Exhibit 10.1
FOURTH AMENDMENT TO LEASE AGREEMENT
THIS FOURTH AMENDMENT TO LEASE AGREEMENT (this "Amendment") is made
and entered into as of the 8th day of June, 2007 (the "Effective Date"), by and
between FSP PHOENIX TOWER LIMITED PARTNERSHIP, a Texas limited partnership
("Landlord"), and WASHINGTON MUTUAL BANK, a federal association, formerly known
as Washington Mutual Bank, FA, a federal association ("Tenant").
WITNESSETH:
WHEREAS, Utah State Retirement Investment Fund ("Original Landlord")
and Bank United, a federal savings bank ("Original Tenant"), entered into that
certain Office Space Lease Agreement dated November 21, 1997 (the "Original
Lease"), with respect to the lease of space (the "Original Premises") in the
office building known as Phoenix Tower in Houston, Texas (the "Building");
WHEREAS, Original Landlord assigned its interest under the Original
Lease to Peak Phoenix Tower, L.P., a Texas limited partnership ("Successor
Landlord");
WHEREAS, Tenant merged with Original Tenant and Tenant is the
successor in interest to Original Tenant;
WHEREAS, the Original Lease previously has been amended by that
certain First Amendment to Lease Agreement, dated June 30, 1998 (the "First
Amendment"), by and between Original Landlord and Original Tenant, whereby the
Original Premises were expanded to include additional space in the Building
(such space together with the Original Premises, the "Leased Premises"), as
further amended by that certain Second Amendment to Lease Agreement dated
February 13, 2001 (the "Second Amendment"), by and between Successor Landlord
and Tenant, and as further amended by that certain Third Amendment to Lease
Agreement dated October 28, 2002 (the "Third Amendment"), by and between
Successor Landlord and Tenant (the Original Lease, the First Amendment, the
Second Amendment and the Third Amendment are collectively referred to herein as
the "Lease");
WHEREAS, Landlord is the successor in interest to Successor
Landlord; and
WHEREAS, Landlord and Tenant now desire to modify the terms of the
Lease as set forth herein, but not otherwise.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and confessed, Landlord and Tenant, intending
to be and being legally bound, do hereby agree as follows:
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1. Defined Terms.
All capitalized terms used herein and not defined herein have the
meanings set forth in the Lease.
2. Reduction of Leased Premises.
Landlord and Tenant hereby agree that the term of the Lease as to
that certain 2,683 square feet of Net Rentable Area located on Floor 9 of the
Building as shown on Exhibit A attached hereto and incorporated herein (the
"Reduction Space"), shall terminate at 6:00 P.M. on June 30, 2007 (the
"Reduction Date"), subject to Paragraph 6. After the Reduction Date, Tenant
shall no longer have any rights (including the right of possession) in the
Reduction Space, and Landlord and Tenant shall be released of all further
obligations, covenants and agreements accruing under the Lease with respect to
the Reduction Space after the Reduction Date. Notwithstanding the foregoing, in
no event shall Landlord or Tenant be released from any of its obligations,
covenants and agreements relating to the Reduction Space which accrue under the
Lease prior to the Reduction Date, including, without limitation, Tenant's
obligations to pay Base Rental and Additional Rental in accordance with Sections
2.1, 2.2, 2.3, and 2.4 of the Lease.
3. Surrender of Reduction Space.
Tenant agrees to surrender the Reduction Space to Landlord (subject
to Paragraph 6 of this Amendment) on or before the Reduction Date in its current
condition, broom clean, with all of Tenant's property removed therefrom and
damage caused by such removal repaired, and without any subleases or leases in
effect with respect thereto, and free of occupancy by any person or entity.
Tenant represents and warrants to Landlord that there are no agreements, written
or oral, between Tenant and any other person or entity with respect to the
occupancy of all or any portion of the Reduction Space after the Reduction Date.
If Tenant fails to timely surrender the Reduction Space to Landlord in
accordance with the provisions of this Amendment, the provisions of Section 7.3
of the Lease shall apply to any such holding over by Tenant with respect to the
Reduction Space and Tenant shall not be released from its obligations, covenants
and agreements under the Lease relating to the Reduction Space during such
holdover period.
4. Remaining Premises. As of the Reduction Date, the remaining Leased
Premises (the "Remaining Premises") shall consist of the following:
Square Feet of
Net Rentable Area Floor
----------------- -----
5,372 9
11,101 10
24,977 13
24,314 14
25,594 15
24,314 16
2
24,977 17
24,314 18
24,977 19
24,314 20
25,571 24
26,000 25
--------
265,825
As of the Reduction Date, Tenant's pro rata share of the Building
shall be equal to 42.97%. Tenant shall pay as the Base Rental for the Remaining
Premises an amount equal to $440,228.71 per month during the remainder of the
Term in the manner required under the Lease.
5. Condition of Remaining Premises.
Tenant accepts the Remaining Premises in its current condition,
as-is, without recourse to Landlord. ADDITIONALLY, LANDLORD SHALL MAKE NO
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASEHOLD IMPROVEMENTS IN
THE REMAINING PREMISES. ALL IMPLIED WARRANTIES WITH RESPECT THERETO, INCLUDING
BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, ARE EXPRESSLY NEGATED AND WAIVED.
Notwithstanding the foregoing, Landlord shall be obligated to
install, at its sole cost and expense, a demising wall separating the Remaining
Premises from the Reduction Space within a reasonable time following the
Reduction Date, if necessary.
6. Contingency.
Landlord and Tenant expressly agree that this Amendment is subject
to and contingent upon Landlord and Network Appliance, Inc. ("Other Tenant")
entering into that certain Third Amendment to Lease Agreement ("Network Lease
Amendment"), on terms satisfactory to Landlord in its sole discretion,
contemporaneously with the execution of this Amendment. If the Network Lease
Amendment is not fully executed and delivered by each of Landlord and Other
Tenant within forty-five (45) days after full execution thereof, each acting in
their sole discretion, this Amendment shall terminate automatically and be of no
further force and effect, and Tenant shall remain fully liable for all
obligations under the Lease as if this Amendment had not been executed.
7. Brokerage Commissions.
Landlord and Tenant hereby represent and warrant to each other that
no commission is due and payable to any broker or other leasing agent in
connection with this Amendment as a result of its own dealings with any such
broker or leasing agent, and Landlord and Tenant hereby agree to indemnify and
hold each other harmless from and against all loss, damage, cost and expense
(including reasonable attorneys' fees) suffered by the other party as a result
of a breach of the foregoing representation and warranty.
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8. Full Force and Effect.
In the event any of the terms of the Lease conflict with the terms
of this Amendment, the terms of this Amendment shall control. Except as amended
hereby, all terms and conditions of the Lease shall remain in full force and
effect, and Landlord and Tenant hereby ratify and confirm the Lease as amended
hereby. The Lease, as amended herein, constitutes the entire agreement between
the parties hereto and no further modification of the Lease shall be binding
unless evidenced by an agreement in writing signed by Landlord and Tenant.
[Signature page follows]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of
the Effective Date.
LANDLORD:
FSP PHOENIX TOWER LIMITED PARTNERSHIP,
a Texas limited partnership
By: FSP Property Management LLC,
a Massachusetts limited liability company,
its asset manager
By: /s/ Xxx X. Xxxxx, Xx.
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Xxx X. Xxxxx, Xx.
Its: Vice President and Asset Manager
TENANT:
WASHINGTON MUTUAL BANK,
a federal association
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: First Vice President
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EXHIBIT A
REDUCTION SPACE
Level 9
2,683 NRA
[GRAPHIC OF FLOOR PLAN]
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