FIFTH AMENDMENT TO LEASE AGREEMENT
THIS FIFTH AMENDMENT TO LEASE AGREEMENT (this "Amendment")
is entered into as of the 16th day of January, 1996, by and
between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey
corporation ("Landlord") and AMERICAN HALLMARK INSURANCE COMPANY
OF TEXAS, a Texas corporation ("Tenant").
WHEREAS, pursuant to that certain Office Lease Agreement
dated September 12, 1994, by and between Landlord and Tenant, as
amended by that certain First Amendment to Lease Agreement dated
as of October 10, 1994, that certain Second Amendment to Lease
dated as of May 25, 1995, that certain Third Amendment of Lease
(the "Third Amendment") dated as of June 12, 1995 and that
certain Fourth Amendment to Office Lease (the "Fourth Amendment")
dated as of August 11, 1995 (such Office Lease Agreement, as
amended, herein called the "Lease"), Landlord leased to Tenant
certain space (the "Premises") in the building known as The
Princeton (the "Building") more particularly described therein;
WHEREAS, after termination of the lease term for the
Expanded Premises (as defined in the Fourth Amendment), the
Premises (excluding the Storage Premises [as defined in the Third
Amendment]) currently consist of 20,218 square feet of rentable
area on the ninth (9th) and second (2nd) floors of the Building;
WHEREAS, pursuant to Paragraph E of Rider 3 to the Lease,
Tenant has the right to lease certain space in the Building
described on Schedule A-1 to Rider 3 (the "Right of First Refusal
Space");
WHEREAS, Tenant has notified Landlord that it desires to
lease a portion of the Right of First Refusal Space known as
Suite 215, which suite contains 1,369 square feet of Agreed
Rentable Area and is shown on Exhibit A attached hereto (the
"Expansion Space"); and
WHEREAS, Landlord and Tenant desire to amend the Lease to
reflect their agreements as to the terms and conditions governing
Tenant's lease of the Expansion Space.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants between the parties herein contained, Landlord
and Tenant hereby agree as follows:
1. Premises. Item 2 of the Basic Lease Provisions is hereby
amended to read as follows:
Premises:
a. Suite #: 900, 205 and 215; Floors: ninth and second.
b. Agreed Rentable Area: 21,587.
2. Basic Rent. Item 3 of the Basic Lease Provisions is hereby
amended to read as follows:
Basic Rent (See Article 2, Supplemental Lease Provisions):
With respect to Suites 900 and 205 the Basic Rent shall be
as follows:
Rate Per Square Basic Basic
Rental Foot of Agreed Annual Monthly
Period Rentable Area Rent Rent
7-22-95 xx 00-00-00 $11.75 $237,561.50 $19,796.79
1-1-96 xx 00-00-00 $12.25 $247,670.50 $20,639.21
1-1-97 xx 00-00-00 $12.50 $252,725.00 $21,060.42
1-1-98 xx 00-00-00 $12.75 $257,779.50 $21,481.63
1-1-99 xx 00-00-00 $13.25 $267,888.50 $22,324.04
1-1-00 xx 00-00-00 $13.50 $272,943.00 $22,745.25
With respect to Suite 215, the Basic Rent shall be as
follows:
Rate Per Square Basic Basic
Rental Foot of Agreed Annual Monthly
Period Rentable Area Rent Rent
1-16-96 xx 00-00-00 $12.25 $16,770.25 $1,397.52
1-1-97 xx 00-00-00 $12.50 $17,112.50 $1,426.04
1-1-98 xx 00-00-00 $12.75 $17,454.75 $1,454.56
1-1-99 xx 00-00-00 $13.25 $18,139.25 $1,511.60
1-1-00 xx 00-00-00 $13.50 $18,481.50 $1,540.13
With respect to Suite 328B (the Storage Premises), the
monthly rent shall be $504.00.
3. Tenant's Pro Rata Percentage. Item 4 of the Basis Lease
Provisions is hereby amended to read as follows:
Tenant's Pro Rata Share Percentage: 5.81502% (the Agreed
Rentable Area of the Premises divided by the Agreed Rentable
Area of the Building, expressed in a percentage).
4. Amendment of Exhibit A. Exhibit A attached hereto shall be
added to and made a part of Exhibit A attached to the Lease.
5. Delivery of Expansion Space. Landlord delivers the
Expansion Space to Tenant on the date hereof in "AS IS"
condition.
6. Tenant's Improvements. Landlord shall construct
improvements in the Expansion Space subject to and in accordance
with the terms and conditions of the Work Letter attached hereto
as Exhibit B.
7. Acceptance of Expansion Space. Tenant hereby accepts the
Expansion Space for all purposes. Upon Substantial Completion of
the improvements in the Expansion Space, Landlord and Tenant
shall execute the Acceptance of Premises Memorandum substantially
in the form of the Acceptance of Premises Memorandum executed in
connection with the Lease.
8. Parking. Paragraph 1 of Exhibit F to the Lease is hereby
amended to read as follows:
Parking Spaces. So long as the Lease remains in effect,
Tenant or persons designated by Tenant shall have the right
(but not the obligation) to rent in the Garage on (i) a
reserved basis up to five (5) parking spaces in the Garage
during the term of this Lease and (ii) an unreserved and
non-exclusive basis up to sixty (60) parking spaces in the
Garage during the term of this Lease. Each capitalized term
not defined herein shall have the meaning assigned to it in
the Supplemental Lease Provisions.
9. No Brokers. Tenant warrants that it has had no dealings
with any real estate broker or agent in connection with the
negotiation of this Amendment and that it knows of no real estate
brokers or agents who are or might be entitled to a commission in
connection with this Amendment or otherwise in connection with
the Lease. Tenant agrees to indemnify and hold harmless Landlord
from and against any liability or claim arising in respect to
brokers or agents.
10. Authority. Tenant and each person signing this Amendment on
behalf of Tenant represents to Landlord as follows: (i) Tenant is
a duly incorporated and validly existing under the laws of the
State of Texas, (ii) Tenant has and is qualified to do business
in Texas, (iii) Tenant has the full right and authority to enter
into this Amendment, and (iv) each person signing on behalf of
Tenant was and continues to be authorized to do so.
11. Defined Terms. All terms not otherwise defined herein shall
have the same meaning as assigned to them in the Lease. Except
as amended hereby, the Lease shall remain in full force and
effect in accordance with its terms and is hereby ratified. In
the event of a conflict between the Lease and this Amendment,
this Amendment shall control.
12. Exhibits. Each Exhibit attached hereto is made a part
hereof for all purposes.
13. No Representations. Landlord and Landlord's agents have
made no representations or promises, express or implied, in
connection with the Expansion Space or this Amendment except as
expressly set forth herein.
14. Entire Agreement. This Amendment, together with the Lease,
contains all of the agreements of the parties hereto with respect
to any matter covered or mentioned in this Amendment or the
Lease, and no prior agreement, understanding or representation
pertaining to any such matter shall be effective for any purpose.
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written.
LANDLORD
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation
By: Xxxxx Realty Corporation, its duly
authorized agent
By:
Name: Xxxxxxx Xxxxxx
Title: President
TENANT
AMERICAN HALLMARK INSURANCE
COMPANY OF TEXAS, a Texas corporation
By:
Name: Xxxxxxx Xxxxxxx
Title: Secretary/Director
EXHIBIT B
WORK LETTER
PLANS TO BE AGREED UPON/FINISH ALLOWANCE
This Exhibit is attached to and a part of that certain Fifth
Amendment to Lease Agreement (the "Amendment") dated as of
January 16, 1996, executed by and between THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, a New Jersey corporation
("Landlord"), and AMERICAN HALLMARK INSURANCE COMPANY OF TEXAS, a
Texas corporation ("Tenant"). Any capitalized term used but not
defined herein shall have the meaning assigned to it in the Lease
(as defined in the Amendment). Landlord and Tenant mutually
agree as follows:
1. Plans.
1.1 Space Plan. Upon Landlord's receipt of written notice (the
"Refurbishment Notice") from Tenant stating that Tenant desires
to refurbish the Expansion Space, which Refurbishment Notice must
be received by Landlord on or before 5:00 p.m. November 1, 1996,
Landlord's designated space planner, at Tenant's expense, will
prepare and deliver to Tenant a space plan for the Expansion
Space showing the location of all partitions and doors and the
lay-out of the Expansion Premises. Tenant will at all times
cooperate with Landlord's space planner, furnishing all
reasonable information and material concerning Tenant's
organization, staffing, growth expectations, physical facility
needs (including, without limitation, needs arising by reason of
the Disability Acts), equipment, inventory, etc., necessary for
the space planner to efficiently and expeditiously arrive at an
acceptable lay-out of the Expansion Space. Tenant will approve
or disapprove in writing the space plan within three (3) business
days after receipt from Landlord and if disapproved, Tenant shall
provide Landlord and Landlord's space planner with specific
reasons for disapproval. If Tenant fails to approve or
disapprove the space plan on or before the end of such three (3)
business day period, Tenant shall be deemed to have approved the
last submitted space plan. The foregoing process shall be
repeated until Tenant has approved (which shall include deemed
approval) the space plan (such space plan, when approved by
Landlord and Tenant, is herein referred to as the "Space Plan").
In the event Tenant fails to deliver the Refurbishment Notice to
Landlord on or before 5:00 p.m. November 1, 1996, Landlord shall
have no obligation under this Work Letter. Without limiting the
foregoing, in the event Landlord does not receive the
Refurbishment Notice on or before 5:00 p.m. November 1, 1996,
Landlord shall have no obligation to construct improvements in
the Expansion Space and shall have no obligation to pay the
Expansion Space Finish Allowance.
1.2 Compliance With Disability Acts. Tenant shall promptly
provide Landlord and Landlord's space planner and/or architect as
applicable, with all information needed to cause the construction
of Tenant's Improvements to be completed such that Tenant, the
Expansion Space and Tenant's Improvements (as constructed) will
be in compliance with the Disability Acts. TENANT SHALL BE
RESPONSIBLE FOR AND SHALL INDEMNIFY AND HOLD HARMLESS LANDLORD
FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES AND EXPENSES
(INCLUDING, WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES AND
EXPENSES) INCURRED BY OR ASSERTED AGAINST LANDLORD BY REASON OF
OR IN CONNECTION WITH ANY VIOLATION OF THE DISABILITY ACTS
ARISING FROM OR OUT OF (x) information or design and space plans
furnished to Landlord by Tenant (or the lack of complete and
accurate information so furnished) concerning Tenant's
Improvements, (y) Tenant's employer-employee obligations, or (z)
violations by Tenant and/or Tenant's Improvements or the
Expansion Space not being in compliance with the Disability Acts
(i.e., Tenant shall be solely responsible for and indemnify
Landlord in the event the Expansion Space is not in compliance
with the Disability Acts during Tenant's occupancy of the
Expansion Space prior to Landlord's construction of the Tenant's
Improvements). The foregoing indemnity shall not include any
claims, liabilities or expenses (including reasonable attorneys'
fees and expenses) arising out of the negligence or gross
negligence of Landlord or Landlord's employees, agents or
contractors. Without limiting the foregoing, if Landlord
constructs Tenant's Improvements based on any special
requirements or improvements required by Tenant, or upon
information furnished by Tenant that later proves to be
inaccurate or incomplete resulting in any violation of the
Disability Acts, Tenant shall be solely liable to correct such
violations and to bring the improvements into compliance with the
Disability Acts as promptly as is practicable.
1.3 Construction Plans. Landlord's space planner and engineer,
at Tenant's expense, will prepare construction plans (such
construction plans, when approved, and all changes and amendments
thereto agreed to by Landlord and Tenant in writing, are herein
called the "Construction Plans") for all of Tenant's improvements
in the Expansion Space requested pursuant to the Space Plan (all
improvements required by the Construction Plans are herein called
"Tenant's Improvements"), including complete detail and finish
drawings for partitions, doors, reflected ceiling, telephone
outlets, electrical switches and outlets and Building standard
heating, ventilation and air conditioning equipment and controls.
Within three (3) business days after construction plans are
delivered to Tenant, Tenant shall approve (which approval shall
not be unreasonably withheld) or disapprove same in writing and
if disapproved, Tenant shall provide Landlord and Landlord's
space planner and engineer specific reasons for disapproval.
Within five (5) business days after receipt of such specific
reasons for disapproval, Landlord's space planner and engineer
shall deliver revised Construction Plans to Tenant. The
foregoing process shall continue until the construction plans are
approved by Tenant; provided that if Tenant fails to respond in
any three (3) business day period, Tenant shall be deemed to have
approved the last submitted construction plans. If the
construction plans are not approved in writing by both Landlord
and Tenant on or before fifteen (15) business days after Landlord
delivers the initial construction plans to Tenant, Landlord shall
be entitled to terminate Landlord's obligations under this Work
Letter by delivering written notice of such termination to
Tenant.
1.4 Changes to Approved Plans. If any re-drawing or re-drafting
of either the Space Plan or the Construction Plans is
necessitated by Tenant's requested changes (all of which shall be
subject to approval by Landlord and, if applicable, the Texas
Department of Licensing & Regulation and any other governmental
agency or authority to which the plans and specifications are
required to be submitted), the expense of any such re-drawing or
re-drafting required in connection therewith and the expense of
any work and improvements necessitated by such re-drawing or
re-drafting will be charged to Tenant.
1.5 Coordination of Planners and Designers. If Tenant shall
arrange for interior design services, whether with Landlord's
space planner or any other planner or designer, it shall be
Tenant's responsibility to cause necessary coordination of its
agents' efforts with Landlord's agents to ensure that no delays
are caused to either the planning or construction of the Tenant's
Improvements.
2. Construction and Costs of Tenant's Improvements.
2.1 Construction Obligation and Expansion Space Finish
Allowance. Landlord agrees to construct Tenant's Improvements,
at Tenant's cost and expense; provided, however, Landlord shall
provide Tenant with an allowance up to $7,627.06 (the "Expansion
Space Finish Allowance"), which allowance shall be disbursed by
Landlord, from time to time, for payment of (in the following
priority) (i) the contract sum required to be paid to the general
contractor engaged to construct Tenant's Improvements (in the
Expansion Space) (the "Contract Sum"), (ii) the fees of the
preparer of the Space Plan and the Construction Plans, (iii)
payment of the Construction Management Fee (hereinafter defined),
and (iv) fees for asbestos testing in the Expansion Space (the
foregoing costs are collectively referred to as the "Permitted
Costs"). In consideration of Landlord administering the
construction of Tenant's Improvements, Tenant agrees to pay
Landlord a fee equal to five percent (5%) of the Contract Sum to
construct Tenant's Improvements in the Expansion Space (the
"Construction Management Fee"). In the event any portion of the
Expansion Space Finish Allowance remains unexpended after payment
of the Permitted Costs, such unexpended portion of the Expansion
Space Finish Allowance shall be the property of Landlord.
2.2 Excess Costs. If the sum of the Permitted Costs exceeds the
Expansion Space Finish Allowance, then Tenant shall pay all such
excess costs ("Excess Costs"), provided, however, Landlord will,
prior to the commencement of construction of Tenant's
Improvements, advise Tenant of the Excess Costs, if any, and the
Contract Sum. Tenant shall have two (2) business days from and
after the receipt of such advice within which to approve or
disapprove the Contract Sum and Excess Costs. If Tenant fails to
approve same by the expiration of the second such business day,
then Tenant shall be deemed to have approved the proposed
Contract Sum and Excess Costs. If Tenant disapproves the
Contract Sum and Excess Costs within such two (2) business day
period, then Tenant shall reduce the scope of Tenant's
Improvements such that there shall be no Excess Costs. Landlord
and Tenant must approve (or be deemed to have approved) the
Contract Sum for the construction of Tenant's Improvements in
writing prior to the commencement of construction. If Tenant
fails to accept a Contract Sum within ten (10) business days
after Landlord advises Tenant of the Excess Costs, if any, then
Landlord shall be entitled to terminate Landlord's obligations
under this Work Letter by delivering written notice of such
termination to Tenant.
2.4 Liens Arising from Excess Costs. Tenant agrees to keep the
Premises (including the Expansion Space) free from any liens
arising out of nonpayment of Excess Costs. In the event that any
such lien is filed and Tenant, within ten (10) days following
such filing fails to cause same to be released of record by
payment or posting of a proper bond, Landlord shall have, in
addition to all other remedies provided herein and by law, the
right, but not the obligation, to cause the same to be released
by such means as it in its sole discretion deems proper,
including payment of or defense against the claim giving rise to
such lien. All sums paid by Landlord in connection therewith
shall constitute Rent under the Lease and a demand obligation of
Tenant to Landlord and such obligation shall bear interest at the
rate provided for in Section 15.10 of the Supplemental Lease
Provisions from the date of payment by Landlord until the date
paid by Tenant.
2.5 Construction Deposit. Tenant shall remit to Landlord an
amount (the "Prepayment") equal to the projected Excess Costs, if
any, within five (5) working days after commencement of
construction by Landlord. On or prior to the Substantial
Completion of Tenant's Improvements in the Expansion Space,
Tenant shall deliver to Landlord the actual Excess Costs, minus
the Prepayment previously paid. Failure by Tenant to timely
tender to Landlord the full Prepayment shall permit Landlord to
stop all work until the Prepayment is received. All sums due
Landlord under this Section 2.5 shall be considered Rent under
the terms of the Lease and nonpayment shall constitute a default
under the Lease and entitle Landlord to any and all remedies
specified in the Lease.
3. Substantial Completion and Punch List. The terms
"Substantial Completion" and "Substantially Complete," as
applicable, shall mean when Tenant's Improvements are
sufficiently completed in accordance with the Construction Plans
so that Tenant can reasonably use the Expansion Space for the
Permitted Use (as described in Item 12 of the Basic Lease
Provisions). When Landlord considers Tenant's Improvements to be
Substantially Complete, Landlord will notify Tenant and within
two (2) business days thereafter, Landlord's representative and
Tenant's representative shall conduct a walk-through of the
Expansion Space and identify any necessary touch-up work, repairs
and minor completion items as are necessary for final completion
of Tenant's Improvements. Neither Landlord's representative nor
Tenant's representative shall unreasonably withhold his agreement
on punch list items. Landlord will use reasonable efforts to
cause the contractor to complete all punch list items within
thirty (30) days after agreement thereon.
4. Construction Representatives. Landlord's and Tenant's
representatives for coordination of construction and approval of
change orders will be as follows, provided that either party may
change its representative upon written notice to the other:
LANDLORD'S REPRESENTATIVE:
NAME Xxxxx Xxxx
ADDRESS 000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
PHONE (000) 000-0000
TENANT'S REPRESENTATIVE:
NAME Xxxxxxx Xxxxxxx
ADDRESS 00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
PHONE (000) 000-0000
