EXHIBIT 10(N)
SECOND LEASE AMENDMENT AND EXTENSION AGREEMENT
(Summit Office Park)
Landlord: EOP - Summit Limited Partnership, a Delaware limited partnership
(as successor in interest to Zell/Merrill Lynch Real Estate
Opportunity Partners Limited Partnership)
Tenant: Summit National Bank
Date of Lease: July 6, 1989, as amended by the Amendment of Lease dated August
12,1993 (collectively, the "Lease")
Premises: Approximately 13,626 square feet of space on the first floor of
the building located at 1300 Summit Avenue, Fort Worth, Texas
(the "Building")
WHEREAS, the Lease by its terms shall expire, unless an option is exercised, on
December 31, 1999 ("Prior Termination Date"), and the parties desire to extend
the term of the Lease, all, on the terms and conditions hereinafter set forth.
For valuable consideration, Landlord and Tenant agree to, and do hereby, amend
and extend the Lease on and subject to the following terms:
1 . Term. Paragraph II is amended to extend the term of the Lease to December
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31, 2009 (the "Extended Termination Date"). There are no options to extend
the term beyond December 31, 2009.
2. Rent Paragraph III.1. is amended to provide that the rental during the
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extended term of the Lease will be as follows:
Jan. 1, 2000 $13.50 $183,951.00 $15,329.25
through per sq. ft. each year each month
Dec. 31, 2004 per annum
Jan. 1, 2005 $14.50 $197,577.00 $16,464.75
through per sq. foot each year each month
Dec. 31, 2009 per annum
Rental until January 1, 2000 remains as stated in the Lease.
3. Rent Adjustment. As of January I, 2000, Paragraph llI.2. shall be of no
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further effect and the following shall be in effect for the remainder of the
term:
SECOND LEASE AMENDMENT AND EXTENSION AGREEMENT
(SUMMIT OFFICE PARK) PAGE 1 OF 10
A. With the lease year commencing January 1, 2000, Tenant shall pay to
Landlord as additional rental the amount (the "Excess") by which the sum of
Tenant'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 Tenant shall not be entitled to a credit if
Tenant'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) "Tenant's Pro Rata Share" means 5.70%.
As soon as is practical following the end of each calendar year, commencing
December 31, 2000, Landlord shall furnish to Tenant a statement (the
"Annual Statement") of Landlord's actual Basic Costs and the actual Excess
for the previous calendar year. Not later than thirty (30) days after
Tenant's receipt of the Annual Statement Tenant will pay to Landlord, as
additional rental, 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, unemployment and other similar taxes, workers'
compensation 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 fee
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, Landlord shall be entitled to a management fee comparable
to that due and payable to third parties provided Landlord or
management companies owned
SECOND LEASE AMENDMENT AND EXTENSION AGREEMENT
(SUMMIT OFFICE PARK) PAGE 2 OF 10
by, or management divisions of, Landlord 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 Landlord 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 the Property generally, including the heating, air
conditioning, ventilating, plumbing, electrical, elevator and other
systems and equipment. At Landlord's option, major repair items may
be amortized over a period of up to five (5) years.
5. All premiums and deductibles paid by Landlord 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 Landlord's Mortgagee.
6. Charges for all utilities, including, but not limited to, water,
electricity, gas and sewer, but excluding those charges for which
Landlord is otherwise reimbursed by tenants.
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 expenses, (c) all taxes imposed on services of Landlord's
agents and employees, (d) all costs and fees incurred in connection
with seeking reductions in or refunds in Taxes including, without
limitation, any costs incurred by Landlord 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
SECOND LEASE AMENDMENT AND EXTENSION AGREEMENT
(SUMMIT OFFICE PARK) PAGE 3 OF 10
estate taxes, Taxes for such year shall, at Landlord'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 Landlord'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 Tenant paid its Pro
Rata Share of Basic Costs, then Basic Costs for such year will be
retroactively adjusted and Landlord shall provide Tenant with a
credit, if any, based upon such adjustment. 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. Tenant shall pay Landlord Tenant's
Pro Rata Share of any such increase in the Excess within thirty
(30) days after Tenant's receipt of a statement therefor from
Landlord.
8. All landscape expenses and costs of maintaining, repairing,
resurfacing and striping of the parking areas 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 tenants.
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 Landlord's insurance carrier. The
cost of such capital improvement shall be amortized over a period
of five (5) years and shall, at Landlord's option, include
interest at a rate that is reasonably equivalent to the interest
rate that Landlord 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
for any capital improvement is less than five (5) years, Landlord
may amortize the cost of such capital improvement over the
payback period.
SECOND LEASE AMENDMENT AND EXTENSION AGREEMENT
(SUMMIT OFFICE PARK) PAGE 4 OF 10
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 Landlord is not
supplying services to at least ninety-five percent (95%) of the total
Rental 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 Landlord 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,
Tenant, within ninety (90) days after receiving the Annual Statement for
a particular calendar year, shall have the right to provide Landlord
with written notice (the "Review Notice") of its intent to review
Landlord's books and records relating to the Basic Costs for such
calendar year. Within a reasonable time after receipt of a timely Review
Notice, Landlord shall make such books and records available to Tenant
or Tenant's agent for its review at either Landlord's home office or the
office of the Building, provided that if Tenant retains an agent to
review Landlord'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 Tenant fails to give Landlord written notice of
objection within thirty (30) days after its review or fails to provide
Landlord with a Review Notice within the ninety (90) day period provided
above, Tenant shall be deemed to have approved Landlord's Annual
Statement in all respects and shall thereafter be barred from raising
any claims with respect thereto. Any information obtained by Tenant
pursuant to the provisions of this Section shall be treated as
confidential.
4. Parking. Paraaraph 1.2. is amended by adding a new subparagraph (d) as
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follows:
(d) Landlord agrees to provide throughout the remainder of the term twenty
(20) reserved parking spaces in the on-site garage. Tenant will pay
Landlord 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 Landlord annually by the same amount the
rent charged to other tenants in the Building is increased.
SECOND LEASE AMENDMENT AND EXTENSION AGREEMENT
(SUMMIT OFFICE PARK) PAGE 5 OF 10
5. Right of First Refusal. Paragraph I is amended by adding new subparagraphs
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4, 5, 6 and 7 as follows:
4. Right of First Refusal.
Tenant shall have the one time right of first refusal ("Right of First
Refusal") with respect to the 4,20 rentable square feet of space on
the 2nd floor of the Building shown on the demising plan attached
hereto as Exhibit A (the "Refusal Space"), which right of first
refusal shall be exercised as follows: when Landlord has a prospective
tenant ("Prospect") interested in leasing all or any part the Refusal
Space, Landlord shall advise Tenant (the "Advice") of the terms under
which Landlord is prepared to lease the Refusal Space (or portion
thereof if the Prospect is interested in leasing less than all of the
Refusal Space) to such Prospect and Tenant may lease the Refusal Space
(or portion thereof if the Prospect is interested in leasing less than
all of the Refusal Space), under such terms, by providing Landlord
with written notice of exercise ("Notice of Exercise") within five (5)
days after the date of the Advice, except that Tenant shall have no
such Right of First Refusal and Landlord need not provide Tenant with
an Advice if:
a. Tenant is in default under the Lease at the time Landlord would
otherwise deliver the Advice; or
b. The Premises, or any portion thereof, is sublet at the time
Landlord would otherwise deliver the Advice; or
c. The Lease has been assigned prior to the date Landlord would
otherwise deliver the Advice; or
d. The Refusal Space is not intended for the exclusive use of Tenant
during the Lease Term; or
e. The Tenant is not occupying the Premises on the date Landlord would
otherwise deliver the Advice; or
f. Northwestern Mutual Life Insurance has the right to lease the
Refusal Space, it being understood that this Right of First Refusal
is subject and subordinate to the rights of Northwestern Mutual
Life Insurance with respect to the Refusal Space.
5. The term for the Refusal Space shall commence upon the commencement
date stated in the Advice and thereupon such Refusal Space shall be
considered a part of the Premises, provided that all of the terms
stated in the Advice (including, without limitation, the expiration
date set forth in the
SECOND LEASE AMENDMENT AND EXTENSION AGREEMENT
(SUMMIT OFFICE PARK) PAGE 6 OF 10
Advice) shall govern Tenant's leasing of the Refusal Space and only
to the extent that they do not conflict with the Advice, the terms
and conditions of this Lease shall apply to the Refusal Space. The
Refusal Space (including improvements and personalty, if any) shall
be accepted by Tenant in its condition and as-built configuration
existing on the earlier of the date Tenant takes possession of the
Refusal Space or the date the term for such Refusal Space commences,
unless the Advice specifies work to be performed by Landlord in the
Refusal Space, in which case Landlord shall perform such work in the
Refusal Space.
6. The rights of Tenant hereunder with respect to the Refusal Space shall
terminate on the earlier to occur of (i) Tenant's failure to exercise
its Right of First Refusal within the five (5) day period provided in
paragraph A above, and (ii) the date Landlord would have provided Tenant
an Advice if Tenant had not been in violation of one or more of the
conditions as set forth in Paragraph A above.
7. If Tenant exercises its Right of First Refusal, Landlord shall prepare
an amendment (the "Refusal Space Amendment") adding the Refusal Space to
the Premises on the terms set forth in the Advice and reflecting the
changes in the Base Rental, Rentable Area of the Premises, Tenant's Pro
Rata Share and other appropriate terms. A copy of the Refusal Space
Amendment shall be (i) sent to Tenant within a reasonable time after
Landlord's receipt of the Notice of Exercise, and (ii) executed by
Tenant and returned to Landlord within ten (10) days thereafter.
6. Paragraph II is amended to add new paragraphs 3, 4 and 5 as follows:
3. In the event that Tenant is merged into, consolidated with or sold to
another entity at any time prior to December 31, 2003, Tenant shall have
the right to accelerate the Extended Termination Date ("Acceleration
Option") of the Lease from December 31, 2009 to December 31, 2004 (the
"Accelerated Expiration Date"), if:
a. Tenant is not in default under the Lease at the date Tenant provides
Landlord with an Acceleration Notice (hereinafter defined), and
b. no part of the Premises is sublet for a term extending past the
Accelerated Expiration Date; and
c. the Lease has not been assigned; and
d. Landlord receives notice of acceleration ("Acceleration Notice") not
less than twelve (12) full calendar months prior to the Accelerated
SECOND LEASE AMENDMENT AND EXTENSION AGREEMENT
(SUMMIT OFFICE PARK) PAGE 7 OF 10
Expiration Date.
4. If Tenant exercises its Acceleration Option, Tenant, on or before
December 1, 2004, shall pay to Landlord a sum equal to six (6) full
calendar months of Base Rental at the rate that would have been due and
payable during the period beginning on January 1, 2005 and ending June
30, 2005 (the "Acceleration Fee") as a fee in connection with the
acceleration of the Termination Date and not as a penalty, provided that
the Acceleration Fee shall be increased by an amount equal to Thirty-
Five Thousand Two Hundred Forty-Six and 72/100 Dollars ($35,246.72)
which sum represents the unamortized portion of the real estate
commissions, including interest at 13%, incurred by landlord in
connection with space leased by Tenant that is subject to Acceleration
hereunder. Tenant shall remain liable for all Base Rental, additional
rental and other sums due under the Lease up to and including the
Accelerated Expiration Date even though billings for such may occur
subsequent to the Accelerated Expiration Date.
5. If Tenant, subsequent to providing Landlord with an Acceleration Notice,
defaults in any of the provisions of this Lease (including, without
limitation, a failure to pay any installment of the Acceleration Fee due
hereunder), Landlord, at its option, may (i) declare Tenant's exercise
of the Acceleration Option to be null and void, and any Acceleration Fee
paid to Landlord shall be returned to Tenant, after first applying such
Acceleration Fee against any past due Rent under the Lease, or (ii)
continue to honor Tenant's exercise of its Acceleration Option, in which
case, Tenant shall remain liable for the payment of the Acceleration Fee
and for all Base Rental, additional rental and other sums due under the
Lease up to and including the Accelerated Expiration Date even though
billings for such may occur subsequent to the Accelerated Expiration
Date.
7. 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 Tenant 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 Tenant in connection with
entering into the. Lease, unless specifically set forth in this Amendment.
8. In the case of any inconsistency between the provisions of the Lease and
this Amendment, the provisions of this Amendment shall govern and control.
9. 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.
SECOND LEASE AMENDMENT AND EXTENSION AGREEMENT
(SUMMIT OFFICE PARK) PAGE 8 OF 10
10. Tenant hereby represents to Landlord that Tenant has dealt with no broker
in connection with this Amendment other than Ferree & Searcy, Inc. And
Richard D. Minker Company (collectively, "Broker"). Tenant agrees to
indemnify and hold Landlord, its members, principals, beneficiaries,
partners, officers, directors, employees, mortgagee(s) and agents, and the
respective principals and members of any such agents (collectively, the
:landlord Related Parties") harmless from all claims of any brokers, other
than Broker, claiming to have represented Tenant in connection with this
Amendment. Landlord hereby represents to Tenant that Landlord has dealt
with no broker, other than Broker, in connection with this Amendment.
Landlord agrees to indemnify and hold Tenant, its members, principals,
beneficiaries, partners, officers, directors, employees, and agents, and
the respective principals and members of any such agents (collectively, the
"Tenant Related Parties") harmless from all claims of any brokers claiming
to have represented Landlord in connection with this Amendment.
11. Ratification of Lease. Except as expressly amended by the terms of this
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Lease Amendment and Extension Agreement, Landlord and Tenant ratify and
confirm the Lease.
LANDLORD:
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/ Kim J. Koehn
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Name: Kim J. Koehn
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Title: RVP
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SECOND LEASE AMENDMENT AND EXTENSION AGREEMENT
(SUMMIT OFFICE PARK) PAGE 9 OF 10
TENANT:
SUMMIT NATIONAL BANK
By:/s/ Jeff Harp
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Name: Jeffrey M. Harp
Title: President
SECOND LEASE AMENDMENT AND EXTENSION AGREEMENT
(SUMMIT OFFICE PARK) PAGE 10 OF 10