EXHIBIT 10 (Q)
SECOND AMENDMENT
This Second Amendment (the "Second Amendment") is made and entered into as of
the 8th day of July, 1998 (the "Effective Date"), by and between EOP-SUMMIT
LIMITED PARTNERSHIP, a Delaware limited partnership ("Lessor"), and SUMMIT
BANCSHARES, INC. ("Lessee").
WITNESSETH
A. WHEREAS, Lessor (as successor in interest to Xxxx/Xxxxxxx Xxxxx Real Estate
Opportunity Partners Limited Partnership) and Lessee are parties to that
certain lease dated February 1992, for space currently containing
approximately 4,978 rentable square feet (the "Premises") described as
Suite No 604 on the 6th floor of the building commonly known as Summit
Office Park and the address of which is 0000-0000 Xxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxx (the "Building"), which lease has been previously amended by First
Amendment dated May 3, 1994 (the "First Amendment") which, among other
things, extended the lease for an additional three-year period (the First
Amendment and the lease are collectively referred to herein as the
"Lease"); and
B. WHEREAS, the Lease Term shall expire on February 15, 2000 and Lessee has
requested an option to extend the Lease Term and Lessor has agreed to grant
Lessee such option; and
C. WHEREAS, Lessee and Lessor mutually desire that the Lease be amended on and
subject to 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, Lessor and Lessee agree as follows:
I. Renewal Option. Lessor and Lessee agree that the Lease shall be
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amended in accordance with the following terms and conditions:
A. Lessee, provided it is not in default and has not sublet the
Premises or assigned the Lease, shall have two options to extend
the Lease Term (the "Second Renewal Option" and the "Third
Renewal Option"), each for an additional period of five years
(the "Second Renewal Term" and the "Third Renewal Term"). If
properly exercised in accordance with this Second Amendment, the
Second Renewal Term shall commence on the day following the
Extended Termination Date (as defined in the First Amendment) and
the Third Renewal Term shall commence on the day following the
last day of the Second Renewal Term. If Lessee elects to exercise
the Second Renewal Option, Lessee shall provide Lessor with
written notice of such election at least six months prior to the
Extended Termination Date and if Lessee elects to exercise the
Third Renewal Option, Lessee shall provide Lessor with written
notice of such election at least six months prior to the
expiration of the Second Renewal Term.
B. The Base Monthly Rent rate during the Second Renewal Term shall
be $13.50 per rentable square foot of the Premises. The Base
Monthly Rental rate per rentable square foot of the Premises
during the Third Renewal Term shall equal the prevailing market
rate for such space as determined in Lessor's reasonable
judgment.
C. During the Second Renewal Term and the Third Renewal Term Lessee
shall pay to Lessor as additional rental the amount (the
"Excess") by which the sum of Lessee's Proportionate Share of
Real Estate Taxes for the applicable calendar year and Operating
Expenses for the applicable calendar year exceeds $6.50 per
rentable square foot (the "Expense Stop"); provided Lessee shall
not be entitled to a credit if Lessee's Proportionate Share is
less than $ 6.50 per rentable square foot. As soon as is
practical following the end of each calendar year during the
Second Renewal Term and Third Renewal Term, Lessor shall furnish
to Lessee a statement (the "Annual Statement") of Lessor's actual
Operating Expenses and the actual Excess for the previous
calendar year. Not later than thirty (30) days after Lessee's
receipt of the Annual Statement, Lessee will pay to Lessor, as
Additional Rent, the Excess stated in the Annual Statement.
D. If the Building is not at least ninety-five percent (95%)
occupied during any calendar year of the Lease Term or if Lessor
is not supplying services to at least ninety-five (95%) of the
total Rentable Area of the Building at any time during any
calendar year of the Lease Term, actual Operating Expenses for
purposes hereof shall be determined as if the Building had been
ninety-five percent (95%) occupied and Lessor had been supplying
services to ninety-five percent (95%) of the Rentable Area of the
Building during such year.
E. During the Second Renewal Term and the Third Renewal Term, Lessor
agrees to provide six (6) covered, reserved parking spaces in the
on-site garage. Lessee will pay Lessor rent on each of the
reserved spaces which, on the date of this Amendment is $25.00
per space per month. The rent for the parking spaces may be
increased by Lessor annually by the same amount the rent charged
to other tenants in the Building is increased. Lessor will make
these parking spaces available to Lessee prior to the Second
Renewal Term at the referenced monthly rate upon Lessee's written
request.
F. If Lessee is entitled to and properly exercises the Second
Renewal Option and/or the Third Renewal Option, Lessor shall
prepare appropriate instruments (each a "Renewal Amendment") to
reflect changes in the Base Monthly Rental, Lease Term, Extended
Termination Date and other appropriate terms. Lessee shall
execute and return such Renewal Amendment(s) within fifteen days
after Lessee's receipt thereof from Lessor.
II. Suite 634 Rights.
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A. Lessee shall have the following rights (the "Suite 634
Rights") with respect to Suite 634 in the Building (the
"Option Space"), consisting of approximately 1,829 rentable
square feet as shown on Exhibit "A" attached hereto:
(i) A one-time expansion right to take the Option Space
(the "Expansion Right") beginning September 1, 1999 by
giving Lessor the Notice of Exercise (defined below) by
March 1, 1999. The Base Monthly Rent applicable to the
Option Space shall be the then current market rate for
the Building as determined is Lessor's reasonable
discretion.
(ii) If Lessee does not exercise the Expansion Right, then
Lessee shall have a one time right of first refusal to
lease the Option Space ("Right of First Refusal"). The
Right of First Refusal shall be exercised as follows:
when Lessor has a prospective tenant ("Prospect")
interested in leasing all or any part the Option Space,
Lessor shall advise Lessee (the "Advice") of the terms
under which Lessor is prepared to lease the Option
Space (or portion thereof if the Prospect is interested
in leasing less than all of the Option Space) to such
Prospect. Lessee shall have five (5) days after the
date of the Advice to give Lessor the Notice of
Exercise. If Lessee exercises its Right of First
Refusal, it shall lease the Option Space under the
terms and conditions contained in the Advice. The term
for the Option Space under the Right of First Refusal
shall commence upon the commencement date stated in the
Advice.
B. To exercise either of the Suite 634 Rights, Lessee shall
provide Lessor with written notice of exercise ("Notice of
Exercise") to Lessor's notice address as provided in the
Lease. Lessee has no Suite 634 Rights if:
a. Lessee is in default under the Lease at the time
of the Notice of Exercise or the Advice (if
applicable); or
b. The Premises, or any portion thereof, is sublet at
the time of the Notice of Exercise or the Advice
(if applicable); or
c. The Lease has been assigned; or
d. The Lease is not occupying the Premises on the
date of the Notice of Exercise ("Notice of
Exercise") or the Advice if applicable.
C. The Option Space shall be considered a part of the Premises,
provided that all of the terms herein and in the Lease (and
in the Advice, if applicable) shall govern Lessee's leasing
of the Option Space. The Option Space (including
improvements and personalty, if any) shall be accepted by
Lessee in its condition and as-built configuration existing
on the earlier of the date Lessee takes possession of the
Option Space or the date the term for such Option Space
commences.
D. The Right of First Refusal with respect to the Option Space shall
terminate on the earlier to occur of (i) Lessee's failure to
exercise its Right of First Refusal within the five (5) day
period provided in paragraph A above, and (ii) the date Lessor
would have provided Lessee an Advice if Lessee had not been in
violation of one or more of the conditions as set forth in
Paragraph A above.
E. If Lessee exercises either of its Suite 634 Rights, Lessor shall
prepare an amendment (the "Expansion Amendment") adding the
Option Space to the Premises and reflecting the changes in the
Base Monthly Rent, Rentable Area of the Premises, Lessee's
Proportionate Share and other appropriate terms. A copy of the
Expansion Amendment shall be (i) sent to Lessee within a
reasonable time after Lessor's receipt of the Notice of Exercise,
and (ii) executed by Lessee and returned to Lessor within ten
(10) days thereafter.
Ill. Effective Date. This Second Amendment shall become effective as
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of the Effective Date and shall continue in effect until otherwise
amended by the parties in writing or until expiration or sooner
termination of the Lease.
IV. Miscellaneous.
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A. This Second 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.
Under no circumstances shall Lessee be entitled to any Rent
abatement, improvement allowance, leasehold improvements, or
other work to the Premises, or any similar economic incentives
that may have been provided Lessee in connection with entering
into the Lease.
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 Second Amendment, the provisions of this Second
Amendment shall govern and control.
D. Submission of this Second Amendment by Lessor is not an offer to
enter into this Second Amendment but rather is a solicitation for
such an offer by Lessee. Lessor shall not be bound by this Second
Amendment until Lessor has executed and delivered the same to
Lessee.
E. The capitalized terms used in this Second 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 Second Amendment.
F. Lessee hereby represents to Lessor that Lessee has dealt with no
broker in connection with this Second Amendment other than Xxxxx,
Xxxxx & Xxxxxx, Inc., on Lessee's behalf and the Xxxxxxx X.
Xxxxxx Co., on Lessor's behalf ("Brokers"). Lessee agrees to
indemnify and hold Lessor, its members, principals,
beneficiaries, partners, officers, directors, employees,
mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the
"Lessor Related Parties") harmless from all claims of any brokers
claiming to have represented Lessee in connection with this
Second Amendment other than Brokers. Lessor hereby represents to
Lessee that Lessor has dealt with no broker in connection with
this Second Amendment. Lessor agrees to indemnify and hold
Lessee, its members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and the respective
principals and members of any such agents (collectively, the
"Lessee Related Parties") harmless from all claims of any brokers
claiming to have represented Lessor in connection with this
Second Amendment.
IN WITNESS WHEREOF, Lessor and Lessee have duly executed this Second
Amendment as of the Effective Date.
LESSOR:
EOP-SUMMIT LIMITED PARTNERSHIP, a Delaware
limited partnership
By: EOP-SUMMIT, L.L.C., a Delaware limited
liability company, its general partner
By: EOP Operating Limited Partnership,
a Delaware limited partnership, its
sole member
By: Equity Office Properties
Trust, a Maryland real estate
investment trust, its managing
partner
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: VP, Leasing
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LESSEE:
SUMMIT BANCSHARES, INC.
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
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Title: Executive Vice President
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