SURRENDER AGREEMENT
AGREEMENT
(this “Agreement”) made as of the 28th day of December, 2009, by and
between SMIII
WOODBRIDGE PLAZA, LLC, a Delaware limited liability company, having an
office at c/o KBS Realty Advisors, LLC, 000 Xxxxxxx Xxxxxx, 00xx xxxxx,
Xxx Xxxx, Xxx Xxxx 10022 (“Landlord”) and CAREADVANTAGE
HEALTH SYSTEMS, INC., a Delaware corporation
having an address at 485(C) Xxxxx 0 Xxxxx, 0xx Xxxxx, Xxxxxx, Xxx Xxxxxx
00000 (“Tenant”).
WITNESSETH:
WHEREAS,
by Agreement of Lease (the “Original Lease”) dated as of April 14, 1995, as
amended by Lease Extension and Modification of Lease dated as of October 31,
2000 (“the First Amendment”), as further amended by that certain Second
Amendment to Lease Agreement dated as of December 21, 2004 (“the
Second Amendment”), as further amended by a letter dated March 15, 2007 (the
“Letter”), and as further amended by that certain Third Amendment of Lease dated
as of March 26, 2008 (“the Third Amendment”), all of which lease documents are
guarantied by CareAdvantage, Inc. (the “Guarantor”) by Guaranty dated on or
about April 10, 1995 (as amended and extended, the Guaranty; the Original Lease,
First Amendment, Second Amendment, Letter, Third Amendment, and Guaranty are
sometimes hereinafter referred to collectively as the “Existing Lease”),
Landlord did demise and let unto Tenant and Tenant did hire and take a certain
portion of rentable space on the fourth (4th) floor of Building “C” (the
“Building”) as more particularly described in the Existing Lease (“Original
Demised Premises”) in the office project commonly known as “Woodbridge Corporate
Plaza” (the “Project”) and which is located at 000 Xxxxx 0 Xxxxx, Xxxxxx, Xxx
Xxxxxx 00000;
WHEREAS,
the Expiration Date of the Existing Lease is March 31, 2011 (the “Existing Lease
Expiration Date”);
WHEREAS,
Landlord and Guarantor are simultaneously herewith entering into a new Office
Lease (the “New Lease”), whereby Guarantor will be leasing certain premises
described in the New Lease (hereinafter referred to as the “New Demised
Premises”) located on the second (2nd) floor
of the building located in the Project known as Building “A”; and
WHEREAS,
Tenant desires, upon the day preceding the “Commencement Date” (as such term is
defined in the New Lease) of the New Lease, to surrender the Original Demised
Premises and all of its rights and interests under the Existing Lease to
Landlord (which Commencement Date is anticipated to be on or about April 1, 2010
(but may be different than such date), but in any event such Commencement Date
shall be prior to the Existing Lease Expiration Date, and to relocate to and
lease from Landlord the New Demised Premises under the New Lease, and Landlord
is willing to accept said surrender and relocation, all upon the terms and
conditions hereinafter set forth.
NOW,
THEREFORE, in consideration of the payment by Tenant to Landlord of Ten ($10.00)
Dollars and other good and valuable consideration and in consideration of the
mutual covenants herein contained, the mutual receipt and legal sufficiency of
which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Incorporation of
Recitals. The recitals set forth above are hereby incorporated herein by
reference as if set forth in full in the body of this Agreement.
2.
All capitalized terms used herein and not otherwise defined herein shall have
the meanings ascribed to them in the Existing Lease.
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3. Effective
upon the day prior to the Commencement Date of the New Lease, with time being of
the essence (the “Surrender Date”), Tenant shall surrender possession of the
Original Demised Premises and all of its rights and interests under the Existing
Lease and the Original Demised Premises to Landlord. Tenant hereby acknowledges
and agrees that Tenant and Guarantor shall continue to remain liable for all of
their obligations under the Existing Lease through the Surrender Date and shall
continue to be responsible for the timely payment of all Base Rent, and all
other charges, payments or other amounts required thereunder to be paid under
the Existing Lease through the Surrender Date. In addition, Tenant
hereby acknowledges and agrees that Tenant shall be liable for holdover and
consequential damages as described in Article 28 of the Original Lease in the
event Tenant remains in possession of the Original Demised Premises after the
Surrender Date; provided, however, that continued possession under the Sublease
(hereinafter defined) by Geodis (hereinafter defined), Tenant’s subtenant under
the Sublease, of the Sublease Space (hereinafter defined), as more fully
described in Section 5 of this Agreement, shall not constitute a holdover over
by Tenant in the Sublease Space and shall not subject Tenant to liability for
consequential damages as described in Article 28 of the Original Lease for its
failure to surrender and vacate the Sublease Space to Landlord by the Surrender
Date. Tenant also acknowledges and agrees that any and all renewal, extension or
expansion options (including any rights of first refusal) that may be set forth
in the Existing Lease are herein deemed waived and forfeited. The
provisions of this Article shall survive the Surrender Date.
4. Tenant
covenants and agrees on behalf of itself, its successors and assigns, that it
has not done and will not through the Surrender Date suffer (and will not do or
suffer) anything whereby the Existing Lease or the Original Demised Premises or
any furniture, equipment or personal property located therein has (or will)
become encumbered, assigned, liened, occupied or subleased, except for the
Sublease described in Section 5 of this Agreement, by any party in any way
whatsoever.
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5. (A)
Landlord and Tenant acknowledge and agree that a third party known as Geodis
Xxxxxx USA Inc. (“Geodis”) is the subtenant of a portion of the Original Demised
Premises (the “Sublease Space”) as same is more particularly described in the
Sublease Agreement (as amended, the “Sublease”) between Tenant, as sublessor and
Geodis, as subtenant. Geodis is also a direct tenant with Landlord of the
Sublease Space (as well as other space in the Project) for a term to commence,
with respect to the Sublease Space, as of April 1, 2011 (which is the
day after the Existing Lease Expiration Date). Geodis has been notified by
Tenant that the Existing Lease and the Original Demised Premises (including the
Sublease Space) are being terminated and surrendered by Tenant to Landlord as of
the Surrender Date and Geodis has acknowledged that it is aware that as a result
thereof the Sublease is by its terms and at law also deemed terminated effective
as of the Surrender Date. As such, in order to continue leasing the Sublease
Space during the period from the day following the Surrender Date and through
and including March 31, 2011, Geodis is simultaneously herewith entering into an
amendment of its lease with Landlord to provide for the Sublease Space to be
leased by Geodis from Landlord directly for the period to commence upon the
Commencement Date of the New Lease (which is the day following the Surrender
Date) and through and including March 31, 2011 and thereafter such space shall
continue to be leased by Geodis from Landlord in accordance with the terms of
Geodis’ lease with Landlord.
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(B)
On the Surrender Date, Tenant shall deliver the entire Original Demised Premises
(excluding the Sublease Space) and the keys therefor to Landlord in vacant,
broom clean condition and in accordance with applicable provisions of the
Existing Lease, and free and clear of any occupants, subtenants (excluding
Geodis), licensees, any third parties, furniture, equipment or other personal
property. Any and all furniture, equipment and personal property remaining in
the Original Demised Premises (excluding the Sublease Space) as of the Surrender
Date shall be deemed to have been unconditionally abandoned by Tenant and
conveyed to Landlord free and clear of any liens and claims of others and
Landlord shall be free to do with such furniture, equipment and personal
property what it wishes, at Tenant’s sole cost and expense, including, without
limitation, disposing of or selling same. Tenant unconditionally agrees to
comply with all of the provisions of the Existing Lease, including, without
limitation, the provisions of Article 27 of the Original Lease and all other
provisions of the Existing Lease dealing with the surrender of the Original
Demised Premises to Landlord at the expiration or sooner termination of the
Existing Lease. Any sums or charges expended by Landlord to correct or remediate
any failure by Tenant to comply with the foregoing and any damage caused by
Tenant therein, shall be reimbursed by Tenant to Landlord on demand as
additional rent under the Existing Lease. The provisions of this
Article shall survive the Surrender Date.
6. The
provisions of this Surrender Agreement shall survive the Surrender
Date.
7. As
of the Surrender Date, Tenant does hereby release and relieve Landlord, its
successors and assigns, from and against any and all claims, obligations and
liabilities of every kind and nature whatsoever which may have previously,
currently or thereafter arise out of or in connection with the Original Demised
Premises and the Existing Lease. Upon Tenant’s (a) delivery of the
Original Demised Premises (excluding the Sublease Space) to Landlord in
accordance with the terms of this Agreement and the Existing Lease, and (b)
timely payment of all Base Rent, and all other charges, payments or other
amounts required to be paid under the Existing Lease through and including the
Surrender Date, Landlord does hereby release and relieve Tenant from and against
any and all claims, obligations and liabilities of every kind and nature
whatsoever which may thereafter accrue or arise out of or in connection with the
Original Demised Premises and the Existing Lease.
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8.
The security deposit currently held by Landlord under the Existing Lease is
$167,027.67. Tenant acknowledges and agrees that, as a condition to and in
consideration of Landlord accepting the Tenant’s termination and surrender of
the Existing Lease and the Original Demised Premises as of the Surrender Date,
the entire amount of such existing security deposit held by Landlord under the
Existing Lease shall be retained by Landlord as a “Surrender Fee”
hereunder. By reason of the above, Tenant
hereby acknowledges and agrees that the Surrender Fee (i.e., the sum of
$167,027.67, which is the entire amount of the
security deposit held by Landlord under the Existing Lease) is hereby
deemed to be herein irrevocably and unconditionally forfeited by Tenant to
Landlord and Tenant has no rights or claims with respect thereto and such sums
shall not be returned by Landlord to Tenant. The provisions of this Article
shall survive the Surrender Date.
9. In the event that the Commencement Date under the New
Lease fails to occur by April 1, 2010 (which date and deadline shall be extended
by one (1) additional day for each day of delay caused by the occurrence of one
or more acts constituting Tenant Delay (as such term is defined in Paragraph 4
of the Workletter annexed as Exhibit D to the New Lease)), then the parties
herein agree that the sole and exclusive remedy therefor which shall be provided
shall be that commencing on April 2, 2010 (as such date and deadline may be so
extended as hereinabove provided) the Tenant shall be granted a credit towards
the Base Rent payable by Tenant under the Existing Lease in the amount of
$957.44 for each day of delay beyond April 1, 2010 (as such date and deadline
may be so extended as hereinabove provided) that the Commencement Date under the
New Lease has not yet occurred until the date that the Commencement Date under
the New Lease has occurred. Both Tenant and Guarantor confirm and ratify the
provisions of this Article.
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10. Tenant
represents and warrants that it has dealt with no broker, finder or like agent
in connection with this Agreement other than FirstService Xxxxxxxx (“Broker”)
and Tenant does hereby agree to indemnify and hold Landlord harmless of and from
any and all loss, costs, damage or expense (including, without limitation,
attorneys’ fees and disbursements) incurred by Landlord by reason of any claim
of, or liability to, any broker, finder or like agent (other than Broker) who
shall claim to have dealt with Tenant in connection with this
Agreement.
11. This
Agreement shall not be binding upon or enforceable against Landlord or Tenant
unless and until Landlord and Tenant shall have executed and unconditionally
delivered to each other an executed counterpart of this Agreement.
12.
Tenant and the individual executing this Agreement on behalf of Tenant represent
and warrant that this Agreement has been duly executed and delivered by Tenant,
and that the individual executing this Agreement on behalf of Tenant is duly
authorized and approved to bind the Tenant and this Agreement has been executed
by the Tenant pursuant to and in conformance with a valid and effective
authorization therefor, and constitutes the valid and binding agreement of the
Tenant in accordance with its terms.
SIGNATURE
PAGE FOLLOWS
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IN
WITNESS WHEREOF, Landlord and Tenant have duly executed this Agreement as of the
day and year first above written.
LANDLORD
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SMIII WOODBRIDGE PLAZA,
LLC,
a
Delaware limited liability company
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By:
KBS Realty Advisors, LLC,
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Witnessed
by:
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as
Agent
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/s/
Illegible Signature
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By:
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/s/ Xxxxxxx X.
Xxxxxxxxx
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Name:
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Xxxxxxx X. Xxxxxxxxx,
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Senior Vice President
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TENANT
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Witnessed
by:
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CAREADVANTAGE HEALTH SYSTEMS,
INC.,
a Delaware
corporation
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/s/
Xxxxx X. Xxxxxxx
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By:
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/s/ Xxxxxx X. Xxxxxx |
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Name:
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Name:
Xxxxxx X. Xxxxxx
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Title:
CEO
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ACKNOWLEDGED
AND AGREED TO:
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GUARANTOR
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CAREADVANTAGE,
INC.,
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Witnessed
by:
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a
Delaware corporation
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/s/
Xxxxx X. Xxxxxxx
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By:
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/s/ Xxxxxx X. Xxxxxx |
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Name:
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Name:
Xxxxxx X. Xxxxxx
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Title: CEO
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