LEASE TERMINATION AND SURRENDER AGREEMENT
AGREEMENT made as of November 22, 2010 by and between 777 COMMERCE DRIVE
LLC, a Connecticut limited liability company having an address in care of Abbey
Road Advisors LLC, 33 Riverside Avenue, 4th Floor, Westport, Connecticut 06880,
("Landlord"), and COMPETITIVE TECHNOLOGIES, INC., a Delaware corporation having
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its principal place of business at 777 Commerce Drive, Suite 100, Fairfield,
Connecticut 06825 ("Tenant").
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RECITALS
A. Landlord's predecessor-in-interest, 1375 Kings Highway/777 Commerce
Drive Associates, LLC, and Tenant entered into a lease dated April 28, 2006 for
premises consisting of approximately 10,622 rentable square feet (the
"Premises") in the building commonly known as 777 Commerce Drive, Fairfield,
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Connecticut as amended by that certain Amendment to Lease dated July 20, 2006,
and that certain Second Amendment to Lease dated June 18, 2007 (as so amended,
the "Lease"). All capitalized terms used herein shall have the meanings ascribed
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to them in the Lease unless otherwise specified.
B. The parties entered into that certain Amended and Restated Agreement
dated as of February 1, 2009; that certain Agreement dated November 9, 2009; and
that certain Agreement dated March 25, 2010 (collectively, the "Rent Concession
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Agreements") .
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C. The Lease term commenced September 1, 2006 and is scheduled to
expire on September 30, 2013.
D. The parties desire to terminate the Lease prior to the scheduled
expiration date upon the terms and conditions hereinafter provided.
NOW THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. Termination and Surrender. The Lease shall terminate effective
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December 1, 2010 (the "Termination Date"). As of the Termination Date, Tenant
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shall surrender to Landlord, and Landlord shall accept surrender of the Lease
and the Premises to the intent and purpose that Tenant's rights and estate in
the Lease and the Premises will be wholly extinguished on the Termination Date
in the same manner and with the same effect as if that were the date set forth
in the Lease for the natural expiration of the term thereof. Between the date
of this Agreement and the Termination Date, Tenant shall comply with all of its
obligations under the Lease.
2. Termination Settlement Amount. Tenant shall pay the sum of Three
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Hundred Ninety Three Thousand Four Hundred Sixty Six Dollars ($393,466.00) (the
"TerminationSettlement Amount") to Landlord in full payment of rent and other
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charges
due under the Lease from the date hereof through the Termination Date, payable
as follows:
(a) $218,466 on November 30, 2010; and
(b) $175,000.00 on December 1, 2010.
Payment shall be considered made when tendered to Landlord at its office set
forth above by hand delivery, certified mail, or reputable overnight courier.
Payment shall be in immediately available funds (including bank check or
certified check), and shall be made without offset, deduction, or abatement of
any kind.
3. Default. Any portion of the Termination Settlement Amount which is
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not paid when due shall incur an aggregated late charge equal to fifteen percent
(15%) of the unpaid amount and shall thereafter be payable with interest at the
rate of five percent (5%) per annum in excess of the prime or base rate of Bank
of America (or its successor) in effect from time to time from the due date to
the date of payment.
4. Security Deposit. Tenant waives any and all claims Tenant may have
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to any cash funds, deposit accounts, and other rights and evidence of rights to
cash, now or hereafter held by Landlord, including, without limitation, all
funds held as a security deposit under the Lease. In no event shall such funds
be credited towards Tenant's obligation to pay the Termination Settlement
Amount.
5. Removal of Tenant's Property. On or before the Termination Date,
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Tenant shall remove all of Tenant's personal property from the Premises. If
Tenant's personal property is not removed within such time, Landlord may, at its
option, dispose of the same without liability to Tenant and at the sole cost and
expense of Tenant.
6. Encumbrances. Tenant represents that the Premises have not been
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encumbered in any way whatever through or under Tenant, that Tenant has good
right to surrender all of the same, and that no one other than Tenant has
acquired or will acquire through or under Tenant any right, title or interest in
or to any of the same.
7. Release from Liability.
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(a) Effective as of the date hereof, except for (i) third party claims,
(ii) claims resulting from a breach by Tenant of its obligations under this
Agreement, including Tenant's covenant to comply with all of its obligations
under the Lease until the Termination Date, and (iii) environmental matters for
which Tenant is liable under the Lease and which have accrued prior to the date
Tenant surrenders exclusive possession of the Premises to Landlord, Landlord
does hereby remise, release and forever discharge Tenant from all manner of
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, covenants, controversies, agreements, promises,
damages, expenses, lost profits, judgments, executions, claims and demands
whatsoever,
in law or equity, which Landlord has or may have against Tenant, arising out of
or in any way connected to the Lease or the Premises.
(b) Effective as of the date hereof, except for (i) third party claims
and (ii) claims resulting from a breach by Landlord of its obligations under
this Agreement, Tenant does hereby remise, release and forever discharge
Landlord from all manner of actions, causes of action, suits, debts, dues, sums
of money, accounts, reckonings, bonds, bills, covenants, controversies,
agreements, promises, damages, expenses, lost profits, judgments, executions,
claims and demands whatsoever, in law or equity, which Tenant has or may have
against Landlord, arising out of or in any way connected to the Lease or the
Premises.
6. Holdover. In the event that Tenant fails to surrender and vacate
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the Premises on or prior to the Termination Date, Tenant shall be deemed a
licensee whose license may be terminated on five (5) days prior notice and
Tenant shall pay a monthly license fee equal to the sum of (i) 200% of the Base
Rent specified in the Lease for the month preceding the termination (pro-rated
for any partial month), and (ii) any additional rent and other charges accruing
during such period. In addition, Landlord shall have such damage remedies as
are provided by law with respect to Tenant's failure to comply with the terms of
this Agreement. Tenant shall indemnify Landlord for all damages sustained and
liabilities incurred by Landlord as a result of Tenant's continued occupancy
without Landlord's consent. Tenant shall not be deemed to have surrendered the
Premises to Landlord unless and until Landlord has received from Tenant all keys
to the Premises.
7. Time of Essence. Time is of the essence to this Agreement and to
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all dates and time periods set forth herein.
8. Notices: Tenant hereby designates the following changed address for
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notice pursuant to Section 27 of the Lease:
c/o Competitive Technologies, Inc.
1375 Kings Highway East
Suite 400/485
Fairfield, CT 06824
9. Interpretation. Landlord and Tenant each acknowledge each to the
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other that both they and their counsel have reviewed and revised this Agreement
and that the normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
10. Proper Execution. The submission by Landlord to Tenant of this
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Agreement in unsigned form shall be deemed to be a submission solely for
Tenant's consideration and not for acceptance and execution. Such submission
shall have no binding force and effect, shall not constitute an option, and
shall not confer any rights upon Tenant or impose any obligations upon Landlord
irrespective of any reliance thereon, change of position or partial performance.
The submission by Landlord of this Agreement for execution by Tenant and the
actual execution and delivery thereof by
Tenant to Landlord shall similarly have no binding force and effect on Landlord
unless and until Landlord shall have executed this Agreement and a counterpart
thereof shall have been delivered to Tenant.
11. Broker. Each party represents to the other that it has not had or
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dealt with any realtor, broker or agent in connection with the negotiation of
this Agreement, and each party shall pay and hold the other harmless from any
cost, expense or liability (including costs of suit and attorneys' fees) for any
compensation, commission or charges claimed by any realtor, broker or agent with
respect to this Agreement arising on account of such indemnifying party.
12. Counsel Fees. In the event of any litigation regarding the rights
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and obligations of the parties under this Agreement, the prevailing party shall
be entitled to recover from the losing party collection costs, reasonable
counsel fees, court costs and other direct litigation expenses together with
interest on the amount of any judgment, at the rate of 10% per annum from the
date the action is commenced.
13. Governing Law; Consent to Jurisdiction. This Agreement shall be
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governed by, and construed and enforced in accordance with, the internal laws of
the State of Connecticut, without regard to principles of conflicts of law. Each
of the parties submits to the exclusive jurisdiction of any state or federal
court sitting in Fairfield County, Connecticut in any action or proceeding
arising out of or relating to this Agreement. Each of the parties waives any
defense of inconvenient forum to the maintenance of any action or proceeding so
brought and waives any bond, surety or other security that might be required of
any party with respect thereto.
14. Entire Agreement; Modification. This Agreement contains the entire
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understanding of the parties with respect to the subject matters covered hereby.
No modification or amendment to this Agreement of any kind whatsoever shall be
made or claimed by either party, and no notice of any extension, change,
modification or amendment made or claimed by either party shall have any force
or effect whatsoever unless the same shall have been reduced to writing and
fully signed by both parties.
15. Authority. Tenant represents that Tenant has full power, authority
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and legal right to execute, deliver and perform its obligations pursuant to this
Agreement, that the execution, delivery and performance of this Agreement has
been duly authorized, that the person executing this Agreement on Tenant's
behalf has authority to do so, and that this Agreement, once executed by Tenant,
constitutes the valid and binding obligation of Tenant, enforceable in
accordance with its terms.
16. Counterparts. This Agreement may be signed on separate signature
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pages and shall be effective once this Agreement has been signed by both of the
parties and all signature pages have been attached to one another, it not being
necessary for the parties to have physically signed the same signature pages of
this Agreement. Such signatures may also be by facsimile or other electronic
means, which the undersigned all specifically
agree shall be deemed to be binding upon each of them and each other as if an
original signature.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
LANDLORD:
777 COMMERCE DRIVE LLC
By: \s\ W. Mark Keeney
Name: W. Mark Keeney
Title: President
TENANT:
COMPETITIVE TECHNOLOGIES, INC.
By: \s\ Johnnie D. Johnson
Name: Johnnie D. Johnson
Title: Chief Executive Officer