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Exhibit 10.25
EIGHTH AMENDMENT TO OFFICE LEASE
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THIS
EIGHTH AMENDMENT TO OFFICE LEASE (this "Eighth Amendment") is made
as
of the later of the dates accompanying a signature by Landlord and
Tenant below,
by and between BERKELEY FIRST CITY, LTD., a Delaware limited
partnership
("Landlord"), and PENSON WORLDWIDE, INC., a Delaware corporation
("Tenant").
WITNESSETH:
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WHEREAS,
Landlord's predecessor-in-interest, F/P/D Master Lease, Inc., a
Texas corporation ("Original Landlord"), and Tenant's
predecessor-in-interest,
Service Asset Management Company, a North Carolina corporation
("Original
Tenant"), entered into that certain Office Lease dated as of May
20, 1998 (the
"Original Lease"), with respect to the lease of approximately
31,478 square feet
of Net Rentable Area (as defined in the Lease) on the 14th floor
known as Suite
1400 of that certain office building known as 1700 Pacific (the
"Building"),
which Original Lease was amended by (i) that certain First
Amendment to Office
Lease dated as of July 16, 1998, (ii) that certain Second Amendment
to Office
Lease dated as of February 17, 1999, (iii) that certain Third
Amendment to
Office Lease dated as of September 20, 1999, (iv) that certain
Fourth Amendment
to Office Lease dated as of November 30, 1999, (v) that certain
Fifth Amendment
to Office Lease dated as of May 25, 2000, (vi) that certain Sixth
Amendment to
Office Lease dated as of January 9, 2001, and (vi) that certain
Seventh
Amendment to Office Lease dated as of July 9, 2001 (the Original
Lease, as so
amended, being hereinafter sometimes called the "Current Lease"),
which
currently relates to approximately 68,524 square feet of Net
Rentable Area (as
that term is defined in the Lease) on the 14th, 15th and 20th
floors of the
Building (such approximately 68,524 square feet of Net Rentable
Area being
hereinafter sometimes called the "Current Premises");
WHEREAS,
as documents ancillary to the Current Lease, Original Landlord
and Original Tenant also entered into that certain Temporary Space
License
Agreement dated as of November 8, 1999 (the "Garage Space
License"), which
granted Original Tenant a temporary license to use space on the
third floor of
the On-Site Garage (as that term is defined in the Original Lease)
for a back-up
electrical generator, and that certain Antenna Site License
Agreement dated as
of February 15, 2001 (the "Antenna License"), which granted
Original Tenant a
license to use space on the roof of the Building for specified
"Site Equipment"
(as that term is defined in the Antenna License);
WHEREAS,
Original Landlord sold the Building to Landlord in June 2005;
therefore, Landlord is the current owner of the Building;
WHEREAS,
in September 2000, Original Tenant changed its name to Penson
Financial Services, Inc., as confirmed by an Application for
Amended Certificate
of Authority filed by Original Tenant with the Secretary of State
of the State
of Texas on September 25, 2000;
WHEREAS,
prior to the date of this Eighth Amendment, Original Tenant has
assigned all of its rights and obligations under the Current Lease,
the Garage
Space License and the
EIGHTH AMENDMENT TO OFFICE LEASE
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Antenna License to Tenant, which is the ultimate parent company of
Original
Tenant; and Tenant has assumed all such rights and obligations;
and
WHEREAS,
Landlord and Tenant now desire to amend the Current Lease to
expand the Current Premises, to extend the Term of the Current
Lease (and,
accordingly, the terms of the Garage Space License and the Antenna
License) and
to modify certain other provisions of the Current Lease as set
forth herein,
with the Current Lease, as modified by this Eighth Amendment, being
sometimes
referred to herein as "this Lease".
NOW,
THEREFORE, for and in consideration of the mutual covenants
contained
in this Eighth Amendment, and other good and valuable
consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and
Tenant do hereby
agree as follows:
1.
Expansions
of Current Premises.
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(a)
Effective as of July 1, 2006 (the "2006 Expansion Effective
Date"),
the Original Lease is hereby amended to include within the Leased
Premises
approximately 13,084 Rentable Square Feet on the 19th floor of the
Building, as
shown more particularly on Exhibit "A" attached hereto (such
approximately
13,084 Rentable Square Feet being hereinafter sometimes called the
"2006
Expansion Premises"); and as of the 2006 Expansion Effective Date,
the 2006
Expansion Premises shall be added to the definition of "Leased
Premises" as that
term is used in this Lease. Accordingly, as of the 2006 Expansion
Effective Date
the Leased Premises for Tenant shall consist of approximately
81,608 Rentable
Square Feet on the 14th, 15th, 19th and 20th floors of the
Building.
(b)
Effective as of February 1, 2008 (the "2008 Expansion Effective
Date"), this Lease is hereby amended to include within the Leased
Premises the
approximately 13,084 remaining Rentable Square Feet on the 19th
floor of the
Building, as shown more particularly on Exhibit "A" attached hereto
(such
approximately 13,084 remaining Rentable Square Feet being
hereinafter sometimes
called the "2008 Expansion Premises"); and as of the 2008 Expansion
Effective
Date, the 2008 Expansion Premises shall be added to the definition
of "Leased
Premises" as that term is used in this Lease. Accordingly, as of
the 2008
Expansion Effective Date the Leased Premises for Tenant shall
consist of
approximately 94,692 Rentable Square Feet on the 14th, 15th, 19th
and 20th
floors of the Building.
(c) The
square footage recitations in this Paragraph 1 are subject to
Tenant's further rights to expand pursuant to its right of first
refusal
prescribed in Paragraph 8 below.
2.
Extension of the Term of This Lease. The Term of the Current Lease,
as
well as the terms of the Garage License Agreement and the Antenna
License
Agreement, are scheduled to expire after the close of business on
December 31,
2008. By their execution of this Eighth Amendment, Landlord and
Tenant hereby
agree that the Term of this Lease for the Current Premises, the
2006 Expansion
Premises and the 2008 Expansion Premises shall continue through and
including
June 30, 2016 (with the date of June 30, 2016 being hereby
substituted for the
date of November 30, 2008 in the definition of "Expiration Date" on
Page 2 of
the Original Lease). Similarly, the terms of the Garage License
Agreement and
the Antenna License Agreement shall
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EIGHTH AMENDMENT TO OFFICE LEASE
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be extended accordingly. This Paragraph 2, however, is subject to
the provisions
of Paragraph 11 below.
3. Minimum
Rent. The definition of Minimum Rent on Page 2 of the Original
Lease is hereby amended to be as follows: (a) for the period of the
Lease Term
through and including June 30, 2006, such Minimum Rent shall be as
stated in the
Current Lease; (b) commencing on the 2006 Expansion Effective Date
and
continuing through and including January 31, 2008, such Minimum
Rent shall be
$115,611.33 per month; and (c) commencing on the 2008 Expansion
Effective Date
and continuing through and including the Expiration Date of this
Lease, such
Minimum Rent shall be $134,147.00 per month.
4.
Tenant's
Proportionate Share; Base Year for Operating Costs.
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(a) For
the period of the Lease Term through and including June 30,
2006,
Tenant's Proportionate Share of any Excess Operating Costs shall
continue to be
calculated as prescribed in the Current Lease. Commencing on the
2006 Expansion
Effective Date and continuing through and including January 31,
2008, Tenant's
Proportionate Share of any Excess Operating Costs shall be 6.088%,
i.e., based
upon a total of 81,608 Rentable Square Feet Rental Square in the
Leased
Premises, in lieu of the 5.112% share set forth in Paragraph 4 of
the
above-mentioned Sixth Amendment to Office Lease. Commencing on the
2008
Expansion Effective Date and continuing through and including the
Expiration
Date of this Lease, Tenant's Proportionate Share of any Excess
Operating Costs
shall be 7.064%, i.e., based upon the total of 94,692 Rentable
Square Feet
Rental Square in the Leased Premises.
(b) On and
after the 2006 Expansion Effective Date and continuing through
and including the Expiration Date of this Lease the Base Year for
Operating
Costs shall become calendar year 2006.
5.
"AS IS";
Improvement Allowances.
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(a) Tenant
acknowledges that it has made a complete examination and
inspection of the Premises and accepts the same in its current
condition, "AS
IS, WHERE IS", without recourse to Landlord, and Landlord shall
have no
obligation to complete any improvements to the Premises.
ADDITIONALLY, LANDLORD
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
LEASEHOLD
IMPROVEMENTS IN THE PREMISES. ALL IMPLIED WARRANTIES WITH RESPECT
THERETO,
INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY, HABITABILITY
AND FITNESS
FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED, NEGATED AND
WAIVED. This
Paragraph 5(a), however, is subject to the lease amendments set out
in Paragraph
12 below.
(b) The
parties further agree that at any time prior to October 1,
2006,
Tenant may request from Landlord a reimbursement for out-of-pocket
costs which
Tenant has incurred in remodeling the Current Premises and/or the
2006 Expansion
Premises; and provided that Tenant is not then in default under
this Lease
beyond applicable grace periods, Landlord will reimburse Tenant for
up to
$735,140.00 of Tenant's out-of-pocket costs. Such $735,140.00
amount has been
calculated by multiplying $30.00 times the Rentable Square Feet in
the 2006
Expansion
EIGHTH AMENDMENT TO OFFICE LEASE
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Premises and $5.00 times the Rentable Square Feet in the Current
Premises;
however, the entire $735,140.00 (the "2006 Allowance") may be used
for
improvements in the Current Premises, in the 2006 Expansion
Premises, or
allocated between the Current Premises and the 2006 Expansion
Premises as Tenant
so chooses. Notwithstanding the immediately preceding sentence to
the contrary,
the 2006 Allowance shall be reduced by 5% of the amounts so
requested by Tenant,
in order to account for a construction management fee payable to
Landlord on
account of Landlord's coordination efforts and costs in
facilitating Tenant's
remodeling activities. In connection with the remodeling for which
a
reimbursement is prescribed in this subparagraph (b), Landlord and
Tenant
further agree that the construction contract for such remodeling
shall be
executed by Landlord after approval thereof by both Landlord and
Tenant;
moreover, both Landlord and Tenant also agree that Landlord shall
pay the cost
of such remodeling until the above-stated allowance has been
reduced to zero,
after which time Tenant shall pay all remaining costs and shall
indemnify
Landlord from any claims by the contractors on account of such
remaining costs.
(c) The
parties further agree that at any time which is after the 2008
Expansion Effective Date and prior to May 1, 2008, Tenant may
request from
Landlord a reimbursement for out-of-pocket costs which Tenant has
incurred in
remodeling the 2008 Expansion Premises; and provided that Tenant is
not then in
default under this Lease beyond applicable grace periods, Landlord
will
reimburse Tenant for up to $330,371.00 (the "2008 Allowance") of
Tenant's
out-of-pocket costs in remodeling the 2008 Expansion Premises, such
$330,371.00
amount for the 2008 Allowance having been calculated by multiplying
$30.00 times
the Rentable Square Feet in the 2008 Expansion Premises and then
multiplying
that product times 84.1667% (the percentage of the 120-month Lease
Term
prescribed in Paragraph 2 above which will be remaining as of the
2008 Expansion
Effective Date). Notwithstanding the immediately preceding sentence
to the
contrary, the 2008 Allowance shall be reduced by 5% of the amounts
so requested
by Tenant, in order to account for a construction management fee
payable to
Landlord on account of Landlord's coordination efforts and costs in
facilitating
Tenant's remodeling activities.
6.
Parking.
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(a) For
the period of the Lease Term through and including June 30,
2006,
Tenant's parking privileges shall continue to be as prescribed in
the Current
Lease. Effective as of the 2006 Expansion Effective Date and
continuing through
January 31, 2008, Tenant's parking permits, as originally explained
in
Paragraph53 of the Original Lease, shall be amended to provide that
Landlord
shall provide Tenant, in lieu of the parking permits specified in
the Current
Lease, sixteen (16) permits for unassigned, unreserved parking in
the On-Site
Garage, as that term is defined in the Current Lease (the "On-Site
Unreserved
Permits") and ninety (90) permits for unassigned, unreserved
parking in the
Off-Site Garage, as that term is defined in the Current Lease (the
"Off-Site
Permits").
(b)
Effective as of the 2008 Expansion Effective Date and
continuing
throughout the remainder of the Term of this Lease, Tenant's
parking permits, as
originally explained in Paragraph53 of the Original Lease, shall be
amended to
provide that Landlord shall provide Tenant, in lieu of the parking
permits
specified in subsection (a) immediately above, eighteen (18)
permits for
