Exhibit 10.12
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is dated as of February
27, 1998, by and between A & E PARTNERS, L.P., a Delaware limited partnership
(hereinafter, called "Landlord") and CREDITRUST CORPORATION, a Maryland
corporation (hereinafter, called "Tenant").
WITNESSETH
WHEREAS, Landlord and Tenant entered into a certain Lease dated January 22,
1997 (the "Lease"), pursuant to which Tenant leased from Landlord certain
commercial office premises (the "Premises") consisting of approximately 35,471
square feet of rentable area comprising the entire office building located at
0000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000.
WHEREAS, pursuant to Section 3.2(a) of the Lease, the Lease Term of the
Lease commenced on March 3, 1997, the date that Landlord delivered the
Completion Notice to Tenant, and expires on December 31, 2002; and
WHEREAS, Landlord and Tenant wish to (i) confirm the continued existence of
the Lease, (ii) agree to the installation of new HVAC equipment in the Premises,
(iii) increase the Base Rent amounts, and (iv) further amend and modify the
Lease in the manner set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord and Tenant, intending to be legally
bound, agree as follows:
1. Recitals: The recitals set forth above are true and correct in all
respects and are incorporated herein as a substantive part of this Amendment.
2. Defined Terms. All capitalized terms used and not otherwise defined
herein shall have the meanings given to them in the Lease.
3. New HVAC Equipment. Landlord shall, at its own cost and expense, install
new HVAC equipment (the "HVAC Equipment") in the Premises as Landlord shall
determine, the total cost of which shall not exceed $40,970.00. Installation of
the HVAC Equipment shall commence within a reasonable time period following the
execution of this Amendment by Landlord and Tenant and shall be conducted
diligently by Landlord. Tenant acknowledges that such installation may cause
some disruption to operations within the Premises, and Landlord agrees to use
reasonable efforts to limit such disruption to the extent reasonably
practicable. In connection with such installation, Landlord shall designate Xxxx
Xxxxxx of Emmes Realty Services, Inc. ("Emmes"), or any other employee of Emmes
reasonably approved by Tenant, to serve as construction manager (the
"Construction Manager") to manage the installation of the
HVAC Equipment and Tenant shall be, and hereby is, responsible for payment of a
construction management fee equal to five percent (5%) of the cost of such HVAC
Equipment and installation, which fee shall be paid by Tenant to Landlord within
ten (10) business days after Landlord's written demand, but only after
installation satisfactory to Tenant.
The $40,970.00 maximum price for the HVAC Equipment and installation is
based upon an estimate for such work which Landlord has received from X.X.
Xxxxxxx ("Xxxxxxx"). Any and all costs, fees or expenses incurred in connection
with the acquisition and installation of the HVAC Equipment (or any
modifications thereto requested by Tenant) in excess of $40,970.00 ("Excess
Costs") shall be the sole responsibility of Tenant and Tenant shall pay any such
Excess Costs within ten (10) business days after Tenant's receipt of Landlord's
written demand. The foregoing notwithstanding, if Xxxxxxx'x final contract
proposal reflects the possibility of any Excess Costs, Landlord shall promptly
(and in all events prior to authorizing commencement of the work) notify Tenant
in writing of the specific details and shall, if Tenant requests at the time of
such notification, schedule a meeting with Tenant and Xxxxxxx to be held within
three (3) business days after such notification at a place and time reasonably
designated by Landlord. If Tenant does not request such a meeting, or fails to
attend such meeting at the designated place and time, Landlord shall have the
right to authorize Xxxxxxx to perform the installation of the HVAC Equipment in
accordance with Xxxxxxx'x final contract proposal. If such a meeting is
requested, Tenant, Landlord and Xxxxxxx shall meet to discuss alternative
methods for completing the installation of the HVAC Equipment at a reduced cost,
including value engineering, redesign and/or equipment modifications. Tenant and
Landlord shall work together in good faith to reach agreement on a final design
and contract proposal, and Tenant's proposal(s) shall be given equal
consideration to Landlord's as long as Tenant's proposal(s) would not violate
any federal, state or local law, regulation or code, nor place any additional or
unreasonable burden on Landlord above and beyond Landlord's obligation to
acquire and install the HVAC Equipment into the Premises at a $40,970 maximum
cost to Landlord. Nevertheless, if within five (5) business days following such
meeting, Landlord and Tenant are unable despite their good faith efforts to
agree upon a mutually acceptable alternative to Xxxxxxx'x original final
contract proposal, this document shall be null and void and no work shall be
authorized.
4. Base Rent. In consideration of Landlord's installation of the HVAC
Equipment, the Base Rent payable by Tenant for the eleventh (11th) month
through, and including, the seventieth (70th) month of the Term shall be, and
hereby is, modified as set forth in Exhibit A attached hereto and made a part
hereof. Additionally, in consideration of Landlord's installation of the HVAC
Equipment, the parties acknowledge that the Term may not be shortened under any
of the circumstances set forth in Section 3.2(a) of the Lease.
5. Effective Date. This Amendment shall constitute a present and binding
agreement between the parties hereto which shall be effective in all respects
immediately upon the execution and delivery hereof by the parties.
6. Full Force and Effect. Except as modified herein, the Lease shall
continue in full force and effect, unmodified.
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7. Counterpart Execution. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
8. No Defaults. By the creation hereof, Tenant represents to Landlord that,
to the best of its knowledge, information and belief, neither Landlord nor
Tenant is in default of its respective obligations under the Lease, and no
condition exists which, with the giving of notice or the passage of time would
constitute a default by Landlord under the Lease. Tenant further acknowledges
that, pursuant to Section 6.2 (C) of the Lease, Landlord, on even date herewith,
has delivered the sum of Ten Thousand Dollars ($10,000.00) to Tenant in
satisfaction of Landlord's obligation to secure off-Property overflow parking
for Tenant on or before August 1, 1997 and, as a consequence of such payment to
Tenant, Landlord owes no further or future obligations or duties to Tenant under
Section 6.2(C) of the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Lease Agreement on the date and year first above written.
Landlord:
A & E PARTNERS, L.P., a Delaware
limited partnership
By: Emmes Xxxxxxx Corp., a Delaware
corporation, General Partner
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Vice President
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Tenant:
CREDITRUST CORPORATION, a Maryland
corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: President
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