AGREEMENT OF TERMINATION AND CANCELLATION OF LEASE
Exhibit 10.39
AGREEMENT OF
TERMINATION AND CANCELLATION OF LEASE
TERMINATION AND CANCELLATION OF LEASE
This Agreement of Termination and Cancellation of Lease (the “Termination Agreement”), dated
this 7th day of May, 2007, by and between XX XxXxxxx, LLLP, a Delaware limited liability
limited partnership doing business in Florida as XX XxXxxxx, LLLP, Ltd., whose address is 0000
Xxxxx XxXxxxx Xxxx, Xxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000 (“Landlord”) and BURGER KING
CORPORATION, a Florida corporation, whose address is 0000 Xxxx Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000
(“Tenant”).
W I T N E S S E T H:
WHEREAS, XX XxXxxxx, Inc., as predecessor in interest to Landlord, and Tenant entered into
that certain Lease dated May 10, 2005, as amended by First Amendment to Lease dated August 23, 2006
(collectively, the “Lease”), for the demise of an office building to be constructed on the property
located at 0000 XxXxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx (“the “Premises”);
WHEREAS, XX XxXxxxx, Inc., assigned all of its right, title and interest in and to the Lease
to Landlord, pursuant to that certain Assignment of Lease dated January 9, 2007; and
WHEREAS, the parties do hereby mutually desire to terminate the Lease and release one another
from all continuing terms and conditions, subject to the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Landlord
and Tenant agree as follows:
1. The Lease shall terminate on the date of this Termination Agreement (the “Termination
Date”), and as of the Termination Date, the Lease shall be null and void and of no further force or
effect. This Termination Agreement also serves to terminate the Memorandum of Lease of even date
with the Lease (which Memorandum of Lease has not been recorded).
2. In consideration for the agreements contained herein, simultaneously with Tenant’s
execution of this Termination Agreement, Tenant shall pay Landlord a termination fee in the amount
of FIVE MILLION AND 00/100 ($5,000,000.00) DOLLARS (the “Termination Fee”). If this Termination
Agreement is held or rendered invalid by a court of competent jurisdiction and Tenant is required
to reinstate the Lease and occupy the Premises, Landlord shall immediately return the Termination
Fee to Tenant.
3. Landlord hereby assigns to the Tenant Landlord’s right, if any, to receive any refund of
fees and/or costs that may have been paid to Hellmuth, Obata & Kassabaum, Inc. (“HOK”) in
connection with the design and other services provided by HOK to Tenant or otherwise in connection
with the Lease.
4. Tenant shall indemnify, defend and hold Landlord and Landlord’s affiliates harmless from
and against any and all losses, claims, demands, damage awards, liabilities, suits, penalties,
forfeitures and/or reasonable costs and expenses (including but not limited to reasonable
attorneys’ fees) (collectively, “Claims”) for (a) any and all claims by Newmark Southern Region,
LLC (“Newmark”) under any agreements between Tenant and Newmark that Newmark is due a commission in
connection with the consummation of the Lease(the “Leasing Commission”), specifically excluding the
commission payment which has already been made by Landlord to Newmark under that certain
Representation Agreement between Tenant and Newmark, dated July 28, 2004, as amended by that
certain letter agreement dated March 18, 2005, in the amount of $900,000.00; (b)
claims of lien and breach of contract claims by third parties retained by Tenant to design the
leasehold improvements with respect to the Lease (“Tenant Improvement Indemnity”) and (c) claims by
governmental agencies and/or offices of the State of Florida, City of Coral Gables and/or
Miami-Dade County for payments made or costs incurred by such parties with respect to Tenant’s
request for economic incentives in connection with the Lease or with respect to Tenant remaining in
South Florida. Further, Tenant represents to the Landlord that Tenant has not assigned or sublet
any portion of the Premises to another party and that no party claiming by, through or under Tenant
has any right of occupancy with respect to any portion of the Premises. Tenant shall indemnify and
hold Landlord and Landlord and its affiliates harmless from and against any and all Claims arising
out of a failure of said representations.
5. Landlord shall indemnify, defend and hold Tenant and Tenant’s affiliates harmless from and
against any and all Claims arising out of or in connection with (a) occurrences in, upon or at the
Project (as defined in the Lease) on or prior to the Termination Date, including but not limited to
loss of life, bodily injury and/or damage to or destruction of property, the presence of any
hazardous substance and/or any violation or alleged violation of any local, state or federal
environmental law, regulation, ordinance or administrative or judicial order relating to any
hazardous substance; (b) the design and construction of the building and improvements thereto,
specifically excluding the Tenant Improvement Indemnity; and/or (c) Claims by any and all third
parties relating to the Lease and/or the termination of the Lease, including but not limited to
Claims made by any lender, prospective lender and/or prospective purchaser, excluding, however, the
Leasing Commission and any and all third-party Claims arising under any agreements entered into by
Tenant.
6. Landlord and Tenant do hereby mutually release each other and their respective
predecessors, heirs, successors, assigns, employees, officers, directors, affiliates and parent
companies from against any and all rights, duties, claims, demands, liabilities and obligations
whatsoever under the Lease, whether known or unknown, liquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal or equitable, from the beginning of the world to the date of
this Termination Agreement, excluding only the indemnification and other obligations set forth in
this Termination Agreement.
7. Tenant and Landlord agree that neither party shall issue any public statements and/or press
releases regarding this termination of the Lease, nor shall they disclose any of the terms and
conditions of this Termination Agreement, until and unless any such public statements, press
release(s) and/or disclosures have been approved in writing by the other party. Additionally,
neither party shall disclose the existence of this Termination Agreement to any third parties prior
to an initial public statement or press release issued in accordance with this Section 7.
Notwithstanding the foregoing, this provision specifically excludes the following disclosures, all
of which may be made without the other party’s prior written consent: (i) any disclosures required
to be made by either party pursuant to the rules of the Securities and Exchange Commission or
listing standards of the New York Stock Exchange; (ii) any disclosures made by Tenant or Landlord
to governmental agencies and/or offices of the State of Florida, City of Coral Gables and/or
Miami-Dade County; (iii) any disclosures made by Landlord to its prospective purchaser for the
building and/or to the replacement tenant for the Premises.
8. Landlord shall return to Tenant all hard and soft copies of the leasehold improvement
plans, specifications and/or drawings in connection with the Lease that have been prepared by
Tenant and/or third parties retained by Tenant and provided to Landlord, its architects,
contractors and/or agents (including but not limited to those plans, specifications and/or drawings
provided by HOK) (collectively, the “Plans”). Additionally, Landlord shall not utilize the Plans
for any purpose or disclose the Plans or the contents thereof to any person outside Landlord’s
organization without Tenant’s prior written consent, which may be granted or withheld in Tenant’s
sole discretion.
9. The Landlord and Tenant represent and warrant that they have the power and authority to
execute this Termination Agreement and to perform the covenants contained herein. The parties each
represent,
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as to themselves, that their execution and delivery of this Termination Agreement does not require
any authorization, consent, approval or other action or notice to any other entity, or conflict
with or result in the breach of the terms, conditions or provisions of any agreement to which it is
a party, except for authorizations, consents, approvals which have been obtained prior to the date
hereof.
10. If indemnification is sought by one party against the other party under the provisions of
this Termination Agreement, the party seeking indemnification hereunder (the “Indemnified Party”)
shall give written notice to the party against whom indemnification is sought (the “Indemnifying
Party”) of such claim. The Indemnifying Party shall have the right at its election to take over
the defense or settlement of such claim by giving prompt written notice to the Indemnified Party at
least five business days prior to the time when an answer or other responsive pleading or notice
with respect thereto is required. If the Indemnifying Party makes such election, it may conduct
the defense of such claim through counsel or representative of its choosing (subject to the
Indemnified Party’s approval of such counsel or representative, which approval shall not be
unreasonably withheld), shall be responsible for the expenses of such defense, and shall be bound
by the results of its defense or settlement of claim to the extent it produces damage or loss to
the Indemnified Party. The Indemnifying Party shall not settle any such claim without prior notice
to and consultation with the Indemnified Party, and no such settlement involving any equitable
relief or which might have a material and adverse effect on the Indemnified Party may be agreed to
without its written consent. The parties agree to cooperate in defending such third party claims
and the defending party shall have access to records, information and personnel in control of the
other party or parties which are pertinent to the defense thereof.
11. This Termination Agreement may not be recorded by either party.
12. This Termination Agreement contains the entire agreement between the parties, and all
negotiations between the parties relating to this Termination Agreement are merged herein. Both
Landlord and Tenant represent and warrant that other than those terms set forth in this Termination
Agreement, there are no representations or promises made by either party which are being relied
upon in entering into this Termination Agreement. This Termination Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, their successors and/or assigns.
13. The prevailing party in a suit to enforce the terms of this Termination Agreement shall be
entitled to reimbursement from the losing party of all costs associated with such suit, including
without limitation, reasonable attorneys’ fees and paralegal fees through appellate proceedings.
14. This Termination Agreement shall be construed in accordance with the laws of the State of
Florida and exclusive venue with respect to any litigation shall be in Miami-Dade County, Florida.
If any provision of this Termination Agreement is held or rendered illegal or unenforceable, it
shall be considered separate and severable from this Termination Agreement and the remaining
provisions of this Termination Agreement shall remain in force and bind the parties as though the
illegal or unenforceable provision had never been included in this Termination Agreement. This
Termination Agreement may not be modified except by agreement in writing executed by Landlord and
Tenant. This Termination Agreement may be executed in counterparts, each of which shall constitute
an original and all of which together shall constitute one and the same agreement. This
Termination Agreement may be executed by facsimile signature which shall, for all purposes, serve
as an original executed counterpart of this Termination Agreement.
[signatures on next page]
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IN WITNESS WHEREOF, the Landlord has caused this Termination Agreement to be executed and
sealed this 7th day of May, 2007.
WITNESSES:
|
LANDLORD | |
| XX XXXXXXX, LLLP | ||
| By: XX XxXxxxx, Inc., General Partner | ||
/s/ Xxxxxxx Xxxx
|
By: /s/ Xxxx Xxxxx | |
Print Name: Xxxxxxx Xxxx
|
Print Name: Xxxx Xxxxx Print Title: V.P. |
|
/s/ Xxxx X. Xxxxxx |
||
Print Name: Xxxx X. Xxxxxx |
STATE OF FLORIDA
|
) | |||||
| ) | ss: | |||||
COUNTY OF MIAMI-DADE
|
) |
The foregoing instrument was acknowledged before me this 7th day of May, 2007, by Xxxx Xxxxx,
as V.P. of XX XXXXXXX, INC., a Florida corporation, on behalf of such corporation, as general
partner of XX XXXXXXX, LLLP, a Delaware limited liability limited partnership, on behalf of such
partnership. He/She is personally known to me or produced as
identification.
| /s/ Xxxxxxx Xxxx | ||||
| Notary Public State of Florida | ||||
My commission expires:
|
[Notarial Seal] | |
October 12, 2007 |
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| IN WITNESS WHEREOF, the Tenant has caused this Termination Agreement to be executed and sealed this 7th day of May, 2007. |
||||
WITNESSES:
|
TENANT | |
| BURGER KING CORPORATION | ||
/s/ Xxxxxxxx Xxxxxxx
|
By: /s/ Xxxx X. Xxxxxxx | |
Print Name: Xxxxxxxx Xxxxxxx
|
Print Name: Xxxx X. Xxxxxxx | |
| Print Title: Chief Executive Officer | ||
/s/ Xxxx X. Xxxxxx |
||
Print Name: Xxxx X. Xxxxxx |
STATE OF FLORIDA
|
) | |||||
| ) | ss: | |||||
COUNTY OF MIAMI-DADE
|
) |
The foregoing instrument was acknowledged before me this 7th day of May, 2007, by Xxxx X.
Xxxxxxx, as Chief Executive Officer of BURGER KING CORPORATION, a Florida corporation, on behalf of such corporation. He/She is personally known to me or produced as identification.
Xxxxxxx, as Chief Executive Officer of BURGER KING CORPORATION, a Florida corporation, on behalf of such corporation. He/She is personally known to me or produced as identification.
| /s/ Xxxx X. Xxxxxx | ||||
| Notary Public, State of Florida | ||||
My commission expires:
|
[Notarial Seal] | |
May 2, 2008 |
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