EXHIBIT 10.28
LEASE TERMINATION
AGREEMENT
AGREEMENT , as of this 28th day of December, 2005 between
BROAD FINANCIAL CENTER LLC , a New York limited liability
company, having an office at 565 Fifth Avenue, 30
th
Floor, New York, New
York 10017 (hereinafter called “ Landlord ”) and
ARBINET COMMUNICATIONS, INC., a Delaware corporation,
qualified to transact business in the State of New York, having an
office at 75 Broad Street, 20 th Floor, New York, New York 10004
(hereinafter called “ Tenant ”).
W
I T N
E S S E T H
:
WHEREAS:
(1) Landlord, and Tenant executed
that certain lease dated as of September 30, 1999 (the “
Lease ”), covering the entire rentable area of the
nineteenth (19th) floor (the “ Premises ”)
in the building known as Broad Financial Center, 33 Whitehall
Street, New York, New York (the “ Building ”),
for a term to expire on December 31, 2009 (the “
Expiration Date ”); and
(2) Landlord and Tenant desire to
accelerate the Expiration Date of the Lease and to enter into
certain other agreements incidental thereto, subject to the
provisions of this Agreement.
NOW, THEREFORE
, in consideration of the mutual
covenants herein contained, it is agreed as follows:
FIRST : The Lease is hereby amended by changing the
Expiration Date to December 31, 2005.
SECOND : On or prior to the Expiration Date, Tenant
shall surrender the Premises to Landlord in accordance with the
Lease provisions pertaining thereto.
THIRD : Tenant hereby covenants that it shall be
liable for the observance and performance of each and every one of
the terms, covenants and conditions of the Lease on
Tenant’s part to be observed and performed
by it up to the Expiration Date including, without limitation, the
payment of fixed annual rent, additional rent and all other charges
due under the Lease.
FOURTH : Tenant covenants that it has not done or
suffered anything to be done whereby the Premises have been
encumbered in any way whatsoever, and that the Premises shall not
be in any way be encumbered on the Expiration Date.
FIFTH : (a) Tenant shall pay to Landlord the sum
of One Million Three Hundred Fifty Thousand and 00/100
($1,350,000.00) Dollars as a termination fee (the “
Termination Fee ”) in consideration for an early
termination of the Lease.
(b) The Termination Fee shall be
payable as follows:
(i) Five Hundred Twenty Four
Thousand Seven Hundred Sixty-Five and 00/100 ($524,765.00) Dollars
by bank or certified check or wire transfer upon execution of this
Agreement by Tenant and Landlord (Landlord’s signature to be
confirmed to Tenant by facsimile copy of the signature page of this
Agreement sent to Tenant); and
(ii) Eight Hundred Twenty Five
Thousand Two Hundred Thirty Five and 00/100 ($825,235.00) Dollars,
payable in equal monthly installments of $17,192.39 per month
during the period from January 1, 2006 through
December 31, 2009.
(c) The Termination Fee set forth in
(b) (ii) above shall be paid in equal monthly
installments in advance on the first day of each calendar month
during the above period at the office of the Landlord or such other
place as Landlord may designate without any setoff or deduction
whatsoever. Tenant shall pay the Termination Fee in lawful money of
the United States by check (subject to collection) drawn to the
order of Broad Financial Center LLC, or such other party as
Landlord may from time to time designate.
(d) If Tenant shall fail to pay when
due any installment of the Termination Fee when due and such
failure shall continue for five (5) business days beyond the
date such payment was due, Tenant shall pay, interest on such
amounts at the Interest Rate (as defined below) from the last day
of such five-business day period to the date the same is paid to
Landlord, “Interest Rate” shall mean a rate per annum
equal to the lesser of (a) 2% above the so-called “prime
rate” of Citibank N.A., as publicly announced from time to
time or if Citibank
2
N.A. shall cease to exist or cease to announce
such rate, any similar rate designed by Land
