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EXHIBIT 10.17
SETTLEMENT AND SUBLEASE MODIFICATION AGREEMENT
THIS SETTLEMENT AND SUBLEASE MODIFICATION AGREEMENT, dated as of the 8th
day of September, 1998, by and between XXXXX INDUSTRIES, INC. ("Xxxxx"), and
DIGITAL COMMERCE CORPORATION ("Digital"), recites and provides as follows:
Recitals
X. Xxxxx has alleged that Digital is in default of its obligations under
a certain Sublease Agreement, dated June 25, 1996 (the "Sublease"), between
Xxxxx and Digital and has instituted a suit against Digital in a case styled
Xxxxx Industries, Inc. v. Digital Commerce Corporation. At Law No. 163309 (the
"Lawsuit"), currently pending in the Circuit Court for Fairfax County, Virginia.
B. Digital denies that it is in default under the Sublease.
X. Xxxxx and Digital recognize that continued litigation is uncertain and
will be costly and wish to resolve all disputes asserted in the Lawsuit and
enter into a Sublease modification and mutual release under the terms and
conditions as more fully set forth herein.
Agreement
NOW, THEREFORE, for and in consideration of the foregoing recitals and the
mutual promises herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally and equitably bound, hereby covenant and agree as
follows:
I. Modification of Sublease.
The Sublease is hereby modified as follows:
A. Section 26 is deleted in its entirety.
B. Section 1(a) shall be modified by (i) deleting the reference to 21,630
rentable square feet and substituting 11,484 rentable square feet [which
includes the building core factor] (the "New Demised Premises" and (ii) deleting
Exhibit A and substituting Exhibit A-1 in its place.
C. Section 3 shall be modified by (i) deleting the references to Eighteen
Dollars and Fifty Cents ($18.50) and rentable square feet (21,630) and
substituting Twenty-two Dollars and Sixty Cents ($22.60) and rentable square
feet of 11,484 in their place and (ii) deleting the references to "rent for the
Demised Premises, $15.63" and "Virginia Sales Tax,
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$0.12" and substituting "rent for the Demised Premises, $19.85" and "Virginia
Sales Tax, $0.12" in their place.
D. Section 4 shall be modified by deleting the reference to Exhibit D.
E. Section 7 of the Sublease is deleted in is entirety and replaced with
the following:
7. Deposit. Upon execution of this Sublease, Sublessee shall deposit, or
cause to be deposited with Sublessor the sum of two (2) month's Base
Rent (which Base Rent the parties agree is $21.628.20 per month). The
deposit provided herein shall be considered as partial security for
the payment and performance by Sublessee of all of Sublessee's
obligations, covenants, conditions and agreements under this Sublease.
The deposit shall be held by Sublessor for the duration of the
Sublease Term; provided, however, that upon any default by Sublessee
under this Sublease, which default continues for a period of more that
fifteen (15) days after notice thereof from Sublessor to Sublessee,
Sublessor shall be entitled to offset the deposit in such amounts as
may be necessary to cure such default. Upon any draw by Sublessor of
the deposit in accordance with the foregoing sentence, Sublessor shall
have the right to demand that Sublessee provide additional deposits,
to bring such deposit back up to its original amount. Upon expiration
of the Sublease Term, the security deposit, less any legitimate claims
of Sublessor against Sublessee with respect to this Sublease, shall be
refunded and returned to Sublessee within thirty (30) days.
E. Section 15 of the Lease is deleted in its entirety and replaced with
the following:
15. Signage. The Subleasee shall have the right at its sole expense, to
install signage on the east side of the building viewable from the
Dulles Access Road and Virginia Route 267, subject to written consent
by Lessor and to any governmental restrictions. Sublessee shall be
solely responsible for the costs of installing the signage.
The foregoing changes shall be deemed effective as of October 1, 1998. All other
terms of the Sublease shall remain in full force and effect.
II. By the close of business September 30, 1998, Digital shall vacate
approximately 10,146 rentable square feet (including the building core factor)
of the Fourth Floor so that as of October 1, 1998, it shall occupy the New
Demised Premises.
III. Consent Judgment. Upon execution and delivery of this Agreement,
Digital shall deliver a Consent Judgment Order in favor of Xxxxx in the form of
Exhibit A attached hereto and made a part hereof. The Consent Judgment Order
will be signed by Digital and it's counsel and
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held by the law firm of McGuire, Woods, Battle & Xxxxxx, L.L.P., in escrow,
subject to the terms of this Agreement. In the event of the occurrence of an
event of default under the Lease which continues for a period of more than
fifteen (15) days after notice of such event of default is delivered to Digital,
or in the event of the occurrence of more than two (2) events of default under
the Lease during any twelve (12) month period, then McGuire, Woods, Battle &
Xxxxxx, L.L.P., may release the Consent Judgment Order from escrow and submit
such order to the Court for entry.
IV. Releases.
(a) Digital hereby releases and forever discharges Xxxxx and each of
its predecessors, assigns, agents, representatives, attorneys, and all persons
acting by, through, under, or in concert with any of them (collectively "Xxxxx
Releasees") or any of them, from all actions, causes of action, suits, debts,
liens, contracts, agreements, obligations, promises, liabilities, claims,
rights, demands, damages, controversies, losses, costs, and expenses of any
nature whatsoever, known or unknown, suspected or unsuspected, fixed or
contingent ("Claim" or "Claims"), that Digital now has, owns, holds, claims to
have, claims to own, or claims to hold, or any time heretofore had, owned, held,
claimed to have, claimed to own, or claimed to hold against the Xxxxx Releasees
related to or arising out of the Lawsuit or the Lease, or any actions of any of
the Xxxxx Releasees taken in connection therewith. This Release shall not apply
to any obligations under this Agreement or the Consent Judgment Order, to any
obligation or liability of Digital under the Sublease arising hereafter, or any
other agreement not referenced herein.
(b) Xxxxx hereby releases and forever discharges Digital and each of
its predecessors, assigns, agents, representatives, attorneys, and all persons
acting by, through, under, or in concert with any of them (collectively "Digital
Releasees") or any of them, from all actions, causes of action, suits, debts,
liens, contracts, agreements, obligations, promises, liabilities, claims,
rights, demands, damages, controversies, losses, costs, and expenses of any
nature whatsoever, known or unknown, suspected or unsuspected, fixed or
contingent ("Claim" or "Claims"), that Xxxxx now has, owns, holds, claims to
have, claims to own, or claims to hold, or any time heretofore had, owned, held,
claimed to have, claimed to own, or claimed to hold against the Digital
Releasees related to or arising out of the Lawsuit or the Lease, or any actions
of any of the Digital Releasees taken in connection therewith. This Release
shall not apply to any obligations under this Agreement, to any obligation or
liability of Xxxxx under the Sublease arising hereafter, or any other agreement
not referenced herein.
V. Dismissal of Suit. Upon receipt of the Deposit and the Consent
Judgment Order, Xxxxx will cause its counsel to execute a consent dismissal
order dismissing the Lawsuit with prejudice and ordering the Clerk to release
the remaining cash bond to Xxxxx, which cash shall be applied to meet Digital's
Deposit obligation hereunder, and will cause their counsel to return such
dismissal order to Stauffer, Mannix, Rommel, Xxxxxx & Xxxxxx, L.L.C., counsel
for Digital, for entry with the Court. The form of dismissal order to be
executed and delivered shall be in the form of Exhibit B, attached hereto and
made a part hereof.
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VI. Successors. This Agreement shall be binding upon the heirs,
administrators, executors, successors and assigns of each party hereto.
VII. Further Assurances. Each party hereto, without further consideration,
agrees to execute and deliver such other documents and take such other action as
may be necessary to consummate this Agreement.
VIII. Miscellaneous.
(a) All notices, requests, demands and other communications with
respect hereto shall be in writing and shall be delivered by hand, sent prepaid
by Federal Express (or a comparable overnight delivery service), sent by the
United States mail, certified, postage prepaid, return receipt requested, or
sent by facsimile (with the original sent by United States mail, certified,
postage prepaid, return receipt requested), in accordance with the following:
If to Xxxxx, at-
Xxxxx Industries, Inc.
c/o M. Xxxxxxx Xxxxxxxx, Esquire
McGuire, Woods, Battle & Xxxxxx, L.L.P.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000-0000
If to Digital, at-
Digital Commerce Corporation
00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxx Xxxxxx
Any notice, request, demand or other communication delivered or sent in the
manner aforesaid shall be deemed given or made (as the case may be) upon the
earliest of (1) the date it is actually received, (2) on the business day after
the day on which it is delivered by hand, or is delivered to Federal Express (or
a comparable overnight delivery service), or is sent by facsimile, or (3) on the
third business day after the day on which it is deposited in the United States
mail, certified, postage prepaid. Any party may change such party's address by
notifying the other parties of the new address in any manner permitted by this
subsection.
(b) The section headings used in this Agreement are intended solely
for convenience of reference and shall not in any manner amplify, limit, modify
or otherwise be used in the interpretations of any of the provisions hereof.
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(c) This Agreement may be executed with multiple signature pages in one or
more counterparts, and fully executed counterparts shall be considered one and
the same Agreement. This Agreement shall become a binding agreement when a fully
executed counterparts are received by counsel for each of the parties hereto.
(d) This Agreement shall be construed in accordance with the laws of the
Virginia.
(e) The Parties entering into this Agreement expressly represent that they
have direct and express authority to execute this Agreement in accordance with
the above terms.
(f) This Agreement contains the entire agreement of the parties. No
representations, inducements, promises, or agreements not set forth herein shall
have any force or effect. This Agreement can only be modified in writing signed
by all parties.
[Signatures on following page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
intending to be bound thereby as of the day, month and year first above written.
XXXXX INDUSTRIES, INC.
By: [SEAL]
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Name:
Title:
DIGITAL COMMERCE CORPORATION
By: [SEAL]
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Name: Xxxx Xxxxxx
Title: President & CEO
