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EX-10.70 LEASE TERMINATION AGREEMENT

Lease Termination Agreement

EX-10.70 LEASE TERMINATION AGREEMENT | Document Parties: TERREMARK WORLDWIDE INC | AMERICAS WEST, INC | Effingham Partners, LLC | EGP Partners, LP | EQUANT INC | Global One Communications LLC You are currently viewing:
This Lease Termination Agreement involves

TERREMARK WORLDWIDE INC | AMERICAS WEST, INC | Effingham Partners, LLC | EGP Partners, LP | EQUANT INC | Global One Communications LLC

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Title: EX-10.70 LEASE TERMINATION AGREEMENT
Governing Law: California     Date: 9/10/2007
Industry: Communications Services     Sector: Services

EX-10.70 LEASE TERMINATION AGREEMENT, Parties: terremark worldwide inc , americas west  inc , effingham partners  llc , egp partners  lp , equant inc , global one communications llc
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EXHIBIT 10.70
EXHIBIT A
Lease Termination Agreement
     This Lease Termination Agreement (this “Agreement”) is dated as of July 2, 2007 (“ Effective Date ”), by and between NAP of the Americas West, Inc., a Florida corporation (together with its successors and assigns, “ Terremark ”) and Equant Inc. , a Delaware corporation and successor-in-interest to Global One Communications L.L.C., a Delaware limited liability company (“ Tenant ”).
     1. Recitals
      A.  DPJV II, LLC, BDP Partners, L.P., EJLJ Mathews Family Partners, L.P., and EGP Partners, L.P., collectively as successors in interest to Effingham Partners, L.L.C., a California limited liability company (“ Landlord ”) are the current owners of certain real property located in Santa Clara County, California commonly known as 2970-3000 Corvin Drive, Santa Clara, California (the “ Property ”).
      B . Pursuant to that certain Lease dated for reference purposes only August 21, 2000 (the “ Lease ”), Tenant currently leases from Landlord a portion of the Property located at 3000 Corvin Drive, Santa Clara, California, which portion consists of the entire rentable area of a free-standing industrial building containing approximately 24,003 square feet (the “ Premises ”).
      C.  Landlord and Terremark have entered into that certain Real Property Purchase Agreement dated as of March 9, 2007 (as amended from time to time, the “ PSA ”), pursuant to which Landlord has agreed to sell and Terremark has agreed to purchase, the Property. Upon the closing of the purchase and sale of the Property pursuant to the PSA (the “ Closing Date ”), Terremark will succeed Landlord as the landlord under the Lease.
      D.  On and subject to the condition that Terremark consummate the purchase of the Property, Terremark desires to obtain physical possession of the Premises on the Closing Date, and Tenant desires to terminate its ongoing obligations under the Lease. Accordingly, conditioned on such purchase Terremark and Tenant have agreed to amend the Lease to provide for a termination of all future rights and obligations under the Lease effective as of the Closing Date, a termination of Tenant’s right to occupy the Premises as of such time, and a mutual release of both parties, all upon the terms and conditions set forth hereinafter. Capitalized terms used in this Agreement and not otherwise defined shall have the meanings assigned to them in the Lease.
Agreement
      Now Therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Terremark and Tenant hereby agree as follows:
      1. Recitals Incorporated. The foregoing recitals are incorporated herein by reference as though set forth at length and each of the parties agrees that it is not aware of any information that would indicate that said recitals are inaccurate.

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      2. Lease Termination . Effective as of the Closing Date, and subject to satisfaction of the Conditions Precedent defined and set forth in Section 3 below,
           2.1 The Term of the Lease shall be amended so that the Lease shall terminate and expire on the Closing Date (the “ Termination Date ”); and
           2.2 Except as specifically provided to the contrary herein, at 11:59 p.m. on the Closing Date, the Lease and all of Tenant’s and Terremark’s (as successor in interest to Landlord) respective rights and obligations under the Lease will terminate, including, without limitation, Tenant’s right to possession of the Premises and any and all Options to Extend the Lease. Notwithstanding the preceding sentence to the contrary: (a) Tenant does agree to remain responsible through the Termination Date for its obligations under the Lease, including without limitation, the payment of all monies due Landlord thereunder , the payment for insurance under Paragraph 8.1 of the Lease, and the payment of Real Property Taxes under Paragraph 53 of the Lease, and (b) Terremark as successor in interest to Landlord shall have all the rights and remedies with respect to such obligations as set forth in the Lease to the extent those rights and remedies are not pursued against Tenant by the Landlord.
      3. Conditions . This Agreement is specifically conditioned upon satisfaction of the following conditions (the “ Conditions Precedent ”):
           3.1 Landlord’s surrender and delivery to First American Title Insurance Company, 1737 North First Street, Suite 500, San Jose, California 95112, Attention: Liz Zankich, Fax: (408) 451-7928 (the “ Escrow Agent ”) prior to the Closing Date of the letter of credit issued by Citibank, N.A. pursuant to Paragraph 52 of the Lease, and Landlord’s execution and delivery to Escrow Agent prior to the Closing Date of any documents reasonably required by Citibank to effect the cancellation of such letter of credit, provided such documents are provided to Landlord no later than ten (10) days prior to the Closing Date (it being understood and acknowledged that such letter of credit and documents shall be released to Tenant immediately following the Closing); and
           3.2 Closing of the escrow for the sale of the Property to Terremark pursuant to the PSA (the “ Closing ”); and
           3.3 Landlord’s execution of a general release (“ Landlord’s Release ”) in favor of Tenant, in a form acceptable to Tenant in its sole discretion, with respect to all of Tenant’s obligations under the Lease other than Tenant’s obligations to remain responsible through the Termination Date for its obligations under the Lease, including without limitation, the payment of all monies due Landlord thereunder, the payment for insurance under Paragraph 8.1 of the Lease, and the payment of Real Property Taxes under Paragraph 53 of the Lease. Terremark shall cause Landlord or Escrow Agent to provide to Tenant’s counsel, Criton Constantinides, Orange Business Services, 400 Galleria Parkway, Atlanta, GA 30339, Fax: (770) 955-5029, e-mail: criton.constantinides@orange-ftgroup.com, no less than twenty-one (21) days prior to the Closing Date a copy of the Landlord’s Release fully executed by Landlord, the original of which will be provided to Tenant immediately following the Closing. Tenant hereby agrees that it shall execute the Landlord’s Release and deliver same to the Escrow Agent no less than twenty-one

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(21) days prior to the Closing Date, and Tenant’s signature shall be held in escrow by the Escrow Agent pending the Closing, at which point it shall be released to Landlord.
     Tenant hereby acknowledges that Tenant’s delivery of (i) the funds described in Section 5.1 and (ii) the Note and Letter of Credit described in Section 5.2 are conditions precedent to the Closing. Terremark hereby acknowledges and agrees that Landlord’s execution and delivery to Tenant of the documents described in Section 3.1 and 3.3 above are conditions precedent to Tenant’s issuance of the Note and Letter of Credit.
      4. Lease Surrender . Tenant agrees to surrender the Premises to Terremark on the Termination Date. Terremark shall provide Tenant’s counsel with written notification of the Termination Date (by electronic mail or facsimile with a copy to follow promptly via overnight delivery by a generally recognized carrier, it being understood that such notification shall be deemed given upon the actual receipt of the same by Tenant’s counsel) no less than thirty (30) days prior to such date. Notwithstanding anything in the Lease to the contrary, Terremark agrees to accept surrender of the Premises in its present condition and configuration as of the Effective Date, and Tenant shall not be required to remove any alterations or improvements to the Premises, or otherwise perform any maintenance, cleaning, repair, or restoration work of any kind in connection with the surrender of the Premises.
      5. Termination Fee. As partial consideration for the early termination of the Lease, on the Termination Date, Tenant agrees to pay Terremark an amount equal to the aggregate sum of Two Million Seven Hundred Thousand and No/100 Dollars ($2,700,000.00) (the “ Termination Fee ), subject to reduction as set forth below, and payable as follows:
           5.1 Tenant shall pay Terremark on the Closing Date (or, if reasonably requested by Terremark or Escrow Agent in order to facilitate the Closing, on the day immediately preceding the Closing Date) One Million and No/100 Dollars ($1,000,000.00) in immediately available funds through the escrow established by the Escrow Agent for the Closing; provided, however , that such $1,000,000.00 payment shall be reduced by an amount equal to the aggregate total of all rent payable by Tenant under the Lease for the period commencing on July 1, 2007 and ending on the Closing Date and for any utilities and Real Property Taxes paid by Tenant with respect to any period beyond the Closing Date; and
           5.2 Tenant shall pay Terremark the balance of One Million Seven Hundred Thousand and No/100 Dollars ($1,700,000.00) in two equal installments of Eight Hundred Fifty Thousand and No/100 Dollars ($850,000.00), pursuant to the terms of a secured promissory note substantially in the form attached hereto as Exhibit A (the “ Note ”), which Note shall be secured by the Letter of Credit described in Section 6. The two installments will be payable March 14, 2008 and March 16, 2009. The Note and Letter of Credit shall be delivered by Tenant into the escrow established for the Closing on the Closing Date (or, if reasonably requested by Terremark or Escrow Agent in order to facilitate the Closing, on the day immediately preceding the Closing Date).
     The Termination Fee is the amount which the parties have negotiated and agreed upon as a fee or compensation which is intended as their fair estimate of losses and damages to be suffered by Terremark in connection with early termination of the Lease, which are difficult to

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calculate and which Terremark may sustain due to the corresponding advance of the Expiration Date (as defined in the Lease), including the unamortized portion of any concessions, commissions, allowances and other expenses incurred by Terremark in connection with the Premises leased by Tenant under the Lease, and Terremark’s loss of future rent in connection therewith. Such amount shall be Terremark’s earned fee and liquidated damages for such estimated losses and damages, whether such losses and damages in fact are greater or less than the applicable amount of the Termination Fee.
      6. Letter of Credit . Tenant shall deliver to Terremark, as collateral for the full and faithful performance by Tenant of all of its obligations under the Note, an irrevocable and unconditional negotiable letter of credit, in the form and containing the terms required herein, payable at the offices of Citibank’s Trade Finance Department, Tampa, Florida in favor of Terremark or its assignee issued by a solvent nationally recognized bank with a long term rating of BBB or higher, under the supervision of the Superintendent of Banks of the State of California, or a National Banking Association, in the amount of One Million Seven Hundred Thousand and No/100 Dollars ($1,700,000.00) (the “ Letter of Credit ”). The Letter of Credit shall be (a) at sight and irrevocable and unconditional, (b) maintained in effect, whether through replacement, renewal or extension, until payment in full satisfaction of all amounts owed under the Note has been made (the “ Letter of Credit Expiration Date ”) and Tenant shall deliver a new Letter of Credit or certificate of renewal or extension to Terremark at least thirty (30) days prior to the expiration of the Letter of Credit, without any action whatsoever on the part of Terremark, (c) subject to the Uniform Customs and Practices for Documentary Credits (1993-Rev) International Chamber of Commerce Publication #500, (d) acceptable to Terremark in its reasonable discretion, (e) permit partial draws, and (f) non-assignable except (i) by operation of law, (ii) by Terremark to Landlord, or (iii) with the prior consent of Tenant. In addition to the foregoing, the form and terms of the Letter of Credit (and the bank issuing the same) shall provide, among other things, in effect that: (1) Terremark, or its then managing agent, shall have the right to draw down an amount up to the face amount of the Letter of Credit upon the presentation to the issuing bank of Terremark’s (or Terremark’s then managing agent’s) statement that such amount is due to Terremark under the terms of the Note, it being understood that if Terremark or its managing agent be a limited liability company, corporation, partnership or other entity, then such statement shall be signed by a managing member (if a limited liability company) an officer (if a corporation), a general partner (if a partnership), or any authorized party (if another entity); and (2) the Letter of Credit will be honored by the issuing bank without inquiry as to the accuracy thereof and regardless of whether the Tenant disputes the content of such statement; and (3) in the event of Terremark’s assignment of the Note (subject to Paragraph 8 of the Note), Terremark shall transfer the Letter of Credit (as permitted above in subsection (f) of this Section 6, in whole or in part (or cause a substitute letter of credit to be delivered, as applicable), to the transferee, and thereupon Terremark shall, without any further agreement between the parties, be released by Tenant from any liability for the acts or omissions of the transferee with respect to the Letter of Credit, and it is agreed that the provisions hereof shall apply to every transfer or assignment of the whole or any portion of said Letter of Credit to a new holder of the Note.. Tenant hereby acknowledges and agrees that Terremark is entering into this Termination Agreement in material reliance upon the ability of Terremark to draw upon the Letter of Credit upon the occurrence of any default on the part of Tenant under the Note. Tenant further acknowledges and agrees that if Terremark cannot draw upon the Letter of Credit within the times and in the manner as anticipated by Terremark herein, Terremark may suffer

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irreparable damage, harm and injury. Should the Letter of Credit need to be amended, modified or reissued, Terremark and Tenant hereby covenant and agree to cooperate with one another to promptly effectuate any such amendments, modifications and new issuances, including without limitation, executing and submitting to the issuing bank any and all documents or instruments as may be reasonably required to effectuate same. Each and every time there is a change in the identity or address of the parties, including without limitation, any change in the identity of the holder of the Note due to a permitted assignment of the Note to any other party, person or entity, the Letter of Credit shall promptly be amended or reissued to reflect such changes and the parties hereby agree to execute and submit to the issuing bank such further applications, documents and instruments as may be necessary to effectuate same. It is the intention of the parties that each and every successor and permitted assign of both Terremark and Tenant be bound by and subject to the terms and provisions of this Section 6. Terremark may not, at any time except as set forth in subsection (f) of this Section 6, assign all or any portion of its interest in and to the Letter of Credit to another party, person or entity. Tenant covenants and warrants that it will neither assign nor encumber the Letter of Credit or any part thereof and that neither Terremark nor its successors or permitted assigns will be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. Without limiting the generality of the foregoing, if the Letter of Credit expires earlier than the Letter of Credit Expiration Date, Terremark will accept a renewal thereof or substitute letter of credit (such renewal or substitute letter of credit to be in effect not later than thirty (30) days prior to the expiration thereof), which shall be irrevocable and automatically renewable as above provided through the Letter of Credit Expiration Date upon the same terms as the expiring letter of credit. However, if the Letter of Credit is not timely renewed or a substitution letter of credit is not timely received, or if Tenant fails to maintain the Letter of Credit in the amount and terms set forth in this Section 6, Terremark shall have the right to present such Letter of Credit to the issuing bank in accordance with the terms of this Section 6, and the entire sum evidenced thereby shall be paid to and held by Terremark as collateral for performance of all of Tenant’s obligations under the Note and for all losses and damages Terremark may suffer as a result of any default by Tenant under the Note. If there shall occur a default under the Note,

 
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