LEASE TERMINATION AGREEMENT
EXHIBIT 10.18
THIS
LEASE TERMINATION AGREEMENT ("Agreement") is made and entered intoas of November
10, 2008, by and between CRP/CAPSTONE; 14W PROPERTY OWNER, L.L.C.,
a
Delaware
limited liability company, having an office c/o CB Xxxxxxx Xxxxx Inc., 00 Xxxx
Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Landlord") and XX XXXXXXXX SOLUTIONS, INC., a Nevada
Corporation, having an address at 00 00Xx Xxxxxx, Xxxxx X, Xxxxxxxx, Xxx Xxxx,
00000 ("Tenant").
WHEREAS,
By Agreement of that certain Lease made on June 4, 2004 (the "Lease"), by and between W12/14 WALL REALTY LLC,
Landlord’s predecessor in interest as the then owner of the Building (as such
term in hereinafter defined), as landlord, and Tenant, a portion of the
sixteenth (16th) floor
(the "Premises") in the building known
and numbered as 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, (the "Building") upon all of the
terms, covenants, conditions and provisions more particularly contained in the
Lease.
WHEREAS,
Tenant vacated the Premises on or about September 28, 2008 and desires to
terminate its obligations under the Lease effective as of that
date.
WHEREAS,
the parties desire to terminate the Lease and release each other from their
respective obligations under the Lease on the terms and conditions set forth
below.
NOW,
THEREFORE, for and in consideration of the covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. TERMINATION AND EFFECTIVE
DATE: The Lease is hereby terminated on September 30, 2008 (the
"Termination Date"). To and through the Termination Date, both parties shall
duly perform and fully comply with all terms and conditions of the Lease and
this Agreement.
2. SURRENDER OF PREMISES AND
REMOVAL OF PROPERTY: It is expressly acknowledged by Landlord and Tenant
has vacated and surrendered possession of the Premises to Landlord as of the
Termination Date. Tenant agrees that it shall have no rights to occupy and or
use the Premises from and after the Termination Date. In the event that Tenant
has vacated and delivered to Landlord the Premises to Landlord on or before the
Termination Date, Tenant shall have no further obligation to pay any fixed
annual rent or additional rent due Landlord for the Premises from and after
September 30, 2008.
3.
CONDITION OF
PREMISES: Notwithstanding anything to the contrary contained in the
Lease, at the time of Tenant's surrender of the Premises to the Landlord on the
Termination Date, Landlord shall accept the Premises in as-is
condition.
4. PAYMENT OF RENT AND OTHER
CHARGES: Through September 30, 2008, Tenant shall be responsible for the
payment of all fixed rent, additional rent and electric charges due and payable
under the Lease, including appropriate adjustments to real estate taxes and
operating expenses as billed by the Landlord in accordance with the Lease.
Notwithstanding the foregoing, Tenant agrees to pay and Landlord agrees to
accept as full payment, satisfaction and accord of all outstanding liabilities
and obligations under the Lease by Tenant through the Termination Date, a sum in
the amount of Twelve Thousand Five Hundred Dollars ($12,500.00) in the form of a
certified check or attorney escrow check only (the “Settlement Payment”).
Furthermore, Tenant agrees that all monies currently held by Landlord as
security under the Lease shall become property of Landlord and that Tenant shall
have no claim against said funds for any reason.
5. MUTUAL RELEASE OF LIABILITY:
This Agreement is intended to and the mutual release which follows shall
fully and finally settle any and all demands, charges, claims, accounts, or
causes of action of any nature including, without limitation, known or unknown
claims and causes of action that arise out of or in connection with the Lease.
The following release shall be effective as of the Termination Date without
further action of the parties: the Landlord and Tenant do hereby release and
discharge each other from their respective obligations arising from or connected
with the provisions of the Lease, excepting such rights and obligations as may
be created or reserved by this Agreement and further excepting all rights and
obligations stated in the Lease as surviving the Lease's natural expiration or a
termination of the Lease not resulting from a default, including, but not
limited to the obligations, if any, of Landlord and Tenant contained in the
Lease to indemnify and hold the other harmless against any and all claims. The
release of liability contained herein shall not preclude a party from exercising
any discovery rights it may have against the other party in connection with any
civil litigation or arbitration proceedings involving a third
party.
6.
REPRESENTATIONS AND
WARRANTIES:
a. Each
party represents and warrants to the other that it has not made any assignment,
sublease, transfer, conveyance or other disposition of the Lease or any interest
therein or any claim, demand, obligation, liability, or cause of action arising
from the Lease.
b. Tenant
represents and warrants that, to its actual knowledge, there is no demand,
claim, account, pending filing of lien, or cause of action of any nature to any
third party arising out of or in connection with the Lease or relating to any
use of, or action in, the Premises by Tenant or any subtenant, concessionaire,
licensee, assignee, agent or employee of Tenant.
c. Each
party represents and warrants that the individual executing this Agreement on
behalf of such party is duly authorized to enter into this
Agreement.
e. Tenant
covenants that neither Tenant nor any attorney or other representative
for Tenant shall disclose the terms of this Agreement to any other person or
entity. Tenant shall be fully responsible for the actions of its attorneys and
representatives.
7. MISCELLANEOUS:
a. The
parties have read this Agreement and the release contained herein, and on the
advice of counsel they have freely and voluntarily entered into this
Agreement.
b. This
Agreement shall not become effective or binding until signed by Landlord, and a
counterpart, so signed, has been delivered to Tenant.
c. This
Agreement shall be binding upon and inure to the benefit of each of the parties
hereto and their successors.
d. The
parties agree that this Agreement may be executed in counterpart, which when
taken together, shall be deemed a complete agreement. Any facsimile
signature hereof shall be deemed as an original for all purposes.
e. This
Agreement must be fully executed by Wednesday November 5, 2008 or it
shall be
of no force and effect.
f. This
Agreement and any original counterparts thereof shall be kept in escrow by the
respective counsel for Landlord and Tenant and shall be released from escrow
upon clearance of the Settlement Payment referenced in Paragraph Four (4)
hereof. In the event Tenant fails to make the Settlement Payment on
or before November 28, 2008, this Agreement shall be deemed null and void and
each party may exercise any and all remedies, rights and defenses they may
respectively have in law or equity under the Lease Agreement.
[Signatures
follow on the next page.]
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IN
WITNESS WHEREOF, Landlord and Tenant have duly executed this Agreement as of the
day and year first above written.
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LANDLORD:
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CRP/CAPSTONE
14W PROPERTY OWNER, L.L.C.
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By:/s/
Xxxxxx
Xxxxx
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Name:
Xxxxxx Xxxxx
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Title:
Manager
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TENANT:
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XX
XXXXXXXX SOLUTIONS, INC.
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By:/s/
Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title: President
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