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LEASE TERMINATION AGREEMENT
| A. |
Landlord,
(as successor-in-interest to MPTP Holding, LLC, a Delaware limited
liability company, as the successor-in-interest to Martin/Campus
Associates, No. 2, L.P., a Delaware limited partnership, as the
successor-in-interest to Martin/Campus Associates, L.P., a Delaware
limited partnership), and Tenant are parties to that certain Lease
Agreement dated February 5, 1997, as amended by that certain First
Amendment to Lease dated as of December 3, 1997, and the Second
Amendment of Lease dated as of October 1, 2004 (collectively, the
"Lease" ), with respect to certain
premises described therein consisting of approximately 59,220
square feet (the "Premises"
). All capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Lease. |
| B. |
Tenant
entered into a sublease dated November 30, 2005 as amended by that
certain First Amendment to Sublease dated November 2, 2006, and the
Second Amendment to Sublease dated November 16, 2006 (the
"Sublease" ) with Big Band Networks,
Inc., a Delaware Corporation (the
"Sublessee" ), covering the premises more
particularly described in the Sublease (the "Subleased
Premises" ). |
| C. |
Landlord
and Tenant now desire to terminate the Lease on the terms and
conditions set forth in this Agreement. |
| D. |
In
connection with the termination of the Lease, Tenant shall sell to
Landlord certain personal property located on the
Premises. |
NOW
THEREFORE, Landlord and Tenant (collectively referred to as
the "Parties" or individually as
"Party" ) agree as follows:
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1. |
Lease Termination . Subject to Tenant's
performance of its obligations under this Agreement, Landlord and
Tenant agree to terminate the Lease effective as of October 31,
2007 (the "Termination Date"
). Tenant shall surrender to Landlord the Premises and
all of Tenant's right, title and interest in and to the Lease as of
the Termination Date. |
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2. |
Assignment of Sublease. As of the Termination
Date: (i) Tenant hereby assigns the Sublease to Landlord and
Landlord accepts full and complete liability for the Sublease from
and after the Termination Date; (ii) Tenant shall remit Sublessee's
security deposit (the "Sublessee Security
Deposit" ) in the amount of Fifty Thousand Thirty-One
and 38/100 Dollars ($50,031.38) for the Subleased Premises to
Landlord within five (5) days after the Effective Date; and (iii)
Landlord hereby releases Tenant from all claims Landlord may have
in connection with the Sublease and/or Sublessee's performance or
failure to perform thereunder. |
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3. |
Termination Fee . In consideration for the
termination of the Lease, and in full satisfaction of all
outstanding obligations of Landlord and Tenant under the Lease: (i)
Tenant shall convey to Landlord certain personal property located
on the Premises pursuant to a Bill of Sale attached hereto as
Exhibit A (the "Bill of Sale"); and (ii)
Tenant shall pay Landlord the sum of One Hundred Eleven Thousand
Three Hundred Seventeen and 12/100 Dollars ($111,317.12) (the
"Termination Fee"). The Termination Fee has been
calculated as set forth in Exhibit B
. |
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4. |
Rent. Upon delivery of the Bill of Sale and
the Termination Fee, Landlord shall be deemed to have released
Tenant as of the Termination Date from all claims for rent,
additional rent, tenant improvement costs, management fees, common
area maintenance costs, real property taxes and impositions,
insurance premiums, late charges, interest, and taxes due and
payable after the Termination Date, and all other obligations
arising under the Lease after the Termination Date. |
|
5. |
Security Deposit. Pursuant to Paragraph 7 of the Lease,
Landlord shall return Tenant's Security Deposit or the letter of
credit, to Tenant within five (5) days after Landlord's receipt of
the Sublessee Security Deposit. |
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6. |
Mutual Release. Subject to delivery of the
Bill of Sale and the Termination Fee, as of the Termination Date,
for |
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