FIRST AMENDMENT OF LEASE
THIS FIRST AMENDMENT OF LEASE ("First Amendment") is made on May 9, 2003
between TRIZEC REALTY, INC., a California corporation ("Landlord"), whose
address is 000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx XX 00000 and MATRIA
HEALTHCARE, INC., a Delaware corporation ("Tenant"), whose address is 0000
Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000.
RECITALS
This First Amendment is based upon the following recitals:
A. Landlord and Tenant entered into a Lease dated August 29, 2002
("Lease"), for the premises known as Suite 233 of 0000 Xxxxxxxxx Xxxxxxx,
Xxxxxxxx, XX 00000 ("Premises").
B. Tenant has exercised the expansion option described in Section 29 of
the Lease.
C. Landlord and Tenant desire to amend the Lease to reflect the foregoing
and otherwise amend the Lease accordingly.
THEREFORE, in consideration of the mutual covenants and agreements stated
in the Lease and below, and for other sufficient consideration received and
acknowledged by each party, Landlord and Tenant agree to amend the Lease as
follows:
1. RECITALS. All recitals are fully incorporated.
2. ADDRESS - NOTICES. Landlord's address for notices as set forth in Lease
shall be deleted and the following substituted therefore:
Trizec Realty, Inc.
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Vice President
with a copy to:
Trizec Realty, Inc.
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Lease Administrator
and if notice of default:
Trizec Realty, Inc.
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Regional Counsel
1
3. PREMISES.
A. Effective as of the "Commencement Date" (as hereinafter defined),
Section 1 of the Lease is hereby amended by replacing the description of the
"Premises" in Section 1.1(e) of the Lease with the following for all purposes of
the Lease from and after the Commencement Date:
Project: Newmarket Business Park Address: 0000 Xxxxxxxxx Xxxxxxx
Suites: 233 and 262 City: Marietta
Rentable square feet: 56,488 County: Xxxx
State: Xxxxxxx
X. Exhibit A to the Lease is hereby deleted in its entirety and the
space plan that is attached to this First Amendment as Exhibit A hereto is
hereby inserted in lieu thereof. Exhibit A-1 to the Lease is hereby deleted in
its entirety and the language "Intentionally Deleted" is inserted in lieu
thereof.
C. Effective as of the Commencement Date, Section 1 of the Lease is
hereby amended by replacing the description of the "Tenant's Share" in Section
1.1(q) of the Lease with the following for all purposes of the Lease from and
after the Commencement Date:
"Tenant's Share", with respect to the calculations of Additional
Rent according to Section 4.2, 51.09% (.5109)."
D. For the purposes hereof, the Commencement Date means the date
that is the earlier of: (1) July 1, 2003; or (2) the day that Landlord tenders
the Premises to Tenant with Landlord's Work substantially complete or that date
that Landlord would have tendered possession of the Premises but for Tenant
Delay. If Landlord fails to tender possession of the Premises to Tenant by the
Scheduled Commencement Date due to Tenant Delay or Force Majeure, Landlord will
not be in default of this Lease
4. RENT and ADDITIONAL RENT.
A. Effective as of the Commencement Date, Section 1 of the Lease is
hereby amended by replacing the description of the "Rent" in Section 1.1(i) of
the Lease with the following for all purposes of the Lease from and after the
Commencement Date:
Annual Base Rent
Per Rentable Annual
Term Square Foot Rent Base Rent Monthly Base
12/01/02 - the day preceding $10.00 $466,110.00 $38,842.50
the Commencement Date
Commencement Date - 04/30/04 $10.00 $564,880.00 $47,073.33
05/01/04 - 04/30/05 $10.30 $581,826.40 $48,485.53
05/01/05 - 04/30/06 $10.61 $599,337.68 $49,944.81
05/01/06 - 04/30/07 $10.93 $617,413.84 $51,451.15
05/01/07 - 04/30/08 $11.26 $636,054.88 $53,004.57
B. Tenant shall continue to pay as Additional Rent its pro-rata
share (as modified above, effective as of the Commencement Date) of tax and
insurance escalation expenses as described in Paragraph 4.2 of the Lease, to the
extent such share exceeds such expenses for the calendar year ending December
31, 2002.
C. Common Area Maintenance Expense shall continue to be payable by
Tenant at the rate of $0.83 per square foot of Premises per year and shall be
payable in equal monthly payments along with Tenant's monthly Rent during the
Term. Tenant also shall continue to pay for all of its own utilities and
services pursuant to Paragraph 7 of the Lease.
2
5. DELIVERY OF AND IMPROVEMENTS TO THE PREMISES. Prior to the Commencement
Date, Landlord shall perform the "Landlord's Work" described on the Work Letter
attached hereto as Exhibit B to this First Amendment and made a part hereof, all
according to the terms and conditions of said Work Letter.
6. BROKERS. Landlord and Tenant represent and warrant that no broker or
agent negotiated or was instrumental in negotiating or consummating this Lease
except TrizecHahn Colony Square GP LLC and The Xxxxxx Group ("Brokers"). Neither
party knows of any other real estate broker or agent who is or might be entitled
to a commission or compensation in connection with this Lease. Landlord will pay
all fees, commissions or other compensation payable to the Brokers arising from
or related to this transaction. Pursuant to Georgia Real Estate Commission
Regulation 000-0-000, TrizecHahn Colony Square GP LLC hereby discloses the
following concerning this lease transaction: (1) TrizecHahn Colony Square GP LLC
represents Landlord and not Tenant; (2) The Xxxxxx Group represents Tenant and
not Landlord; and (3) both TrizecHahn Colony Square GP LLC and The Xxxxxx Group
shall receive their entire compensation from Landlord. Tenant and Landlord will
indemnify and hold each other harmless from all damages paid or incurred by the
other resulting from any claims asserted against either party by brokers or
agents (other than the Brokers) claiming through the other party.
7. CONFLICTING PROVISIONS. If any provisions of this First Amendment
conflict with any of those of the Lease, then the provisions of this First
Amendment shall govern.
8. REMAINING LEASE PROVISIONS. Except as stated in this First Amendment,
all other viable and applicable provisions of the Lease shall remain unchanged
and continue in full force and effect throughout the Lease Term.
9. BINDING EFFECT. Landlord and Tenant ratify and confirm the Lease and
agree that this First Amendment shall bind and inure to the benefit of the
parties, and their respective successors, assigns and representatives as of the
date first stated.
--signatures appear on following page--
3
AFFIRMING THE ABOVE, the parties have executed this FIRST AMENDMENT OF
LEASE on the date first stated.
WITNESSES LANDLORD:
TRIZEC REALTY, INC., a California corporation
/s/ BY: /s/ Xxxxxx X. Xxxxxx
------------------------- ---------------------------------
Xxxxxx X. Xxxxxx
Assistant Secretary
/s/ BY: /s/ Xxxxxxx X. Xxxxxxxx
------------------------- ---------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
TENANT:
MATRIA HEALTCARE, INC., a Delaware corporation
/s/ BY: /s/ Xxxxxx X. Xxxxx
------------------------- ---------------------------------
ITS: Chairman and CEO
4
