Exhibit 10.52
PARTIAL LEASE TERMINATION AGREEMENT
THIS PARTIAL LEASE TERMINATION AGREEMENT (the "Agreement") is made and
entered into effective the 31st day of December, 2001, by and between BOSS
LAKESIDE THREE, LLC, a Delaware limited liability company ("Landlord"), and
XXXXXX TECHNOLOGIES, INC., a Delaware corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord, as landlord, and Tenant, as tenant, entered into
that certain Lease Agreement dated June 30, 1999, as amended by that certain
First Amendment to Lease Agreement dated February 21, 2000, and as further
amended by that certain Consent to Sublease dated June 13, 2001 (such lease,
together with any and all amendments and modifications thereto, is hereinafter
referred to as the "Lease"), relating to certain premises containing
approximately 31,622 rentable square feet of space (the "Premises") in the
building known as Two Lakeside Commons (the "Building") and located at 000
Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx; and
WHEREAS, the Premises consist of 8,163 rentable square feet of space on
the eighth floor of the Building and known as Suite 850 (the "Eighth Floor
Space") and 23,459 rentable square feet of space on the twelfth floor of the
Building and known as Suite 1200 (the "Twelfth Floor Space"); and
WHEREAS, the Term of the Lease relating to the entire Premises is
scheduled to expire on August 31, 2004; and
WHEREAS, Tenant desires that the Lease as it pertains to the Twelfth
Floor Space be canceled and terminated prior to the scheduled expiration date of
the Term of the Lease; and
WHEREAS, Landlord is willing to cancel and terminate that portion of
the Lease as it pertains to the Twelfth Floor Space, upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the payment
of the Termination Fee described below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby agree as follows:
1. CANCELLATION OF LEASE.
(a) In consideration of Landlord's agreement below to cancel and
terminate the Lease as it pertains to the Twelfth Floor Space, Tenant has,
simultaneously with its execution and delivery of this Agreement, (i) paid to
Landlord the sum of Five Hundred Thousand and No/100 Dollars ($500,000.00) (the
"Termination Fee") in certified funds or via wire transfer in accordance with
wire transfer instructions provided by Landlord to Tenant; and (ii) relinquished
any and all claims Tenant has or may have had with respect to and surrendered to
Landlord the
security deposit on account with Landlord in the amount of Forty Six Thousand
Nine Hundred Eighteen Dollars ($46,918.00). Subject to the payment of the
Termination Fee and certain other conditions as set forth herein, Landlord and
Tenant do hereby cancel and terminate the Lease as it pertains to the Twelfth
Floor Space effective as of 11:59 p.m. on December 31, 2001 (the "Effective
Termination Date"). As of the Effective Termination Date, Tenant shall have
leased the Eighth Floor Space only, and from and after said date, any reference
to Premises in the Lease shall mean the Eighth Floor Space.
(b) Upon the full and timely payment of the entire Termination Fee by
Tenant and satisfaction of all of the other terms and conditions of this
Agreement by Tenant, the Lease as it pertains to the Twelfth Floor Space shall
be canceled and terminated, and it is agreed that, except as specifically set
forth in Section 4 of this Agreement, neither Landlord nor Tenant shall have any
further rights, liabilities or obligations under the Lease as it pertains to the
Twelfth Floor Space from and after the Effective Termination Date; provided,
however, nothing contained herein shall be construed as releasing Tenant from
any and all obligations, liabilities and duties contained in the Lease as the
same apply to the Eighth Floor Space. Landlord acknowledges that subsequent to
the execution of this Agreement, it may determine that it has incurred a loss,
damage or injury with respect to the Twelfth Floor Space related to the releases
herein given, but which were unknown or unanticipated at the time of execution
of this Agreement, or that it may have had claim(s) or cause(s) of action which
were unknown or unanticipated at the time of the execution of this Agreement,
and Landlord hereby expressly agrees that, except as specifically set forth in
Section 4 of this Agreement, the releases herein given shall apply to all such
unknown, existing and unanticipated losses, damages, injuries, claims and causes
of action related to the Twelfth Floor Space. Effective as of the Effective
Termination Date, Tenant acknowledges and agrees that Tenant's right to
possession of the Twelfth Floor Space has been validly terminated and Tenant has
given, granted and surrendered, and by these presents does give, grant and
surrender unto Landlord, its successors and assigns, the Twelfth Floor Space and
all the rights, usufruct, title and interest of the Tenant in and to the same.
Effective immediately, Landlord shall have the unencumbered right, but not the
obligation, to enter into a third party lease(s) with respect to the same or any
portion thereof.
2. WARRANTY XXXX OF SALE. Simultaneously with the execution of this
Agreement, as additional consideration for Landlord's willingness to enter into
this Agreement, Tenant shall execute and deliver to Landlord a warranty xxxx of
sale in the form attached hereto as EXHIBIT "A" conveying to Landlord the
furniture, fixtures and equipment presently located in the Twelfth Floor Space
("Tenant's FF&E") as identified in the xxxx of sale.
3. RELEASE BY TENANT. Effective immediately, Tenant, on behalf of
itself and on behalf of any other person or entity claiming through or under
Tenant, does hereby release and forever discharge Landlord, its general partners
and limited partners, and Landlord's and its partners' respective directors,
officers, employees, shareholders, members, managers, agents, assigns,
attorneys, successors, heirs, administrators, executors, representatives, and
all others who may have acted or been claimed to have acted in concert with
Landlord, who are liable or who might be claimed to be liable from any and all
claims, charges, complaints, liabilities, obligations, promises, agreements,
controversies, damages, demands, actions, causes of action or
2
suits of any kind or nature whatsoever, whether they sound in law, equity, tort
or contract which Tenant may have had, now has, or may have against Landlord or
any such other persons or entities arising out of any act or omission of
Landlord under that portion of the Lease as it pertains to the Twelfth Floor
Space or in any way connected with any and all transactions, occurrences, or
other matters relating to that portion of the Lease as it pertains to the
Twelfth Floor Space. Tenant, on behalf of itself and on behalf of any other
person or entity claiming through or under Tenant, does hereby further release
and forever discharge Landlord and Landlord's successors and assigns from the
return of any security deposit, commitment deposit or advance payment of rent
paid to Landlord by Tenant at any time prior to the execution of this Agreement.
Tenant acknowledges that subsequent to the execution of this Agreement, it may
determine that it has incurred a loss, damage or injury related to the releases
herein given, but which were unknown or unanticipated at the time of execution
of this Agreement, or that it may have had claim(s) or cause(s) of action which
were unknown or unanticipated at the time of the execution of this Agreement,
and Tenant hereby expressly agrees that the releases herein given shall apply to
all such unknown, existing and unanticipated losses, damages, injuries, claims
and causes of action or other matters relating to the Lease as it pertains to
the Twelfth Floor Space.
4. CONTINUED LIABILITY OF TENANT. Notwithstanding anything contained
herein to the contrary, Landlord specifically reserves unto itself the right to
pursue a claim for nonpayment of, and Tenant shall remain liable for payment of
and agrees to pay, any sums owing under the Lease as it pertains to the Twelfth
Floor Space, through and including the Effective Termination Date. Without
limiting the generality of the foregoing, Tenant acknowledges and agrees that
the provisions of the Lease with respect to the payment of Additional Rent, as
it pertains to the Twelfth Floor Space, shall survive the termination of that
portion of the Lease as it pertains to the Twelfth Floor Space such that Tenant
shall remain liable and responsible for any amounts due from Tenant in
accordance with the provisions of the that portion of the Lease as it pertains
to the Twelfth Floor Space for the period through and including Effective
Termination Date, but which amounts may not be reconciled until after the
Effective Termination Date. All of the obligations of Tenant set forth in this
Section shall survive the termination of that portion of the Lease as it
pertains to the Twelfth Floor Space and the surrender of the Twelfth Floor
Space. Notwithstanding anything to the contrary contained in this Agreement,
nothing contained herein shall release Landlord or Tenant from any of their
respective obligations, liabilities and duties under the Lease as they pertains
to the Eighth Floor Space, and Landlord and Tenant acknowledge and agree that
the Lease as it pertains to the Eighth Floor Space remains in full force and
effect, and shall remain in full force in effect after the Effective Termination
Date, until such time as the Lease, as it pertains to the Eighth Floor Space,
expires or is earlier terminated in accordance with the terms of the Lease.
5. REPRESENTATIONS AND WARRANTIES OF TENANT. Tenant makes the following
representations and warranties to Landlord with the understanding that such
representations and warranties will be reasonably relied upon by Landlord as an
inducement to enter into this Agreement:
3
(a) Tenant has employed independent attorneys as experts to evaluate
this Agreement and the claims related thereto and have not relied upon any
statement, representation or advice of Landlord or attorneys employed by
Landlord in entering into this Agreement.
(b) No other person or entity has any right, title, or interest in the
Lease, as it pertains to the Twelfth Floor Space or any right, title, interest
or usufruct in the Twelfth Floor Space, Tenant's FF&E or the right of possession
of the Twelfth Floor Space.
(c) This Agreement is the binding obligation of Tenant enforceable in
accordance with its terms.
(d) The person signing this Agreement on behalf of Tenant is duly
authorized to act on behalf of Tenant with respect to this Agreement and the
execution of this Agreement has been duly authorized by all appropriate
corporate action.
(e) Tenant has not made any assignment, sublease, transfer, conveyance,
mortgage, pledge, encumbrance or other disposition of the Lease as it pertains
to the Twelfth Floor Space or any interest thereof or the Twelfth Floor Space or
any portion thereof.
(f) To the best of Tenant's actual knowledge, there are no outstanding
bills incurred by Tenant or any other party under Tenant's control or claiming
under Tenant for labor and materials used in making improvements to or repairs
within or about the Twelfth Floor Space or for services of architects,
surveyors, or engineers incurred in connection therewith, other than as are
disclosed to Landlord in writing on or before the Effective Termination Date
(all of which Tenant covenants to pay in a timely manner so as to insure that no
liens or encumbrances are attached to the Twelfth Floor Space or the Building or
any portion thereof as a result thereof), and Tenant hereby further agrees to
hold Landlord harmless from any and all claims, liens or encumbrances arising
out of any such bills or labor, materials or such services incurred in
connection with the Twelfth Floor Space (all of the foregoing obligations to
survive the termination of the Lease as it pertains to the Twelfth Floor Space).
(g) There is no outstanding indebtedness for affixed equipment,
appliances or other fixtures located on or attached to the Twelfth Floor Space
by Tenant or others claiming under Tenant.
6. REPRESENTATIONS AND WARRANTIES OF LANDLORD. Landlord makes the
following representations and warranties to Tenant with the understanding that
such representations and warranties will be reasonably relied upon by Tenant as
an inducement to enter into this Agreement:
(a) Landlord has employed independent attorneys as experts to evaluate
this Agreement and the claims related thereto and have not relied upon any
statement, representation or advice of Tenant or attorneys employed by Tenant in
entering into this Agreement.
4
(b) This Agreement is the binding obligation of Landlord enforceable in
accordance with its terms.
(c) The person signing this Agreement on behalf of Landlord is duly
authorized to act on behalf of Landlord with respect to this Agreement and the
execution of this Agreement has been duly authorized by all appropriate
corporate action.
(d) The Lease has not been modified or amended in any respect other
than as set forth herein.
(e) To the best of Landlord's actual knowledge, there are no existing
defaults under the Lease, and there is no condition or state of fact which but
for the giving of notice or the running of grace periods, or both, would
constitute a default by Tenant under the Lease.
7. ATTORNEYS' FEES. In the event any party(ies) to this Agreement
chooses to enforce any provision of this Agreement, the successful party(ies) in
such litigation shall be entitled to an award of the costs and expenses
associated with such litigation, including reasonable attorneys' fees actually
incurred.
8. FORUM AND JURISDICTION SELECTION CLAUSE. The parties hereto, to the
extent they may lawfully do so, hereby submit to the jurisdiction of any State
or Federal Court located in or having jurisdiction over Xxxxxx County, Georgia,
as well as to the jurisdiction of all courts from which an appeal may be taken
from the aforesaid courts for the purpose of any suit, action, or other
proceedings arising out of any of the parties' obligations under or with respect
to this Agreement and the parties hereto expressly waive any and all objections
that said parties may have as to jurisdiction and/or venue in any such courts.
9. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties hereto and no waiver, modification or amendment of this Agreement
shall be valid unless it is in writing and signed by the parties hereto. The
parties to this Agreement represent and acknowledge that in executing this
Agreement the parties hereto do not rely and have not relied upon any
representation or statement made by the other or by any of the other's agents,
representatives or attorneys with regard to the subject matter, basis or effect
of this Agreement or otherwise.
10. BINDING EFFECT; GOVERNING LAW. This Agreement shall be binding upon
and inure to the benefit of all the parties hereto and their respective heirs,
administrators, representatives, executors, successors and assigns. This
Agreement is made and entered into in the State of Georgia and shall in all
respects be interpreted, enforced and governed under the laws of the said state.
11. MISCELLANEOUS. Should any provision of this Agreement require
judicial interpretation, it is agreed that the court interpreting or construing
this Agreement shall not construe it against one party more strictly by reason
of the rule of construction that a document is to be construed more strictly
against the party who itself or through its agent prepared such
5
document, it being agreed that the agents of all parties have participated in
the preparation of this Agreement, and that all parties were afforded adequate
opportunity to consult legal counsel prior to execution of this Agreement.
Whenever possible, each provision of this Agreement shall be interpreted in such
a manner as to be effective and valid under applicable law, but if any provision
hereof shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining provisions of this Agreement.
Except as hereinabove provided, all other terms and conditions of the Lease
shall remain unchanged and in full force and effect, and are hereby ratified and
confirmed by the parties hereto. Tenant hereby acknowledges and agrees that, as
of the date hereof, the Lease, as it applies to the Eighth Floor Space is
subject to no offsets, claims, counterclaims or defenses of any nature
whatsoever. This Agreement may be executed in multiple counterparts, each of
which shall be considered to be an original document. The paragraph captions are
inserted for convenience only and are in no way intended to describe, interpret,
define or limit the scope or context of this Agreement or any provisions hereof.
All terms used herein and denoted by their initial capitalization shall have the
same meanings as set forth in the Lease unless set forth herein to the contrary.
Time is of the essence of this Agreement.
IN WITNESS WHEREOF, Landlord and Tenant have set their hands and
affixed their seals effective as of the date first above written.
LANDLORD:
BOSS Lakeside Three, LLC, a Delaware limited liability company
By: Adirondack Lakeside 1998, LLC,
its duly authorized agent and member
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Its: Managing Director
TENANT:
Xxxxxx Technologies, Inc., a Delaware corporation
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Print Name: Xxxxxxx Xxxxx
Its: Vice President
Attest: /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Print Name: Xxxxxxxx Xxxxxxx
[CORPORATE SEAL]
6
EXHIBIT "A"
XXXX OF SALE
THIS XXXX OF SALE is made and entered into as of the 31st day of
December, 2001, by and between XXXXXX TECHNOLOGIES, INC., a Delaware corporation
("Xxxxxx"), and BOSS LAKESIDE THREE, LLC, a Delaware limited liability company
("Boss").
W I T N E S S E T H :
For and in consideration of the sum of Ten and No/100 Dollars ($10.00),
the early partial termination of the Lease between Xxxxxx and Boss, the
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties hereto,
Xxxxxx hereby sells, transfers, grants, conveys, and assigns to Boss all of the
right, title, interest, and benefit of Xxxxxx in and to all of the personal
property, furniture, fixtures and equipment presently located at 000 Xxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 and listed on Exhibit 1 to this Xxxx
of Sale (collectively, the "Tenant's FF&E").
Xxxxxx does hereby warrant and represent that Xxxxxx is the owner of
the Tenant's FF&E free of all encumbrances and has full right, power, and
authority to bargain, sell, assign, transfer and deliver the Tenant's FF&E to
Boss. Xxxxxx will warrant and forever defend the right and title to said
Tenant's FF&E unto Boss against the claims of all persons.
Boss acknowledges that it has inspected the Tenant's FF&E, it knows the
location and condition of the Tenant's FF&E, that it accepts Tenant's FF&E in
its "AS-IS, WHERE IS" condition and Boss hereby waives all right of any claim
whatsoever related to the condition of Tenant's FF&E. Further, except as
expressly set forth of above regarding Daleen's title to the Tenant's FF&E,
Xxxxxx makes no representations or warranties with respect to the Tenant's FF&E,
including, without limitation, a warranty of fitness or merchantability.
This Xxxx of Sale shall be governed by, and construed under, the laws
of the State of Georgia, and shall inure to the benefit of, and be binding upon,
the respective heirs, legal representatives, successors, and assigns of the
parties hereto.
7
IN WITNESS WHEREOF, Xxxxxx has caused this instrument to be executed
under seal the day and year first above written.
XXXXXX:
Xxxxxx Technologies, Inc.,
a Delaware corporation,
Subscribed and sworn to before
me this 7th day of January. By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
/s/ Xxxxxxxx Xxxxxxx Title: Vice President
----------------------------------
Notary Public
Commission Expiration Date: 2005
8
