Exhibit 10.78
LEASE TERMINATION AGREEMENT
THIS LEASE TERMINATION AGREEMENT (this "Agreement") is made and entered
into this 30th day of July, 2002 by and between Enterprise Dulles, LLC, a
Virginia limited liability company ("Landlord"), and Xxxxxxxxx.xxx, Inc., a
Delaware corporation ("Tenant"). RECITALS
A. By Deed of Lease dated August 1, 1999 (the "Lease"), Landlord leased to
Tenant, and Tenant rented from Landlord, certain premises known as Suites 103
and 110, located at 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx, and
containing 13,530 rentable square feet (the "Premises"), as more particularly
described in the Lease, upon the terms and conditions set forth therein. The
Lease is incorporated herein by this reference.
B. The Term of the Lease expires on November 30, 2004.
C. Tenant wishes to terminate the Lease and its leasehold interest in and
to the Premises effective as of September 30, 2002.
D. Landlord has agreed to such early termination provided that Tenant pays
Landlord (i) all settlement and other payments set forth hereinbelow, and (ii)
all rent due Landlord under the Lease up to and including September 30, 2002,
and Tenant has agreed to pay all such payments and all such rent through
September 30, 2002, all in accordance with this Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
contained herein and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be bound legally and equitably, hereby covenant and agree as follows:
1. Recitals; Capitalized Terms. The Recitals are hereby incorporated by
reference and made a substantive part of this Agreement. Capitalized terms not
defined in this Agreement shall have the meanings set forth in the Lease.
2. Termination of Lease. Subject to the provisions of this Agreement, the
Lease shall be terminated, and all right, title and interest of Tenant
thereunder regarding the Premises shall cease, as of 11:59 p.m. on September 30,
2002 ("Surrender Date"). Except as otherwise provided to the contrary in this
Agreement or the Lease, as of the Surrender Date, neither party shall have any
further rights or obligations under the Lease.
3. Payment of Rent. Tenant shall continue to pay and remain liable for all
Base Rent and Additional Rent due under the Lease for the Premises up to and
including the Surrender Date. As a condition precedent to the termination of the
Lease, Tenant shall pay Landlord, upon Tenant's execution of this Agreement, the
following rental amounts: (a) $4,234.27 representing rent (Base Rent and
Additional Rent) currently due and owing by Tenant to Landlord under the Lease
as of the date hereof; (b) $22,988.11 representing Base Rent and Additional Rent
due for the month of August, 2002; and (c) $22,988.11 representing Base Rent and
Additional Rent due for the month of September, 2002. Such rental amounts shall
be paid in the form of a cashier's or treasurer's check or by wire transfer of
immediately available federal funds.
4. Settlement Payment. As a condition precedent to the termination of the
Lease, and in consideration for Landlord's agreement to the early termination of
the Lease and Landlord's agreement to release Tenant from its obligations under
the Lease from and after the Surrender Date, Tenant shall pay Landlord (or a
title company selected by Landlord), within five (5) business days of the date
of the consummation of the Tenant's closing on the pending asset sale of the
Tenant ("Asset Sale Closing Date), the settlement amount of $355,382.72, either
in the form of a cashier's or treasurer's check or by wire transfer of
immediately available federal funds. Tenant shall notify Landlord, in writing,
of the consummation of such asset sale closing on the Asset Sale Closing Date.
5. Forfeiture of Security Deposit. Tenant acknowledges that Landlord is
currently holding, pursuant to the terms of the Lease, a security deposit in the
form of a Standby Letter of Credit in the current face amount of $60,000.00 (the
"Letter of Credit Security Deposit"). As a condition precedent to the
termination of the Lease, and in consideration for Landlord's agreement to the
early termination of the Lease and Landlord's agreement to release Tenant from
its obligations under the Lease from and after the Surrender Date, the said
Security Deposit shall irrevocably be forfeited by Tenant and set over to
Landlord; provided, however, that in lieu of Landlord drawing down on the Letter
of Credit Security Deposit, Tenant shall pay Landlord, within five (5) business
days of the Asset Sale Closing Date, the amount of $60,000.00, either in the
form of a cashier's or treasurer's check or by wire transfer of immediately
available federal funds. Provided that Tenant surrenders and vacates the
Premises on or before the Surrender Date pursuant to the terms hereof and in the
condition required by the terms of the Lease, Landlord shall return the Letter
of Credit Security Deposit to Tenant in accordance with the terms of Article 6
of the Lease.
6. Surrender of Premises. Tenant shall vacate and surrender the Premises on
or before the Surrender Date and shall remove all property therefrom and
peaceably and quietly leave, surrender and yield up to the Landlord the Premises
in the condition required by the terms of the Lease. Any provision of this
Agreement to the contrary notwithstanding, if Tenant fails to surrender the
Premises as required by Sections 2 and 6 hereof, then, although the termination
of the Lease shall remain effective, (a) Tenant shall be deemed to be a
hold-over tenant beyond the termination of the Lease and the applicable
provisions of the Lease shall apply, and (b) Landlord may re-enter or otherwise
take possession of the Premises and summarily remove all persons and property
therefrom, which property, at Landlord's option, shall either become the
property of Landlord or shall be stored by Landlord, at Tenant's expense, and
Landlord shall not be deemed guilty of trespass or liable for any loss or damage
caused thereby. Tenant hereby waives service of notice of Landlord's intention
to re-enter the Premises pursuant to this Section 6.
7. Certification by Tenant. Tenant certifies that Landlord has complied
fully with its obligations under the Lease and, to Tenant's knowledge, Landlord
is not in default of the Lease.
8. Release of Landlord by Tenant. Tenant hereby releases, remises,
discharges and forever waives any and all claims, actions or causes of action,
existing on or before the date hereof, whether known or unknown, arising from or
relating to the Lease or the Premises, that Tenant has or may have against
Landlord, or its affiliated entities, predecessors, successors, assigns, legal
representatives, agents, employees, servants, attorneys, officers, directors,
members or other representatives.
9. No Encumbered Property. Tenant represents and warrants that neither the
Premises nor the improvements therein will be encumbered in any way whatsoever
on the Surrender Date; that Tenant will have the right to surrender all of the
same; and that no one other than Tenant has acquired or will acquire through or
under Tenant any right, title or interest in or to any of the same.
10. Indemnification. Tenant shall indemnify and defend Landlord against and
hold Landlord harmless from any and all losses, costs, damages, liabilities,
expenses, claims and causes of action (including, without limitation, reasonable
counsel fees, litigation expenses and disbursements) arising out of a breach by
Tenant or its representations, warranties and covenants hereunder. All
representations, warranties, indemnifications and covenants by Tenant and
Landlord contained herein or made in writing pursuant to this Agreement are
deemed to be material.
11. Integration; Conflicts. In the event of a conflict between the terms of
this Agreement and the terms of the Lease, the terms of this Agreement shall
govern the rights and obligations of the parties hereto.
12. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with, the laws of the Commonwealth of Virginia.
14. Counterparts. This Agreement may be executed in two (2) counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first hereinabove set forth.
WITNESS: LANDLORD:
ENTERPRISE DULLES, LLC,
a Virginia limited liability company
By: Enterprise Dulles Management, LLC
a Virginia limited liability company,
Manager
By: Enterprise Dulles SPC, Inc.,
a Virginia corporation, Manager
By: /s/ Xxxx Xxxxx
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Xxxx X. Xxxxx
President
WITNESS: TENANT:
XXXXXXXXX.XXX, INC.,
a Delaware corporation
/s/ Xxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxxxxxxx
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Print Name: Xxxxx Xxxxxxxxxxxx
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Title: President / CEO
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