EXHIBIT 10.60
Surrender Agreement
dated December 30, 1999,
between
Empire State Building Company
and
New York Skyline, Inc.
SURRENDER AGREEMENT
SURRENDER AGREEMENT, made this 30th day of December, 1999
between Empire State Building Company ("Landlord"), a corporation organized and
existing under the laws of the State of New York having an office for the
conducting of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and New
York Skyline, Inc. ("Tenant"), a corporation organized and existing under the
laws of the State of New York, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
W I T N E S S E T H
Landlord and Tenant entered into that certain Lease dated
March, 1996, covering rooms 209-214, 233-250 and 340-346 (the "Demised
Premises") in the building known as 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Lease") (A copy of the Lease is annexed hereto).
Tenant desires to terminate the Lease and surrender the
premises demised thereunder to Landlord and Landlord is willing to accept the
surrender of the Demised Premises.
NOW, THEREFORE, in consideration of the mutual agreement of
the parties hereto and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party hereto, Landlord and
Tenant agree as follows:
1. Surrender of the Demised Premises.
1.1 Effective as of August 1, 1999 (the "Surrender
Date") Tenant has surrendered to Landlord, and Landlord has accepted the
surrender of, the Lease and the term and estate thereby granted, together with
the Demised Premises thereby demised, to the intent and purpose that the estate
of Tenant in and to the Demised Premises shall be wholly extinguished and that
the term of the Lease expired on the Surrender Date in the same manner and with
the same effect as if such date were the date set forth in the Lease for the
expiration of the term thereof.
1.2 Landlord shall deliver to Tenant a check
simultaneously with Landlord's execution of this Agreement in the amount of
$100,000.00 representing the security deposit held by Landlord under the Lease
(collectively, the "Security Deposit"). Landlord shall further deliver to Tenant
a second check representing the interest on such Security Deposit (the "Interest
Check"). If Landlord fails to so deliver good and available funds to Tenant upon
Landlord's execution of this Agreement, then Tenant may offset the amount of the
Security Deposit and the Interest Check amount from any amounts that Tenant owes
Landlord pursuant to any other agreement between Landlord and Tenant.
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1.3 There is no consideration specifically related
to the surrender of the Demised Premises and termination of the Lease. Landlord
and Tenant acknowledge and agree that (i) neither party has received, is
receiving or is entitled to receive any consideration, by payment,
extinguishment of debt or otherwise, in connection with this transaction and
(ii) Tenant has paid in full any and all fixed rent, additional rent and any
other amounts due in connection with the Lease. Landlord represents to Tenant
that as of the date hereof the Lease is in full force and effect without default
by Tenant thereunder and Landlord does not have any claims or rights against
Tenant. Tenant shall pay any State or municipal transfer taxes that may be
payable in connection with the surrender of the Demised Premises pursuant to
this Agreement. The covenant contained in the immediately preceding sentence
shall survive the termination of the Lease and the surrender of the Demised
Premises.
1.4 Notwithstanding anything to the contrary
contained in the Lease or this Agreement, Tenant shall not be required to
restore the Demised Premises or perform any other work whatsoever in, on or
about the Demised Premises.
2. Broker.
2.1 Landlord and Tenant each covenants, represents
and warrants to the other that it has had no dealings or communications with any
broker or agent in connection herewith. Landlord and Tenant agree to hold
harmless and indemnify each other from and against any and all reasonable costs,
expenses (including, without limitation, attorney fees and disbursements) or
liabilities for any compensation, commission or other charge claimed by any
broker or agent claiming to have dealt with the indemnifying party.
3. Notices.
3.1 Any notice, request or demand permitted or
required to be given by the terms and provisions of this Agreement by either
party herein to the other party herein, shall be in writing and sent by
reputable overnight courier or by United States Postal Service, certified mail,
return receipt requested to the parties at the addresses first set forth above.
Unless otherwise required by law any such notice, request or demand shall be
given and shall be deemed to have been served and given by Landlord on the first
day following deposit with such overnight courier or the United States Postal
Service. Notices to Landlord shall be in duplicate and the second such notice
each shall be addressed to Landlord c/o Wien & Malkin LLP, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxx, Esq.
3.2 Either party may, by notice as aforesaid,
designate a different address or addresses for notices, requests or
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demands to it, and may also instruct that its attorneys be given copies of all
notices. Any notice, request or demand proposed to be given by such party may be
given by such party's attorneys, or in the case of Landlord, the managing agent
of the Building.
4. Miscellaneous.
4.1 Article headings are for convenience only and
shall not be considered with respect to or form a part of the making of any
interpretation of any term or provision hereof.
4.2 This Agreement contains the entire agreement of
both of the parties with respect to the matters contained herein. This Agreement
may not be modified, amended or otherwise changed except by a written instrument
signed by both parties.
4.3 This Agreement shall be governed by and
construed under the laws of the State of New York without regard to conflicts of
laws principles and shall be binding upon and inure to the benefit of Landlord
and Tenant and their respective successors and assigns.
4.4 No partner, member, shareholder, director,
officer, manager, principal, employee or agent, directly and indirectly, of
Tenant (collectively, the "Parties") shall be personally liable for the
performance of Tenant's obligations under this Agreement. Landlord shall look
solely to Tenant to enforce Tenant's obligations hereunder and shall not seek
any damages against any of the Parties.
4.5 Landlord and Tenant represent, warrant,
covenant and agree with each other that the execution and delivery of this
Agreement by Landlord and Tenant are within its power and authority. Such
execution and delivery (i) does not conflict with, violate, breach or cause a
default under any agreement or instrument to which Landlord or Tenant,
respectively, is a party and (ii) such party has obtained all consents,
approvals or authorizations necessary for the execution and delivery of this
Agreement. As of the execution date, Landlord and Tenant each represents that it
has unrestricted full right, power and lawful authority to execute and perform
this Agreement and to terminate and accept the surrender of the estate demised
herein. The provisions of this Section shall survive the expiration of this
Agreement.
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as
of the day and year first above written.
EMPIRE STATE BUILDING COMPANY
By: /s/ Xxxx X. Xxxxxxx, Xx.
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Xxxx X. Xxxxxxx, Xx.
Senior Vice President
NEW YORK SKYLINE, INC.
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: President
