LEASE TERMINATION AGREEMENT AND RELEASE
Exhibit
10.47
This
Lease Termination Agreement and Release ("Agreement") is entered into as
of February __, 2009, by and between The Realty Associates Fund VII, L.P., a
Delaware limited partnership ("Landlord"), and Puredepth,
Inc., a Delaware corporation ("Tenant”).
F A C T S
A. On
or about October 31, 2007, Landlord and Tenant entered into a Standard Office
Lease (the "Lease")
pursuant to which Landlord agreed to lease certain premises to Tenant commonly
known as Xxxxx 000, 0 Xxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx (the "Premises").
B. Landlord
and Tenant have agreed to terminate the Lease on the terms and conditions set
forth below.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Execution of New
Lease. Landlord’s obligations under this Agreement are
conditioned and contingent upon Landlord entering into a new lease (the “New Lease”) with Precise
Software Solutions, Inc. (the “New Tenant”) for the
Premises. The terms of the New Lease shall be satisfactory to
Landlord in Landlord’s sole and absolute discretion. Landlord makes
no representation or warranty to Tenant that a New Lease will be entered into
with a New Tenant. If a New Lease has not been entered into with a
New Tenant on or before February 28, 2009, Landlord shall have the option, in
Landlord’s sole and absolute discretion, to elect upon written notice to Tenant
to terminate this Agreement. In the event that Landlord elects to
terminate this Agreement, from and after the date of Landlord’s election, this
Agreement shall be of no further force and effect and the Lease shall remain in
full force and effect as if this Agreement had never been entered
into.
2. Delivery of
Possession. Tenant shall deliver possession of the Premises to Landlord
in its “as is” condition one (1) business day after Landlord gives Tenant
written notice of Landlord’s desire to take possession of the Premises, time
being of the essence. At the time Tenant delivers possession of the
Premises to Landlord, Tenant shall no longer have the right to possession of the
Premises or to have access to the Premises. Tenant may deliver
possession of the Premises to Landlord with Precise Software Solutions, Inc. in
possession of the Premises.
3. Termination of
Lease. The Lease shall be deemed terminated on the date Tenant
delivers possession of the Premises to Landlord pursuant to Section 2 above (the
"Termination
Date"). Prior to the Termination Date, the Lease shall remain
in full force and effect and Tenant shall pay all Base Rent, Operating Expenses,
Real Property Taxes and other amounts payable by Tenant under the Lease for
periods accruing prior to the Termination Date. Tenant’s obligation
to pay such amounts shall survive the termination of the Lease.
4. Termination
Payment. In consideration for Landlord's agreement to
terminate the Lease, Tenant shall pay to Landlord the sum of $40,000.00 (the
"Termination Payment").
The Termination Payment is in addition to, and shall not be credited against,
all other amounts payable by Tenant under the Lease prior to the Termination
Date.
5. Security
Deposit. Landlord acknowledges that Tenant has provided it
with a security deposit of $40,000.00, and the security deposit shall be
retained by Landlord as payment of, and in full satisfaction of, the Termination
Payment.
6. Indemnity. Notwithstanding
the termination of the Lease and Section 9 below, Tenant shall indemnify, defend
and hold harmless Landlord from all demands, expenses, claims, losses, causes of
action and damages or suits of any nature whatsoever which arise out of the acts
or omissions of Tenant prior to the termination of the Lease which were Tenant's
responsibility under the Lease. Tenant's obligations under Section 21 of the
Lease shall survive the termination of the Lease, and Tenant's obligations under
Section 21 of the Lease shall not be released pursuant to Section 9 of this
Agreement.
7. No
Subtenancies. Tenant represents and warrants that Tenant has
not subleased all or any portion of the Premises to any person or entity other
than Precise Software Solutions, Inc., and that Tenant has not assigned the
Lease.
8. Release of
Landlord. As of the Termination Date, Tenant, for itself and
for its affiliated corporations, limited liability companies and partnerships,
officers, directors, shareholders, agents, representatives, employees,
attorneys, shareholders, successors in interest, personal representatives,
heirs, assigns and each of them, absolutely, fully and forever releases and
discharges Landlord and Landlord’s property manager and their respective
members, officers, partners, agents, representatives, employees, servants,
attorneys, successors in interest, assigns and each of them, whether past,
present or future, of and from any and all claims, demands, liabilities,
obligations, losses, controversies, costs, expenses, attorneys' fees and damages
of every kind, nature, character or description whatsoever, whether in law or in
equity, and whether known or unknown, suspected or unsuspected, arising out of,
connected with, or in any way related to the Lease or Tenant's occupation of the
Premises. Tenant acknowledges and agrees that the release set forth
above applies to all claims relating to the Lease whether those claims are known
or unknown, foreseen or unforeseen. Tenant hereby waives application of
California Civil Code Section 1542 which reads 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."
9. Release of
Tenant. Subject to the performance by Tenant of all of its
obligations under this Agreement (none of which are released by this section),
as of the Termination Date, Landlord, for itself and for its affiliated
corporations, limited liability companies and partnerships, members, officers,
agents, representatives, employees, attorneys, shareholders, successors in
interest, personal representatives, heirs, assigns and each of them, absolutely,
fully and forever releases and discharges Tenant and its officers, directors,
shareholders, agents, representatives, employees, servants, attorneys,
successors in interest, assigns and each of them, whether past, present or
future, of and from any and all claims, demands, liabilities, obligations,
losses, controversies, costs, expenses, attorneys' fees and damages of every
kind, nature, character or description whatsoever, whether in law or in equity,
and whether known or unknown, suspected or unsuspected, arising out of,
connected with, or in any way related to the Lease and Tenant's occupation of
the Premises. Subject to the performance by Tenant of all of its obligations
under this Agreement, Landlord acknowledges and agrees that the release set
forth above applies to all claims relating to the Lease whether those claims are
known or unknown, foreseen or unforeseen. Landlord hereby waives application of
California Civil Code Section 1542 which reads 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."
10. Confidentiality. Tenant
agrees not to disclose the terms and conditions of this Agreement to any person
or entity other than its attorney, including, but not limited to, the other
tenants of the Building identified in the Lease. Nothing contained in
this section shall prevent Tenant from producing this Agreement in a legal
proceeding if such production is legally required of Tenant, or otherwise
disclosing the terms of this Agreement as may be required by any regulatory
agency or rule making body, or disclosing same to Tenant’s
shareholders. Tenant acknowledges and agrees that it shall be
responsible to Landlord for any damages Landlord may incur due to Tenant's
breach of this section.
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11. General. The
persons executing this Agreement on behalf of the parties hereto represent and
warrant that they have the authority to execute this Agreement on behalf of said
parties and that said parties have authority to enter into this
Agreement. Landlord's obligations under this Agreement are
conditioned and contingent upon the performance by Tenant of all of its
obligations under this Agreement. This condition is for the sole
benefit of Landlord and may be waived by Landlord at any time upon written
notice to Tenant. Landlord and Tenant acknowledge that they have
received independent legal advice from their attorneys with respect to the
advisability of executing this Agreement. If a party files a legal
action to enforce this Agreement, the prevailing party in such action shall be
entitled to recover all of its reasonable attorneys' fees and costs. This
Agreement contains the entire agreement between the parties and may only be
modified or amended by a writing signed by all parties. This Agreement is
entered into and shall be construed and interpreted in accordance with the laws
of the State of California. The parties hereto represent and warrant that they
have not transferred or otherwise assigned, either by contract or operation of
law, any of the claims released under this Agreement. Preparation of
this Agreement by Landlord or Landlord's agent and submission of same to Tenant
shall not be deemed an offer by Landlord to enter into this
Agreement. This Agreement shall become binding upon Landlord only
when fully executed by all parties and when Landlord has delivered a fully
executed copy of this Agreement to Tenant.
12. Counterparts and
Facsimiles. This Agreement may be executed in one or more
counterparts, which shall be deemed effective upon full execution of this
Agreement by all parties. Each counterpart shall be deemed an
original, but all of which together shall constitute one and the same instrument
and agreement. In addition, a copy of this Agreement executed by a
party hereto and telecopied to the other party shall be deemed to constitute
delivery of an originally executed copy of this Agreement to the other
party. A facsimile signature shall be enforceable to the same extent
as an original signature.
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IN
WITNESS WHEREOF, the parties hereby execute this Agreement.
LANDLORD:
The
Realty Associates Fund VII, L.P.,
a
Delaware limited partnership
|
By:
|
Realty
Associates Fund VII, LLC
|
its General Partner
|
By:
|
Realty
Associates Advisors LLC, its
Manager
|
|
By:
|
Realty
Associates Advisors Trust,
|
its
Manager
|
By:
|
/s/ Xxxxx X. Xxxxxx ,
Regional Director
|
Officer
TENANT*:
Puredepth,
Inc., a Delaware corporation
|
By:
|
/s/ Xxxxxxxx
XxXxxxx
|
Xxxxxxxx X.
XxXxxxx
(print
name)
|
Its:
|
CFO
|
(print
title)
|
By:
|
/s/ Xxxxxx
XxXxxxxx
|
Xxxxxx
XxXxxxxx
(print
name)
|
Its:
|
Controller and
Assistant Secretary
|
(print
title)
*Authorized
officers must sign on behalf of the corporation and indicate the capacity in
which they are signing. The agreement must be executed by the
president or vice president and the secretary or
assistant secretary, unless the bylaws or
a resolution of the board of directors shall otherwise provide, in which event,
the bylaws or a certified copy of the resolution, as the case may be, must be
attached to this agreement.
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