Exhibit 10.40
November 8, 0000
Xxxxxxx X. Xxxxxxx, Xxx.
Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
Re: Lease dated January 1, 1994, between PURMIL CO., ("Landlord"),
and CINEMA HERRICKS, INC. ("Cinema"), as Tenant, for premises located at
0000 Xxxxxxxx Xxxxxx, Xxx Xxxx Xxxx, Xxx Xxxx (the "Lease")
Dear Xx. Xxxxxxx:
The following constitutes the settlement proposal discussed at our
conference. Provided compliance is had with all the provisions herein, Landlord
agrees as follows:
1. The Landlord consents to the assignment of the lease by Cinema to CCC
Herricks Cinema Corp. ("CCC") provided that CCC unconditionally assumes the
Lease, and all obligations thereunder, as if it were the original tenant
thereunder. The form of assignment and assumption agreement shall be Xxxxxxxx
form P586 or its equivalent (the "Assignment") which is annexed hereto as
Exhibit "A".
2. The Assignment may provide that it shall be null and void if CCC fails
to meets its obligations to Cinema or shall fail to exercise its purchase option
pursuant to the written Agreement dated September 8, 1995 between Cinema and
CCC. Only the assignment shall be voided but no CCC's assumption which
obligation will continue to the end of the Lease. The Landlord shall receive
notice of any claim by Cinema that would give rise to a cancellation of the
Assignment and notice of the actual cancellation. Upon the Assignment becoming
null and void Cinema shall resume as the tenant pursuant to the terms of the
Lease and shall be given a reasonable opportunity to promptly cure any defaults
existing thereunder.
3. Cinema shall pay to us our fees in connection with reviewing, revising
and/or preparing documentation relating to this transaction, other services,
costs and disbursements relevant thereto, and legal fees and disbursements in
connection with the legal proceedings being settled herewith in the total amount
of $7,500.00.
4. That nothing herein, nor shall any dealings between the Landlord and CCC
subsequent hereto, including, but not limited to, any modification of the Lease,
release Cinema's
Xxxxxxx X. Xxxxxxx, Esq.
November , 1995
Page #2
liability under the Lease. Landlord will send Cinema a copy of any modification
and will advise Cinema in writing of all defaults under the Lease when, as and
if submitted to the Assignee. Shall any default occur by CCC, Cinema shall be
simultaneously notified in writing of such default and be given a reasonable
opportunity to promptly cure any defaults thereunder.
5. That a true and complete copy of the closing statement of the
transaction between Cinema and CCC with duplicate copies of all signed documents
shall be delivered to us after consummation of the agreement. Original executed
copies of the Assignment and Assumption Agreement shall be provided to us.
6. That CCC and/or Cinema will be the owner of all operating equipment,
fixtures and personal property in the premises (the "Equipment") free and clear
of any and all mortgages, liens and security interests and shall execute and
deliver to our office a security agreement in a form acceptable to us, and duly
executed UCC-1's, to evidence that the Landlord shall have a first perfected
security interest in all of the Equipment and all proceeds and replacements
thereof, as additional security under the Lease. In addition, a complete
inventory of such Equipment identifying each item of Equipment and its serial
number shall be delivered. Both Cinema and CCC shall deliver such further
assurances to Landlord, as Landlord shall require, to evidence such security
interest.
7. That there shall be deposited a cash security of $8,700.00 to be held by
Landlord in accordance with Article 31 of the Lease and as the rent increases
additional deposits shall be made upon ten (10) days demand in writing to both
CCC and Cinema so that at all times there will be three (3) months security on
deposit.
8. That it is acknowledged that heretofore Landlord executed an application
for a building permit for the conversion of the premises to a four (4) screen
theatre; that same was done as an accommodation to Cinema so that cinema could
determine the feasibility of such conversion; that the execution of such
application was not intended, nor did same, constitute the landlord's consent to
actually convert the theatre from two (2) screens to four (4) screens or to
modify the limitation of use contained in Article 2 of the Lease. The parties
acknowledge and ratify that Landlord's consent is required to increase the
number of screens at the premises and that such consent has not been previously
given.
9. That the failure to comply with any of the provisions of this letter
shall be a material breach of the Lease.
10. That the action entitled Cinema Herricks, Inc. v. Purmil Company,
presently pending in the Supreme Court, Nassau County, under Index No. 29473/95
shall immediately be discontinued and all motions therein withdrawn.
Xxxxxxx X. Xxxxxxx, Esq.
November , 1995
Page #3
11. That the transactions referred to herein shall all be fully completed
by November 29, 1995. This Agreement may be executed by fax and in counterpart.
Very truly yours,
GLEICH, XXXXXX & XXXXXX
______________________________
Xxxxxxx X. Xxxxxx
SBG:FAV
AGREED AND ACCEPTED:
CINEMA HERRICKS, INC. PURMIL COMPANY
By:_____________________________ By:___________________________
Name:___________________________ Xxxxxxx Xxxxxxxx
Title:__________________________
CCC HERRICKS CINEMA CORP.
By:_____________________________
Name:___________________________
Title:__________________________
