LEASE TERMINATION
AGREEMENT
THIS LEASE
TERMINATION AGREEMENT (the “Agreement”) is entered into
as of September 14, 2006, by and between SAN TOMAS TOWER LLC,
a Delaware limited liability company (“Landlord”), and
INTERVOICE, INC., a Texas corporation (“Tenant”), in
the following factual context:
A. Landlord
and Tenant entered into that certain Office Lease dated as of
June 7, 2006 (the “Lease”), covering certain space
(the “Premises”) located on the second floor of 2880
San Tomas Expressway, Santa Clara, California, which is a portion
of the San Tomas Business Park (the
“Project”).
B. Tenant
desires to terminate the Lease effective September 14, 2006,
in consideration for making a termination payment to Landlord on
the terms hereinafter provided.
C. Landlord
is agreeable to the termination of the Lease on the terms
hereinafter provided.
D. Tenant is
also a tenant in another building at the Project at 2840 San Tomas
Expressway (the “Existing Space”) pursuant to an Office
Lease dated June 11, 1990, as amended and assigned (the
“Existing Lease”).
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, the parties hereto agree as
follows:
1. Termination
Date. The Lease shall terminate at 11:59 p.m. on
September 14, 2006 (the “Termination Date”). In
connection with such termination of the Lease, Tenant and Landlord
shall be obligated as follows:
a.
Within one (1) business day after the full execution and
delivery of this Agreement by Landlord and Tenant, Tenant shall pay
to Landlord the sum of $852,111.86 (the “Termination
Payment”) in immediately available funds.
b.
Landlord and Tenant acknowledge that Tenant has never taken
possession of or occupied the Premises, and that the Commencement
Date did not occur.
c.
As additional consideration, Landlord shall be entitled to retain
(i) Tenant’s Security Deposit in the amount of
$25,357.94, Tenant hereby waiving any rights to the return of the
Security Deposit under the Lease and under the provisions of
California Civil Code Section 1950.7 with respect thereto; and
(ii) Tenant’s first month’s rental in the amount
of $22,530.20, which amounts were previously paid by Tenant to
Landlord.
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2. Release.
Upon Landlord’s receipt of the Termination Payment, except as
expressly set forth in this Agreement, the parties to this
Agreement and their respective parent companies, partners,
affiliates, subsidiaries, directors, officers, agents, employees,
successors and assigns 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
the performance or non-performance of any of the terms or
provisions thereof, 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. 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. Statutory
Waiver. Landlord and Tenant each acknowledges that it 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 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.
Landlord and
Tenant each 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 with respect to the Lease and the Premises
to the full extent that it may lawfully do so. In connection with
such waiver and relinquishment, Landlord and Tenant each
acknowledges 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 Landlord and Tenant with
respect to the Lease and the Premises. Accordingly, Landlord and
Tenant each 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.
4. Surviving
Lease Obligations. Landlord and Tenant acknowledge and agree that,
notwithstanding anything to the contrary in Sections 2 and 3
above, the obligations of Landlord and Tenant set forth in the
Lease which by the terms thereof survive the termination of the
Lease shall indeed survive the termination of the Lease pursuant to
this Agreement, including without limitation all indemnifications
of Landlord by Tenant.
5. Existing
Lease. Landlord and Tenant hereby agree that the holdover term of
the Existing L
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