EXHIBIT 10.1
SURRENDER AGREEMENT
SURRENDER AGREEMENT made as of November 14, 2003 ("this Agreement") by
and between STELLAR CONTINENTAL LLC ("Lessor"), GOAMERICA, INC. ("Guarantor")
and GOAMERICA COMMUNICATIONS CORP. ("Lessee").
W I T N E S S E T H:
WHEREAS, Lessee is in occupancy of approximately 43,027 gross rentable
square feet of space, consisting of approximately 15,917 gross rentable square
feet of space on the fourth (4th) floor of the building located at 000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, together with 22,458 gross rentable
square feet of space on the third (3rd) floor and 4,652 gross rentable square
feet of space on the second (2nd) floor of the building located at 000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx (collectively, the "Premises")
pursuant to a lease dated August 7, 1996 by and between Lessor and Lesser, as
amended by a First Amendment to Lease dated August 24, 1998, a Second Amendment
to Lease dated June 24, 1999, a Third Amendment to Lease dated made as of
December 1, 1999, a Fourth Amendment to Lease dated as of February, 2000 and a
Fifth Amendment to Lease dated August 22, 2000 (herein collectively referred to
as the "Lease").
WHEREAS, pursuant to the provisions of the Lease, the term of the Lease
(exclusive of any and all unexercised options to renew contained in the Lease,
if any) is to expire on August 31, 2010 (the "Expiration Date"); and
WHEREAS, Lessee has requested an acceleration of the Expiration Date,
upon and subject to the terms and provisions of this Agreement;
WHEREAS, Guarantor has executed a Warrant Certificate of even date
herewith in favor of Lessor; and
WHEREAS, Lessee has executed a New Lease with Lessor (the "New Lease")
of even date herewith.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is expressly acknowledged, Lessor and Lessee AGREE:
1. Words and phrases with initial capital case letters not otherwise
defined in this Agreement shall have the respective meanings ascribed to them in
the Lease.
2. Lessee agrees to surrender the Premises to Lessor within ten (10)
days following the date Lessor receives a Certificate of Occupancy for the
demised premises under the New Lease (the "Surrender Date"). Lessor represents
to Lessee that the existing sublessee may remain in possession of the premises
under their sublease with Lessee, provided the sublessee is not in default of
any obligation owed Lessor or Lessee under the sublease and further provided the
sublessee is negotiating a new lease with Lessor in good faith. The foregoing
sentence shall not in any way waive any right Lessor has under the sublease or
in any other agreement with the sublessee.
3. On the Surrender Date, the Lease and the term thereby demised shall
automatically cease and expire as if such Surrender Date were the date
originally fixed for cessation and expiration of the Lease and the term thereby
demised, Lessor shall release each of the Lessee and the Guarantor from their
obligations with respect to the Lease and the Guaranty, Lessee shall have no
further rights or obligations under the Lease or in and to the Premises (except
those obligations which, by the terms of the Lease, survive expiration or
earlier termination thereof), and Lessee shall immediately (a) pay any
outstanding costs or fees accrued through the last day of the month in which the
Surrender Date falls, and (b) surrender the Premises to Lessor broom clean, in
good order, repair and condition, and in accordance with any and all provisions
of the Lease applicable to the expiration of the term thereof. Notwithstanding
the forgoing, Lessor and Lessee hereby agree that Lessor shall retain all
fixtures, furniture and equipment on the Premises, provided Lessee's grant of
such items to Lessor is made without recourse or representation to Lessor except
as to title, and further provided that Lessee shall keep such items as are
listed on Schedule A annexed hereto and made a part hereof (the "Retained
Items"), which shall include the additional HVAC system installed by Lessee (the
"Additional HVAC System"). Lessee shall repair any damage to the Premises caused
by Lessee's removal of the Additional HVAC System, at Lessee's sole cost and
expense, prior to the Surrender Date.
4. As consideration for Lessor entering into this Surrender Agreement,
Lessee has (i) paid Lessor the sum of Five Hundred Fifty Five Thousand Seven
Hundred and Fifty Five and No/100 ($555,755.00) Dollars, which sum is equal to
the amount of the drawdown made on September 24, 2003 on that certain Letter of
Credit issued by Fleet National Bank, on behalf of Lessee, which Letter of
Credit names Xxxxxx Xxxxxxx Bank as beneficiary, and (ii) transferred title to
Lessor in all of the Retained Items, without recourse or representation. Lessor
hereby agrees that no additional sums will be due for Term Fixed Base Rent,
Operating Costs, Utility and Energy Costs and Real Estate Taxes under the Lease
from the date hereof through the Surrender Date.
5. Neither Lessee's surrender of the Lease and the Premises nor
Lessor's acceptance thereof shall be deemed a waiver by Lessor of Lessee's
liability for any future third-party claims not known as of the date hereof
resulting from Lessee's tenancy during the term of the Lease, in accordance with
the provisions of the Lease.
6. Time is of the essence to Lessee's obligations of payment and
performance under this Agreement such that if Lessee shall fail to timely pay
and perform its obligations under this Agreement, Lessee shall be conclusively
deemed to be holding over, and Lessor shall have the right to exercise any and
all rights and remedies afforded Lessor under the Lease, at law and in equity.
7. Except as specifically provided in this Agreement, the Lease remains
in full force and effect, unchanged and unmodified.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, Lessor and Lessee have duly executed and delivered
this Agreement the day and year first written above.
LESSOR:
STELLAR CONTINENTAL LLC
By: Stellar Capital Investors LLC,
Its Manager
By: /s/ Authorized Signatory
---------------------------------
Name:
Title:
LESSEE:
GOAMERICA COMMUNICATIONS CORP.
By:/s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title:Chief Executive Officer
GUARANTOR:
GOAMERICA, INC.
By:/s/ Xxxxxx X. Xxxx
---------------------------------
Name:Xxxxxx X. Xxxx
Title:Chief Executive Officer
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Schedule A
[list of furnishings, personal property and fixtures]
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