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EXHIBIT 10.19
TERMINATION OF LEASE
THIS TERMINATION OF LEASE AGREEMENT ("Termination") is made as of the
28th day of June, 1999, between NOP 100 2ND STREET TOWER, LLC, a Delaware
limited liability company, with an office c/o Hines, Suite 4210, NationsBank
Tower, 100 S.E. Second Street, Miami, Florida 33 131 ("Landlord"), and
CONTINUCARE CORPORATION, a Florida corporation, with an office at 100 S.E.
Second Street ("Tenant").
RECITALS
A. Landlord's predecessor-in-interest and Tenant entered into a
certain lease dated as of August 29, 1996 and a certain First Amendment of Lease
dated as of July 31, 1997 (collectively, the "Lease"), with respect to the
entire thirty-sixth (36th) floor and a portion of the 37th floor (the
"Premises") in the building known as NationsBank Tower located at 100 S.E.
Second Street, Miami, Florida (the "Office Building") upon the terms and
conditions set forth therein.
B. The Expiration Date of the Lease is September 30, 2001.
C. Tenant has requested that Landlord agree to terminate the
Lease prior to the Expiration Date.
D. Landlord is willing to grant an early termination of the Lease
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, Landlord and Tenant agree as follows:
1. The Recitals set forth above are correct and are incorporated
into and made a part of. this Termination. All capitalized terms contained in
this Termination which are not defined herein shall have the meanings ascribed
to them in the Lease.
Landlord and Tenant hereby agree that the Lease is terminated
effective June 30, 1999 at 5:00 p.m. (the "Effective Date") and neither party
shall have any further rights or obligations under the Lease, except, however,
as follows:
(a) Tenant shall remain obligated for all obligations under the
Lease which accrue prior to the Effective Date or the date that Tenant
vacates the Premises, whichever occurs last;1
(b) In the event Tenant does not vacate and return the Premises
to Landlord in accordance with the terms hereof on or before August 15,
1999, Tenant shall remain obligated for:
(i) all obligations under the Lease which accrue prior to the date that
Tenant vacates the Premises and returns the Premises to Landlord as
required hereby; and
(ii) all payment and other obligations required by Paragraph 4 of this
Termination; and
(c) The provisions of Section 19.1 of the Lease shall survive the
termination of the Lease.
3. In consideration for this Termination, Tenant shall pay to
Landlord the sum of One Hundred Fifty Thousand Dollars ($150,000) (the
"Termination Payment"). Payment of the Termination Payment shall be effected as
follows: (a) on August 15, 1999 Landlord shall draw upon the existing $75,000
Letter of Credit issued by First
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Union National Bank (and Tenant hereby authorizes and directs Landlord to make
such draw and to make such certifications and take such action as is required to
make such draw. Tenant warrants that such letter of credit is still in effect
and has an expiry date of May 13, 2000 and Tenant shall promptly provide to
Landlord written confirmation thereof from the issuing bank); and (b)
simultaneously with execution hereof Tenant shall deliver by wire transfer to
Landlord or Landlord's counsel the amount of $75,000. The Termination Payment
represents consideration for Landlord's agreement to execute this Termination
and to terminate the Lease prior to the Expiration Date on the terms and
conditions set forth herein. Tenant acknowledges and agrees that the Termination
Payment represents reasonably equivalent value for Landlord's agreements
contained herein. Tenant recognizes that Landlord will incur substantial
additional costs and risks as a result of the early termination of the Lease,
including, without limitation, costs of releasing the Premises (including
commissions, attorneys' fees, costs of leasehold improvements, and marketing
costs), the risk that the space will remain vacant for substantial periods, and
the risk that the net return to Landlord will be reduced. Tenant and Landlord
hereby agree that such Termination Payment shall be recorded in their respective
books and records and/or reported, for all intents and purposes, as a payment in
consideration of the termination of the Lease (specifically, as a lease
termination fee) and not as rental expense or rental income.
4. Tenant agrees to vacate and surrender the Premises to Landlord
on or before August 15, 1999 in the condition and in the manner required by
Section 37 of the Lease. In the event Tenant fails to comply with the foregoing
provisions, (i) Tenant shall be a tenant-at-sufferance and shall be obligated to
pay to Landlord the sum of One Thousand Dollars ($1,000) per day (plus
applicable sales tax) for each day subsequent to August 15, 1999 until such time
as Tenant has vacated and surrendered the Premises to Landlord as required by
Section 37; and (ii) Tenant shall, in addition, pay to Landlord all damages that
Landlord may suffer on account of Tenant's failure to surrender the Premises to
Landlord as and when required hereby, together with all attorneys' fees and
costs incurred by Landlord in connection with such holdover whether or not suit
is instituted (and, if instituted, Tenant shall pay all such attorneys' fees and
costs incurred by Landlord at the trial level and at all levels of appeal).
5. All (a) leasehold improvements and fixtures (except Tenant's
moveable furniture and trade fixtures including all computer and telephone
network racks); (b) all built-in file cabinets and built-in cabinetry presently
in the Premises shall remain with the Premises and shall be the Property of
Landlord, and Tenant hereby grants and conveys to Landlord all of Tenant's
right, title and interest therein. Tenant shall repair all damages occasioned by
removal of Tenant's moveable furniture and trade fixtures.
6. From and after August 15, 1999, Tenant shall have no further
rights or claims with respect to the Premises or the Office Building, or the
Project or any parking rights in the Parking Garage. Tenant hereby quitclaims
and returns to Landlord all of Tenant's rights with respect thereto effective as
of the Effective Date.
7. Effective as of the Effective Date, (a) Tenant hereby releases
and forever discharges Landlord and its predecessor-in-interest from any and all
obligations, claims, demands, costs and liability whatsoever, at law or in
equity, whether contingent or direct and whether foreseen or unforeseen, which
Tenant ever had, now has, or may in the future have, arising from any matter,
known or unknown, existing as of the date hereof with respect to the Lease, the
Premises, the Office Building or the Project; and (b) provided that Tenant
complies with the provisions of this Termination and Landlord receives and
retains the full Termination Payment, Landlord hereby releases Tenant and
forever discharges Tenant from any and all obligations, claims, demands costs
and liability which Landlord ever had, now has, or may have, existing as of the
date hereof with respect to the Lease, the Premises, the Office Building or the
Project.
8. Tenant hereby warrants and represents that:
(a) Tenant has not encumbered, pledged, assigned or
collaterally assigned the Lease or the Premises or any
leasehold improvements or fixtures located in the Premises,
and Tenant has not entered into any subleases or other
arrangements granting to any other party the right to use or
occupy all or any portion of the Premises;
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(b) Tenant has full right, power and authority to execute
this Termination and Tenant has taken all action required to
authorize the execution hereof;
(c) No consent from any governmental body or from any
person or authority is required with respect to Tenant's
execution hereof except such consents as have already been
obtained;
(d) The execution of this Termination by Tenant and
Tenant's performance of its obligations hereunder will not
violate any agreement, covenant, judgment or decree which may
be binding upon Tenant; and
(e) This Termination has been duly authorized by all
necessary corporate action and is binding upon, and
enforceable against, Tenant in accordance with its terms.
9. Tenant warrants and represents that Tenant has not dealt or
consulted with any real estate broker or agent in connection with the early
termination of the Lease other than Codina Realty Services, Inc. ("Disclosed
Broker"), and Tenant agrees to indemnify and hold Landlord harmless of and from
all liability, damages, and costs (including, without limitation, attorneys
fees and costs at the trial level and at all levels of appeal) incurred by
Landlord in connection with any claims made by Disclosed Broker or by any other
real estate broker or agent claiming to have dealt or consulted with Tenant.
Tenant agrees to pay Disclosed Broker any commissions or other amounts to which
it may be entitled.
10. Tenant and Landlord shall execute such further instruments and
take such further action as may be necessary or desirable to fully effectuate
the terms of this Termination.
11. This Termination represents the entire understanding of the
parties with respect to the subject matter hereof and all prior understandings
are superseded and merged herein.
12. This Termination is binding upon the parties and their
respective successors and assigns.
13. In the event of any litigation between the parties with
respect to the interpretation or enforcement hereof, the prevailing party shall
be entitled to reimbursement from the non-prevailing party for all reasonable
attorneys' fees, paralegal fees and costs incurred at the trial level and at all
levels of appeal.
14. This Termination shall be effective when executed by both
Landlord and Tenant (which may include execution in counterparts) and faxed
copies or originals have been exchanged (in the event the exchange occurs by
fax, originals will be transmitted as soon as possible thereafter).
15. WAIVER OF TRIAL BY JURY: TENANT AND LANDLORD, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS TERMINATION OR THE LEASE, THE PREMISES, THE OFFICE BUILDING, OR THE
PROJECT. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE LANDLORD'S ACCEPTING
THIS TERMINATION.
LANDLORD:
NOP 100 SE 2ND STREET TOWER. LLC
By: National Office Partners Limited Partnership, a
Delaware limited partnership, its managing member
By: Hines National Office Partners Limited
Partnership, a Texas limited partnership,
its general partner
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By: Hines Fund Management, L.L.C., a
Delaware limited liability company, its
general partner
By: Hines Interests Limited
Partnership, a Delaware limited
partnership, its managing member
By: Hines Holdings, Inc., a
Texas corporation, its general
partner
By:/s/ Michael Harrison
Michael Harrison
Vice President
TENANT:
CONTINUCARE CORPORATION, a Florida
corporation
By: /s/ Charles M. Fernandez
- ------------------------------- Name: Charles M. Fernandez
Print Name Title: C.E.O.
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Print Name
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