EXHIBIT 10.58
PARTIAL TERMINATION OF LEASE AND
MUTUAL RELEASE
THIS PARTIAL, TERMINATION OF LEASE
AND MUTUAL RELEASE ( “Agreement” ) is
made as of April 16 th , 2004 between PROPERTY GEORGIA
OBJLW TWO CORPORATION, an Oregon corporation (as
successor-in-interest to The Retail Property Trust)
(“Landlord”) and PREMIERE TECHNOLOGIES, INC., a
Florida corporation ( “Tenant” ) is made
with reference to the following Recitals:
RECITALS
A. Landlord and Tenant are parties
to an Agreement of Lease dated March 3, 1997, as modified by a
Modification of Lease dated August 4, 1997, a Second Modification
of Lease dated October 30, 1997, a Third Modification of Lease
dated July 15, 1998, a Fourth Modification of Lease dated August
27, 1998, a Fifth Modification of Lease dated April 1, 1999, a
Sixth Modification of Lease dated May 15, 1999, a Seventh Amendment
to Lease dated February 28, 2001, and an Eighth Amendment to Lease
dated June 24, 2001 (as modified and amended, the
“Lease” ). Pursuant to the Lease,
Landlord leases to Tenant and Tenant leases from Landlord certain
premises, among others, known as Suite 300 located on the third
(3rd) floor of the Building, as more particularly described in the
Lease (the “Third Floor Premises”
).
B. Landlord and Tenant
(collectively, the “Parties” )
wish to terminate the Lease as to the 20,048 rentable square feet
in the Third Floor Premises only, so that the Parties can be
released and discharged from further performance of the provisions
of the Lease for the Third Floor Premises, and to mutually release
each other from further liability as provided for
herein.
NOW, THEREFORE, in consideration of
the mutual promises, conditions and covenants contained herein, the
Parties hereto agree as follows:
1. Effective Date. The
“Effective Date” for purposes of this
Agreement shall be the date first written above.
2. Partial Termination of
Lease. As of Effective Date the Lease shall be terminated as to
the Third Floor Premises only, and shall have no further force or
effect whatsoever with respect thereto, and Landlord and Tenant and
their respective trustees, agents, employees, and contractors shall
have no further liability or responsibility under any provision,
term or condition of the Lease for the Third Floor Premises other
than as provided herein.
3. Surrender of Premises.
Tenant agrees to vacate and surrender possession and all of its
right, title and interest in and to the Third Floor Premises to
Landlord by April 30, 2004 (the “Surrender
Date” ). All personal property of Tenant shall be
removed by 5:00 p.m. on the Surrender Date. If Tenant fails to
remove its personal property from the Third Floor Premises by 5:00
p.m. on the Surrender Date, Landlord may elect to remove
Tenant’s personal property from the Third Floor Premises and
Tenant agrees to promptly pay to Landlord all costs and expenses
related to Landlord’s removal, storage and disposal of such
personal property. Tenant shall not be required to make any
alterations or changes to the Third Floor Premises or remove any
items other than Tenant’s personal property. Tenant shall
indemnify and hold harmless Landlord against all loss or liability
resulting from or arising out of Tenant’s failure to
surrender the Third Floor Premises on or before the Surrender Date,
including, but not limited to, any amounts required to be paid to
any tenant or prospective tenant who was to have occupied the Third
Floor Premises after the Surrender Date and any related
attorneys’ fees, brokerage commissions and leasing
expenses.
4. Contingency. The parties
acknowledge that Landlord is currently negotiating to lease the
Suite 300 Space to Riot Atlanta (the “New Tenant”), who
currently occupies other premises in the Building. The termination
of the Premises, as set forth in this Amendment, is contingent upon
Landlord entering into an amendment to the New Tenant’s lease
whereby the premise leased to the New Tenant are expanded to
include the Suite 300 Space (the “Expansion
Amendment”). If, for whatever reason, the Expansion Amendment
is not executed by Landlord and the New Tenant following the
Effective Date of this Amendment, Landlord may elect to void the
termination of the Premises set forth in this Amendment by
providing Tenant with written notice of such election at any time
following the Effective Date. In the event that Landlord elects to
void the termination of the Premises in accordance with the terms
of this paragraph, then upon Tenant’s receipt of
Landlord’s notice of such election, the termination of the
Premises set forth herein, and all modifications of the Lease
pertaining to such relocation, shall be void, and the Premises
shall be and remain the Suite 300 Space from the Effective Date
throughout the balance of the Lease Term unless the Premises are
otherwise terminated in accordance with the provisions of the
Lease.
5. Termination Fee. Tenant
shall pay to Landlord in consideration for termination of the Lease
for the Third Floor Premises only, a termination fee of Seven
Hundred Fifty Thousand and No/100 Dollars ($750,000.00) (the
“Termination Fee” ) due and
payable as follows:
5.1 Upon full execution hereof,
Tenant shall pay to Landlord the sum of Three Hundred Seventy Five
Thousand and No/100ths Dollars ($375,000.00);
5.2 On July 1, 2004, Tenant shall
pay to Landlord the sum of Three Hundred Seventy Five Thousand and
No/100ths Dollars ($37
