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EXHIBIT 10.62
LEASE TERMINATION AGREEMENT
This Lease Termination Agreement (this"Agreement") is between National
Life Insurance Company ("Landlord") and Xxxxxxxxx Industries, Inc. ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have previously executed that certain
Standard Industrial Lease dated March 17, 1993 (the "Lease") covering and
describing approximately 101,839 square feet of space situated at 0000 000xx
Xxxxxx, Xxxxx Xxxxxxx, Xxxxx (the "Premises"); and
WHEREAS, Landlord and Tenant have agreed that it is to their mutual
benefit to terminate the Lease on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS:
THAT, for and in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby mutually acknowledged and confessed, Landlord and Tenant have agreed
and do hereby agree as follows:
1. Capitalized Terms. Capitalized terms used but not defined in this
Agreement shall have the meanings ascribed thereto in the Lease.
2. Payment of December Rent. Prior to or contemporaneously with the
execution of this Agreement, Tenant shall pay to Landlord the Fixed Minimum
Rent for December 1997.
3. Termination of Lease. Landlord and Tenant agree that the Lease
shall terminate on December 31, 1997 (the "Termination Date"). Tenant shall
vacate the Premises on or before the Termination Date and shall surrender the
Premises to Landlord in a broom clean condition. If Tenant complies with all
of its obligations under this Agreement, no Fixed Minimum Rent or Additional
Rents shall be payable by Tenant to Landlord under the Lease for any period of
time after the Termination Date. If Tenant fails to vacate the Premises and
surrender the Premises to Landlord in a broom clean condition on or before the
Termination Date, Tenant shall indemnify, defend and hold harmless Landlord
from and against any and all loss, cost, damage or expense (including, without
limitation, attorneys' fees, accountants' fees, consultants' fees, court costs
and interest which Landlord may suffer as a result of Tenant's failure to
perform such obligations. The aforementioned indemnification shall include,
but shall not be limited to, any out-of-pocket damages and/or consequential
damages which Landlord may suffer as a result of the loss of any leasing
opportunity with regard to all or part of the Premises.
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4. Security Deposit. Provided Tenant vacates the Premises and
surrenders the Premises to Landlord in a broom clean condition on or before
the Termination Date and performs all of its obligations under this Agreement,
including, without limitation, its obligations under paragraphs 5 and 6 hereof,
Landlord shall return the Security Deposit to Tenant within ten (10) days after
the Termination Date. In the event Tenant does not vacate the Premises and
surrender the Premises to Landlord in broom clean condition on or before the
Termination Date or otherwise fails to perform its obligations under this
Agreement, the Security Deposit shall conclusively be deemed forfeited by
Tenant and may be retained by Landlord.
5. Removal of Connecting Corridors. Prior to the Termination Date,
Tenant shall, at Tenant's sole cost and expense, properly remove both existing
corridors that connect the building on the Premises to the building located to
the west of the Premises. The foregoing work shall be performed in a good and
workmanlike manner by qualified contractors approved in advance by Landlord.
Tenant may leave the existing fire doors in place, so long as Tenant performs
its obligations under this Paragraph 5.
6. Condition of Premises. All dock doors, levelers and bumpers and
all electrical, HVAC, plumbing and fire protection (i.e., sprinklers) systems
located on the Premises shall be surrendered with the Premises in good
operating condition.
7. Continuing Liabilities. Notwithstanding the limited release set
forth in Paragraph 8 below, Tenant is and shall remain liable to Landlord and
hereby agrees to indemnify, defend and hold Landlord harmless from and against
the following matters (collectively, the "Continuing Liabilities"):
(a) Any monetary sum, including without limitation, Fixed Minimum
Rent and Additional Rents, which have accrued or accrue under the
Lease prior to the Termination Date (Landlord acknowledges that Tenant
is current in the payment of Minimum Rent and Additional Rents as of
the date of this Agreement);
(b) Any storage, use, discharge or disposition of
dangerous/hazardous chemicals, materials and/or wastes that have
occurred or occur on the Premises during the term of the Lease (as
amended hereby);
(c) Any latent defects to the Premises that arose or occurred
during the term of this Lease (as amended hereby) as a result of the
failure of Tenant to fully and timely comply with its obligations
under the Lease, including, without limitation, its maintenance and
repair obligations, and which are not readily identifiable based upon
the walkthrough inspection of the Premises contemplated by Paragraph
9 hereof; and
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(d) Any material damage to the Premises that occurs during a
period of time from the date of this Agreement through the
Termination Date.
Any Continuing Liabilities which are quantifiable on the Termination Date shall
be paid by Tenant to Landlord within ten(10)days after Landlord delivers to
Tenant a written invoice for such sums, together with reasonable supporting
documentation. Any Continuing Liabilities that are not qualifiable on the
Termination Date shall be billed to Tenant by Landlord within a reasonable time
after the amount of such Continuing Liabilities is known and shall be paid by
Tenant to Landlord within ten(10)days after the receipt of such written invoice,
together with reasonable supporting documentation. Tenant's failure to comply
with its obligation under this Paragraph 7 shall, at Landlord's election, render
the termination of the Lease effectuated hereby null and void, in which case,
Tenant shall be fully liable for the performance of all of its obligations,
past, present, and future, under the Lease.
8. Limited Release. Except for the Continuing Liabilities, Landlord
agrees that it will make no claim upon Tenant as result of Tenant's failure to
fully and timely comply with its maintenance and repair obligations set forth in
the Lease. Without limiting the foregoing, Landlord expressly agrees that it
will make no claim against Tenant as a result of Tenant's failure to properly
repair and maintain the surface of the parking lot on the Premises.
9. Inspection of Premises. Within three(3)days prior to the Termination
Date, Landlord and Tenant shall schedule and conduct walk-through inspection of
the Premises by Landlord's on-site property manager and a designated
representative of Tenant familiar with the Premises. If during such walk-through
inspection, Landlord's on-site property manager determines, in his or her sole
but reasonable judgement, that Tenant has failed to perform its obligations
under this Agreement, Landlord shall have the right, but not the obligation, to
terminate this Agreement upon written notice to Landlord delivered at any time
prior to the Termination Date, in which event the Lease shall not terminate as
set forth herein and Tenant shall remain fully liable for the performance of all
of its obligations thereunder.
IN WITNESS WHEREFORE, Landlord and Tenant have executed this Agreement on
the dates set forth below, to be effective for all purposes as of December 9,
1997.
LANDLORD
NATIONAL LIFE INSURANCE COMPANY
BY: Atlantic Investment Management, Inc.
its authorized representative
Executed by Landlord By: /s/ Xxxxx X. Xxxxx
this 9th day of -------------------------------------
December, 1997 Name: Xxxxx X. Xxxxx
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Title: President
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TENANT:
XXXXXXXXX INDUSTRIES, INC.
Executed by Tenant By: /s/ Xxxxx Xxxxxxxxx
this 8 day of -------------------------------------
December, 1997 Name: Xxxxx X. Xxxxxxxxx
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Title: CEO
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