FIRST AMENDMENT
This First Amendment (the "Amendment") is made and entered into as of the
20th day of February, 1995, by and between ZML - North Central Plaza Three
Limited Partnership ("Landlord") by its agent, Equity Office Properties, Inc.,
and The Management Alliance Corporation, a Texas corporation ("Tenant").
WITNESSETH
A. WHEREAS, Landlord and Tenant are parties to that certain lease dated the
nineteenth (19th) day of December, 1994 currently containing approximately
4,276 rentable square feet of space described as Suite Nos. 220 and 1170 on
the second (2nd) and eleventh (11th) floors of the building commonly known as
North Central Plaza Three and the address of which is 00000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxx, Xxxxx (the "Building"); and
B. WHEREAS, Tenant has requested that additional space consisting of
approximately 13,735 rentable square feet on the fourth (4th) floor of the
Building shown on Exhibit A hereto (the "Expansion Space") be added to the
Premises and that the Lease be appropriately amended, and Landlord is willing
to do the same on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. EXPANSION AND EFFECTIVE DATE. Effective as of the Expansion
Effective Date (as herein after defined), the Premises is increased from
4,276 rentable square feet on the second (2nd) and eleventh (11th) floors to
18,011 rentable square feet on the second (2nd), fourth (4th) and eleventh
(11th) floors by the addition of the Expansion Space. The lease term for the
Expansion Space shall commence on the Expansion Effective Date and end on the
Termination Date. The Expansion Space is subject to all the terms and conditions
of the Lease except as expressly modified herein and except that Tenant shall
not be entitled to receive any allowances, abatement or other financial
concession granted with respect to the Premises unless such concessions are
expressly provided for herein with respect to the Expansion Space.
A. The Expansion Effective Date shall be May 1, 1995.
II. MONTHLY BASE RENTAL.
In addition to Tenant's obligation to pay Base Rental for the Premises,
Tenant shall pay Landlord the sum of five hundred fifty-four thousand two
hundred seven and 40/100 Dollars ($554,207.40) as Base Rental for the
Expansion Space in thirty-six (36) monthly installments as follows:
A. Thirty-six (36) equal installments of $15,394.65 each payable on or
before the first day of each month during the period beginning May 1, 1995 and
ending April 30, 1998.
All such Base Rental shall be payable by Tenant in accordance with the
terms of Article V of the Lease.
III. ADDITIONAL SECURITY DEPOSIT. Upon Tenant's execution hereof,
Tenant shall pay $15,394.65 to Landlord which is added to and becomes part of
the Security Deposit, if any, held by Landlord as provided under the Lease as
security for payment of Rent and the performance of other terms and conditions
of the Lease by Tenant. Accordingly, simultaneous with the execution hereof,
the Security Deposit is increased from $4,836.83 to $20,231.48.
IV. TENANT'S PRO RATA SHARE. For the period commencing with the
Expansion Effective Date and ending on the Termination Date, Tenant's Pro
Rata Share for the Expansion Space is four percent (4.0%).
V. BASE YEAR. For the period commencing with the Expansion Effective
Date and ending on the Termination Date, the Base Year for the computation
of Tenant's Pro Rata Share of Basic Costs applicable to the Expansion Space
is 1995. If the Building is not fully occupied during any calendar year
during the Lease Term, Basic Costs shall be determined as if the Building had
been fully occupied during such year.
VI. IMPROVEMENTS TO EXPANSION SPACE.
A. Tenant has inspected the Expansion Space and agrees to accept
the same "as is" without any agreements, representations,
understandings or obligations on the part of Landlord to perform any
alterations, repairs or improvements, except as may be expressly
provided otherwise in this Amendment.
B. COST OF IMPROVEMENTS TO EXPANSION SPACE. Provided Tenant is not
in default, Tenant shall be entitled to receive an improvement
allowance (the "Expansion Improvement Allowance") in an amount not
to exceed one hundred forty-four thousand two hundred seventeen and
50/100 Dollars ($144,217.50) to be applied toward the cost of
performing initial construction, alteration or improvement of the
Expansion Space, including but not limited to the cost of space
planning, design and related architectural and engineering services,
moving expenses (in an amount not to exceed $13,750.00) and
Excess costs associated with the Landlord Work for the original
Premises (in an amount not to exceed $13,750.00). In the event the
total cost of the initial improvements to the Expansion Space exceeds
the Expansion Improvement Allowance, Tenant shall pay for such
excess within fifteen (15) days of Landlord's written demand. Any
unused balance of the Expansion Improvement Allowance shall accrue to
the benefit of Tenant as a credit to Base Rental in an amount not to
exceed $13,750.00; thereafter, any remaining unused balance of the
Expansion Improvement Allowance, if any, shall accrue to the sole
benefit of Landlord. Landlord shall pay such Expansion Improvement
Allowance directly to the contractors retained to perform the
construction, design or related improvement work to the Expansion
Space.
C. RESPONSIBILITY FOR IMPROVEMENTS TO EXPANSION SPACE.
(i) WORK PERFORMED BY OR ON BEHALF OF LANDLORD PURSUANT TO
COMPLETE, APPROVED PLANS.
Landlord shall enter into a direct contract with a general
contractor mutually selected by Landlord and Tenant for the
initial improvements to the Expansion Space which are to be
performed in accordance with the plans dated 3-2, 1995 prepared
by Interprise, Inc. (the "Plans"). If the cost of such
improvements exceed the Expansion Improvement Allowance, then
prior to commencing any construction of improvements to the
Expansion Space, Landlord shall submit to Tenant a written
estimate setting forth the anticipated cost, including but not
limited to the cost of space planning, design and related
architectural and engineering services, labor and materials,
contractor's fees, and permit fees. Within a reasonable time
thereafter, Tenant shall either notify Landlord in writing of
its approval of the cost estimate or specify its objections
thereto and any desired changes to the proposed improvements. In
the event Tenant notifies Landlord of such objections and desired
changes, Tenant shall work with Landlord to reach a mutually
acceptable alternative cost estimate.
VII. EARLY ACCESS TO EXPANSION SPACE. During any period that Tenant
shall be permitted to enter the Expansion Space prior to the Expansion
Effective Date (e.g., to perform alterations or improvements), Tenant shall
comply with all terms and provisions of the Lease, except those provisions
requiring payment of Base Rental or Additional Base Rental as to the
Expansion Space. If Tenant takes possession of the Expansion Space prior to
the Expansion Effective Date for any reason whatsoever (other than the
performance of work in the Expansion Space with Landlord's prior approval),
such possession shall be subject to all the terms and conditions of the Lease
and this Amendment.
VIII. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that the Lease
shall be amended in the following additional respects:
A. PARKING. Effective as of the Expansion Effective Date,
Landlord shall provide to Tenant, with respect to the Expansion
Space, forty-one (41) parking Permits in the Building Garage. Of
said forty-one (41) Permits, seven (7) shall be reserved and
thirty-four (34) shall be unreserved.
B. RIGHT OF FIRST OFFER.
1. During the period commencing April 1, 1995 and ending March
31, 1998 (the "ROFO Period") Tenant shall have the right
to first offer (the "ROFO") with respect to approximately
6,069 rentable square feet located on the first (1st) floor
of the Building shown cross-hatched on the demising plan
attached hereto as Attachment #1 (the "Offering Space"). If
at any time during the ROFO Period, Landlord has a
prospective tenant (the "Prospect") interested in leasing the
Offering Space (or applicable portion thereof) Landlord shall
advise Tenant in substantially the same form set forth as
Attachment #2 attached hereto (the "Landlord Notice") of the
terms of which Landlord is prepared to lease the Offering
Space to Tenant, which terms shall reflect the prevailing
market rate for the Offering Space, as reasonable determined
by Landlord, and a tenant finish allowance then begin quoted
by Landlord for comparable space and lease term in the
Building. In the event that Tenant desires to lease the
Offering Space upon the terms set forth in Landlord's Notice,
Tenant shall notify Landlord (the "Tenant Notice") within
five (5) days after the date of such Notice, except that
Tenant shall have no such ROFO, and Landlord need not give
the Landlord Notice, if:
a. Tenant is in default under the Lease at the time Landlord
would otherwise deliver the Landlord Notice; or
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b. the Premises is sublet at the time Landlord would otherwise
deliver the Landlord Notice; or
c. the Lease has been assigned at the time Landlord would
otherwise deliver the Landlord notice; or
d. Tenant is not an occupant of the building under this Lease
at the time Landlord would otherwise deliver the Landlord
Notice; or
e. the Prospect is a tenant in the applicable Offering Space
at the time Lessor would otherwise deliver the Lessor Notice.
2. The ROFO shall be deemed exercised upon Landlord's receipt to
the Tenant Notice within the time period stated in subsection
VIII.B.1. hereof. If Tenant exercises the ROFO, Tenant shall
execute and deliver the Offering Amendment (hereinafter defined)
to Landlord within fifteen (15) days of the submission of such
Offering Amendment by Landlord to Tenant.
3. The Offering Space (including improvements and personalty, if
any) shall be accepted by Tenant in broom clean condition and its
as-built configuration existing, subject to a tenant finish
allowance pursuant to the Landlord Notice, on the earlier of the
date Tenant takes possession of the Offering Space or as of the
date the term for such Offering Space commences.
4. a. If Tenant is able to and properly exercises its ROFO,
Landlord shall prepare an amendment (the "Offering
Amendment") adding the Offering Space to the Premises on
the terms set forth in the Landlord Notice and reflecting
the changes in the Base Rental, Installments of Base Rental,
Rentable Area of the Premises, Tenant's proportionate share
of the operating expenses and other appropriate terms.
b. A copy of the Offering Amendment shall be (i) sent to Tenant
within a reasonable time after receipt of the Tenant Notice,
and (ii) executed by Tenant and returned to Landlord in
accordance with subsection VIII.B.2. hereof.
5. If Landlord is not required to give Tenant a Landlord Notice due
to a violation by Tenant of one or more of the conditions set
forth in subsection VIII.B.1.a. through VIII.B.1.e. above,
Landlord may lease the Offering Space for which Landlord has
Prospect or any other prospective tenant on whatever terms
Landlord elects.
6. Landlord and Tenant agree that if Tenant notifies Landlord on or
before June 30, 1995 of its desire to lease the Offering Space,
Landlord shall lease said Offering Space to Tenant on the same
terms and conditions as the Expansion Space, except that the
construction allowance to which Tenant shall be entitled for the
improvements to the Offering Space shall be equal to $10.50 per
rentable square foot of the Offering Space multiplied by a
fraction, the numerator of which is the number of months
remaining in the Lease Term from and after the commencement date
for the Offering Space and the denominator of which is 36.
C. LIMITATION Of LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR
LANDLORD HEREUNDER) TO TENANT SHALL BE LIMITED TO THE INTEREST OF LANDLORD
IN THE BUILDING, AND TENANT AGREES TO LOOK SOLELY TO LANDLORD'S INTEREST
IN THE BUILDING FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST THE
LANDLORD, IT BEING INTENDED THAT LANDLORD SHALL NOT BE PERSONALLY LIABLE
FOR ANY JUDGMENT OR DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO
THE FILING OF ANY SUIT FOR AN ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT
SHALL GIVE LANDLORD AND ALL MORTGAGEES WHOM TENANT HAS BEEN NOTIFIED HOLD
MORTGAGES OR DEED OF TRUST LIENS ON THE PROPERTY, BUILDING OR PREMISES
NOTICE AND REASONABLE TIME TO CURES SUCH ALLEGED DEFAULT BY LANDLORD. IN
ADDITION, TENANT ACKNOWLEDGES THAT EQUITY OFFICE PROPERTIES, INC. IS ACTING
SOLELY IN ITS CAPACITY AS AGENT FOR LANDLORD AND SHALL NOT BE LIABLE FOR
ANY OBLIGATIONS, LIABILITIES, LOSSES OR DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS LEASE, ALL OF WHICH ARE EXPRESSLY WAIVED BY TENANT.
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IX. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the parties
with respect to the matters set forth herein. There have been no additional
oral or written representations or agreements.
B. Except as herein modified or amended, the provisions, conditions
and terms of the Lease shall remain unchanged and in full force and effect.
C. In the case of any inconsistency between the provisions of the Lease
and this Amendment, the provisions of this Amendment shall govern and
control.
D. Submission of this Amendment by Landlord is not an offer to enter into
this Amendment but rather is a solicitation for such an offer by Tenant.
Landlord shall not be bound by this Amendment until Landlord has executed
and delivered the same to Tenant.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such capitalized
terms are defined therein and not redefined in this Amendment.
F. This Amendment shall be of no force and effect unless and until
accepted by any guarantors of the Lease, who by signing below shall
agree that their guarantee shall apply to the Lease as amended herein,
unless such requirement is waived by Landlord in writing.
G. Tenant hereby represents to Landlord that Tenant has dealt with no
broker other than Xxxx X. Xxxxxx in connection with this Amendment.
Tenant agrees to indemnify and hold Landlord and the Landlord Related
Parties harmless from all claims of any brokers claiming to have
represented Tenant in connection with this Amendment.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
ATTESTATION: LANDLORD: ZML - North Central Plaza Three
Limited Partnership
BY: EQUITY OFFICE PROPERTIES, INC.,
as agent
By: /s/ XXXXXX XXXXXXX
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/s/ Xxx Xxxxxxxxxx Name: XXXXXX XXXXXXX
--------------------- ------------------------------------
3/10/95 Title: VP-ASSET MANAGEMENT
--------------------- -----------------------------------
TENANT: The Management Alliance Corporation
a Texas corporation
By: /s/ XXXX X. XXXXXX, PRESIDENT
--------------------------------------
--------------------- Name: XXXX X. XXXXXX
------------------------------------
--------------------- Title: PRESIDENT
-----------------------------------
GUARANTOR: Diversified Human Resources
Group, Inc. a Texas corporation
By: /s/ M. XXX XXXXXXX C.F.O.
--------------------------------------
--------------------- Name: M. Xxx Xxxxxxx
------------------------------------
--------------------- Title: C.F.O.
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EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
[MAP]
NORTH CENTRAL PLAZA THREE
Attachment #1
OUTLINE AND LOCATION OFFERING SPACE
[MAP]
Attachment #2
RIGHT OF FIRST OFFER - NOTICE
TO: DATE:
COPY TO:
ADVICE
RE: Lease (the "Lease") dated December 19, 1994 by and between Equity
Office Properties, Inc. as agent, and The Management Alliance
Corporation for space in the Building located at 00000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxx, Xxxxx.
Pursuant to the terms of the Lease, Tenant is hereby notified that ___________
square feet on the first (1st) floor of the Building (as shown cross-hatched on
the demising plan attached hereto as Exhibit 1) will be available for lease
under the following conditions:
1. BASE RENT: 4. EXPENSE ESCALATION:
a. total: 5. TAX ESCALATION:
b. monthly: 6. SECURITY DEPOSIT:
2. TERM: 7. RENT CREDITS:
a. commencement date: 8. CONSTRUCTION:
b. expiration date:
3. CPI OR OTHER FINANCIAL ESCALATION:
Accordingly, under the terms of the Lease, Tenant has five (5) days after the
date of this Advice as stated in Section VIII.B, of the First Amendment to the
Lease to exercise its right of first offer on approximately ________ rentable
square feet, the Offering Space.
EQUITY OFFICE PROPERTIES, INC., as
agent
BY:
-------------------------------------
Xxxxxx X. Xxxxxx
Area Leasing Representative
NOTICE OF EXERCISE
Tenant hereby accepts the above tender of the space (as shown on the demising
plan attached hereto as Exhibit 1) and exercises its right to lease such
space. This acceptance and exercise shall authorize Equity Office Properties,
Inc., to forthwith prepare an amendment in accordance with Section VIII.B. of
the First Amendment to the Lease for execution by Tenant.
TENANT: The Management Alliance Corporation
DATED: ___________ BY:
-------------------------------------
ITS: -----------------------------------
REJECTION:
Tenant hereby acknowledges the above tender of the space (as shown on the
demising plan attached hereto as Exhibit 1) and hereby declines to lease said
space.
TENANT: The Management Alliance Corporation
DATED: ___________ BY:
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