Exhibit 10.1
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 Office Building Lease
dated March 26, 1998, as amended by First Amendment to Office Building Lease
dated August 6, 1998, Second Amendment to Office Building Lease dated January
26, 2000, Third Amendment to Office Building Lease dated May 22, 2000, and
Fourth Amendment to Office Building Lease dated November 12, 2000 (the
"Lease"), pursuant to which Tenant rented and occupied certain real property
and improvements located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, 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 $110,000.00, and all interest accrued
thereon, if any, and Tenant's payment to Landlord of the sum of $716,073.92 by
wire transfer of immediately available federal funds (collectively, the
"Release Payment") no later than July 5, 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 July
31, 2001 (the "Termination Date"); provided, however, that Tenant shall use its
best efforts to surrender the Premises, and to remove its personal property and
fixtures from the Premises, 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 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 through and including
the Termination Date, and (ii) the termination of the Lease is contingent upon
Landlord's timely receipt of the Release Payment.
3. Surrender of Premises; Removal of Tenant's Personal Property and
Fixtures. 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 or
leased by Tenant from third parties (other than the Furniture), and will remove
all fixtures and equipment installed by Tenant on the Premises. 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 and fixtures and equipment.
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, "Furniture" shall mean the items of "Steelcase" brand systems furniture
more particularly described on attached Exhibit A. As further consideration for
Landlord's agreement to terminate the Lease as of the Termination Date, Tenant
agrees to convey the Furniture to Landlord on or before the Termination Date
pursuant to a ▇▇▇▇ of Sale in the form attached hereto as Exhibit B.
4. 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 in the performance of the Landlord's Work.
Landlord indemnifies and agrees to hold Tenant harmless from and against any and
all claims arising from or out of 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.
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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. Roof Rights. As 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 maintain Tenant's wireless radio equipment in its
present location on the roof of the Building. 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 granted herein will expire on March 31,
2002. Tenant will be responsible for the maintenance of its equipment and will
have 24/7/365 access into the Building and onto the roof thereof for the
purpose of maintaining such equipment. Landlord, in its sole discretion, may
elect to have a representative of Landlord accompany Tenant during any such
entry by Tenant into the Building or the roof space. All contractors performing
repairs must be approved in writing by Landlord prior to the commencement of
such repairs. On the expiration date of the license granted herein, Tenant will
surrender and yield up the roof space to Landlord in good order, condition and
state of repair, reasonable wear and tear excepted. Tenant and/or Landlord will
repair any damage to the roof space caused by Tenant's removal of its equipment
therefrom in accordance with the terms of the inspection procedure set forth in
paragraph 3 hereof (substituting March 31, 2002 for any references to the
Termination Date); provided, however, that Landlord will provide Tenant with at
least 10 days written notice to remove such equipment from the Building. Any
equipment not removed from the roof space on or before the expiration date of
the license granted herein will be 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 Landlord's standard form 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.
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10. Storage. 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 the unoccupied portion of the fourth floor of the
Building, as designated by Landlord in its sole discretion (the "Storage
Space"), for the storage of Tenant's office equipment. 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 granted herein will expire on
September 30, 2001. Tenant shall provide to Landlord at least 24 hours prior
written notice of any proposed entry by Tenant into the Building or the Storage
Space. Landlord, in its sole discretion, may elect to have a representative of
Landlord accompany Tenant during any such entry by Tenant into the Building or
the Storage Space. On the expiration date of the license granted herein, Tenant
will surrender and yield up the Storage Space to Landlord in good order,
condition and state of repair, reasonable wear and tear excepted. Tenant and/or
Landlord will repair any damage to the Storage Space caused by Tenant's removal
of its equipment therefrom in accordance with the terms of the inspection
procedure set forth in paragraph 3 hereof (substituting September 30, 2001 for
any references to the Termination Date); provided, however, that Landlord will
provide Tenant with at least 10 days written notice to remove such equipment
from the Building. Any equipment not removed from the Storage Space on or before
the expiration date of the license granted herein will be 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 Landlord's standard
form 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. Landlord reserves the right to relocate
the Storage Space and Tenant's equipment at any time and shall reimburse Tenant
for its reasonable costs incurred in connection with such relocation.
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IN WITNESS WHEREOF, Landlord and Tenant have fully executed this Agreement as
of the Effective Date.
Witnesses: FLAGLER DEVELOPMENT COMPANY
/s/ ▇. ▇. ▇▇▇▇▇▇ By: /s/ G. ▇▇▇▇ ▇▇▇▇▇
-------------------------------- --------------------------------
G. ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ President
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: July 16, 2001
-------------------------------- ---------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ [CORPORATE SEAL]
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TRITON NETWORK SYSTEMS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------- --------------------------------
▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Senior Vice President and
--------------------------- Chief Financial Officer
Date: June 28, 2001
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇ [CORPORATE SEAL]
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EXHIBIT A
DESCRIPTION OF FURNITURE
The furniture provided "as-is" is described as follows:
QUANTITY OFFICE TYPE
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98 Standard Office
10 Executive Office
4 Conference Room
1 Meeting Room
1 Training Room
Descriptions:
Standard Office: 2 Overheads w/lights
2 Backboards (for mounting Overheads)
3 Work Surfaces w/1 drawer
2 Small Filing Cabinets (1 Two Drawer, 1 Three Drawer)
2 Chairs (1 High back, 1 Guest)
3 Privacy Partitions (will vary depending on
configuration)
Miscellaneous hardware (covers, races, hangers, etc.)
Executive Office: 2 Overheads w/lights
2 Backboards (for mounting Overheads)
4-5 Work Surfaces w/1 drawer (1 large round corner)
2 Small Filing Cabinets (1 Two Drawer, 1 Three Drawer)
3 Executive Chairs (1 High back, 2 Guest)
3 Privacy Partitions (will vary depending on
configuration)
1 Marker Board
Miscellaneous hardware (covers, races, hangers, etc.)
Conference Room: 1 Oval Table
8 Chairs
1-2 Marker Boards
Meeting Room: 10 Tables 5'
38 Chairs
1 Buffet Table
Training Room: 4 Tables 5'
8 Chairs
1 Buffet Table
EXHIBIT B
FORM OF ▇▇▇▇ OF SALE
FOR VALUE RECEIVED, the receipt and sufficiency of which are hereby
acknowledged, TRITON NETWORK SYSTEMS, INC., a Delaware corporation ("Seller"),
does hereby grant, sell and convey to FLAGLER DEVELOPMENT COMPANY, a Florida
corporation ("Buyer"), forever all of Seller's right, title and interest in and
to the items of systems furniture more particularly described on attached
Exhibit A.
Seller warrants that the Property is free of all encumbrances; that good title
and right to sell that Property are vested in Seller; and that Seller will
defend the title against the lawful claims of all persons.
WITNESS its hand and seal this 28th day of June, 2001.
Signed and sealed in TRITON NETWORK SYSTEMS, INC.
our presence:
Witness: By: /s/ ▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇
Senior Vice President and
Chief Financial Officer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing ▇▇▇▇ of Sale was acknowledged before me this 28th day of June,
2001, by ▇▇▇ ▇▇▇▇▇, the Senior Vice President of TRITON NETWORK SYSTEMS, INC.,
a Delaware corporation, on behalf of the corporation. He/she is personally
known to me.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public State of Florida
My Commission Expires: April 9,
2005
[NOTARY SEAL]
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