EXHIBIT 10 (a)
TENTH AMENDMENT TO LEASE AGREEMENT
THIS TENTH AMENDMENT TO LEASE AGREEMENT (this "Amendment") is entered
into as of the ____ day of April, 2003, 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 to Lease Agreement dated as of June 12, 1995, that
certain Fourth Amendment to Lease Agreement dated as of August 11, 1995,
that certain Fifth Amendment to Lease Agreement dated as of January 16,
1996, that certain Sixth Amendment to Lease Agreement dated as of March 2,
1999, that certain Seventh Amendment to Lease Agreement dated as of June 7,
2000 (the "Seventh Amendment"), that certain Eighth Amendment to Lease
Agreement dated as of January 16, 2001 (the "Eighth Amendment"), and that
certain Ninth Amendment to Lease Agreement dated as of October 15, 2002
(such Office Lease Agreement, as amended, the "Lease"), Landlord currently
leases to Tenant certain space containing approximately 25,570 square feet
of Agreed Rentable Area (the "Current Premises") consisting of Xxxxx 000 xxx
Xxxxx 000 (collectively, the "First Floor Premises") and Xxxxx 000, Xxxxx
000, and Suite 900 (collectively, the "Second and Ninth Floor Premises") in
the building located at 00000 Xxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000 (the
"Building") and commonly known as The Princeton, as more particularly
described therein;
WHEREAS, the Term of the Lease currently expires on November 30, 2007
and Landlord and Tenant desire to extend the Term of the Lease for one (1)
additional year to expire on November 30, 2008;
WHEREAS, Landlord and Tenant desire to relocate Tenant from the Current
Premises to 25,559 square feet of Agreed Rentable Area known as Suite 400
containing 20,945 square feet of Agreed Rentable Area on the fourth (4th)
floor of the Building ("Suite 400") and Suite 405 containing 4,615 square
feet of Agreed Rentable Area on the fourth (4th) floor of the Building
("Suite 405"), each as shown on Exhibit A-2 attached hereto (collectively,
the "Relocated Premises"); and
WHEREAS, Landlord and Tenant desire to amend the Lease to reflect their
agreements as to the terms and conditions governing the relocation of the
Current Premises to the Relocated Premises.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants between the parties herein contained, Landlord and Tenant hereby
agree as follows:
1. Term. The Term of the Lease is hereby extended to November 30, 2008,
and the Expiration Date shall be amended to November 30, 2008. Accordingly,
Items 7 and 9 of the Basic Lease Provisions are hereby deleted in their
entireties and the following are substituted in lieu thereof:
7. Term: Approximately thirteen (13) years and eleven (11) months
(See Article 1, Supplemental Lease Provisions).
9. Expiration Date: November 30, 2008 (See Article 1, Supplemental
Lease Provisions).
2. Premises.
(a) Effective as of the Primary Relocation Date (hereinafter defined),
Suite 400 is hereby substituted for the Second and Ninth Floor Premises. As
used herein, the "Primary Relocation Date" means June 21, 2003. However,
Tenant shall have the right to occupy Suite 400 during the period from June
8, 2003 until the Primary Relocation Date (such period, the "Early Occupancy
Period"). Commencing upon Tenant's occupancy of Suite 400 and continuing
throughout the remaining Term of the Lease (as extended hereby), Suite 400
shall be subject to all the terms and conditions of the Lease except as
expressly modified herein; provided that Tenant shall not be required to pay
Rent with respect to Suite 400 during the Early Occupancy Period. Effective
as of the Primary Relocation Date, the Lease is terminated with respect to
the Second and Ninth Floor Premises, and the term "Premises" wherever used
in the Lease shall refer collectively to Suite 400 and the First Floor
Premises. Accordingly, effective as of the Primary Relocation Date, Item 2
of the Basic Lease Provisions shall be deleted in its entirety and the
following shall be substituted in lieu thereof:
2. Premises:
a. Suites #: 123, 125, and 400; Floors: a portion of the first
(1st) and fourth (4th) floors.
b. Agreed Rentable Area: 22,874 square feet.
Tenant shall vacate the Second and Ninth Floor Premises on or before
the Primary Relocation Date and return the same to Landlord in "broom clean"
condition and otherwise in accordance with the terms and conditions of
Section 1.3 of the Lease. Any holding over by Tenant in the Second and
Ninth Floor Premises after the Primary Relocation Date shall be subject to
the terms and provisions of Section 1.4 of the Lease as applicable to the
Second and Ninth Floor Premises.
(b) Effective as of January 1, 2004 (the "Secondary Relocation Date"),
Suite 405 is hereby substituted for the First Floor Premises. Suite 405
shall be subject to all the terms and conditions of the Lease except as
expressly modified herein. The Lease shall be terminated with respect to
the First Floor Premises as of midnight December 31, 2003, and effective as
of the Secondary Relocation Date, the term "Premises" wherever used in the
Lease shall refer collectively to Xxxxx 000 xxx Xxxxx 000 (i.e., the
Relocated Premises). Accordingly, effective as of the Secondary Relocation
Date, Item 2 of the Basic Lease Provisions shall be deleted in its entirety
and the following shall be substituted in lieu thereof:
2. Premises:
a. Suites #: 400 and 405; Floors: a portion of the fourth (4th)
floor.
b. Agreed Rentable Area: 25,559 square feet.
Tenant shall vacate the First Floor Premises on or before December 31,
2003 and return the same to Landlord in "broom clean" condition and
otherwise in accordance with the terms and conditions of Section 1.3 of the
Lease. Landlord shall not be liable for the failure to give possession of
Suite 405 by reason of holding over or retention of any third party tenant,
tenants or occupants. Landlord shall also not be liable for the failure to
give possession of Suite 405 by reason of force majeure as defined in the
Lease. In such events, however, the Secondary Relocation Date shall be
delayed to the date possession of Suite 405 is delivered to Tenant and such
delay of the Secondary Relocation Date shall constitute full settlement of
all claims that Tenant might otherwise have against Landlord by reason of
any failure of Landlord to timely give possession of Suite 405 to Tenant.
If the Secondary Relocation Date is delayed, (i) the Expiration Date under
the Lease shall not be similarly extended, (ii) the Lease shall be
terminated with respect to and Tenant shall vacate the First Floor Premises
on or before December 31, 2003, and (iii) notwithstanding anything to the
contrary contained in this Amendment, during the period from January 1, 2004
until the Secondary Relocation Date, the Premises shall consist only of
Suite 400.
3. Amendment to Exhibit A.
(a) Effective as of the Primary Relocation Date, Exhibit A attached to
the Lease shall be deleted in its entirety and Exhibit A-1 attached hereto
and hereby incorporated herein shall be added to and incorporated into the
Lease as Exhibit A.
(b) Effective as of the Secondary Relocation Date, Exhibit A attached
to the Lease (as amended by (a) above) shall be deleted in its entirety and
Exhibit A-2 attached hereto and hereby incorporated herein shall be added to
and incorporated into the Lease as Exhibit A.
4. Rent. From the Primary Relocation Date through November 30, 2008,
Basic Annual Rent and Basic Monthly Rent for (i) the First Floor Premises
and Suite 400 or (ii) the Relocated Premises, as applicable during such
period, shall be in the amounts provided below. Accordingly, effective as
of the Primary Relocation Date, the addition to Item 3 of the Basic Lease
Provisions pursuant to the Eighth Amendment is hereby amended in its
entirety to the following:
Basic Basic
Rental Annual Monthly
Period Rent Rent
06/21/03 _ 11/30/03 $511,400.04 $42,616.67
12/01/03 _ 11/30/08 $600,894.96 $50,074.58
Landlord and Tenant acknowledge that the foregoing Basic Rent schedule is
based on the assumption that the Secondary Relocation Date is January 1,
2004. If the Secondary Relocation Date is delayed as set forth in Section
2(b) of this Amendment, then Tenant shall receive an abatement of Basic
Monthly Rent equal to $9,037.71 per month (prorated on a daily basis for any
partial months) for the period from January 1, 2004 through the day
immediately preceding the Secondary Relocation Date.
5. Tenant's Pro Rata Share Percentage. Notwithstanding the relocation of
the Second and Ninth Floor Premises to Suite 400 on the Primary Relocation
Date, Tenant's Pro Rata Share Percentage shall remain as currently provided
in the Lease until the Secondary Relocation Date. Effective as of the
Secondary Relocation Date, Item 4 of the Basic Lease Provisions shall be
amended to read as follows:
4. Tenant's Pro Rata Share Percentage: 6.8850% (the Agreed Rentable
Area of the Premises divided by the Agreed Rentable Area of the
Building, expressed in a percentage).
6. Acceptance of Relocated Premises. TENANT HEREBY ACCEPTS THE RELOCATED
PREMISES AND THE BUILDING (INCLUDING THE SUITABILITY OF THE RELOCATED
PREMISES FOR THE PERMITTED USE) IN "AS IS" CONDITION WITH ANY AND ALL FAULTS
AND LATENT OR PATENT DEFECTS AND WITHOUT RELYING UPON ANY REPRESENTATION OR
WARRANTY (EXPRESS OR IMPLIED) OF LANDLORD OR ANY REPRESENTATIVE OF LANDLORD.
LANDLORD HAS NOT MADE AND DOES NOT HEREBY MAKE AND HEREBY SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE BUILDING (INCLUDING THE
RELOCATED PREMISES) AND ITS CONDITION (INCLUDING WITHOUT LIMITATION ANY
REPRESENTATION OR WARRANTY REGARDING QUALITY OF CONSTRUCTION, STATE OF
REPAIR, WORKMANSHIP, MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE). Tenant acknowledges that Landlord shall have no
construction obligations with respect to the Relocated Premises and that
Tenant shall be responsible for all costs associated with moving from the
Current Premises to the Relocated Premises.
7. Parking. Paragraph 2 of Exhibit F to the Lease is hereby amended in its
entirety to read as follows:
Parking Rental. The monthly rent for the Reserved Spaces through
November 30, 2008 shall equal $35.00 (inclusive of applicable sales
tax) per space for five (5) of the Reserved Spaces and $50.00 per space
(plus applicable sales tax) for four (4) of the Reserved Spaces and the
monthly rent through November 30, 2008 for the Unreserved Spaces shall
be $17.00 per space (inclusive of applicable sales tax). All payments
of rent for parking spaces shall be made (i) at the same time as Basic
Monthly Rent is due under the Lease and (ii) to Landlord or to such
persons (for example but without limitation, the manager of the Garage)
as Landlord may direct from time to time.
8. Right of First Refusal. Tenant shall have a right of first refusal to
lease the Right of First Refusal Space (defined in Exhibit B attached
hereto) in accordance with the terms of Exhibit B. Effective as of the date
of this Amendment, Tenant shall have no other right of first refusal under
the Lease to lease any additional space in the Building and Exhibit C to the
Eighth Amendment shall have no further force or effect.
9. Renewal Option. Landlord and Tenant acknowledge that Tenant shall have
the right to exercise its option to renew the Lease at the expiration of the
Term (as extended by this Amendment) pursuant to the terms and provisions of
Exhibit C to the Seventh Amendment.
10. Storage Premises. Landlord and Tenant acknowledge that Tenant shall be
entitled to continue to use the Storage Premises for storage purposes only
on a month-to-month basis at no charge in accordance with the terms of the
Lease. Either Landlord or Tenant shall be entitled to terminate the lease
of the Storage Premises by delivering thirty (30) days prior written notice
of termination to the other.
11. 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. Tenant agrees
to indemnify and hold harmless Landlord from and against any liability or
claim arising in respect to any brokers or agents claiming a commission by,
through or under Tenant in connection with this Amendment.
12. Authority. Tenant and each person signing this Amendment on behalf of
Tenant represents to Landlord as follows: (i) Tenant is a duly formed and
validly existing corporation 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.
13. Defined Terms. All terms not otherwise defined herein shall have the
same meaning assigned to them in the Lease.
14. Ratification of 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.
15. No Representations. Landlord and Landlord's agents have made no
representations or promises, express or implied, in connection with the
Premises, the Relocated Premises or this Amendment except as expressly set
forth herein.
16. 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.
17. Section Headings. The section headings contained in this
Amendment are for convenience only and shall in no way enlarge or limit the
scope or meaning of the various and several sections hereof.
18. Successors and Assigns. The terms and provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
19. Severability. A determination that any provision of this
Amendment is unenforceable or invalid shall not affect the enforceability or
validity of any other provision hereof and any determination that the
application of any provision of this Amendment to any person or circumstance
is illegal or unenforceable shall not affect the enforceability or validity
of such provision as it may apply to any other persons or circumstances.
20. Governing Law. This Amendment shall be governed by the laws of the
State of Texas.
21. Exhibits. Each exhibit attached hereto is made a part hereof for all
purposes.
22. Submission of Amendment Not Offer. The submission by Landlord to
Tenant of this Amendment for Tenant's consideration shall have no binding
force or effect, shall not constitute an option, and shall not confer any
rights upon Tenant or impose any obligations upon Landlord irrespective
of any reliance thereon, change of position or partial performance. This
Amendment is effective and binding on Landlord only upon the execution and
delivery of this Amendment by Landlord and Tenant.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
LANDLORD: TENANT:
THE PRUDENTIAL INSURANCE COMPANY AMERICAN HALLMARK INSURANCE
OF AMERICA, a New Jersey corporation COMPANY OF TEXAS, a Texas
corporation
By: PM Realty Group, L.P.,
a Delaware limited partnership,
its duly authorized agent
By: __________________________ By: __________________________
Name: __________________________ Name: __________________________
Title: __________________________ Title: __________________________
EXHIBIT A-1
PREMISES
This Exhibit is attached to and a part of that certain Tenth Amendment
to Lease Agreement executed by and between The Prudential Insurance
Company of America and American Hallmark Insurance Company of Texas (the
"Amendment"). Any capitalized term not defined herein shall have the
meaning assigned to it in the Amendment. Landlord and Tenant mutually agree
that the attached floor plan is the floor plan for the Premises:
[ATTACH DIAGRAM OF FIRST FLOOR PREMISES AND SUITE 400]
EXHIBIT A-2
PREMISES
This Exhibit is attached to and a part of that certain Tenth Amendment
to Lease Agreement executed by and between The Prudential Insurance
Company of America and American Hallmark Insurance Company of Texas (the
"Amendment"). Any capitalized term not defined herein shall have the
meaning assigned to it in the Amendment. Landlord and Tenant mutually agree
that the attached floor plan is the floor plan for the Premises:
[ATTACH DIAGRAM OF XXXXX 000 XXX XXXXX 000]
EXHIBIT B
TENANT'S RIGHT OF FIRST REFUSAL
(ALL TERMS BASED ON THIRD PARTY STATEMENT)
This Exhibit is attached to and a part of that certain Tenth Amendment
to Lease Agreement executed by and between The Prudential Insurance
Company of America and American Hallmark Insurance Company of Texas (the
"Amendment"). Any capitalized term not defined herein shall have the
meaning assigned to it in the Amendment. Landlord and Tenant mutually agree
as follows:
A. Prior to leasing any of the space known as (i) Suite 403 containing
approximately 1,657 square feet of Agreed Rentable Area on the
fourth (4th) floor of the Building, and (ii) Suite 405A, containing
approximately 1,378 square feet of Agreed Rentable Area on the fourth
(4th) floor of the Building, each as shown on Schedule I attached to
this Exhibit (collectively, the "Right of First Refusal Space", and
containing approximately 3,035 square feet of Agreed Rentable Area),
Landlord shall deliver to Tenant a written statement ("Statement") which
shall reflect Landlord's and the prospective tenant's agreement with
respect to rent, term, finish allowances, tenant inducements and the
description of the applicable Right of First Refusal Space. Tenant
shall have five (5) days after receipt of the Statement within which to
notify Landlord in writing that it desires to lease the applicable Right
of First Refusal Space upon the terms and conditions contained in the
Statement. Failure by Tenant to notify Landlord within such five (5)
day period shall be deemed an election by Tenant not to lease the
applicable Right of First Refusal Space and Landlord shall have the
right to lease such space to the prospective tenant upon the terms and
conditions contained in the Statement. If Landlord enters into such a
lease with the prospective tenant within 180 days after the expiration
of such five (5) day period, Tenant shall have no further rights under
this Exhibit with respect to the Right of First Refusal Space covered by
such lease.
B. Notwithstanding the foregoing, if the prospective tenant desires to
lease additional space on the same floor as the Right of First Refusal
Space covered by the Statement in addition to the Right of First Refusal
Space, Tenant must lease all space on such floor that the prospective
tenant desires to lease if Tenant elects to lease the applicable Right
of First Refusal Space.
C. Further notwithstanding any provision or inference in this Exhibit to
the contrary, the Right of First Refusal shall expire and be of no
further force or effect on the earlier of (i) the expiration or earlier
termination of the Term of this Lease expiring on November 30, 2008,
(ii) a default by Tenant under this Lease, (iii) an assignment of this
Lease by Tenant or (iv) the sublease of all or any portion of the
Premises by Tenant.
SCHEDULE I TO EXHIBIT B
RIGHT OF FIRST REFUSAL SPACE
This Schedule is attached to and a part of that certain Tenth Amendment
to Lease executed by and between The Prudential Insurance Company of America
and American Hallmark Insurance Company of Texas.
