LEASE TERMINATION AGREEMENT
Exhibit 99
THIS LEASE TERMINATION AGREEMENT (this “Agreement”) is made and entered into as of the
13 day of October, 2006, by and between CAPTEC FRANCHISE CAPITAL PARTNERS, X.X. XX a Michigan
corporation (“Landlord”), and BLOCKBUSTER INC., a Delaware corporation (“Tenant”).
W I T N E S S E T H
A. Landlord and Tenant entered into that certain lease dated April 10, 1997 (collectively with
all amendments thereto, the “Lease”), whereby Landlord leased to Tenant, and Tenant leased
from Landlord, the premises more particularly described on Exhibit A attached hereto and
incorporated herein and located at 0000 Xxxxxxx Xxxxxxx 00, Xxxxxxxxx, Xxxxxxx (the
“Premises”); and
B. Landlord and Tenant desire to terminate the Lease on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein,
Landlord and Tenant agree as follows:
1. Defined Terms. Any capitalized terms not defined herein have the meanings
assigned to them in the Lease.
2. Termination of Lease. The Lease will terminate on November 30, 2006 (the
“Termination Date”) as if such Termination Date were set forth in the Lease as the
expiration date of the term of the Lease. On or before 11:59 p.m. on the Termination Date, Tenant
shall vacate and deliver possession of the Premises to Landlord in the manner set forth in the
Lease, and will be entitled to remove all of Tenant’s personal property and trade fixtures.
3. Rent and Other Lease Obligations. Tenant shall pay to Landlord on or before the
Termination Date, all rent, utility charges and other charges relating to the Premises, for which
Tenant is responsible pursuant to the Lease and which accrue on or prior to the Termination Date.
Tenant shall indemnify and hold Landlord harmless from and against any utility charges or other
charges relating to the Premises which are the obligation of Tenant under the Lease and which
accrue on or prior to the Termination Date. In addition, Landlord and Tenant shall comply with all
of their other respective obligations under the Lease that accrue on or prior to the Termination
Date.
4. Representations. Each party hereto represents and warrants to the other that such
party has full authority to execute and deliver this Agreement and that no consents or
authorizations to this Agreement are required to make this Agreement binding on the parties hereto.
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5. Release of Landlord. Tenant agrees that, upon termination of the Lease as
aforesaid, Landlord and its agents and employees will be fully released and discharged from any and
all obligations that may have theretofore arisen or may thereafter arise under or with respect to
the Lease or the Premises, save and except any failure to comply with the terms of this Agreement.
6. Release of Tenant and Guarantor. Landlord agrees that, upon termination of the
Lease as aforesaid, Tenant and its agents and employees will be fully released and discharged from
any and all obligations that may have theretofore arisen or may thereafter arise under or with
respect to the Lease or the Premises, save and except any failure to comply with the terms of this
Agreement. Upon termination of the Lease as aforesaid, Landlord further releases and discharges
Viacom Inc. (“Guarantor”) of and from any and all liabilities and obligations under that
certain Guaranty executed by Guarantor on April 4, 1997, in favor of Landlord, which Guaranty
guaranteed the obligations of Tenant under the Lease.
7. Attorneys’ Fees. If either party to this Agreement institutes any action or
proceeding against the other relating to the provisions of this Agreement or any default hereunder,
the prevailing party in such action or proceeding will be entitled to receive from the
non-prevailing party reasonable attorneys’ fees and paralegal fees and disbursements incurred
therein by such prevailing party. Such reimbursement will include all legal expenses incurred
prior to trial, at trial and in all levels of appeal and post-judgment proceedings.
8. Successors and Assigns. All covenants, promises, conditions, representations and
agreements herein contained are binding upon and inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, successors and assigns.
9. Entire Agreement. This Agreement, together with the Lease, constitutes the entire
understanding and agreement of the parties hereto with respect to the matters covered by this
Agreement, and no prior written or oral agreements, letters, representations, warranties, promises
or understandings pertaining to any such matters are effective with respect thereto. The parties
agree that this Agreement may be executed in multiple counterparts, each of which will be deemed an
original, and all of which will constitute one and the same instrument. This Agreement will be
binding upon the parties hereto upon receipt by each party of an executed copy of this Agreement
transmitted to it by the other party via facsimile or other means of telecommunications.
[THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS
WHEREOF, the parties have executed this Lease Termination Agreement as of the date
first written above.
| LANDLORD: |
||||||||||
| WITNESSES: | CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX, | |||||||||
| a Michigan corporation | ||||||||||
_/s/
|
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_/s/ |
By: /s/ Xxxxxx X. Kelly__________________________ | |||||||||
| Name: Xxxxxx X. Kelly__________________________ | ||||||||||
| Title: Vice President ___________________________ | ||||||||||
TENANT: |
||||||||||
| BLOCKBUSTER INC., |
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| WITNESSES: | a Delaware corporation |
|||||||||
_/s/
|
By: /s/ Xxxxxxx X. Krumholz_____________________ | |||||||||
_/s/
|
Name: Xxxxxxx X. Xxxxxxxx | |||||||||
| Title: Senior Vice President | ||||||||||
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[ACKNOWLEDGEMENT OF LANDLORD]
STATE OF Michigan )
) SS:
COUNTY OF Washtenaw )
On
this ___13___day of October, 2006, before me, the undersigned Notary Public in and for said
County and State, personally appeared Xxxxxx X. Xxxxx as VP
of CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX , a(n) Michigan corporation, who
executed the foregoing instrument on behalf of said corporation for the purposes therein expressed.
He/She is either ( X ) personally known to me or ( ) has produced _______________
as identification, and ( ) did or ( ) did not take an oath. In witness whereof, I
have hereunto set my hand and official seal the day and year last above written.
| ___/s/ Xxxxxxxx X. Xxxxxxx _______________________ | ||||
| Notary Public Signature | ||||
| (SEAL) | Printed/Typed Name:____________________________ | |||
| My Commission Expires:________________________ | ||||
| Commission No.:____________________________ |
[ACKNOWLEDGEMENT OF TENANT]
STATE OF TEXAS )
) SS:
COUNTY OF COLLIN )
) SS:
COUNTY OF COLLIN )
On this 12 day of October, 2006, before me, the undersigned Notary Public in and for said
County and State, personally appeared Xxxxxxx X. Xxxxxxxx, as Senior Vice President of BLOCKBUSTER
INC., a Delaware corporation, who executed the foregoing instrument on behalf of said corporation
for the purposes therein expressed. He is personally known to me and did not take an oath. In
witness whereof, I have hereunto set my hand and official seal the day and year last above written.
| /s/ Xxxx X. Xxxxxxx __________________________ | ||||
| Notary Public Signature | ||||
| (SEAL) | Printed/Typed Name:__________________________ | |||
| My Commission Expires:_______________________ | ||||
| Commission No.:_____________________________ |
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES ATTACHED
LEGAL DESCRIPTION
ALL THAT TRACT or parcel of land lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx xx Xxxxxxx Xxxxxx, Xxxxxxx, and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING, BEGIN at a point of intersection of the northwestern
right-of-way line of Georgia State Highway 85 (a 170 foot right-of-way) with the southwestern
right-of-way line of Xxxxxx Road (an 80 foot right-of-way); running thence south 24 degrees 15 minutes
00 seconds west along the northwestern right-of-way line of Georgia State Highway 85 a distance of 909.45 feet to a 3/8 inch rebar found; said point being the TRUE POINT OF BEGINNING; FROM THE TRUE
POINT OF BEGINNING AS THUS ESTABLISHED, run thence south 24 degrees 15 minutes 00 seconds
west along the northwesterly right-of-way line of Georgia State Highway 85 a distance
of 235 feet to a point; thence leaving the northwesterly right-of-way line of Georgia State Highway 85,
run north 65 degrees 45 minutes 00 seconds west a distance of 79.31 feet to a point; run thence
north 01 degrees 25 minutes 15 seconds west a distance of 16.65 feet to a 3/4 inch open top pipe
found; run thence north 65 degrees 45 minutes
00 seconds west a distance of 105.74 feet to a
3/4 inch open top pipe found; run thence north 24 degrees 15 minutes 00 seconds east a distance of 220.00 feet to a 3/8
inch rebar found; run thence south 65 degrees 45 minutes 00 seconds east a distance of 192.26 feet
to a 3/8 inch rebar found on the northwesterly right-of-way line of Georgia State Highway 85 and being
the TRUE POINT OF BEGINNING;
The above described property, containing 0.9995 acres is shown on and is described
according to that certain Boundary and Topographic Survey for Atlantis Properties, L.L.C.,
Regions Bank, Blockbuster Videos, Inc., Commonwealth Land Title Insurance Company, Captec Net
Lease Realty, Inc., Credit Suisse First Boston Mortgage Capital, L.L.C., and First American
Title Insurance Company prepared by Xxxxxx Xxxxxx & Associates, P.C., certified by Xxxxxx X. Xxxxxx,
Xx., GRLS No. 1729, dated February 4, 1997, last revised April 9, 1997, which Survey is incorporated
herein by reference thereto and made a part of this description.
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LEGAL
DESCRIPTION OF THE LAND
Page 1 of 2
ALL THAT
TRACT OR PARCEL OF LAND lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx xx Xxxxxxx Xxxxxx, Xxxxxxx, and being more particularly
described as follows:
TO FIND
THE TRUE POINT OF BEGINNING, BEGIN at the point of intersection of
the northwestern right-of-way line of Georgia State Highway 85 (a
170-foot right-of-way) with the southwestern right-of-way line of
Xxxxxx Road (an 80-foot right-of-way); running thence in a
southwesterly direction along the northwestern right-of-way line of
Georgia’s Xxxxx Xxxxxxx 00 Xxxxx 00 degrees 15 minutes 00
seconds West a distance of 909.45 feet to an iron pin found, said
iron pin being the TRUE POINT OF BEGINNING; FROM THE TRUE POINT OF
BEGINNING AS THUS ESTABLISHED, running thence South 24 degrees 15
minutes 00 seconds West along the northwestern right-of-way line of
Georgia State Highway 85 a distance of 400.01 feet to an iron pin
found on said right-of-way line; leaving said right-of-way line
running thence North 01 degree 25 minutes 15 seconds West along the
eastern line of the property now or formerly owned by East Point
Church of the Nazarene, Inc. a distance of 183.08 feet to a point;
continuing thence North 01 degree 25 minutes 15 seconds West along
the eastern line of the property now or formerly owned by East Point
Church of the Nazarene, Inc. a distance of 260.74 feet to an iron
pin; running thence South 65 degrees 45 minutes 00 seconds East along
the southeastern line of the property now or formerly owned by
Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx a distance of 192.28 feet to an
iron pin found on the northwestern right-of-way line of Georgia State
Highway 85, said iron pin being the TRUE POINT OF BEGINNING.
The
above-described property is shown as Parcel 1, being 0.7325 acres and
Parcel 3, being 0.1502 acres, on and is described according to Plat
of Boundary and Topographic Survey prepared for The Citizens and
Southern National Bank Construction Planning Department by Xxxxxx X.
Xxxxxx, Xx., Georgia Registered Land Surveyor No. 1729, Xxxxxx Xxxxxx
& Associates, P.C., dated November 4, 1988, last revised February
10, 1989, bearing Job No. 88-703, which plat of survey is
incorporated herein by this reference and made a part of this
description.
AND
ALL THAT
TRACT OR PARCEL OF LAND lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx xx Xxxxxxx Xxxxxx, Xxxxxxx, and being more particularly
described as follows:
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TO FIND THE TRUE POINT OF BEGINNING, COMMENCE, at the point of
intersection of the northwestern right-of-way line of Georgia State
Highway 85 (a 170-foot right-of-way) with the southwestern
right-of-way line of Xxxxxx Road (an 80-foot right-of-way); running
thence in a southwesterly direction along the northwestern
right-of-way line of Georgia Xxxxx Xxxxxxx 00 Xxxxx 00 degrees
15 minutes 00 seconds West a distance of 909.45 feet to an iron pin
found on said right-of-way; leaving said right-of-way line running
thence North 65 degrees 45 minutes 00 seconds West along the
northeastern line of the property now or formerly owned by Xxxxxxx
Investment Company a distance of 192.25 feet to an iron pin,
said iron pin being the TRUE POINT OF BEGINNING, FROM THE TRUE POINT
OF BEGINNING AS THUS ESTABLISHED running thence South 01 degree
25 minutes 15 seconds East along the western line of property now or
formerly owned by Xxxxxxx Investment Company a distance of
244.09 feet to an iron pin; running thence North 85 degrees 45 minutes
00 seconds West a distance of 105.74 feet to an iron pin running
thence North 24 degrees 15 minutes 00 seconds East a
distance of 220.00 feet to an iron pin, said iron pin being the TRUE
POINT OF BEGINNING.
The above-described property is shown as Parcel 2, being
0.2570 acres, on and is described according to plat of boundary
and topographic survey prepared for The Citizens and Southern
National Bank Construction Planning Department by Xxxxxx X.
Xxxxxx, Xx., Georgia Registered Land Surveyor No. 1729,
Xxxxxx Xxxxxx & Associates, P.C., dated November 4, 1988,
last revised February 10, 1989, bearing Job Number
88-703, which plat of survey is incorporated herein by this reference and made a part of this description.
88-703, which plat of survey is incorporated herein by this reference and made a part of this description.
LESS
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Xxx 000
xx xxx 00xx Xxxxxxxx xx Xxxxxxx Xxxxxx, Xxxxxxx, and being more
particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, BEGIN at the point of
intersection of the northwestern right-of-way line of Georgia State
Highway 85 (a 170-foot right-of-way) with the southwestern
right-of-way line of Xxxxxx Road (an 80-foot right-of-way); running
thence in a southwesterly direction along the northwestern
right-of-way line of Georgia State Highway 85 the following courses
and distances; South 24 degrees 15 minutes 00 seconds
West a distance of 909.45 feet to an iron pin found; and South
24 degrees 15 minutes 00 seconds West, a distance of
235.00 feet to a point; said point pin being TRUE POINT OF
BEGINNING; FROM THE TRUE POINT OF BEGINNING AS THUS ESTABLISHED, run
thence South 24 degrees 15 minutes 00 seconds West
along said northwestern right-of-way line of Georgia State Highway 85
a distance of 165.01 feet to an iron pin found; thence,
leaving said northwestern right-of-way line, run North
01 degrees 25 minutes 15 seconds West, a distance of
183.08 feet to a point; run thence South 65 degrees
45 minutes 00 seconds East, a distance of 79.31 feet
to a point located on the northwestern right-of-way line of Georgia
Xxxxx Xxxxxxx 00; said point being the TRUE POINT OF BEGINNING.
The above-described property is shown as Parcel 3, containing
0.1502 acres, on and is described according to Plat of Boundary and
Topographic Survey prepared for The Citizens and Southern National
Bank Construction Planning Department by Xxxxxx X. Xxxxxx, Xx.,
Georgia Registered Land Surveyor No. 1729, Xxxxxx Xxxxxx &
Associates, P.C., dated November 4, 1988, last revised
February 10, 1989, bearing Job No. 88-703, which plat of
survey is incorporated herein by this reference and made a part of
this description.
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