Exhibit 10.122
LEASE SURRENDER AND TERMINATION
AGREEMENT
I.
PARTIES AND DATE.
This Lease Surrender and Termination
Agreement (“Agreement”) is made and entered into as of
this 10 day of February, 2009, between THE IRVINE COMPANY LLC, a
Delaware limited liability company, formerly The Irvine Company
(“Landlord”), and MEADE INSTRUMENTS CORP., a Delaware
corporation (“Tenant”).
II.
RECITALS.
Pursuant to a lease
(“Lease”) dated December 20, 1996, Landlord leased
to Tenant those certain premises (“Premises”) located
at 6001 Oak Canyon, Irvine, California, as more fully described in
the Lease.
Landlord and Tenant desire to
terminate the Lease upon the terms and conditions contained in this
Agreement.
III.
TERMINATION.
For valuable
consideration:
A.
Termination Date
. Subject to the timely
performance by Tenant of its obligations herein, Landlord and
Tenant agree that the Lease shall terminate on February 15,
2009 (“Termination Date”). Tenant shall quit and
surrender possession of the Premises to Landlord on or before
February 28, 2009 in the condition more particularly provided
in Section III.H of this Agreement.
B.
Termination Payment
. Tenant hereby agrees to pay
Landlord, in addition to all Basic Rent and Operating Expenses due
and owing through the Termination Date, the sum of One Million Two
Hundred Thousand Dollars ($1,200,000.00) (the “Termination
Payment”), payable as follows: (i) Five Hundred
Thousand Dollars ($500,000.00) shall be paid in cash concurrently
with the execution and delivery of this Agreement, and
(ii) the balance of the Termination Payment shall be paid by
the delivery of a promissory note (the “Note”) in favor
of Landlord, in the form and with the content of
Exhibit A attached to this Agreement. The Note
shall be secured by a letter of credit in the amount of the
principal sum of the Note (the Letter of Credit”) issued by
Bank of America or by another financial institution acceptable to
Landlord, and delivered to Landlord concurrently with the execution
and delivery of this Agreement.
The Letter of Credit shall be
maintained in full force and effect through that date which is
thirty (30) days following the last scheduled payment date for
principal amounts under the Note. Upon any default by Tenant
under the Note, Landlord shall be entitled to draw upon said Letter
of Credit by the issuance of Landlord’s sole written demand
to the issuing financial institution, which draw shall be in an
amount necessary to pay any sum which Tenant is obligated to pay
under the Note. Any such draw shall be without waiver
or any rights Landlord may have under this Agreement or at law or
in equity as a result of the default. If any portion of the
Letter of Credit is drawn after a default by Tenant, Tenant shall
within ten (10) days after written demand by Landlord restore
the Letter of Credit. Failure to so restore said Letter of
Credit within said ten (10) days shall be a default by Tenant
under this Agreement. Partial drawings upon said Letter of
Credit shall be permitted.
C.
Security Deposit
. Landlord currently holds the
sum of One Hundred Twenty-nine Thousand Seven Hundred Forty-five
Dollars ($129,745.00) as the Security Deposit under
Section 4.3 of the Lease. Of this amount,
(i) Landlord shall retain Sixty-Five Thousand Dollars
($65,000.00) as the “Security Deposit” under the new
“Hubble Lease” (as defined in Section III.G
below), and (ii) the remaining balance (in the amount of
Sixty-Four Thousand Seven Hundred Forty-Five Dollars ($64,745.00))
shall be returned to Tenant within thirty (30) days following the
Termination Date, provided that Tenant fully performs its
obligations under the Lease and this Agreement, including without
limitation, Tenant’s obligations under Section III.H
below.
D.
Landlord’s Conditional
Release of Tenant .
Except for (i) the payment required to be made by Tenant
pursuant to Section III.B above, (ii) any rent or other
charges owed by Tenant, or other obligations required of Tenant set
forth in the Lease from and after the date of this Lease through
including the Termination Date, and (iii) any obligations,
liabilities or losses which are based on this Agreement or any
indemnity or hold harmless agreement set forth in the Lease
(collectively the “Excluded Claims”), effective upon
the ninety-first (91 st ) day
after Landlord’s receipt of the full amount of the
Termination Payment (which shall include all payments under the
Note), Landlord forever releases and discharges Tenant from any and
all rights, causes of action, actions, judgments, liens,
indebtedness, damages, losses, claims, claims in bankruptcy,
liabilities, and demands of every kind and character in any way
related to or arising from the Lease, provided
however , that the release granted by Landlord in this
Section III.D shall: (x) all times be subject to the
provisions of Section III.E and Article IV of this
Agreement, and (y) not become effective and shall be null and
void if a “Bankruptcy Event” (as defined in
Section III.E below) occurs on or before the ninetieth
(90 th ) day after Landlord’s receipt of the
Termination
Payment (which shall include all
payments under the Note). In connection with the foregoing
conditional release (which does not include the Excluded Claims),
Landlord hereby expressly waives the provisions of
Section 1542 of the California Civil Code, which
provides:
“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 THE
SETTLEMENT WITH THE DEBTOR.”
It is understood by Landlord that if
the facts or law with respect to which the foregoing conditional
release is given hereafter turn out to be other than or different
from the facts or law in that connection not known to be or
believed by Landlord to be true, then Landlord hereto expressly
assumes the risk of the facts or law turning out to be so
different, and agrees that the foregoing conditional release shall
be in all respects effective and not subject to termination or
rescission based upon such differences in facts or law.
E.
Bankruptcy Event
. The parties agree (and
Tenant acknowledges Landlord’s express reliance thereon) that
upon (i) Tenant filing a voluntary petition or becoming the
subject of an involuntary petition seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under an present or future federal, state or foreign
act or law relating to bankruptcy or insolvency, including without
limitation, Chapters 7 and 11 of the United States Bankruptcy Code
(collectively and each individually, a “Bankruptcy
Event”), and (ii) the initiation in any such proceeding
of an action to avoid or recover the payments made to Landlord
under this Agreement (including, without limitation, the
Termination Payment) pursuant to the provisions of Chapter 5 of the
Bankruptcy Code or any similar state or foreign law, the release
set forth in Section III.D above, at Landlord’s
election, shall be null and void and Landlord shall retain any and
all claims that may exist under the Lease or otherwise against
Tenant.
F.
Tenant’s Unconditional
Release of Landlord . Effective upon the date of this
Agreement, Tenant forever releases and discharges Landlord from any
and all rights, causes of action, actions, judgments, liens,
indebtedness, damages, losses, claims, claims in bankruptcy,
liabilities and demands of every kind and character in any way
related to or arising from the Lease. Not by way of
limitation of the foregoing, Tenant represents that Landlord has
not failed to perform, and is not in any respect in default or
otherwise liable in the performance of, any of its obligations
under the Lease, nor in connection with the negotiation and
execution of the Lease, the administration of the Lease, and the
leasing, operations, or management of the Building. In
connection with the foregoing unconditional release, Tenant hereby
expressly waives the provisions of Section 1542 of the
California Civil Code, which provides:
“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 THE
SETTLEMENT WITH THE DEBTOR.”
It is understood by Tenant that if
the facts or law with respect to which the foregoing release is
given hereafter turn out to be other than or different from the
facts or law in that connection not known to be or believed by
Tenant to be true, then Tenant 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 such differences in
facts or law.
G.
Contingency
. Tenant
understands and agrees that the effectiven
