1
EXHIBIT 10.1(i)
SURRENDER AGREEMENT
AGREEMENT made as of this 23rd day of March, 2001 by and between 401
Park Avenue South Associates LLC, having an office at 30 West 26th Street, 8th
Floor, New York, New York 10010 (hereinafter referred to as "Landlord") and
Health Management Systems, Inc., having an office at 401 Park Avenue South, 4th
Floor, New York, New York (hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS:
A. Tenant and Landlord, as Tenant and Landlord respectively, entered
into a certain lease dated February 1, 1980, as amended by an Amendment of Lease
dated February 1, 1980, a Second Amendment of Lease dated October 9, 1981, a
Third Amendment of Lease dated September 24, 1982, a Fourth Amendment of Lease
dated January 6, 1986, a Fifth Amendment of Lease dated February 28, 1990, a
Sixth Amendment of Lease dated May 30, 2000 and a Seventh Amendment of Lease
dated May 30, 2003 with respect to a portion of the 12th Floor in the building
known as 401 Park Avenue South, (hereinafter called the "Building") which Lease
by its term expires on May 13, 2013 (hereinafter called the "Lease"); and
B. Tenant agrees to surrender the Lease to Landlord and Landlord is
willing to accept such surrender in the manner and upon the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of the promises and the
agreements hereinafter contained, it is mutually covenanted and agreed as
follows:
1. Tenant hereby irrevocably surrenders to Landlord, as of
midnight March 31, 2001 (the "Surrender Date"), the Lease and the term and
estate thereby granted together with the premises demised by the Lease
(hereinafter referred to as the "Premises"), to the intent and purpose that the
estate of Tenant in and to the Premises shall be wholly extinguished and that
the term of the Lease shall expire on the Surrender Date in the same manner and
with the same effect as if the Surrender Date were the date set forth in the
Lease for the expiration of the term thereof.
2. Tenant hereby agrees to surrender the Premises on the
Surrender Date in the condition and state of repair existing on the date of the
execution of this Agreement.
3. Tenant hereby represents and covenants that nothing has
been or will be done or suffered whereby the Lease or the term or estate thereby
granted, or the Premises or any part thereof, or any alteration, decoration,
installation, addition and improvement in and to the Premises or any part
thereof, have been or will be encumbered in any way whatsoever, and that Tenant
owns and will own the Lease, and has and will have good right to surrender 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 the Lease or the term
2
of estate thereby granted, or in or to the Premises or any part thereof, or in
or to said alteration, decorations, installations, additions and/or improvements
or any part thereof.
4. Landlord hereby accepts such surrender and termination as
of the Surrender Date and in consideration of such surrender and termination by
Tenant and of the acceptance of such surrender and termination by Landlord,
Tenant and Landlord do hereby mutually release each other, their respective
successors and assigns of and from any and all claims, damages, obligations,
liabilities, actions and causes of action, of every kind and nature whatsoever
arising under or in connection with the Lease, except that nothing herein
contained shall be deemed to constitute a release or discharge of Tenant with
respect to any obligation or liability accrued or incurred under the Lease, up
to and including anything outstanding on the Surrender Date.
5. This Agreement may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
6. The covenants, agreements, terms, provisions and conditions
in this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
7. This Surrender Agreement shall not be binding upon Landlord
unless and until (a) it has been duly executed by Landlord and delivered by
Landlord to Tenant and (b) Tenant has paid to Landlord any outstanding monies as
provided for in this Lease by certified check, bank check or other collected
funds.
IN WITNESS WHEREOF, the parties hereto have respectively
executed this Agreement as of the day and year first above written.
HEALTH MANAGEMENT SYSTEMS, INC.
By: /s/ Vincent C. Hartley
---------------------------------------
401 PARK AVENUE SOUTH ASSOCIATES LLC
By: /s/ Stephen J. Meringoff, Member
By: /s/ Farrel Virga
---------------------------------------
ATTORNEY IN FACT