Exhibit 10.54
TERMINATION AGREEMENT
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This Termination Agreement ("Agreement") is entered into as of this
10th day of April, 2002 by and between Xxxxx & Co., a division of Xxxxx Bank
N.A., as Trustee of the Multi Employer Property Trust, a trust organized under
12 C.F.R. Section 9.18, ("Landlord"), and Integrated Information Systems, Inc.
("Tenant"), a Delaware corporation, in consideration of the mutual covenants
contained herein and the benefits to be derived therefrom.
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a certain Lease (the "Lease")
dated February 8, 2000, pursuant to which Landlord leased to Tenant certain
premises containing approximately 7,090 square feet of space on the second (2nd)
floor of a certain building located at 00 Xxxxxxxxx Xxxxx, 000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx; and
WHEREAS, Tenant desires to terminate the term of the Lease prior to the
scheduled expiration date thereof; and
WHEREAS, Landlord is willing to terminate the term of the Lease prior
to the scheduled expiration date thereof, subject to the terms and conditions
hereinafter set forth;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Landlord and the Tenant agree
as follows:
1. Defined Terms.
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Any capitalized terms used but not defined in this Agreement shall have
the meaning assigned to them in the Lease.
2. Termination of Term of Lease.
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Subject to Tenant's performance of its Surrender Obligations and
payment in full in good funds of the Remaining Rent Payments and the Termination
Fee (as such terms are hereinafter defined), the Lease Term shall be terminated
effective as of the date of this Agreement (hereinafter, the "Effective
Termination Date"). Upon such termination, the Landlord shall return to Tenant
the letter of credit in the amount of Sixty-Nine Thousand One Hundred
Ninety-Eight Dollars ($69,198.40) issued by Imperial Bank that the Landlord is
holding as security under the Lease.
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3. Remaining Rent Payments.
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Base Rent and other charges due under the Lease shall be due and
payable by the Tenant through, and shall be apportioned as of, the Effective
Termination Date (collectively, the "Remaining Rent Payments").
4. Termination Fee.
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In consideration of the early termination of the Lease Term and in
addition to the Remaining Rent Payments, Tenant shall pay to Landlord a fee (the
"Termination Fee") equal to Sixty-Nine Thousand One Hundred Ninety Eight and
40/100 Dollars ($69,198.40). The Termination Fee shall be due and payable in
full upon the execution and delivery of this Agreement by the Tenant to the
Landlord.
5. Surrender Obligations.
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On or prior to the Effective Termination Date, the Tenant shall
surrender the Premises to the Landlord vacant and in broom clean condition and
otherwise in compliance with the terms and conditions of the Lease
(collectively, the "Surrender Obligations"). Without limiting such Surrender
Obligations, on or prior to the Effective Termination Date the Tenant shall
remove all of Tenant's personal property and shall repair any damage to the
Premises caused by such removal, provided that Tenant may leave at the Premises
those pieces of its furniture which Tenant has conveyed to Performix
Technologies, Inc. ("Performix") and which Performix has accepted pursuant to a
separate written agreement between Tenant and Performix.
6. Operating Expenses and Taxes.
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Tenant acknowledges that Tenant's payments on account of Operating
Expenses and Property Taxes for the Year in which the Effective Termination Date
occurs (and possibly, for the immediately preceding Year) may be based upon
estimated amounts of Operating Expenses and Property Taxes, respectively. At the
time that the actual amount of Operating Expenses and Property Taxes,
respectively, for such Year(s) are determined, either Tenant shall promptly pay
any underpayment to Landlord or Landlord shall promptly refund any overpayment
to Tenant.
7 Release.
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Tenant, for itself, its legal successors and assigns, its agents,
servants and employees, and each of them, does hereby release and forever
discharge the Landlord, Xxxxxxxx Xxxx Company, the Property Manager, and their
respective legal successors and assigns, shareholders, partners, agents,
servants and employees (all of the foregoing, collectively, the "Landlord
Parties"), of and from any and all claims, demands, damages, debts, liabilities,
actions, and causes of action of every kind and nature whatsoever, whether now
known or unknown, which Tenant ever had, now has or hereafter may have against
the Landlord Parties or any of them, arising out of, based in whole or in part
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upon, or relating to, any act, omission, event, matter or thing occurring at any
time up to the date of this Agreement; provided, however, that nothing in this
Agreement is intended to release Landlord from its obligations to be performed
hereafter under the Lease prior to the Effective Termination Date.
8. Lease Still in Effect.
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Except as modified hereby, all terms and conditions of the Lease shall
remain in full force and effect until the Effective Termination Date, after
which date neither Landlord nor Tenant shall have any further obligations to
each other under the Lease, except for any provisions which by their terms
survive the expiration or prior termination of the Lease Term.
9. No Affect on Other Leases.
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Except as provided in the following sentence, nothing contained herein
shall in any way affect (a) that certain Lease (the "Building 400 Lease") dated
May 4, 2000 between Landlord and Tenant pursuant to which Tenant has leased from
Landlord approximately 8,822 rentable square feet of space (the "Building 400
Premises") on the first floor of a certain building located at 00 Xxxxxxxxx
Xxxxx, 400 Burlington Centre, Burlington, Massachusetts, or (b) any other lease,
contract or agreement (other than the Lease) between Landlord and Tenant.
Notwithstanding anything to the contrary contained in the Building 400 Lease,
Tenant's Conduit (as defined in the Building 400 Lease) shall become property of
the Landlord and Tenant shall have no further right to use Tenant's Conduit
effective as of the earlier of (a) July 9, 2002 or (b) the date that Tenant's
telecommunications provider has redirected Tenant's service directly to the
Building 400 Premises.
10. Delivery of Draft of this Agreement Not an Offer.
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The submission of this Termination Agreement in a draft form to Tenant
or its agent does not constitute an offer to Tenant to enter into this
Agreement. This Termination Agreement shall have no force or effect until: (a)
it is executed and delivered by Tenant to Landlord; and (b) it is executed and
delivered by Landlord to Tenant.
11 Entire Agreement.
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This Termination Agreement represents the entire understanding of the
parties hereto with respect to the subject matter hereof and there are no
understandings or agreements between Landlord or Tenant relating to the Lease or
the Premises not set forth herein. No party has relied on any representation,
warranty, or understanding not set forth herein, wither oral or written, as an
inducement to enter into this Agreement.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
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12. GOVERNING LAW.
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This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts and is intended to take effect as
a sealed instrument. Each party hereto submits to the jurisdiction of the courts
of the Commonwealth of Massachusetts for all purposes related to this Agreement.
EXECUTED as of the date first above written.
TENANT:
Integrated Information Systems, Inc.
By:/s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: EVP & CFO
Duly Authorized
LANDLORD:
Xxxxx & Co., a division
of Xxxxx Bank N.A., as
Trustee of the Multi-Employer
Property Trust, a trust organized under
12 C.F.R. Section 9.18
By:/s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
Duly Authorized
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TENANT ACKNOWLEDGEMENT
State of Arizona )
) ss.
County of Maricopa )
On this 10th day of April, 2002, before me, a Notary Public in and for
the State of Arizona personally appeared Xxxxxxx X. Xxxxx, the Executive Vice
President, Chief Financial Officer and Secretary of Integrated Information
Systems, Inc., the Delaware corporation that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act
and deed of said corporation, for the uses and purposes therein mentioned, and
on oath stated that she/he was authorized to execute said instrument.
In Witness Whereof, I have hereunto set my hand and affixed my official
seal the day and year first above written.
Name:/s/ Xxxxx Xxxxxx
NOTARY PUBLIC in and for
State of Arizona,
residing at Tempe, Arizona
My appointment expires: July 21, 2003
[NOTARIAL SEAL]
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LANDLORD ACKNOWLEDGEMENT
)
District of Columbia ) ss.
)
On this 16th day of April, 2002, before me personally appeared Xxxxxxxx
X. Xxxxx, to me known to be a Managing Director of Xxxxx & Co., a division of
Xxxxx Bank N.A., the Trustee of the Multi-Employer Property Trust, the national
banking association that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said
national banking association as trustee, for the uses and purposes therein
mentioned, and on oath stated that she was authorized to execute said
instrument.
In Witness Whereof, I have hereunto set my hand and affixed my official
seal the day and year first above written.
Name: /s/ Xxxxxx Xxxxxx
NOTARY PUBLIC in and for the District of
Columbia, residing at Woodbridge, Virginia
My appointment expires: 9/30/2006
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