Exhibit 10.2
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (this "Amendment") is made
and entered into this 7th day of December, 2000 ("Amendment Effective Date"), by
and between TEXAS CORPORATE PROPERTIES, L.P., a Texas limited partnership
("Landlord"), and XXXXX HOSPITALS LIMITED, a Texas limited partnership
("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease
Agreement dated as of May 14, 1998 (the "Lease"), with respect to the lease of
certain space ("Leased Premises") in the building commonly referred to as
Galleria North, Tower I (the "Building");
WHEREAS, the REA (as defined in the Lease) has been amended by that
certain First Amendment to Construction, Operation and Reciprocal Easement
Agreement dated of even date herewith and which is attached hereto as Exhibit A
("First Amendment"); and
WHEREAS, Landlord and Tenant mutually desire to amend the Lease as
hereinafter set forth.
NOW THEREFORE, for and in consideration of Ten Dollars 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:
1. Defined Terms.
All capitalized terms utilized herein and not defined herein shall
have the meanings ascribed thereto in the Lease.
2. REA and Initial REA.
The definition of REA set forth in Section 11.4 of the Lease shall
be deleted in its entirety and the following shall be substituted therefor:
"REA" shall mean that certain Construction, Operation and Reciprocal
Easement Agreement for Galleria North dated May 14, 1998, as amended
by that certain First " Amendment to Construction, Operation and
Reciprocal Easement Agreement dated December 7, 2000, and as further
amended from time to time.
The definition of Initial REA set forth in Section 11.4 of the Lease
shall be deleted in its entirety and the following shall be substituted
therefor:
"Initial REA" shall mean that certain Construction, Operation and
Reciprocal Easement Agreement for Galleria North dated May 14, 1998,
as amended by the First Amendment to Construction, Operation and
Reciprocal Easement Agreement dated December 7, 2000.
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Tenant acknowledges and agrees that it consents to the First
Amendment and that for all purposes of the Lease, the First Amendment shall be
deemed a part of the REA and Initial REA. Additionally, Tenant acknowledges and
agrees that it consents to the Parking Deck Rules and the Loading Dock Rules
attached to the First Amendment.
3. Calculations.
Pursuant to Section 1.1(c) of the Lease, in lieu of Landlord and
Tenant executing the Calculation Notice, Landlord and Tenant hereby stipulate
and agree that the calculations set forth below represent the Net Rentable Area
and Usable Area of each floor of the Initial Leased Premises as of the Amendment
Effective Date and shall be used to calculate the Net Rentable Area and Usable
Area of the Initial Leased Premises for purposes of the Lease:
Applicable Floor Net Rentable Area Usable Area
---------------- ----------------- -----------
1 25,523 22,239
2 19,811 19,298
3 23,731 22,352
4 24,208 22,768
5 24,208 22,768
6 24,208 22,768
7 24,208 22,768
8 24,208 22,768
9 24,208 22,768
10 24,208 22,768
11 24,208 22,768
12 24,208 22,768
13 24,208 22,768
14 24,208 22,768
15 22,573 21,700
16 21,592 20,845
-------- --------
Total 379,518 356,882
4. Rental Commencement Dates.
Pursuant to Section 1.2(c) of the Lease, in lieu of Landlord and
Tenant executing the Commencement Declaration, Landlord and Tenant hereby
stipulate and agree that the Rental Commencement Date for each Major Portion is
as reflected below for all purposes of the Lease:
Major Portion Rental Commencement Date
------------- ------------------------
Floor Group 1 Portion November 4, 1999
Floor Group 2 Portion November 20, 1999
Floor Group 3 Portion December 4, 1999
Floor Group 4 Portion December 20, 1999
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Additionally, Landlord and Tenant stipulate and agree that the Commencement Date
for all purposes of the Lease is January 1, 2000.
As a result of the foregoing, Tenant acknowledges and agrees that
Landlord shall have no liability to Tenant under Section 1.2(d) of the Lease and
Tenant's termination right under Section 1.2(d)(iii) of the Lease is hereby
deleted and of no further force and effect.
5. Project Costs and Improvements Allowance.
Landlord and Tenant agree that Section 2.5 is revised to provide
that the Improvements Allowance is increased by an amount equal to the sum of
(i) $1,763,267.91 ("Initial Allowance Increase"), plus (ii) the amount by which
$100,000 exceeds the Project Costs due and payable from October 31, 2000,
through December 31, 2000 ("Additional Allowance Increase").
As a result of such increase in the Improvements Allowance, Landlord
and Tenant agree that (i) notwithstanding the provisions of Section 2.2 of the
Lease, the Project Costs shall be deemed to be $166.65 per square foot of Net
Rentable Area comprising the Initial Leased Premises for all purposes of Section
2.2(b) of the Lease (including without limitation, for purposes of determining
the Base Rental Rate), and (ii) the annual Base Rental Rate for each of the
applicable Lease Years of the Initial Term identified below for all purposes of
Section 2.2(a) of the Lease is as follows:
Lease Years Base Rental Rate
----------- ----------------
1 - 5 $15.25
6 - 10 $17.33
(a) The Initial Allowance Increase shall be disbursed to Tenant
within thirty (30) days after the Amendment Effective Date (in lieu of the
provisions applicable to the Improvements Allowance in Section 2.5 of the
Lease). The Additional Allowance Increase shall be disbursed to Tenant on or
prior to January 31, 2001 (in lieu of the provisions applicable to the
Improvements Allowance in Section 2.5 of the Lease.
6. Visitor Parking.
Section 3.4 of the Lease shall be amended to include the following
subsection (f) at the end thereof:
"(f) Pursuant to Section 5.3(e) of the REA, Landlord is
entitled to designate, for no additional charge (except as provided
below in this subsection (f)), up to an aggregate of ten (10) spaces
of the Visitor Parking Spaces (as defined in the REA) for use solely
by designated Permittees (as defined in the REA), the location of
which as of the date hereof is shown on Exhibit T attached hereto
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(the "Tower I Designated Spaces"); however, Tenant recognizes that
the location of such spaces may change in accordance with the terms
of the REA. Tenant shall be entitled to designate (and to cause
Landlord as Tower I Owner under the REA to designate) an Allocable
Number (defined below) of the Tower I Designated Spaces for use by
Tenant by furnishing notice to Landlord of such designation at least
thirty (30) days prior to the requested effective date of such
designation ("Tenant Designated Spaces"). If Tenant so designates
any Tenant Designated Spaces, Tenant shall be responsible for the
cost of the signs to so designate such Tenant Designated Spaces;
however, if the location of the Tenant Designated Spaces is changed
by Landlord for reasons other than Tenant's request, Landlord shall
be responsible for the costs of the replacement signs to designate
the Tenant Designated Spaces. In no event shall Tenant be entitled
to have designated an amount of Visitor Parking Spaces in excess of
the Allocable Number of the Tower I Designated Spaces from time to
time during the Term. In no event is Landlord obligated to monitor
Tenant Designated Spaces to ensure that such spaces are used only by
Tenant's visitors.
As used herein, "Allocable Number" shall mean a
percentage equal to a fraction, the numerator of which is the square
feet of Net Rentable Area then comprising the Leased Premises, and
the denominator of which is the total square feet of Net Rentable
Area in the Building.
7. Signage.
Section 3.5(b)(iv) of the Lease and the two paragraphs which follow
immediately thereafter in the Lease shall be deleted in their entirety and the
following shall be substituted therefor:
"(iv) for so long as the Condition is satisfied, a
monument sign which is to be located on the property described on
Exhibit A-5 (the "Tollway Sign") which will identify the Complex
(which as of the date hereof is "Galleria North") and will contain
Company's name as well as other names as provided in Article XII of
the REA; provided, however, so long as Tenant leases one hundred
percent (100%) of the Net Rentable Area of the Building, Tenant
shall also be entitled to designate the name to be designated in the
second slot allocated to Tower I pursuant to the REA; provided,
however, the name designated in the second slot allocated to Tower I
pursuant to the REA (i) is subject to Landlord's reasonable
approval, (ii) can only be the name of a subtenant of Company which
subleases, occupies and conducts business in at least one (1) full
floor of the Building, and (iii) cannot be a competitor of Landlord,
HILP or any member of the Xxxxx Group. The Tollway Sign shall be
installed on or prior to December 31, 2000 (subject to Force Majeure
Events and Tenant Delays). The Tollway Sign shall be in compliance
with Legal Requirements.
The costs of installing the initial Signs in clauses (i) and (ii)
above and a portion (which portion shall be determined pursuant to the terms of
the REA) of the costs of installing the Signs in clauses (iii) and (iv) above
shall be included in the Project Costs. The Signs shall be cleaned, repaired and
maintained by Landlord, at Tenant's sole cost and expense (the cost therefor to
be billed separately to Tenant); provided, however, the cost of repairing and
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maintaining the Complex Monument Sign and the Tollway Sign shall be allocated to
the Project pursuant to the terms of the REA and included in Operating Expenses.
Tenant shall be obligated to reimburse Landlord for any costs incurred by
Landlord in connection with any changes made to the Signs at Tenant's request
(to the extent permitted hereunder) after the initial installation thereof.
At such time as the Condition or any other applicable threshold
provided in this subsection (b) is no longer satisfied, Landlord shall be
permitted to remove, replace and/or alter (at Landlord's sole cost and expense)
any of the Parapet Signs and/or Tenant's name on the Project Monument Sign, the
Tollway Sign or the Complex Monument Sign for which the applicable threshold is
no longer satisfied (including, without limitation, by placing the name of
Landlord, any other tenant of the Complex, or any other entity on such signs)."
8. REA Rights.
Section 4.6 (b) of the Lease shall be amended by deleting the
sentence "Additionally, if after the Commencement Date any capital improvements
are added to the Complex Common Areas which were not contemplated by the
Building Plans and Specifications and any such capital improvement (i) is not
required to be made by Legal Requirements or the Initial REA, (ii) does not
reasonably benefit the Building or the occupants thereof, or (iii) is not
consented to by Tenant (which consent may be withheld by Tenant in its sole
discretion), Landlord shall not include any allocation of the cost of installing
such capital improvement in Operating Expenses" in its entirety and substituting
therefor the following sentence:
"Additionally, if after the Commencement Date any capital
improvements are added to the Complex Common Areas which were not
contemplated by the Building Plans and Specifications then unless
any such capital improvement (i) is required to be made by Legal
Requirements or the Initial REA, (ii) reasonably benefits the
Building or the occupants thereof, or (iii) is consented to by
Tenant (which consent may be withheld by Tenant in its sole
discretion), Landlord shall not include any allocation of the cost
of installing such capital improvement in Operating Expenses."
9. Roof Terrace.
(a) The definition of Complex Common Areas set forth in Section
1.1(b) of the Lease shall be amended to include the roof terrace located
adjacent to the pedestrian skywalk connecting the Adjacent Garage to the
Building ("Roof Terrace").
(b) Tenant recognizes that in connection with the Special Public Use
of a take-out restaurant which Tenant is permitted to locate in the Leased
Premises from time to time (subject to the terms of Section 1.5 of the Lease),
individuals may use the Roof Terrace when eating take-out food (subject to the
rules established by Landlord therefor). As a result thereof, Section 2.2(h)(i)
of the Lease shall be amended to recognize that in addition to the duties set
forth therein, Tenant shall be responsible for the day-to-day cleaning of the
Roof Terrace necessitated by the take-out food dining on the Roof Terrace,
including without limitation, cleaning tables and chairs and removing all wet
and dry garbage throughout the day.
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10. Exhibits.
The Lease shall be amended by adding Exhibit T attached hereto as
Exhibit T to the Lease for all purposes of the Lease as if originally attached
thereto.
11. 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. The Lease remains
in full force and effect without any further amendments, alterations, or
modifications thereto except as set forth herein, and Landlord and Tenant
expressly ratify and confirm the Lease as amended hereby. The Lease, as amended
by this Amendment, 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.
[END OF PAGE; SIGNATURE PAGE FOLLOWS]
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EXECUTED the day and year first above written.
LANDLORD:
TEXAS CORPORATE PROPERTIES, L.P.,
a Texas limited partnership
By: Texas Corporate Properties GP, LLC,
its general partner
By: Xxxxx Corporate Properties, LLC,
its sole member
By: /s/ Xxxxxxx Xxxxx
-----------------
Xxxxxxx Xxxxx
President
TENANT:
XXXXX HOSPITALS LIMITED,
a Texas limited partnership
By: Xxxxx HealthSystem Hospitals, Inc.,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxx
---------------------
Xxxxxxxx X. Xxxxx
Vice President
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ACKNOWLEDGMENT OF GUARANTOR
The undersigned hereby acknowledges the matters contained in this
Amendment and agrees that the undersigned's obligations under the Guaranty (as
defined in the Lease) and executed in connection with the Lease are in full
force and effect and shall not be impaired or otherwise adversely affected as a
result thereof. All references in the Guaranty shall refer to the Lease as
amended by this Amendment. Guarantor hereby ratifies and confirms the Guaranty
as amended hereby.
GUARANTOR:
XXXXX HEALTHCARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Chief Executive Officer
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CONSENT OF MORTGAGEE
The undersigned hereby consents to the terms of the First Amendment
to Lease Agreement to which this consent is attached.
MORTGAGEE:
THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxx
-----------------
Xxxxx X. Xxxx
Vice President
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