EXHIBIT 10.1
SECOND AMENDMENT TO LEASE AGREEMENT
This Agreement ("Agreement" or "Amendment") made this 21st day of December,
2004 by and between CORPORATE PLAZA ASSOCIATES, L.L.C., 485 A Route 1 South,
Suite 330, Iselin, New Jersey 08830 (hereinafter referred to as "Landlord") and
CAREADVANTAGE HEALTH SYSTEMS, INC., 485 Route1 South Building C, Iselin, New
Jersey 08830 (hereinafter referred to as "Tenant");
WHEREAS, the Landlord owns certain lands and premises in the Township of
Woodbridge, County of Middlesex and State of New Jersey, which lands and
premises are known as Woodbridge Corporate Plaza, Building C, 485 U.S. Route #1
South, Iselin, New Jersey, upon which there has been erected an office building
known as "Building C" containing approximately 110,074 square feet (hereinafter
called the "building" or the "Building"); and
WHEREAS, Landlord is the successor in interest from KB Fund IV who in turn
was successor in interest from Metropolitan Life Insurance Company
("Metropolitan"), to a certain lease as described below between Metropolitan, as
Landlord and Tenant, as tenant; and
WHEREAS, Landlord and Tenant have heretofore entered into a certain lease
agreement dated April 14, 1995 (the "Original Lease"), as modified by Lease
Extension and Modification Agreement to Lease dated October 31, 2000 (the "First
Amendment") (the Original Lease, together with the First Amendment and this
Amendment are referred to herein collectively as the "Lease") pursuant to which
Tenant Leased from Landlord a total of approximately 27,838 rentable square feet
of space in Building C (hereinafter called the "Premises"), all in accordance
with the terms and conditions of the Lease; and
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WHEREAS, the Lease was guarantied by Careadvantage, Inc. ("Guarantor") by
Guaranty ("Guaranty") dated on or about April 10, 1995; and
WHEREAS, Landlord and Tenant are desirous of further amending the Lease to
provide for the matters hereinafter set forth, such as, commencing as of January
1, 2005, providing for the conditional reduction in Base Rent and the
conditional waiver of electric charges, expense escalation and real estate tax
escalation payments, and to provide Landlord with the option to recapture up to
50% of the Premises at any time, all as set forth and subject to the terms and
conditions described hereinbelow.
NOW, THEREFORE, for good and valuable consideration, Landlord and Tenant
hereby agree as follows:
1. Incorporation Of Recitals. The recitals set forth above and in the Lease
referred to therein are hereby incorporated herein by reference as if set forth
in full in the body of this Amendment.
2. Capitalized Terms. All capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Lease.
3. Terms and Obligations.
All of the terms and obligations of the Lease are to be incorporated and
applicable to this Amendment, including all Riders, Schedules, Rules and
Regulations, etc. as have been previously provided to the Tenant except as may
be otherwise set forth or amended herein. All of the terms and obligations of
the Lease are to be in full force and effect except for those terms which are
specifically set forth or amended herein.
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4. Effective Date. The effective date ("Effective Date") of this Amendment
shall be upon the date of this Amendment hereinabove set forth.
5. Second Amendment Commencement Date: January 1, 2005.
6. Expiration Date: The Expiration Date of the Lease shall remain unchanged
at March 31, 2011, per the Lease.
7. [Intentionally Omitted.]
8. Base Rent:Effective as of the Second Amendment Commencement Date and
continuing through and including the Expiration Date (such period being
described herein as the "New Term"), provided that (i) the Tenant is at all
times during the New Term the original Tenant named in the Lease and the
Premises have not been sublet and the Lease has not been assigned at any time
during such 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 (ii)
Tenant is not in default under any of the terms and conditions of the Lease at
any time during the New Term, then the Base Rent payable by Tenant during the
New Term shall be as provided hereinbelow. In the event that on any date during
such New Term the Tenant is (i) not the original Tenant named herein or the
Lease has been assigned or the Premises sublet, 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 or (ii) in default under any of the terms and conditions of this
Lease, then the reduction in Base Rent provided below shall be nullified and
entirely forfeited and Tenant shall be required to immediately pay to Landlord
as Additional Rent the equivalent of the difference in Base Rent during the New
Term between the Base Rent described in Article 5 of the First Amendment and the
Base Rent described below.
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Months One through Seventy Five of the New Term.
Monthly Annually Total
1/1/05-12/31/06 $29,183.50 $350,202.04 $ 700,404.00
1/1/07-12/31/07 $37,511.71 $450,140.46 $ 450,140.46
1/1/08-12/31/08 $45,839.91 $550,078.88 $ 550,078.92
1/1/09-12/31/09 $54,168.11 $650,017.30 $ 650,017.30
1/1/10-3/31/11 $62,500.00 $750,000.00 $ 937,500.00
TOTAL $3,288,140.68
9. Tenant Electric Charges, Operating Expense and Real Estate Tax
Escalation Payments.
Effective as of the Second Amendment Commencement Date and continuing
through and including the Expiration Date, provided that (i) the Tenant is at
all times during the New Term the original Tenant named in the Lease and the
Premises have not been sublet and the Lease has not been assigned at any time
during such 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 (ii)
Tenant is not in default under any of the terms and conditions of the Lease at
any time during the New Term, then Tenant shall not be obligated to pay Landlord
during the New Term Operating Expense escalation payments, Real Estate Tax
escalation payments and the electric costs provided for in the Original Lease
and the First Amendment. In the event that on any date during such New Term the
Tenant is (i) not the original Tenant named herein or the Lease has been
assigned or the Premises sublet, 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 or (ii) in default under any of the terms and conditions of this Lease,
then the waiver of the aforesaid charges shall be nullified and entirely
forfeited and Tenant shall be required to immediately pay to Landlord as
Additional Rent
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all of the escalation payments and electricity charges as provided in the
Original Lease and First Amendment as if this Article of the Amendment did not
exist.
10. Notices
(a) All notices, demands or requests provided for or permitted to be
given pursuant to this Lease must be in writing sent by Federal
Express or other overnight courier service, or mailed by first
class, registered or certified mail, return receipt requested,
postage prepaid.
(b) All notices, demands or requests to be sent pursuant to this
Lease shall be deemed to have been properly given or served by
delivering or sending the same in accordance with this Section,
addressed to the parties hereto at their respective addresses
listed below:
(1) Notices to Landlord shall be addressed:
Corporate Plaza Associates, L.L.C. 485 A
Route 1 South
Suite 330
Iselin, New Jersey 08830
Attention: Henry Orlinsky
With a copy to the following:
Joseph H. Neiman
117 Central Avenue
Hackensack, New Jersey 07601
(2) Notices to Tenant shall be addressed:
CareAdvantage Health Systems, Inc.
485 C Route 1 South
Iselin, New Jersey 08830
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(c) If notices, demands or requests are sent by registered or
certified mail, said notices, demands or requests shall be
effective upon being deposited in the United States mail.
However, the time period in which a response to any such notice,
demand or request must be given shall commence to run from the
date of receipt on the return receipt of the notice, demand or
request by the addressee thereof. Rejection or other refusal to
accept, or the inability to deliver because of changed address of
which no notice was given, shall be deemed to be receipt of
notice, demand or request sent.
Notices may also be served by personal service upon any officer,
director or partner of Tenant or in the case of delivery by
Federal Express or other overnight courier service, notices shall
be effective upon acceptance of delivery by an employee, officer,
director or partner of Landlord or Tenant.
(d) By giving to the other party at least thirty (30) days written
notice thereof, either party shall have the right from time to
time during the term of this Lease to change their respective
addresses for notices, statements, demands and requests, provided
such new address shall be within the United States of America.
11. Recapture.
Landlord shall have the option at any time and throughout the term of the
Lease (including, without limitation, during the New Term) to exclude and
subtract from the Premises covered by the Lease and to recapture from the Tenant
("recapture") up to fifty (50%) percent of the Premises leased by Tenant (ie.,
Landlord may recapture up to 13,919 square feet of the Premises, with such
recaptured space (the "Recaptured Space") being shown and described on Exhibit A
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annexed hereto and made a part hereof). If Landlord elects to recapture, Tenant
shall surrender vacant, broom-clean and lien-free possession of the Recaptured
Space to Landlord on the effective date of recapture of such space from the
Premises as set forth in Landlord's notice (as described below), with such
effective date of recapture being the date that Tenant shall no longer have any
future obligations or rights under the Lease with respect only to such
Recaptured Space and such Recaptured Space shall be deemed surrendered to
Landlord. Notwithstanding any recapture of space by Landlord as provided herein,
the Tenant's Monthly Base Rent payable by Tenant during the balance of the New
Term shall remain, subject to the terms and conditions described in Section 8 of
this Amendment, the same as the Monthly Base Rent set forth in Section 8 of this
Amendment and same shall not be reduced or modified in any respect despite any
recapture by Landlord of the Recaptured Space. Landlord shall provide to Tenant
a minimum of thirty (30) days written notice as to the effective date of the
recapture.
12. No Waiver; Entire Agreement.
This Amendment constitutes the entire agreement between Landlord and Tenant
concerning the terms and conditions described herein and all prior negotiations
and agreements with respect thereto are merged herein. Except as expressly
modified herein, all terms, covenants and conditions contained in the Original
Lease, the First Amendment and this Amendment are hereby ratified and affirmed.
To the extent of any inconsistency between the terms described in this Amendment
and those described in the Original Lease and/or the First Amendment, then the
terms of this Amendment shall prevail and control.
13. Default.
As more fully set forth in Articles 8 and 9 of this Amendment, in the event
that on any date during such New Term the Tenant is (i) not the original Tenant
named herein or the Lease
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has been assigned or the Premises sublet, 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 or (ii) in default under any of the terms and conditions of this Lease,
then (y) the reduction in Base Rent provided in Article 8 of this Amendment
shall be nullified and entirely forfeited and Tenant shall be required to
immediately pay to Landlord as Additional Rent the equivalent of the difference
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 this Amendment
and (z) the waiver provided in Article 9 of this Amendment of the Operating
Expense escalation payments, Real Estate Tax escalation payments and the
electric costs provided for in the Original Lease and First Amendment shall be
nullified and entirely forfeited and Tenant shall be required to immediately pay
to Landlord as Additional Rent all of the Operating Expense escalation payments,
Real Estate Tax escalation payments and the electric costs provided for in the
Original Lease and First Amendment as if Article 9 of this Amendment did not
exist. In addition to the above remedies, Landlord shall have all other remedies
at law, in equity and under the Lease as may be available due to Tenant's
default under the Lease. It being understood by Landlord and Tenant that the
rent relief and waiver of escalation payments and electric charges being
provided to Tenant herein is subject to Tenant being current and making the Base
Rent payments as set forth in Article 8 of this Amendment and otherwise being in
full compliance with the terms and conditions described in Articles 8 and 9 of
this Amendment and in the event Tenant defaults on such payments and/or is
otherwise not in full compliance with the terms and conditions described in
Articles 8 and 9 of this Amendment, then Landlord will be entitled to be paid by
Tenant the full Base Rent described in Article 5 of the First Amendment and to
receive payment from Tenant of all of the Operating Expense escalation payments,
Real Estate Tax escalation payments and the electric costs
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provided for in the Original Lease and First Amendment as if Article 9 of this
Amendment did not exist.
14. Security Deposit; Letter of Credit.
(A) Notwithstanding any provision to the contrary contained in the Lease,
effective as of the Effective Date, there shall be no reduction in or of the
security deposit (or any portion thereof) held by Landlord under the Lease.
(B) A portion of the security deposit for the Lease is held by Landlord in
the form of a letter of credit (the "Letter of Credit"). In the event of an
assignment or transfer by the Landlord of the leasehold estate under the Lease,
(a) Landlord shall have the right without any charge, cost, fee or expense
charged to any party other than Tenant, to transfer or assign the Letter of
Credit one or more times to any transferee or assignee (herein, a "Transferee")
by delivering to said Transferee a blanket assignment or transfer of said Letter
of Credit (using a form of assignment or transfer reasonably approved by the
issuer ("Issuer") of the Letter of Credit and which is acceptable to Landlord
and Transferee in their sole discretion), which blanket assignment or transfer
form shall be delivered to the Issuer, whereupon the Letter of Credit shall be
deemed automatically assigned or transferred to the Transferee without the
execution or delivery by Issuer, Landlord or Transferee of any other instrument
or other documentation.
15. Guaranty. The terms and conditions described in this Amendment are
herein 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 (including, without limitation, the New Term).
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16. No Claims. Tenant hereby represents to Landlord that, to the best of
its knowledge, it has no causes of action, defenses, setoffs, claims or demands
whatsoever, in law or in equity, against the Landlord as of the date hereof,
based upon or by reason of any matter, cause or thing whatsoever, arising out of
the Lease, as amended hereby.
17. No Broker. Tenant represents and warrants that it has dealt with no
broker, finder or like agent in connection with this Amendment and the Tenant
does hereby agree to indemnify and hold Landlord harmless of and from any and
all loss, costs, damage or expense (including, without limitation, reasonable,
actual attorneys' fees and disbursements) incurred by Landlord by reason of any
claim of, or liability to, any broker, finder or like agent who shall claim to
have dealt with Tenant in connection with this Amendment. This Article shall
survive the expiration or sooner termination of the Lease.
18. 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 (including, without limitation, the New Term).
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19. 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.
SIGNATURE PAGE FOLLOWS THIS PAGE
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
TENANT:
CAREADVANTAGE HEALTH
SYSTEMS, INC.
By:/s/ Dennis J. Mouras
--------------------------------------------
Name: Dennis J. Mouras
Title: CEO
GUARANTOR:
CAREADVANTAGE, INC.
By:/s/ Dennis J. Mouras
--------------------------------------------
Name: Dennis J. Mouras
Title: CEO
LANDLORD:
CORPORATE PLAZA ASSOCIATES,
L.L.C.
By:/s/ Henry Orlinsky
--------------------------------------------
Name: Henry Orlinsky
Title: Authorized Signatory
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EXHIBIT A
RECAPTURED SPACE
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