THIS SURRENDER AND RELEASE AGREEMENT dated as of September 19, 2006, made
by and between 760-24 WESTCHESTER AVENUE, LLC and 800-60 WESTCHESTER AVENUE, LLC
both having an office in care of RPW Group, Inc., 800 Westchester Avenue, Rye
Brook, New York 10573 (hereinafter referred to collectively as "Lessor") and
TRIARC COMPANIES, INC., having an office at 280 Park Avenue, New York, New York
10017 (hereinafter referred to as "Lessee");
W I T N E S S E T H
WHEREAS, Lessor is the owner of the building and real property commonly
known as and located at 800 Westchester Avenue, Rye Brook, New York 10573 (the
"Building");
WHEREAS, Lessor and Lessee entered into that certain lease dated December
22, 2004 (the "Lease"), for the entire Seventh (7th) floor in the Building and
consisting of Fifty-Two Thousand, Nine Hundred and Sixty (52,960) rentable
square feet (hereinafter referred to as the "Demised Premises") for a term which
expires on December 31, 2015;
WHEREAS, Lessee has never taken occupancy of the Demised Premises for the
conduct of its business and desires to surrender all of its right title and
interest in and to the Lease and Demised Premises and has agreed to vacate the
Demised Premises and tender possession thereof to Lessor as of the Surrender
Date (as hereinafter defined) and Lessor has agreed to release Lessee from all
of its covenants and obligations under the Lease with respect to the Demised
Premises as of the Surrender Date, subject however to the strict compliance by
Lessee of the terms hereinafter specifically set forth and provided that Lessee
pays Lessor an early termination fee in the sum of Four Million, Four Hundred
and Thirty-One Thousand, Forty-Two and 00/100 ($4,431,042.00) Dollars (the
"Termination Fee");
NOW, THEREFORE, in consideration of the mutual agreements of the parties
hereinafter contained, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE-1 SURRENDER AND RELEASE OF THE DEMISED PREMISES
SECTION 1.01.A. Commencing on the Surrender Date, Lessee hereby surrenders
all of its right title and interest in and to the Lease and the Demised Premises
together with the leasehold estate thereof and agrees that Lessor shall have the
right to possession of the Demised Premises, from and after the Surrender Date
and the Lease is hereby terminated, null and void and of no further force and
effect. Provided that Lessee has paid Lessor the Termination Fee by bank check
or wire transfer on or before the Surrender Date and Lessee has vacated and
surrendered possession of the Demised Premises on or before the Surrender Date
and except for those matters with respect to the Demised Premises which pursuant
to the Lease expressly survive its expiration or sooner termination, Lessor
hereby releases and discharges Lessee from each and every covenant, duty, debt,
liability and obligation on Lessee's part to be performed, pursuant to the Lease
with respect to the Demised Premises, that may accrue and become performable,
due or owing from and after the Surrender Date, except for the those covenants,
duties, debts, liabilities and obligations which pursuant to the Lease expressly
survive the expiration or sooner termination thereof.
B. Commencing on the Surrender Date, and except for those matters with
respect to the Demised Premises which pursuant to the Lease expressly survive
its expiration or sooner termination, Lessee hereby releases and discharges
Lessor from each and every covenant, duty, debt, liability and obligation on
Lessor's part to be performed, pursuant to the Lease with respect to the Demised
Premises from and after the Surrender Date, including, but not limited to, and
without limiting the generality of the foregoing, Lessor's obligation to pay
Lessee the Alteration Fund and Supplemental Alteration Fund (as those terms are
defined in the Lease).
SECTION 1.02. As used herein the term "Surrender Date" shall mean the date
hereof.
ARTICLE-2 REPRESENTATIONS
SECTION 2.01. Lessee, for itself and its legal representatives, successors
and assigns, covenants and represents to Lessor as follows:
(a) Lessee has full right, authority and power to surrender all of
its right, title and interest in and to the Lease and the Demised
Premises; and
(b) The Lease is in full force and effect, and has not been modified,
supplemented, canceled or amended in any respect, and Lessee has
not assigned, transferred, pledged or otherwise encumbered all or
any part of its right, title and interest in and to the Lease and
the Demised Premises, and the Lease and Demised Premises are now
and will, on the Surrender Date be free and clear of any liens
and encumbrances made by Lessee; and
(c) Lessee represents that it is not on the date hereof, be in
default under any of the terms of the Lease, having performed all
of the obligations imposed upon it thereunder; and
(d) Lessee has no knowledge of any default in the performance and
observance of any obligations contained in the Lease, to be kept,
observed and performed by Lessee, or any condition, which with
the giving of notice or passage of time, or both, would
constitute a default under the Lease.
SECTION 2.02. Lessor, for itself and its legal representatives, successors
and assigns, covenants and represents to Lessee as follows:
(a) Lessor has full right, authority and power to enter into this
Agreement; and
(b) The Lease is in full force and effect, and has not been modified,
supplemented, canceled or amended in any respect; and
(c) To the best of Lessor's knowledge, without independent
investigation, Lessee is not on the date hereof in default under
any of the terms of the Lease, having performed all of the
obligations imposed upon it thereunder.
(d) Lessor has obtained all third party consents necessary in
connection with entering into this Agreement.
ARTICLE 3 - BINDING EFFECT
SECTION 3.01. This Agreement shall be binding upon and inure to the benefit
of the successors, assigns and heirs of each party.
ARTICLE 4 -ATTORNEYS' FEES
SECTION 4.01. Should any party to this Agreement bring suit to enforce the
terms of this Agreement, the prevailing party in any such action shall be
entitled to its reasonable attorneys' fees, including costs of litigation. Each
party hereto shall bear its own costs and expenses (including legal) incurred in
connection with preparing and negotiating this Agreement.
ARTICLE 5 -MISCELLANEOUS
SECTION 5.01. This Agreement shall be governed in accordance with the laws
of the State of New York. Any action concerning any of the matters set forth in
this agreement shall be tried in the State of New York, County of Westchester.
SECTION 5.02. This Agreement represents the entire agreement, and
supercedes all prior agreements, arrangements and understandings between the
parties with respect to the subject matter hereof. Neither this Agreement nor
any provision hereof may be waived, amended, supplemented or otherwise modified
without the written agreement of both parties.
SECTION 5.03. Simultaneously with the execution hereof, Lessor has
delivered to Lessee The Union Labor Life Insurance Company's consent to this
Agreement.
IN WITNESS WHEREOF, this Surrender and Release Agreement has been executed
by the duly authorized representatives of Lessor and Lessee as of the date first
above written.
760-24 WESTCHESTER AVENUE, LLC, (Lessor)
By: 24 South Third Avenue Corp., its sole member
By: ROBERT P. WEISZ
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Name: Robert P. Weisz
Title: President
800-60 WESTCHESTER AVENUE, LLC, (Lessor)
By: 60-3RD Ave. Corp., its sole member
By: ROBERT P. WEISZ
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Name: Robert P. Weisz
Title: President
TRIARC COMPANIES, INC., (Lessee)
By: FRANCIS T. MCCARRON
----------------------------------------------------
Name: Francis T. McCarron
Title: Executive Vice President & Chief
Financial Officer
STATE OF NEW YORK )
)ss.:
COUNTY OF WESTCHESTER )
On this 19th day of September, 2006, before me, the undersigned,
personally appeared ROBERT P. WEISZ, 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
on behalf of which the individual(s) acted, executed the instrument.
JANET A. ENRIGHT
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Notary Public
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On this 19th day of September, 2006, before me, the undersigned,
personally appeared Francis T. McCarron , 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
on behalf of which the individual(s) acted, executed the instrument.
DEBORAH Y. WOLF
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Notary Public