LEASE TERMINATION AGREEMENT AND
RELEASE
This Lease Termination Agreement and Release ("
Agreement ") is entered into as of February __, 2009, by and
between The Realty Associates Fund VII, L.P., a Delaware limited
partnership (" Landlord "), and Puredepth, Inc., a Delaware
corporation (" Tenant ”).
F A C T S
A. On
or about October 31, 2007, Landlord and Tenant entered into a
Standard Office Lease (the " Lease ") pursuant to which
Landlord agreed to lease certain premises to Tenant commonly known
as Suite 350, 3 Twin Dolphin, Redwood City, California (the "
Premises ").
B. Landlord
and Tenant have agreed to terminate the Lease on the terms and
conditions set forth below.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
1.
Execution of New Lease . Landlord’s
obligations under this Agreement are conditioned and contingent
upon Landlord entering into a new lease (the “ New
Lease ”) with Precise Software Solutions,
Inc. (the “ New Tenant ”) for the
Premises. The terms of the New Lease shall be
satisfactory to Landlord in Landlord’s sole and absolute
discretion. Landlord makes no representation or warranty
to Tenant that a New Lease will be entered into with a New
Tenant. If a New Lease has not been entered into with a
New Tenant on or before February 28, 2009, Landlord shall have the
option, in Landlord’s sole and absolute discretion, to elect
upon written notice to Tenant to terminate this
Agreement. In the event that Landlord elects to
terminate this Agreement, from and after the date of
Landlord’s election, this Agreement shall be of no further
force and effect and the Lease shall remain in full force and
effect as if this Agreement had never been entered into.
2.
Delivery of Possession . Tenant shall deliver possession of
the Premises to Landlord in its “as is” condition one
(1) business day after Landlord gives Tenant written notice of
Landlord’s desire to take possession of the Premises, time
being of the essence. At the time Tenant delivers
possession of the Premises to Landlord, Tenant shall no longer have
the right to possession of the Premises or to have access to the
Premises. Tenant may deliver possession of the Premises
to Landlord with Precise Software Solutions, Inc. in possession of
the Premises.
3.
Termination of Lease . The Lease shall be deemed
terminated on the date Tenant delivers possession of the Premises
to Landlord pursuant to Section 2 above (the " Termination
Date "). Prior to the Termination Date, the Lease
shall remain in full force and effect and Tenant shall pay all Base
Rent, Operating Expenses, Real Property Taxes and other amounts
payable by Tenant under the Lease for periods accruing prior to the
Termination Date. Tenant’s obligation to pay such
amounts shall survive the termination of the Lease.
4.
Termination Payment . In consideration for
Landlord's agreement to terminate the Lease, Tenant shall pay to
Landlord the sum of $40,000.00 (the " Termination Payment
"). The Termination Payment is in addition to, and shall not be
credited against, all other amounts payable by Tenant under the
Lease prior to the Termination Date.
5.
Security Deposit . Landlord acknowledges that
Tenant has provided it with a security deposit of $40,000.00, and
the security deposit shall be retained by Landlord as payment of,
and in full satisfaction of, the Termination Payment.
6.
Indemnity . Notwithstanding the termination of
the Lease and Section 9 below, Tenant shall indemnify, defend and
hold harmless Landlord from all demands, expenses, claims, losses,
causes of action and damages or suits of any nature whatsoever
which arise out of the acts or omissions of Tenant prior to the
termination of the Lease which were Tenant's responsibility under
the Lease. Tenant's obligations under Section 21 of the Lease shall
survive the termination of the Lease, and Tenant's obligations
under Section 21 of the Lease shall not be released pursuant to
Section 9 of this Agreement.
7.
No Subtenancies . Tenant represents and warrants
that Tenant has not subleased all or any portion of the Premises to
any person or entity other than Precise Software Solutions, Inc.,
and that Tenant has not assigned the Lease.
8.
Release of Landlord . As of the Termination Date,
Tenant, for itself and for its affiliated corporations, limited
liability companies and partnerships, officers, directors,
shareholders, agents, representatives, employees, attorneys,
shareholders, successors in interest, personal representatives,
heirs, assigns and each of them, absolutely, ful
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