SUB-LEASE TERMINATION AGREEMENT AND RELEASE
Exhibit
10.48
SUB-LEASE TERMINATION AGREEMENT AND
RELEASE
This
Sub-Lease Termination Agreement and Release ("Agreement") is entered into as
of February 19, 2009, by and between PureDepth, Inc., a Delaware corporation
("Sublessor”) and
Precise Software Solutions, Inc., a Delaware corporation ("Sublessee”).
F A C T S
A.
On or about March 24, 2008, Sublessor and Sublessee entered into a Sublease (the
"Sublease") pursuant to which
Sublessor agreed to sublease certain premises to Sublessee commonly known as
▇▇▇▇▇ ▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Premises").
B.
Sublessor and Sublessee have agreed to terminate the Sublease 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. Sublessor’s obligations under this Agreement are conditioned
and contingent upon the termination of Sublessor’s Lease (the “Master Lease”) with the
Landlord on the “Termination Date” specified in the separate Lease Termination
Agreement executed by and between Sublessor and the Landlord. Sublessor makes no
representation or warranty to Sublessee that the Lease Termination Agreement
executed by and between Sublessor and the Landlord will become effective.
If the Lease Termination Agreement executed by and between Sublessor and the
Landlord does not become effective, Sublessor shall have the option, in
Sublessor’s sole and absolute discretion, to elect upon written notice to
Sublessee to terminate this Agreement. In the event that Sublessor elects
to terminate this Agreement, from and after the date of Sublessor’s election,
this Agreement shall be of no further force and effect and the Sublease shall
remain in full force and effect as if this Agreement had never been entered
into.
2.
Delivery of
Possession. Sublessee, as it may be instructed by Sublessor, shall
deliver possession of the Premises to either Landlord or Sublessor in its “as
is” condition one (1) business day after Sublessor gives Sublessee written
notice that the Lease Termination Agreement executed by and between Sublessor
and the Landlord has become effective.
3.
Termination of
Sublease. The Sublease shall be deemed terminated on the date
Sublessee delivers possession of the Premises to Sublessor or Landlord pursuant
to Section 2 above (the "Sublease Termination
Date"). Prior to the Sublease Termination Date, the Sublease shall
remain in full force and effect and Sublessee shall pay all Rent and other
amounts payable by Sublessee under the Sublease for periods accruing prior to
the Sublease Termination Date. Sublessee’s obligation to pay such amounts
shall survive the termination of the Sublease.
4.
Section 4 is intentionally left blank
5.
Indemnity. Notwithstanding the
termination of the Sublease and Section 8 below, Sublessee shall indemnify,
defend and hold harmless Sublessor 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 Sublessee prior to the termination of the Sublease
which were Sublessee's responsibility under the Sublease. Sublessee's
obligations under Section 11 of the Sublease shall survive the termination of
the Lease, and Sublessee's obligations under Section 11 of the Sublease shall
not be released pursuant to Section 8 of this Agreement.
6.
No
Subtenancies. Sublessee represents and warrants that Sublessee has
not subleased all or any portion of the Premises to any person or entity and
that Sublessee has not assigned the Sublease.
7.
Release of
Sublessor. As of the Sublease Termination Date, Sublessee, 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, fully and forever
releases and discharges Sublessor and its respective, officers, directors,
shareholders, agents, representatives, employees, servants, attorneys,
successors in interest, assigns and each of them, whether past, present or
future, of and from any and all claims, demands, liabilities, obligations,
losses, controversies, costs, expenses, attorneys' fees and damages of every
kind, nature, character or description whatsoever, whether in law or in equity,
and whether known or unknown, suspected or unsuspected, arising out of,
connected with, or in any way related to the Sublease or Sublessee's occupation
of the Premises. Sublessee acknowledges and agrees that the release set
forth above applies to all claims relating to the Sublease whether those claims
are known or unknown, foreseen or unforeseen. Sublessee hereby waives
application of California Civil Code Section 1542 which reads 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."
8.
Release of
Sublessee. Subject to the performance by Sublessee of all of its
obligations under this Agreement (none of which are released by this section),
as of the Sublease Termination Date, Sublessor, for itself and for its
affiliated corporations, officers, agents, representatives, employees,
attorneys, shareholders, successors in interest, personal representatives,
heirs, assigns and each of them, absolutely, fully and forever releases and
discharges Sublessee and its officers, directors, shareholders, agents,
representatives, employees, servants, attorneys, successors in interest, assigns
and each of them, whether past, present or future, of and from any and all
claims, demands, liabilities, obligations, losses, controversies, costs,
expenses, attorneys' fees and damages of every kind, nature, character or
description whatsoever, whether in law or in equity, and whether known or
unknown, suspected or unsuspected, arising out of, connected with, or in any way
related to the Sublease and Sublessee's occupation of the Premises. Subject to
the performance by Sublessee of all of its obligations under this Agreement,
Sublessor acknowledges and agrees that the release set forth above applies to
all claims relating to the Sublease whether those claims are known or unknown,
foreseen or unforeseen. Sublessor hereby waives application of California Civil
Code Section 1542 which reads 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."
9.
Confidentiality. Sublessee
agrees not to disclose the terms and conditions of this Agreement to any person
or entity other than its attorney, including, but not limited to, the other
tenants of the Building. Nothing contained in this section shall prevent
Sublessee from producing this Agreement in a legal proceeding if such production
is legally required of Sublessee. Sublessee acknowledges and agrees that
it shall be responsible to Sublessor for any damages Sublessor may incur due to
Sublessee's breach of this section.
10.
General. The persons executing
this Agreement on behalf of the parties hereto represent and warrant that they
have the authority to execute this Agreement on behalf of said parties and that
said parties have authority to enter into this Agreement. Sublessor's
obligations under this Agreement are conditioned and contingent upon the
performance by Sublessee of all of its obligations under this Agreement.
This condition is for the sole benefit of Sublessor and may be waived by
Sublessor at any time upon written notice to Sublessee. Sublessor and
Sublessee acknowledge that they have received independent legal advice from
their attorneys with respect to the advisability of executing this
Agreement. If a party files a legal action to enforce this Agreement, the
prevailing party in such action shall be entitled to recover all of its
attorneys' fees and costs. This Agreement contains the entire agreement between
the parties and may only be modified or amended by a writing signed by all
parties. This Agreement is entered into and shall be construed and interpreted
in accordance with the laws of the State of California. The parties hereto
represent and warrant that they have not transferred or otherwise assigned,
either by contract or operation of law, any of the claims released under this
Agreement. Preparation of this Agreement by Sublessor and submission of
same to Sublessee shall not be deemed an offer by Sublessor to enter into this
Agreement. This Agreement shall become binding upon Sublessor only when
fully executed by all parties and when Sublessor has delivered a fully executed
copy of this Agreement to Sublessee.
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11.
Counterparts and
Facsimiles. This Agreement may be executed in one or more
counterparts, which shall be deemed effective upon full execution of this
Agreement by all parties. Each counterpart shall be deemed an original,
but all of which together shall constitute one and the same instrument and
agreement. In addition, a copy of this Agreement executed by a party
hereto and telecopied to the other party shall be deemed to constitute delivery
of an originally executed copy of this Agreement to the other party. A
facsimile signature shall be enforceable to the same extent as an original
signature.
IN
WITNESS WHEREOF, the parties hereby execute this Agreement.
SUBLESSOR:
By: /s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
President &
Chief Financial Officer
SUBLESSEE:
PRECISE
SOFTWARE SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
(print
name)
Its: Director of Corporate
Services
(print
title)
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