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Exhibit
10.2
FOURTH AMENDMENT TO
BUILD-TO-SUIT
NET LEASE
THIS FOURTH AMENDMENT TO
BUILD-TO-SUIT NET LEASE (this “Amendment”) is made and
entered into as of September 3, 2004 by and between OPUS REAL
ESTATE TEXAS IV LIMITED PARTNERSHIP, a Delaware limited partnership
(“Landlord”) and ADS ALLIANCE DATA SYSTEMS, INC., a
Delaware corporation (“Tenant”).
RECITALS
A. Landlord and Tenant are
parties to a certain Build-to-Suit Net Lease dated January 29,
1998 by and between Tenant and Opus South Corporation (“Opus
South”), as amended by a certain First Amendment to
Build-to-Suit Net Lease dated as of February 16, 2000, as
further amended by a certain Second Amendment to Build-to-Suit Net
Lease dated as of December 4, 2000, and as further amended by
a certain Third Amendment to Build-to-Suit Net Lease dated as of
September 10, 2001 (as amended, the “Lease”). Opus
South assigned all of the landlord’s interest in the Lease to
Oaklawn Alliance, L.L.C. on December 3, 1998, and Oaklawn
Alliance, L.L.C. further assigned all of the landlord’s
interest in the Lease to Landlord on November 15, 2001.
Capitalized terms used herein but not otherwise defined shall have
the meanings given them in the Lease.
B. Pursuant to
Section 18(j) of the Lease, upon Tenant’s approval of
the Tenant’s Expansion Cost Proposal, the terms of the Lease
were to be automatically amended to provide, among other things,
that the Tenant would have an option to terminate the Lease as to
the Expansion Building only, at any time after the end of the
seventh (7 th ) anniversary of the Expansion Commencement Date upon
certain terms and conditions (the “Termination Right”).
Tenant approved the Tenant’s Expansion Cost Proposal, and the
Expansion Commencement Date was (i) for the First Floor and
Second Floor of the Expansion Building, September 18, 2000,
and (ii) for the Third Floor of the Expansion Building,
October 16, 2000. Accordingly, the Lease has been
automatically amended to include, among other things, the
Termination Right.
C. Landlord and Tenant desire
to amend the Lease to remove the Termination Right upon the terms
and conditions set forth herein.
AGREEMENTS
NOW, THEREFORE in
consideration of the premises and one dollar and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Recitals . The
Recitals hereto are true and correct and are incorporated
herein.
2. Removal of Termination
Right . Subject to Section 3 below, Tenant hereby
relinquishes the Termination Right, and Landlord and Tenant
acknowledge that the Termination Right and all provisions in the
Lease with respect to the Termination Right are of no further force
and affect. Accordingly, the Lease is amended as
follows:
B-1
(a) Section 180(1) of
the Lease is hereby amended and restated in its entirety to read as
follows:
“(I) The Term of this
Lease will be extended so that it ends on the day before the tenth
(10 th ) anni
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