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
