Exhibit 99.1
NINTH AMENDMENT TO OFFICE LEASE
THIS NINTH AMENDMENT TO OFFICE
LEASE (this “ Ninth 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:
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,
(vi) that certain Seventh Amendment to Office Lease dated as
of July 9, 2001, and (vi) that certain Eighth Amendment
to Office Lease (the “ Eighth Amendment ”) dated
as of April 26, 2006, executed by Landlord and Tenant (the
Original Lease, as so amended, being hereinafter sometimes called
the “ Current Lease ”), which currently relates
to approximately 81,608 square feet of Net Rentable Area (as that
term is defined in the Current Lease) on the 14 th , 15
th , 19
th and
20 th
floors of the Building (such approximately 81,608 square feet of
Net Rentable Area being hereinafter sometimes called the “
Current Premises ”); and
WHEREAS , Landlord and Tenant
now desire to amend the Current Lease to expand the Current
Premises by adding prior to the “2008 Expansion Effective
Date” (as defined in the Eighth Amendment) the space that is
defined to in the Eighth Amendment as the “2008 Expansion
Premises” (such space being referred to in this Ninth
Amendment as the “ Added Premises ”). The
Current Lease, as modified by this Ninth Amendment, is sometimes
hereinafter referred to herein as “ this Lease
”.
NOW, THEREFORE , for and in
consideration of the mutual covenants contained in this Ninth
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. Expansion of Current
Premises .
(a) Pursuant to the Eighth
Amendment, the Current Premises now includes the “2006
Expansion Effective Date” which was defined in the Eighth
Amendment. The parties now hereby agree that effective as of
January 1, 2007 (the “ Added Premises Expansion
Date ”), the Leased Premises shall be expanded to include
the approximately 13,084 Rentable Square Feet on the 19 th floor of the
Building, which was shown on Exhibit “B”
attached to the Eighth Amendment (such approximately 13,084
Rentable Square Feet being called the “ 2008 Expansion
Premises ” in the Eighth Amendment but being called
herein the “ Added Premises ”); and as of the
Added Premises Expansion Effective Date, the Added Premises shall
be added to the definition of “Leased Premises” as that
term is used in this Lease. Accordingly, as of the Added Premises
Effective Date, the Leased Premises for Tenant shall consist of
approximately 94,692 Rentable Square Feet on the 14 th , 15
th , 19
th and
20 th
floors of the Building.
(b) As stated in Paragraph 1(c)
of the Eighth Amendment, the square footage recitation in Paragraph
1(a) above is subject to Tenant’s further rights to expand
pursuant to its right of first refusal prescribed in
Paragraph 8 below.
2. Minimum Rent . As
prescribed in the Eighth Amendment, the Minimum Rent which is
currently payable pursuant to the Current Lease, and shall continue
to be payable until the day immediately preceding the Added
Premises Expansion Date, is $115,611.33 per month. Commencing as of
the Added Premises Expansion Date, and continuing through and
including the Expiration Date of this Lease, the Minimum Rent shall
be $134,147.00 per month.
3. Tenant’s
Proportionate Share; Base Year for Operating Costs . As
prescribed in the Eighth Amendment, Tenant’s Proportionate
Share of any Excess Operating Costs is 6.088%, i.e., based upon a
total of 81,608 Rentable Square Feet Rental Square in the Leased
Premises; and such percentage shall continue to be payable until
the day immediately preceding the Added Premises Expansion Date.
Commencing as of the Added Premises Expansion 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.
4. “AS IS”;
Improvement Allowances .
(a) Tenant acknowledges that it
has made a complete examination and inspection of the Added
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 4(a), however, is subject to the
lease amendments set out in Paragraph 12 below.
Ninth
Amendment to Office Lease
May 8, 2007
2
(b) Tenant has heretofore
commenced construction activities in the Current Premises pursuant
to Paragraph 5(b) of the Eighth Amendment, and Landlord has
accordingly commenced funding to Tenant installments of the
$735,140.00 “2006 Allowance” which is described in that
Paragraph 5(b). By this Ninth Amendment the parties hereby
extend the deadline for Tenant’s receiving the balance of the
“2006 Allowance” (i.e., the deadline stated in the
first line of Paragraph 5(b) of the Eighth Amendment), from
October 1, 2006 to December 31, 2007.
(c) This Paragraph 4(c) replaces
Paragraph 5(c) of the Eighth Amendment, which is hereby deleted in
its entirety (as are all references in the Eighth Amendment to the
“2008 Allowance”). The parties hereby agree that at any
time prior to December 31, 2007, Tenant may request from
Landlord a reimbursement for out-of-pocket costs which Tenant has
incurred in remodeling the Current Premises and/or the Added
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 $392,520.00 of Tenant’s
out-of-pocket costs. Such $392,520.00 amount (the “ Added
Premises Allowance ”) has been calculated by multiplying
$30.00 times the Rentable Square Feet in the Added Premises.
Landlord further agrees that the sum of the 2006 Allowance and the
Added Premises Allowance may be used for improvements in the
Current Premises, in the Added Premises, or allocated between the
Current Premises and the Added Premises as Tenant so chooses.
Notwithstanding the immediately preceding sentence to the contrary,
both the 2006 Allowance and the Added Premises 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 (c), 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 allowances
have 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.
5. Parking .
(a) For the period of the Lease
Term through and including the day immediately preceding the
Added
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