1
EXHIBIT 6(m)
FIRST AMENDMENT TO LEASE AGREEMENT
This FIRST AMENDMENT TO LEASE AGREEMENT ("Amendment") is entered into as
of the 1st day of September, 1998 between 823 CONGRESS, LTD., a Texas limited
partnership (the "Landlord"), and AUSTIN FUNDING CORPORATION (F/K/A CAPITAL
FIRST MORTGAGE CORPORATION), a Texas corporation (the "Tenant").
1. Purpose of Agreement/Reference of Additional Terms. On or about April
7, 1997, Landlord entered into a written Lease Agreement (the "Lease") with
Tenant for 1,806 square feet of rentable area on the seventh (7th) floor of the
building known as the 823 Congress Building at 823 Congress in Austin, Texas.
The parties now wish to change the size and location of the Premises and make
the other changes herein. The parties hereby incorporate the Lease by reference
into this document and agree that except as modified herein, the terms of the
Lease shall remain in full force and effect. The term "Lease" shall mean the
original Lease Agreement as subsequently amended or revised by this First
Amendment.
2. Change of Premises. Effective September 1, 1998, the Premises shall be
changed to Suite 515 consisting of 3,293 rentable square feet as shown on the
attached First Amendment Exhibit A which shall replace Exhibit A to the Lease.
Tenant shall vacate Suite 707 on or before September 10, 1998.
3. Rental
(a) Base Rental. Effective September 1, 1998, Tenant's monthly Base
Rental shall be as follows:
Lease Period Base Rental
------------ -----------
9/01/98 - 4/30/00 $3,841.83 per month (based on a rental
rate of $14.00 per square foot of
Rental Area per year)
5/01/00 - 02/28/01 $4,390.67 per month (based on a rental
rate of $16.00 per square foot of
Rentable Area per year)
(b) Additional Rental. Effective September 1, 1998, Tenant's share of
the Excess of Basic Operating Costs shall be 1.8155% (3,293/181,381).
4. Condition of Premises. Tenant accepts the Premises "AS IS". Landlord
shall have no obligation to remove any furniture, fixtures, equipment or any
other goods or tangible property located therein.
5. Parking. Tenant shall have the parking rights provided on the attached
First Amendment Exhibit B.
6. Additional Rights. Notwithstanding any contrary or inconsistent
language in the Lease, Tenant shall have no rights to expand or terminate the
Lease. Landlord's sole renewal rights are contained in First Amendment Exhibit
C; Landlord's sole right of first refusal is contained in First Amendment D.
7. Warranties, Representations and Covenants. Tenant acknowledges and
confirms, to the best of its knowledge and belief, that (a) Landlord is in
substantial compliance with all warranties, representations and covenants of
Landlord contained in the Lease as of the date of this Amendment, (b) no
default or breach has
2
occurred as of the date of this Amendment in the performance and observation of
the material agreements, covenants and obligations of Landlord under the Lease
and (c) the Lease is in full force and effect as of the date of this Amendment.
Landlord acknowledges and confirms, to the best of its knowledge and belief,
that (a) Tenant is in substantial compliance with all warranties,representations
and covenants of Tenant contained in the Lease as of the date of this Amendment,
(b) no default or breach has occurred as of the date of this Amendment in the
performance and observation of the material agreements, covenants and
obligations of Tenant under the Lease, and (c) the Lease is in full force and
effect as of the date of this Amendment.
8. Defined Terms. Words and terms used herein which are defined in the
Lease are used in this Amendment as defined in the Lease, except as
specifically otherwise provided by the terms of this Amendment.
9. Miscellaneous.
(a) Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
counterparts shall be deemed to be an original and all of which counterparts
shall constitute one and the same agreement. The signature of each party to
this Amendment is not required to appear on each counterpart of this Amendment,
provided that each party to this Amendment has executed at least one
counterpart of this Amendment. In making proof of this Amendment it will not be
necessary to account for or produce each executed counterpart of this Amendment.
(b) Entirety and Controlling Agreement. This Amendment, in
conjunction with the Lease, embodies the entire agreement between Tenant and
Landlord. In the event of any conflict or inconsistency between the provisions
of the Lease and the provisions of this Amendment, the provisions of this
Amendment shall supersede, control and govern.
(c) Broker. Tenant represents and warrants that Tenant has dealt
with, and only with, OMNI COMMERCIAL REALTY ADVISORS, INC. as agent/broker in
connection with this Lease and that, insofar as Tenant knows, no other broker
has negotiated this Lease or is entitled to any commission in connection
herewith. Tenant shall indemnify and hold harmless Landlord from and against
all claims (and costs of defending against and investigating such claims) of
any broker(s) or similar parties claiming under Tenant in connection with this
Lease.
(d) Governing Law. This Lease shall be governed by, and construed in
accordance with, the laws of the State of Texas.
IN WITNESS WHEREOF, Tenant and Landlord have executed this instrument
effective the 1st day of September, 1998.
3
LANDLORD:
823 CONGRESS, LTD., a Texas limited partnership
By: OMNI CONGRESS JOINT VENTURE,
a Texas general partnership, General Partner
By: /s/ XXX XXXXX
--------------------------------------------
Xxx Xxxxx, Managing Venturer
Date: 8/27/98
--------------------------------------------
TENANT:
AUSTIN FUNDING CORPORATION (F/K/A
CAPITAL FIRST MORTGAGE CORPORATION),
a Texas corporation
By: /s/ XXXXX XXXXXXXX
---------------------------------------------
Printed Name: Xxxxx XxXxxxxx
-----------------------------------
Title: President
------------------------------------------
Date: 8-25-98
------------------------------------------
4
FIRST AMENDMENT EXHIBIT A
TO
FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND AUSTIN FUNDING CORPORATION
(F/K/A CAPITAL FIRST MORTGAGE CORPORATION), AS TENANT
FLOOR PLANS - LEASED PREMISES
[SEE ATTACHED]
INITIALED FOR IDENTIFICATION BY LANDLORD TS AND TENANT GC
---- ----
5
[FLOOR PLAN]
823 CONGRESS - AUSTIN/DOWNTOWN
------------------------------
FIFTH FLOOR JANUARY 1995
6
FIRST AMENDMENT EXHIBIT B
TO
FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND AUSTIN FUNDING CORPORATION
(F/K/A CAPITAL FIRST MORTGAGE CORPORATION), AS TENANT
PARKING
(a) Guaranteed Spaces Provided. Landlord agrees to provide, and Tenant agrees
to rent through the Term of the Lease, five (5) unreserved parking spaces (the
"Guaranteed Spaces"). Tenant shall rent all spaces unless and until Landlord
releases Tenant from such spaces after Tenant gives at least sixty (60) days
prior written notice to Landlord that Tenant desires to take fewer spaces, but
Landlord shall be under no obligation to later make available to Tenant any
spaces relinquished by Tenant.
(b) Parking Rates. All Guaranteed Parking Spaces shall be located in the 823
Congress Parking Garage. As rental for parking spaces provided to Tenant
hereunder, Tenant shall pay to Landlord or the operator of the garage, as may be
designated from time to time by Landlord, monthly in advance in the same manner
and in addition to the Base Rate provided in the Lease, rental on each such
parking space at the initial rates of $75.00 plus tax per month for each
unreserved space in the 823 Congress Garage. Rates may be changed from time to
time by the operator(s) of the garage(s).
(c) Miscellaneous. Tenant shall comply with all traffic, security,
safety and other rules and regulations promulgated from time to time by
Landlord or the Garage Operator. Tenant shall indemnify and hold harmless
Landlord from and against all claims, losses, liabilities, damages, costs and
expenses (including, but not limited to, attorneys' fees and court costs)
arising or alleged to arise out of Tenant's use of any such parking spaces,
whether or not caused or alleged to be caused by Landlord's negligence. In the
event any of the above unrelinquished parking spaces are or become unavailable
at any time or from time to time throughout the Term, whether due to casualty
or any other cause beyond Landlord's reasonable control, this Lease shall
continue in full force and effect; provided, however, Tenant shall be entitled
to an abatement of the rent due for any such unrelinquished space for so long
as it is unavailable for use by Tenant during normal Building hours.
INITIALED FOR IDENTIFICATION BY LANDLORD TS AND TENANT GL
-------- -------
-
7
FIRST AMENDMENT EXHIBIT C
TO
FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND AUSTIN FUNDING CORPORATION
(F/K/A CAPITAL FIRST MORTGAGE CORPORATION), AS TENANT
RENEWAL OPTION
Provided that a Default by Tenant has not occurred and is then continuing,
Tenant shall have the right to renew and extend this Lease with respect to all
of the Premises for one (1) renewal term of five (5) years commencing upon the
expiration of the initial Term by giving Landlord written notice thereof at
lease six (6) months but not more than twelve (12) months prior to the
expiration of the initial Term. In the event of such renewal, the "Term" shall
include such renewal term and such renewal shall be upon the same provisions as
for the initial Term except that:
1. Tenant shall pay during the renewal Base Rent to Landlord in monthly
installments in an amount equal to the then prevailing market rate for
comparable space in the first-class office buildings in downtown, Austin, Texas
as of the commencement of the renewal term (the "Market Rate") as designated by
Landlord within thirty (30) days after Landlord receives Tenant's renewal
notice. In addition, during such renewal term, Tenant shall pay all other Rent
and other amounts due under this Lease, including without limitation all rental
adjustments pursuant to Article 3 of this Lease, provided that any expense caps
or similar limitations shall not be renewed or carried forward unless the Market
Rate contemplates that such limitations be continued the renewal term. If Tenant
does not agree with Landlord's designation of Market Rate for purposes for
computing Base Rent or other Rent for the renewal term then Tenant may, within
five (5) days after the date of Landlord's designation, either (i) withdraw its
election to renew, or (ii) request arbitration of such Market Rate in accordance
with the following procedure; failure to take any action shall be deemed to be a
waiver of the renewal election. Landlord and Tenant each shall select one
qualified (MAI) appraiser and inform the other as to its selection within five
(5) business days after the date Tenant receives Landlord's designation of
Market Rate (the "Designation Date"). Those two appraisers shall select a third
qualified (MAI) appraiser within ten (10) business days after the Designation
Date. In order to be "qualified," each of said appraisers shall have at least
three (3) years of experience appraising leasehold interests under commercial
leases in downtown Austin, Texas. Landlord and Tenant shall each bear the cost
of its appraiser and one-half (1/2) of the cost of the third appraiser. Said
three appraisers shall determine the Market Rate in accordance with the
parameters set forth herein by mutual agreement within thirty (30) business days
after the Designation Date. If all of said appraisers fail to agree on the
Market Rate within thirty (30) business days after the Designation Date, but two
of said appraisers can so agree, then the Market Rate as determined by such two
appraisers shall be controlling. If none of said appraisers can agree on the
Market Rate within such time period, then an average shall be taken of the two
closest determinations thereof and such average shall be controlling (except
that if the median of the three rates provided by the appraisers is also the
average of the three, it shall be controlling). Tenant shall have fifteen (15)
days to accept or reject in writing the Market Rate as determined by said
arbitration procedure. If such Market Rate is not agreed to by Tenant as
determined by said arbitration procedure on or before the end of said fifteen
(15) day period, then Tenant shall pay all of Landlord's costs associated with
obtaining the aforementioned appraisals and the exercise of the applicable
option to renew and all rights of Landlord and Tenant under this option to renew
shall immediately terminate and all terms and conditions of this option to renew
shall be of no further force and effect. Except as noted above in case of a
failure to agree on Market Rate, Tenant may not revoke its election to renew
after such election has been made.
2. Landlord shall not be obligated to make any alterations or
improvements to the Premises.
3. Tenant shall have no further right to renew this Lease.
INITIALED FOR IDENTIFICATION BY LANDLORD TS AND TENANT GL
------- -----------------
8
FIRST AMENDMENT EXHIBIT D
TO
FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND AUSTIN FUNDING CORPORATION
(F/K/A CAPITAL FIRST MORTGAGE CORPORATION), AS TENANT
RIGHT OF FIRST REFUSAL
1. Landlord hereby grants to Tenant a right of first refusal (the "Right of
First Refusal") exercisable as hereinafter set forth, covering approximately
1,163 rental square feet of area on the fifth (5th) floor of the Building, more
particularly described on Attachment D-1 hereto (the "Refusal Space"). All
rights of Tenant to lease the Refusal Space pursuant to the Right of First
Refusal shall be applicable to all or any portion of the Refusal Space. The
Right of First Refusal shall be as follows:
(a) Upon receipt of a bona fide offer for the lease of all or
any portion of the Refusal Space, which offer Landlord wishes to
accept, and provided Tenant is not at such time in default under
the Lease beyond any applicable cure periods, Landlord shall give
Tenant notice (the "Notice") in writing of the terms and
conditions of the offer. Provided that a Default by Tenant has
not occurred and is then continuing and that Tenant has been
notified in writing of said Default, Tenant may exercise the
Right of First Refusal by delivering to Landlord written notice
of Tenant's election on or before the fifth (5th) business day
after the date of Landlord's delivery to Tenant of the Notice. In
the event Tenant exercises its Right of First Refusal, it shall
be required to lease the Refusal Space on the same terms and
conditions provided in the Notice, subject to section (c) below.
(b) In the event Landlord does not actually receive notice of Tenant's
election to lease the Refusal Space described in the Notice within
the period provided herein, then Landlord shall be free to lease
such space to one or more third parties on material terms and
conditions no less favorable to Landlord than those described in
the Notice.
(c) All Refusal Space leased to Tenant pursuant to the Right of First
Refusal may, at Landlord's option, be for a term which is
coterminous with the initial Term of this Lease and any renewal or
extension thereof.
(d) The term "Premises", as used in this Lease and/or the Underlying
Lease, shall include all expansions thereof that may occur from
time to time pursuant to this Right of First Refusal.
2. Tenant's right of first refusal shall be subject to (i) any
pre-existing options, (ii) any rights of first refusal, renewal or expansion
rights granted to other tenants or third parties and (iii) any renewals of
leases with or relocations of existing tenants.
3. Once Tenant has rejected an opportunity to exercise its right
of first refusal, this right of first refusal shall terminate.
INITIALED FOR IDENTIFICATION BY LANDLORD TS AND TENANT GL
------------ ------------
