Exhibit 10.4 


 


Spherix
Incorporated


 


LEASE
TERMINATION AGREEMENT


 


This Lease Termination Agreement (“Agreement”)
is made and entered into this 1st day of August, 2007 by and between Indian Creek Investors, LLC, a Maryland limited liability company, successor-in-interest
to Liberty Property Limited Partnership (“Landlord”) and Spherix
Incorporated, a Delaware corporation, successor in  interest to Biospheries Incorporated (“Tenant”).


 


W I T N E S S E T H:


 


WHEREAS,
Landlord and Tenant, through their predecessors-in-interest, are parties to a
Lease Agreement dated November 7, 1997 (the “Current Lease”), whereby Landlord
leases to Tenant certain real property containing approximately 51,625 rentable
square feet of space located at 12051 Indian Creek Court, Beltsville, Maryland
(the “Original Premises”); and


 


WHEREAS,
InfoSpherix Incorporated, a wholly-owned subsidiary of Tenant (“InfoSpherix”),
is negotiating a new lease for alternative premises containing approximately
13,338 rentable square feet located at 22530 Gateway Center Drive, Clarksburg,
Maryland (the “New Premises”) in a different office/warehouse project commonly
referred to as Gateway 270 (the “New Lease”);


 


WHEREAS, Tenant has agreed to sell all of the issued and outstanding
capital stock of InfoSpherix to The Active Network, Inc., and such sale is
expected to close in the near future.


 


WHEREAS, it is expected that Tenant and InfoSpherix will continue to
share the Original Premises following the sale of InfoSpherix until such time
as InfoSpherix moves into the New Premises.


 


WHEREAS, after
the full execution of the New Lease by InfoSpherix and the landlord of the New
Premises, the parties desire to terminate the Current Lease in accordance with
the terms and conditions of this Agreement.


 


NOW THEREFORE, in consideration of the mutual covenants
herein made, Landlord and Tenant hereby enter into this Agreement and state as
follows:


 


1.                    Recitals. The
foregoing recitals are incorporated herein by this reference.


 


2.                    Possession.  Except as expressly set forth herein,
conditioned upon: (i) all of the parties’ full execution of this Agreement,
(ii) the Tenant paying the Termination Fee (defined below), and (iii) the full
execution of the New Lease, Tenant agrees that it will move from the Original
Premises and InfoSpherix will move into the New Premises on or before the
Commencement Date under the New Lease, which date is targeted as November 1,
2007.


 


3.                    Rent. Tenant agrees
that it must pay Minimum Rent, Annual Operating Expenses, utility charges and
Tenant’s Proportionate Share of Impositions and Landlord’s cost of insurance


 


1

















 


and any other charges (collectively herein referred
to us “Rent”) under the Current Lease until the Commencement Date under the New
Lease. Except as provided immediately below, Tenant’s obligation to pay Rent
under the Current Lease will continue until Tenant has properly surrendered the
Original Premises. Notwithstanding the foregoing, if the Commencement Date
under the New Lease does not occur by December 31, 2007, and such delay is not
caused by the Tenant’s actions or omissions, then, beginning on January 1,
2008, the Tenant shall pay Base Rent, Tenant’s Share Real Real Estate Taxes and
Operating Expenses, utilities and all other charges specified in the New Lease
and not the Rent as outlined in the Current Lease.


 


4.                    Premises. Tenant agrees to vacate and surrender the Original Premises broom-clean and as
otherwise required hereunder and under Section 21 of the Current Lease on or
before the New Lease Commencement Date. Tenant hereby relinquishes any right which it mav have under the
Current Lease to possession or occupancy of the Original Premises from and
after the date Tenant has properly vacated and surrendered the Original
Premises.


 


5.                    Termination Fee. (a) Except as expressly set forth herein, and as long as Tenant is not
in default under the Current Lease or InfoSpherix is not in default under the
New Lease, upon (i) all of the parties’ execution of this Agreement, (ii) the
full execution of the New Lease by InfoSpherix and the landlord of Gateway 270,
and (iii) the payment of the Termination Fee (defined below), the parties agree
that the parties’ respective rights and obligations under the Current Lease
shall terminate on the date that Tenant has surrendered the Original Premises
in accordance with the requirements of the Current Lease, as amended by this
Agreement (the “Effective Date”).


 


(b)              The
Termination Fee to be paid by the Tenant to the Landlord is Four Hundred
Seventy-Five Thousand and No/100 Dollars ($475,000,00). The Tenant shall pay
the Landlord one half of the Termination Fee, which is the amount of Two
Hundred Thirty-Seven Thousand Five Hundred and No/100 Dollars ($237,500.00), on
the date that this Agreement is fully executed by the parties. The Tenant will
pay the fifty percent (50%) balance of the Termination Fee on the Commencement
Date of the New Lease for the New Premises.


 


6.                    Security Deposit. Landlord
is currently holding a security deposit in the amount of Forty-Nine Thousand
Eighty-Six and 77/100 Dollars ($49,086.77) (the “Security Deposit”) in
accordance with the terms of the Current Lease. Landlord shall return the
Security Deposit to Tenant promptly on the later of (1) the New Lease
Commencement Date or (2) the date that Tenant has surrendered the Original Premises
in accordance with the requirements of the Lease and provided Tenant is
otherwise not in default under the Current Lease.


 


7.                    Landlord’s Recapture Right. The Tenant hereby represents that it is only
occupying approximately fifty percent (50%) of the Premises and intends to do
so until the Commencement Date of the New Lease. Notwithstanding any other
provision of the Current Lease or this Agreement to the contrary, prior to the
Commencement Date of the New Lease, the Landlord shall have the right, upon
giving Tenant fifteen (15) days prior written notice, to recapture a portion of
the Original Premises (not to exceed fifty percent (50%) of the Original
Premises), at which point the Rent shall he proportionately reduced. The
fifteen (15) day written notice will specify that portion of the Original
Premises that Landlord desires to recapture. The


 


2

















 


Landlord and Tenant will cooperate so that the
portion of the Premises recaptured by Landlord (up to fifty percent (50%) of
the Original Premises) will not disrupt the business of Tenant or InfoSpherix
as transacted in the Premises, Until the Commencement of the New Lease, the
Tenant will allow the Landlord to show the Original Premises to prospective new
tenants.


 


8.                    Mutual Release.
Landlord and Tenant acknowledge and agree that, with the exception of rights
arising herefrom or preserved hereunder, this Agreement shall constitute the
termination of the Lease as of the Effective Date and the parties’ accord and
satisfaction and mutual release as of the Effective Date of any and all
demands, rights, claims, remedies, actions. causes of actions or liabilities
(collectively referred to herein as “Claims”) that Landlord and Tenant may have
against any of the other parties hereto or against any of their
representatives, heirs, predecessors, successors, assigns, officers, directors,
partners, agents, managing agents, legal representatives or employees of the
others, including, without limitation, any claims that have arisen, or could be
asserted arising from or relating to the Current Lease. Notwithstanding the
foregoing, this mutual release shall not apply to third party Claims made
against Landlord (or involving Landlord) arising from or related to acts or
omissions of Tenant at the Original Premises prior to the Effective Date, or to
any third party Claims related to the presence, release, storage or use of any
hazardous materials or substances as defined by Maryland or Federal law or
violations of any environmental laws, which arise from or are related to, acts
or omissions of either party prior to the Effective Date.


 


9.                    Entire Agreement.
This Agreement constitutes the entire agreement of the parties with respect to
the subject matter addressed herein. No terms, conditions, representations,
warranties, promises, or understandings, of any nature whatsoever, express or
implied, have been made or relied upon by any party hereto. This Agreement may
not be modified, waived, discharged or terminated other than by a writing
executed by the parties hereto. This Agreement shall not be construed as an
admission of liability by any party hereto.


 


10.              Choice
of Law. The terms of this
Agreement shall be construed and enforced in accordance with the laws of the State
of Maryland, and any action thereon shall be brought in the appropriate
Maryland State court, with the parties waiving the rights to removal to Federal
Court, and to any jury demand.


 


11.              Counterpart.
This Agreement may be executed in several counterparts and all such
counterparts shall constitute but one in the same Agreement which shall be
binding upon all parties hereto. A signature received via facsimile shall have
the same force and effect as an original signature.


 


[Signature
Page Follows]


 


3

















 


IN WITNESS
WHEREOF, the parties hereto set forth their hands and seals as
of the date first set forth above. 


 


	
  ATTEST/WITNESS:

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  Indian
  Creek Investors, LLC,

  
	
   

  	
  a
  Maryland limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  FP
  Indian Creek, LLC

  
	
   

  	
   

  	
  Its
  Sole Member

  
	
   

  	
  By:

  	
  First
  Potomac Realty Investment

  
	
   

  	
   

  	
  Limited
  Partnership

  
	
   

  	
   

  	
  Its
  Sole Member

  
	
   

  	
  By:

  	
  First
  Potomac Realty Trust.

  
	
   

  	
   

  	
  Its
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  /s/ ILLIGEBLE

  	
   

  	
  By:

  	
  /s/ Timothy M. Zulick

  	
   

  
	
   

  	
  Name:

  	
  Timothy M. Zulick

  	
   

  
	
   

  	
   

  	
  Senior VP. Leasing

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
  8/1/07

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ATTEST/WITNESS:

  	
  TENANT:

  
	
   

  	
   

  
	
  /s/ ILLIGEBLE

  	
   

  	
  Spherix
  Incorporated

  
	
   

  	
  a
  Delaware Corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steve Wadl

  	
  (Seal)

  
	
   

  	
  Name:

  	
  Steve
  Wadl

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President II

  	
   

  
	
   

  	
  Date:

  	
  8/1/07

  	
   

  
								



 


4