LEASE TERMINATION AGREEMENT
THIS
LEASE TERMINATION AGREEMENT ("Agreement") is entered into as of the 30th
day of November, 2009, by and between LBA REALTY FUND-HOLDING CO. II, LLC, a
Delaware limited liability company ("Landlord"), on the one hand, and
PERFORMANCE CAPITAL MANAGEMENT, LLC, a California limited liability company
("Tenant"), on the other hand.
R E C I T
A L S:
A.
Landlord and Tenant are parties to that certain Office Lease Agreement dated
July 17, 2006 (the "Lease"), pursuant to which Tenant currently leases from
Landlord the premises containing approximately 15,550 total rentable square feet
(the "Premises") within the building commonly known as 0000 Xxxxxxx Xxxxx, Xxxxx
Xxxx, Xxxxxxxxxx, consisting of approximately 14,025 rentable square feet
commonly known as Suite 200 (the "Suite 200 Premises"), and approximately 1,525
rentable square feet commonly known as Suite 255 ("Suite 255
Premises").
B.
The Term of the Lease is scheduled to expire on February 28, 2014
and Landlord and Tenant now desire to terminate the Lease early upon the terms
and conditions set forth in this Agreement.
C.
Defined terms which are used in this Agreement without definition
have the meanings given to them in the Lease.
In
consideration of the mutual promises contained herein, the parties agree as
follows:
1
Tenant shall surrender exclusive possession of the Suite 200 Premises to
Landlord on December 15, 2009 (the "Suite 200 Termination Date"), and Tenant
shall surrender exclusive possession of the Suite 255 Premises on May 31, 2010
(or sooner, upon no less than thirty [30] days prior written notice from Tenant
to Landlord) (the date upon which Tenant actually surrenders the Suite 255
Premises being the "Suite 255 Termination Date"). The date upon which
Tenant has surrendered the entire Premises is hereafter sometimes referred to as
the "Termination Date." Upon surrender of the Suite 200 Premises,
provided Tenant complies with the terms of this Agreement, the Lease shall be
terminated as to the Suite 200 Premises effective as of 11:59 p.m. Pacific Time
on the Suite 200 Termination Date. Tenant hereby agrees to leave the
Suite 200 Premises broom clean and in good order, condition and repair on or
before the respective Suite 200 Termination Date, and shall otherwise comply
with the provisions of the Lease regarding surrender of the Suite 200 Premises
as if the Term had expired as to the Suite 200 Premises as of the Suite 200
Termination Date. Tenant acknowledges that the vacation of the Suite
200 Premises by the Suite 200 Termination Date is necessary for the re-letting
of the Suite 200 Premises to a replacement tenant. Accordingly, if
Tenant fails to surrender possession of the Suite 200 Premises by the Suite 200
Termination Date, and as a result thereof, Landlord is delayed in delivering the
Suite 200 Premises to a replacement tenant willing to lease the Suite 200
Premises on terms acceptable to Landlord, then in addition to Landlord's other
remedies, Tenant shall be deemed in hold over without Landlord's consent and
Tenant shall pay hold over rent to Landlord of two hundred percent (200%) of the
current Monthly Base Rent allocable to the Suite 200 Premises for each day
beyond the Suite 200 Termination Date until Tenant surrenders the Suite 200
Premises.
-1-
2
Notwithstanding the Suite 200 Termination Date, subject to
compliance with the terms of the Lease and this Agreement, Tenant shall continue
to be permitted to use through to the Suite 255 Termination Date, the Suite 255
Premises and the computer room located within the Suite 200 Premises consisting
of approximately 300 rentable square feet, and Tenant shall continue to pay
Monthly Base Rent, Additional Rent and all utilities and expenses relating to
the Suite 255 Premises and such computer room (including the costs of submetered
electricity for the computer room [the "Submetered Utilities"]) throughout such
period of continued use. Tenant shall surrender the Suite 255 Premises and the
computer room to Landlord no later than the Suite 255 Termination
Date. Tenant acknowledges and agrees that the Monthly Rent applicable
to the remainder of the Premises (i.e., the Suite 255 Premises and the computer
room) from and after surrender of the Suite 200 Premises, shall be $3,793.07 per
month, plus the cost of the Submetered Utilities attributable to the computer
room.
3
Upon surrender of the Suite 255 Premises and the computer room,
provided Tenant complies with the terms of this Agreement, the Lease shall be
terminated in its entirety effective as of 11:59 p.m. Pacific Time on the Suite
255 Termination Date. Tenant hereby agrees to leave the Suite 255
Premises and the computer room broom clean and in good order, condition and
repair on or before the respective Suite 255 Termination Date, and shall
otherwise comply with the provisions of the Lease regarding surrender as to the
Suite 255 Premises and the computer room as if the Term had expired as to all
such space as of the Suite 255 Termination Date. Tenant acknowledges
that the vacation of the Suite 255 Premises and the computer room by the Suite
255 Termination Date is necessary for the re-letting of the Suite 255 Premises
to a replacement tenant. Accordingly, if Tenant fails to surrender
possession of the Suite 255 Premises and the computer room by the Suite 255
Termination Date, and as a result thereof, Landlord is delayed in delivering the
Suite 255 Premises or the computer room to a replacement tenant willing to lease
the Suite 255 Premises or computer room on terms acceptable to Landlord, then in
addition to Landlord's other remedies, Tenant shall be deemed in hold over
without Landlord's consent and Tenant shall pay hold over rent to Landlord of
two hundred percent (200%) of the current Monthly Base Rent allocable to the
Suite 255 Premises and/or computer room, for each day beyond the Termination
Date until Tenant surrenders the Suite 255 Premises and/or the computer room, as
applicable.
4
Nothing herein shall serve to release Tenant from its
obligations to timely pay Rent, including Monthly Base Rent and estimated
Additional Rent, as to the Suite 200 Premises prior to the Suite 200 Termination
Date and as to the Suite 255 Premises and the computer room prior to the Suite
255 Termination Date.
5
As consideration for Landlord's agreement to terminate the Lease early, Tenant
shall:
(a)
pay to Landlord the sum of Two Hundred Thirty-Three Thousand Three Hundred
Fifty-Four and 75/100ths Dollars ($233,354.75) (the "Termination
Fee"). Landlord and Tenant agree that provided Tenant is not in
default under the Lease and Tenant's existing security deposit has not been
applied by Landlord to any Tenant default, then, notwithstanding the terms of
the Lease to the contrary, Landlord shall apply the existing unused portion of
the security deposit in the amount of $33,354.75 towards partial payment of the
Termination Fee and Tenant hereby waives all of Tenant's right and interest in
and to the Security Deposit. The remainder of the Termination Fee in
the amount of $200,000.00 shall be paid to Landlord as follows: (i) on or before
January 5, 2010, Tenant shall pay to Landlord in cash or other immediately
available funds, the sum of $50,000.00; and (ii) the balance of the Termination
Fee in the amount of $150,000.00 (the "Remaining Termination Fee") shall be
payable by Tenant in equal monthly payments of $25,000.00
commencing February 1, 2009 and continuing through to the Suite 255
Termination Date (i.e., in any event due and payable in full no later than May
31, 2010), provided, Tenant shall pay concurrently with its last monthly payment
of the Remaining Termination Fee interest on the Remaining Termination Fee
amount at 10% per annum calculated based upon the timing of each monthly
installment of the Remaining Termination Fee. As further consideration,
concurrently with the execution of this Agreement, Tenant shall execute and
deliver to Landlord the original Promissory Note in the form attached hereto as
Exhibit "A"
(the "Note"), providing for the timely payment of the Remaining
Termination Fee as provided herein.
-2-
(b) assign
and deliver to Landlord, as of the Termination Date, all of the systems
furniture, including cubicles and chairs (collectively, the "Furniture")
currently in place within the Premises, as shown on the plan attached hereto as
Exhibit "B",
which shall be in good order and condition, subject to original wear and
tear. Accordingly, all of such Furniture shall remain within the
Premises and shall not be removed by Tenant on the Termination
Date. Tenant represents and warrants to Landlord that the Furniture
is free and clear of any liens and encumbrances, and Tenant owns the Furniture
outright and has the right to assign the Furniture to Landlord. Tenant hereby
agrees to indemnify, protect, defend and hold harmless Landlord and Landlord's
affiliates, members, officers, directors, employees and agents, and their
predecessors, successors and assigns from and against any and all claims,
damages and losses relating to such Furniture.
6
Tenant hereby represents and warrants to Landlord that Tenant has (a) the power
and authority to enter into this Agreement and the Note, and to undertake the
obligations and enforcement hereof and under the Note, (b) terminated any and
all prior assignments of any of its interests under the Lease, any sublease of
any of the Premises and the Furniture, and (c) obtained all consents of third
parties required for the effectiveness of this Agreement, the Note and/or the
termination of the Lease.
7
Landlord hereby agrees
that subject to Tenant's surrender of the Premises on the Termination Date as
provided herein, delivery of the original executed Promissory Note in accordance
with the terms of this Agreement, and timely payment of the Termination Fee, the
Lease will be deemed terminated in its entirety as of 11:59 p.m. Pacific Time on
the Termination Date. Each of Landlord and Tenant for themselves, their
affiliates, successors and assigns hereby release and discharge and agrees to
hold the other party and each of the other party's members, shareholders,
officers, directors, agents and employees, and each of their respective
predecessors, successors, assigns and the employees, shareholders, officers,
directors, agents and employees, jointly and severally, free and harmless from
any and all claims, demands, causes of action, losses, expenses, obligations,
damages, attorneys' fees, costs and liabilities of any nature whatsoever
(collectively "Claims"), whether or not now known, suspected or claimed, which
Tenant or Landlord (or any individual or entity acting through Tenant or
Landlord) ever had, now has or may claim to have, against Landlord or any of
Landlord's Parties resulting from, arising out of or related to the Lease or the
Premises (the "Release"), except for those obligations under the Lease that by
their terms are intended to survive the termination of the Lease. The
foregoing release shall not extend to the obligations of either party under this
Agreement.
8. Tenant
acknowledges that it may hereafter discover facts different from or in addition
to those it now knows or believes to be true with respect to the Claims which
are the subject of the Release set forth in Paragraph 7 above, and Tenant
expressly agrees to assume the risk of the possible discovery of additional or
different facts, and agrees that the Release shall be and remain effective in
all respects, regardless of such additional or different facts.
-3-
9
Tenant understands and agrees that it expressly waives and
relinquishes all rights and benefits, if any, it may have under Section 1542 of
the California Civil Code with respect only to the Claims which are the subject
of the Release set forth in Paragraph 7 above. California Civil Code Section
1542 reads as follows:
"§1542
[CERTAIN CLAIMS NOT
AFFECTED BY GENERAL RELEASE.] A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
[initials]
Tenant's Initials
10 Time
is of the essence of this Agreement. The provisions of this Agreement
shall be construed and enforced in accordance with the laws of the State of
California. Each party hereto acknowledges that (i) each party hereto is of
equal bargaining strength; (ii) each such party has actively participated in the
drafting, preparation, and negotiation of this Agreement; (iii) each such party
has had the opportunity to consult with such party's attorneys and advisors
relative to entering into this Agreement; and (iv) any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not apply in the interpretation of this Agreement, any portion hereof or any
amendments hereto.
11 This
Agreement shall inure to the benefit of and shall bind the parties hereto and
their respective personal representatives, successors and assigns.
12 This
Agreement contains the entire understanding between the parties hereto with
respect to the subject matter hereof and supersedes any and all prior or other
contemporaneous understandings, correspondence, negotiations, or agreements
between them respecting the within subject matter. No alterations,
modifications, or interpretations hereof shall be binding unless in writing and
signed by all the parties hereto.
13 Should
any litigation be commenced between the parties hereto or their representatives
concerning any provision of this Agreement or the Lease or the rights and duties
of any person or entity in relation thereto, the party prevailing in such
litigation, whether by out-of-court settlement or final judgment, shall be
entitled, in addition to such other relief as may be granted, to a reasonable
sum as and for attorneys' fees incurred in such litigation and any appeals in
connection therewith. Any judgment or order entered in any final
judgment shall contain a specific provision providing for the recovery of all
costs and expenses of suit, including, without limitation, actual attorneys'
fees and costs and expenses incurred in connection with (i) enforcing,
perfecting and executing such judgment; (ii) post-judgment motions; (iii)
contempt proceedings; (iv) garnishment, levee, and debtor and third-party
examinations; (v) discovery; and (vi) bankruptcy litigation.
14. Any
agreement to pay any amount and any assumption of liability herein contained,
express or implied, shall be only for the benefit of the parties hereto and
their respective successors and assigns, and such agreements and assumptions
shall not inure to the benefit of the obligees of any indebtedness or any other
party, whomsoever, deemed to be a third-party beneficiary of this
Agreement.
-4-
15 Each
party hereto covenants to execute, with acknowledgment, verification, or
affidavit, if required, any and all documents and writings, and to perform any
and all other acts, that may be necessary or desirable to implement, accomplish,
and/or consummate the terms of this Agreement.
16 Every
provision of this Agreement is intended to be severable. If any term
or provision hereof is illegal or invalid for any reason whatsoever, then such
illegality or invalidity shall not affect the validity of the remainder of this
Agreement.
17 No
consent or waiver, express or implied, by Landlord to or of any breach or
default by Tenant in the performance by Tenant of Tenant's obligations hereunder
shall be deemed or construed to be a consent or waiver to or of any other breach
or default in the performance by Tenant. Failure on the part of
Landlord to complain of any act or failure to act of Tenant or to declare Tenant
in default, irrespective of how long such failure continues, shall not
constitute a waiver by Landlord of Landlord's rights hereunder.
18 Except
to the extent required by its operating agreements, any taxing authorities,
applicable Securities and Exchange Commission requirements, and/or any
applicable Federal or State securities laws, Tenant agrees that neither Tenant
nor its agents or any other parties acting on behalf of Tenant shall disclose
any matters set forth in this Agreement or disseminate or distribute any
information concerning the terms, details or conditions hereof to any person,
firm or entity without obtaining the express written consent of
Landlord.
19 This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
TENANT:
PERFORMANCE
CAPITAL MANAGEMENT, LLC,
a
California limited liability company
|
By:
|
/s/ Xxxxx X. Xxxxxxxx | |
|
|
||
|
Name:
|
Xxxxx Xxxxxxxx | |
|
Title:
|
Chief Operations Officer |
Signatures
continued on following page
-5-
LANDLORD:
LBA
REALTY FUND – HOLDING CO. II, LLC
a
Delaware limited liability company
By: LBA
Realty Fund, L.P.
a
Delaware limited partnership,
its
sole Member and Manager
By: LBA
Management Company LLC,
a
Delaware limited liability company,
its
General Partner
By: LBA
Inc.
a
California corporation
its
Manager
|
By:
|
/s/ Xxxxx Xxxxxxxxx | |
|
|
||
|
Name:
|
Xxxxx Xxxxxxxxx | |
|
Title:
|
Authorized Signatory |
| For LBA Office Use Only: Prepared & Reviewed by: | [initials] |
-6-
EXHIBIT
"A"
UNSECURED PROMISSORY
NOTE
|
$150,000.00
|
Buena
Park, California
|
November
30th, 2009
|
FOR VALUE
RECEIVED, and upon the terms and conditions contained herein, the undersigned,
PERFORMANCE CAPITAL MANAGEMENT, LLC, a California limited liability company
("Performance"), having an address at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxx,
Xxxxxxxxxx 00000, ("Maker"), hereby promises to pay to the order of LBA REALTY
FUNDHOLDING CO. II, LLC, a Delaware limited liability company ("Holder"), at
Holder's address at c/o LBA Realty, 00000 Xxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, Attn: Asset Manager-The Village, or such place as
the Holder may from time to time designate in writing, the principal sum of One
Hundred Fifty Thousand ($150,000.00), together with interest at the rate of ten
percent (10%) simple interest per annum on the unpaid principal from the date of
this Note.
1 Payments/Maturity
Date. The principal sum of One Hundred Fifty Thousand ($150,000.00) shall
be due and payable in equal monthly installments of Twenty Five Thousand Dollars
($25,000.00) commencing December 1, 2009 and continuing on the first day of each
month until paid in full. The entire unpaid principal balance together with
interest thereon at 10% per annum calculated based upon the timing of each
monthly installment of principal paid shall be due and payable on or before the
date (the "Maturity Date") which is the earlier of: (a) May 31, 2009, or (b) the
date on which Tenant (defined below) vacates the Premises (defined below) in
compliance with the terms of that certain Lease Termination Agreement (the
"Termination Agreement") executed concurrently herewith by and between Holder,
as Landlord, and Performance, as Tenant, with respect to those premises commonly
known as Suites 200 and 255 containing 15,550 rentable square feet (the
"Premises"), within the building located at 0000 Xxxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxx.
2 Unsecured Obligation.
The indebtedness evidenced by this Note is an unsecured obligation of Maker to
Holder.
3 Application of
Payments. All payments shall be applied (i) first to the payment of
interest on the unpaid principal balance of this Note, and (ii) second to the
payment of the principal balance owing under this Note. Principal and
interest are payable in lawful money of the United States of
America.
4 Prepayment. This Note
may be prepaid in full or in part at any time or from time to time without the
prior written consent of Holder.
5 Event of
Default. Maker's failure to pay any payment of principal and
interest on the applicable payment date and the remaining balance of principal
and interest, and all other amounts due hereunder on the Maturity Date shall
constitute an Event of Default and upon such Event of Default, Holder can pursue
all remedies under the law to recover on this Note.
6. Default Interest.
Maker agrees that upon the occurrence of an Event of Default under this Note,
Holder shall be entitled to receive and Maker shall pay interest on the entire
outstanding principal balance of this Note at a per annum rate equal to the
lesser of (a) ten percent (10%) or (b) the maximum interest rate which Maker may
by law pay (the "Default Rate"). The Default Rate shall be computed
from the occurrence of such Event of Default until the date upon which all
amounts due to Holder under the Note are paid in full. This Section 6, however,
shall not be construed as an agreement or privilege to extend the date of the
payment of the amounts due under this Note, nor as a waiver of any other right
or remedy accruing to Holder by reason of the occurrence of any Event of Default
hereunder.
EXHIBIT
"A"
7 Severability. Every
provision of this Note is intended to be severable. If any term or
provision hereof is declared by a court of competent jurisdiction to be illegal
or invalid, such illegal or invalid term or provision shall not affect the
balance of the terms and provisions hereof, which terms and provisions shall
remain binding and enforceable.
8 Choice of Law. This
Note shall be governed by and construed in accordance with the internal laws of
the State of California, except to the extent that Federal laws may preempt the
laws of the State of California.
9. Notices. All notices
and other communications under this Note are to be in writing, addressed to the
respective parties at the addresses set forth on Page 1 hereof, and shall be
deemed to have been duly given (a) upon delivery, if delivered in person with
receipt acknowledged by the recipient thereof, (b) one (1) business day after
having been deposited for overnight delivery, fee prepaid, with any reputable
overnight courier service, or (c) three (3) business days after having been
deposited in any post office or mail depository regularly maintained by the U.S.
Postal Service and sent by registered or certified mail, postage prepaid, return
receipt requested.
Each
party may establish a new address from time to time by written notice to the
other given in accordance with this Section; provided, however, that no such
change of address will be effective until written notice thereof is actually
received by the party to whom such change of address is sent. Notice
to additional parties now or hereafter designated by a party entitled to notice
are for convenience only and are not required for notice to a party to be
effective in accordance with this Section.
10 Modification. This
Note may be modified only by a writing signed by both Holder and
Maker.
11 Waivers. The right to
plead any and all statutes of limitation as a defense to any demand on this
Note, or on any guarantee hereof, if any, or to any agreement to pay the same,
or to any demand, or other instrument securing this Note, by Maker or any
endorsers, guarantors or sureties is expressly waived by each and all of said
parties. Maker waives diligence, demand, presentment for payment,
protest and notice of any kind or nature, including of dishonor, protest,
nonpayment, intent to accelerate and acceleration. Without
discharging or in any way affecting the liability of the Maker, the Maker hereby
consents to any and all extensions of this Note as Holder may in its sole
discretion grant from time to time, to the release of all or any part of the
security for the payment hereof and to the release of any party liable for
repayment of the obligations hereunder. Maker further waives
exhaustion of legal remedies and the right to plead any and all statutes of
limitations as a defense to any demand on this Note, or to any agreement to pay
the same. If more than one person or entity is executing this Note
then all of the obligations herein contained shall be considered the joint and
several obligations of each of the undersigned.
12. Usury Savings.
Notwithstanding anything to the contrary contained in this Note, in no event
shall the total of all interest or other charges payable under this Note that
are or could be held to be in the nature of interest exceed the maximum legal
rate of interest. Should Holder receive any payment that is or would
be in excess of that permitted to be charged under applicable law, then such
payment shall be deemed to have been made in error and shall automatically be
applied to reduce the principal sum outstanding under this
Note.
EXHIBIT
"A"
13 Costs of
Collection. Maker promises to pay all costs, expenses and
attorneys' fees paid or incurred by Holder or adjudged by a court for (1)
reasonable costs of collection, costs, expenses and reasonable attorneys' fees
paid or incurred in connection with the collection or enforcement of this Note,
whether or not suit is filed; and (2) reasonable costs of suit and such sum as
the Court may adjudge as reasonable attorneys' fees in an action to enforce
payment of this Note or any part of it.
14 Binding Effect. The
terms and provisions of this Note shall be binding upon and inure to the benefit
of Maker and Holder and their respective heirs, executors, legal
representatives, successors, successors and assigns, whether by voluntary action
of the parties or by operation of law.
[NO
FURTHER TEXT ON THIS PAGE; SIGNATURES ON FOLLOWING PAGE]
EXHIBIT
"A"
Executed
as of the date first written above.
"MAKER"
PERFORMANCE
CAPITAL MANAGEMENT, LLC,
a
California limited liability company
|
By:
|
/s/ Xxxxx X. Xxxxxxxx | |
|
|
||
|
Name:
|
Xxxxx Xxxxxxxx | |
|
Title:
|
Chief Operations Officer |
|
By:
|
||
|
|
||
|
Name:
|
||
|
Title:
|
EXHIBIT
"A"
EXHIBIT
"B"
DEPICTION OF
FURNITURE
EXHIBIT
"B"
