FIRST AMENDMENT
Exhibit 10.1
Corporate Xxxxx/0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx
Xxxxxx, Xxxxx
FIRST AMENDMENT
This First Amendment (this “Amendment”) is executed as of July
_____, 2009, between 5615
Highpoint Irving, LLC, a Delaware limited liability company (“Landlord”), and HMS Business
Services Inc., a New York corporation (“Tenant”), for the purpose of amending the Lease
Agreement between Equastone High Point, LP, a Delaware limited partnership, Landlord‘s
predecessor-in-interest, and Health Management Systems, Inc., a New York corporation, Tenant’s
predecessor-in-interest, dated July 31, 2007 (the “Lease”). Capitalized terms used herein
but not defined shall be given the meanings assigned to them in the Lease.
RECITALS:
Tenant is currently leasing Suites 100, 400, 500 and 500A consisting of 59,426 rentable square
feet of space, in the Building located at 0000 Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxx and commonly known
as the Corporate Point at Las Colinas under the Lease (the “Existing Premises”). Tenant
desires to lease the entire eighth (8th) floor of the Building as depicted on
Exhibit A hereto, containing approximately 24,323 rentable square feet and commonly known
as Suite 800 (the “Additional Premises”), and Landlord has agreed to lease such space to
Tenant on the terms and conditions contained herein. In addition, Tenant desires to extend the
Lease Term for the Existing Premises, and Landlord has agreed to such extension on the terms and
conditions contained herein.
AGREEMENTS:
For valuable consideration, whose receipt and sufficiency are acknowledged, Landlord and
Tenant agree as follows:
1. Additional Premises; Acceptance. Landlord hereby leases to Tenant,
and Tenant hereby leases from Landlord, the Additional Premises on the terms and
conditions of the Lease, as modified hereby; accordingly, from and after the
Effective Date (defined below), the term “Premises” shall refer collectively
to the Existing Premises and the Additional Premises. On the date hereof
(“Delivery Date”), Landlord shall deliver possession of the Additional
Premises to Tenant in broom clean condition, free and clear of any occupants or
other parties in possession in order to enable Tenant to complete its Tenant
Improvements within such Additional Premises and Tenant shall have continuous
uninterrupted access to the Additional Premises, subject to the Landlord’s right of
inspection, from and after the date hereof in order to complete such Tenant
Improvements. Tenant accepts the Additional Premises in their “AS-IS” condition
and Landlord shall not be required to perform any demolition work or tenant
finish-work therein or to provide any allowances therefore, except as expressly set
forth in Section 6 below. Landlord and Tenant stipulate that the number of rentable
square feet in the Existing Premises, the Additional Premises and the Building are
correct. As of the Delivery Date, the Additional Premises shall be deemed part of
the Premises and subject to the terms of the Lease, except for the provisions
regarding Base Rent and Additional Rent which shall be governed by the terms hereof
and which shall not apply to the Additional Premises until the Effective Date.
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Xxxxxx, Xxxxx
2. Lease Term.
(a) The Lease Term for the Existing Premises is hereby extended such that it expires on the
end of the Lease Month which is ten (10) years from the Effective Date. As used herein, the term
“Lease Month” shall mean each calendar month during the Lease Term (and if the Effective
Date does not occur on the first day of a calendar month, the period from the Effective Date to the
first day of the next calendar month shall be included in the first Lease Month for purposes of
determining the duration of the Lease Term and the monthly Base Rent rate applicable for such
partial month).
(b) The Lease Term for the Additional Premises shall begin on the Effective Date and shall
expire coterminously with the expiration date with respect to the Existing Premises unless sooner
terminated as provided in the Lease. As used herein, the “Effective Date” shall mean the
earliest of (a) November 1, 2009 (the “Outside Date”) and (b) the date on which the Work
(as defined in Exhibit B hereto) in the Additional Premises is Substantially Completed (as
defined in Exhibit B hereto); provided, however, that such Outside Date shall be extended
for any delays in construction of the Work caused by Force Majeure events or by Landlord’s wrongful
interference with the Work or failure to comply with its obligations hereunder and under
Exhibit B hereto. On the Effective Date, Tenant shall execute and deliver to Landlord a
letter substantially in the form of Exhibit C hereto confirming (1) the Effective Date and
(2) that Tenant has accepted the Additional Premises. However, the failure of the parties to
execute such letter shall not defer the Effective Date or otherwise invalidate the Lease.
3. Base Rent. The monthly installments of Base Rent under the Lease
for the Additional Premises shall be the following amounts for the following
periods of time, beginning on the Effective Date:
| Annual Base Rent | ||||||||
| Rate Per Rentable | Monthly Installments of Base | |||||||
| Time Period — Lease Month | Square Foot | Rent | ||||||
Lease Month 1 (Effective Date) — 6 |
$ | 0.00 | $ | 0.00 | ||||
Lease Month 7-18 |
$ | 7.75 | $ | 15,708.60 | ||||
Lease Month 19-48 |
$ | 15.50 | $ | 31,417.21 | ||||
Lease Month 49-84 |
$ | 17.00 | $ | 34,457.58 | ||||
Lease Month 85-120 |
$ | 18.50 | $ | 37,497.96 | ||||
Until the Effective Date, Base Rent shall remain as currently set forth in the Lease. From
and after the Effective Date, the monthly installments of Base Rent under the Lease for the
Existing Premises shall be the following amounts for the following periods of time,
beginning on the Effective Date (and the amounts set forth in Section 8 of the Summary in the Lease
shall no longer be applicable):
| Annual Base Rent | ||||||||
| Rate Per Rentable | Monthly Installments of Base | |||||||
| Time Period | Square Foot | Rent | ||||||
Lease Month
1(Effective Date) — 48 |
$ | 15.50 | $ | 76,758.58 | ||||
Lease Month 49-84 |
$ | 17.00 | $ | 84,186.83 | ||||
Lease Month 85-120 |
$ | 18.50 | $ | 91,615.08 | ||||
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4. Additional Rent/Base Year/Tenant’s Proportionate Share. From and
after the Effective Date, (a) Tenant’s Share shall be increased to 37.47%, which is
the percentage obtained by dividing the number of rentable square feet in the
Premises
(83,749) by the number of rentable square feet in the Building (223,498), (b)
the Base Year for all purposes under the Lease shall be 2009.
5. Security Deposit. On the Effective Date, Tenant shall deliver to
Landlord $47,402.29 to be held as part of the Security Deposit under the Lease, such
that the aggregate Security Deposit held by Landlord will be $129,113.04.
6. Tenant Finish-Work. Tenant shall construct tenant improvements in
the Additional Premises in accordance with Exhibit B hereto.
7. Right of First Refusal. The definition of the “First Refusal
Space” at the beginning of Section 1.5 of the Lease is hereby amended to read as
follows: “Landlord hereby grants to the original Tenant named in this Lease and
any Affiliated Assignee (the “Original Tenant”), during the Lease Term, a
continuing right of first refusal with respect to any and all space located on the
second (2nd), third (3rd), sixth (6th), ninth
(9th) and tenth (10th) floors of the Building and made a part
hereof (collectively, the “First Refusal Space”).” Landlord represents that
there are no Superior Leases or other parties with Superior Rights with respect to
the ninth (9th) and tenth (10th) floors of the Building.
Further, until after the date which is six (6) months from the Effective Date,
Landlord agrees it (i) will not lease to any other tenant (or offer to Tenant under
Section 1.5 of the Lease) any space located on the ninth (9th) floor of
the Building, and (ii) Tenant shall have the right to add such ninth
(9th) floor to the Premises upon thirty (30) days advance notice to
Landlord, in which case the Base Rent for such ninth (9th) floor shall be
the same as the Base Rent per rentable square foot to the Premises with respect to
the Additional Premises hereunder. Tenant shall also have the right to add such
ninth (9th) floor to the Premises upon thirty (30) days’ advance notice
to Landlord at any time after such six (6) month period until Landlord has entered
into a lease with a third party with respect to such ninth (9th) floor,
in which case the Base Rent for such ninth (9th) floor shall be at the
then-current market rate. In the event Tenant exercises its right of first refusal
to the ninth (9th) floor space after the date which is six (6) months
from the Effective Date, but objects to the determination of the then-current market
rate rent determined by Landlord, the parties will determine the Base Rent in
accordance with the process set forth in Section 2.3.3 of the Lease for determining
Option Rent.
8. Option Terms. Tenant shall continue to have the right to extend the
Lease Term for up to two (2) additional periods of five (5) years each in accordance
with Section 2.3 of the Lease.
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9. Early Termination. If at the time Tenant gives the notice required
below Tenant is not in default under the Lease beyond the expiration of applicable
notice and cure periods, and if Tenant pays to Landlord the First Early Termination
Payment (defined below) in the manner set forth below, then Tenant shall have the
right to terminate the Lease in accordance with the following provisions effective
on the date which is ninety-six (96) months after the Effective Date of this
Amendment (“First Early Termination Date”). If at the time Tenant gives the
notice required below Tenant is not in default under the Lease beyond the expiration
of applicable notice and cure periods, and if Tenant pays to Landlord the Second
Early Termination Payment (defined below) in the manner set forth below, then Tenant
shall have the right to terminate the Lease in accordance with the following
provisions effective on the date which is one hundred and eight (108) months after
the Effective Date of this Amendment (“Second Early Termination Date”).
Tenant’s right to terminate this Lease must be exercised by giving
written notice to Landlord at least twelve (12) months prior to the First Early
Termination Date or the Second Early Termination Date, respectively. If Tenant
properly gives such notice of termination and timely submits the First Early
Termination Payment or the Second Early Termination Payment, as applicable, then the
Lease shall end on the First Early Termination Date or the Second Early Termination
Date, as applicable. The Lease shall terminate on the First Early Termination Date
or the Second Early Termination Date, as applicable, as if such date were the
scheduled expiration date of the Lease. As a condition to exercising the right of
termination with respect to the First Early Termination Date, Tenant must pay to
Landlord on or before the date which is four (4) months prior to the First Early
Termination Date a cash amount (the “First Early Termination Payment”) equal
to ONE MILLION SIXTY-SEVEN THOUSAND SEVEN HUNDRED NINETY-NINE and 75/100 DOLLARS
($1,067,799.75). As a condition to exercising the right of termination with respect
to the Second Early Termination Date, Tenant must pay to Landlord on or before the
date which is is four (4) months prior to the Second Early Termination Date, a cash
amount (the “Second Early Termination Payment”) equal to FIVE HUNDRED
THIRTY-THREE THOUSAND EIGHT HUNDRED NINETY-NINE and 90/100 DOLLARS ($533,899.90).
10. Parking. Tenant shall continue to have a Parking Pass Ratio of 5.7
passes for every 1,000 square feet of the Premises. With the Additional Premises,
Tenant have the right to use an additional 139 parking passes and shall have the
right to create an additional 17 covered carports (for a total of up to 57 total
covered carports). The parking shall continue to be governed by Articles 5.2 and 28
of the Lease.
11. Estoppel Certificates. Pursuant to the terms of the Lease, Tenant
is obligated to execute and deliver to Landlord from time to time estoppel
certificates confirming and containing such factual certifications and
representations as to the Lease as Landlord may reasonably request.
12. Limitation of Liability. In addition to any other limitations of
Landlord’s liability as contained in the Lease, as amended to date, the liability of
Landlord (and its partners, shareholders or members) to Tenant (or any person or
entity claiming by, through or under Tenant) for any default by Landlord under the
terms of the Lease or any matter relating to or arising out of the occupancy or use
of the Premises and/or other areas of the Building shall be limited to Tenant’s
actual direct, but not consequential, damages therefor and shall be recoverable only
from the interest of Landlord in the Building and Landlord (and its partners,
shareholders or members) shall not be personally liable for any deficiency.
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Xxxxxx, Xxxxx
Xxxxxx, Xxxxx
13. Notices. All notices and other communications given pursuant to
the Lease shall be in writing and shall be (a) mailed by first class, United States
mail, postage prepaid, certified, with return receipt requested, and addressed to
the parties hereto at the address listed below, (b) sent by a nationally recognized
overnight courier, or (c) hand delivered to the intended addressee. Notice sent by
certified mail, postage prepaid, shall be effective three business days after being
deposited in the United States mail; all other notices shall be effective upon
delivery to the address of the addressee. The parties hereto may change their
addresses by giving notice thereof to the other in conformity with this provision.
The addresses for notice set forth below shall supersede and replace any addresses
for notice set forth in the Lease.
Landlord:
|
5615 Highpoint Irving, LLC | |
| c/o Capmark Finance Inc. | ||
| 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxx, Xxxxx 00000 | ||
| Attention: Xxxxx X. Xxxxxxx | ||
with a copy to
|
Xxxxx Xxxx LLP | |
| 0000 Xxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxx, Xxxxx 00000 | ||
| Attn: Xxxxxxx X. Xxxxx | ||
Tenant:
|
HMS Business Services Inc. | |
| 000 Xxxx Xxxxxx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxx Hosp, Senior Vice President | ||
| and Chief Executive Officer | ||
| AND | ||
| 0000 Xxxx Xxxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxx, Xxxxx 00000 |
||
| Attention: Xxxxxx Xxx, Senior Vice President and CIO | ||
with a copy to
|
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx | |
| 000 Xxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxx X. Xxxxxxx, Esq. |
14. Brokerage. Landlord and Tenant each warrant to the other that it
has not dealt with any broker or agent in connection with the negotiation or
execution of this Amendment other than GVA Xxxxxx Realty Services (“GVA”)
whose commission shall be paid by Landlord pursuant to a separate written agreement.
Further, reference is made to a Consultant Commission Agreement dated July _____,
2009 (the “Consultant Agreement”) , which is attached hereto as Exhibit
D, between GVA and TCS Central Region GP, L.L.C. d/b/a Transwestern
(“Transwestern”). GVA represented Landlord and Transwestern represented
Tenant in the consummation of this Amendment, and the Consultant Agreement provides
that GVA will pay Transwestern a commission for its services in representing Tenant
in consummating this Amendment. The Consultant Agreement further provides that GVA
has assigned its rights to any commission due it from Landlord that is properly
allocable to Transwestern, and the Landlord will pay said commission directly to
Transwestern. Accordingly, Landlord shall pay Transwestern, in accordance with the
terms of the Consultant Agreement, the commission due Transwestern for its
representation of Tenant in consummating the Amendment. Tenant and Landlord shall
each indemnify the other against all costs, expenses, attorneys’ fees, and other
liability for commissions or other compensation claimed by any other broker or agent
claiming the same by, through, or under the indemnifying party.
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15. Ratification. Tenant hereby ratifies and confirms its obligations
under the Lease, and represents and warrants to Landlord that it has no defenses
thereto. Additionally, Tenant further confirms and ratifies that, as of the date
hereof, (a) the Lease is and remains in good standing and in full force and effect,
(b) to the best of Tenant’s knowledge, Tenant has no claims, counterclaims, set-offs
or defenses against Landlord
arising out of the Lease or in any way relating thereto or arising out of any
other transaction between Landlord and Tenant, and (c) except as expressly provided
for in this Amendment and the Exhibits which are a part hereof, all tenant
finish-work allowances provided to Tenant under the Lease or otherwise, if any, have
been paid in full by Landlord to Tenant, and Landlord has no further obligations
with respect thereto. Landlord hereby represents and warrants to Tenant as of the
date hereof, the Lease is in full force and effect, and Landlord hereby ratifies and
confirms its obligations under the Lease.
16. Binding Effect; Governing Law. Except as modified hereby, the
Lease shall remain in full effect and this Amendment shall be binding upon Landlord
and Tenant and their respective successors and assigns. If any inconsistency exists
or arises between the terms of this Amendment and the terms of the Lease, the terms
of this Amendment shall prevail. This Amendment shall be governed by the laws of
the State in which the Premises are located.
17. SNDA. Notwithstanding the provisions of Section 18 of the Lease,
any subordination of the Lease shall be contingent upon Tenant’s receipt of a
Subordination, Non-Disturbance and Attornment Agreement in form and substance
reasonably satisfactory to any mortgagee or ground lessor on the Property and to
Tenant.
18. Exterior Signage. From and after the Effective Date, Tenant shall
have the right to place a sign on the second floor spandrel on the exterior of the
Building, the exact location of which shall be subject to Landlord’s reasonable
approval, and which signage shall be subject to all of the terms and conditions of
Section 24.3 of the Lease, any applicable laws, codes, conditions, restrictions,
ordinances, covenants, zoning, and any Las Colinas Association guidelines and
restrictions.
19. Exclusivity. Landlord hereby agrees that the exclusivity
provisions contained in Section 32 of the Lease shall remain in effect and Landlord
shall comply with the same throughout the Lease Term as extended hereby.
20. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall constitute an original, but all of which shall
constitute one document.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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This Amendment is executed on the respective dates set forth below, but for reference purposes
this Amendment shall be dated as of the date first above written. If the execution date is left
blank, this Amendment shall be deemed executed as of the date first written above.
| LANDLORD: | 5615 Highpoint Irving, LLC, a Delaware limited liability company |
|||
| By: | CB Asset Resolution Corporation, a Delaware | |||
| corporation, its sole member | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Execution Date: | ||||
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| TENANT: | HMS Business Services Inc., a New York corporation |
|||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Execution Date: | ||||
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EXHIBIT A
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EXHIBIT B
TENANT FINISH-WORK: ALLOWANCE
1. Acceptance of Additional Premises. Except as set forth in this Exhibit, Tenant
accepts the Additional Premises in their “AS-IS” condition on the date that this Amendment is
entered into.
2. Space Plans.
(a) Landlord and Tenant hereby approve the space plan prepared by Staffelbach Design
Associates (the “Architect”) depicting improvements to be installed in the Additional
Premises, attached as Exhibit B-1 hereto (the “Space Plans”).
3. Working Drawings.
(a) Preparation and Delivery. On or before the date which is forty-five (45) days
following the date of this Amendment (such date is referred to herein as the “Working Drawings
Delivery Deadline”), Tenant shall provide to Landlord for its approval final working drawings,
prepared by the Architect, of all improvements that Tenant proposes to install in the Additional
Premises; such working drawings shall include the partition layout, ceiling plan, electrical
outlets and switches, telephone outlets, drawings for any modifications to the mechanical and
plumbing systems of the Building, and detailed plans and specifications for the construction of the
improvements called for under this Exhibit in accordance with all applicable Laws.
(b) Approval Process. Landlord shall notify Tenant whether it approves of the
submitted working drawings within five business days after Tenant’s submission thereof (such
approval not to be unreasonably withheld, conditioned or delayed). Landlord’s approval shall be
limited to non-cosmetic aspects of the Work, such as to the Building Structure of the Building
Systems (as hereinafter defined). If the Working Drawings are substantially similar to the working
drawings provided to Landlord for the Existing Premises when the improvements were initially
completed or reflect improvements substantially similar to those contained in the Existing
Premises, Landlord will not unreasonably withhold its consent and will use commercially reasonable
efforts to expedite the approval process. If Landlord disapproves of such working drawings, then
Landlord shall notify Tenant thereof specifying in reasonable detail the reasons for such
disapproval, in which case Tenant shall, within five business days after such notice, revise such
working drawings in accordance with Landlord’s objections and submit the revised working drawings
to Landlord for its review and approval. Landlord shall notify Tenant in writing whether it
approves of the resubmitted working drawings within five business days after its receipt thereof.
This process shall be repeated until the working drawings have been finally approved by Tenant and
Landlord. If Landlord fails to notify Tenant that it disapproves of the initial working drawings
or any subsequent submittal in accordance with the terms of this paragraph within five business
days after the submission thereof, then Landlord shall be deemed to have approved the working
drawings in question.
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(c) Landlord’s Approval; Performance of Work. If any of Tenant’s proposed
construction work will affect the Building’s Structure or the Building’s Systems (as hereinafter
defined), then the working drawings pertaining thereto must be approved by the Building’s engineer
of record. Landlord’s approval of such working drawings shall not be unreasonably withheld,
provided that (1) they comply with all Laws, (2) the improvements depicted thereon do not adversely
affect (in the reasonable discretion of Landlord) the Building’s Structure or the Building’s
Systems, (including the Building’s
restrooms or mechanical rooms), the exterior appearance of the Building, or the appearance of
the Building’s common areas or elevator lobby areas, (3) such working drawings are sufficiently
detailed to allow construction of the improvements in a good and workmanlike manner, and (4) the
improvements depicted thereon conform to the rules and regulations promulgated from time to time by
Landlord for the construction of tenant improvements (a copy of which has been delivered to
Tenant). As used herein, “Working Drawings” shall mean the final working drawings approved
by Landlord, as amended from time to time by any approved changes thereto, and “Work” shall
mean all improvements to be constructed in accordance with and as indicated on the Working
Drawings, together with any work required by governmental authorities to be made to other areas of
the Building as a result of the improvements indicated by the Working Drawings. All of the Work
shall be considered Tenant Improvements under the Lease. Landlord’s approval of the Working
Drawings shall not be a representation or warranty of Landlord that such drawings are adequate for
any use or comply with any Law, but shall merely be the consent of Landlord thereto. Tenant shall,
at Landlord’s request, sign the Working Drawings to evidence its review and approval thereof.
After the Working Drawings have been approved, Tenant shall cause the Work to be performed in
substantial accordance with the Working Drawings.
4. Change Orders. Tenant may initiate changes in the Work. Any material change must
receive the prior written approval of Landlord, such approval not to be unreasonably withheld or
delayed; however, if such requested change would adversely affect (in the reasonable discretion of
Landlord) (1) the Building’s Structure or the Building’s Systems (including the Building’s
restrooms or mechanical rooms), (2) the exterior appearance of the Building, or (3) the appearance
of the Building’s common areas or elevator lobby areas, Landlord may withhold its consent in its
sole and absolute discretion. If any change orders reflect changes which are substantially similar
to the buildout of the Existing Premises, Landlord will not unreasonably withhold its consent and
will use commercially reasonable efforts to expedite the approval process. If Landlord disapproves
of such change order, then Landlord shall notify Tenant thereof specifying in reasonable detail the
reasons for such disapproval, in which case Tenant shall, within five business days after such
notice, revise such change order in accordance with Landlord’s objections and submit the revised
order to Landlord for its review and approval. Landlord shall notify Tenant in writing whether it
approves of the resubmitted change order within five business days after its receipt thereof. If
Landlord fails to notify Tenant that it disapproves any change order within five business days
after the submission of the same by Tenant, then Landlord shall be deemed to have approved the
change order in question. Tenant shall, upon completion of the Work, furnish Landlord with an
accurate architectural “as-built” plan of the Work as constructed, which plan shall be incorporated
into this Exhibit B by this reference for all purposes.
5. Definitions. As used herein “Substantial Completion,” “Substantially
Completed,” and any derivations thereof mean the Work in the Additional Premises is
substantially completed (as reasonably determined by Landlord and Tenant) in substantial accordance
with the Working Drawings. Substantial Completion shall have occurred even though minor details of
construction, decoration, landscaping and mechanical adjustments remain to be completed by
Landlord. “Building’s Structure” means the Building’s exterior walls, roof, elevator
shafts, footings, foundations, structural portions of load-bearing walls, structural floors and
subfloors, and structural columns and beams; “Building’s Systems” means the Building’s
HVAC, life-safety, plumbing, electrical, and mechanical systems; and “Laws” means all
federal, state, and local laws, rules and regulations, all court orders, governmental directives,
and governmental orders, and all restrictive covenants affecting the Building, and “Law” shall mean
any of the foregoing.
6. Existing Premises Rent Obligations. Tenant’s obligation to pay Rent under the Lease
with respect to the Existing Premises shall continue at all times during the performance of the
Work.
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7. Excess Costs. The entire cost of performing the Work (including design of the Work
and preparation of the Working Drawings, moving costs, furniture, costs of construction labor and
materials, electrical usage during construction, additional janitorial services, general tenant
signage, related taxes and insurance costs, and the construction supervision fee referenced in
Section 9 of this Exhibit, all of which costs are herein collectively called the “Total
Construction Costs”) in excess of the Construction Allowance (hereinafter defined) shall be
paid by Tenant.
8. Construction Allowance. Landlord shall provide to Tenant a construction allowance
not to exceed $30.00 per rentable square foot in the Additional Premises (the “Construction
Allowance”) to be applied toward the Total Construction Costs to the Additional Premises only.
Up to $10.00 per rentable square foot of the Construction Allowance may be used for telephone
cabling and computer cabling for the Additional Premises and the Existing Premises, moving costs,
furniture and reduction to the Base Rent for the Additional Premises. No more than $2.00 per
rentable square foot may be used for a reduction to the Base Rent. If Tenant desires to use the
Construction Allowance for a reduction of the Base Rent, Tenant shall give Landlord fifteen (15)
days prior written notice of the amount of the requested Base Rent reduction, and the Construction
Allowance shall be applied to the Base Rent due from Tenant for the month following such notice.
The Construction Allowance shall be disbursed in whole or in part at any time and from time to time
to Tenant or Tenant’s contractors and subcontractors within thirty (30) days following Tenant’s
request therefor; provided, however, Landlord shall have received and approved each of the
following, as applicable: (a) Tenant’s written request, including a description of the portion of
the Work and a cost breakdown thereof in reasonable detail, and Borrower’s certification that all
such Work has been completed lien-free and in a workmanlike manner; (b) copies of invoices for
services with detailed instructions for payment; (c) contractors’ and subcontractors’ waivers of
liens and all other statements and forms required for compliance with the mechanics’ lien laws of
the State of Texas with respect to such Work (subject to payment of the aforesaid sums when paid
directly to the Tenant’s contractors and subcontractors by Landlord); and (d) evidence, if
applicable, that the Work is completed in accordance with the City of Irving or the Las Colinas
Association requirements. The Construction Allowance must be used within twelve (12) months
following the Effective Date or shall be deemed forfeited with no further obligation by Landlord
with respect thereto. Notwithstanding the foregoing, following the expiration of such twelve (12)
month period, if any undisbursed Construction Allowance then remains, up to $2.00 per rentable
square foot of the Construction Allowance shall be automatically applied to a reduction in the Base
Rent beginning on the payment which is due following thirteen (13) months from the
Effective Date.
If Landlord fails to timely pay all or any portion of the Construction Allowance pursuant to the
provisions of this Section 8, and provided that (x) such failure continues for 90 days after Tenant
notifies Landlord of such failure that Tenant intends to set off such amount against the next
installment of Rent unless Landlord pays such amount to Tenant within such 90 day period (which
notice shall in state in bold-face type in all caps on the first page of the notice that “TENANT
INTENDS TO OFFSET RENT IF LANDLORD FAILS TO RESPOND TO THIS NOTICE WITHIN NINETY (90) DAYS”)
(“Offset Notice”), and (y) after 90 days from the Offset Notice, Landlord fails to provide notice
to the Tenant of Landlord’s dispute to Tenant’s entitlement to the amount claimed by Tenant, then
Tenant may offset such amount against the next installment of Rent coming due under this Lease. If
Landlord sends notice to Tenant within 90 days of the Offset Notice that the Landlord disputes
Tenant’s claim that Landlord has failed to pay the Construction Allowance, the parties shall submit
the claim to be resolved by binding arbitration under the Expedited Procedures provisions of the
Commercial Arbitration Rules of the American Arbitration Association (or any organization which is
the successor thereto). The decision of the arbitrators shall be conclusively binding on the
parties, and judgment upon the decision may be entered in any court having jurisdiction. Following
the determination of the arbitrator: (x) if the dispute is resolved in favor of Tenant, then Tenant
may offset the actual amount of the Construction Allowance claimed by Tenant against the next
installment of Rent due under this Lease; and (y) if the dispute is
resolved in favor of Landlord, Tenant shall pay all costs and attorney’s fees incurred by Landlord
in connection with the arbitration.
Corporate Xxxxx/0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx
Xxxxxx, Xxxxx
9. Construction Management. Landlord or its Affiliate or agent shall supervise the
Work, make disbursements required to be made to the contractor, and act as a liaison between the
contractor and Tenant and coordinate the relationship between the Work, the Building, and the
Building’s Systems. In consideration for Landlord’s construction supervision services, Tenant
shall pay to Landlord a construction supervision fee equal to three (3%) percent of the Total
Construction Costs, which fee may be deducted by Landlord from the Construction Allowance. Tenant
shall not be responsible for any other management or other supervisory or approval fees to Landlord
in connection with such Work, including, without limitation, under Section 8.1 of the Lease.
10. Construction Representatives. Landlord hereby approves Xxxxx and Xxxx as Tenant’s
general contractor for the performance of the Work. Landlord’s and Tenant’s representatives for
coordination of construction and approval of change orders will be as follows, provided that either
party may change its representative upon written notice to the other:
Landlord’s Representative:
|
Xx. Xxxxx Xxxx | |
| c/o GVA Xxxxxx | ||
| 00000 Xxxxxxx Xxxx, Xxxxx 000 | ||
| Xxxxxx, XX 00000 | ||
| Telephone: 000-000-0000 | ||
| Telecopy: 000-000-0000 | ||
Tenant’s Representative:
|
Xxxx Xxxxxx | |
| 000 Xxxx Xxxxxx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Telephone: 000-000-0000 | ||
| Telecopy: 000-000-0000 |
Corporate Xxxxx/0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx
Xxxxxx, Xxxxx
Exhibit B-1
SPACE PLANS
Corporate Xxxxx/0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx
Xxxxxx, Xxxxx
EXHIBIT C
CONFIRMATION OF EFFECTIVE DATE
, 2009
HMS Business Services Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Hosp, Senior Vice President and Chief Executive Officer
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Hosp, Senior Vice President and Chief Executive Officer
| Re: | First Amendment (the “Amendment”) dated , 2009, between
5615 Highpoint Irving, LLC, a Delaware limited liability company (“Landlord”),
and HMS Business Services Inc., a New York corporation (“Tenant”) for the lease
of approximately 24,323 square feet of additional space (the “Additional
Premises”) pursuant to the Lease (as defined in and amended by the Amendment).
Capitalized terms used herein but not defined shall be given the meanings assigned to
them in the Amendment unless otherwise indicated. |
Gentlemen:
Landlord and Tenant agree as follows:
1. Condition of Additional Premises. Tenant has accepted possession of the Additional
Premises pursuant to the Amendment. Furthermore, Tenant acknowledges that the Additional Premises
are suitable for the Permitted Use (as defined in the Lease).
2. Effective Date. The Effective Date of the commencement of the Lease Term for the
Additional Premises is , 200_____.
3. Ratification. Tenant hereby ratifies and confirms its obligations under the Lease,
and represents and warrants to Landlord as of the date hereof, to the best of Tenant’s knowledge,
that it has no defenses thereto. Additionally, Tenant further confirms and ratifies that, as of
the date hereof, (a) the Lease is and remains in good standing and in full force and effect, and
(b) to the best of Tenant’s knowledge, Tenant has no claims, counterclaims, set-offs or defenses
against Landlord arising out of the Lease or in any way relating thereto or arising out of any
other transaction between Landlord and Tenant.
4. Binding Effect; Governing Law. Except as modified hereby, the Lease shall remain
in full effect and this letter shall be binding upon Landlord and Tenant and their respective
successors and assigns. If any inconsistency exists or arises between the terms of this letter and
the terms of the Lease, the terms of this letter shall prevail. This letter shall be governed by
the laws of the State in which the Additional Premises are located.
1
Corporate Xxxxx/0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx
Xxxxxx, Xxxxx
Please indicate your agreement to the above matters by signing this letter in the space
indicated below and returning an executed original to us.
Sincerely,
5615 Highpoint Irving, LLC, a Delaware limited liability
company
company
| By: | CB Asset Resolution Corporation, a Delaware | |||
| corporation, its sole member | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Execution Date: | ||||
Agreed and accepted:
HMS Business Services Inc., a New York corporation
By: |
||||||
| Name: | ||||||
| Title: | ||||||
| Execution Date: | ||||||
0
Xxxxxxxxx Xxxxx/0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx
Xxxxxx, Xxxxx
EXHIBIT D
CONSULTANT AGREEMENT
1
