THIRD AMENDMENT OF LEASE
EXHIBIT
10.60
THIRD
AMENDMENT OF LEASE
THIS
THIRD AMENDMENT OF LEASE (the “Amendment” or the “Agreement”), made as of the
26th day of March, 2008, 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 00000 (the “Landlord”), and CAREADVANTAGE
HEALTH SYSTEMS, INC.,
a
corporation having an address at 485(C)
Xxxxx 0 Xxxxx, 0xx Xxxxx, Xxxxxx,
Xxx
Xxxxxx 00000
(the
“Tenant”).
WITNESSETH
:
WHEREAS,
SMIII Woodbridge Plaza, LLC (as successor in interest by mesne assignments
to
Metropolitan Life Insurance Company) and Tenant entered into an 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”), and as further
amended by a letter dated March 15, 2007 (the “Letter”), which Lease is
guarantied by Careadvantage, Inc. by Guaranty dated on or about April 10, 1995
(the Guaranty; the Original Lease, First Amendment, Second Amendment, Letter,
Guaranty, and this Amendment are sometimes hereinafter referred to collectively
as the “Lease”), pursuant to which Tenant leases a certain portion of rentable
space (the “Premises”) on the fourth (4th) floor of Building “C” (the
“Building”) in the office project commonly known as “Woodbridge Corporate Plaza”
and which is located at 000
Xxxxx
0 Xxxxx, Xxxxxx,
Xxx
Xxxxxx 00000
and as
is more particularly described in the Lease;
WHEREAS,
the Second Amendment provides, as and to the extent set forth in Articles 8
and
9 thereof, for a conditional reduction of certain Base Rent payments and a
conditional waiver of certain electric charges, Operating Expense escalation
payments and Real Estate Tax escalation payments payable by Tenant under the
Lease, which reduction and waiver is conditioned, among other things, on
(collectively, the “Conditions”) the Tenant being, at all times during the New
Term (as such term is defined in the Second Amendment), the originally named
Tenant under the Original Lease and the Premises not having been sublet nor
the
Lease having been assigned during the New Term (except for an assignment of
the
Lease or a sublet of the Premises as may be described in Section 11.09 of the
Original Lease) and Tenant not being in default under any of the terms and
conditions of the Lease at any time during the New Term. The provisions of
Article 8 of the Second Amendment provide that if Tenant does not satisfy the
Conditions at any time during the New Term, then the conditional reduction
in
Base Rent provided therein shall be nullified and entirely forfeited and Tenant
shall be required to immediately pay to Landlord, as Additional Rent, the
equivalent of the difference (the “Base Rent Abatement Amount”) in Base Rent
during the New Term between the Base Rent described in Article 5 of the First
Amendment and the Base Rent described in Article 8 of the Second Amendment
as if
Article 8 of the Second Amendment did not exist. Similarly, the provisions
of
Article 9 of the Second Amendment provide that if the Tenant does not satisfy
the Conditions at any time during the New Term, then the conditional waiver
(“Escalation Payments Waiver Amount”) of electric charges, Operating Expense
escalation payments and Real Estate Tax escalation payments provided therein
shall be nullified and entirely forfeited and Tenant shall be required to
immediately pay to Landlord, as Additional Rent, the Escalation Payments Waiver
Amount as if Article 9 of the Second Amendment did not exist;
WHEREAS,
due to certain contingent liabilities which Tenant may suffer as raised by
Tenant’s certified public accountant in its review and audit of Tenant’s
financial condition with regard to the Base Rent Abatement Amount and the
Escalation Payments Waiver Amount being nullified and entirely forfeited if
the
Conditions are not satisfied by Tenant at any time during the New Term, Tenant
has requested that Landlord agree to amortize the Base Rent Abatement Amount
and
the Escalation Payments Waiver Amount on a straight line basis over the length
of the New Term, and Landlord has agreed thereto and to modify certain
provisions of the Second Amendment, on the terms hereinafter set
forth.
NOW,
THEREFORE, in consideration of the sum of Ten Dollars ($10.00) paid by Tenant
to
Landlord and for other good and valuable consideration, the mutual receipt
and
legal sufficiency of which are hereby acknowledged, the parties 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 Amendment.
2. Definitions.
All
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Lease.
3. Effective
Date.
The
effective date (“Effective Date”) of this Amendment shall be upon the date
hereof.
4. Amortization
of Base Rent Abatement Amount and Escalation Payments Waiver
Amount.
| (A) |
The
parties hereby acknowledge and agree that the Base Rent Abatement
Amount
and the Escalation Payments Waiver Amount shall be deemed herein
to be
amortized on a straight line basis over the length of the New Term,
commencing on the first day of the New Term and ending on the last
day of
the New Term.
|
| (B) |
Tenant
hereby covenants and represents that Tenant’s request to Landlord to so
amortize the Base Rent Abatement Amount and the Escalation Payments
Waiver
Amount as provided above during the New Term is being granted and
afforded
by Landlord to Tenant due solely to the Tenant’s reasons described above,
and Tenant herein affirms and acknowledges that same is not being
requested by Tenant due to any contemplated sale, merger, consolidation,
reorganization or bankruptcy of Tenant and/or Guarantor, any contemplated
assignment of the Lease or sublet of the Premises or any anticipated
default under the Lease, any anticipated surrender of the Premises
(or any
portion thereof) by Tenant or any change in the financial condition
or
circumstances of the Tenant and/or Guarantor. The aforesaid covenant
and
representation of Tenant is a material inducement to Landlord to
agree to
the terms herein contained in this Amendment for Tenant’s benefit and if
same shall be untrue, false or misleading in any respect, then the
agreements and consideration herein granted by Landlord to Tenant
shall be
deemed to have been entirely nullified and forfeited by the Tenant
and
this Amendment shall be deemed to be a nullity.
|
5. Notices.
Article
10 of the Second Amendment is deleted and is replaced with the
following:
“(b)
Notices.
All
notices, demands and requests which may be given or which are required to be
given by either party to the other must be in writing. All notices, demands
and
requests by Landlord or Tenant shall be (i) delivered personally, (ii) sent
by a
recognized overnight courier, (iii) sent by telefacsimile transmission (provided
that an original is deposited on the same day for delivery by a recognized
overnight courier service) or (iv) sent by United States certified mail, postage
prepaid, and addressed as follows or at such substitute addresses as may be
specified by either party by written notice furnished to the other in accordance
herewith:
|
If
to Landlord:
With
a copy to:
|
SMIII
Woodbridge Plaza, LLC
c/o
KBS Realty Advisors, LLC
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Asset
Manager
Telecopier
No.: (000) 000-0000
Xxxxx
X. Xxxx, Esq.
Xxxxx
X. Xxxx, Esq., PLLC
00
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx, XX 00000
Telecopier
No.: (000) 000-0000
|
|
If
to Tenant:
|
CareAdvantage
Health Systems, Inc.
000X
Xxxxx 0 Xxxxx
Xxxxxx,
Xxx Xxxxxx 00000
|
Notices,
demands and requests delivered in the manner provided hereinabove will be deemed
received: (i) upon receipt or refusal, if delivered personally, (ii) if sent
by
recognized overnight courier, on the next business day following deposit
therewith, (iii) if sent by telefacsimile transmission as provided above, on
the
day confirmation of transmission to the specified telecopier number is received
electronically (provided that said confirmation is received on a business day
prior to 5:00 p.m. local time; otherwise on the next business day), and (iv)
if
sent by certified mail, three (3) business days after the date of postmark
thereof. Notices and demands from Landlord to Tenant may be signed by Landlord,
its beneficiaries, the managing agent for the Property or the agent of any
of
them.”
6.
No
Claims.
Tenant
hereby represents to Landlord that it has no causes of action, defenses,
setoffs, claims or demands whatsoever, in law or in equity, against the Landlord
as of the date of this Amendment, based upon or by reason of any matter, cause
or thing whatsoever, arising out of the Lease.
7.
Ratification.
As
modified and amended by this Amendment, all of the terms, covenants and
conditions of the Lease are hereby ratified and confirmed and shall continue
to
be and remain in full force and effect throughout the remainder of the term
of
the Lease.
8.
Guaranty.
The
terms and conditions of the Lease, as amended hereby, are hereby guarantied
by
Guarantor as described in the Guaranty and are hereby ratified, affirmed and
agreed to by Guarantor. All of the terms, covenants and conditions of the
Guaranty are hereby ratified and confirmed and shall continue to be and remain
in full force and effect throughout the remainder of the term of the
Lease.
SIGNATURE
PAGE FOLLOWS
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
as
of the day and year first above written.
| LANDLORD | |||
|
SMIII
WOODBRIDGE PLAZA, LLC,
a
Delaware limited liability company
|
|||
| Witnessed by: |
By:
KBS Realty Advisors, LLC,
as
Agent
|
||
| /s/ Xxxxxx Xxxxxx | By: /s/ Xxxxxxx X. Xxxxxxxxx | ||
|
Name: Xxxxxx Xxxxxx |
Xxxxxxx
X. Xxxxxxxxx,
Senior
Vice President
|
||
| TENANT | |||
| Witnessed by: |
CAREADVANTAGE
HEALTH
SYSTEMS,
INC.
|
||
| /s/ Xxxxx X. Xxxxxxx | By: /s/ Xxxxxx X. Xxxxxx | ||
|
Name: Xxxxx X. Xxxxxxx |
Name:
Xxxxxx X. Xxxxxx
Title:
President and CEO
|
||
| GUARANTOR | |||
| Witnessed by: |
CAREADVANTAGE,
INC.
|
||
| /s/ Xxxxx X. Xxxxxxx | By: /s/ Xxxxxx X. Xxxxxx | ||
|
Name: Xxxxx X. Xxxxxxx |
Name:
Xxxxxx X. Xxxxxx
Title:
President and
CEO
|
||
