EXHIBIT 10.1
FORBEARANCE AGREEMENT
(with Release Provision)
AGREEMENT effective the 28th day of August, 2001 by and between BERKSHIRE
INDUSTRIAL CORPORATION, hereinafter referred to as "BERKSHIRE", and CYBERIAN
OUTPOST, INC., hereinafter referred to as "OBLIGOR".
WHEREAS, BERKSHIRE is the owner of record of certain premises at 0
Xxxxxxxxx Xxxxxxxxx, a/k/a as 17,000 square feet space in Building Number 8,
Berkshire Corporate Park, in the Town of Bethel, County of Farifield and State
of Connecticut (the "demised premises");
WHEREAS, On or about September 9, 1999, by written lease (the "lease"),
BERKSHIRE leased the demised premises to the OBLIGOR, CYBERIAN OUTPOST, INC.;
WHEREAS, the OBLIGOR entered into possession of the demised premises
pursuant to the lease;
WHEREAS, the OBLIGOR in default of the lease;
WHEREAS, BERKSHIRE has commenced an action in summary process to recover
possession of the demised premises, which action is pending in the Superior
Court for the Judicial District of Danbury, G.A.#3.
WHEREAS, the OBLIGOR is liable to BERKSHIRE for damages under the lease.
WHEREAS, BERKSHIRE has exercised its right to recover possession of the
demised premises, and has retained legal counsel to enforce its rights under the
lease.
WHEREAS, BERKSHIRE is prepared to obtain judgment in said summary process
action pending in the Superior Court for the Judicial District of Danbury,
G.A.#3;
WHEREAS, BERKSHIRE has the right and is prepared to commence an action for
money damages against the OBLIGOR for the OBLIGOR'S breach of the lease;
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WHEREAS, OBLIGOR wishes BERKSHIRE to forestall any further legal action
against OBLIGOR;
WHEREAS, BERKSHIRE is willing to forestall further legal action against
OBLIGOR in return for OBLIGOR'S promises contained herein which are satisfactory
and acceptable to BERKSHIRE; and
WHEREAS, the parties wish to confirm their agreements.
WHEREFORE, in consideration of the mutual promises, covenants and untakings
contained herein, it is agreed that:
1. OBLIGOR shall vacate the demised premises for possession by BERKSHIRE
on or before 12:00 o'clock p.m. on September 14, 2001, time being of the
essence. Thereafter, the OBLIGOR shall have no further rights of possession
under the lease or operation of law; and BERKSHIRE shall be released from any
further performance or obligation under the lease.
2. Upon the execution of this Agreement by OBLIGOR, OBLIGOR shall tender
to BERKSHIRE the sum of twenty thousand dollars ($20,000.00) in good funds.
3. On or before 5:00 o'clock p.m. on October 1, 2001, the OBLIGOR shall
tender to BERKSHIRE the additional sum of eighty thousand dollars ($80,000.00)
in good funds, time being of the essence.
4. If possession of the demised premises is given to BERKSHIRE and
payments are made to BERKSHIRE as provided for hereinabove, and no legal action
occurs or is taken by third party creditors of OBLIGOR that might adversely
affect the legal interests of BERKSHIRE, subject to the terms of Provision 6
contained hereinafter, this Agreement shall serve as BERKSHIRE'S release of
OBLIGOR from any and all further liability to BERKSHIRE under the lease.
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5. If possession of the demised premises is not given to BERKSHIRE and/or
payments are not made to BERKSHIRE as provided for hereinabove, or legal action
occurs or is taken by third party creditors of OBLIGOR that will or might
adversely affect the legal interests of BERKSHIRE, BERKSHIRE shall have the
option and right to take any legal action deemed appropriate by BERKSHIRE
against the OBLIGOR for collection of any and all damages that BERKSHIRE may
sustain as a result of the breach of the lease by OBLIGOR, including, but not
limited to, any and all costs incurred by BERKSHIRE prior to this date, which
shall be deemed costs of collection payable by OBLIGOR.
6. Notwithstanding any provisions to the contrary contained herein, prior
to vacating the demised premises, and except for payment of base rent, OBLIGOR
shall continue to be liable to BERKSHIRE pursuant to the terms of the lease.
Nothwithstanding any provisions to the contrary contained herein, in addition to
the promises of the OBLIGOR contained herein, subsequent to vacating the demised
premises; OBLIGOR shall continue to be liable to BERKSHIRE pursuant to Provision
8 (Security) and Provision 12 (Tenant Fit-Out and Alterations) and Provision 9
(Utilities) of the lease. Any utility expenses payable by OBLIGOR shall be paid
on October 1, 2001.
7. This Agreement shall be binding against the respective successors and
assigns of the parties hereto.
Wherever in this instrument any party shall be designated or referred to by
name or general reference, such designation is intended to and shall have the
same effect as if the words "heirs, executors, administrators, personal or legal
representatives, successors and assigns" had been inserted after each and every
such designation and all the terms, covenants and conditions herein contained
shall be for and shall inure to the benefit of and shall bind the respective
parties hereto, and their heirs, executors, administrators, personal or legal
representatives, successors and assigns, respectively.
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In all references herein to any parties, persons, entities or corporations
the use of any particular gender or the plural or singular number is intended to
include the appropriate gender or number as the text of the within instrument
may require.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a number of copies hereof each signed by less
than all, but together signed by all of the parties hereto.
CYBERIAN OUTPOST, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
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BERKSHIRE INDUSTRIAL CORPORATION
By: /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx, President
STATE OF CONNECTICUT:
: ss August 31, 2001
COUNTY OF LITCHFIELD:
Personally appeared before me, Xxxxxxxxxxx X. Xxxxx, Vice President of
CYBERIAN OUTPOST, INC., signer and sealer of the foregoing instrument, who
acknowledged that the execution of the foregoing instrument was his free act and
deed, and the free act and deed of CYBERIAN OUTPOST, INC.
/s/ Xxxxxxx Xxxxxxx
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Commissioner of the Superior Court
Notary Public
XXXXXXX XXXXXXX
NOTARY PUBLIC
MY COMMISSION EXPIRES 6-30-03
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STATE OF CONNECTICUT:
: ss. Danbury September 26, 2001
COUNTY OF LITCHFIELD:
Personally appeared before me, Xxx X. Xxxxxxx, President of BERKSHIRE
INDUSTRIAL CORPORATION, signer and sealer of the foregoing instrument, and
acknowledged that the execution of the foregoing instrument to be his free act
and deed, and the free act and deed of BERKSHIRE INDUSTRIAL CORPORATION.
/s/ Xxxxxx X. Xxxxxxx
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Notary Public
My Commission Expires May 31, 2003
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