EXHIBIT
10.1
LEASE TERMINATION
AGREEMENT
This Lease Termination Agreement
(the “Agreement”) is made and executed as of this 3rd
day of March, 2009 by and between SELIG REAL ESTATE HOLDINGS EIGHT,
LLC, (“Lessor”) and NORTHSTAR NEUROSCIENCE, INC.,
(“Lessee”).
RECITALS
Lessor and Lessee entered into a
Lease Agreement dated July 5, 2000 for 51,701 square feet,
being the entire 2nd, 3rd and 5th floors of the Fourth and Battery
Building. That lease was amended July 2, 2002 setting forth a
lease expiration of August 31, 2005 for the 2nd floor premises
and an extension of the lease for the 3rd and 5th floor premises
until August 31, 2012 (collectively, the
“Lease”).
Lessee has subleased a portion of of
the 5th floor to PopCap Games, Inc., pursuant to a Sublease dated
July 11, 2008 (the “Sublease”) by and between
Lessee and PopCap.
Lessor and Lessee wish to enter into
this Agreement in order to cancel and terminate the Lease,
effective February 28, 2009 (the “Termination
Date”).
AGREEMENT
In consideration of the payment to
be made as provided herein, the covenants contained in this
Agreement, and for other good and valuable consideration as set
forth below, the receipt and sufficiency of which are hereby
acknowledged, Lessor and Lessee agree to terminate the Lease upon
satisfaction of the following:
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1.
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Lessee shall
pay to Lessor the sum of $2,400,000 (the “Payment
Amount”) in full settlement, release and satisfaction of
Lessee’s remaining lease obligation. Upon Lessor’s
receipt of the Payment Amount, Lessor’s claims against Lessee
shall be deemed satisfied in full.
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2.
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Lessee shall
pay the agreed $2,400,000 Payment Amount to Lessor (in accordance
with Lessor’s instructions) no later than ten (10) days
from the date of full execution of this Agreement by both parties
hereto.
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3.
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Lessor shall
retain Lessee’s security deposit in the amount of
$92,870.00.
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4.
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Northstar
Neuroscience has subleased a portion of its 5th floor premises to
PopCap Games by a Sublease Agreement dated July 11, 2008.
Effective as of the Termination Date Lessee assigns to Lessor the
Sublease including the payment of rent and additional rent to
Lessor, as if Lessoris the Sublandlord, through the term of the
sublease, April 30, 2010, unless modified or amended by Lessor
and PopCap Games. Any deposits held by Lessee pursuant to the
sublease shall be transferred to Lessor. Lessor and Lessee
acknowledge and agree that the termination of the Lease does not
terminate the Sublease.
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5.
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Notwithstanding the Termination
Date above, Lessee shall have the option to holdover in its 3rd
floor premises and remaining (non-subleased) portion of the 5th
floor premises on a month-to-month tenancy commencing March 1,
2009. No rent or expenses shall be charged for this holdover
period, however Northstar Neuroscience shall vacate all or a
portion of its holdover space as directed by Lessor within sixty
(60) days of Lessor’s notice to vacate this area, but in
no event before May 31, 2009 for the 3rd floor premises and
June 30, 2009 for the 5 th floor premises.
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6.
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In
consideration of this Agreement and upon receipt of the Payment
Amount, Lessor hereby releases Lessee and its owners, officers,
directors, agents, employees, attorneys, successors and assigns
from all claims, demands, actions or causes of action, which Lessor
now has or may have.
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7.
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This Agreement
shall be construed without regard to its drafter and shall be
construed as though the parties participated equally in
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