SURRENDER AGREEMENT
SURRENDER AGREEMENT made as of August 31, 2002 between Omni South
Beach, L.P. having an office c/o Streamline Properties, Inc., 0000 Xxxxxxxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxxx ("Landlord"), and Commtouch Latin America having a
place of business at 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx Xxxxx, Xxxxxxx
("Tenant").
WITNESSETH
WHEREAS, Landlord entered into a certain lease dated June 30, 2000 (the
"Lease") covering the premises located at 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxx Xxxxx, Xxxxxxx (the "Premises");
WHEREAS, Tenant sublet the Premises to Xxxxxx X. Xxxxxxx PLLC pursuant
to sublease dated June 26, 2001 (the "Sublease");
WHEREAS, Tenant desires to surrender the Lease to Landlord and Landlord
is willing to accept such surrender in the manner and upon the terms and
conditions hereinafter setforth; and
WHEREAS, Tenant is simultaneously herewith entering into a Sublease
Termination Agreement with Subtenant.
NOW, THEREFORE, in consideration of the premises and Ten Dollars and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, it is mutually covenanted and agreed as follows:
1. Tenant shall surrender to Landlord as of August 31, 2002 ("Surrender
Date") the Lease and the term and estate thereby granted, together with the
Premises thereby demised, to the intent and purpose that the estate of the
Tenant in and to the Premises shall be wholly extinguished and that the term of
the Lease shall expire on the Surrender Date in the same manner and with the
same effect as if such date were the date set forth in the Lease for the
expiration of the term thereof.
2. Tenant hereby represents and covenants that nothing has been or will
be done or suffered whereby the Lease, or the term or estate thereby granted, or
the Premises, or any part thereof, or any alterations, decorations,
installations, additions and improvements in and to the Premises, or any part
thereof, have been or will be encumbered in any way whatsoever, and that Tenant
owns and will own the Lease and has and will have good right to surrender the
same, and that except for the Subtenant pursuant to the Sublease, no one other
than Tenant has acquired or will acquire through or under Tenant any right,
title or interest in or to the Lease, or the
term or estate thereby granted, or in or to the Premises, or any part thereof,
or in or to said alterations, decorations, installations, additions and/or
improvements, or any part thereof.
3. Tenant covenants and agrees that it will defend any third party
claim to ownership of the Lease, or possession of any portion of the Premises,
and will indemnify and hold harmless Landlord from any loss and/or expense
(including reasonable attorneys fees and disbursements) incurred as a result of
such third party claim.
4. In consideration of Landlord accepting this early surrender of the
Lease, Tenant agrees to forfeit all of its right, title and interest to the
following:
a) Its security deposit under the Lease in the amount of
$14,418.14;
b) The $58,020 proceeds of the letter of credit drawn down upon
by Landlord in accordance with the Lease; and
c) The furniture in the Premises, a schedule of which is attached
hereto as Schedule A ("FF&E").
5. Simultaneously herewith, Tenant is executing a) a Sublease
Termination Agreement with Xxxxxx X. Xxxxxxx PLLC and b) a xxxx of sale,
assigning to Landlord all of Tenant's right, title, and interest in and to the
FF & E. Tenant represents that the FF & E is owned free and clear by Tenant and
is not subject to any liens or encumbrances.
6. Landlord shall accept the surrender of the Lease as of Surrender
Date and in consideration of such surrender by Tenant and of the acceptance of
such surrender by Landlord, except as set forth in Section 7 hereof, Tenant and
Landlord do hereby mutually release each other, their respective
representatives, successors and assigns of and from any and all claims, damages,
obligations, liabilities, actions and causes of action, of every kind and nature
whatsoever, arising under or in connection with the Lease.
7. Tenant acknowledges that simultaneously with Tenant's termination of
the Sublease, Landlord is entering into a direct lease with Subtenant ("Direct
Lease") upon the same terms and conditions as the Sublease. Notwithstanding
anything to the contrary contained herein, Tenant shall remain responsible for
any commission due to Majestic Properties under the Sublease or under the Direct
Lease in the event Xxxxxx X. Xxxxxxx PLLC exercises its option to extend the
term of the Direct Lease, and Tenant hereby indemnifies and holds Landlord
harmless of
any from any cost, liability or expense (including reasonable attorney's fees
and costs) in connection with a claim by Majestic Properties for a commission.
8. This Surrender Agreement may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
9. The covenants, agreements, terms, provisions and conditions
contained in this Surrender Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have respectively executed this
Surrender Agreement as of the day and year first above written.
Landlord:
Omni South Beach, L.P.
By: Streamline Properties, Inc., Agent
/s/
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Witness
By: /s/ Xxxx Xxxxx, Pres. /s/
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Xxxx Xxxxx, Pres. Witness
Tenant:
Commtouch Latin America
/s/ Xxxx Xxxxx
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Witness
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxxxx Xxxxx
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Witness
