Exhibit 10.2
FIFTH AMENDMENT TO LEASE AGREEMENT
THIS FIFTH AMENDMENT TO LEASE AGREEMENT (this "Amendment") is made
and entered into as of the 30th day of August, 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;
WHEREAS, Landlord is the successor in interest to Successor
Landlord;
WHEREAS, the Original Lease was further amended by that certain
Fourth Amendment to Lease Agreement dated June 8, 2007, by and between Landlord
and Tenant (the "Fourth Amendment"; the Original Lease, the First Amendment, the
Second Amendment, the Third Amendment and the Fourth Amendment are collectively
referred to herein as the "Lease"); 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 486 square feet of Net Rentable Area located on Floor 10 of the
Building (the "Floor 10 Space") is estimated to terminate at 6:00 P.M. on August
31, 2007 (the "Floor 10 Reduction Date"); provided, however, that the Reduction
Date for the Floor 10 Space shall occur (if at all) no earlier than the date
upon which the StarTex Lease Amendment (defined in Paragraph 6 hereof) has been
executed, as set forth in Paragraph 6 of this Amendment. Landlord and Tenant
hereby further agree that the term of the Lease as to that certain 26,000 square
feet of Net Rentable Area located on Floor 25 of the Building (the "Floor 25
Space"; the Floor 10 Space and the Floor 25 Space, collectively, the "Reduction
Space") shall terminate at 6:00 P.M. on August 31, 2007 (the "Floor 25 Reduction
Date"). The Reduction Space is shown on Exhibit A attached hereto and
incorporated herein. After the Floor 10 Reduction Date and the Floor 25
Reduction Date, Tenant shall no longer have any rights (including the right of
possession) in the Floor 10 Space and the Floor 25 Space, respectively, and
Landlord and Tenant shall be released of all further obligations, covenants and
agreements accruing under the Lease with respect to the Floor 10 Space and the
Floor 25 Space after the Floor 10 Reduction Date and the Floor 25 Reduction
Date, respectively. 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 Floor
10 Reduction Date and the Floor 25 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 Floor 10 Space to Landlord (subject
to Paragraph 6 of this Amendment) on or before the Floor 10 Reduction Date and
Tenant agrees to surrender the Floor 25 Space on or before the Floor 25
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
Floor 10 Space and the Floor 25 Space after the Floor 10 Reduction Date and the
Floor 25 Reduction Date, respectively. 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.
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4. Remaining Premises. After the Floor 10 Reduction Date and the Floor 25
Reduction Date, the remaining Leased Premises (the "Remaining Premises") shall
consist of the following:
Square Feet of
Net Rentable Area Floor
----------------- -----
5,372 9
10,615 10
24,977 13
24,314 14
25,594 15
24,314 16
24,977 17
24,314 18
24,977 19
24,314 20
25,571 24
-------
239,339 2
After the Floor 10 Reduction Date and the Floor 25 Reduction Date,
Tenant's pro rata share of the Building shall be equal to 38.69%. Tenant shall
pay as the Base Rental for the Remaining Premises an amount equal to $388,542.54
per month during the remainder of the Term in the manner required under the
Lease.
5. Termination Fee.
As consideration for the early termination of the Lease with respect
to the Floor 25 Space, Tenant shall pay a termination fee in the amount of One
Hundred One Thousand Five Hundred Five and No/100 Dollars ($101,505.00) by ACH
wire transfer within fifteen (15) days of the Effective Date of this Amendment.
6. 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 located on the tenth (10th) floor from the Floor 10 Space only within a
reasonable time following the Floor 10 Reduction Date, if necessary.
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7. Contingency.
Landlord and Tenant expressly agree that this Amendment with respect
to the termination of the Floor 10 Space only is subject to and contingent upon
Landlord and Star Electricity, LLC, a Texas limited liability company dba
StarTex Power and SmartPay Power ("StarTex"), entering into that certain First
Amendment to Lease Agreement ("StarTex Lease Amendment"), on terms satisfactory
to Landlord in its sole discretion, contemporaneously with the execution of this
Amendment. If the StarTex Lease Amendment is not fully executed and delivered by
each of Landlord and StarTex, each acting in their sole discretion, within
forty-five (45) days after the Effective Date of this Amendment, this Amendment
with respect to the termination of the Floor 10 Space only shall terminate
automatically and be of no further force and effect, and Tenant shall remain
fully liable for all obligations under the Lease with respect to the Floor 10
Space, which shall remain a part of the Leased Premises for all purposes under
the Lease.
8. 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.
9. 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.
---------------------------
Xxx X. Xxxxx, Xx.
Its: Vice President and Asset Manager
TENANT:
WASHINGTON MUTUAL BANK,
a federal association
By: /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
Title: First Vice President
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EXHIBIT A
REDUCTION SPACE
Floor 10 Space
486 NRA
[GRAPHIC OF FLOOR PLAN]
6
REDUCTION SPACE
Floor 25 Space
26,000 NRA
[GRAPHIC OF FLOOR PLAN]
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