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