Exhibit 10.3
LEASE SURRENDER AND TERMINATION AGREEMENT
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I. PARTIES AND DATE.
THIS LEASE SURRENDER AND TERMINATION AGREEMENT ("Agreement") is
dated as of December 3, 1998, and is made by and among Cito Corp. ("Landlord")
and QAD Inc. ("Tenant").
II. RECITALS.
A. Tenant is a party to the certain Standard Lease (the "Lease") dated
December 29, 1997 for the Premises known as 000 Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxx
000 and 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 000. The capitalized terms used and not
otherwise defined herein shall have the same definitions as set forth in the
Lease.
B. Landlord and Tenant desire to terminate the Lease upon the terms and
conditions contained in this Agreement.
III. TERMINATION.
A. Date. Landlord and Tenant agree that the Lease shall terminate on
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December 31, 1998 ("Termination Date"), on the condition that Tenant fulfill
each and every term and obligation contained herein in a timely manner.
B. Surrender of Lease. Effective as of the Termination Date, tenant
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surrenders, forfeits and quitclaims any and all interest in and to the Lease to
Landlord, including without limitation any and all option rights.
C. Acceptance. Subject to and conditioned upon the terms, agreements,
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and representations herein contained, Landlord accepts the termination of the
Lease as of the Termination Date.
D. Consideration. In consideration of Landlord's acceptance of the
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foregoing termination, tenant hereby agrees to pay Landlord $90,000
per the following schedule:
$50,000 on or before January 1, 1999
$20,000 on or before March 1, 1999
$20,000 on or before May 1, 1999
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$90,000 Total Consideration
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E. Release. Except as expressly set forth in this Agreement, Landlord
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and Tenant, and their respective officers, directors, shareholders, employees,
partners, successors and assigns, hereby mutually release each other and each of
their respective officers, directors, shareholders, employees, partners,
successors and assigns, from any and all claims, demands, actions, liabilities
and obligations, whether known or unknown, which they now have or which may
hereafter accrue in the future arising prior to the date of this Agreement under
and/or in connection with the Lease, including without limitation, the events
and circumstances surrounding the entering into of the Lease. The parties shall,
after the Termination Date, have no claim or demand against each other in
connection with the Lease, provided however, that nothing in this Agreement
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shall be deemed to release Tenant from (i) any liability arising on or before
the Termination Date related to Tenant's use, occupancy or control of the
Premises during the Term; (ii) the obligation to pay Rent and other payments due
to Landlord on or before the Termination Date which has not been received by
Landlord as of the Termination Date; (iii) the obligations of Tenant under the
Lease regarding surrender of the Premises, including but not limited to the
specific obligations and duties set forth in the Lease; and (iv) any damages,
expenses and liabilities accruing after the Termination Date arising out of the
failure of Tenant to surrender the Premises to Landlord on the Termination Date,
or of any of Tenant's representations and warranties set forth herein being
untrue or inaccurate.
F. General Release. Except as expressly set forth in this Agreement, it
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is the intention of the parties in executing this Agreement that this Agreement
shall be effective as a full and final accord and satisfaction and general
release from any and all matters released hereunder. In furtherance of this
intention, the parties acknowledge that each is familiar with Section 1542 of
the California Civil Code, 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."
"The parties do hereby waive and relinquish all rights and benefits
which each has or may have had under Section 1542 of the California Civil Code
with respect to the subject matter of this Agreement. It is understood by the
parties that if the facts or law with respect to which the foregoing general
release is given hereafter turnout to be other than or different from the facts
for law in that connection not known to be or believed by either party to be
true, then each party hereto expressly assumes the risk of the facts or law
turning out to be so different, and agrees that the foregoing release shall be
in all respects effective and not subject to termination or rescission based
upon differences in facts or law.
G. Tenant's Representations and Warranties. Tenant hereby represents
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and warrants to Landlord that (i) Tenant has not previously assigned its
interest in and to the Lease or sublet all or any portion of the Premises; (ii)
Tenant has not caused or permitted any release or disposal on, under, within or
from the Premises of any Hazardous Materials, and as of the Termination Date
shall have properly removed from the Premises all Hazardous Materials stored or
used by or on behalf of Tenant within the Premises; and (iii) tenant has not
violated any Applicable Laws with respect to Tenant's use or occupancy of the
Premises which violation shall not have been remedied by Tenant on or before the
Termination Date.
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IV. GENERAL.
A. Attorney's Fees. The provisions of the Lease respecting attorney's
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fees shall apply to this Agreement.
B. Authority to Execute Agreement. Each individual executing this
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Agreement on behalf of a partnership or corporation represents that he or she is
duly authorized to execute and deliver this Agreement on behalf of the
partnership and/or corporation and agrees to deliver evidence of his or her
authority to Landlord upon request by Landlord.
C. Governing Law. This Agreement and any enforcement of the agreements,
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acknowledgments and representations of Landlord and Tenant set forth above shall
be governed by and construed in accordance with the laws of the State of
California.
D. Counterparts. If this Agreement is executed in counterparts, each
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counterpart shall be deemed an original.
E. Time of Essence. Time is of the essence as to each of the terms,
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provisions, conditions and requirements set forth herein.
LANDLORD: Cito Corporation TENANT: QAD Inc.
By: ___________________________ By: ____________________________
Its: ___________________________ Its: ___________________________
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