EXHIBIT 10 (s)
THIRD AMENDMENT
This Third Amendment (the "Amendment") is made and entered into as of the 22/nd/
day of October, 1999, by and between EOP- SUMMIT LIMITED PARTNERSHIP, a Delaware
limited partnership ("Lessor") and Summit Bancshares, Inc. ("Lessee").
WITNESSETH
A. WHEREAS, Lessor and Lessee are parties to that certain lease dated February,
1992 for space currently containing approximately 4978 rentable square feet (the
"Original Premises") described as Suite No(s). 604 on the sixth (6th) floor of
the buildings commonly known as Summit Office Park and the address of which is
0000-0000 Xxxxxx Xxx., Xxxx Xxxxx, XX (the "Building"), which lease has been
previously amended by First Amendment dated May 3, 1994 (the "First Amendment")
and Second Amendment dated July 8, 1998 (the "Second Amendment") which, among
other things, extended the term of the lease (the First Amendment, Second
Amendment and lease are collectively referred to herein as the "Lease"); and
B. WHEREAS, Lessee has requested that additional space consisting of
approximately 1,829 rentable square feet on the sixth (6th) floor of the 1300
Summit Building shown on Exhibit A hereto ("Expansion Space") be added to the
Premises; and
C. WHEREAS, the Lease Term shall expire on February 15, 2000 ("Prior
Termination Date") and the parties desire to extend the term of the lease
subject to the terms and conditions hereinafter set forth; and
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. EXPANSION AND EFFECTIVE DATE. Effective as of the Expansion Effective
----------------------------
Date (as hereinafter defined), the Premises as defined in the Lease,
is hereby increased from 4,978 rentable square feet on the sixth (6th)
floor to 6,807 rentable square feet on the sixth (6th) floor by the
addition of the Expansion Space, and from and after the Expansion
Effective Date, the Original Premises and the Expansion Space,
collectively, shall be deemed the Premises, as defined in the Lease.
The Lease Term for the Expansion Space shall commence on the Expansion
Effective Date and end on the Extended Termination Date. The Expansion
Space is subject to all the terms and conditions of the Lease except
as expressly modified herein and except that Lessee shall not be
entitled to receive any allowance, abatements or other financial
concessions granted with respect to the Original Premises unless such
concessions are expressly provided for herein with respect to the
Expansion Space.
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A. The Expansion Effective Date shall be the later to occur of (i)
December 1, 1999 ("Target Expansion Effective Date"), and (ii)
the date upon which Lessor's improvement work in the Expansion
Space has been substantially completed; provided, however, that
if Lessor shall be delayed in substantially completing the
Lessor's work in the Expansion Space as a result of the
occurrence of any of the following (a "Delay"):
1. Lessee's failure to furnish information or to respond to any
request by Lessor for any approval or information within any
time period prescribed or, if no time period is prescribed,
then within two (2) Business Days of such request; or
2. Lessee's insistence on materials, finishes or installations
that have long lead times after having first been informed
by Lessor that such materials, finishes or installations
will cause a Delay; or
3. Changes in any plans and specifications; or
4. The performance by a person or entity employed by Lessee in
the completion of any work (all such work and such persons
or entities being subject to the prior approval of Lessor);
or
5. Any request by Lessee that Lessor delay the completion of
any of the Lessor's work; or
6. Any breach or default by Lessee in the performance of
Lessee's obligations under this Amendment or the Lease; or
7. Any delay resulting from Lessee's having taken possession of
the Expansion Space for any reason prior to substantial
completion of the Lessor's work; or
8. Any other delay chargeable to Lessee, its agents, employees
or independent contractors;
then, for the purposes of determining the Expansion Effective
Date, the date of substantial completion shall be deemed to be
the day that said Lessor's work would have been substantially
completed absent any such Delay(s). The Expansion Space shall be
deemed to be substantially completed on the date that Lessor
reasonably determines that all Lessor's work has been performed
(or would have been performed absent of any Delays), other than
any details of construction, mechanical adjustment or any other
matter, the noncompletion of which does not materially interfere
with Lessee's use of the Expansion Space. The adjustment of the
Expansion Effective date and, accordingly, the postponement of
Lessee's obligation to pay Rent on the
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Expansion Space, shall be Lessee's sole remedy and shall
constitute full settlement of all claims that Lessee might
otherwise have against Lessor by reason of the Expansion Space
not being ready for occupancy by Lessee on the Target Expansion
Effective Date.
B. In addition to the postponement, if any, of the Expansion
Effective Date as a result of the applicability of Paragraph I.A.
of this Amendment, the Expansion Effective Date shall be delayed
to the extent that Lessor fails to deliver possession of the
Expansion Space for any other reason (other than Delays by
Lessee), including but not limited to, holding over by prior
occupants. Any such delay in the Expansion Effective Date shall
not subject Lessor to any liability for any loss or damage
resulting therefrom. If the Expansion Effective Date is delayed,
the Termination Date under the Lease shall not be similarly
extended.
II. EXTENSION. The Lease Term is hereby extended for a period of
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fifty-eight (58) months and thirteen (13) days and shall expire on
December 31, 2004 ("Extended Termination Date"), unless sooner
terminated in accordance with the terms of the Lease. That portion of
the Lease Term commencing the day immediately following the Prior
Termination Date ("Extension Date") and ending on the Extended
Termination Date shall be referred to herein as the "Extended Term".
III. ORIGINAL PREMISES BASE MONTHLY RENT.
-----------------------------------
A. Original Premises up to the Prior Termination Date. The Base
Monthly Rent, Additional Rent and all other charges under the
Lease shall be payable as provided therein with respect to the
Original Premises through and including the day prior to the
Prior Termination Date.
B. Original Premises From and After Extension Date. As of the
Extension Date, the schedule of monthly installments of Base
Monthly Rent payable with respect to the Original Premises from
and after the Extension Date is the following:
Lessee shall pay Lessor the sum of Three Hundred Twenty-Seven
Thousand Four Hundred Fourteen and 62/100's Dollars ($327,414.62)
in fifty-nine (59) installments as follows:
1. One (1) installment of $2,600.12 payable for the period from
February 16, 2000 to February 28, 2000.
2. Fifty-Eight (58) equal installments of $5,600.25 each
payable on or before the first day of each month during the
period beginning March 1, 2000 and ending December 31, 2004.
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All such Base Monthly Rent shall be payable by Lessee in
accordance with the terms of Paragraph V hereof.
IV. EXPANSION SPACE BASE MONTHLY RENT.
---------------------------------
A. As of the Expansion Effective Date and in addition to the
Original Premises Base Monthly Rent, the schedule of monthly
installments of Base Monthly Rent payable with respect to the
Expansion Space from and after the Expansion Effective Date is
the following:
Lessee shall pay Lessor the sum of One Hundred Fifty-One Thousand
Eighty-Two and 97/100 Dollars ($151,082.97) as Base Monthly Rent
for the Expansion Space for the Extended Term in sixty-one (61)
monthly installments as follows:
1. Sixty-One (61) equal installments of $2,476.77 each payable
for the period from December 1, 1999 to December 31, 2004;
Lessor and Lessee acknowledge that the foregoing schedule is
based on the assumption that the Expansion Effective Date is the
Target Expansion Effective Date. If the Expansion Effective Date
is postponed, the beginning date set forth above with respect to
the payment of any installment(s) of Base Monthly Rent shall be
appropriately adjusted on a per diem basis and set forth in a
confirmation letter to be prepared by Lessor. All such Base
Monthly Rent shall be payable by Lessee in accordance with the
terms of Paragraph VI hereof.
V. ORIGINAL PREMISES ADDITIONAL RENT Effective as of the Extension Date,
---------------------------------
Exhibit A "ADDITIONAL RENT" of the Lease is deleted in its entirety
and the following shall be in effect for the Original Premises for the
Extended Term:
A. With the lease year commencing January 1, 2000, Lessee shall pay
to Lessor as additional rent the amount (the "Excess") by which
the sum of the Lessee's Pro Rata Share of (1) the Taxes
(hereinafter defined) for the applicable calendar year and (2)
the Expenses (hereinafter defined) for the applicable calendar
year exceeds $6.50 per rentable square foot (the "Expense Stop");
provided Lessee shall not be entitled to a credit of Lessee's Pro
Rata Share is less than $6.50 per rentable square foot. For
purposes hereof,
(i) "Expenses" shall mean all Basic Costs (as hereinafter
defined but excluding Taxes and all janitorial costs
except those associated with the common areas of the
Building, and
(ii) "Lessee's Pro Rata Share" for the Original Premises means
2.08%
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As soon as is practical following the end of each calendar year,
commencing December 31, 2000, Lessor shall furnish to Lessee a
statement (the "Annual Statement") of Lessor's actual Basic Costs
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.
B. Basic Costs shall mean all costs and expenses paid or incurred in
each calendar year in connection with operating, maintaining,
repairing, managing and owning the Building and the Property,
including, but not limited to, the following:
1. All labor costs for all persons performing services required
or utilized in connection with the operation, repair,
replacement and maintenance of and control of access to the
Building and the Property, including, but not limited to,
amounts incurred for wages, salaries and other compensation
for services, payroll, social security, insurance, uniforms,
training, disability benefits, pensions, hospitalization,
retirement plans, group insurance or any other similar or
like expenses or benefits.
2. All management fees, the cost of equipping and maintaining a
management office at the Building, accounting services,
legal fees not attributable to leasing and collection
activity, and all other administrative costs relating to the
Building and the Property. If management services are not
provided by a third party, Lessor shall be entitled to a
management fee comparable to that due and payable to third
parties provided Lessor or management companies owned by, or
management divisions of, Lessor perform actual management
services of a comparable nature and type as normally would
be performed by third parties.
3. All rental and/or purchase costs of materials, supplies,
tools and equipment used in the operation, repair,
replacement, and maintenance and the control of access to
the Building and the Property.
4. All amounts charged to Lessor by contractors and/or
suppliers for services, replacement parts, components,
materials, equipment and supplies furnished in connection
with the operation, repair, maintenance, replacement of and
control of access to any part of the Building, or Property
generally, including the heating, air conditioning,
ventilating, plumbing, electrical, elevator and other
systems and equipment. At Lessor's option, major repair
items may be amortized over a period of up to five (5)
years.
5. All premiums and deductibles paid by Lessor for fire and
extended coverage insurance, earthquake and extended
coverage insurance, liability and extended coverage
insurance, rental loss insurance, elevator insurance, boiler
insurance
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and other insurance customarily carried from time to time by
lessors of comparable office buildings or required to be
carried by Lessor's Mortgagee.
6. Charges for all utilities, including, but not limited to,
water, electricity, gas and sewer, but excluding those
charges for which Lessor is otherwise reimbursed by lessees.
7. "Taxes," which for purposes hereof, shall mean: (a) all real
estate taxes and assessments on the Property, the Building
or the Premises, and taxes and assessments levied in
substitution of supplementation in whole or in part of such
taxes, (b) all personal property taxes for the Building's
personal property, including license expense, (c) all taxes
imposed on services of Lessor's agents and employees, (d)
all costs and fees incurred in connection with seeking
reductions in or refunds in Taxes including, without
limitations, any costs incurred by Lessor to challenge the
tax valuation of the Building, but excluding income taxes.
For the purpose of determining real estate taxes and
assessments for any given calendar year, the amount to be
included in Taxes for such year shall be as follows: (1)
with respect to any special assessment that is payable in
installments, Taxes for such year shall include the amount
of the installment (and any interest) due and payable during
such year; and (2) with respect to all other real estate
taxes, Taxes for such year shall, at Lessor's election,
include either the amount accrued, assessed or otherwise
imposed for such year or the amount due and payable for such
year, provided that Lessor's election shall be applied
consistently throughout the Lease Term. If a reduction in
Taxes is obtained for any year of the Lease Term during
which Lessee paid its Pro Rata Share of Basic Costs, then
Basic Costs for such year will be retroactively adjusted and
Lessor shall provide Lessee with a credit, if any, based
upon such adjustments. Likewise, if a reduction is
subsequently obtained for the tax component of Basic Costs,
Basic Costs shall be restated and the Excess for all
subsequent years recomputed. Lessee shall pay Lessor
Lessee's Pro Rata Share of any such increase in the Excess
within thirty (30) days after Lessee's receipt of a
statement therefor from Lessor.
8. All landscape expenses and costs of maintaining, repairing,
resurfacing and striping of the parking area and garages of
the Property, if any.
9. Cost of all maintenance service agreements, including those
for equipment, alarm service, window cleaning, drapery or
Venetian blind cleaning, janitorial services, pest control,
uniform supply, plant maintenance, landscaping, any parking
equipment and rubbish removal and/or disposal fees.
10. Cost of all other repairs, replacements and general
maintenance of the Property and Building, neither specified
above nor directly billed to lessees.
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11. The amortized cost of capital improvements made to the
Building or the Property which are: (a) primarily for the
purpose of reducing operating expense costs or otherwise
improving the operating efficiency of the Property or
Building; or (b) required to comply with any laws, rules or
regulations of any governmental authority or a requirement
of Lessor's insurance carrier. The cost of such capital
improvement shall be amortized over a period of five (5)
years and shall, at Lessor's option, include interest at a
rate that is reasonably equivalent to the interest rate that
Lessor would be required to pay to finance the cost of the
capital improvement in question as of the date such capital
improvement is performed, provided if the payback period of
any capital improvement is less than five (5) years, Lessor
may amortize the cost of such capital improvement over the
payback period.
12. Any other expense or charge of any nature whatsoever which,
in accordance with general industry practice with respect to
the operation of a first-class office building, would be
construed as an operating expense.
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
percent (95%) of the total Rentable Area of the Building at
any time during any calendar year of the Lease Term, actual
Basic Costs 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.
C. If Basic Costs for any calendar year increase by more than five
percent (5%) over Basic Costs for the immediately preceding
calendar year, Lessee, within ninety (90) days after receiving
the Annual Statement for a particular calendar year, shall have
the right to provide Lessor with written notice (the "Review
Notice") of its intent to review Lessor's books and records
relating to the Basic Costs for such calendar year. Within a
reasonable time after receipt of a timely Review Notice, Lessor
shall make such books and records available to Lessee or Lessee's
agent for its review at either Lessor's home office or the office
of the Building, provided that if Lessee retains an agent to
review Lessor's books and records for any calendar year, such
agent must be CPA firm licensed to do business in the state in
which the Building is located. If Lessee fails to give Lessor
written notice of objection within thirty (30) days after its
review or fails to provide Lessor with a Review Notice within the
ninety (90) day period provided above, Lessee shall be deemed to
have approved Lessor's Annual Statement in all respects and shall
thereafter be barred from raising any claims with respect
thereto. Any information obtained by Lessee pursuant to the
provisions of this Section shall be treated as confidential.
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VI. EXPANSION SPACE ADDITIONAL RENT Effective as of the Expansion
-------------------------------
Effective Date, Lessee shall pay to Lessor Additional Rent for the
Expansion Space for the Extended Term in accordance with the
following:
A. With the lease year commencing January 1, 2000, Lessee shall pay
to Lessor as additional rent the amount (the "Excess") by which
the sum of the Lessee's Pro Rata Share of (1) the Taxes
(hereinafter defined) for the applicable calendar year and (2)
the Expenses (hereinafter defined) for the applicable calendar
year exceeds $6.70 per rentable square foot (the "Expense Stop");
provided Lessee shall not be entitled to a credit of Lessee's Pro
Rata Share is less than $6.70 per rentable square foot. For
purposes hereof,
(i) "Expenses" shall mean all Basic Costs (as hereinafter
defined but excluding Taxes), and
(ii) "Lessee's Pro Rata Share" for the Expansion Space means
.765%
As soon as is practical following the end of each calendar year,
commencing December 31, 2000, Lessor shall furnish to Lessee a
statement (the "Annual Statement") of Lessor's actual Basic Costs
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 Lessor, as additional rent, the Excess
stated in the Annual Statement.
B. Basic Costs shall mean all costs and expenses paid or incurred in
each calendar year in connection with operating, maintaining,
repairing, managing and owning the Building and the Property,
including, but not limited to, the following:
1. All labor costs for all persons performing services required
or utilized in connection with the operation, repair,
replacement and maintenance of and control of access to the
Building and the Property, including, but not limited to,
amounts incurred for wages, salaries and other compensation
for services, payroll, social security, insurance, uniforms,
training, disability benefits, pensions, hospitalization,
retirement plans, group insurance or any other similar or
like expenses or benefits.
2. All management fees, the cost of equipping and maintaining a
management office at the Building, accounting services,
legal fees not attributable to leasing and collection
activity, and all other administrative costs relating to the
Building and the Property. If management services are not
provided by a third party, Lessor shall be entitled to a
management fee comparable to that due and payable to third
parties provided Lessor or management companies owned by, or
management division of, Lessor perform actual management
8
services of a comparable nature and type as normally would
be performed by third parties.
3. All rental and/or purchase costs of materials, supplies,
tools and equipment used in the operation, repair,
replacement, and maintenance and the control of access to
the Building and the Property.
4. All amounts charged to Lessor by contractors and/or
suppliers for services, replacement parts, components,
materials, equipment and supplies furnished in connection
with the operation, repair, maintenance, replacement of and
control of access to any part of the Building, or Property
generally, including the heating, air conditioning,
ventilating, plumbing, electrical, elevator and other
systems and equipment. At Lessor's option, major repair
items may be amortized over a period of up to five (5)
years.
5. All premiums and deductibles paid by Lessor for fire and
extended coverage insurance, earthquake and extended
coverage insurance, liability and extended coverage
insurance, rental loss insurance, elevator insurance, boiler
insurance and other insurance customarily carried from time
to time by lessors of comparable office buildings or
required to be carried by Lessor's Mortgagee.
6. Charges for all utilities, including, but not limited to,
water, electricity, gas and sewer, but excluding those
charges for which Lessor is otherwise reimbursed by Lessees.
7. "Taxes," which for purposes hereof, shall mean: (a) all real
estate taxes and assessments on the Property, the Building
or the Premises, and taxes and assessments levied in
substitution of supplementation in whole or in part of such
taxes, (b) all personal property taxes for the Building's
personal property, including license expense, (c) all taxes
imposed on services of Lessor's agents and employees, (d)
all costs and fees incurred in connection with seeking
reductions in or refunds in Taxes including, without
limitations, any costs incurred by Lessor to challenge the
tax valuation of the Building, but excluding income taxes.
For the purpose of determining real estate taxes and
assessments for any given calendar year, the amount to be
included in Taxes for such year shall be as follows: (1)
with respect to any special assessment that is payable in
installments, Taxes for such year shall include the amount
of the installment (and any interest) due and payable during
such year; and (2) with respect to all other real estate
taxes, Taxes for such year shall, at Lessor's election,
include either the amount accrued, assessed or otherwise
imposed for such year or the amount due and payable for such
year, provided that Lessor's election shall be applied
consistently throughout the Lease Term. If a reduction in
Taxes is obtained for any year of the Lease Term during
which Lessee paid its Pro Rata Share of Basic Costs, then
Basic
9
Costs for such year will be retroactively adjusted and
Lessor shall provide Lessee with a credit, if any, based
upon such adjustments. Likewise, if a reduction is
subsequently obtained for the tax component of Basic Costs,
Basic Costs shall be restated and the Excess for all
subsequent years recomputed. Lessee shall pay Lessor
Lessee's Pro Rata Share of any such increase in the Excess
within thirty (30) days after Lessee's receipt of a
statement therefor from Lessor.
8. All landscape expenses and costs of maintaining, repairing,
resurfacing and striping of the parking area and garages of
the Property, if any.
9. Cost of all maintenance service agreements, including those
for equipment, alarm service, window cleaning, drapery or
Venetian blind cleaning, janitorial services, pest control,
uniform supply, plant maintenance, landscaping, any parking
equipment and rubbish removal and/or disposal fees.
10. Cost of all other repairs, replacements and general
maintenance of the Property and Building, neither specified
above nor directly billed to lessees.
11. The amortized cost of capital improvements made to the
Building or the Property which are: (a) primarily for the
purpose of reducing operating expense costs or otherwise
improving the operating efficiency of the Property or
Building; or (b) required to comply with any laws, rules or
regulations of any governmental authority or a requirement
of Lessor's insurance carrier. The cost of such capital
improvement shall be amortized over a period of five (5)
years and shall, at Lessor's option, include interest at a
rate that is reasonably equivalent to the interest rate that
Lessor would be required to pay to finance the cost of the
capital improvement in question as of the date such capital
improvement is performed, provided if the payback period of
any capital improvement is less than five (5) years, Lessor
may amortize the cost of such capital improvement over the
payback period.
12. Any other expense or charge of any nature whatsoever which,
in accordance with general industry practice with respect to
the operation of a first-class office building, would be
construed as an operating expense.
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
percent (95%) of the total Rentable Area of the Building at
any time during any calendar year of the Lease Term, actual
Basic Costs 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.
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C. If Basic Costs for any calendar year increase by more than five
percent (5%) over Basic Costs for the immediately preceding
calendar year, Lessee, within ninety (90) days after receiving
the Annual Statement for a particular calendar year, shall have
the right to provide Lessor with written notice (the "Review
Notice") of its intent to review Lessor's books and records
relating to the Basic Costs for such calendar year. Within a
reasonable time after receipt of a timely Review Notice, Lessor
shall make such books and records available to Lessee or Lessee's
agent for its review at either Lessor's home office or the office
of the Building, provided that if Lessee retains an agent to
review Lessor's books and records for any calendar year, such
agent must be CPA firm licensed to do business in the state in
which the Building is located. If Lessee fails to give Lessor
written notice of objection within thirty (30) days after its
review or fails to provide Lessor with a Review Notice within the
ninety (90) day period provided above, Lessee shall be deemed to
have approved Lessor's Annual Statement in all respects and shall
thereafter be barred from raising any claims with respect
thereto. Any information obtained by Lessee pursuant to the
provisions of this Section shall be treated as confidential.
VII. IMPROVEMENTS TO EXPANSION SPACE.
-------------------------------
A. Condition of Expansion Space. Lessee has inspected the Expansion
Space and agrees to accept the same "as is" without any
agreements, representations, understandings or obligations on the
part of the Lessor 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 Lessee is not
in default, Lessee shall be entitled to receive an improvement
allowance (the "Expansion Improvement Allowance") in an amount
not to exceed Twelve Thousand Nine Hundred Sixteen and no/100
Dollars ($12,916.00) (i.e., $7.06 per rentable square foot of the
Expansion Space) 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. In the
event the total cost of the initial improvements to the Expansion
Space exceeds the Expansion Improvement Allowance, Lessee shall
pay for such excess upon demand. The entire unused balance of the
Expansion Improvement Allowance, if any, shall accrue to the sole
benefit of Lessor. Lessor 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. Lessor shall
enter into a direct contract for the initial improvements to the
Expansion Space with a general contractor selected by Lessor.
Lessee shall devote such time in consultation with Lessor or
Lessor's architect as may be required to provide all information
Lessor
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deems necessary in order to enable Lessor to complete, and obtain
Lessee's written approval of, the plans for the initial
improvements to the Expansion Space in a timely manner. All plans
for the initial improvements to the Expansion Space shall be
subject to Lessor's consent, which consent shall not be
unreasonably withheld. If the cost of such improvements exceeds
the Expansion Improvement Allowance, then prior to commencing any
construction of improvements to the Expansion Space, Lessor shall
submit to Lessee 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, Lessee shall either notify Lessor 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 Lessee notifies Lessor of such
objections and desired changes, Lessee shall work with Lessor to
reach a mutually acceptable alternative cost estimate.
VIII. EARLY ACCESS TO EXPANSION SPACE. During any period that Lessee shall
-------------------------------
be permitted to enter the Expansion Space prior to the Expansion
Effective Date (e.g., to perform alterations or improvements, if any),
Lessee 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 Lessee takes possession of the
Expansion Space prior to the Expansion Effective Date for any reason
whatsoever (other than the performance of the work in the Expansion
Space with Lessor's prior approval), such possession shall be subject
to all the terms and conditions of the Lease and this Amendment, and
Lessee shall pay Base Rental and Additional Base Rental as applicable
to the Expansion Space to Lessor on a per diem basis for each day of
occupancy prior to the Expansion Effective Date.
IX. OTHER PERTINENT PROVISIONS. Lessor and Lessee agree that, effective as
--------------------------
of the date hereof (unless different effective date(s) is/are
specifically referenced in this Section), the Lease shall be amended
in the following additional respects:
A. ARTICLE 29, "Notices" of the Lease shall be modified and amended
by deleting the section containing the address for Lessor and
substituting the following therefor:
"Lessor
EOP-Summit Limited Partnership
c/o Equity Office Properties Trust
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
With a copy to Lessor:
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c/o Equity Office Properties Trust
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Regional Counsel - Southwest Region
Payment of Rent only shall be made payable to:
Equity Office Properties
at the following address:
Equity Office Properties, L.L.C.
d/b/a Xxxxxx Xxxxxx Xxxx
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000-0000"
B. Effective as of the Expansion Effective Date and subject to the
terms and conditions of ARTICLE C.l.E. of the Second Amendment,
Lessee agrees to lease from Lessor and Lessor agrees to lease to
Lessee a total of two (2) additional covered, reserved Spaces and
four (4) unreserved surface Spaces (the "Additional Spaces") in
the Parking Area.
C. Effective as of the Expansion Effective Date, ARTICLE C.ll. of
the Second Amendment "Suite 634 Rights" shall be deleted in its
entirety, and shall be of no further force and effect.
X. 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.
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, unless specifically set forth in this Amendment.
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 Lessor is not an offer to enter
into this Amendment but rather is a solicitation for such an
offer by Lessee. Lessor shall not
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be bound by this Amendment until Lessor has executed and
delivered the same to Lessee.
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. Lessee hereby represents to Lessor that Lessee has dealt with no
broker other than Xxxxx Xxxxx & Xxxxxx in connection with this
Amendment. 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
other than Xxxxx Xxxxx & Xxxxxx claiming to have represented
Lessee in connection with this Amendment. Lessor hereby
represents to Lessee that Lessor has dealt with no broker other
than the Xxxxxxx X. Xxxxxx Co. in connection with this 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 other than the
Xxxxxxx X. Xxxxxx Co. claiming to have represented Lessor in
connection with this Third Amendment.
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IN WITNESS WHEREOF, Lessor and Lessee have duly executed this Amendment as
of the day and year first above written.
WITNESSES; ATTESTATION 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
general partner
By: /s/ Xxxx Xxxxxx
-----------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Vice-President- Leasing
-----------------------
LESSEE: SUMMIT BANCSHARES, INC.
By: /s/ Xxx X. Xxxxx
--------------------------------------
Name: Xxx X. Xxxxx
--------------------------------------
Title: Executive Vice President
--------------------------------------
15
EXHIBIT A
EXPANSION SPACE
This Exhibit is attached to and made a part of the lease dated as of the
22nd October, 1999, by and between EOP SUMMIT LIMITED PARTNERSHIP, a Delaware
limited partnership ("LESSOR") and SUMMIT BANCSHARES, INC. ("LESSEE") for space
in the Building located at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxx.
1300 SUMMIT OFFICE PARK
Tenant Name: Summit Bancshares, Inc.
Suite Number: 634
Square Feet: 1,829 rentable
IN WITNESS WHEREOF, LESSOR AND LESSEE have entered into this Lease as of
the date first written above.
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 general partner
By: /s/ Xxxx Xxxxxx
------------------------
Name: Xxxx Xxxxxx
------------------------
Title: Vice-President- Leasing
------------------------
LESSEE: SUMMIT BANCSHARES, INC.
By: /s/ Xxx X. Xxxxx
-------------------------
Name: Xxx X. Xxxxx
-------------------------
Title: Executive Vice President
-------------------------
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