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EXHIBIT 10.45
TERMINATION OF LEASE
THIS TERMINATION OF LEASE ("Termination") is made and entered into
this 3rd day of January, 2000, by and between Baytech Associates, a California
general partnership (the "Baytech"), and Verilink Corporation, a Delaware
corporation (the "Verilink").
RECITALS:
A. Baytech and Verilink are parties to that certain Lease dated
February 27, 1986 as amended by First Amendment to Lease dated as of January
22, 1987, Second Amendment to Lease dated April 30, 1996, and Third Amendment
to Lease (the "Baytech Drive Lease"), for the real property located at 145
Baytech Drive, San Jose, California, including the building, additions,
enlargements and improvements located thereon (the "Baytech Drive Property").
B. Baytech and Verilink are parties to that certain Sublease dated
August ___, 1999 (the "Nortech Drive Lease"), for the real property located at
161 Nortech Drive, San Jose, California, including the building, additions,
enlargements and improvements located thereon (the "Nortech Drive Property").
The Baytech Drive Lease and the Nortech Drive Lease shall be referred to
together herein as the "Leases". The Baytech Drive Property and the Nortech
Drive Property shall be referred to together herein as the "Leased Property".
C. Verilink advanced certain funds to Baytech as evidenced by that
certain Promissory Note dated February 9, 1999, in the original principal
amount of $500,000.00 from Baytech in favor of Verilink (the "Promissory
Note").
D. Baytech and Verilink desire to terminate the Leases on the terms
and conditions set forth below.
AGREEMENT:
1. TERMINATION DATE. Subject to the payment by Verilink of the
Termination Fee, as hereinafter defined, the Leases shall be terminated and
cancelled on December 31, 1999 (the "Termination Date").
2. TERMINATION FEE. Verilink shall pay to Baytech the sum of One
Million One Hundred Eight-Nine Thousand One Hundred Eighty Dollars
($1,189,180.00) on the Termination Date. Concurrently with payment of the
Termination Fee, Verilink shall return the original Promissory Note to Baytech
marked paid.
3. TERMINATION OF VERILINK'S OBLIGATIONS. All of Verilink's
obligations under the Leases, including the obligations to pay base rent,
additional rent, and the costs of utilities, taxes and insurance shall continue
to the Termination Date. Except as otherwise specified in this Termination of
Lease, all of Verilink's obligations under the Leases shall terminate on the
Termination Date. On the Termination Date Verilink shall fully remove itself
and all of its personal property, including without limitation, all inventory,
equipment and supplies owned by Verilink, and Verilink shall on such date leave
the Nortech Drive Property broom clean and in good condition and repair
reasonable wear and tear excepted. The Baytech Drive Property shall be
surrendered in accordance with the terms and conditions of Paragraph 14 of the
Baytech
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Drive Lease. Verilink shall repair all damage caused by removal of any of its
property from both the Nortech Drive Property and the Baytech Drive Property
and Verilink shall remove all signs and repair all damage to original
condition. Nothing herein shall relieve Baytech or Verilink from any of their
respective obligations under the Leases to indemnify each other as to matters
arising prior to the Termination Date, and all such obligations shall survive
the termination of the Leases.
4. TERMINATION OF BAYTECH'S OBLIGATIONS. Except as provided in
Paragraph 3 above, all of Baytech's obligations under the Leases shall
terminate upon the Termination Date.
5. WARRANTIES AND REPRESENTATIONS.
(a) Baytech hereby warrants and represents to Verilink, and Verilink
hereby warrants and represents to Baytech, that it has the power and authority
to enter into and carry out the terms and provisions of this Agreement, and
that no consent or approval of any third party is required to accomplish the
same.
(b) Verilink hereby warrants and represents to Baytech that Verilink
has not previously granted any other party any right to occupy the Leased
Property or any portion thereof, by means of a lease or otherwise, and Verilink
has not assigned, transferred or otherwise encumbered Verilink's interest in
the Leases or any portion thereof.
(c) Baytech hereby warrants and represents to Verilink, and Verilink
hereby warrants and represents to Baytech, that it is the sole and lawful owner
of all right, title and interest, in and to all of the Released Matters (as
hereinafter defined) and that it has not heretofore voluntarily, by operation
of law or otherwise, assigned or transferred to any person whomsoever any
Released Matter or any part or portion thereof.
6. TERMINATION AND MUTUAL GENERAL RELEASE.
(a) As of the Termination Date, provided that Verilink has fully and
timely performed all of its obligations under this Agreement, Verilink and
Baytech shall be deemed to have no further rights or obligations under the
Lease, except as provided in Paragraph 3 above. As of the Effective Date and
except with respect to the obligations created by, acknowledged, or arising out
of this Agreement, Baytech, on the one hand, and Verilink, on the other hand,
do hereby for themselves and their respective legal successors and assigns,
release and absolutely and forever discharge each other and their respective
shareholders, officers, directors, partners, employees, agents, real estate
brokers, attorneys, legal successors and assigns, of and from any and all
claims, demands, damages, debts, liabilities, accounts, reckonings,
obligations, costs, expenses, liens, actions and causes of action of every kind
and nature whatsoever, whether now known or unknown, suspected or unsuspected
which either now has, owns or holds or at any time heretofore ever had, owned
or held or could, shall or may hereafter have, own or hold against the other
based upon or arising out of any matter, cause, fact, thing, act or omission
whatsoever occurring or existing at any time to and including the date hereof,
and relating in any way to the Leases, and/or the Leased Property (all of which
are hereinafter referred to as and included within the "Released Matters"). The
Released Matters shall not include any indemnification under the terms of the
Leases concerning any cause of action which is covered
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by such indemnification and which may have arisen prior to the Termination
Date, nor shall it release Verilink from its obligation to surrender possession
of the Leased Property in accordance with the terms of this Agreement and
otherwise as required by the terms of the Leases. It is the intention of the
parties in executing this Agreement and in paying and receiving the
consideration called for by this Agreement that this Agreement shall be
effective as a full and final accord and satisfaction and mutual general
release of and from all Released Matters.
(b) In furtherance of the intentions set forth herein, each of the
parties acknowledges that it is familiar with Section 1542 of the Civil Code of
the State of California which provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him must
have materially affected his settlement with the debtor."
Each of the parties waives and relinquishes any right or benefit which it has
or may have under Section 1542 of the Civil Code of the State of California or
any similar provision of the statutory or nonstatutory law of any other
jurisdiction, to the full extent that it may lawfully waive all such rights and
benefits pertaining to the subject matter of this Agreement. In connection with
such waiver and relinquishment, each of the parties acknowledges that it is
aware that it or its attorneys or accountants may hereafter discover claims or
facts in addition to or different from those which it now knows or believes to
exist with respect to the subject matter of this Agreement or the other party
hereto, but that it is its intention hereby fully, finally and forever to
settle and release all of the Released Matters, whether known or unknown,
suspected or unsuspected, which now exist, may exist or heretofore have existed
between Baytech, on the one hand, and Verilink, on the other hand, relating in
any way to the Leases and/or the Leased Property, except as otherwise expressly
provided herein. In furtherance of this intention, the releases herein given
shall be and remain in effect as full and complete mutual releases
notwithstanding the discovery or existence of any such additional or different
claim or fact.
7. MISCELLANEOUS.
(a) BINDING EFFECT. This Agreement shall be binding on and inure to
the benefit of the parties and their heirs, personal representative, successors
and, assigns.
(b) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without regard to its
conflict of laws principles.
(c) ENTIRE AGREEMENT AND MODIFICATION. This Agreement contains the
entire agreement between the parties hereto and supersedes all prior and
contemporaneous representations and statements between the parties, whether
written or oral. Each party hereto warrants and represents to the other party
that this Agreement is the entire agreement between the parties hereto
concerning the subject matter hereof. This Agreement may not be modified except
in a writing signed by all parties.
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(d) FURTHER DOCUMENTS. Each party agrees to promptly execute,
acknowledge and deliver any and all further documents and instruments necessary
or property to effectuate the purpose of this Agreement.
(e) TIME OF ESSENCE. Time is of the essence in the performance of
all provisions of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, which when taken together shall constitute one and the same
instrument. The parties contemplate that they may be executing counterparts of
the Termination transmitted by facsimile and agree and intend that a signature
by facsimile machine shall bind the party so signing with the same effect as
though the signature were an original signature.
(g) ATTORNEYS FEES. If either party hereto fails to perform any of
its obligations under this Agreement or if a dispute arises between the parties
hereto concerning the meaning or interpretation of any provision of this
Agreement, then the defaulting party or the party not prevailing in such
dispute shall pay any and all costs and expenses incurred by the other party on
account of such default and/or in enforcing or establishing its rights
hereunder, including, without limitation, court costs and attorneys' fees and
disbursements. Any such attorneys' fees and other expenses incurred by either
party in enforcing a judgment in its favor under this Agreement shall be
recoverable separately from and in addition to any other amount included in
such judgment, and such attorneys' fees obligation is intended to be severable
from the other provisions of this Agreement and to survive and not be merged
into any such judgment.
IN WITNESS WHEREOF, the parties have executed this Termination as of
the day and year first written above.
Baytech Associates, a California general Verilink Corporation, a Delaware
partnership corporation
By: /s/ Leigh S. Belden By: /s/ C. W. Smith
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Its: General Partner Its: VP and Corporate Controller
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