Exhibit 10.3
LEASE TERMINATION AGREEMENT
THIS LEASE TERMINATION AGREEMENT ("Agreement") is made by and between
TRITON NETWORK SYSTEMS, INC., a Delaware corporation ("Tenant"), and FLAGLER
DEVELOPMENT COMPANY, a Florida corporation, f/k/a Gran Central Corporation
("Landlord"), as of the date on which the later signature of Landlord and
Tenant is affixed to this Agreement (the "Effective Date").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant are parties to an Assembly/Light
Manufacturing/Office Lease dated September 16, 1999, as amended by First
Amendment to Office Building Lease dated October 15, 1999 (the "Lease"),
pursuant to which Tenant rented and occupied certain real property and
improvements located at 0000 XxxxxXxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000, as more particularly described in the Lease (the "Premises");
WHEREAS, pursuant to the Lease, the term of the Lease is scheduled to
expire on March 31, 2007 (the "Expiration Date"); and
WHEREAS, Landlord and Tenant have mutual interests in terminating the
Lease prior to the Expiration Date, upon the terms and conditions stated herein.
NOW, THEREFORE, in consideration of Tenant's forfeiture of its
security deposit in the amount of $69,869.25, and all interest accrued thereon,
if any, and Tenant's payment to Landlord of the sum of $1,700,000.00 by wire
transfer of immediately available federal funds (collectively, the "Release
Payment") by August 31, 2001, and the mutual representations, covenants, and
agreements herein, Landlord and Tenant agree, represent and warrant, as
applicable, as follows:
1. Recitals; Capitalized Terms. The foregoing recitals are true and
correct and incorporated herein by reference. All capitalized terms used herein
that are not specifically defined in this Agreement shall have the same
meanings as set forth in the Lease.
2. Termination of Lease. The Lease is hereby terminated as of
September 30, 2001 (the "Termination Date"); provided, however, that Tenant
shall use its best efforts to surrender the Premises and to remove its personal
property from the Premises, except as to the Office Premises as set forth in
paragraph 9 below, all in accordance with the terms and conditions of paragraph
3 of this Agreement, as soon as possible following the Effective Date, and, in
such event, such earlier date shall be the Termination Date and the parties
shall execute a supplement to this Agreement setting forth the revised
Termination Date. In the event of such earlier termination, the parties agree
to prorate the Base Rental and Additional Rental actually received by Landlord
from Tenant for the month in which such earlier Termination Date occurs. From
and after the Termination Date, neither Landlord nor Tenant will have any
obligations under the Lease, except those indemnification obligations that,
pursuant to the terms of the Lease, would
otherwise survive beyond the Expiration Date. Notwithstanding anything herein
to the contrary, (i) Tenant shall continue to pay Base Rental and Additional
Rental in accordance with the terms of the Lease through and including the
Termination Date, and (ii) the termination of the Lease is contingent upon
Landlord's timely receipt of the Release Payment. Landlord, upon the
Termination Date, shall cancel and return to Tenant that certain Irrevocable
Standby Letter of Credit No. SVB99IS1529 issued by Silicon Valley Bank.
3. Surrender of Premises; Removal of Tenant's Personal Property. On
the Termination Date, Tenant shall surrender and yield up to Landlord the
Premises in good order, condition and state of repair, reasonable wear and tear
excepted. Not later than 10 days prior to the Termination Date, Tenant shall
remove from the Premises all personal property owned by Tenant (other than the
"FF&E", as defined below) or leased by Tenant from third parties, except as
set forth in paragraph 9 below. Tenant shall be obligated to repair in a good
and workmanlike manner any damage to the Premises resulting from the removal of
such personal property. Tenant will complete such work and will make the
Premises available for Landlord's inspection not later than 5 days prior to the
Termination Date at Tenant's sole cost and expense, and will promptly pay all
bills relating to such work. If Landlord, during its inspection, reasonably
determines that Tenant has not completed such repairs in accordance with the
terms hereof, then Tenant shall have until the Termination Date to do so. To
the extent that such repairs are not made by Tenant in accordance with the
terms hereof, as determined by Landlord in its reasonable discretion, on or
before the Termination Date, Landlord will repair any such damage at Tenant's
sole cost and expense, and Tenant will promptly pay all invoices relating to
such work. For purposes hereof, "FF&E" shall mean the items of furniture,
fixtures and equipment more particularly described on attached Exhibit C. As
further consideration for Landlord's agreement to terminate the Lease as of the
Termination Date, Tenant agrees to convey the FF&E to Landlord or its designee
(including without limitation, any replacement tenant) on or before the
Termination Date pursuant to a Xxxx of Sale in the form attached hereto as
Exhibit D. Prior to Tenant's delivery of the Xxxx of Sale to Landlord (or its
designee), Tenant agrees to provide Landlord with commercially reasonable and
satisfactory evidence that the FF&E is free and clear of all liens, claims and
encumbrances. The termination of the Lease is contingent upon Landlord's
receipt and acceptance of such evidence.
4. Landlord's Construction License. As further consideration for
Landlord's agreement to terminate the Lease as of the Termination Date, Tenant
hereby grants to Landlord an irrevocable license to enter into the Premises
from and after the Effective Date to construct certain improvements and
alterations to the Premises ("Landlord's Work"). Tenant shall provide Landlord
and Landlord's employees, agents and contractors with reasonable access to the
Premises and shall reasonably cooperate with Landlord and Landlord's employees,
agents and contractors to minimize interference of the Landlord's Work.
Landlord indemnifies and agrees to hold Tenant harmless from and against any
and all claims arising from or related to the performance of Landlord's Work in
the Premises.
5. Release. Effective on the Termination Date, Tenant and Landlord
hereby release and discharge each other, including their respective
subsidiaries, affiliates, officers, directors, agents and employees, as of the
Termination Date from all obligations and liabilities, whether
known or unknown, foreseen or unforeseen, under or in connection with the Lease
or Tenant's use or occupancy of the Premises, except those obligations which, by
their nature, or by the terms of the Lease, would survive beyond the Expiration
Date.
6. Landlord's Representations and Warranties. Landlord represents and
warrants to Tenant that Landlord has the power and the lawful authority to
execute and deliver this Agreement, and that no consent, authorization,
approval, or notice to any other party, including any mortgagee (other than as
set forth in this Agreement), is necessary in connection with the execution
and delivery of this Agreement by Landlord, or as a prerequisite to its
enforceability against Landlord.
7. Tenant's Representations and Warranties. Tenant represents and
warrants that it is the sole tenant in possession of the Premises under the
Lease and that it has neither assigned nor subleased its interest as tenant
under the Lease. Tenant further represents and warrants to Landlord that,
except as otherwise provided herein, Tenant has complied with all of Tenant's
obligations under the Lease.
8. Survival of Representations and Warranties. The representations and
warranties set forth in paragraphs 6 and 7 hereof shall survive and continue
beyond the date hereof.
9. Tenant's Winding Up License. As further consideration for Tenant's
agreement to terminate the Lease as of the Termination Date, Landlord hereby
grants to Tenant, at no cost to Tenant, a license to use that portion of the
Building depicted on Exhibit A for office use in the liquidation and winding up
of Tenant's business (the "Office Premises") and that portion of the Building
depicted on Exhibit B for the storage and auction of Tenant's personal property
(the "Storage Premises"). Landlord may relocate the Office Premises or the
Storage Premises to other space in the same building in which the Premises are
located or in any other building in Gran Park at SouthPark, as determined by
Landlord in its reasonable discretion, upon three (3) days advance notice to
Tenant, provided that Landlord bears all costs of such relocation. The parties
agree that no portion of the Release Payment shall be considered as rental or as
a license fee for the license granted herein. The license for the Office
Premises shall expire on November 30, 2001 (the "Office License Expiration
Date"), provided that Tenant may request that Landlord extend the license for
the Office Premises in another location in the park through December 30, 2001,
and Landlord shall endeavor to accommodate Tenant in that regard. On the Office
License Expiration Date, Tenant will surrender and yield up the Office Premises
in good order, condition and state of repair, reasonable wear and tear excepted.
The Storage Premises license shall expire on December 31, 2001, unless extended
by a writing signed by Landlord and Tenant (the "Storage License Expiration
Date"). On the Storage License Expiration Date, Tenant will surrender and yield
up the Storage Premises in good order, condition and state of repair, reasonable
wear and tear excepted. Tenant and/or Landlord will repair any damage to the
Office Premises and the Storage Premises caused by Tenant's removal of its
personal property therefrom in accordance with the terms of the inspection
procedure set forth in paragraph 3 hereof (substituting November 30, 2001 for
the Office Premises and December 30, 2001 for the Storage Premises for any
references to the Termination Date). Any personal property not removed from the
Office Premises or the Storage Premises on or before the relevant License
Expiration Date, will be promptly removed from the Office Premises or Storage
Premises, as applicable, by Landlord and disposed of as mutually agreed upon by
Landlord and Tenant. Tenant will, throughout the term of the license granted
herein, carry and maintain, at its sole cost and expense, commercial general
liability insurance on an occurrence form covering claims from bodily injury
(including death) and property damage with minimum limits of $2,000,000 per
occurrence and $2,000,000 general aggregate. Such insurance shall be taken out
with an insurer licensed to do business in Florida and otherwise acceptable to
Landlord, shall name Landlord as an additional insured, and shall provide for
30 days prior written notice to Landlord before any modification or termination
of said insurance. A certificate of insurance on Xxxxx Form 25-S shall be
delivered to Landlord on or before the Effective Date. Tenant indemnifies and
agrees to hold harmless Landlord from and against any and all liability for any
loss, injury or damage (including, without limitation, reasonable attorney's
fees) arising out of the license granted herein. The insurance that Tenant is
required to carry hereunder will include coverage of the foregoing contractual
indemnity. Tenant shall not assign the license granted herein to any other
person or entity.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as
of the date first above written.
Witnesses: FLAGLER DEVELOPMENT COMPANY
/s/ XX Xxxxxx By: /s/ G. Xxxx Xxxxx
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G. Xxxx Xxxxx
Name: Xxxxx X. Xxxxxx President
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/s/ Xxxxxxx X. Xxxxxx Date: September 4, 2001
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Name: Xxxxxxx X. Xxxxxx [CORPORATE SEAL]
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TRITON NETWORK SYSTEMS, INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxx Xxxxx
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Xxx Xxxxx
Name: Xxxxxxx X. Xxxxxx Chief Executive Officer
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/s/ Xxxxx X. Xxxx Date: August 24, 2001
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Name: Xxxxx X. Xxxx [CORPORATE SEAL]
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