Exhibit 10.11
LEASE TERMINATION AGREEMENT
This Lease Termination Agreement (this "Agreement") is executed as of
October 30, 2002, between WHVPW REAL ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership ("Landlord"), and CTI GROUP (HOLDINGS), INC., a Delaware
corporation ("Tenant").
RECITALS:
A. Landlord and Tenant entered into that certain Lease Agreement dated
as of July 10, 1998 (the "Lease"; all capitalized terms used herein but not
defined shall have the meanings assigned to them in the Lease), for premises in
the office building known as Pinebrook II located at 0000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, which leased premises in more particularly described in
the Lease (the "Premises"); and
B. Landlord and Tenant desire to terminate the obligations,
liabilities and benefits under the Lease to the extent hereinafter provided.
AGREEMENTS:
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Termination of Lease. Landlord and Tenant hereby terminate the Lease
effective as of the date hereof (the "Termination Date").
2. Termination Fee. As consideration for Landlord's agreement to
release Tenant from certain obligations under the Lease as provided herein,
Tenant shall pay to Landlord on or before 4:00 p.m. on October 31, 2002, by wire
transfer the sum of $19,706.50 less the Security Deposit of $5,050 held by
Landlord (the "Termination Fee"). Landlord is required to provide wire
instructions to Xxx Xxxxxxx, Accounting Manager (000) 000-0000 fax or e-mail by
October 29, 2002 in order for Tenant to effectuate payment of Termination Fee.
If Tenant fails to pay the Termination Fee as required under this Agreement for
any reason whatsoever aside from Landlord's failure to provide Tenant with wire
instructions, Landlord shall be entitled to keep all amounts previously received
from Tenant pursuant to this Agreement, the obligations and liabilities (but not
the rights) of Tenant under the Lease shall be reinstated, Tenant's failure to
pay the Termination Fee shall be an automatic Event of Default under the Lease,
with no notice being necessary to Tenant and with no cure or grace periods or
rights, and Landlord shall be entitled to exercise any and all rights and
remedies available to it under the Lease, as well as at law or in equity.
3. Surrender of the Premises. On or before the Termination Date, Tenant
shall vacate and surrender the Premises in the condition required under the
Lease and remove all of Tenant's property from the Premises, subject to the
terms and conditions of the Lease. Any property of Tenant that is to removed
from the Premises or any other portion of the Building on or before the
Termination Date shall be conclusively deemed abandoned, and Landlord may,
without liability or compensation to Tenant, use, sell or otherwise dispose of
such property in Landlord's sole discretion.
4. Release of Landlord. Upon the termination of the Lease as set forth
above, Tenant (for itself and any other party that may claim through or under
Tenant) agrees that, without further acts, Landlord, together with Landlord's
employees, agents, representatives, asset manager, consultants, attorneys,
fiduciaries, servants, officers, directors, partners, predecessors, successors
and assigns (collectively, the "Landlord Released Parties"), shall be released
and forever discharged from any and all actions, causes of action, judgments,
executions, suits, investigations, debts, claims, demands, liabilities,
obligations, damages, and expenses of any and every character that arise out of
or in any way connected to the Lease, or any of the transactions associated
therewith (collectively, the "Released Matters"), including, without limitation,
all Released Matters that are known or unknown, direct and/or indirect, existing
at law or in equity, of whatsoever kind or nature, whether heretofore or
hereafter accruing, for or because of any matter or thing done, omitted, or
suffered to be done by any of the Landlord Released Parties prior to and
including the date of actual execution of this Agreement by Landlord and Tenant,
INCLUDING ANY AND ALL CLAIMS BASED IN WHOLE OR IN PART ON THE NEGLIGENCE OR
STRICT LIABILITY OF SUCH LANDLORD RELEASED PARTY. Tenant acknowledges and agrees
that Landlord shall have no liability whatsoever for any acts or omissions of
any previous owner of the Building.
5. Release of Tenant. Upon the termination of the Lease as set forth
above, Landlord (for itself and any other party that may claim through or under
Landlord) agrees that, without further acts, Tenant, together with Tenant's
employees, agents, representatives, consultants, attorneys, fiduciaries,
servants, officers, directors, partners, predecessors, successors and assigns
(collectively, the "Tenant Released Parties"), shall be released and forever
discharged from all Released Matters, including, without limitation, all
Released Matters that are known or unknown, direct and/or indirect, existing at
law or in equity, of whatsoever kind or nature, whether heretofore or hereafter
accuring, for or because of any matter or thing done, omitted, or suffered to be
done by any of the Tenant Released Parties prior to and including the date of
actual execution of this Agreement by Tenant and Landlord, INCLUDING ANY AND ALL
CLAIMS BASED IN WHOLE OR IN PART ON THE NEGLIGENCE OR STRICT LIABILITY OF SUCH
TENANT RELEASED PARTY. Notwithstanding the foregoing release, Tenant shall not
be released from (a) any indemnity, hold harmless, or defense obligation of
Tenant that accrued under the Lease as of the Termination Date, (b) any
obligation under this Agreement, (c) any claim arising from or in connection
with any inaccurate representation or warranty made by Tenant hereunder, or (d)
any default by Tenant hereunder. Notwithstanding the foregoing, there shall be
no reconciliation on account of Basic Rent, Operating Costs, Taxes, or any other
additional sums due under the Lease and neither Landlord nor Tenant shall owe
the other such sums under the Lease after the Termination Date.
6. Mechanic's Lien. Tenant hereby represents and warrants that Tenant
has not engaged anyone who has provided materials or labor in connection with
the Premises that would give rise to the filing of a lien against the Premises
or that such parties have been paid in full.
7. No Transfer. Tenant represents and warrants to Landlord that Tenant
is the owner and holder of the leasehold estate of the "Tenant" under the Lease.
Landlord and Tenant represent and warrant to each other that each has not
heretofore assigned or transferred, or purported to assign or transfer, to any
person, firm or corporation whatsoever, any claim, debt, liability, demand,
obligation, cost, attorneys' fees, expense, action or cause of action herein
released.
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8. Attorneys' Fees. In the event of any legal action or proceeding
brought by any party against the other arising out of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
costs incurred in such action (including, without limitation, all costs of
appeal), and such amount shall be included in any judgment rendered in such
proceeding.
9. Entire Agreement. This Agreement contains all of the agreements of
the parties hereto with respect to the subject matter hereof and no prior
agreement, understanding, or representation pertaining to any such matter shall
be effective for any purpose. No provision of this Agreement may be amended
except by an express agreement in writing signed by the parties hereto or their
respective successors-in-interest.
10. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, but all of which shall
constitute one document.
11. Invalidity. If any covenant, condition, or provision herein
contained is held to be invalid by final judgment of any court of competent
jurisdiction, the invalidity of such convenant, condition, or provision shall
not in any way affect any other covenant, condition, or provision herein
contained.
12. Tenant's Authority. Tenant and each person signing this Agreement
on behalf of Tenant represent and warrant to Landlord as follows: Tenant is a
duly organized and existing corporation under the laws of the State of Delaware;
Tenant has full right and authority to enter into this Agreement; Tenant's
execution of this Agreement does not result in the violation of any law or the
breach of any agreement to which Tenant may be bound; each person signing on
behalf of Tenant was and continues to be authorized to do so; and upon execution
by Tenant and Landlord, this Agreement shall be an enforceable agreement binding
upon Tenant in accordance with the terms hereof.
13. Binding Effect: Controlling Agreement; Governing Law. The terms and
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto, their transferees, representatives, successors and assigns. In the event
of a conflict between the terms and provisions of this Agreement and those
contained in the Lease, the terms and provisions of this Agreement shall
control. This Agreement and the rights and duties of the parties hereto shall be
controlled by and interpreted in accordance with the laws of the State in which
the Premises are located.
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Executed as of the date first written above.
LANDLORD: WHVPW REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: WHVPW Gen-par, Inc., A Delaware
corporation, its general partner
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Assistant Vice President
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TENANT: CTI GROUP (HOLDINGS) INC., a Delaware
corporation
By: /s/ M. Hanuschel
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Name: M. Hanuschel
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Title: CFO
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