LEASE TERMINATION AND RELEASE AGREEMENT
EXHIBIT 10.8
THIS LEASE TERMINATION AND RELEASE AGREEMENT (the “Agreement”) is made as of the 20th
day of September, 2006 by and between 3-B EAST ASSOCIATES, a Florida general partnership (the
“Landlord”) and XXXXXXX CABLE, INC., a Delaware corporation (the “Tenant”).
R E C I T A L S:
1. Landlord and Tenant entered into that certain Standard Lease dated August 26th, 2003 as
amended by that certain Amendment to Standard Lease dated August 26th, 2003 (collectively, the
“Lease”), whereunder Landlord leased to Tenant certain premises (the “Leased
Premises”) located at 0000 Xxxxx Xxxxx Xxxxx. Xxxxx Xxxxx, Xxxxxxx.
2. Landlord and Tenant wish to terminate the Lease as set forth in this Agreement.
NOW THEREFORE in consideration of the sum of $10.00 and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant do hereby
covenant, promise and agree as follows:
1. Termination. Landlord and Tenant acknowledge and agree that the Lease shall
be terminated effective as of October 1, 2006 (the “Termination Date”). Following the
Termination Date, the Lease shall be considered terminated and of no further force or effect.
2. Termination Fee. In consideration of Landlord’s agreement to terminate the Lease
and to provide a release to Tenant in accordance with the terms of Section 4 below, Tenant shall
pay to Landlord a termination fee of Three Hundred Ninety Four Thousand Four Hundred Seventy Five
and no/100 Dollars ($394,475.00) (the “Termination Fee”) on or before October 9, 2006.
Landlord acknowledges and agrees that it shall not show the Termination Fee as rental income
on its books and Tenant acknowledges and agrees that it shall not show the Termination Fee as a
rental expense on its books. Tenant hereby indemnifies Landlord for any loss, cost or expense that
may be suffered by Landlord as a result of Tenant’s recording the Termination Fee as a rental
expense on its books. Each of the parties agrees that Tenant has vacated the Leased Premises prior
to the date of this Agreement and that upon execution of this Agreement, Tenant has no further
right to use or occupy the Leased Premises.
3. Landlord Release. Tenant hereby remises, releases, acquits, satisfies, and forever
discharges Landlord and its officers, directors, shareholders, partners, affiliates, employees and
agents (collectively, the “Landlord Releasees”), of and from all manner of action and
actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts and controversies, agreements, promises, variances,
trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity,
which Tenant ever had, now has or hereafter can, shall or may have, against any Landlord Releasee,
for, upon or by reason of the Lease and/or the Leased Premises, from the beginning of the world to
the date of this Agreement.
4. Tenant Release. Landlord hereby remises, releases, acquits, satisfies, and forever
discharges Tenant, and its officers, directors, shareholders, partners, affiliates, employees and
agents (collectively, the “Tenant Releasees”), of and from all manner of action and
actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts and controversies, agreements, promises, variances,
trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity,
which Landlord ever had, now has or hereafter can, shall or may have, against any Tenant Releasee,
for, upon or by reason of the Lease and/or the Leased Premises, from the beginning of the world to
the date of this Agreement.
5. Reservation of Liability. Notwithstanding the release contained in Paragraph 4
above, Tenant shall not be released from any indemnity obligations which, pursuant to the terms of
the Lease, expressly survive the termination of the Lease, specifically including, without
limitation, Tenant’s obligations contained in Section 28 of the Lease, or from any loss, cost or
expense that Landlord may suffer as a result of the Tenant having done any work at the Leased
Premises that is not in compliance with applicable codes or ordinances, as required under Section
12 of the Lease (the “Surviving Lease Obligations”). Tenant further expressly acknowledges
and agrees that notwithstanding the Release contained in Paragraph 4 above, if there occurs any
damage to the Leased Premises as a result of a windstorm casualty prior to the Windstorm Insurance
Deductible Expiration Date (as hereinafter defined), Tenant shall be responsible to reimburse
Landlord for the actual cost (not to exceed $424,000.00) of Landlord’s deductible under the
windstorm insurance policy that Landlord will maintain on the Leased Premises (the “Surviving
Windstorm Insurance Obligation”). For purposes hereof the “Windstorm Insurance Deductible
Expiration Date” shall mean the earlier of (i) the date that Landlord re-lets the Leased Premises
to a new tenant who has either obtained its own windstorm insurance policy for the Leased Premises
at its own cost and expense, or who is obligated to reimburse the Landlord for Landlord’s cost to
obtain a windstorm insurance policy for the Leased Premises, or (ii) November 30, 2006. In
addition, Landlord acknowledges that Tenant’s obligation to reimburse Landlord for the actual cost
of the deductible (not to exceed $424,000.00) shall be equitably apportioned between Landlord and
Tenant in the event that prior to the date that the Surviving Windstorm Insurance Obligation
terminates, Landlord re-lets some portion of the Leased Premises to a new tenant who has either
obtained its own windstorm insurance policy for the applicable portion of the Leased Premises at
its own cost and expense, or who is obligated to reimburse the Landlord for Landlord’s cost to
obtain a windstorm insurance policy for the applicable portion of the Leased Premises.
Tenant also further expressly acknowledges and agrees that notwithstanding the Release
contained in Paragraph 4 above, if there occurs any damage to the Leased Premises as a result of
fire or other casualty prior to the Casualty Insurance Deductible Expiration Date (as hereinafter
defined), Tenant shall be responsible to reimburse Landlord for the cost of Landlord’s deductible
under the fire and extended casualty insurance policy that Landlord will maintain on the Leased
Premises (the “Surviving Casualty Insurance Obligation”). (The Surviving Lease Obligations, the
Surviving Windstorm Insurance Obligation and the Surviving Casualty Insurance Obligation are
hereinafter referred to collectively as the “Surviving Obligations.”) For purposes of this Section
5, the “Casualty Insurance Deductible Expiration Date” shall mean the earlier of (i) the date that
Landlord re-lets the Leased Premises to a new tenant who has either obtained its own fire and extended casualty insurance policy for the Leased Premises at its own cost and
expense, or who is obligated to reimburse the Landlord for Landlord’s cost to obtain a fire and
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extended casualty insurance policy for the Leased Premises, or (ii) April 18th, 2007.
In addition, Landlord acknowledges that Tenant’s obligation to reimburse Landlord for the cost of
Landlord’s deductible under the fire and extended casualty insurance policy that Landlord will
maintain on the Leased Premises shall be equitably apportioned between Landlord and Tenant in the
event that, prior to the Casualty Insurance Deductible Expiration Date, Landlord re-lets some
portion of the Leased Premises to a new tenant who has either obtained its own fire and extended
coverage insurance policy for the applicable portion of the Leased Premises at its own cost and
expense, or who is obligated to reimburse the Landlord for Landlord’s cost to obtain a fire and
extended coverage policy for the applicable portion of the Leased Premises.
6. Accord and Satisfaction. Landlord and Tenant agree that this Agreement shall
constitute an accord and satisfaction and a mutual release, satisfaction and full discharge of any
and all claims, demands, rights, remedies, actions, suits, damages, debts, causes of action or
liabilities that any party hereto has or may have against the other party or against its
representatives, successors, assigns, officers, directors, members, partners, agents, attorneys,
subsidiaries, affiliates or employees, whether known or unknown, foreseeable or unforeseeable,
claimed or not claimed arising from or relating to the Lease and/or the Leased Premises, from the
beginning of the world to the date of this Agreement, except only as to the Surviving
Obligations and the terms and provisions of this Agreement.
7. Binding Effect. The conditions, covenants, and agreements contained in the
Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective
heirs, executors, administrators, successors and assigns.
8. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all together of which shall constitute one and the same
document.
9. Miscellaneous.
A. Each party hereto represents and warrants that it is authorized to enter into this
Agreement on behalf of its respective entity and to bind their respective said entity with respect
to the Agreement and any transaction contemplated by or occurring under the provisions of this
Agreement.
B. Except as modified pursuant to the terms of this Agreement, the Lease is in full force and
effect and this Agreement shall be deemed an amendment to the Lease.
C. Neither this Agreement nor anything contained herein shall constitute or be deemed an
admission of liability, wrongdoing, or unlawful conduct on the part of Tenant.
D. This Agreement has been jointly drafted by the parties and their counsel. The terms of
this Agreement may not be construed against any party based upon a claim that the party or its
counsel was responsible for drafting the Agreement, in whole or in part.
E. This Agreement contains the entire agreement among the parties with respect to the
settlement of the liabilities and obligations set forth herein, and supersedes any and all prior negotiations, promises, covenants, agreements or understandings among the parties
hereto to the subject matter hereof. Further, the parties agree that this Agreement, may not be
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amended or modified in any way, except by a written instrument signed by all parties to this
Agreement.
F. If any provision contained in this Agreement is held void, voidable, invalid or
unenforceable, then said provision shall be deemed to be severed and removed from this Agreement
and the remainder of this Agreement shall remain in full force and effect as if said provision had
never been contained therein.
G. This Agreement shall be governed by the laws of the State of Florida
H. In the event of any litigation under this Agreement, the prevailing party shall be entitled
to reimbursement of reasonable attorney’s fees and court costs at trial and all appellate levels.
I. The parties hereby acknowledge that they fully understand the terms of this Agreement; have
entered into same voluntarily; and have had the advice of counsel in so doing.
J. Each party agrees to bear their respective attorneys’ fees and costs incurred herein and
with respect to the Lease and the Leased Premises through the date of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
Signed, sealed and delivered in the
presence of:
|
LANDLORD: 3-B EAST ASSOCIATES, a Florida general partnership |
|
/s/ Xxxxxx Xxxxx
|
/s/ Xxxxxx X. Xxxxxx | |
Xxxxxx Xxxxx
|
Xxxxxx X. Xxxxxx | |
Chief Operating Officer |
||
| TENANT: | ||
| XXXXXXX CABLE, INC., a Delaware corporation | ||
/s/ Xxxxxxx X. Xxxxx
|
/s/ Xxxxxxx X. Xxxxxxxx | |
Xxxxxxx X. Xxxxx
|
Xxxxxxx X. Xxxxxxxx | |
Assistant to the Chief Executive Officer
|
Senior Vice President, Operations |
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