Exhibit 10.63a
SURRENDER AND ACCEPTANCE OF LEASE
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SURRENDER AND ACCEPTANCE dated as of May 11, 1999, between RECKSON
OPERATING PARTNERSHIP, L.P. A Delaware limited partnership having an office at
000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter referred to as
"Landlord"), WELLCARE DEVELOPMENT, INC., a New York Corporation having an
address at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter
referred to as "Tenant"), and THE WELLCARE MANAGEMENT GROUP, INC., a New York
corporation having an address at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx
00000 (hereinafter referred to as the "Guarantor").
R E C I T A L S:
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WHEREAS, Landlord and Tenant entered into an Agreement of Lease (the
"Original Lease"), fully executed on or about December 19, 1997, for the lease
of 10,079 rentable square feet of space (the "Demised Premises") on the first
(1st) floor of the building located at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxx
Xxxx (the "Building"); WHEREAS, in order to induce Landlord to enter into the
Lease, the Guarantor executed and delivered for the benefit of Landlord, and its
successors and assigns, a Guaranty (the "Guaranty"), dated on or about December
15, 1997, whereby the Guarantor guaranteed the full and faithful performance of
all obligations of Tenant under the Lease;
WHEREAS, Tenant desires to surrender the Lease to Landlord and Landlord is
willing to accept such surrender upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises herein contained, and the
payments to be delivered to Landlord by Tenant pursuant to this Agreement, the
parties agree as follows:
1. Tenant hereby surrenders to Landlord as of June 15, 1999 (the "Surrender
Date") the Lease and the term and the estate thereby granted, together with the
premises therein described, to the extent and purpose that the estate of Tenant
in and to the premises covered by the Lease shall be wholly extinguished, and
that the term of the Lease shall expire as of such date in the manner and with
the same effect as if that were the date therein set for the expiration of the
term of the Lease. Accordingly, on or before the Surrender Date, Tenant shall
completely vacate and surrender the Demised Premises in broom clean condition in
accordance with all of the applicable provisions of Article 17 of the Lease.
2. Tenant and the Guarantor, jointly and severally, hereby represent,
warrant and covenant that (a) nothing has been done or suffered whereby the
Lease or the term of the estate thereby granted have been encumbered in any way
whatsoever; (b) Tenant owns the Lease and has good right to surrender the same;
and (C) no one other than Tenant has acquired, through or under Tenant, any
right, title or interest in or to the Lease or the term or estate thereby
granted or in or to the premises covered thereby.
3. Tenant and the Guarantor each hereby acknowledges and agrees that
Landlord has fully performed and observed all of the terms, covenants and
conditions under the Lease to be performed or observed on the part of Landlord
and that there exists absolutely no defense, right of offset, right of abatement
or other similar rights of Tenant under the Lease. Finally, Tenant and the
Guarantor each hereby releases Landlord, and its affiliates, agents, employees,
successors and assigns of and from all claims, demands, actions and causes of
action of every kind and nature whatsoever arising out of or in connection with
the Lease.
4. In consideration of Landlord accepting the surrender of the Lease, as
set forth herein, Tenant and the Guarantor, jointly and severally, covenant to
pay to Landlord the sum of Thirty-Two Thousand Seven Hundred Fifty-Six and
76/100 ($32,756.76) Dollars, payable in full upon their execution hereof (the
"Surrender Payment").
5. Upon (a) Landlord's timely receipt, and upon clearance, of the Surrender
Payment referenced in Section "4" above, and (b) Tenant fully surrendering and
vacating the Demised Premises (in the manner required under Section 1 hereof) no
later than the Surrender Date; TIME BEING OF THE ESSENCE, then Landlord does
hereby release (i) Tenant, its parent and sister corporations, affiliates,
agents, employees, successors and assigns of and from all claims, demands,
actions and causes of actions of every kind and nature whatsoever arising out of
or in connection with the Lease, (ii) the Guarantor and any subsidiary
corporations of and from all claims, demands, actions and causes of actions of
every kind and nature whatsoever arising out of or in connection with the
Guaranty and (iii) Tenant from its obligation to pay the installment of Rent
otherwise due for the month of June 1999.
6. Landlord hereby reserves all rights and remedies available to it under
the Lease, the Guaranty, at law, in equity or otherwise with respect to the
Lease and any default on the part of Tenant arising thereunder, except in the
event that both (a) Landlord has received timely payment of, and clearance of,
the Surrender Payment referenced in Section "4" above, and (b) Tenant has fully
vacated and surrendered the Demised Premises (in the manner set forth in Section
1 hereof) no later than the Surrender Date; TIME BEING OF THE ESSENCE. In the
event of the failure of either of the above conditions, the release made by
Landlord in Section "5" hereof shall be automatically void and of no force or
effect whatsoever, and Landlord shall be free to exercise any and all of the
rights and remedies referenced in the preceding sentence of this Section "6".
Without regard to any default in the timely payment of the Surrender Payment or
the exercise by Landlord of any such rights or remedies, Tenant hereby expressly
waives any and all rights or redemption with regard to the Lease and the Demised
Premises.
7. Again, provided Landlord has received timely payment (and clearance) of
the Surrender Payment and Tenant has fully vacated and surrendered the Demised
Premise (in the manner required under Section 1 hereof) on or before the
Surrender Date; TIME BEING OF THE ESSENCE, then Landlord shall, promptly, but no
later than June 20, 1999, following Tenant having so timely surrendered and
vacated the Demised Premises, return to Tenant the original of that certain
Standby Letter of Credit, dated December 22, 1997 (as may have been amended),
issued by M&T Bank as further security for the full and faithful performance of
the obligations of Tenant under the Lease.
8. Landlord, Tenant and the Guarantor hereby acknowledge and agree that it
is difficult, if not impossible, to accurately calculate the damages incurred or
to be incurred by Landlord in connection with the surrender and termination of
the Lease by Tenant, and that the Surrender Payment is a reasonable estimate of
such damages as of the date of this Agreement and constitutes good and valuable
consideration for the covenants and obligations of the parties hereto. However,
in the event of the failure by Tenant or Guarantor to fully and timely perform
any of their respective obligations under this Agreement, such estimate shall in
no manner be construed as a limitation upon, or waiver of, any damages of which
Landlord may be entitled to reimbursement or restitution from Tenant or the
Guarantor whose release by Landlord is made void and ineffective pursuant to the
terms of this Agreement as a result of such failure.
9. This Surrender and Acceptance Agreement may be executed in counterparts.
10. This represents the complete agreement of the parties hereto and may
not be amended except by written modification executed by the parties.
11. The provisions of this Agreement shall not be binding upon any party
hereto unless and until this Agreement has been executed by and delivered to al
parties hereto.
IN WITNESS WHEREOF, this Surrender and Acceptance Agreement has been duly
executed by the parties hereto as of the day and year first above written.
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty
Corp., its general partner
By: /s/ Xxxxxxxxx Xxxxxxxxxxx
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WELLCARE DEVELOPMENT, INC.
By: /s/ Xxxx Xxx Xxxxxxxx-Xxxxxx
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THE WELLCARE MANAGEMENT GROUP
By: /s/ Xxxxx X. Xxxxxx
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