SURRENDER OF LEASE
AGREEMENT dated the 22nd day of December, 1998, by and between 000 XXXXXXXX
ASSOCIATES, having an office c/o Williams Real Estate Co. Inc., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (hereinafter referred to as "Landlord"), and XXXXXX
ELECTRONICS, INC., a New Jersey corporation having an office at 000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, by agreement of lease dated as of November, 1992, Landlord leased
to Reliable Broadway, Inc., a New York corporation, those certain premises known
as Store No. 2 and Basement No. 2 (the "Premises") in the building known as 000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building");
WHEREAS, such lease was assigned, by Assignment of Lease dated June 26,
1996, to Room Plus Furniture, Inc., Tenant's predecessor in interest
(hereinafter, "Tenant's Predecessor") (such assignment shall hereinafter be
referred to as the "First Assignment");
WHEREAS, such lease, as assigned, was further assigned to Tenant by
Assignment of Lease (herein, the "Second Assignment") dated June 29, 1998 (such
lease, as assigned and together with any modifications, amendments and
extensions thereof, if any, shall hereinafter be collectively referred to as the
"Lease");
WHEREAS, Tenant is now desirous of cancelling the Lease and surrendering
possession of the Premises;
WHEREAS, Landlord is willing to accept a surrender of the Premises upon the
terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, it is mutually agreed as follows:
1. The Lease is hereby cancelled as of the date hereof (hereinafter
referred to as the "Cancellation Date") with the same force and effect as if
said date were initially set forth in the Lease as the termination date thereof.
2. Tenant covenants and agrees that it will, on or before the Cancellation
Date, surrender possession of the Premises to Landlord, broom clean and in
accordance with the Lease provisions. Tenant hereby gives, grants and surrenders
unto the Landlord, its successors and assigns, the Premises and all of its
right, title and interest therein, TO HAVE AND TO HOLD unto Landlord, its
successors and assigns, effective as of the day following the Cancellation Date.
3. Tenant hereby covenants that it has not done or suffered anything to be
done whereby said Premises have been encumbered in any way whatsoever, nor shall
the Premises be in any way encumbered on the day Tenant surrenders possession
thereof to Landlord.
4. Tenant warrants, covenants and agrees, at its sole cost and expense, to
the extent reasonably practicable, fully and promptly cooperate with Landlord in
any action, proceeding or endeavor of Landlord to recover any moneys and/or
damages from Tenant's Predecessor including, without limitation, damages due
from Tenant's Predecessor arising out of the First Assignment. Such cooperation
shall include, without limitation, serving as a witness and/or providing
testimony (at depositions, in court, or otherwise), and promptly providing those
documents requested by Landlord.
5. Tenant hereby assigns to Landlord all its rights, claims and interests
arising out of the Lease. Tenant hereby releases Landlord, its successors and
assigns, from any and all claims and obligations under the Lease. Provided
Tenant complies with the provisions hereof, including, without limitation,
Xxxxxxxxx 0, Xxxxxxxx hereby releases Tenant from any and all claims of Landlord
for any payments due Landlord in connection with the Second Assignment.
6. Landlord has simultaneously herewith delivered to Tenant a check in the
amount of $39,748.00 (which amount represents the sum of $50,000.00 less rent
due under the Lease through 12/31/1998 or $12,752.00 plus a rent credit equal to
$2,500.00), and agrees to deliver a check in the amount of $40,000.00 on the
first anniversary of the date hereof, and a check in the amount of $35,000.00 on
the second anniversary of the date hereof as consideration for Tenant's
agreement to surrender the Premises and comply with the other provisions of this
agreement including, without limitation, Paragraphs 4 and 5 hereof.
7. Provided Tenant fully and faithfully complies with all the terms,
covenants and conditions of this Agreement, the security, or any balance
thereof, on deposit with Landlord under the Lease, shall be returned to Tenant
within thirty (30) days after the Cancellation Date
8. Tenant agrees to be responsible for all charges for utilities consumed
at the Premises to and including the Cancellation Date, as more particularly set
forth in the Lease. The obligation of Tenant in respect of such charges shall
survive the cancellation of the Lease.
9. Tenant acknowledges that this Agreement is being offered to Tenant for
signature by the managing agent of the building, solely in its capacity as such
agent, and is subject to Landlord's acceptance and approval. Tenant further
acknowledges that it has affixed its signature hereto with the understanding
that nothing herein contained shall in any way bind Landlord or its agent until
such time as this Agreement has been executed by Landlord and a fully executed
copy delivered to Tenant.
10. Tenant agrees that it shall solely be liable for, and warrants,
covenants and agrees to pay, any and all taxes (including, without limitation,
transfer taxes) due to any governmental authority arising out of this
transaction, all costs, expenses, fees, fines, penalties, or damages that may be
imposed on Landlord or Tenant by reason of Tenant's failure to comply therewith,
and shall, at Tenant's sole cost and expense, defend, indemnify and hold
Landlord harmless from and against any and all liabilities, obligations,
damages, penalties, claims, costs and expenses, including reasonable attorneys
fees, paid, suffered or incurred as a result of any breach by Tenant of this
Paragraph 10. In case any action or proceeding is brought against Landlord by
reason of any such claim, Tenant, upon written notice from Landlord, will, at
Tenant's expense, resist or defend such action or proceeding by counsel approved
by Landlord in writing, such approval not to be unreasonably withheld.
11. This Agreement may not be changed, modified or cancelled orally, and
shall inure to the benefit of and be binding upon the parties hereto, their
successors, legal representatives and assigns.
IN WITNESS WHEREOF, the parties have hereunder to set their hands and seals
as of the day and year first above written.
Witness for Landlord: 000 XXXXXXXX ASSOCIATES
By: /s/Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Its: Agent
Witness for Tenant: XXXXXX ELECTRONICS, INC.
/s/Xxxxxx X. Xxxxxxxxx By: /s/Xxxxxxxx X. Xxxx
---------------------------- ------------------------------
Xxxxxx X. Xxxxxxxxx Name: Xxxxxxxx X. Xxxx
Executive Vice President Its: President
and Chief Financial Officer
Xxxxxx Electronics
