Exhibit
10.1


 


LEASE TERMINATION AGREEMENT


THIS
LEASE TERMINATION AGREEMENT (this “Agreement”) is entered into as of
this 23rd day of August, 2007, by and between BIOMED REALTY, L.P., a Maryland
limited partnership (“Landlord”) and INFOSONICS CORPORATION, a Maryland
corporation (“Tenant”).


RECITALS


A.            WHEREAS, The Lichter Family Trust First Amended and Restated Declaration of Trust
Dated November 7, 1996 and The Satterlee Family Trust UTD April 24, 1986
(collectively “Original Landlord”), and Tenant are parties to that
certain Building Lease Agreement dated as of January 26, 2004 (as amended, the “Lease”)
which pertains to the leasing of approximately 31,925 square feet of that
certain building located at 5880 Pacific Center Blvd., San Diego, California
92121 (the “Building”) and associated land and other improvements;


B.            WHEREAS, Landlord has contracted to acquire ownership of the Building and
associated land and other improvements from the Original Landlord and thereby
succeed Original Landlord as the landlord under the Lease (the “Contemplated
Acquisition”) as more particularly described in that certain Purchase and
Sale Agreement dated July 17, 2007 between Original Landlord, as Seller, and
Landlord, as Purchaser (the “Purchase Agreement”);


C.            WHEREAS, conditioned upon the closing of the Contemplated Acquisition, Landlord
and Tenant desire to terminate the Lease in accordance with the
following provisions.


AGREEMENT


NOW,
THEREFORE, Landlord and Tenant, in consideration of the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound, agree as follows:


1.             Termination Date.  The termination date of the Lease shall be September
30, 2007 (the “Termination Date”).


2.             Termination of
Lease.  The parties hereby terminate
the Lease as of the Termination Date, and on the Termination Date the Lease
shall be fully and finally surrendered and terminated and shall no longer be of
any force or effect, except for those provisions that, by their express terms,
survive the expiration or earlier termination thereof.


3.             Termination Payment.    As consideration for the execution of this
Agreement, Landlord shall pay to Tenant the sum of Two Million One Hundred Forty-Seven
Thousand Dollars ($2,147,000) (the “Termination Payment”) upon the
Closing (as defined in the Purchase Agreement) of the Contemplated Acquisition.


4.             Release of Liability.  Conditioned on the performance by the parties
of the provisions of this Agreement, Landlord and Tenant fully and unconditionally
release, cancel,


 


 

















 


annul, rescind, discharge,
disclaim, waive and release any and all rights and benefits it may have under
the Lease arising from and after the Termination Date, except for those provisions
that, by their express terms, survive the expiration or earlier termination
thereof. In connection with this Section 4, each of Landlord and Tenant
expressly waives the benefits of Section 1542 of the California Civil Code,
which provides 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.”  LANDLORD AND TENANT EACH ACKNOWLEDGES
AND AGREES THAT IT HAS BEEN REPRESENTED BY LEGAL COUNSEL OF ITS CHOICE IN
CONNECTION WITH THIS AGREEMENT, AND THAT SUCH COUNSEL HAS EXPLAINED TO IT THE
PROVISIONS OF THIS SECTION 4.  BY
INITIALING BELOW, LANDLORD AND TENANT EACH CONFIRMS IT HAS AGREED TO THE
PROVISIONS OF THIS SECTION 4.


LANDLORD’S INITIALS:                          TENANT’S INITIALS:                                


 


5.             Quitclaim.  To the extent, if any, that the Lease gives
Tenant any right, title or interest in or to the Premises, Tenant does hereby
remise, release and quitclaim to Landlord such right, title or interest in or
to the Premises and shall execute and deliver to Landlord any documentation
reasonably requested by Landlord to effect or document such remise, release and
quitclaim.


6.             Condition of
Premises.  Prior to the Termination
Date, Tenant shall surrender the Premises to Landlord in the condition required
by the Lease upon termination.


7.             Security Deposit.  The Security Deposit (as defined in the Lease)
shall be released to Tenant in accordance with the provisions of the Lease.


8.             Representation of Parties.  Each party represents that it has not made
any assignment, sublease, transfer, conveyance or other disposition of the
Lease or any interest therein, nor made or entered into any agreement that
would result in any mechanic’s lien or other claim, demand, obligation,
liability, action or cause of action arising from or with respect to the Lease
or the Premises (other than that certain sublease between Tenant, as
sublandlord, and Artes Medical Inc., as subtenant, dated as of June 1, 2005).


 


2

















 


9.             Condition
Precedent.   This Agreement shall not
be effective until, and it shall be a condition precedent to the effectiveness
of this Agreement that, the Closing (as defined in the Purchase Agreement) of
the Contemplated Acquisition between Original Landlord and Landlord shall have
occurred and that the Termination Payment shall have been made to the Tenant.   If the Closing of the Contemplated
Acquisition does not occur by September 15, 2007, this Agreement shall become
null and void.


10.           Miscellaneous.


a.             Voluntary
Agreement.  The parties have read
this Agreement and the mutual releases contained in it, and have freely and
voluntarily entered into this Agreement.


b.             Attorneys’
Fees.  If either party commences an
action against the other party arising out of or in connection with this
Agreement, the prevailing party shall be entitled to recover from the losing party
reasonable attorneys’ fees and costs of suit.


c.             Successors.  This Agreement shall be binding on and inure
to the benefit of the parties and their successors and assigns.


d.             Counterparts.  This Agreement may be executed in
one or more counterparts that, when taken together, shall constitute one
original.


e.             Governing
Law.  This Agreement shall be governed by the law of the State of California.


f.              Severability.  If a court of competent jurisdiction finds
any provision in this Agreement to be invalid, illegal, or otherwise
unenforceable, that determination will not affect any other provision of this
Agreement.  The invalid provision will be
severed from this Agreement and all remaining provisions will continue to be enforceable
by its terms and of full force and effect.


g.             Defined Terms. 
Capitalized terms not otherwise defined herein shall have the meanings
given them in the Lease.


[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]


 


3

















 


IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day
hereinabove first written.


LANDLORD:


BIOMED REALTY, L.P.


a Maryland
limited partnership


 


 


	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Gary A Kreitzer

  	
   

  	
   

  
	
  Its:

  	
  Executive VP

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TENANT:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  INFOSONICS
  CORPORATION

  	
   

  	
   

  
	
  a Maryland corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Jeff Klausner

  	
   

  	
   

  
	
  Its:

  	
  CFO