date and, effective as of the Early Expiration Date, Landlord
forever releases and discharges Tenant from any and all claims, demands
or causes of action whatsoever against Tenant or its successors and
assigns arising out of or in connection with the Premises or the Lease
with respect to the period of time from and after the Early Expiration
Date and forever releases and discharges Tenant from any and all
liabilities and obligations to be observed and performed by Tenant under
the Lease after the Early Expiration Date, provided that Tenant has
satisfied, performed and fulfilled all of the agreements set forth in
this Termination Agreement, and each of the representations and
warranties set forth in Section 6 below are true and correct.
4. With respect to the releases set forth in Sections 2 and 3 above, the
parties acknowledge that they have been advised by legal counsel and are
familiar with the provisions of California Civil Code Section 1542 which
provides as follows:
"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
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EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
THE UNDERSIGNED, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY
WAIVE ALL RIGHTS THEY MAY HAVE THEREUNDER, AS WELL AS ANY OTHER STATUTES
OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT PERTAINING TO THE RELEASES
SET FORTH HEREIN.
5. On or prior to the Early Expiration Date, Tenant shall:
(a) Fulfill all covenants and obligations of Tenant under the Lease
applicable to the period prior to and including the Early
Expiration Date.
(b) Completely vacate and surrender the Premises to Landlord in
accordance with the terms of the Lease. Without limitation,
Tenant shall leave the Premises in a broom-clean condition
(ordinary wear and tear excepted) and free of all movable
furniture and equipment, except as set forth in Section 10 below)
and shall deliver the keys to the Premises to Landlord or
Landlord's designee. Notwithstanding any provision to the
contrary, Tenant shall not be required to remove any Alterations
(as defined in the Lease).
6. Tenant represents and warrants that (a) Tenant is the rightful owner of
all of the Tenant's interest in the Lease; (b) Tenant has not made any
disposition, assignment, sublease, or conveyance of the Lease or
Tenant's interest therein; (c) 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; (d) no other person or entity
has an interest in the Lease, collateral or otherwise; and (e) there are
no outstanding contracts for the supply of labor or material and no work
has been done or is being done in, to or about the Premises which has
not been fully paid for and for which appropriate waivers of mechanic's
liens have not been obtained. The foregoing representation and warranty
shall be deemed to be remade by Tenant in full as of the Early
Expiration Date.
7. On or before the date of this Termination Agreement, Tenant shall pay to
Landlord, the sum of $1,210,278.59 (the "Termination Fee"). The
Termination Fee shall be paid to Landlord as follows: (a) on or before
the date of this Termination Agreement, Tenant shall pay to Landlord, by
cashier's or certified check or by wire transfer of immediately
available funds to an account designated by Landlord, the sum of
$850,000.00, plus (b) on or before the date of this Termination
Agreement and subject to the following paragraph, the Letter of Credit
as set forth in Section 9 below shall be applied by Landlord to the
Termination Fee. Notwithstanding anything in this Termination Agreement
to the contrary, Tenant shall remain liable for all of its obligations
as Tenant under the Lease arising prior to the Expiration Date,
including, without limitation, all past due Rent (Base Rent and
Additional Rent), and all year-end adjustments with respect to Tenant's
Proportionate Share of Operating Expenses for that portion of the
calendar year up to and including the Early Expiration 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.
Tenant shall diligently cooperate with Landlord to facilitate Landlord's
draw on the full amount of the Letter of Credit. Such cooperation may
include, but not be limited to, the obligation to execute such documents
as may be required to permit Landlord to draw on the Letter of Credit as
provided herein. Notwithstanding anything to the contrary contained in
the Lease or this Termination Agreement with respect to Landlord's right
to apply the Security Deposit and/or draw on the Letter of Credit,
Tenant agrees that in the event the bank which has issued the Letter of
Credit refuses to accept Landlord's draw request or such draw request is
not processed or approved for any reason, then in lieu of the draw on
such Letter of Credit, Tenant shall pay to Landlord within one (1)
business day following the date of such refusal or failure to process or
approve Landlord's draw request, by cashier's or certified check or by
wire transfer of immediately available funds to an account designated by
Landlord, the sum of $360,278.59. In the event the Tenant fails to pay
Landlord the Termination Fee pursuant to this Termination Agreement when
due, then at Landlord's sole option, this Termination Agreement shall be
null and void and of no force and effect and the Term of the Lease shall
be as stated in the Lease, without giving effect to this Termination
Agreement.
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312.466.3300
FAX 000.000.0000
xxxx://xxx.xxxxxxxxxxxx.xxx
WIRE TRANSFER INSTRUCTIONS.
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Bank Name: PNC BANK
Bank City & State: PITTSBURGH, PA
Bank ABA #: 000-000-000
Account Name: EOP Operating Limited Partnership Wire Account
Account #: 1011575402
Reference: Marina Business Center
For Credit: L90, INC., a Delaware corporation
Contact: Xxxxxxxx X. Xxx 312.466.3819
8. Section 10.3 of the Lease shall survive the termination of the Lease
pursuant to this Termination Agreement.
9. SECURITY DEPOSIT. Under the terms of the Lease, Tenant has deposited
with Landlord the sum of $750,000.00 in the form of that certain letter
of credit dated October 27, 2000, as amended on November 22, 2000, and
drawn on City National Bank (the "Letter of Credit") as security for the
performance of Tenant's obligations under the Lease (the "Security
Deposit"). As of January, 2003, the Letter of Credit was reduced by an
amount equal to $154,477.15 (for satisfaction of Tenant's Rent
obligations for the Premises for the period beginning November 1, 2002
and ending December 31, 2002), as of March 31, 2003, the Letter of
Credit was further reduced by an amount equal to $235,244.27 (for
satisfaction of Tenant's Rent obligations for the Premises for the
period beginning January 1, 2003 and ending March 31, 2003). Therefore,
the remaining balance of the Letter of Credit in the amount of
$360,278.58 shall be made a part of the Termination Fee as set forth in
Section 7 above.
10. EXISTING FURNITURE, FIXTURES AND EQUIPMENT. Retroactively effective as
of the Early Expiration Date, Tenant shall convey to Landlord the
furniture, fixtures and equipment located in the Premises, as listed on
Exhibit A (such items are referred to herein as the "Existing FF & E").
Tenant shall convey the Existing FF & E to Landlord pursuant to that
certain Xxxx of Sale attached hereto as Exhibit B. In consideration of
Tenant's execution of the Xxxx of Sale, Landlord shall pay to Tenant the
sum of $10.00.
11. Equity Office Properties Management Corp. ("EOPMC") is an affiliate of
Landlord and represents only the Landlord in this transaction. Any
assistance rendered by any agent or employee of EOPMC in connection with
this Lease or any subsequent amendment or modification hereto has been
or will be made as an accommodation to Tenant solely in furtherance of
consummating the transaction on behalf of Landlord, and not as agent for
Tenant.
12. Each signatory of this Termination Agreement represents hereby that he
or she has the authority to execute and deliver the same on behalf of
the party hereto for which such signatory is acting.
13. This Termination Agreement shall be binding upon and inure to the
benefit of Landlord and Tenant and their respective successors, assigns
and related entities.
{SIGNATURE BLOCKS FOR LANDLORD AND TENANT ARE ON THE FOLLOWING PAGE}
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Termination
Agreement on the day and year first above written.
LANDLORD:
CA-MARINA BUSINESS CENTER LIMITED PARTNERSHIP, a
Delaware limited partnership
By: EOM GP, L.L.C., a Delaware limited liability
company, its general partner
By: Equity Office Management, L.L.C., a
Delaware limited liability company, its
non-member manager
By:
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Name:
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Title:
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TENANT:
L90, INC., a Delaware corporation
By:
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Name:
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Title:
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Tenant's FEIN
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EXHIBIT A
EXISTING FF & E
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10 Stations 6' high, xxxx cloth workstations w/2 overhead bookshelves,
2 drawer file cabinet
56 Turnstone portable 2 drawer xxxx metal file cabinets w/black upholstered
top
1 6' pine desk
60 Steelcase "L" shaped desks w/pole legs (particle board top)
47 Assorted cloth swivel secretarial chairs
5 Xxxxxxxx xxxx 4 drawer lateral file cabinets
6 Assorted 5 drawer lateral file cabinets
16 Assorted 2 drawer lateral file cabinets
1 8 drawer lateral file cabinets
11 Turnstone swivel multicolor upholstery secretarial chairs
Assorted misc. items
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EXHIBIT B
XXXX OF SALE
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Seller, L90, INC., a Delaware corporation, having its principal place of
business at 0000/0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, in consideration
of $10.00 and other valuable consideration, receipt and sufficiency whereof is
hereby acknowledged, does hereby sell, assign, transfer and set over to Buyer,
CA-MARINA BUSINESS CENTER LIMITED PARTNERSHIP, a Delaware limited partnership,
the personal property described on Schedule 1 attached hereto (collectively, the
"Personal Property") located in, or otherwise servicing, Suite No. 150 on the
first (1st) floor of the building commonly known as Marina Business
Center-Building 2, located at 0000/0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx.
Seller hereby represents and warrants to Buyer that Seller is the
absolute owner of said Personal Property, that said Personal Property is free
and clear of all liens, charges and encumbrances, and that Seller has full
right, power and authority to sell said Personal Property and to make this xxxx
of sale. All warranties of quality, condition, fitness of use, and
merchantability are hereby excluded and Buyer accepts the Personal Property in
its "as is" / "where is" condition.
If this xxxx of sale is signed by more than one person, all persons so
signing shall be jointly and severally bound hereby.
IN WITNESS WHEREOF, Seller has caused this xxxx of sale to be signed and
sealed in its name by its officers thereunto duly authorized this ___ day of
April, 2003.
SELLER:
L90, INC., a Delaware corporation
By:
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Name:
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Title:
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State of
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County of
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I, , a
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notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY
that personally
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known to me to be the same person whose name is subscribed
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to the foregoing instrument, appeared before me this day in person and
acknowledged that he signed, sealed and delivered the said
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instrument as free and voluntary act, for the uses and purposes therein
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set forth.
GIVEN under my hand and official seal, this day of , 20 .
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Notary Public
Commission expires , 20 .
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SCHEDULE 1
LIST OF PERSONAL PROPERTY
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12 Stations 6' high, xxxx cloth workstations w/2 overhead bookshelves,
2 drawer file cabinet
57 Turnstone portable 2 drawer xxxx metal file cabinets w/black upholstered
top
2 6' pine desk
61 Steelcase "L" shaped desks w/pole legs (particle board top)
48 Assorted cloth swivel secretarial chairs
7 Xxxxxxxx xxxx 4 drawer lateral file cabinets
8 Assorted 5 drawer lateral file cabinets
17 Assorted 2 drawer lateral file cabinets
2 8 drawer lateral file cabinets
13 Turnstone swivel multicolor upholstery secretarial chairs
Assorted misc. items
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