TERMINATION OF LEASE AND SURRENDER, ACCEPTANCE AND RELEASE
Exhibit 10.1
THIS TERMINATION OF LEASE AND
SURRENDER, ACCEPTANCE AND RELEASE ("Termination Agreement")
is made this 16 day of October, 2009, (the "Effective Date")
by and between Boca Town Partners, LLC, a Florida limited
liability company having a principal place of business at 000 Xxxxxx Xxxx, Xxxxx
000 Xxxx Xxxxx, Xxxxxxx 00000 ("Landlord")
and Anchor Funding Services, LLC, a North Carolip limited
liability company having a principal place of business at 00000 Xxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("Tenant).
WITNESSETH:
WHEREAS,
Landlord and Tenant entered into a Lease Agreement dated April 16, 2007
(which with all assignments, modifications and extensions now in effect is
hereinafter referred to as the "Lease"); covering premises
commonly known as 000 Xxxxxx Xxxx, Xxxxx XX0, Xxxx Xxxxx, Xxxxxxx 00000 and
being more particularly described in the Lease (the "Premises");
WHEREAS,
the term of the Lease is to expire on May 31,
2012;
WHEREAS,
Landlord and Tenant desire to cancel and terminate the Lease, including all
option periods and all obligations of the Tenant, effective as of the
Termination Date, as herein defined: and
NOW, THEREFORE, for and in
consideration of the premises and the sum of Ten and 00/100 ($10.00) Dollars,
and other good and valuable consideration paid by Landlord to Tenant, the
receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant
hereby mutually covenant and agree as follows:
FIRST: The foregoing recitals
shall be deemed as material representations of the parties which are
incorporated herein by this reference with the same force and effect as if set
forth at length.
SECOND:
Simultaneously with the full execution of this Termination Agreement and the
payment of Ninety One Thousand Three
Hundred Seventy-Five (5(91,375.00) Dollars in good funds and the
clearance of the same ("Termination Fee"),
the Lease shall be deemed canceled and terminated upon the Tenant's
vacation of Premises on or before October 31, 2009 (the "Termination Date").
In addition to the Termination Fee, one half (1/2) of the Security
Deposit in the amount of $8,625.00 shall be deemed forfeited by the Tenant to
the Landlord, and Landlord shall have all rights to retain the same for its
exclusive use. Furthermore, rent for the complete month of October 2009,
notwithstanding the actual date that Tenant vacates the Prem- ises, shall be paid by
Tenant to Landlord's by Landlord's application of the other one half (1/2) of
the Security Deposit in the amount of $8,625,00.
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THIRD: Effective on the
Termination Date, Tenant by these presents does give, grant and surrender unto
Landlord, its successors and assigns, the Lease and all the Premises demised
thereby, and all the estate, right, title, interest, term of years, property,
claim and demand whatsoever of Tenant of, in, to or out of the same or any part
or parcel thereof. Landlord does hereby agree to accept the surrender of the
Lease and the Premises in their present condition, reasonable wear and tear
excepted, and does hereby release Tenant from the performance of all covenants
and obligations contained in the Lease and in all prior leases, contracts and
agreements (if any) of every kind and nature whatsoever affecting the Premises
or the property of which the Premises are a part, including, without limitation,
the performance of all covenants to pay annual minimum rent, additional rent,
percentage rent, real estate taxes, or any other sums, charges or rent .
Notwithstanding the foregoing, all the terms and conditions of the Lease which
survive vacation of the Premises by the Tenant, including but not limited to any
continuing responsibilities for environmental contamination and liability
indemnification shall remain unaffected and shall specifically survive the
execution of this Termination Agreement and shall survive the Termination Date.
In addition to the Premises, on the Termination Date, Tenant by these presents
does convey, give, grant and surrender unto Landlord, its successors and
assigns, free of all liens and encumbrances, any and all of the fixtures, trade
fixtures, furniture, furnishings and equipment, (excluding computers
and telephone and copy machine) outline on Schedule "A" to this
Termination Agreement (the "Equipment").
Tenant represents to Landlord that Tenant owns the Equipment free
and clear of all encumbrances and warrants the same to Landlord.
FOURTH:
Except .as otherwise provided herein, Landlord and Tenant for themselves and
their predecessors, successors and assigns, do hereby remise, release and
forever discharge each other, their successors and assigns, from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialities, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, claims and
demands whatsoever in law or in equity which each against the other ever had,
now has, or which they or their respective predecessors, successors or assigns
hereafter may have, upon or by reason of any matter, cause or thing whatsoever
from the beginning of the world through the Termination Date arising out of or
in connection with the Lease, said prior leases, contracts or agreements, or the
demised term, the Premises, or any building erected thereon, or the property of
which the Premises are a part, or the alleys, if any, sidewalks, easements,
rights and appurtenances in connection therewith or thereunto belonging. Nothing
herein contained shall be deemed to constitute a release or discharge by either
Landlord or Tenant of any rights, actions, or claim for contribution or
indemnity which either party may have against the other by reason of any action,
suits, claims or demands by any third person or entity seeking to establish
liability against Landlord and Tenant.
FIFTH:
Landlord does hereby covenant, warrant and represent to and with Tenant that
Landlord is the fee owner of the Premises and holder of the entire lessor's
interest under the Lease free and clear of all assignments, liens and
encumbrances and has full right, title, and authority to enter into this
Termination Agreement without the necessity of obtaining the consent of any
other party.
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SIXTH:
Tenant does hereby covenant, warrant and represent to Landlord that Tenant (i)
is the owner of an unencumbered tenant's leasehold title to the Premises and is
the owner of unencumbered Equipment (or any encumbrances therein shall be
released on or prior to the Termination Date) and (ii) is authorized to
terminate its leasehold interest in the Premises pursuant to this Termination
Agreement, and (iii) is not a "foreign person" as defined in the Internal
Revenue Code Section 1445(F)(3), nor is the transfer of the Premises subject to
any withholding requirements imposed by the Internal Revenue Code including,
but--not limited
to, Section 1445 thereof. The execution and performance of this Termination
Agreem- ent by
Tenant will not violate any provision of any certificate of incorporation or
by-laws, or any other agreement to which Tenant is a party or by which Tenant or
the Premises may be bound or affected, other than the provisions of any
mortgages which may encumber the Premises. To the best of the knowledge of
Tenant or any of its officers, there is no litigation or tax proceedings
pending, or threatened with respect to the Premises, the Equipment or this
Termination Agreement. Tenant has not entered into any contract, lease or other
Termination Agreement which is presently in effect (other than this Termination
Agreement) whereby Tenant has agreed to sell, lease, assign, or otherwise
transfer any of Tenant's right, title or interest in and to the Premises or the
Lease, or any interest therein, or whereby Tenant has granted to any third party
an option or a right of first refusal to purchase the Lease or any part of
Tenant's leasehold interest therein, nor permitted a lien on any fixtures, trade
fixtures, furniture, furnishings and equipment not removed by Tenant. All
personal property taxes on the Equipment for tax year 2009 shall be paid for by
Tenant. This representation shall survive the Termination Date.
SEVENTH:
The economic and other substantive terms and provision of this Termination and
of the transaction contemplated hereunder are confidential and will be treated
as such by the parties to this Termination Agreement. Notwithstanding the
foregoing, such terms and provisions of this Termination Agreement may be
disclosed (a) with the prior written consent of the other party hereto, and/or
(b) on a "need to know" basis to any lender or other party whose consent or
agreement is required to consummate the transaction contemplated by this
Termination Agreement, provided such party shall be advised that the disclosure
is made on a confidential basis, and/or (c) as may be required by law,
including securities and banking laws or regulations.
EIGHTH:
This Termination Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and upon their respective successors and assigns.
NINTH:
This Termination Agreement may be executed in any number of counterparts and
each counterpart shall be deemed to be an original and all such counterparts
together shall constitute one and the same instrument.
TENTH: If
required by Landlord, the Landlord and Tenant shall execute and record a Notice
of Lease Termination in recordable form reflecting the Termination of the
Lease.
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IN WITNESS WHEREOF, Landlord
and Tenant have duly executed this Termination Agreement as of the day and year
first above written.
| Witnessed as to LANDLORD: |
LANDLORD:
BOCA TOWN PARTNERS, LLC.
a Florida limited liability Company
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/s/
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/s/
Xxxxxx Xxxxx
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Name:
Xxxxxx Xxxxx
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Title:
President
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Witnessed as to
LANDLORD:
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TENANT:
ANCHOR
FUNDING SERVICES, LLC. a North Carolina limited liability
company
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/s/
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/s/
Xxxx Xxxxxxxxx
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Name:
Xxxx Xxxxxxxxx
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Title:President
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EXHIBIT
A
EQUIPMENT
EQUIPMENT
