EX-10.113
SURRENDER AGREEMENT
AGREEMENT made as of the 14th day of December, 2001, between
SPACELY LLC, a Delaware limited liability company having its principal office at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as landlord (referred to herein as
"Owner") and PWR SYSTEMS, INC., a New York corporation having their offices 0000
Xxxxxxx Xxxxxxx, Xxxxx Xxxxx, XX, as tenant (referred to herein as "Tenant").
W I T N E S S E T H :
WHEREAS:
1. Under date of June 1, 2000, Owner, as landlord, and Tenant, as
tenant, entered into a lease affecting a portion of the building known as Suite
T-102 in the "Tech" Building at the Long Island Technology Center, 0000 Xxxxxxx
Xxxxxxx, xx xxx Xxxx xx Xxxxx, Xxxxxx of Suffolk, State of New York, for a term
to end on August 31, 2005, unless sooner terminated pursuant to any of the
terms, covenants and conditions of said lease or pursuant to law (said lease, as
modified by various written agreements, if any, is referred to as the "Lease"
and the premises demised therein, together with all appurtenances, fixtures,
improvements, additions and other property attached thereto or installed
therein, other than Tenant's personal property are referred to herein,
collectively, as the "Demised Premises"); and
2. Tenant now desires to terminate the Lease and to vacate and
surrender to Owner the Demised Premises as of December 14, 2001 and Owner is
willing to accept such surrender, subject to the provisions of this Agreement;
and
3. The parties desire to record herein their understandings with
respect to the foregoing:
NOW, THEREFORE, in consideration of the mutual covenants herein
contained the parties agree as follows:
A. 1. (a) The Lease and the term demised therein shall
terminate and come to an end on December 14, 2001 (referred to herein as the
"Surrender Date"), unless sooner terminated pursuant to any of the terms,
covenants or conditions of the Lease or pursuant to law. Tenant agrees to vacate
and surrender to Owner, free of all tenancies and occupancies, the entire
Demised Premises, on or prior to the Surrender Date, as if the Surrender Date
was the date originally fixed for the expiration of the term demised in the
Lease and Tenant shall fully comply with the provisions of Article EIGHTH of the
Lease (entitled "End of Demised Term") on or prior to the
Surrender Date. If requested by Owner, Tenant agrees to execute and deliver to
Owner, after the Surrender Date, a further Agreement, in form reasonably
satisfactory to Owner, evidencing the surrender of the Demised Premises to
Owner; however, neither Owner's failure to request such execution of such
instrument nor Tenant's failure to execute and deliver such instrument shall
vitiate the provisions of this Paragraph A.1.
Notwithstanding the termination of the Lease and the
surrender by Tenant to Owner of the Demised Premises as of the Surrender Date,
and in consideration of Owner's acceptance of the surrender of the Lease and
Demised Premises by Tenant to Owner, Tenant shall pay to Owner any charges due
under the Lease through the Surrender Date, including, but not limited to,
Tenant's obligation to pay Fixed Rent, any increases therein, additional rent
and any other sums due under the lease including, but not limited to,
sub-metered electric charges when same are billed to Tenant.
2. Provided Tenant is not then in default under any of
its obligations under the Lease or this Agreement after any applicable periods
of grace and cure, and provided that this Agreement has been unconditionally
executed and delivered by Owner and Tenant is not in default in the payment of
any sums due under the Lease, Tenant shall be released from its obligations
under the Lease accruing after the Surrender Date, including, but not limited
to, those obligations set forth in Article EIGHTH of the Lease, except as
otherwise provided in this Agreement. Nothing contained in this Agreement shall
be deemed to affect, modify or limit Tenant's obligation to pay the annual
rental rate reserved in the Lease, and any increases therein, and any additional
rent or charges accruing with respect to all periods prior to and including the
Surrender Date. The provisions of Article TWENTY-FIRST of the Lease (entitled
"Tax Escalation") shall remain in full force and effect with respect to all
periods prior to and including the Surrender Date. Owner shall deliver to
Tenant, in accordance with the provisions of Section B.2. of this Agreement and
prepared in accordance with the terms of the Lease, a xxxx with respect to all
periods to and including the Surrender Date for which periods Owner has not
already submitted to Tenant a xxxx. All unpaid increases in the annual rental
rate reserved in the Lease pursuant to the provisions of said Article
TWENTY-FIRST and shown on such xxxx submitted to Tenant shall be payable by
Tenant within thirty (30) days after demand therefor.
3. Tenant represents and warrants to Owner that Tenant
is not in default under any of the terms, covenants or conditions of the Lease,
and that Tenant has not at any time heretofore committed or suffered, and will
not at any time hereafter commit or suffer, any act, deed, matter or thing
whatsoever whereby the Demised Premises or any part thereof are or shall be at
any time hereafter in any way impeached, charged, affected, or encumbered.
Tenant represents and warrants to Owner that Tenant did not deal with any broker
in connection with this
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transaction. Tenant's obligations under the provisions of Article EIGHTH,
THIRTEENTH and TWENTY-FIRST of the Lease and of this Agreement shall survive the
expiration of the term of the Lease.
4. (A) Tenant acknowledges that the Security (as
described in Article TWENTIETH of the Lease) held by Owner for the performance
of Tenant's obligations under this Lease as security shall be transferred by
Owner for the account of Tenant with respect to its new lease affecting Suite
T-115 as of the Surrender Date.
(B) Tenant shall upon demand, pay all of Owner's
reasonable counsel fees for the preparation of this Agreement and the lease
affecting Suite T-115 and all related collateral documents. Such fees shall be
deemed to be additional rent under such new lease and shall be collectible as
same thereunder.
B. 1. Tenant shall indemnify and hold Owner harmless from
any attorneys' fees or costs incurred by Owner in connection with or arising
from any default by Tenant in the performance or observance of its obligations
under this Agreement.
2. All notices, demands, requests or other communications
given or required to be given under this Agreement after the Surrender Date
shall be effective only if rendered or given in writing, sent by registered or
certified mail (return receipt requested optional) addressed as follows: (a) to
Owner, at Owner's address set forth above, with a copy to Xxxxxxxx & Fleece,
Esqs., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx,
Esq., or (b) to Tenant, at Tenant's address set forth above. Any such notice,
demand, request or communication shall be deemed rendered or given on the date
it shall have been mailed as provided in this Paragraph B.2. Any such notice,
demand, statement, request or other communication to be given or rendered under
this Agreement prior to the Surrender Date shall be rendered or given as
provided in the provisions of Article EIGHTEENTH of the Lease.
C. This Agreement embodies and constitutes the entire
understanding between the parties with respect to the transaction contemplated
herein. This Agreement may not be modified, amended or terminated, except by
written instrument executed by the parties hereto. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
This Agreement shall not be binding or effective until this Agreement is
executed and delivered by Owner and Tenant. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which
together shall constitute one and the same instrument.
D. Except to the extent expressly modified by the foregoing
provisions of this Agreement, the Lease is hereby ratified and confirmed in all
respects.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals as of the day and year first above written.
SPACELY LLC
By: Xxxxx LITC Associates, Managing Member
By /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx, Owner
Title: Managing Member
PWR SYSTEMS, INC.,
By /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx, Tenant
Title: President
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UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)
State of New York )
:ss.:
County of Suffolk )
On the Jan day of 30th, in the year 2002, before me, the
undersigned, personally appeared Xxxxxxx Xxxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
(Signature and Office of individual
taking acknowledgment)
Xxxxxxx X. Xxxxxxx
Notary Public in the State of New York
[ILLEGIBLE] Suffolk [ILLEGIBLE]
[ILLEGIBLE] 04/12/2003
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Outside of New York State)
State, District of Columbia, Territory,
Possession or Foreign Country
):ss.:
--------------------------------------
On the day of in the year , before me, the undersigned,
personally appeared , personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed
to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their capacity(ies), that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument, and that such individual made such
appearance before the undersigned in the . (Insert the city or other political
subdivision and the state or country or other place the acknowledgment was
taken.)
------------------------------------
(Signature and Office of individual
taking acknowledgment)
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