Exhibit 10.77
SURRENDER OF LEASE
AGREEMENT, made as of October 21st, 2005 between XXXX-XXXX SO. WEST
REALTY ASSOCIATES L.L.C., a New York limited liability company, having its
principal place of business at 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
("Owner"), and OPTICARE ACQUISITION CORP., a corporation, having an office at 0
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx ("Tenant").
W I T N E S S E T H
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WHEREAS, Owner and Tenant's predecessor-in interest, Wise Optical
Vision Group, Inc. f/k/a Wise/Contact US Optical Corporation, entered into a
written Lease Agreement dated August 11, 2000, as amended by commencement date
letter dated February 26, 2002, First Amendment dated August 1, 2001, and
commencement date letter dated January 21, 2002 (collectively the "Lease"),
whereby Owner currently leases to Tenant approximately 27,725 square feet in the
building known as 0 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx, for a term which
currently expires on September 30, 2011; and
WHEREAS, Tenant has represented and warranted to Owner that all its
business operations have been discontinued or disposed of and that Tenant is not
in a position to continue with the Lease, and
WHEREAS, based upon said representation and in order to avoid
protracted litigation, the parties desire to terminate the Lease and to release
each other from their respective obligations, upon the terms and conditions set
forth herein,
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, each to the other in hand
paid, IT IS AGREED as follows:
1. The Lease is hereby terminated, and the term demised brought to an end as of
December 31, 2005 ("Cancellation Date") with the same effect as if the term of
the Lease were, in and by the provisions of it, fixed to expire on the
Cancellation Date, and not on September 30, 2011. Notwithstanding anything
herein to the contrary, at Owner's election, in the event Owner enters into a
lease with a third party for the demised premises, Owner may, upon fifteen (15)
days notice to Tenant, recapture the demised premises at any time prior to the
Cancellation Date and in such event the Cancellation Date shall be such earlier
date on which Owner elects to recapture the demised premises.
2. Tenant shall surrender the demised premises to Owner in vacant, broom clean
condition, with all of Tenant's furniture, fixtures and personal property
removed from the demised premises on or before the Cancellation Date or such
earlier time, as may be required pursuant to Paragraph 1 hereinabove. Provided
Tenant delivers the demised premises (including the loading dock area) in
vacant, broom clean condition, with its property removed, as aforesaid, Owner
shall accept the demised premises in its current "as-is" condition and
notwithstanding anything in the Lease to the contrary, Tenant shall have no
obligation to repair or restore the demised premises, provided Tenant does not
cause any further damage thereto during the period from the date hereof to the
date the demised premises are legally surrendered to Owner. Until the demised
premises are legally surrendered to Owner, Tenant shall maintain and keep in
full force and effect insurance as required under the Lease and shall maintain
utilities service to the demised premises. The parties agree that the demised
premises shall be deemed to be legally surrendered on the cancellation date or
such earlier time as may be required pursuant to Paragraph 1 hereof. In
consideration of Owner's agreement to accept the demised premises in vacant,
broom clean condition, with its property removed, and otherwise in its current
as-is condition, Tenant shall pay Owner the sum of $2,727.01 simultaneously with
the execution and delivery of this
Surrender of Lease by Tenant and Owner, said sum shall be paid by official bank
check or wire transfer of federal funds.
3. In consideration of Owner's agreement to terminate the Lease as of the
Cancellation Date or on such earlier date as Owner may elect: (i) simultaneously
with the execution and delivery of this Surrender of Lease by Tenant and Owner,
Tenant shall prepay to Owner, Fixed Annual Rent and additional rent due under
the Lease through and including the Cancellation Date in the stipulated and
agreed upon aggregate sum of $122,272.99 (which sum shall not be adjusted if the
Cancellation Date is earlier than December 31, 2005), said sum shall be paid by
official bank check or wire transfer of federal funds, and (ii) Tenant hereby
relinquishes all right, title and interest in and to the security deposit under
the Lease in the amount of $85,485.42, and any interest earned thereon. Upon
such payment and relinquishment, and the legal surrender of vacant, broom clean
possession the demised premises, with Tenant's property removed as aforesaid, on
the Cancellation Date or such earlier time as may be required pursuant to
Paragraph 1 hereof, it is agreed that Tenant shall have no further obligation to
Owner under of by reason of the Lease accruing from and after the Cancellation
Date, or such earlier time as may be required pursuant to Paragraph 1 hereof.
4. This Surrender of Lease is submitted to the Tenant for signature with the
understanding that it shall not bind the Owner unless and until it has been
executed by the Owner and delivered to the Tenant or Tenant's attorney and Owner
has received the payments provided for in Paragraphs 2 and 3 hereof.
5. This Surrender of Lease shall be binding upon the parties hereto, their
successors and assigns.
6. Tenant agrees not to disclose the terms, covenants, conditions or other facts
with respect to this Surrender of Lease, to any person, corporation,
partnership, association, newspaper, periodical or other entity except pursuant
to a valid business purpose or as required by law. This non-disclosure and
confidentiality agreement shall be binding upon Tenant without limitation as to
time.
7. Tenant represents that it has dealt with no broker in connection with this
Surrender of Lease and agrees to indemnify, defend and hold Owner harmless from
any and all claims of any broker arising out of or in connection with
negotiations of, or entering into of, this Surrender of Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Surrender of Lease to be
duly executed by their respective officers the day and year first above
mentioned.
XXXX-XXXX SO. WEST REALTY ASSOCIATES L.L.C.
By: Xxxx-Xxxx Realty L.P., member
By: Xxxx-Xxxx Realty Corporation, general partner
By: /s/ Xxxxxxx Xxxxxxxx
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Executive Vice President
OPTICARE ACQUISITION CORP.
By: /s/ Xxxxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxxxx X. Xxxxx
Title: President
