EXHIBIT 10.15
CORPORATE PLAZA II
LEASE TERMINATION AGREEMENT
THIS LEASE TERMINATION AGREEMENT (the "Agreement") is entered into as
of December 3, 2002, by and between CORPORATE PLAZA II, INC., a Delaware
corporation ("Landlord"), dba SD Corporate Plaza II, Inc., whose address is c/o
SSR Realty Advisors, Inc., Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, and PREVIO, INC., a Delaware corporation ("Tenant"), whose
address is 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000.
RECITALS:
A. Pursuant to that certain Office Lease entered into between
Landlord's predecessor-in-interest, Weyerhauser Mortgage Company, a California
corporation, and Fort Xxxxx, Inc., a Michigan corporation, tenants in common
("Original Landlord"), as landlord, and Tenant's predecessor-in-interest, STAC
Electronics, a California corporation ("Original Tenant"), as tenant, dated
March 22, 1994, as previously amended by that certain First Amendment to Lease
entered into between Landlord's predecessor-in-interest, I&G Highbluff, Inc., a
Delaware corporation ("Highbluff"), and Original Tenant, dated December 12,
1997, and as also previously amended by that certain Second Amendment to Lease
entered into between Highbluff and Tenant's predecessor-in-interest, Stac, Inc.
("Stac, Inc."), as successor in interest to Original Tenant, dated November 18,
1999, Tenant is leasing from Landlord approximately 14,024 rentable square feet
of office space commonly known as Suite 400 (the "Premises"), in the building
known as Corporate Plaza II North, located at 00000 Xxxx Xxxxx Xxxxx, xx Xxx
Xxxxx, Xxxxxxxxxx 00000.
B. Landlord has succeeded to the interests of Original Landlord and
Highbluff as "Landlord" under the Lease. Tenant has succeeded to the interests
of Original Tenant and Stac, Inc. as "Tenant" under the Lease.
C. Tenant desires to terminate the Lease effective December 31, 2002,
in consideration for making a termination payment to Landlord on the terms
hereinafter provided.
D. Landlord is agreeable to the termination of the Lease on the terms
hereinafter provided.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and confessed, the parties hereto
agree as follows:
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1. The Lease shall terminate on December 31, 2002 (the "Termination
Date"). In connection with such termination of the Lease, Tenant and Landlord
shall be obligated as follows:
a. Contemporaneously with the execution of this Agreement,
Tenant shall pay to Landlord the sum of Six Hundred Sixty-Seven
Thousand, Six Hundred Twenty-One and 12/100 Dollars ($667,621.12) (the
"Termination Payment") by cashier's check.
b. Tenant shall deliver the Premises to Landlord on the
Termination Date, broom clean, without debris, with all of Tenant's
personal property, inventory and trade fixtures removed from the
Premises. Further, Tenant shall repair, to Landlord's reasonable
satisfaction, those components of the Premises specifically identified
by Landlord's agent as being in need of repair (the "Specific Repair
Items") as well as any physical damage to the Premises caused by
Tenant's vacating of the Premises. Tenant may leave its exterior
identity signage in place on the Termination Date.
c. Within thirty (30) days of Tenant's vacation of the
Premises in accordance with the provisions of subsection 1.b. above,
Landlord shall return to Tenant the security deposit in the amount of
$17,530.00, less any amounts deducted therefrom by Landlord for the
repair of (i) the Specific Repair Items and (ii) any physical damage to
the Premises caused by Tenant's vacating of the Premises.
d. On and after the date of this Agreement, Tenant hereby
waives and relinquishes all rights to signage on the exterior of the
Building. Such signage may be removed by Landlord following the date of
this Agreement.
2. Upon (i) Landlord's receipt of the Termination Payment and (ii)
Tenant's vacation of the Premises in accordance with the terms of this Agreement
on or before the Termination Date, except as expressly set forth in this
Agreement, the parties to this Agreement and their respective parent companies,
partners, affiliates, subsidiaries, directors, officers, successors and assigns,
agents, employees and representatives are hereby unconditionally and fully
released and discharged from any and all obligations, claims, actions,
liability, past, present and future, of whatever kind or character, known or
unknown, by reason of, growing out of, arising out of or existing in connection
with the execution of the Lease or any of the terms or provisions thereof,
Tenant's use and occupancy of the Premises, or by reason of the breach or
alleged breach, or conduct or activity resulting in the breach or alleged
breach, of any of the terms or provisions of the Lease, including but not
limited to, any and all of Tenant's maintenance and repair obligations under the
Lease. Except as expressly set forth in this Agreement, this Agreement shall
fully and finally settle all demands, claims, charges, accounts or causes of
action of any nature arising out of or connected with the provisions of the
Lease.
3. Notwithstanding anything to the contrary under the Lease, if Tenant
remains in occupancy of the Premises or continues to hold the Premises after the
Termination Date, such holdover shall constitute and be construed as a tenancy
at will, terminable at any time by Landlord with rent equal to $2,500.00 per
day, to be paid to Landlord for each day that Tenant remains in occupancy, with
Tenant otherwise subject to the terms and conditions of the Lease. No payment of
money nor holdover of the Premises by Tenant after the Termination Date shall
reinstate, continue or extend the term of the Lease. In the event of any
holdover of the Premises
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by Tenant after the Termination Date, Landlord, without notice, may immediately
commence forcible entry and detainer proceedings against Tenant for possession
of the Premises; and Tenant hereby waives all notices of the termination of
Tenant's occupancy or tenancy at will of the Premises and all notices of any
action by Landlord for Tenant's eviction from the Premises. Any failure by
Tenant to promptly remove all of Tenant's personal property, furniture, trade
fixtures and equipment on or before the Termination Date shall thereupon be
conclusively deemed an abandonment by Tenant of all such property and shall be
governed by the terms of the Lease.
4. Intentionally Deleted.
5. Each individual executing or attesting this Agreement on behalf of
Tenant covenants, warrants and represents that he or she is duly authorized to
execute or attest and deliver this Agreement on behalf of such corporation.
6. a. Tenant represents and warrants that it has not made any
assignment, sublease, transfer, conveyance or other disposition of (i)
the Lease; (ii) its interest in the Lease; or (iii) any claim, demand,
obligation, liability, action, or cause of action arising under the
terms of the Lease, to any person, firm, partnership, association, or
other entity.
b. Landlord represents and warrants that it is the fee simple
owner of the Property.
c. Landlord and Tenant further represent and warrant that they
have full power and authority to sign and deliver this Agreement, and
the execution and delivery of this Agreement will not violate and will
not constitute a default under any agreements with any third parties.
d. Landlord and Tenant hereby agree to indemnify and hold
harmless the other party against all actions, demands, liabilities,
costs, expenses, rights of action or causes of action based on, arising
out of, or in connection with, any breach of any of the foregoing
representations and warranties.
7. If an action is commenced between the parties in connection with the
enforcement of any provision of this Agreement, the prevailing party in that
action shall be entitled to recover its costs and expenses, including reasonable
attorneys' fees.
8. Landlord and Tenant agree to perform, execute and deliver or cause
to be performed, executed and delivered any and all such further acts, deeds and
assurances as may be necessary to consummate the actions contemplated in this
Agreement.
9. This Agreement shall be binding upon and inure to the benefit of
Landlord and Tenant and their respective successors and assigns.
10. This Agreement and the obligations under this Agreement shall be
construed in accordance with, governed by, and shall be subject to, the laws of
the State of California.
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11. The parties hereto agree that time is of the essence with respect
to all covenants and agreements herein.
12. This Agreement contains the entire agreement between the parties
hereto. No variations, modifications or changes herein or hereof shall be
binding upon any party hereto unless set forth in a document duly executed by or
on behalf of such party.
13. Any notice or communication provided for in this Agreement must be
in writing, and shall be given or be served by depositing the same in the United
States mail, postpaid and certified and addressed to the party to be notified,
with return receipt requested, or by delivering the same in person to an officer
of such party, or by consigning the same to a recognized overnight delivery
service operating on a nationwide basis, addressed to the party to be notified.
Notice deposited in the mail in the manner hereinabove described shall be
effective when so deposited. Notice given in any other manner shall be effective
upon delivery. The addresses for the delivery of any notices hereunder shall,
until changed as herein provided, be those specified on the first page of this
Agreement. A party hereto may change its address by at least fifteen (15) days
written notice to the other party delivered in compliance with this paragraph;
provided, however, that no such notice shall be effective until actually
received by the other party.
14. All sums payable by Tenant hereunder shall bear interest from the
date due or advanced until paid at the maximum lawful rate in effect at the time
such payment was due.
15. Tenant hereby submits to personal jurisdiction in the State of
California for the enforcement of Tenant's obligations hereunder and waives any
and all personal rights under the law of any other state to object to
jurisdiction within the State of California for the purposes of litigation to
enforce such obligation of Tenant. In the event such litigation is commenced,
Tenant agrees that, in addition to any other manner provided by applicable law
or court rule, service of process may be made and personal jurisdiction over
Tenant obtained, by service of a copy of the summons, complaint and other
pleadings required by applicable law to commence such litigation upon Tenant's
appointed Agent for Service of Process in the State of California, which Agent
Tenant hereby designates to be:
Xxxxxx Godward, LLP
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
16. Each of Landlord and Tenant acknowledges on its own behalf that it
is familiar with Section 1542 of the Civil Code of the State of California 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
executing the release, which if known by him must have
materially affected his settlement with the debtor.
Each of Landlord and Tenant on its own behalf hereby waives and relinquishes
every right or benefit it may have under Civil Code Section 1542 and all other
provisions of law with respect to any such claim it may have against the other
party to the full extent that it may lawfully do so. In connection with such
waiver and relinquishment, each of Landlord and Tenant acknowledges
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that it is aware that it may hereafter discover facts in addition to or
different from those which it now knows or believes to be true with respect to
the subject matter of this Agreement, but that it is such party's intention
hereby to fully, finally and forever settle and release all such claims, known
or unknown, suspected or unsuspected, which may now exist or which have
previously existed between Tenant and Landlord. Accordingly subject to the
provisions of Section 4 above, each of Landlord and Tenant agrees that this
Agreement shall be and remain in effect as a full and complete release
notwithstanding the discovery or existence of any such additional or different
facts.
If Tenant fails to comply with the terms of this Agreement, including
but not limited to the timely payment of all amounts owed by Tenant to Landlord,
then this Agreement shall, at Landlord's option, be null and void and the Lease
shall remain in full force and effect as if this Agreement had never been
executed and Landlord shall have all remedies available to it under California
law, including its remedies pursuant to the Lease and California Civil Code
Section 1951.2, and Tenant shall protect, defend, indemnify and hold Landlord
harmless from and against any claim, loss, cost, damage or judgment as a result
of Tenant's failure to comply with the Lease or this Agreement, including but
not limited to, any claims or defenses to payment of rent made under any new
lease entered into by Landlord as a result of the condition of the Premises upon
its being vacated by Tenant.
17. This Agreement may be executed in a number of identical
counterparts which, taken together, shall constitute collectively one (1)
agreement; but in making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart.
EXECUTED as of the date first set forth above.
LANDLORD: CORPORATE PLAZA II, INC.,
a Delaware corporation,
dba SD Corporate Plaza II, Inc.
By: /s/Chuel Xxxx Xxxxx
Name: CHUEL XXXX XXXXX
Title: ----------------------
TENANT: PREVIO, INC.,
a Delaware corporation
By: /S/XXXXX XXXXXXX
Name: Xxxxx Xxxxxxx
Title: President, CFO and Secretary
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