exv10w33w2






Exhibit 10.33.2




ASSIGNMENT, ASSUMPTION AND

AGREEMENT TO RELINQUISH OFFICE SPACE

AND AMENDMENT TO OFFICE LEASE AGREEMENT




     This ASSIGNMENT, ASSUMPTION AND AGREEMENT TO RELINQUISH OFFICE SPACE AND AMENDMENT TO OFFICE
LEASE AGREEMENT (the “Agreement”) is dated the 22nd day of April, 2010, by and between Carothers
Office Acquisition LLC, a Delaware limited liability company, successor in Interest to Ford Motor
Land Development Corporation, a Delaware corporation (“Landlord”), and MedQuist Transcriptions,
Ltd., a New Jersey limited partnership (“Assignee” or “Tenant”).



WITNESSETH:




     WHEREAS,
Spheris Operations, Inc., a Tennessee corporation (“Spheris”), and Landlord’s
predecessor, Ford Motor Land Development Corporation, entered Into that certain Lease Agreement
dated June 8, 2008 (the “Original Lease”) consisting of space on floors 1, 2 and 3 of that certain
multi-tenant office building known as “The Carothers Building” (the “Building”), which premises
is located in sections of the Building known as “Building C” and “Building A” (the “Leased
Premises”) at 9009 Carothers Parkway, City of Franklin, Williamson County, Tennessee 37067; and



     WHEREAS, Landlord and Spheris entered into that certain Amendment to Office Lease Agreement
dated March 27, 2009 (the “Amendment”) (the Original Lease and the Amendment are collectively
referred to as the “Lease Agreement”; a copy of the Lease Agreement is attached hereto as
Exhibit A); and



     WHEREAS, on February 3, 2010, Spheris filed for bankruptcy protection in the United States
Bankruptcy Court for the District of Delaware (the “Petition”); and



     WHEREAS, in connection with the Petition, Assignee has agreed to purchase substantially all
of the assets of Spheris (the “Acquisition”); and



     WHEREAS, the Acquisition is scheduled to close as of the date of this Agreement; and



     WHEREAS, as a result of the Acquisition, Spheris shall assume the Lease Agreement and assign
the Lease Agreement to Assignee, Assignee has agreed to accept assignment of the Lease Agreement
conditional upon entering this Agreement with the Landlord which modifies Assignee’s and
Landlord’s rights and obligations under the Lease Agreement, such modification being made in part
because Assignee desires to utilize less than all of the Leased Premises for its business
operations; and



     WHEREAS, Landlord and Assignee have agreed to reduce the size of the
Leased Premises and to amend the Lease Agreement to reflect such reduced size of
the Leased Premises leased by Tenant, subject to the conditions and agreements
provided for herein.










 









 








     NOW, THEREFORE,
for and in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties herewith covenant and agree as follows:



     1. Assignment and Assumption: Commencement Data and Term.



          (a) In connection with the Acquisition, Spheris will assign, transfer and
set over unto Assignee all of Spheris’s right, title and interest in, under and to the Lease
Agreement.




          (b) Assignee hereby accepts the foregoing assignment and hereby
agrees to perform all of the terms and conditions of the Lease Agreement to be
performed on the part of Spheris and assumes all of the liabilities and obligations of
Spheris under the Lease Agreement, as amended hereby, arising or accruing on or
after the Commencement Date (as defined herein), including, without limitation, liability
for the payment of Rent and for the due performance of all the terms, covenants and
conditions of the tenant pursuant to the Lease Agreement, as amended hereby.




          (c) This Agreement shall be effective as of the closing of the
Acquisition by Assignee (the “Commencement Date”). The Term of the Lease
Agreement, other than with respect to the Relinquished Space (as defined herein),
which shall expire July 31, 2010, shall expire as currently provided for in the Lease
Agreement, or December 31, 2016.




     2. Consent to Assignment Effective as of the Commencement Date,
Landlord hereby (a) consents to the assignment effected hereby, and (b) agrees to
recognize Assignee as the tenant under the Lease Agreement, as amended herewith.



     3. Agreement to Relinquish Space. On or before July 31, 2010 (the
“Downsize Date”), Tenant shall promptly vacate and relinquish the portion of the Leased
Premises described as Floor 3 of Building C, consisting of 23,876 rentable square feet
(the “Relinquished Space”) to Landlord. Tenant shall continue to pay Rent and any
Operating Expenses pursuant to the Lease Agreement until the Downsize Date,
pursuant to the Rent Schedule attached hereto as Exhibit B. The Relinquished Space
shall be turned over to Landlord on the Downsize Date as if the lease for such space
expired or was terminated, and shall be in the condition required by Section 8 of the
Lease Agreement and under other applicable provisions of the Lease Agreement.



     4. Amendment to
Lease Agreement; Reduction in Size of Leased
Premises. As of the Downsize Date, the Leased Premises, shall be decreased by the
Relinquished Space (or 23,876 rentable square feet), and the Leased Premises leased
by the Tenant under the Lease Agreement, shall be 47,727 rentable square feet, comprised of 21,309
rentable square feet in Building C on the first floor, 24,485 rentable square feet in Building C on
the second floor, and 1,933 rentable square feet in Building A on the first floor. Landlord and Tenant agree to verify and document
the Tenant’s rentable square feet prior to the Downsize Date. If necessary, the Lease will be further amended to adjust the Tenant’s Proportionate
Share percentage, the rent calculations in Exhibit B, or any other such calculations resulting from the mutually agreed upon
rentable square feet.








2









 








     Section 1(a) of
the Lease Agreement (Basic Definitions and Provisions) in line 1,
shall be amended to delete “70,209 Rentable Square Feet” and add in its place “47,727 Rentable
Square Feet.” Additionally, in line 2 of such Section, “Tenant’s Proportionate Share: 14.25%”
shall be deleted and replaced with “Tenant’s Proportionate Share: 9.41%.”



     5. Security Deposit. As of the closing date of the Acquisition, Landlord shall
refund to Spheris the $200,000 Security Deposit currently held by Landlord pursuant to
the Lease Agreement. Within thirty (30) days after said refund by Landlord, Assignee
shall provide to Landlord a Letter of Credit in the amount of $200,000 as a Security
Deposit in accordance with and as provided in Section 6.d. of the Lease Agreement.



     6. Base Rent;
Reduction of Base Rent. As of the Commencement Date,
the Base Rent for the Leased Premises (including the Relinquished Space through
July 31, 2010) shall be as set forth on Exhibit B attached hereto. The Base Rent shown
on Exhibit B for the Relinquished Space through July 31, 2010 does not include any
Operating Expenses that may be due on such space. As of the Downsize Date, the
Base Rent Schedule contained in Section 1 (e) of the Lease Agreement shall be
modified to reflect the decrease in size of the Leased Premises by 23,876 rentable
square feet. The revised Base Rent Schedule for Tenant’s lease of the Leased
Premises following the Downsize Date is attached hereto as Exhibit B.



     7. Operating Expenses. Tenant shall pay for its Proportionate Share under
the Lease of increases in Operating Expenses based upon the Building being 95%
occupied and based upon a 2010 Base Year. Tenant will continue to pay any increase in
Operating Expenses over the Base Year set forth in the Lease Agreement prior to this
Agreement on the Relinquished Space until July 31, 2010.



     8. Commission. Landlord will pay a two percent (2%) commission to CB
Richard Ellis, Inc. per the terms of a separate commission agreement.



     9. Relation to Lease. Capitalized terms not defined in this Agreement shall
have the meanings set forth in the Lease Agreement. It is mutually agreed that all
covenants, conditions and agreements set forth in the Lease Agreement (as amended
hereby) shall remain binding upon the parties and inure to the benefit of the parties
hereto and their respective successors and assigns.



     10. Waiver of Pre-Assumption Claims under Lease. Landlord hereby
irrevocably waives any and all claims arising or related to the period prior to the
Commencement Date. Landlord agrees not to bring any action against Tenant related
to claims arising before the Commencement Date.



     11. Governing Law. This Agreement shall be governed, construed and
enforced under and by the laws of the State of Tennessee.



[Signatures appear on following page]









3









 








     IN WITNESS WHEREOF, the parties have executed this Assignment, Assumption and Agreement to
Relinquish Office Space and Amendment to Office Lease Agreement as of the year and day set forth
above.



	 	 	 	 	 
	 	LANDLORD:



Carothers Office Acquisition LLC

 	 
	 	By:  	/s/ Chris Potavin
 	 
	 	 	Name:  	Chris Potavin	 
	 	 	Its: 	Vice President 	 
	 
	 	ASSIGNEE:



MedQuist Transcriptions, Ltd.

 	 
	 	By:  	/s/ Mark R. Sullivan
 	 
	 	 	Name:  	Mark R. Sullivan 	 
	 	 	Its:       	General Counsel 	 
	 








4









 








EXHIBIT A 




LEASE AGREEMENT









5









 









EXHIBIT B




Rent Schedule for Floors 1 and 2



	 	 	 

	BUILDING:

	 	The Carothers Building
	LANDLORD:

	 	Carothers Office Acquisition LLC
	TENANT:

	 	MedQuist Transcriptions, Ltd.
	SUITE:

	 	Floors 1 and 2; Floor 3 until July 31, 2010
	RENTABLE
	 	 
	SQUARE FOOTAGE:

	 	47,727 (Floors 1 and 2); 23,876 (Floor 3)
	DATE:

	 	April 22nd, 2010






	 	 	 	 	 	 	 	 	 	 	 	 	 
	Floors 1 and 2	 	 	 	 	 	 
	Date	 	Gross Rate	 	Month Rent	 	Annual Rent
	4/20/2010-6/4/2010	 	1.5 months free rent
	6/5/2010-12/31/2010
	 	$	21.00	 	 	$	83,522.25	 	 	$	570,926.07	 
	1/1/2011-12/31/2011
	 	$	21.50	 	 	$	85,510.88	 	 	$	1,026,130.50	 
	1/1/2012-12/31/2012
	 	$	22.00	 	 	$	87,499.50	 	 	$	1,049,994.00	 
	1/1/2013-12/31/2013
	 	$	22.50	 	 	$	89,488.13	 	 	$	1,073,857.50	 
	1/1/2014-12/31/2014
	 	$	23.00	 	 	$	91,478.75	 	 	$	1,097,721.00	 
	1/1/2015-12/31/2015
	 	$	23.50	 	 	$	93,465.38	 	 	$	1,121,584.50	 
	1/1/2016-12/31/2016
	 	$	24.00	 	 	$	95,464.00	 	 	$	1,145,448.00	 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	Floor 3	 	 	 	 	 	 
	Date	 	Gross Rate	 	Month Rent	 	Annual Rent
	4/20/2010-7/31/2010
	 	$	21.00	 	 	$	41,783.00	 	 	$	501,396.00	 













6