FIRST AMENDMENT TO LEASE
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1. PARTIES
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1.1 THIS AGREEMENT made the _________ day of _______________, 2003
is between CWLT ROSELAND EXCHANGE L.L.C. ("Lessor") whose
address is c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and AMERICAN BUSINESS
FINANCIAL SERVICES, INC. ("Lessee"), whose address is 000
Xxxxxxxxxxxx Xxxxxxxxx, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000.
2. STATEMENT OF FACTS
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2.1 Lessor and Lessee have previously entered into a Lease
Agreement dated March 25, 2003 (hereinafter referred to as the
"Lease") covering approximately 31,160 gross rentable square
feet on the fourth (4th) floor ("Premises") in the building
located at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxxxx
("Building"); and
2.2 The Term of the Lease is eight (8) years and eight (8) months;
and
2.3 Lessee desires to perform its own tenant improvement work in
the Premises; and
2.4 The parties desire to amend certain terms of the Lease as set
forth below.
3. AGREEMENT
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NOW, THEREFORE, in consideration of the Premises and the
covenants hereinafter set forth, Lessor and Lessee agree as follows:
3.1 The above recitals are incorporated herein by reference.
3.2 All capitalized and non-capitalized terms used in this
Agreement which are not separately defined herein but are
defined in the Lease shall have the meaning given to any such
term in the Lease.
3.3 Paragraph 6 of the Preamble to the Lease is hereby amended by
deleting it in its entirety and substituting the following in
place thereof: "COMMENCEMENT DATE is May 27, 2003 and shall
for purposes hereof be subject to Articles 27 and 43 hereof.
In no event shall the Commencement Date be earlier than May
27, 2003."
3.4 Article 27 of the Lease is hereby amended by deleting it in
its entirety and substituting the following in place thereof:
"Lessor hereby leases to Lessee and Lessee hereby hires from
Lessor the Premises in its "AS-IS" condition for the Term,
under the terms and conditions set forth herein, subject to
Sections 5m. and 33 of the Lease. Lessor shall have no
obligation to perform any tenant improvement work in the
Premises. All initial tenant improvement work to be performed
by Lessee under this Lease shall be performed in accordance
with Exhibit C hereof."
3.5 Article 43 of the Lease is hereby amended by deleting it in
its entirety and substituting the following in place thereof:
"Notwithstanding anything contained herein to the contrary, if
Lessor, for any reason whatsoever cannot deliver possession of
the Premises to Lessee at the commencement of the agreed Term
as set forth in Article 2, this Lease shall not be void or
voidable, nor shall Lessor be liable to Lessee for any loss or
damage resulting therefrom, but in that event, the Term shall
be for the full term as specified above to commence from and
after the date Lessor shall have delivered possession of the
Premises to Lessee or from the date Lessor would have
delivered possession of the Premises to Lessee but for any
reason attributable to Lessee (herein the "Commencement Date")
and to expire midnight of the day immediately preceding Term
anniversary of the Commencement Date, and if requested by
Lessor, Lessor and Lessee shall, ratify and confirm said
Commencement and Expiration Dates by completing and signing
Exhibit G attached hereto and made a part hereof.
If Lessee is delayed in substantially completing the Premises
on or before May 23, 2003 by reason of Lessor's acts and/or
omissions or Force Majeure, then the Commencement Date shall
be such number of days after May 27, 2003 as shall be equal to
the number of days Lessee is delayed in substantially
completing the Premises by reason of Lessor's acts and/or
omissions or Force Majeure. Notwithstanding the foregoing, if
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Lessee is delayed by Force Majeure in substantially completing
the Premises for more than thirty (30) days, Lessor shall have
the right, but not the obligation, to perform the balance of
the work set forth in the construction contract between Lessee
and Lessee's contractor at the price set forth therein. In
such event, the Commencement Date shall be the earlier of (i)
the date Lessee or anyone claiming under or through Lessee
shall occupy the Premises for purposes other than constructing
tenant improvements in the Premises or (ii) the date Lessor
shall substantially complete the Premises.
Notwithstanding anything contained in the foregoing paragraphs
of this Article to the contrary, any delays in Lessee's
substantial completion of the Premises resulting from Lessor's
acts or omissions or Force Majeure shall not automatically
relieve Lessee of its obligation to commence paying Fixed
Basic Rent on the eighth (8th) month anniversary of the
Commencement Date. Such delays resulting from Lessor's acts or
omissions or Force Majeure must have in fact delayed Lessee's
substantial completion of the Premises by more than the number
of days between the forty-fifth (45th) day after the date
construction drawings for the Premises has been approved by
Lessor and Lessee and May 23, 2003.
3.6 Article 53 is hereby deleted in its entirety.
3.7 Exhibit C is hereby amended by deleting it in its entirety and
substituting the attached Exhibit C in place thereof.
3.8 Lessee hereby represents to Lessor that (i) there exists no
default under the Lease either by Lessee or Lessor; (ii)
Lessee is entitled to no credit, free rent or other offset or
abatement of the rents due under the Lease; and (iii) there
exists no offset, defense or counterclaim to Lessee's
obligation under the Lease.
3.9 Lessee represents to Lessor that no broker brought about this
transaction, and agrees to indemnify and hold Lessor harmless
from any and all claims of any broker arising out of or in
connection with negotiations of, or entering into of, this
Agreement.
3.10 Except as expressly amended herein, the Lease, as amended,
shall remain in full force and effect as if the same had been
set forth in full herein, and Lessor and Lessee hereby ratify
and confirm all of the terms and conditions thereof.
3.11 This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective legal
representatives, successors and permitted assigns.
3.12 Each party agrees that it will not raise or assert as a
defense to any obligation under the Lease or this Agreement or
make any claim that the Lease or this Agreement is invalid or
unenforceable due to any failure of this document to comply
with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses,
notarizations, or other similar requirements, and each party
hereby waives the right to assert any such defense or make any
claim of invalidity or unenforceability due to any of the
foregoing.
IN WITNESS WHEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written, and acknowledge one to the other
that they possess the requisite authority to enter into this transaction and to
sign this Agreement.
LESSOR: LESSEE:
CWLT ROSELAND EXCHANGE L.L.C. AMERICAN BUSINESS FINANCIAL
SERVICES, INC.
By: Xxxx-Xxxx Texas Property L.P., member
By: Xxxx-Xxxx Sub XVII, Inc. its general
partner
By: _____________________________ By: ___________________________
Xxxxxxx X. Xxxxxx Name:
Vice President - Leasing Title:
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EXHIBIT C
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LESSEE'S WORK AND ALTERATIONS
Lessee may make the alterations required for Lessee's use of the Premises
(hereinafter the "Work") after the commencement of the Term subject to the
following:
1. a. Lessee, at its sole cost and expense, shall prepare and
submit to Lessor, for Lessor's and governmental approval, the
following descriptive information, detailed architectural and
engineering drawings and specifications (hereinafter the
"Plans") for the Work. The Plans shall be as complete and
finished as required to completely describe the Work and shall
include, but not be limited to, the following:
i. Demolition Plans depicting all existing conditions to
be removed, abandoned or cut patched.
ii. Architectural floor plans depicting partition
locations and types; door location, size, and
hardware types.
iii. Structural plans, if required, depicting new
structural components and their connections to
existing elements.
iv. Electrical plans depicting all new and existing
electrical wiring, devices, fixtures and equipment.
v. Mechanical plans depicting all new plumbing, piping,
heating, ventilating, air conditioning equipment, and
duct work and its connections to existing elements.
vi. Life Safety System plans depicting all new or altered
alarm system fixtures, devices, detectors and wiring
within the Premises and their connection to existing
systems.
vii. Coordinated reflected ceiling plan showing ceiling
systems and materials and all of the above items and
their proximity to one another.
viii. Finish plans showing locations and types of all
interior finishes with a schedule of all proposed
materials and manufacturers.
The Plans shall provide for all systems and construction
components complying with the requirements of all governmental
authorities and insurance bodies having jurisdiction over the
Building.
b. The Plans for the Work are subject to Lessor's prior written
approval which shall not be unreasonably withheld, provided,
however, that Lessor may in any event disapprove the Plans if
they are incomplete, inadequate or inconsistent with the terms
of the Lease or with the quality and architecture of the
Building. Lessor agrees to approve or disapprove the Plans
within three (3) business days of receipt of same (the
"Lessor's Approval Period"). If Lessor disapproves the Plans
or any portion thereof, Lessor shall promptly notify Lessee
thereof and of the revisions which Lessor reasonably requires
in order to obtain Lessor's approval. Lessee shall, at its
sole cost and expense and within five (5) days after approval
of the Plans by Lessor and Lessee, submit the Plans, in such
form as may be necessary, with the appropriate governmental
agencies for obtaining required permits and certificates. Any
changes required by any governmental agency affecting the Work
or the Plans shall be complied with by Lessee in completing
said Work at Lessee's sole cost and expense. Lessee shall
submit completed Plans to Lessor simultaneously with Lessee's
submission of said plans to the local building department.
Exhibit C - Page 1
2. Lessor shall permit Lessee to solicit competitive pricing and select
its own general and/or individual subcontractors to perform the Work at
its sole cost. Lessee's use of its own contractor and/or individual
subcontractors shall be subject to the following:
a. All general contractors shall be subject to Lessor's prior
written approval, which shall not be unreasonably withheld,
conditioned or delayed.
b. Lessee shall instruct all approved general contractors to use
Lessor's Base Building Sub-Contractors for heating,
ventilation, air conditioning, electrical, fire suppression
and life safety systems (hereinafter "Building Systems"). and
other subcontractors may be used only when specifically
approved in writing by Lessor, which approval shall not be
unreasonably withheld, conditioned or delayed.
c. The Base Building Sub-Contractors and their respective trades
are set forth in Paragraph 6 below.
d. Lessee notifies Lessor in writing of Lessee's selection of
general and subcontractors.
e. All costs associated with the bidding process soliciting
competitive pricing will be at the sole cost and expense of
the Lessee.
f. Lessee's workmen and mechanics shall work in harmony and not
interfere with the labor employed by Lessor, Lessor's
mechanics or contractors or by any other occupant of the
Building or their mechanic or contractors, if any. If at any
time Lessee and/or its contractors cause disharmony or
interference with the operation of the Building, Lessor shall
give forty-eight (48) hours written notice to Lessee and
within twenty-four (24) hours Lessee shall resolve any dispute
so that the tenor of the construction process and the
operation of the Building is returned to that which existed
prior to Lessor's notice. Such entry by Lessee's contractors
shall be deemed controlled by all of the terms, covenants,
provisions and conditions of the Lease.
g. Prior to the commencement of the Work, Lessee shall provide
Lessor with evidence of Lessee's contractors and
sub-contractors carrying such worker's compensation, general
liability, personal and property insurance required by law and
in amounts no less than the amounts set forth in Paragraph 7
herein. Lessor shall not be liable in any way for any injury,
loss or damage which may occur to any portion of the Work,
Lessee's decorations, or installments so made, the same being
solely at Lessee's risk.
h. In the event Lessor approves the use of subcontractors other
than Lessor's Base Building sub-contractors, all proposed
Building System work, including the preparation of the plans
and specifications identified herein, shall be approved by
Lessor's engineers (the "Engineering Review"), and any cost
thereof shall be Lessee's responsibility.
i. Lessor shall afford Lessee and its contractors the opportunity
to use the Building facilities in order to enable Lessee and
its contractors to perform the Work, provided however, that
Lessee and its contractors shall remain responsible for the
scheduling and transportation of materials and equipment used
in the performance of such work. Lessee shall give Lessor
adequate prior notice with regard to the scheduling and
transportation of materials in and out of the Building. Lessor
shall furnish, at Lessor's expense, water, electricity, heat
and ventilation during the performance of the Work during
regular construction trade hours of 8:00 a.m. to 5:00 p.m.,
Monday through Friday, exclusive of trade holidays. Any
services required by Lessee during other hours shall be paid
by Lessee at Lessor's customary charge therefor.
Exhibit C - Page 2
j. All work installed by Lessee and its sub-contractors shall
require inspections to be made by Lessor's Base Building
Sub-Contractors at Lessee's or Lessee's contractors expense,
such fees to be reasonable and customary, (the "Inspection
Fees"). The Base Building Sub-Contractors shall supply Lessor
with certification that work so preformed has been completed
in accordance with the Plans which have been previously
approved by Lessor. If a Base Building Sub-Contractor is
selected and actually installs the work, the Inspection Fees
described in this paragraph with respect to such work shall
not be required. The Inspection Fees together with the
Building Manager's fees shall not exceed $4,000.00.
k. Lessee shall be responsible for all cleaning and removal of
debris necessitated by the performance of the Work. If Lessee
fails to provide such cleaning and removal, the same may be
performed by Lessor on Lessee's behalf and Lessee will pay
Lessor an amount equal to the contractor's charge therefore.
l. Neither the outside appearance nor the strength of the
Building or of any of its structural parts shall be affected
by the Work.
m. The proper functioning of any of the Building Systems shall
not be adversely affected or the usage of such systems by
Lessee shall not be materially increased above the projected
usage of such systems indicated by the current plans and
specifications of the Building.
n. Lessee and its general and sub-contractors shall be bound by
and observe all of the conditions and covenants contained in
the Lease and this Exhibit X.
x. Xxxxxx shall designate a "Project Manager" as its
representative in the Building who shall be responsible for
coordination and supervision of the Work as it pertains to the
daily operation of the Building. The Project Manager and his
subordinates shall be granted access to the Premises at all
times during the construction period. Lessee shall pay to
Lessor, with the fifteen (15) business days of billing, all
reasonable costs applicable to Lessor's supervisory and
coordination work during the construction period, at a rate of
$75.00 per hour, such charges, together with the Inspection
Fees, shall not exceed $4,000.00.
3. Intentionally Omitted.
4. Any part of the Work within the Premises shall become the property of
the Lessor upon installation. Furthermore, with respect to any material
and installation which is part of the Work, Lessee shall not be
entitled to remove, pledge or sell same unless otherwise agreed to in
writing by Lessor and Lessee. No refund, credit, or removal of said
items shall be permitted at the termination of the Lease. Items
installed that are not integrated in any such way with other common
building materials do not fall under this provision (Example: shelving,
furniture, trade fixtures).
5. Lessor shall provide a cash contribution of FOUR HUNDRED EIGHTY-TWO
THOUSAND FOUR HUNDRED FIFTY AND DOLLARS ($482,450.00) ("Lessor's
Construction Allowance") for payment of the costs associated with the
completion of the Work. Lessor shall make progress payments to Lessee
on a monthly basis, for the Work performed to date and/or for materials
delivered to the Premises during the previous month, less a retainage
of ten percent (10%) of each progress payment ("Retainage"). Each of
Lessor's progress payments shall be limited to that fraction of the
total amount of such payment, the numerator of which shall be the
amount of Lessor's Construction Allowance, and the denominator of which
shall be the total contract (or estimated) price for the performance of
all of the Work shown on all plans and specifications approved by
Landlord. Provided that Lessee delivers requisitions to Lessor on or
prior to the 10th day of any month, such progress payments shall be
made within 20 days next following the delivery to Lessor of
requisitions therefor, signed by a financial officer of Lessee, which
requisitions shall set forth the names of each contractor and
subcontractor to whom payment is due, and the amount thereof, and shall
be accompanied by (i) copies of partial waivers of lien from all
contractors, subcontractors and materialman covering all work and
Exhibit C - Page 3
materials which were the subject of previous progress payments by
Lessor and Lessee, (ii) a written certification from Lessee's architect
that the work for which the requisition is being made has been
completed substantially in accordance with the plans and specifications
approved by Lessor and (iii) such other documents and information as
Lessor may reasonably request. Any such requisition made following the
10th day of any month shall be paid no later than the last day of the
month following the month in which such requisition is made. If Lessee
does not pay any contractor as required by this provision, Lessor shall
have the right upon notice to Lessee, but not the obligation, to
promptly pay to such contractor all sums so due from Lessee, and Lessee
agrees the same shall be deemed Additional Rent and Lessor shall have
all remedies available under this Lease, at law or in equity for
collection from Lessee of all sums so paid by Lessor.
The Retainage of Lessor's Construction Allowance shall be payable
within ten (10) business days of Lessor's receipt of the following:
a. Copy of the Certificate of Occupancy (temporary and permanent)
issued by the local construction official;
b. AIA Document G704, Certificate of substantial completion
issued and signed by Lessee's Architect;
c. Release of Lien statements from the general and all
sub-contractors associated with the Work;
d. Lessee shall provide Lessor a set of reproducible drawings of
the Plans and a "CAD" file (in .DWG or .DXF format) of the
"As-Built" Plans; and
e. Lessee has paid all sums due and owing Lessor under the Lease
and this Exhibit C.
If Lessor fails to make such payment(s) of Lessor's Construction
Allowance that is due and payable hereunder within the time periods set
forth above, Lessee shall so notify Lessor ("Lessee's Notice").
Lessee's Notice shall state the following in bold and capital letters:
"IF LESSOR FAILS TO PAY LESSOR'S CONTRUCTION ALLOWANCE DUE AND PAYABLE
PURSUANT TO EXHIBIT C OF THE LEASE WITHIN FIVE (5) BUSINESS DAYS OF
YOUR RECEIPT OF THIS NOTICE, LESSEE MAY DEDUCT SUCH SUM(S) FROM THE
FIXED BASIC RENT DUE AND PAYABLE UNDER THE LEASE." If Lessor shall fail
to make such payment of Lessor's Construction Allowance within such
five (5) business day period, Lessee shall have the right to deduct
such sums from the Fixed Basic Rent due and payable by Lessee under the
Lease.
6. The Base Building Sub-Contractors are:
Fire Sprinkler Contractor
See Attached Exhibit A
Electrical Contractor
See Attached Exhibit A
Plumbing Contractor
See Attached Exhibit A
HVAC Contractor
See Attached Exhibit A
7. Lessee's Contractor's Insurance:
a. The Lessee shall require any and all contractors of the Lessee
performing work on or about the Premises to obtain and/or
maintain specific insurance coverage for events which could
occur while operations are being performed and which could
occur after the completion of the work. The insurance coverage
of the contractor shall be at least equal to the coverage
required by Article 30 of the Lease and the contractor shall
name Lessor and, if requested, Mortgagee as additional
insureds on all policies of liability insurance.
Exhibit C - Page 4
b. The contractor shall purchase and maintain such insurance as
will protect itself and Lessor and Lessee from claims set
forth below which may arise out of or result from its
operations under the contract and after contract completion
with Lessee, whether such operations are performed by the
contractor or by any subcontractor or by anyone directly or
indirectly employed by any of them or by anyone for whose acts
any of them may be liable. The insurance coverage shall
include but not be limited to protection for:
i. Claims under Workers or Workmens Compensation,
Disability Benefits, and other Employee Benefit Acts;
ii. Claims for damages because of bodily injury,
occupational sickness, disease or death of its
employees;
iii. Claims for damages because of bodily injury,
sickness, disease, or death of any person other than
its employees;
iv. Claims for damages insured by the usual personal
injury liability coverages which are sustained by (i)
any person as a result of an offense directly or
indirectly related to the employment of such person
by the contractor, or (ii) by any other person;
v. Claims for damages, other than to the work itself,
because of injury to or destruction of tangible
property, including loss of use resulting therefrom;
vi. Claims for damages because of bodily injury or death
of any person and/or property damage arising out of
the ownership, maintenance, or use of any motor
vehicle; and
vii. Claims which include the foregoing, but not limited
thereto, which may occur while operations are being
performed and claims which may occur after operations
are completed.
c. Lessee shall secure evidence of Lessee's contractor's
insurance coverage adequate to protect Lessor and Lessee.
d. The contract between the Lessee and its contractor shall
require that the Lessee's contractor hold the Lessor harmless
in a form and manner equal to the indemnity agreement in
Article 33, "Indemnity" of the Lease agreement.
e. Lessee shall cause to be executed a waiver of all rights their
contractors have or may have against Lessor and any Mortgagee
involved in the Premises in any way, for damages caused by
fire or other perils so insured.
8. All sums payable by Lessee to Lessor in connection with this Exhibit C
and any other work to be performed by Lessor within the Premises and
billable to Lessee shall be deemed Additional Rent.
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Exhibit C - Page 5
