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EXHIBIT 10.9
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by Alliance Gateway No. 16,
Ltd., a Texas limited partnership ("Landlord"), and Ameritrade Holding
Corporation, a Delaware corporation ("Tenant");
WITNESSETH:
1. PREMISES AND TERM. In consideration of the mutual obligations of
Landlord and Tenant set forth herein, Landlord leases to Tenant, and Tenant
hereby takes from Landlord, the Premises situated within the County of Tarrant,
State of Texas, more particularly described and indicated by the cross-hatched
area on Exhibit "A" attached hereto and incorporated herein by reference (the
"Premises") which Premises are to consist of the Building, together with all
rights, privileges, easements, appurtenances, and amenities belonging to or in
any way pertaining to the Premises, to have and to hold, subject to the terms,
covenants and conditions in this Lease. During the Lease Term, Tenant shall have
the exclusive use of at least 400 parking spaces located or to be located on the
Land and the nonexclusive use of all driveways and access-ways on the Land.
Landlord shall have no obligation to patrol or police any parking areas or
otherwise insure that such parking spaces are available for use by Tenant or its
employees, agents or invitees. Tenant agrees that its use of such parking spaces
shall be subject to such reasonable rules and regulations as Landlord may from
time to time promulgate and all reasonable directional and other signs from time
to time existing with respect to the parking relating to the Building. Tenant's
rights under this Lease shall be subject to all matters of public record,
including, without limitation, all easements, deed restrictions, covenants,
conditions and restrictions, as exist on the date hereof and as may hereafter be
imposed by Landlord (provided, however, that Landlord agrees it will not cause
any matter to be filed of record subsequent to the date hereof which would
interfere with the Permitted Use (hereinafter defined) or otherwise materially
change Tenant's obligations hereunder). The term of this Lease ("Term") shall
commence on the Commencement Date and shall end at the same time as the Two
Ameritrade Lease expires. The Premises are to be situated on the Land described
on Exhibit "B" attached hereto and made a part hereof,
A. After the Commencement Date, Landlord and Tenant shall execute and
deliver to one another a memorandum of acceptance of delivery of the Premises in
the form attached hereto as Exhibit "D".
B. Notwithstanding the fact that the Term of this Lease and Tenant's
obligation to pay rent does not commence until the Commencement Date, this Lease
shall nevertheless be binding upon the parties in accordance with its terms when
executed by Landlord and Tenant.
2. BASE RENT, SECURITY DEPOSIT AND ESCROW PAYMENTS.
A. Tenant agrees to pay to Landlord base rent ("Base Rent") for the
Premises, in advance, without demand, deduction or set off, except as otherwise
expressly provided herein, at the following rates and amounts during the Term
hereof:
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Monthly Annual Per Square Foot
Month Base Rent Base Rent Per Annum
Month 1 of this $45,658.03 $547,906.00 $ 11.50
Lease through
month 60 of the
"Term" of the
Two Ameritrade
Lease
Month 61 of Two $51,614.33 $619,372.00 $ 13.00
Ameritrade
Lease through
Month 120 of
Two Ameritrade
Lease
Month 121 of Two $58,324.20 $699,890.36 $ 14.69
Ameritrade
Lease through
expiration date of
primary Term
Notwithstanding the foregoing, Base Rent shall be abated during months
1-3 of the Term of this Lease.
The first monthly installment of Base Rent, plus the other monthly
charges set forth in Xxxxxxxxx 0X xxxxx, shall be due and payable on the
Commencement Date and subsequent monthly installments shall be due and payable
on or before the first day of each calendar month succeeding the Commencement
Date, except that all payments due hereunder for any fractional calendar month
shall be prorated.
B. In addition, Tenant agrees to deposit with Landlord on the date
hereof the sum of Forty Five Thousand Six Hundred Fifty Eight and 83/100 Dollars
($45,658.83), which shall be held by Landlord as security for the performance of
Tenant's obligations under this Lease, it being expressly understood and agreed
that this security deposit is not an advance rental deposit or a measure of
Landlord's damages in case of Tenant's default. Upon each occurrence of an Event
of Default (hereinafter defined), Landlord may use all or part of the security
deposit to pay past due rent or other payments due Landlord under this Lease,
and the cost of any other damage, injury, expense or liability caused by such
Event of Default without prejudice to any other remedy provided herein or
provided by law. Within ten (10) days after demand, Tenant shall pay Landlord
the amount that will restore the security deposit to its original amount. The
security deposit shall be deemed the property of Landlord, but any remaining
balance of such security deposit shall be returned by Landlord to Tenant within
ten (10) days after the fulfillment of Tenant's obligations under this Lease
(excluding any obligations that survive the termination or expiration of this
Lease and with respect to which Tenant has not received written notice from
Landlord within ten (10) days following the expiration or termination of this
Lease).
C. In addition to Base Rent and Tenant's other obligations hereunder,
Tenant agrees to pay its proportionate share (as defined in the Basic Lease
Information) of the following costs and expenses (collectively, the
"Reimbursable Expenses"): (i) Taxes (hereinafter defined) payable by Landlord
pursuant to Xxxxxxxxx 0X xxxxx, (xx) the cost of maintaining insurance pursuant
to Xxxxxxxxx 00X xxxxx, (xxx) Common Area Charges (hereinafter defined) payable
by Tenant in accordance with Xxxxxxxxx 0 xxxxx, (xx) subject to Paragraph 2D
below, the cost of any repair, replacement, or capital expenditures required
under any governmental law or regulation that was not applicable to the Building
at time of original construction, and (v) reasonable replacement reserves for
capital items and other operating expenses required by this Lease. During each
month of the Term of this Lease, on the same day that Base Rent is due
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proportionate share of such Reimbursable Expenses, as estimated by Landlord.
Landlord agrees that all escrow amounts deposited by Tenant with Landlord that
are attributable to Taxes shall be held by Landlord in a money market deposit
account ("Tax Escrow Account") in a financial institution selected by Landlord
and reasonably acceptable to Tenant. All interest on the funds in the Tax Escrow
Account shall accrue for the benefit of Tenant so long as no Event of Default
exists hereunder, and such interest shall remain in and become a part of the
funds in the Tax Escrow Account and shall be credited against Tenant's
obligation to pay Taxes hereunder (provided that any such Interest that remains
unapplied after all obligations of Tenant with respect to its proportionate
share of Taxes for any calendar year have been satisfied, shall, at Tenant's
option, be refunded to Tenant within thirty (30) days after final determination
of Tenant's obligation with respect to Taxes arising during such calendar year).
Tenant authorizes Landlord to use the funds deposited with Landlord under this
Paragraph 2C (including the amounts in the Tax Escrow Account and all interest
thereon) to pay such Reimbursable Expenses. Upon the occurrence of an Event of
Default Landlord shall have no obligation to keep the escrow payments for Taxes
in the Tax Escrow Account or any other segregated account (provided that such
escrow payments for Taxes as well as any accrued interest thereon shall be
credited to Tenant's obligation to pay Taxes hereunder). Landlord shall be
entitled to revise its projection of such Reimbursable Expenses at any time and
if Landlord so revises such projection, Tenant shall pay to Landlord, on the
same day as Base Rent is due hereunder, an amount equal to 1/12th of Tenant's
proportionate share of such Reimbursable Expenses pursuant to Landlord's revised
estimate thereof. By April 30 of each calendar year during the Term hereof
Landlord shall determine the actual Reimbursable Expenses for the preceding
calendar year and shall notify Tenant thereof. If the Tenant's total escrow
payments are less than Tenant's actual proportionate share of all such
Reimbursable Expenses, Tenant shall pay the difference to Landlord within ten
(10) days after demand. If the total escrow payments of Tenant are more than
Tenant's actual proportionate share of all such Reimbursable Expenses, Landlord
shall retain such excess and credit it against Tenant's next annual escrow
payments; provided, however, if the total escrow payments of Tenant are more
than Tenant's actual proportionate share of all such Reimbursable Expenses for
the year in which the Lease expires, Landlord shall reimburse Tenant any excess
within ten (10) days following the expiration of the Term.
D. With respect to the cost of replacements and capital expenditures
(as opposed to repairs) referenced in Paragraph 2(C)(iv) and replacement
reserves for capital items referenced in Paragraph 2(C)(v) above, it is agreed
that if the replacement or expenditure is applicable to building owners
generally (and is not necessitated due to Tenant's use of the Premises), then
the cost of any such item shall be amortized amortized over its useful life (at
a per annum interest rate equal to the prime rate of interest announced from
time to time by Bank One Texas, N.A. plus one percentage point) in accordance
with generally accepted accounting principles and the portion of the cost that
shall be included within Paragraph 2(C)(iv) or Paragraph 2(C)(v) above, as
applicable, shall be equal to the product of (i) the actual cost of such item
(together with such interest), multiplied by (ii) a fraction the numerator of
which is the number of years (including partial years) remaining in the Lease
Term as of the date of such replacement or expenditure including the number of
years in any renewal term under Exhibit "F" attached hereto if the renewal
option therefor has been exercised by Tenant prior to the replacement or
expenditure (up to but not greater than the following described denominator),
and the denominator of which is the useful life of the item in question;
provided that if subsequent to any such replacement or expenditure Tenant
exercises any renewal option, the portion of the cost included within Paragraph
2(C)(iv) or Paragraph 2(C)(v) above under this sentence shall be recalculated to
include the length of the renewal term in question. The amount to be included
within Paragraph 2(C)(iv) or Paragraph 2(C)(v) pursuant to the immediately
preceding sentence shall be so included within said Paragraph 2(C)(iv) or
Paragraph 2(C)(v) as applicable, in equal annual amounts over the then remaining
Term of this Lease (from and after the date of such replacement or expenditure).
In no event shall Tenant be required to pay amounts which are amortized pursuant
to this Paragraph 2D, including the interest thereon, in excess of $12,500.00 a
year. Notwithstanding anything to the contrary contained herein, it is agreed
that the cost of any replacement or capital expenditure under Paragraph 2(C)(iv)
or Paragraph 2(C)(v) above that is necessitated due to Tenant's use of the
Premises shall not be so amortized, or be allocated to Tenant based upon its
proportionate share, but shall, instead, be paid for in full by Tenant within
thirty (30) days after Landlord's demand therefor.
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3. COMMON AREA CHARGES. In addition to other amounts required to be
paid by Tenant hereunder, Tenant shall pay to Landlord Tenant's proportionate
share of the following costs and expenses (collectively, the "Common Area
Charges"):
A. The cost of repair, maintenance and replacement of; (i) the exterior
of the Building (including painting), other than those structural repairs and
replacements for which Landlord is responsible pursuant to Paragraph 5; (ii)
subject to Paragraph 5(B), all mechanical, electrical, plumbing, sewer,
sprinkler and other life-safety equipment and systems forming a part of the
Building or the Project of which the Building forms a part (other than the cost
of repair, replacement and maintenance of the items which are Tenant's
responsibility pursuant to Paragraph 6 which shall be paid entirely by Tenant as
provided in Paragraph 6); and (iii) all other common areas and facilities
constituting a part of the Building or the Project of which the Building forms a
part (including, but not limited to, all paved areas in and about the Building).
B. The cost of maintenance and replacement of the grass, shrubbery and
other landscaping in and about the Building and/or the Project.
C. The cost of operating and maintaining in a good, neat, clean and
sanitary condition all parking areas, driveways, alleys and grounds in and about
the Building (including trash removal).
D. The cost of assessments under any applicable Declaration of
Covenants, Restrictions and Easements (as may be amended from time to time)
which are assessed by the applicable property owners association (which cost
Landlord estimates to be equal to $.05 per square foot of area in the Building
per year).
E. The cost of operating and maintaining any property, facilities or
services provided for Tenant, which costs shall include, without limitation,
management fees (or if no management company is engaged by Landlord for the
management of the Project, wages and employee benefits payable to employees of
Landlord or affiliates of Landlord whose duties are connected with the operation
and maintenance of the Building), which management fees (or such wages and
benefits) shall not exceed an annual amount equal to 2% of the Base Rent payable
to Landlord with respect to the Building per annum.
Landlord agrees that if any item of Common Area Charges is anticipated
to exceed $10,000, Landlord shall give Tenant at least fifteen (15) days' prior
written notice thereof.
4. TAXES.
A. Landlord agrees to pay all taxes, assessments and governmental
charges of any kind and nature (collectively referred to herein as "Taxes") that
accrue against the Premises, and/or the Land and/or improvements of which the
Premises are a part. (For purposes of this Lease, the term "Taxes" shall include
the amount of any taxes that would otherwise be imposed but for the provisions
of any tax abatement agreement with respect to which Landlord is a party which
is entered into pursuant to chapter 312 of the Texas Tax Code; and for purposes
of this Lease, such abated taxes shall be deemed to be payable by Landlord.) If
at any time during the Term of this Lease, there shall be levied, assessed or
imposed on Landlord a capital levy or other tax directly on the rents received
herefrom and/or a franchise tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rents from the Premises and/or the Land
and improvements of which the Premises are a part, then all such taxes,
assessments, levies or charges, or the part thereof so measured or based, shall
be deemed to be included within the term "Taxes" for the purposes hereof. Any
assessments made by the City of Fort Worth, Texas, (the "City"), or other taxing
authorities for the initial extension or construction of the roadways providing
access to the Premises shall not be included in Taxes, but all future
assessments imposed by the City or other taxing authorities in reference to or
in connection with such roadways shall be included in Taxes. Landlord shall have
the right to employ a tax consulting firm to attempt to assure a fair tax burden
on the building and grounds within the applicable taxing jurisdiction. Tenant
agrees to pay its proportionate share of the cost of such consultant to the
extent of any savings realized by Tenant.
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B. Tenant shall be liable for all taxes levied or assessed against any
personal property or fixtures placed in the Premises. If any such taxes are
levied or assessed against Landlord or Landlord's property and (i) Landlord pays
the same or (ii) the assessed value of Landlord's property is increased by
inclusion of such personal property and fixtures and Landlord pays the increased
taxes, then, within ten (10) days after demand, Tenant shall pay to Landlord
such taxes.
C. Tenant hereby waives any right it may have under Section 41.413 of
the Texas Tax Code to protest the appraised value of all or any portion of the
Premises and the Building, and any right it may have under Section 42.015 of the
Texas Tax Code to appeal an order of the appraisal review board with respect to
all or any portion of the Premises and/or the Building. Tenant agrees that
Landlord shall have the sole right to protest any appraisals of the Premises and
the Building. Tenant also hereby waives any right it may have to receive a copy
of any notice received by Landlord of reappraisal of all or any portion of the
Premises and/or the Building, including without limitation any notice required
under Section 41.413(d) of the Texas Tax Code. Tenant agrees that Landlord shall
not be liable to Tenant for any damages for Landlord's failure to send to Tenant
a copy of any notice of reappraisal concerning the Premises and/or the Building,
irrespective of any obligation under applicable law of Landlord to provide such
notice. Notwithstanding the foregoing, if Tenant protests, challenges or appeals
any valuation for property tax purposes of all or any portion of the Premises
and/or the Building, and such valuation increases from the value protested,
appealed or challenged, Tenant agrees to indemnify Landlord on an after-tax
basis for any property taxes due as a result of such increase.
D. Landlord agrees to provide to Tenant, within ten (10) days after
Tenant's written request therefor, the most recent tax statements and notices of
reappraisal relating to the Project that are In Landlord's possession. Tenant
shall have the right (unless Landlord shall in good faith agree to contest such
tax increase ("Landlord's Tax Protest") to contest or resist, in good faith,
diligently and by appropriate proceedings, the validity of the amount or rate of
any increase or proposed increase in the Taxes, all at Tenant's sole expense
(provided that in the case of a Landlord's Tax Protest, Tenant shall only be
responsible for the cost of such contest to the extent of any tax savings
realized by Tenant, unless Landlord's Tax Protest was initiated at Tenant's
request, in which case Tenant shall pay all reasonable amounts in connection
with such contest, and if the contest involves property of Landlord in addition
to the Project, the cost of the contest shall be allocated to Tenant on a
reasonable and equitable basis) and Tenant shall have the right to monitor
Landlord's Tax Protest; if Landlord elects not to contest such Taxes or, having
elected to contest such Taxes, fails to contest such Taxes diligently and in
good faith, and such failure continues uncured beyond a reasonable time (not to
exceed ten (10) days before the earlier of the deadline for filing a protest or
any scheduled hearing on such Taxes or appraisal) following written notice from
Tenant to Landlord, Tenant shall have the right to itself contest such Taxes. It
shall be a condition precedent to Tenant's right to contest any such Taxes that
Tenant provide Landlord with security (in a form (i) reasonably acceptable to
Landlord and (ii) acceptable to Landlord's mortgagee) in an amount reasonably
necessary to assure full payment of such Taxes being contested, together with
all penalties, fines and interest and other fees and amounts that could be
collected by the taxing authority in case the contest is unsuccessful (but in
any event not less than the amount required by Landlord's mortgagee in
connection with such contest of Taxes). Landlord shall cooperate with Tenant in
contacting Landlord's mortgagee for the purpose of discussing the amount and
form of security that such mortgagee may require in connection with any such
contest of Taxes. Tenant shall in all events pay all such contested Taxes
(together with all penalties, fines, interest and such other fees and amounts)
at least thirty (30) days prior to the date on which the Project (or any portion
thereof) would be subject to foreclosure on account of nonpayment thereof.
Tenant shall indemnify and hold harmless Landlord from and against any and all
expenses, liabilities and claims (including but not limited to reasonable
attorneys' fees) incurred by or asserted against Landlord or the Project arising
as a result of any such contest by Tenant, Landlord and Tenant agree to
reasonably cooperate with one another in connection with all contests of Taxes
under this Lease.
5. LANDLORD'S REPAIRS.
A. Tenant understands and agrees that Landlord's maintenance
replacement obligations are limited to those expressly set forth in this
Paragraph
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its own cost and expense, which expense shall not be reimbursable as a Common
Area Charge, shall be responsible only for repair and replacement of the roof,
foundation, downspouts, gutters, and the structural members of the exterior
walls of the Building, reasonable wear and tear excluded. The term "walls" as
used herein shall not include windows, glass or plate glass, doors, special
store fronts or office entries, unless damage to such items is caused by a
structural shift. Tenant shall promptly give Landlord written notice of defect
or need for repairs after which Landlord shall commence such repair within ten
(10) days of receipt of such notice and shall thereafter have a reasonable
opportunity under the particular circumstance to repair same or cure such defect
in a good and workmanlike manner and Landlord shall diligently prosecute the
repair to completion.
B. Landlord agrees that if a defect in materials or workmanship in the
work done by Landlord ("Landlord's Work") with respect to the initial
construction of the shell portion of the Building ("Defect") is discovered by
Tenant on or prior to the first anniversary of the Commencement Date ("First
Anniversary"), Tenant shall give Landlord written notice thereof ("Defect
Notice") on or prior to the First Anniversary (time being of the essence with
respect thereto). If Landlord receives a Defect Notice prior to the First
Anniversary, Landlord shall, at its sole expense, cause such Defect to be
repaired or remedied. Landlord agrees that if a Defect is discovered by Tenant
subsequent to the First Anniversary, but on or prior to the third anniversary of
the Commencement Date ("Third Anniversary"), Tenant shall give Landlord a Defect
Notice on or prior to the Third Anniversary (time being of the essence with
respect thereto) ("Later Defect Notice"). If Landlord receives a Later Defect
Notice, Landlord shall cause such Defect to be repaired or remedied and Tenant
and Landlord shall each be responsible for one-half of the cost of such repair
or remediation. Notwithstanding the foregoing, nothing contained in this
Paragraph 5B shall: (i) require Landlord to repair or remedy any Defect to the
extent such repair or remediation is necessitated due to the negligence, or
intentional acts or omissions of, or misuse of the item requiring such repair or
remediation by, Tenant or its employees, agents, contractors or invitees;
(ii) require Landlord to repair or remedy any Defect if the coverage afforded by
any warranty or maintenance/service contract relating to the item in question
has been impaired or invalidated by Tenant or its employees, agents, contractors
or invitees; or (iii) require Landlord to repair or remedy any Defect with
respect to which a timely Defect Notice or a timely Later Defect Notice is not
received by Landlord. Landlord may satisfy its obligations under this Paragraph
5B by electing to proceed under any manufacturers' and construction warranties
provided to Landlord in connection with the construction of the Landlord's Work
and/or under the maintenance/service contracts required to be carried by Tenant
under Paragraph 6B hereof and Tenant hereby agrees to cooperate with Landlord in
securing the performance by any manufacturer, contractor or subcontractor under
the warranty provided by such party and/or the maintenance/service contractor of
the work required to be performed by it under any such maintenance/service
contract.
6. TENANT'S REPAIRS AND MAINTENANCE.
A. Except as provided in Paragraph 5 and except for damage to the
Premises or Building caused by an act or omission of Landlord or Landlord's
employees, agents, contractors, or invitees following am completion of the
Landlord's Work, Tenant, at its own cost and expense, shall (i) maintain all
parts of the Premises (including, but not limited to, the floor slab of the
Premises and the mechanical, electrical, plumbing, sewer, sprinkler and other
life-safety equipment, fixtures and systems forming a part of the Premises), in
good, neat, clean, sanitary and operable condition and (ii) make all necessary
repairs and replacements thereto in a good and workmanlike manner. Tenant shall
receive the benefit of the coverage afforded to Landlord by any warranty or
maintenance/service contract relating to the Premises. Tenant shall commence
such repair within ten (10) days of the earlier of (i) Tenant's receipt of
written notice from Landlord of a defect or need for repairs, or (ii) the date
upon which Tenant first became aware of a defect or need for repairs, and Tenant
shall thereafter have a reasonable opportunity under the particular circumstance
to repair same or cure such defect in a good and workmanlike manner and shall
diligently prosecute the repair to completion. In addition to the foregoing,
Tenant shall, at its sole expense, repair any damage to the Premises or the
Building caused by the negligent or intentional acts or omissions of Tenant or
Tenant's employees, agents or invitees, or caused by Tenant's default
hereunder; provided, however, that Tenant's obligations hereunder are subject to
the mutual waiver of subrogation in Paragraph 11D.
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B. In addition to Tenant's other obligations hereunder, Tenant, at its
own cost and expense, shall enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor reasonably approved
by Landlord for servicing all hot water, heating and air conditioning and
elevator systems and equipment within or serving the Premises. The service
contract must include all services suggested by the equipment manufacturer in
its operations/maintenance manual and an executed copy of such contract must be
provided to Landlord prior to the date Tenant takes possession of the Premises.
C. Tenant's obligations with respect to the "floor slab" of the
Premises pursuant to Paragraph 6A(i) above (i) shall be construed as referring
to the slab on grade of the Premises and not the foundation of the Building, and
(ii) shall apply only to the extent that the repair and maintenance of the floor
slab is not caused by the failure of the foundation of the Building or by a
defect in materials or workmanship in the initial pouring of such slab.
7. ALTERATIONS.
A. Tenant shall not make any alterations, additions or improvements to
the Premises without the prior written consent of Landlord, which consent shall
not be unreasonably withheld so long as such alterations, additions or
improvements do not impair the structural integrity of the Building, are not
visible from the exterior of the Building and do not adversely affect the
Building systems, and, if Landlord does not respond to Tenant's written request
(which request shall be accompanied by a reasonably detailed description of the
contemplated alterations, additions and improvements) within fifteen (15) days
after the date of such request, Landlord's consent shall be deemed granted;
provided, however, Tenant may make alterations that are nonstructural in
character, which are not visible from the exterior of the Building and which do
not adversely affect the Building systems (i) without Landlord's consent (but
with prompt written notice to Landlord) so long as the cost thereof does not
exceed $100,000 during the Term of this Lease, and (ii) with Landlord's prior
written consent (which consent shall not be unreasonably withheld so long as
such work does not impair the structural integrity of the Building, is not
visible from the exterior of the Building and does not adversely affect the
Building systems) with respect to alterations in excess of $100,000 during the
Term of the Lease (collectively, the "Permitted Non-Structural Alterations"). If
Landlord consents to Tenant's proposed alterations, additions or improvements to
the Premises, Landlord shall inform Tenant of its consent and promptly notify
Tenant as to whether Landlord will require Tenant to remove the alteration,
addition or improvement on or before the earlier to occur of the date of
termination of this Lease or permanent vacating of the Premises by Tenant. It is
contemplated by the parties that Tenant may construct a covered or,
alternatively, an enclosed climate-controlled walkway connecting the Building to
another building occupied by Tenant (the "Walkway"). Landlord hereby agrees that
subject to the requirements of this Xxxxxxxxx 0X, Xxxxxxxx shall consent to
Tenant's construction of the Walkway provided that (i) prior to commencement of
construction of the Walkway, Tenant submits to Landlord Tenant's plans and
specifications for the Walkway and Landlord approves same, which such approval
shall not be unreasonably withheld; (ii) Tenant complies with the requirements
of the "Alliance Development Guidelines," including, but not limited to,
obtaining Development Review Board approval; and (iii) at Landlord's request,
Tenant shall, prior to the expiration or termination of this Lease (or
termination of Tenant's right of possession, if sooner) at Tenant's sole cost
and expense, remove the Walkway in a good and workmanlike manner and restore the
surface to its condition immediately prior to the commencement of construction
of the Walkway, Tenant, at its own cost and expense, may erect such shelves,
bins, machinery and trade fixtures as it desires without the consent of
Landlord. Tenant's erection of such shelves, bins, machinery and trade fixtures
and the construction of the Permitted Non-Structural Alterations shall be on the
express condition that: (i) such items do not impair the structural integrity of
the Premises, the Building or such improvements; (ii) such items may be removed
without material injury to the Premises; and (iii) the construction, erection or
installation thereof complies with all applicable governmental laws, ordinances,
regulations and with the "Alliance Development Guidelines". All alterations,
additions, improvements and partitions erected by Tenant as well as the
Permitted Non-Structural Alterations shall be and remain the property of Tenant
during the Term of this Lease. On or before the earlier to occur of the date of
termination of this Lease or permanent vacating of the Premises by Tenant,
Tenant shall, at its sole expense, demolish and remove from the Premises all
Permitted Non-Structural
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Alterations and shall deliver up to Landlord the Promises in its condition
following the completion of the Leasehold Improvements constructed in
accordance with the Working Drawings pursuant to Exhibit "C" attached hereto and
made a part hereof (unless otherwise required by Landlord by written notice to
Tenant as hereinabove provided), reasonable wear and tear excepted. All
alterations, installations, removals and restoration shall be performed in a
good and workmanlike manner so as not to damage or impair the structural
integrity of the Building and other improvements situated on the Premises.
Following the completion of all alterations, additions or improvements
(including Permitted Non-Structural Alterations), Tenant shall deliver to
Landlord accurate, reproducible "as built" plans of such alterations, additions
or improvements, as constructed. Notwithstanding anything to the contrary
contained herein, it is agreed that the use of and access to the roof of the
Building is expressly reserved to Landlord and is expressly denied to Tenant
(except in order to permit Tenant to discharge its obligation to repair,
maintain and service the HVAC unit situated on the roof of the Building and to
install, repair, maintain and remove the Telecommunications Equipment as
hereinafter provided or to comply with Tenant's other obligations under this
Lease). Tenant shall not penetrate the roof of the Building in any manner, nor
install or construct any alterations, additions or improvements thereon, nor
otherwise use or occupy the roof at any time during the Term hereof (except
such use and occupation of the roof as is necessary in order to permit Tenant to
discharge its obligation to repair, maintain and service the HVAC unit situated
on the roof of the Building and to install, repair, maintain and remove the
Telecommunications Equipment or to comply with other provisions of this Lease).
In those circumstances where Tenant is entitled to enter onto the roof in
accordance with the preceding sentence, Tenant shall not in any event cause the
roof warranty of the Building to be impaired or invalidated (in whole or in
part).
B. Tenant shall have the right to use a portion of the roof area of the
Building, as Tenant may reasonably select (and as is reasonably acceptable to
Landlord) and as shall be permitted by any governmental laws governing the
installation, for the installation, operation, maintenance, security, repair and
replacement of satellite equipment serving the Premises and related cable
connections (the "Telecommunications Equipment"). Tenant's use of the Premises
with respect to the Telecommunications Equipment shall be subject to such
reasonable rules as Landlord may from time to time designate and to the
following additional conditions: (i) Tenant shall be solely responsible for the
installation, maintenance, repair, operation and replacement of the
Telecommunications Equipment, (ii) Tenant shall install screening around the
Telecommunications Equipment to the extent required by the recorded restrictions
applicable to the Premises, (iii) the installation, repair, maintenance and
placement of the Telecommunications Equipment shall in all events be subject to
(and in compliance with) the terms of all deed restrictions, and covenants,
conditions and restrictions affecting the Project and the requirements of the
"Alliance Development Guidelines" as the same may exist from time to time, and
(iv) any penetration of the roof shall be done only by Landlord's roofing
contractor (at Tenant's expense). Prior to the expiration or termination of the
Term (or termination of Tenant's right of possession under this Lease). Tenant
shall remove the Telecommunications Equipment and repair any damage to the
Premises caused by such removal. The cost of such installation, maintenance,
repair, operation and replacement and repairing any damage to the Premises
arising from such removal and restoration shall be paid by Tenant on demand.
8. SIGNS. Any signage, decorations, advertising media, blinds,
draperies, window treatments, bars, and security installations Tenant desires
for the Premises shall be subject to Landlord's prior written approval, which
approval shall not be unreasonably withheld, and shall be submitted to Landlord
prior to the Commencement Date. Tenant shall repair, paint, and/or replace the
Building facia surface to which its signs are attached upon vacation of the
Premises, or the removal or alteration of its signage, all at Tenant's sole cost
and expense. Tenant shall not (i) make any changes to the exterior of the
Premises, (ii) install any exterior lights, decorations, balloons, flags,
pennants, banners or painting, or (iii) erect or install any signs, windows or
door lettering, placards, decorations or advertising media of any type which
can be viewed from the exterior of the Premises, without Landlord's prior
written consent, which consent shall not be unreasonably withheld. All signs,
decorations, advertising media, blinds, draperies and other window treatment or
bars or other security installations visible from outside the Premises shall
conform in all respects to the criteria established by Landlord and to the
requirements of all covenants, conditions and restrictions applicable to the
Premises and the Building (including, but
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not limited to, approval by the Development Review Board). Landlord hereby
approves the specifications for Tenant's signage attached hereto as Exhibit
"C-4" and made a part hereof.
9. UTILITIES. Tenant shall timely pay for all water, gas, heat, light,
power, telephone, sewer, sprinkler charges and other utilities and services used
on or at the Premises, together with any taxes, penalties, deposits, surcharges
or the like pertaining to the Tenant's use of the Premises, and any maintenance
charges for utilities. Tenant shall pay all impact or other fees associated with
utility hookups, meter installations or services to the Premises. Landlord shall
cause all of said services to be separately metered to Tenant. Landlord shall
not be liable for any interruption or failure of utility service on the
Premises, unless Landlord's intentional or negligent acts or omissions caused
such interruption or failure.
10. INSURANCE.
A. Landlord shall maintain insurance covering the Building of which the
Premises are a part in an amount not less than the "replacement cost" thereof
insuring against the perils and costs of Fire, Lightning, Extended Coverage,
Vandalism and Malicious Mischief. Landlord shall carry such additional insurance
as would be carried by a reasonably prudent owner of comparable premises, and,
at Tenant's request, Landlord shall provide Tenant with evidence of such
insurance. Such coverage shall be obtained on commercially reasonable terms from
an insurance company having a Best's rating of A/VII or better and licensed to
do business in the State of Texas. To the extent that the insurance coverage
maintained by Landlord pursuant to this Section 10A is carried under a blanket
policy that insures property owned by Landlord or its affiliates, in addition to
the Project, the cost of such insurance shall be allocated to the Project on a
reasonable and equitable basis. It is agreed that the general liability
insurance policy carried by Landlord, as contemplated by this Paragraph 10A,
shall provide that it shall provide primary coverage when any policy issued to
Tenant is similar or duplicate in coverage, and Tenant's policy shall be excess
over Landlord's policies.
B. Tenant, at its own expense, shall maintain during the Term of this
Lease a policy or policies of worker's compensation and comprehensive general
liability insurance, including personal injury and property damage, with
contractual liability endorsement, in the amount of Two Million Dollars
($2,000,000.00) for property damage and Two Million Dollars ($2,000,000.00) per
occurrence for personal injuries or deaths of persons occurring in or about the
Premises. Tenant, at its own expense, also shall maintain during the Term of
this Lease fire and extended coverage insurance covering the replacement cost of
all alterations, additions, partitions and improvements installed or placed on
the Premises by Tenant or by Landlord on behalf of Tenant, and all of Tenant's
personal property contained within the Premises. Said policies shall (i) name
Landlord as an additional insured and insure Landlord's contingent liability
under this Lease (except for the worker's compensation policy, which instead
shall include a waiver of subrogation endorsement in favor of Landlord), (ii) be
issued by an insurance company which is licensed to do business in the State of
Texas and which has a Best's rating of A/VII or better, and (iii) provide that
said insurance shall not be cancelled unless thirty (30) days prior written
notice shall have been given to Landlord. In addition, such insurance provided
by Tenant shall provide that it shall provide primary coverage when any policy
issued to Landlord is similar or duplicate in coverage, and Landlord's policy
shall be excess over Tenant's policies. All insurance policies carried by Tenant
hereunder shall expressly provide (by endorsement or otherwise) that Landlord's
rights thereunder shall be assignable to Landlord's mortgagee who shall be shown
as an additional insured thereon. Said policy or policies or certificates
thereof shall be delivered to Landlord by Tenant upon commencement of the Term
of the Lease and upon each renewal of said insurance. Notwithstanding the
foregoing, Tenant may elect to self-insure the risk of damage to its personal
property situated at the Premises (but not the Leasehold Improvements or
liability insurance) so long as (i) Tenant gives Landlord at least thirty (30)
days' prior written notice thereof, and (ii) Tenant's not worth (determined in
accordance with generally accepted accounting principles consistently applied)
is $50,000,000 or greater during the period in which Tenant so elects to
self-insure, Self-insurance by Tenant pursuant to the foregoing sentence shall
be deemed to be insurance for the purpose of the mutual waiver of subrogation
contained herein.
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C. Tenant will not permit the Premises to be used for any purpose or in
any manner that would (i) void the insurance thereon, (ii) increase the
insurance risk, or (iii) cause the disallowance of any sprinkler credits,
including without limitation, use of the Premises for the receipt, storage or
handling of any product, material or merchandise that is explosive or highly
inflammable. If any increase in the cost of any insurance on the Premises or the
Building of which the Premises are a part is caused by Tenant's use of the
Premises, or because Tenant vacates the Premises, then Tenant shall pay the
amount of such increase to Landlord.
11. FIRE AND CASUALTY DAMAGE.
A. If the Premises or the Building of which the Premises are a part
should be damaged or destroyed by fire or other peril, Tenant shall promptly
give written notice to Landlord. If the Building of which the Premises are a
part should be totally destroyed by any peril, or if they should be so damaged
thereby that, in Landlord's reasonable estimation, rebuilding or repairs cannot
be completed within 180 days after the date of such damage, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective upon the date of the occurrence of such damage.
B. If the Building of which the Premises are a part should be damaged
by any peril, and in Landlord's reasonable estimation, rebuilding or repairs can
be substantially completed within 180 days after the date of such damage, this
Lease shall not terminate, and Landlord shall restore the Premises to
substantially its previous condition (except that Landlord shall not be required
to rebuild, repair or replace any part of the partitions, fixtures, additions
and other improvements that may have been constructed, erected or installed in,
or about the Premises by Tenant, including the Leasehold Improvements
constructed by Tenant pursuant to Exhibit "C"). Effective upon the date of the
occurrence of such damage and ending upon substantial completion, if the
Premises are untenantable in whole or part during such period, the rent shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances. If such repairs and rebuilding have not been substantially
completed within 180 days after the date of such damage (subject to Force
Majeure Delays (hereinafter defined] and any delays caused by Tenant or its
employees, agents or contractors), Tenant, as Tenant's exclusive remedy, may
terminate this Lease by delivering written notice of termination to Landlord in
which event all rights and obligations hereunder shall cease and terminate
(except as expressly provided to the contrary herein).
C. [Intentionally omitted.]
D. Landlord and Tenant hereby waive and release each other (but only to
the extent of the insurance coverage required to be maintained by the respective
parties hereunder) of and from any and all rights of recovery, claim, action or
cause of action, against each other, their agents, officers and employees, for
any liability, loss or damage that may occur to the Premises, improvements or
the Building of which the Premises are a part, or personal property (building
contents) within the Building and/or Premises as the result of any fire or other
casualty required to be insured against under this Lease. Each party to this
Lease agrees immediately after execution of this Lease to give each insurance
company, which has issued to it policies of fire and extended coverage
insurance, written notice of the terms of the mutual waivers contained in this
subparagraph and to have the insurance policies properly endorsed to reflect
such waivers. This Paragraph 11D overrides any provisions in this Lease to the
contrary.
12. LIABILITY AND INDEMNIFICATION. EACH PARTY ("INDEMNIFYING PARTY")
SHALL INDEMNIFY, PROTECT, HOLD HARMLESS AND DEFEND THE OTHER PARTY ("INDEMNIFIED
PARTY"), ITS AGENTS, EMPLOYEES, CONTRACTORS, PARTNERS, DIRECTORS, OFFICERS AND
ANY AFFILIATES OF THE ABOVE-MENTIONED PARTIES (COLLECTIVELY THE "INDEMNIFIED
AFFILIATES") FROM AND AGAINST ANY AND ALL OBLIGATIONS, SUITS, LOSSES, JUDGMENTS,
ACTIONS, DAMAGES, CLAIMS OR LIABILITY (INCLUDING, WITHOUT LIMITATION, ALL COSTS,
REASONABLE ATTORNEYS' FEES, AND EXPENSES INCURRED IN CONNECTION THEREWITH) IN
CONNECTION WITH ANY LOSS, INJURY OR DAMAGE (I) TO ANY PERSON OR
11
PROPERTY WHATSOEVER OCCURRING IN, ON OR ABOUT THE PREMISES OR ANY PART THEREOF
AND/OR THE BUILDING, WHEN SUCH INJURY OR DAMAGE SHALL BE CAUSED BY THE ACT,
NEGLECT, FAULT OF, OR OMISSION OF ANY DUTY WITH RESPECT TO THE SAME BY THE
INDEMNIFYING PARTY, OR (II) ARISING FROM A BREACH OR VIOLATION BY THE
INDEMNIFYING PARTY OF ANY COURT ORDER OR ANY LAW, REGULATION, OR ORDINANCE OF
ANY FEDERAL, STATE OR LOCAL AUTHORITY (COLLECTIVELY, THE "LOSSES"), EXCEPT TO
THE EXTENT THE LOSSES ARE CAUSED WHOLLY OR IN PART BY THE NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF THE INDEMNIFIED PARTY AND/OR THE INDEMNIFIED
AFFILIATES. IF ANY CLAIM IS MADE AGAINST EITHER PARTY OR THE INDEMNIFIED
AFFILIATES, THE INDEMNIFYING PARTY, AT ITS SOLE COST AND EXPENSE, SHALL DEFEND
ANY SUCH CLAIM, SUIT OR PROCEEDING. THE PROVISIONS OF THIS PARAGRAPH 12 SHALL
SURVIVE THE EXPIRATION OR TERMINATION OF THIS LEASE WITH RESPECT TO ANY CLAIMS
OR LIABILITY OCCURRING PRIOR TO SUCH EXPIRATION OR TERMINATION.
13. USE. Tenant may use the Premises for general office purposes,
specifically including, but not limited to conducting the sale of stocks, bonds
and other investments to the public via phone and the Internet, and for such
other lawful purposes as may be incidental thereto (the "Permitted Use"). Tenant
shall have full access to the Premises on a twenty-four (24) hour per day 365
day per year basis, subject to the Lease terms and conditions and loss of access
due to fire, casualty, condemnation, or other causes beyond Landlord's control.
Outside storage, including without limitation, storage of trucks and other
vehicles (other than the occasional temporary outdoor storage of a maximum of
ten (10) delivery and general transportation vehicles) is prohibited without
Landlord's prior written consent, which consent shall not be unreasonably
withheld. Tenant shall comply with (i) all governmental laws, ordinances and
regulations applicable to its specific use and occupancy of the Premises (as
opposed to governmental laws, ordinances and regulations applicable to real
estate generally and for which Landlord is liable, the cost of complying with
same being subject to inclusion within Reimbursable Expenses in accordance with
the terms hereof as amortized pursuant to Paragraph 2D), and promptly shall
comply with all governmental orders and directives for the correction,
prevention and abatement of nuisances in or upon, or connected with, the
Premises, all at Tenant's solo expense, (ii) the requirements of all deed
restrictions, restrictive covenants and other covenants, conditions and
restrictions affecting the Building and/or the Land, and (iii) the requirements
of "Alliance Development Guidelines" as may exist from time to time, and all
amendments thereto; provided, however, that future amendments to the "Alliance
Development Guidelines" must (i) not materially interfere with Tenant's
Permitted Use, (ii) receive uniform enforcement, (iii) be delivered to Tenant in
writing, and (iv) if such amendments conflict with the Lease terms, the Lease
shall control. Tenant shall not permit any objectionable or unpleasant odors,
smoke, dust, gas, noise or vibrations to emanate from the Premises, nor take any
other action that would constitute a nuisance or would disturb, unreasonably
interfere with, or endanger Landlord.
Landlord hereby represents that the Permitted Use is not prohibited by
the covenants, conditions and restrictions recorded in Volume 10711, Page 2285
of the real property records of Tarrant County, Texas.
14. INSPECTION. Landlord and Landlord's agents and representatives
shall have the right to enter the Premises at any time, upon twenty-four (24)
hours' notice, to (i) inspect the Premises, (ii) make such repairs as may be
required or permitted pursuant to this Lease, and (iii) show the Premises to
prospective purchasers of, or parties who are anticipated to provide financing
with respect to, the Building. Notwithstanding the foregoing, Landlord shall
have the right to enter the Premises at any time, upon such notice (if any) as
may be reasonable under the circumstances, in case of an emergency posing a
threat to persons or property. During the period that is six (6) months prior to
the end of the Lease Term, upon telephonic notice to Tenant, Landlord and
Landlord's representatives may enter the Premises during business hours for the
purpose of showing the Premises. In addition, Landlord shall have the right to
erect a suitable sign on the Premises stating the Premises are available. Tenant
shall notify Landlord in writing at least thirty (30) days prior to vacating the
Premises and shall arrange to meet with Landlord
12
for a joint inspection of the Premises prior to vacating. If Tenant fails to
give such notice or to arrange for such inspection, then Landlord's inspection
of the Premises shall be deemed correct for the purpose of determining Tenant's
responsibility for repairs and restoration of the Premises.
15. ASSIGNMENT AND SUBLETTING
A. Tenant shall not assign (either voluntarily, nor permit assignment
by operation of law), sublet, transfer or encumber this Lease, or any interest
therein, without the prior written consent of Landlord; provided, however,
Tenant may assign this Lease or sublet the Premises to any entity that controls,
is controlled by, or is under common control with Tenant (individually, an
"Affiliate"). Landlord agrees that it shall not unreasonably withhold its
consent to any assignment or subletting proposed to be entered into by Tenant.
In considering whether it should consent to any subletting or assignment
requested by Tenant, Landlord may take into consideration (among other factors)
the credit standing of the proposed assignee or subtenant, the purpose for which
the Premises would be used by the proposed assignee or subtenant (including
whether such use would violate any exclusive use rights in existence today, and
those that might then be in existence and of which Tenant has been given written
notice, and by which Landlord may be bound, or violate any deed restrictions,
restrictive covenants, covenants, conditions and restrictions, or the "Alliance
Developments Guidelines," as may then be in existence, it being understood and
agreed that Landlord shall have the right to refuse its consent if the proposed
use by the assignee or subtenant would result in any such violation), the length
of the proposed sublease, the business reputation of the proposed assignee or
subtenant, whether the proposed assignee's or subtenant's operations would
involve use of hazardous substances, and all other relevant factors. Any
attempted assignment, subletting, transfer or encumbrance by Tenant in violation
of the terms and covenants of this Paragraph shall be void. No assignment,
subletting or other transfer, whether consented to by Landlord or not, shall
relieve Tenant of its liability hereunder. In the event Tenant desires to sublet
the Premises, or any portion thereof, or assign this Lease, Tenant shall give
written notice thereof to Landlord at least thirty (30) days prior to the
proposed commencement date of such subletting or assignment, which notice shall
set forth the name of the proposed sublessee or assignee, the relevant terms of
any sublease or assignment and copies of financial reports and other relevant
financial information of the proposed sublessee or assignee. If Landlord does
not respond to Tenant's request to assign, sublet, encumber or transfer this
Lease within thirty (30) days after Landlord's receipt of such request (which
request shall be accompanied by the additional information referenced in the
immediately preceding sentence), Landlord's consent shall be deemed granted.
Landlord shall be entitled to charge Tenant a reasonable fee for processing
Tenant's request for any subletting or assignment, including, but not limited
to, Landlord's reasonable out-of-pocket expenses and attorneys' fees.
B. In addition to, but not in limitation of, Landlord's right to
approve of any sublessee or assignee, Landlord shall have the option, in its
sole discretion, in the event of any proposed subletting or assignment, to
terminate this Lease, or in case of a proposed subletting of less than the
entire Premises, to recapture the portion of the Premises to be sublet, as of
the date the subletting or assignment is to be effective. The option shall be
exercised, if at all, by Landlord giving Tenant written notice thereof within
thirty (30) days following Landlord's receipt of Tenant's written notice as
required above. If this Lease shall be terminated with respect to the entire
Premises pursuant to this Paragraph, the Term of this Lease shall end on the
date stated in Landlord's notice as the effective date of the sublease or
assignment as if that date had been originally fixed in this Lease for the
expiration of the Term hereof; provided, however, that effective on such date
Tenant shall pay Landlord all amounts, as reasonably estimated by Landlord,
payable by Tenant to such date with respect to taxes, insurance, repairs,
maintenance, restoration and other obligations, costs or charges which are the
responsibility of Tenant hereunder. Further, upon any such cancellation Landlord
and Tenant shall have no further obligations or liabilities to each other under
this Lease, except with respect to obligations or liabilities which have accrued
hereunder as of such cancellation date (in the same manner as if such
cancellation date were the date originally fixed in this Lease for the
expiration of the Term hereof) and except for those obligations and liabilities
which, by the express terms of this Lease, are to survive any expiration or
termination hereof. If Landlord recaptures only a portion of the Premises under
this Paragraph, the Base Rent during the unexpired Term hereof shall xxxxx
proportionately based on the rent per square foot contained in this Lease as of
the date immediately prior to such recapture. Tenant shall, at Tenant's own cost
and expense, discharge
13
in full such commissions which may be due and owing as a result of any proposed
assignment or subletting, whether or not the Premises are recaptured pursuant
hereto and rented by Landlord to the proposed tenant or any other tenant.
C. Upon the occurrence of an assignment or subletting, whether or not
consented to by Landlord, or mandated by judicial intervention, Tenant hereby
assigns, transfers and conveys to Landlord all rents or other sums received or
receivable by Tenant under any such assignment or sublease, which are in excess
of the rents and other sums payable by Tenant under this Lease (or in case of a
sublease, which are in excess of the rents and other sums payable by Tenant with
respect to the portion of the Premises that is subleased), and agrees to pay
such amounts to Landlord within ten (10) days after receipt.
D. if this Lease is assigned to any person or entity pursuant to the
provisions of the United States Bankruptcy Code, 11 U.S.C. Section 101 et. seq.
(the "Bankruptcy Code"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of Landlord and be
promptly paid or delivered to Landlord. Any person or entity to which this Lease
is assigned pursuant to the provisions of the Bankruptcy Code, shall be deemed,
without further act or deed, to have assumed all of the obligations arising
under this Lease on and after the date of such assignment. Any such assignee
shall upon demand execute and deliver to Landlord an instrument confirming such
assumption.
E. Any assignee, sublessee or transferee of Tenant's interest in this
Lease (all such assignees, sublessees and transferees being hereinafter referred
to as "Transferee(s)"), by accepting any such assignment, sublease or transfer
shall be deemed to have assumed Tenant's obligations hereunder, and shall be
deemed to have assumed liability to Landlord for all amounts paid to persons
other than Landlord by such Transferees. No assignment, subletting or other
transfer, whether consented to by Landlord or not or permitted hereunder, shall
relieve Tenant of its liability hereunder. If an Event of Default occurs while
the Premises or any part thereof are assigned or sublet, then Landlord, in
addition to any other remedies herein provided, or provided by law, may collect
directly from such Transferee all rents payable to the Tenant and apply such
rent against any sums due Landlord hereunder. No such collection shall be
construed to constitute a novation or a release of Tenant from the further
performance of Tenant's obligations hereunder. If a Transferee defaults under
this Lease, and Landlord provides the Transferee with notice of such default,
Landlord shall simultaneously notify Tenant of the Transferee's default.
Landlord shall accept performance by Tenant with the same force and effect as
performance by Transferees.
F. The merger or consolidation of Tenant with another entity shall not
be deemed to be an assignment of this Lease by operation of law so long as the
surviving entity in any such merger or consolidation has a net worth (determined
in accordance with generally accepted accounting principles consistently
applied) immediately following such merger or consolidation that is equal to or
greater than the net worth of Tenant immediately prior to such merger or
consolidation.
16. CONDEMNATION.
A. If due to any taking for any public or quasi-public use under
governmental law, ordinance or regulation, or by right of eminent domain, or by
a conveyance in lieu thereof ("Taking") (i) any portion of the parking areas
constituting a part of the Project are taken such that, following the Taking,
the remainder of the Premises are rendered untenantable, or (ii) any portion of
the Land is taken such that access to the Building would be materially impaired
as a result of the Taking, or (iii) more than 25% of the Building is taken, or
(iv) such portion of the Building is taken as would render the remainder of the
Premises untenantable, this Lease shall terminate upon written notice from
Tenant to Landlord sent within thirty (30) days following the Taking and the
rent shall be abated during the unexpired portion of this Lease, effective on
the date of such Taking. Notwithstanding the foregoing If Tenant gives notice of
termination as a result of a Taking pursuant to clauses (i) or (ii) above,
Landlord shall have the right (but not the
14
obligation) to substitute an alternative parcel of Land ("Substitute Parcel")
owned by Landlord or its affiliates, or alternative areas for such lost parking
and access ("Substitute Areas"), for the purpose of providing access and
parking to Tenant in lieu of access and parking that are lost as a result of
such Taking. Landlord may give Tenant written notice ("Substitution Notice")
that Landlord so elects to provide the Substitute Parcel or Substitute Areas
for such purposes, which Substitution Notice, if given by Landlord, shall be
given within thirty (30) days after Tenant's termination notice and shall
include Landlord's offer as to a fair and reasonable Base Rent adjustment or
abatement, if any. If Landlord gives the Substitution Notice and if the
Substitution Parcel or Substitute Areas and Base Rent adjustment or abatement
are reasonably acceptable to Tenant as being a reasonable substitute for the
access and parking lost as a result of such Taking: (i) Tenant's termination
notice shall be ipso facto null and void and this Lease shall continue in full
force and affect, and (ii) the parties shall promptly (but in all events within
thirty (30) days after the date of the Substitution Notice) enter Into an
amendment to this Lease whereby (A) if a Substitute Parcel is provided, the
Substitute Parcel is substituted for the areas so taken and (B) Tenant agrees
to pay Base Rent for the Substitute Parcel (in lieu of the Base Rent which is
otherwise abated under the preceding provisions of this Paragraph 16) at the
rate proposed by Landlord.
For purposes of this Paragraph 16(A), access shall be deemed to be
"materially impaired" only if access to the Building following the Taking would
be reduced to such an extent as to prevent Tenant from conducting its business
at the Premises in a manner reasonably comparable to Tenant's conduct of its
business at the Premises prior to the Taking.
For purposes of this Paragraph 16(A), "untenantable" shall mean that
following the Taking the Premises would be unfit for Tenant's continued
operation of its business in a manner reasonably comparable to Tenant's conduct
of its business at the Premises prior to the Taking.
B. If this Lease is not terminated under Paragraph 16(A) above as a
result of a Taking, this Lease shall continue in full force and effect but the
rent payable hereunder during the unexpired portion of this Lease shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances (but without duplication of any other rental abatement under
Paragraph 16(A) above).
C. All compensation awarded in connection with or as a result of any
condemnation proceedings affecting the Premises (or any portion thereof) shall
be the property of Landlord; and Tenant hereby assigns any interest in any such
award to Landlord. Notwithstanding the foregoing, Landlord shall have no
interest in any award made to Tenant for loss of business or goodwill or for the
taking of Tenant's fixtures and improvements (it being agreed that Tenant may
pursue such award from the condemning authority).
17. HOLDING OVER At the termination of this Lease by its expiration or
otherwise, Tenant immediately shall deliver possession of the Premises to
Landlord with all repairs and maintenance required herein to be performed by
Tenant completed. If, for any reason, Tenant retains possession of the Premises
or any part thereof after such termination, or fails to complete any repairs
required hereby, then Landlord may, at its option, serve written notice upon
Tenant that such holding over constitutes either (i) the creation of a month to
month tenancy, upon the terms and conditions set forth in this Lease, or (ii)
creation of a tenancy at sufferance, in any case upon the terms and conditions
set forth in this Lease; provided, however, that the monthly rental (or daily
rental under (ii)) shall, in addition to all other sums which are to be paid by
Tenant hereunder, whether or not as additional rent, be equal to 150% of the
rental being paid monthly to Landlord under this Lease immediately prior to such
termination (prorated in the case of (ii) on the basis of a 365-day year for
each day Tenant remains in possession). If no such notice is served, then a
tenancy at sufferance shall be deemed to be created at the rent in the preceding
sentence. Tenant shall also pay to Landlord all damages sustained by Landlord
resulting from retention of possession by Tenant, including the loss of any
proposed subsequent tenant for any portion of the Premises. The provisions of
this Paragraph shall not constitute a waiver by Landlord of any right of
re-entry as herein set forth; nor shall receipt of any rent or any other act in
apparent affirmance of the tenancy operate as a waiver of the right to
terminate this Lease for a breach of any of the terms, covenants, or obligations
herein on Tenant's part to be performed. No holding over by Tenant, whether with
or without consent of Landlord, shall
15
operate to extend this Lease except as otherwise expressly provided. The
preceding provisions of this Paragraph 17 shall not be construed as consent for
Tenant to retain possession of the Premises in the absence of written consent
thereto by Landlord.
18. QUIET ENJOYMENT. Landlord has the authority to enter into this
Lease and so long as Tenant pays all amounts due hereunder and performs all
other covenants and agreements herein set forth, Tenant shall peaceably and
quietly have, hold and enjoy the Premises for the Term hereof without hindrance
from Landlord subject to the terms and provisions of this Lease.
19. EVENTS OF DEFAULT. The following events (herein individually
referred to as an "Event of Default") each shall be deemed to be an event of
default by Tenant under this Lease:
A. Tenant shall fail to pay any installment of the Base Rent herein
reserved when due, or any other payment or reimbursement to Landlord required
herein when due, and such failure shall continue for ten (10) days after written
notice to Tenant; provided, however, Tenant shall be entitled to such notice and
opportunity to cure on only two (2) occasions during any calendar year.
B. The Tenant shall: (i) become insolvent; (ii) admit in writing its
inability to pay its debts; (iii) make a general assignment for the benefit of
creditors; (iv) commence any case, proceeding or other action seeking to have an
order for relief entered on its behalf as a debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or of any substantial part of its property; or (v) take any
action to authorize any of the actions set forth above in this Paragraph.
C. Any case, proceeding or other action against the Tenant shall be
commenced seeking: (i) to have an order for relief entered against it as debtor
or to adjudicate it a bankrupt or insolvent; (ii) reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it of its debts under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors;
(iii) appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property, and such case,
proceeding or other action (a) results in the entry of an order for relief
against it which is not fully stayed within thirty (30) business days after the
entry thereof or (b) shall remain undismissed for a period of forty-five (45)
days.
D. Tenant shall (i) fail to take possession of the Premises upon
substantial completion of the Landlord's Work, (ii) vacate, desert, or abandon
all or a substantial portion of the Premises, or threaten to do so or (iii) fail
to continuously operate its business at the Premises for the Permitted Use set
forth herein, whether or not Tenant is in default in payment of the rental
payments due under this Lease (other than the temporary cessation of business
(i) while Tenant is actively renovating the Premises for a period not in excess
of six (6) months (or such longer period as Landlord may reasonably approve) or
(ii) in instances where Tenant is not renovating, for thirty (30) consecutive
days or sixty (60) days, whether or not consecutive, during any twelve-month
period).
E. Tenant shall fail to discharge any lien placed upon the Premises in
violation of Paragraph 22 hereof.
F. Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than those listed above in this Paragraph 19), and shall not
cure such failure within thirty (30) days after written notice thereof to
Tenant; provided, however, if such failure cannot through the exercise of
reasonable diligence be cured within such thirty (30) days, an Event of Default
shall not be deemed to have occurred under this Paragraph 19F so long as Tenant
commences its curative efforts within such thirty (30) day period and diligently
prosecutes same to completion.
G. An "Event of Default" shall occur under that certain Lease Agreement
of even date herewith by and between Alliance Gateway No. 17, Ltd., as landlord
thereunder, and
16
Tenant, as tenant thereunder, relating to certain premises in the building known
as "Two Ameritrade Place", (as such Lease Agreement may be amended from time to
time) ("Two Ameritrade Lease").
20. REMEDIES.
A. Upon each occurrence of an Event of Default, Landlord shall have the
option to pursue, without any notice or demand, any one or more of the following
remedies and/or any other remedies to which Landlord is entitled at law or in
equity:
(1) Terminate this Lease, in which event Tenant shall
immediately surrender the Promises to Landlord. If Tenant fails to do
so, Landlord may, without any further notice and without prejudice to
any other remedy Landlord may have for possession or arrearages in
rental, enter upon and take possession of the Promises and remove
Tenant and its effects without being liable for prosecution or any
claim for damages therefor, and Tenant shall indemnify Landlord for all
loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the Premises or
otherwise, including any loss of rental for the remainder of the Term.
(2) If the Event of Default relates to nonpayment of Base Rent
or any other monetary sum due hereunder, terminate this Lease, in which
event Tenant's default shall be deemed a total and entire breach of
Tenant's obligations under this Lease and Tenant immediately shall
become liable for damages in an amount equal to the excess of (i) the
total rental for the remainder of the Term, discounted at the Prime
Rate (hereinafter defined) to the then present value, together with all
other expenses incurred by Landlord in connection with Tenant's
default, all sums due pursuant to Paragraph 20B below, and the unpaid
rental due as of the date of termination, over (ii) the fair market
rental value of the Premises for the balance of the Term, discounted at
the Prime Rate to the then present value. For the purposes of clause
(i) above, the components of monthly rent (other than Base Rent) for
the remainder of the Term shall be deemed to be equal to the respective
monthly amounts thereof as were due and payable during the month in
which the Lease was terminated. It is acknowledged, intended and agreed
that the amounts which Landlord is entitled to recover under this
Paragraph 20A(2) constitute liquidated damages and not a penalty for
Tenant's defaults related to nonpayment of rental. Such amounts
constitute the parties' best, good faith, and reasonable estimate of
the damages which would be suffered by Landlord in the event any such
default occurs, the exact amount of such damages being difficult or
impractical to calculate.
(3) Enter upon and take possession of the Premises as Tenant's
agent without terminating this Lease and without being liable for
prosecution or any claim for damages therefor, and Landlord may relet
the Premises as Tenant's agent and receive the rental therefor, in
which event Tenant shall pay to Landlord on demand all sums due
pursuant to Paragraph 20B below, together with any deficiency that may
arise by reason of such reletting.
(4) Do whatever Tenant is obligated to do under this Lease and
enter the Promises, without being liable for prosecution or any claim
for damages therefor, to accomplish such purpose, Tenant shall
reimburse Landlord immediately upon demand for any reasonable expenses
which Landlord incurs in thus effecting compliance with this Lease on
Tenant's behalf, together with interest thereon at the highest lawful
rate from the date Landlord incurs the expense in question until
Landlord is reimbursed therefor.
(5) Require Tenant to pay any rental in quarterly installments
in advance of each calendar quarter during the Term by certified or
cashier's check.
(6) In the event of a monetary default, without notice, alter
the locks and any other security device or devices which allow Tenant
access to the Premises or the Building of which the Premises form a
part, and Landlord shall not be required to provide a new key or right
of access to Tenant, and restrict or terminate any right to use parking
facilities associated with the Building as well as utility services to
the Premises. This
17
Paragraph 20A(6) is intended to and shall supersede the provisions of
Section 93.002 of the Texas Property Code; provided, however, Tenant
shall be permitted access to the Premises to the extent necessary for
Tenant to maintain compliance with applicable securities laws.
B. Upon the occurrence of an Event of Default, in addition to any other
sum provided to be paid herein, Tenant also shall be liable for and shall pay
to Landlord: (1) reasonable brokers' fees incurred by Landlord in connection
with reletting the whole or any part of the Premises; (ii) the reasonable costs
of removing and staring Tenant's or other occupant's property; (iii) the
reasonable costs of repairing, altering, remodeling or otherwise putting the
Premises into condition acceptable to a new tenant or tenants; (iv) all
reasonable expenses incurred in marketing the Premises and (v) all reasonable
expenses incurred by Landlord in enforcing or defending Landlord's rights
and/or remedies. If either party hereto institutes any action or proceeding to
enforce any provision hereof by reason of any alleged breach of any provision of
this Lease, the prevailing party shall be entitled to receive from the losing
party all reasonable attorneys' fees and all court costs in connection with such
proceeding.
C. In the event Tenant fails to make any payment due hereunder within
five (5) days of the payment due date, to help defray the additional cost to
Landlord for processing such late payments, Tenant shall pay to Landlord on
demand a late charge in an amount equal to three percent (3%) of such payment;
and the failure to pay such amount within five (5) days after demand therefor
shall be an additional Event of Default hereunder; provided, however, that in
the case of Base Rent or the regularly scheduled monthly payment of Reimbursable
Expenses, Tenant shall be entitled to five (5) days' notice and opportunity to
cure on two (2) occasions during any twelve month period without incurring a
late charge. The provision for such late charge shall be in addition to all of
Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
D. Exercise by Landlord of any one or more remedies hereunder granted
or otherwise available shall not be deemed to be an acceptance of surrender of
the Premises by Landlord, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant. Tenant and Landlord further agree that forbearance by
Landlord to enforce its rights pursuant to this Lease, at law or in equity,
shall not be a waiver of Landlord's right to enforce one or more of its rights
in connection with that or any subsequent default.
E. The term "Prime Rate" as used herein shall mean the per annum "prime
rate" of interest as published, on the date on which this Lease is terminated in
accordance with this Paragraph 20 by The Wall Street Journal, Southwest Edition,
in its listing of "Money Rates," or if The Wall Street Journal is not published
on the date on which this Lease is terminated, then the "prime rate" of interest
as published in The Wall Street Journal on the most recent date prior to the
date on which this Lease is so terminated.
F. If Landlord fails to perform any of its obligations hereunder within
thirty (30) days after written notice from Tenant specifying in detail such
failure (or if the failure cannot be corrected, through the exercise of
reasonable diligence, within such 30-day period, if Landlord does not commence
to correct same within such 30-day period and thereafter diligently prosecute
same to completion), Tenant's sole and exclusive remedy shall be either (i) an
action for damages and Tenant may pursue a money judgment for such damages
against Landlord (subject to the last two sentences of this Paragraph 20, or
(ii) if such failure can be cured by the payment of money, and if Tenant in its
notice to Landlord has notified Landlord that Tenant intends to cure Landlord's
failure, Tenant shall have the right to cure such failure on behalf of Landlord
and, in connection therewith, expend such reasonable sums as are reasonably
necessary to cure such failure (provided that Tenant shall not have the right to
make any repairs or modifications to areas, facilities or systems outside the
Land (such as, without limitation, electrical, plumbing, water, sewer and
sprinkler systems) that specifically serve premises leased to other tenants).
Unless and until Landlord fails to so cure any default after such notice within
the time periods set forth above, Tenant shall not have any remedy or cause of
action by reason thereof. In the event Tenant exercises its rights under clause
(ii) of this Paragraph 20F, then Landlord agrees to reimburse Tenant for all
reasonable out-of-pocket costs so expended by
18
Tenant in curing any such failure of Landlord together with interest thereon at
the highest lawful rate from the date Tenant incurs the expense in question
until Tenant is reimbursed therefor, within ten (10) days after Landlord
receives a xxxx therefor (which xxxx shall set forth in reasonable detail the
costs for which compensation is claimed); provided, however, if Landlord fails
to so reimburse Tenant within thirty (30) days after such request for payment,
Tenant may deduct such amounts from Base Rent until the full amount has been
satisfied (provided that in no event shall the amount so deducted from any
individual monthly installment of Base Rent exceed 50% of such monthly amount of
Base Rent). All notices by Tenant to Landlord under this Paragraph 20F shall
simultaneously be given by Tenant to the holders of any first mortgage or second
mortgage on the Premises, provided Tenant has been given notice of the names and
addresses of such mortgagees. Any mortgagee shall have the right, but not the
obligation, to cure, or commence to cure, any default of Landlord, and Tenant
shall accept performance by any mortgagee with the same force and effect as
performance by Landlord. In no event shall Tenant have the right to offset or
deduct any sums or damages which are owed by Landlord to Tenant against any
amounts that are owed by Tenant to Landlord hereunder, except as provided in the
preceding provisions of this Paragraph 20F. All obligations of Landlord
hereunder will be construed as covenants, not conditions; and subject to
Paragraph 24B all such obligations will be binding upon Landlord only during the
period of its possession of the Premises and not thereafter. The term "Landlord"
shall mean only the owner, for the time being of the Premises, so subject to
Paragraph 24B in the event of the transfer by such owner of its interest in the
Premises, such owner shall thereupon be released and discharged from all
covenants and obligations of the Landlord thereafter accruing, but such
covenants and obligations shall be binding during the Lease Term upon each new
owner for the duration of such owner's ownership. Notwithstanding any other
provision hereof, Landlord shall not have any personal liability hereunder. In
the event of any breach or default by Landlord of any term or provision of this
Lease, Tenant agrees to look solely to the equity or interest then owned by
Landlord in the Premises or of the Building of which the Premises are a part;
however, in no event, shall any deficiency judgment or any money judgment of any
kind be sought or obtained against any Landlord.
G. If Landlord repossesses the Premises pursuant to the authority
herein granted, then Landlord shall have the right to (i) keep in place and use
or (ii) remove and store, all of the furniture, fixtures and equipment at the
Premises, including that which is owned by or leased to Tenant at all times
prior to any repossession thereof by any landlord thereof or third party having
a lien thereon. Landlord also shall have the right to relinquish possession of
all or any portion of such furniture, fixtures, equipment and other property to
any person ("Claimant" ) who presents to Landlord a copy of any instrument
represented by Claimant to have been executed by Tenant (or any predecessor of
Tenant) granting Claimant the right under various circumstances to take
possession of such furniture, fixtures, equipment or other property, after
Landlord has made a reasonable inquiry into the authenticity or legality of said
instrument. The rights of Landlord herein stated shall be in addition to any and
all other rights that Landlord has or may hereafter have at law or in equity;
and Tenant stipulates and agrees that the rights herein granted Landlord are
commercially reasonable,
H. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated as rent, shall constitute rent.
I. Notwithstanding anything to the contrary contained herein, if an
Event of Default exists hereunder solely because of the event described in
Paragraph 19(D) of this Lease (i.e., no other Event of Default exists under this
Lease except for the Event of Default described in said Paragraph 19(D)), and so
long as Tenant keeps the Premises secure from vandalism and unauthorized users,
Landlord's sole remedy on account of such Event of Default shall be to terminate
this Lease following ten (10) days' notice to Tenant and provided Tenant has not
fully remedied such Event of Default within such ten (10) day period (without
pursuing any damages against Tenant and without Tenant being required to
indemnify Landlord against any damages suffered as a result of any such
termination) in which event this Lease shall terminate and the parties shall
have no further rights or obligations hereunder (other than such rights and
obligations as have accrued as of the effective date of such termination and
such rights and obligations as are expressly provided herein as surviving the
expiration or termination of this Lease). The limitation
19
on Landlord's remedies contained in the immediately preceding sentence shall not
apply if another Event of Default (in addition to the Event of Default described
in Paragraph 19(D)) exists, or if Tenant fails to so keep the Premises secure
from vandalism and unauthorized users, in which event Landlord shall be entitled
to pursue any one or more of its remedies under this Lease, at law and/or in
equity.
21. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter constituting a lien
or charge upon the Premises or the improvements situated thereon; provided,
however, that if the mortgagee, trustee, or holder of my such mortgage or deed
of trust elects to have Tenant's interest in this Lease superior to any such
instrument, then by notice to Tenant from such mortgagee, trustee or holder,
this Lease shall be deemed superior to such lien, whether this Lease was
executed before or after said mortgage or deed of trust. Landlord agrees to
promptly obtain and deliver to Tenant a subordination non-disturbance and
attornment agreement in substantially the form attached hereto as Exhibit "G"
and made a part hereof ("SNDA") executed by Landlord's current mortgagee with
respect to the Land. Tenant agrees to enter into the SNDA with such mortgagee
promptly upon Landlord's request therefor. Notwithstanding the foregoing, the
subordination of this Lease to any mortgage or deed of trust that is hereafter
placed upon the Land is expressly conditioned upon Tenant and the mortgagee or
beneficiary under any such mortgage or deed of trust entering into an SNDA in a
form reasonably acceptable to Tenant (Tenant hereby agreeing that an SNDA
substantially in the form that is attached hereto as Exhibit "G" and made a part
hereof is acceptable to Tenant). Tenant agrees to enter into such SNDA with any
such mortgagee or beneficiary promptly upon Landlord's request therefor. Tenant
shall be permitted to record the SNDA in the real property records of Tarrant
County, Texas. If any future mortgagee or beneficiary under a mortgage or deed
of trust hereafter placed upon the Land desires to subordinate its mortgage or
deed of trust to this Lease, Tenant agrees that it shall promptly execute such
instrument as may be reasonably required by such mortgagee or beneficiary in
order to effect such subordination (Tenant hereby agrees that an instrument in
substantially the form of Exhibit "H" attached hereto and made a part hereof is
acceptable to Tenant).
22. MECHANIC'S LIENS. Tenant has no authority; express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind, the interest of Landlord or Tenant in the Premises or
to charge the rentals payable hereunder for any claim in favor of any person
dealing with Tenant, including those who may furnish materials or perform labor
for any construction or repairs. Tenant covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed by or on
behalf of Tenant on the Premises and that it will save and hold Landlord
harmless from any and all loss, cost or expense based on or arising out of
asserted claims or liens against the leasehold estate or against the right,
title and interest of the Landlord in the Premises or under the terms of this
Lease arising from such work. Tenant agrees to give Landlord prompt written
notice of the placing of any lien or encumbrance against the Premises. If any
mechanics' or materialmen's lien ("M&M Lien") is ever asserted or placed
against or attaches to the Project or any portion thereof as a result of any act
or omission of Tenant or its agents, then in lieu of paying the claim relating
to such M&M Lien Tenant shall have the right to contest the assertion, placement
or attachment of Such M&M Lien so long as (i) prior to any such contest (and no
later than thirty (30) days after such lien has been filed) Tenant at its sole
expense provides to Landlord a bond indemnifying against such M&M Lien that
complies with Chapter 53, Subchapter H of the Texas Property Code (as amended
from time to time) or its successor law, and (ii) Tenant contests such M&M Lien
diligently and in good faith; provided, however, the foregoing right of Tenant
to contest any such M&M Lien shall not impair or otherwise affect Tenant's
indemnification obligations with respect to such M&M Lien. If any lien is
asserted against the Premises due to acts of Landlord or its agents or
contractors, Tenant shall not be obligated to remove such lien (it being agreed
that the removal of such lien shall be Landlord's obligation).
23. HAZARDOUS MATERIALS. Tenant shall never incorporate into, or
dispose of, at, in or under the Premises, the Building or the Land any toxic or
hazardous materials (as defined hereafter). Tenant further agrees not to use at,
place in, or store at the Promises any toxic or hazardous materials, except for
those toxic or hazardous materials that are either (a) office supplies or (b)
kitchen cleaning materials that are generally considered to be a household
cleaner
20
and are purchased in a container not larger than one (1) gallon and then only
if (i) all such toxic or hazardous materials, supplies and materials are
properly labeled and contained, (ii) all such toxic or hazardous materials are
stored, handled, transported and disposed of in accordance with highest
accepted industry standards and all applicable laws, rules and regulations, and
(iii) if a material safety data sheet is required under applicable laws to
accompany the toxic or hazardous materials, supplies or materials, a copy of
such current material safety data sheet is provided to Landlord. For purposes
of this Lease, "toxic or hazardous materials" shall mean hazardous or toxic
chemicals or any materials containing hazardous or toxic chemicals at levels or
content which cause such materials to be classified as hazardous or toxic as
then prescribed by the highest industry standards or by the then current levels
or content as set from time to time by the U.S. Environmental Protection Agency
("EPA") or the U.S. Occupational Safety and Health Administration ("OSHA") or
as defined under 29 CFR 1910 or 29 CFR 1925 or other applicable governmental
laws, rules or regulations. In the event there is a spill of a toxic or
hazardous materials (other than permitted office supplies and kitchen cleaning
supplies) at the Premises, the Building or the Land of which Tenant is aware,
Tenant shall notify Landlord of the method, time and procedure for any clean-up
and removal of such toxic or hazardous materials; and, Landlord shall have the
right to require reasonable changes in such method, time or procedure. In the
event there is a spill of a toxic or hazardous material that comes from office
supplies in the Premises, Tenant shall notify Landlord if the spill would in
any way endanger or pose a threat to Tenant's employees, Building maintenance
or custodial personnel, other Building tenants or the general public. In the
event of any breach of this provision by Tenant or any contamination of the
Premises, the Building or the Land, by Tenant, Tenant shall pay all costs for
the removal or abatement or clean-up of any toxic or hazardous materials at the
Premises, the Building and the Land. If any lender or governmental agency shall
ever require testing to ascertain whether or not there has been any release of
hazardous materials, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as additional charges, if the audit discloses
Tenant caused the release of hazardous materials and if such requirement
applies to the Premises. In addition, Tenant shall execute affidavits,
representations and the like from time to time at Landlord's request (but in no
event more often than annually at Landlord's request) or otherwise at such
times as requested by Landlord's mortgagee, concerning Tenant's best knowledge
and belief regarding the presence of hazardous substances or materials on the
Premises. In all events, Tenant shall indemnify Landlord in the manner
elsewhere provided in this Lease from any release of hazardous materials on the
Premises occurring while Tenant is in possession or elsewhere if caused by
Tenant or persons acting under Tenant. Landlord hereby agrees to indemnify and
hold Tenant harmless from and against any and all costs of remediation, removal
and clean-up (and fines and penalties relating thereto) of and from
contamination of the Land by toxic or hazardous materials to the extent
required by applicable law, which contamination exists as of the Commencement
Date as a result of the acts of Landlord or its contractors; provided, however,
Landlord's indemnification obligations shall not apply to any such
contamination to the extent it results from the acts or omissions of Tenant,
its agents, employees, licensees, invitees, contractors, sublessees, assignees
or successors in interest. This Paragraph 23 shall survive the expiration or
any termination of this Lease. Following the expiration of this Lease and upon
Tenant's providing Landlord an environmental site assessment in form and
substance reasonably satisfactory to Landlord and evidencing that Tenant is not
then in breach of this Xxxxxxxxx 00, Xxxxxxxx agrees to acknowledge in writing
that Tenant has been released from liability under this Paragraph 23.
24. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions inserted
in this Lease are for convenience only and in no way define, limit or otherwise
describe the scope or intent of this Lease, or any provision hereof, or in any
way affect the interpretation of this Lease.
B. The terms, provisions and covenants contained in this Lease shall
run with the land and shall apply to, inure to the benefit of, and be binding
upon, the parties hereto and upon their respective heirs, executors, personal
representatives, legal representatives, successors and assigns, except as
otherwise herein expressly provided. Landlord shall have the right to transfer
and assign, in whole or in part, its rights and obligations in the Building and
property that are the
21
subject of this Lease. Upon any Landlord's conveyance of the Building or the
Land, and the assignment of its rights under this Lease, to another party who
assumes in writing all of the Landlord's obligations accruing after the date of
the transfer ("Successor"), such Landlord shall be released from its obligations
hereunder and the Successor shall become the "Landlord" hereunder from and after
the date of any such conveyance and assignment and shall thereafter have all of
the rights and obligations of the Landlord hereunder, in accordance with the
terms hereof, during the period of its ownership of the Building. Landlord
agrees to provide Tenant with notice of (i) any transfer of the Building, (ii)
any transfer of Landlord's obligations hereunder, and (iii) the identity of the
Successor party, which notice shall confirm such Successor's assumption of
Landlord's obligations in accordance with this Paragraph 24B. Each party agrees
to furnish to the other, promptly upon demand, a corporate resolution, proof of
due authorization by partners, or other appropriate documentation evidencing the
due authorization of such party to enter into this Lease.
C. Landlord shall not be held responsible for delays in the performance
of its obligations hereunder when caused by material shortages, weather, acts of
God, labor disputes, or delays beyond those normally anticipated in connection
with obtaining governmental approvals (collectively, the "Force Majeure
Delays"). Promptly following the occurrence of any applicable events giving rise
to Force Majeure Delays, Landlord shall provide Tenant written notice of any
such delays that it intends to claim.
D. Tenant agrees, from time to time, within ten (10) days after request
by Landlord, to deliver to Landlord or Landlord's designee, a certificate of
occupancy, financial statements (which may be Tenant's publicly available
financial statements, so long as Tenant is a publicly held company) and an
estoppel certificate stating (1) this Lease is in full force and effect, (2) the
date to which rent is paid, (3) whether there is a default on the part of
Landlord or Tenant under this Lease, (4) whether Tenant has any right of offset,
claims or defenses to the performance of its obligations under this Lease, and
(5) such other factual matters pertaining to this Lease as may be reasonably
requested by Landlord. Tenant shall be entitled to make such qualifications to
the statements in such estoppel certificate as are necessary to make them
factually accurate. Tenant shall not be required to provide estoppel
certificates more frequently than four (4) times in any calendar year. If Tenant
fails to deliver the same within such ten (10) day period such certificate as
submitted by Landlord or Landlord's designee, as the case may be, shall be fully
binding on Tenant, if Tenant fails to deliver a certificate within fifteen (15)
days after receipt by Tenant of the certificate submitted by Landlord or
Landlord's designee, as the case may be.
E. This Lease constitutes the entire understanding and agreement of the
Landlord and Tenant with respect to the subject matter of this Lease, and
contains all of the covenants and agreements of Landlord and Tenant with respect
thereto. Landlord and Tenant each acknowledge that no representations,
inducements, promises or agreements, oral or written, have been made by Landlord
or Tenant, or anyone acting on behalf of Landlord or Tenant, which are not
contained herein, and any prior agreements, promises, negotiations, or
representations not expressly set forth in this Lease are of no force or effect.
This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
F. All nonmonetary obligations of Tenant hereunder not fully performed
as of the expiration or earlier termination of the Term of this Lease, and all
monetary obligations of Tenant of which Tenant receives notice from Landlord
within thirty (30) days thereafter, shall survive the expiration or earlier
termination of the Term hereof, including without limitation, all payment
obligations with respect to taxes and insurance and all obligations concerning
the condition and repair of the Premises. Upon the expiration or earlier
termination of the Term hereof, and prior to Tenant vacating the Premises,
Tenant shall pay to Landlord any amount reasonably estimated by Landlord (with
evidence from an independent inspector reasonably satisfactory to Tenant) as
necessary to put the Premises, including without limitation, all heating and air
conditioning systems and equipment thereon, in good condition and repair,
reasonable wear and tear excluded. Tenant shall also, prior to vacating the
Premises, pay to Landlord the amount, as reasonably estimated by Landlord, of
Tenant's obligation hereunder for real estate taxes and insurance premiums,
common area maintenance, utility and other charges for the year in which the
Lease expires or terminates, which amount shall be prorated to the date of
termination or expiration. All such amounts shall be used and held by Landlord
for payment of
22
such obligations of Tenant hereunder, with Tenant being liable for any
additional costs therefor within ten (10) days after demand by Landlord, or with
any excess to be returned to Tenant within ten (10) days after all such
obligations have been determined and satisfied as the case may be. Any security
deposit held by Landlord shall be credited against the amounts due from Tenant
under this Paragraph 24F.
G. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added, as a
part of this Lease, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
H. All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on which
all parties hereto have executed this Lease.
I. Each party represents and warrants to the other party that it has
dealt with no broker, agent or other person in connection with this transaction
and that no broker, agent or other person brought about this transaction, other
than the broker or agent identified In the Basic Lease Information, and each
party agrees to indemnify and hold the other party harmless from and against any
claims by any other broker, agent or other person claiming a commission or
other form of compensation by virtue of having dealt with the indemnifying party
with regard to this leasing transaction.
J. If and when included within the term "Landlord", as used in this
instrument, there is more thin one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address for the receipt of notices
and payments to Landlord. If and when included within the term "Tenant", as used
in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address for the receipt of notices
and payments to Tenant. All parties included within the terms "Landlord" and
"Tenant", respectively, shall be bound by notices given in accordance with the
provisions of Paragraph 25 hereof to the same effect as if each had received
such notice.
K. By taking possession of the Premises, Tenant shall be deemed to
have: (a) acknowledged that the Premises and the improvements to be constructed
pursuant to Exhibit "C" attached hereto are substantially complete and are
accepted "as is" and "with all faults"; (b) accepted the Premises as suitable
for the purposes for which the Premises are leased; and (c) acknowledged that
the Premises are in a good and satisfactory condition. Landlord expressly
disclaims, and Tenant hereby waives to the full extent permitted by law, any
implied warranty that the Premises or the Building are suitable for Tenant's
intended commercial purpose, and any and all other implied warranties (whether
arising by virtue of statute, case law or otherwise). The foregoing shall not be
construed to relieve Landlord from its obligations which are expressly set forth
in this Lease, including, but not limited to, Landlord's obligations under
Paragraph 5 hereof.
L. Submission of this Lease shall not be deemed to be a reservation of
the Premises. Landlord shall not be bound hereby until its delivery to Tenant of
an executed copy hereof signed by Landlord, already having been signed by
Tenant, and until such delivery Landlord reserves the right to exhibit and lease
the Premises to other prospective tenants. Notwithstanding anything contained
herein to the contrary, Landlord may withhold delivery or possession of the
Premises from Tenant until such time as Tenant has paid to Landlord the security
deposit required by Paragraph 2B hereof.
M. Landlord and Tenant agree that the financial terms and conditions of
this Lease are confidential and the parties hereto agree not to disclose the
financial terms of this Lease to any third party (other than to its attorneys
and accountants and other than to parties who propose to purchase or finance the
Building, or the Project of which the Building forms a part, or who
23
propose to become investors in Landlord or Tenant) except as may be required by
law or by the order of a court of competent jurisdiction. This Paragraph 24(M)
supersedes that certain agreement between the parties dated January 7. 1999, and
concerning the confidentiality of the terms and conditions of this transaction.
N. [Intentionally omitted.]
25. NOTICES. Each provision of this instrument or of my applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivering of notice or the making of any payment by
Landlord to Tenant, or with reference to the sending, mailing or delivering of
any notice or the making of any payment by Tenant to Landlord, shall be deemed
to be complied with when and if the following steps are taken:
(a) All rent and other payments required to be made by Tenant
to Landlord hereunder shall be payable to Landlord at the address for
Landlord set forth in the Basic Lease Information or at such other
address as Landlord may specify from time to time by written notice
delivered in accordance herewith. Tenant's obligation to pay rent and
any other amounts to Landlord under the terms of this Lease shall not
be deemed satisfied until such rent and other amounts have been
actually received by Landlord. In addition to Base Rent due hereunder,
all sums of money and all payments due Landlord hereunder shall be
deemed to be additional rental owed to Landlord
(b) All payments required to be made by Landlord to Tenant
hereunder shall be payable to Tenant at the address set forth in the
Basic Lease Information, or at such other address as Tenant may specify
from time to time by written notice delivered in accordance herewith.
(c) Any written notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually
received or not, when deposited in the United States Mail, postage
prepaid, Certified or Registered Mail, addressed to the parties hereto
at the respective addresses set out in the Basic Lease Information, or
at such other address as they have theretofore specified by written
notice delivered in accordance herewith.
26. LANDLORD'S LIEN. [Intentionally omitted.]
27. NAMING RIGHTS. Tenant shall have the right to refer to and
otherwise identify the Building as "One Ameritrade Place," or any other such
similar name reasonably approved by Landlord.
28. ADDITIONAL PROVISIONS. See Exhibits "A" through "H" attached
hereto and incorporated by reference herein.
29. TEMPORARY PARKING. With respect to the 400 parking spaces
referenced in Paragraph 1 of this Lease and which are to be situated on the
Land, it is acknowledged and agreed that 177 of said 400 spaces may not be
constructed or be available for use by Tenant until August 1, 1999. If said 177
spaces are not available as of the 91st day after the date of this Lease and
Tenant then desires to have temporary substitute parking prior to the completion
of said 177 permanent spaces, then (i) Tenant shall give Landlord written notice
thereof ("Parking Notice") on or before May 14, 1999 of the number of temporary
parking spaces that Tenant reasonably anticipates it will need prior to the
completion of the permanent spaces (which Parking Notice may be supplemented
every two weeks in accordance with Tenant's then current reasonable estimate of
the number of spaces it will require prior to the completion of the permanent
spaces) and (ii) Landlord shall, at its expense, cause to be constructed within
21 days after any such Parking Notice from Tenant (subject to Force Majeure
Delays), the number of parking spaces designated by Tenant in such Parking
Notice up to a total of 177 temporary parking spaces ("Temporary Spaces") on an
approximately 8,321 acre tract of land that is owned by AIL Investment, L.P., or
at Landlord's option on the land on which the premises leased pursuant to the
"Two Ameritrade Lease" are situated, for use by Tenant and its employees, agents
and invitees until the completion of said permanent 177 spaces on the Land, at
which time Tenant's
24
right to use the Temporary Spaces shall cease and be of no further force or
effect. Tenant agrees that its use of said Temporary Spaces shall be subject to
the same terms and conditions as are applicable to the permanent parking spaces
as set forth in paragraph 1 of this Lease. Landlord agrees to procure such
licenses from the owners of the tracts on which the Temporary Spaces are
situated so as to enable Tenant to use same as contemplated hereby.
EXECUTED BY LANDLORD this 19 day of March, 1999.
ALLIANCE GATEWAY NO. 16, LTD.,
a Texas limited partnership
By: Hillwood Operating, L.P.,
a Texas limited partnership,
its general partner
By: Hillwood Development Corporation
a Texas corporation,
its general partner
By: /s/ M. XXXXXX XXXXX
-----------------------------------
Its: M. XXXXXX XXXXX
-----------------------------------
SECRETARY
25
EXECUTED BY TENANT, this 11 day of March, 1999.
AMERITRADE HOLDING CORPORATION,
a Delaware corporation
By: /s/ XXXXX X. XXXXXX
--------------------------------------
Xxxxx Xxxxxx
Its: Vice-President of Infrastructure and Facilities
26
EXHIBIT A
[GATEWAY #16]
27
EXHIBIT "B"
LEGAL DESCRIPTION
Being a tract of land situated in the X. Xxxxxx Survey, Tarrant County, Texas
and being part of that tract of land conveyed to Hillwood/Freeway, Ltd.,
recorded in Volume 9581, Page 66, Deed Records of Tarrant County, Texas and
being more particularly described by metes and bounds as follows:
COMMENCING at the northwest corner of Xxx 0, Xxxxx 0, Xxxxxxxx Xxxxxxx Xxxx as
recorded in Cabinet A. Slide 0000, xxxxxx xxxxxxx, Xxxxxxx Xxxxxx, Xxxxx;
THENCE S 89 degrees 51' 39" W, 733.51 feet to a 5/8 inch iron rod with yellow
cap stamped "Xxxxxx & Xxxxxxx" set at the POINT OF BEGINNING;
THENCE S 89 degrees 51' 39" W, 146.62 feet to a 5/8 inch iron rod with yellow
cap stamped "Xxxxxx & Xxxxxxx: set;
THENCE S 00 degree 08' 21" E, 249.98 feet to a 5/8 inch iron rod with yellow cap
stamped "Xxxxxx & Xxxxxxx: set;
THENCE S 89 degrees 51' 39" W, 190.83 feet to a 5/8 inch iron rod with yellow
cap stamped "Xxxxxx Xxxxxxx" set;
THENCE N 52 degrees 13' 26" W, 56.02 feet to a 5/8 inch iron rod with yellow cap
stamped "Xxxxxx & Xxxxxxx" set;
THENCE N 29 degrees 46' 06" W, 161.43 feet to a 5/8 inch iron rod with yellow
cap stamped "Xxxxxx & Xxxxxxx" set;
THENCE S 59 degrees 14' 27" W, 39.64 feet to a 5/8 inch iron rod with yellow cap
stamped "Xxxxxx & Xxxxxxx" set;
THENCE N 32 degrees 38' 23" W, 336.97 feet to a 5/8 inch iron rod with yellow
cap stamped "Xxxxxx & Xxxxxxx" set in the south right-of-way line of State
Highway Number 170, said point also being the beginning of a curve to the right;
THENCE 264.16 feet along the arc of said curve to the right, and with said
right-of-way line through a central angle of 01 degree 19' 23", having a radius
of 11439.16 feet, and a long chord which bears N 58 degrees 01' 03" E, 264.15
feet to a 5/8 inch iron rod with yellow cap stamped "Xxxxxx & Xxxxxxx" set;
Page l of 2
28
THENCE N 57 degrees 21' 27" E, 305.86 feet continuing with said right-of-way
line to a 5/8 inch iron rod with yellow cap stamped "Carta & Xxxxxxx" set;
THENCE S 32 degrees 38' 23" E, 361.56 feet to a 5/8 inch iron rod with yellow
cap stamped "Xxxxxx & Xxxxxxx" set;
THENCE S 00 degrees 08' 21" E, 187.55 feet to the POINT OF BEGINNING and
containing 293,817 square feet or 6.745 acres of land more or less.
Page 2 of 2
29
EXHIBIT "C"
LEASEHOLD IMPROVEMENTS
(Allowance)
1. [Intentionally Omitted)
2. WORKING DRAWINGS. Within 60 days after the date hereof, Tenant
shall, at its expense, provide to Landlord for its approval a fit-out
floor-plan, prepared by DLR Group or another architect that has been approved by
Landlord, of all improvements that Tenant proposes to install in the Premises
("Leasehold Improvements") which Leasehold Improvements are generally described
on Exhibit "C-2" attached hereto and made a part hereof, such working drawings
shall include the partition layout, ceiling plan, electrical outlets and
switches, telephone outlets, drawings or any modifications to the mechanical and
plumbing systems of the Building, and detailed plans and specifications for the
construction of the Leasehold Improvements called for under this Exhibit "C" in
accordance with all applicable governmental laws, codes, rules and regulations.
Further, if any of Tenant's proposed construction work will affect the
Building's HVAC, electrical, mechanical, plumbing systems or other central or
branch systems, then the working drawings pertaining thereto shall, at
Landlord's option be prepared by the Building's engineer of record, whom Tenant
shall at its cost engage for such purpose. Landlord's approval of such working
drawings shall not be unreasonably withheld, provided that (a) they comply with
all applicable governmental laws, codes, rules, and regulations, (b) such
working drawings are sufficiently detailed to allow construction of the
Leasehold Improvements in a good and workmanlike manner, and (c) the
improvements depicted thereon conform to the scope of work depicted on Exhibit
"C-2" attached hereto and to the rules and regulations promulgated from time to
time by Landlord for the construction of tenant improvements (a copy of which
has been delivered to Tenant). As used herein, "Working Drawings", shall mean
the final working drawings approved by Landlord, as amended from time to time by
any approved changes thereto, and "Work" shall mean the work required to
construct and install all Leasehold Improvements to be constructed in accordance
with and as indicated on the Working Drawings. Approval by Landlord of the
Working Drawings shall not be a representation or warranty of Landlord, and
shall create no responsibility or liability on the part of Landlord, with
respect to their adequacy for any use, purpose or condition, their
completeness, design sufficiency, or compliance with any laws, rules or
regulations of governmental agencies or authorities, but shall merely be the
consent of Landlord to the performance of the Work. Tenant shall, at Landlord's
request sign the Working Drawings to evidence its review and approval thereof.
All changes in the Work must receive the prior written approval of Landlord,
which approval shall not be unreasonably withheld so long as the changes in the
Work do not adversely affect the shell of the Building, or the Building systems,
and in the event of any such approved change Tenant shall, upon completion of
the Work, furnish Landlord with an accurate, reproducible "as built" plan (e.g.,
sepia) of the Leasehold Improvements as constructed, which plan shall be
incorporated into this Lease by this reference for all purposes.
3. CONTRACTOR. The Work shall be performed only by contractors and
subcontractors whose bids have been reviewed by Landlord and who are reasonably
acceptable to Landlord. Tenant shall enter into the construction contract
("Contract") with the contractor who has been selected by Tenant and approved by
Landlord (which approval shall not be unreasonably withheld) to perform the Work
("Contractor"). The Contract shall be in form and substance reasonably
acceptable to Landlord. The Contractor and all subcontractors shall be required
to procure and maintain (a) Insurance against such risks, in such amounts, and
with such companies as Landlord may reasonably require and such insurance
policies must name Landlord and Landlord's mortgagee as additional insureds and
(b) payment and performance bonds covering the cost of the Work and otherwise
reasonably satisfactory to Landlord. Certificates of such insurance, with paid
receipts therefor, and copies of such bonds must be received by Landlord before
the Work is commenced. The Work shall be performed in a good and workmanlike
manner that is free of defects and is in strict conformance with the Working
Drawings, shall be diligently prosecuted to completion, and shall be performed
in such a manner and at such times as to maintain harmonious labor relations.
The Contractor and all subcontractors shall contact Landlord and schedule time
periods during which they may use Building facilities in connection with the
Work (e.g., elevators, excess electricity, etc.).
30
4. [Intentionally Omitted]
5. TOTAL CONSTRUCTION COSTS. Tenant shall bear the entire cost of
performing the Work (including, without limitation, the cost of preparing the
Working Drawings, costs of construction labor and materials, removing any
improvements currently in the Premises, electrical usage during construction,
additional janitorial services, general tenant signage, and related taxes and
insurance costs, all of which costs are herein collectively called the "Total
Construction Costs") in excess of the Construction Allowance (hereinafter
defined) and the A&E Fee Allowance (hereinafter defined).
6. CONSTRUCTION ALLOWANCE. Landlord shall provide to Tenant a
construction allowance ("Construction Allowance") for the purpose of defraying
the cost of constructing the Leasehold Improvements which Construction Allowance
shall be equal to the lesser of (i) the Total Construction Costs, or (ii)
$1,191,100.00 ($25.00 per square foot of area in the Premises).
7. ARCHITECTURAL AND ENGINEERING FEES ALLOWANCE. Separate from the
Construction Allowance, the parties acknowledge and agree that Landlord is
providing an architectural, engineering, and general space-planning fees
allowance of Forty Five Thousand Dollars ($45,000.00) ("A&E Fee Allowance").
Tenant shall be entitled to apply the A&E Fee Allowance to pay for the cost of
the plans, specifications, construction drawings and Working Drawings
contemplated under Section 2 of this Exhibit "C" provided, however, if
Construction Allowance funds are available, then Construction Allowance funds
may be used and if so used, the amount of the Construction Allowance shall be
reduced by the amount so used. The A&E Fee Allowance shall be disbursed to
Tenant upon Tenant's providing to Landlord reasonably satisfactory evidence that
the architectural, engineering and space planning fees in question were in fact
incurred.
8. PAYMENT OF CONSTRUCTION COSTS. (a) Tenant shall cause the Contractor
to construct the Leasehold Improvements in a good and workmanlike manner, in
accordance with the Working Drawings and in compliance with all applicable laws,
codes, rules and regulations. Without limiting the generality of the foregoing,
Tenant shall, at its sole expense, obtain all building permits, certificates of
occupancy and all other approvals, permits, certificates and other
authorizations in connection with the construction of Leasehold Improvements and
the occupancy of the Premises. Tenant shall promptly pay the Contractor, in
accordance with the Contract, for all work performed pursuant thereto and shall
cause the Contractor to pay all its subcontractors, marterialmen, suppliers, and
laborers in a timely manner so that no mechanic's, materialmen's or other lien
shall ever attach to the Project or any portion thereof or any interest therein.
Landlord shall at all times have the right to enter on the Leased
Premises and inspect the progress of the Work and to supervise and coordinate
such construction activities, and so as to determine whether the Leasehold
Improvements are compatible with existing electrical, mechanical, HVAC and other
Building central and branch systems and the Landlord's quality standards. Each
party agrees to reasonably cooperate with the other party in connection with the
prosecution of the work performed by both parties and to not unreasonably
interfere, with the other party's work.
Landlord shall disburse to Tenant the then-available Construction
Allowance in periodic draws (collectively, the "Draws"), each such Draw to be in
an amount equal to the product of (i) the total Construction Allowance,
multiplied by (ii) a fraction, the numerator of which is the value of the
portion of the Work completed from the date of the immediately preceding Draw
(or in the case of the first Draw, since the commencement of the Work) until the
date of the Draw in question (as evidenced by an architect's certificate as
described below), and the denominator of which is the Total Construction Costs,
provided, that;
(i) Tenant delivers to Landlord evidence satisfactory to
Landlord that all such costs incurred in connection with the Work, and
for which Tenant is seeking reimbursement, were in fact incurred by
Tenant;
C-2
31
(ii) Tenant delivers to Landlord an architect's certificate
(on an AIA form or another form reasonably acceptable to Landlord)
issued by Tenant's architect, as to the value of the work with respect
to which such Draw is being requested;
(iii) Tenant pays to the Contractor, concurrently with the
receipt of the Draw in question, all remaining amounts owed to the
Contractor, all subcontractors, and materialmen, suppliers and laborers
through the date of the Draw in question;
(iv) Tenant delivers to Landlord final mechanic's and
materialmen's lien waivers and releases (in form and substance
acceptable to Landlord) from the Contractor and all subcontractors,
materialmen, suppliers and laborers with respect to all work done
through the date of the Draw in question;
(v) Tenant has prosecuted construction of the Leasehold
Improvements in accordance with the Working Drawings; and
(vi) Tenant is not in default hereunder.
Landlord may, at its option, pay the Construction Allowance through one or more
checks payable jointly to Tenant and the Contractor and any subcontractors,
materialmen, suppliers and laborers to the extent of payments due to such
parties in connection with the Work. Tenant shall be liable for all Total
Construction Costs in excess of the Construction Allowance.
(b) Notwithstanding anything to the contrary contained herein, the
Construction Allowance shall not be used for (and Landlord shall have no
obligation to use or advance any portion of the Construction Allowance for)
the cost of furniture, fixtures or equipment which are not permanently attached
to the Land or the Building (including, but not limited to, tenant signage,
security systems, telephone equipment, or any other special utility service
lines needed by Tenant for its use of the Premises).
9. LEASE CONSTRUCTION PROVISIONS. To the extent not inconsistent with
this Exhibit, Paragraph 7 of this Lease shall govern the performance of the Work
and the Landlord's and Tenant's respective rights and obligations regarding the
improvements installed pursuant thereto.
C-3
32
EXHIBIT "C-1"
[Intentionally Omitted]
E-1
33
EXHIBIT C-2
[FLOORPLAN]
34
[AMERITRADE FLOORPLAN]
35
EXHIBIT "C-3"
[Intentionally Omitted]
F-1
36
EXHIBIT "C-4"
ALLIANCE GATEWAY-PHASE I ASSOCIATION
00000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Xxxxx 0, 0000
Xx: Proposed Building Signage, Ameritrade
Gateway Xx. 00 & Xx. 00
Xxxxxxxx Xxxxxxx, Xxxx Xxxxx
Dear Xxxx:
The Alliance Gateway-Phase I Association's Development Review Board ("DRB") has
reviewed the conceptual building signage for Ameritrade at the above-referenced
locations. A complete package of the drawings submitted has been enclosed with
comments for your review and consideration.
Either internally illuminated individual letters or reverse channel silhouette
illuminated letter signage will be acceptable. Whichever style is selected
should be used on both buildings. Only one building mounted sign will be allowed
on each building. In both cases the signage should be positioned generally in
the upper third and corner position of the building fascia. Maximum signage
height will be 24 inches.
Signworks Design No. 16484d
o Drawing approved as noted above. The size of the lettering should
perhaps be slightly smaller on Building No. 16. This will depend
ultimitly on the final elevation and wall height of Building No. 17.
Other
o All site signage including internal directional and international must
comply with the Alliance Development Guidelines.
o An Alliance site address sign will be required for both buildings.
Subject to size/color approval, Ameritrade signage copy may be used on
the site address sign as well.
Xxxx, you mentioned earlier today that the Ameritrade logotype actually has the
logo stacked on top of the name lettering and that this is actually how the
signage will be proposed. This arrangement will probably work fine on Building
No. 17; however, given the height of the fascia on Building No. 16, I have some
real concerns about not "stuffing" the fascia with signage and yet still keeping
the lettering large enough to be readable. We should have this careful
consideration, and it is possible that the stacked arrangement is not achievable
on Building No. 16.
37
Mr. Xxxx Xxxxxx
March 4,1999
Page 2
I trust this information helps you in finalizing your signage program for both
buildings, and I look forward to receiving finalized drawings.
Please let me know if I can be of any further assistance in this matter.
Sincerely,
/s/ L. XXXXXXX XXXXXXXX
L. Xxxxxxx Xxxxxxxx
LRL: msf
Enclosure
cc: 00-00 XXX Xxxxxxxxxx
Xxxx Xxxxxx, XXX
38
AMERITRADE
[LOGO]
INDIVIDUAL REVERSE-CHANNEL SILHOUETTE NEON
ILLUMINATED ALUMINUM LETTERS & LOGO
---------------------------------------------------
FABRICATE AND INSTALL A SET OF 30" TO 22 1/4" X 3"
DEEP REVERSE-CHANNEL SILHOUETTE LETTERS PAINTED
BLACK. ALSO FABRICATE AND INSTALL A 42" X 51 1/4" X
3" DEEP REVERSE-CHANNEL SILHOUETTE LOGO PAINTED
BLACK AND [ILLEGIBLE] YELLOW GOLD. [ILLEGIBLE]
Sign Location on
East Elevation
[ILLEGIBLE]
---------------------------------------------------------------------------------------------------
[ILLEGIBLE] DESIGNER: [ILLEGIBLE] SPECIFICATIONS: FOR
------------------------------------------------------------------------ SHOP USE ONLY
S CONTRACT NO: SALESPERSON: [ILLEGIBLE] DUE DATE:
WORKS ------------------------------------------------------------
PRODUCTS [ILLEGIBLE] [ILLEGIBLE] APPROVED BY:
CO, INC. ------------------------------------------------------------
[ILLEGIBLE] DATE: [ILLEGIBLE] APPROVAL DATE:
---------------------------------------------------------------------------------------------------
39
EXHIBIT "D"
MEMORANDUM OF ACCEPTANCE OF PREMISES
This memorandum is entered into on _________ 1999 by Alliance Gateway
No. 16, Ltd. ("Landlord") and Ameritrade Holding Corporation ("Tenant"),
pursuant to Paragraph 1 of the Lease Agreement ("Lease") dated ____________,
1999 executed by Landlord and Tenant. All terms used herein have the same
meanings as in the Lease. This memorandum amends the Lease (including the Basic
Lease Information) to the extent of the matters set forth herein.
1. The Commencement Date is ________ 1999.
2. The Premises contain 47,644 square feet of area.
3. The Building contains 47,644 square feet of area.
4. Tenant's Proportionate Share is 100%.
EXECUTED BY LANDLORD, this ___ day of March, 1999.
ALLIANCE GATEWAY NO. 16, LTD.,
a Texas limited partnership
By: Hillwood Operating, L.P.,
a Texas limited partnership,
its general partner
By: Hillwood Development Corporation
a Texas corporation,
its general partner
By:
--------------------------------------
Its:
--------------------------------------
EXECUTED BY TENANT, this ___ day of March, 1999.
AMERITRADE HOLDING CORPORATION,
a Delaware corporation
By:
----------------------------------------------
Xxxxx Xxxxxx
Its: Vice-President of Infrastructure and
Facilities
D-1
40
EXHIBIT "E"
FINANCING STATEMENT
[Intentionally ommitted.]
E-1
41
EXHIBIT "F"
RENEWAL OPTIONS
1. GRANT OF OPTION. Provided Tenant is not then in default under
Subparagraph 19(A) of the Lease, Tenant may renew this Lease for two (2)
additional periods of five (5) years each on the same terms and conditions as
provided in this Lease (except as set forth below), by delivering written notice
of the exercise thereof to Landlord not later than twelve (12) months before
the expiration of the Term. On or before the commencement date of the extended
Term in question, Landlord and Tenant shall execute a renewal agreement
extending the Term on the same terms and conditions as provided in this Lease,
except as follows:
(a) The Base Rent payable during each such extended Term shall
be the prevailing rental rate, at the commencement of such extended
Term, for space of equivalent quality, size, utility and location in
Alliance Commerce Center, Alliance Gateway, Valwood and Centreport
area, taking into account all relevant factors including, but not
limited to, the expense of new tenant finish-out, leasing commissions,
the length of the extended Term and the credit standing of Tenant
("Market Rate"), determined in accordance with paragraph (2) below;
provided, however, that Base Rent payable during any year of such
extended Term shall in no event be less than the Base Rent payable
hereunder during the last year prior to the commencement of such
extended Term;
(b) Tenant shall have no further renewal options unless
expressly granted by Landlord in writing; and
(c) Landlord shall lease to Tenant the Premises in their
then-current condition, provided that Landlord shall continue to
perform its maintenance obligations under the Lease.
Tenant's rights under this Exhibit "F" shall terminate if (i) this
Lease or Tenant's right to possession of the Premises is terminated, (ii) Tenant
assigns any of its interest in this Lease or sublets any portion of the
Premises, unless Tenant's assignee or sublessee is an Affiliate of Tenant, or
(iii) Tenant fails to timely exercise its option under this Exhibit "F", time
being of the essence with respect to Tenant's exercise thereof. If this Lease is
renewed or extended, the word "Term" shall include the additional period
covered by the renewal or extension, and this Lease shall apply to such
additional period except as otherwise provided for herein.
2. DETERMINATION OF MARKET RENT. Upon notification from Tenant of the
exercise of a renewal option, Landlord shall within ten (10) days thereafter
notify Tenant in writing of the proposed Market Rate applicable to the renewal
term in question. Tenant shall, within ten (10) days following receipt of such
notice from Landlord, notify Landlord in writing of the acceptance or rejection
of the proposed Market Rate. If Tenant fails to respond to Landlord's
designation of Market Rate within said 10-day period, Tenant shall be deemed to
have accepted Landlord's designation of Market Rate for all purposes. In event
of rejection by Tenant, the Market Rate for the renewal term in question shall
be determined as follows:
(a) Within ten (10) days following notification of Tenant's
rejection, Landlord and Tenant shall each appoint an appraiser. Any
appraiser appointed hereunder (whether by a party hereto or by an
appraiser so appointed, as hereinafter provided) shall be impartial,
have an office in Tarrant County, shall have at least ten (10) years'
experience as a real estate appraiser of warehouse/industrial buildings
in the Tarrant County area (or shall have at least ten (10) years'
experience in leasing warehouse/industrial space in the Tarrant County
area), and shall be a member of the American Institute of Real Estate
Appraisers or a successor or similar organization of recognized
national standing, some of whose members we frequently employed for
appraisal purposes by federal or state governments. The two appraisers
appointed shall meet promptly and attempt to agree on a determination
of the Market Rate for the renewal term in question. The determination
of Market Rate by the two appraisers, if they agree, shall be binding
on Landlord and
F-1
42
Tenant. If the Market Rate determinations of the two appraisers differ
by in amount equal to or less then five percent (5%) of the higher of
the two determinations of Market Rate, then the Market Rate shall be
equal to the arithmetic mean of the two determinations.
(b) If the two appraisers cannot agree upon the Market Rate
for the renewal term in question within ten (10) days following their
appointment, or if their determinations of Market Rate differ by more
than five percent (5%) of the higher of the two determinations of
Market Rate, then the two appointees shall select a third appraiser,
but if they are unable to agree on a third appraiser within five (5)
days, then each appraiser shall select the names of two willing persons
qualified to be appraisers hereunder and from the four persons so
named, one name shall be drawn by lot by a representative of Tenant in
the presence of a representative of Landlord, and the person whose name
is so drawn shall be the third appraiser. If either of the first two
appraisers fails to select the names of two willing, qualified
appraisers and to cooperate with the other appraiser so that a third
appraiser can be selected by lot, as aforesaid, the third appraiser
shall be selected by lot from the two appraisers which were selected by
the other appraiser for the drawing. The three appraisers so selected
shall confer and immediately proceed to determine the Market Rate for
the renewal term in question. If the three appraisers fail to agree on
such Market Rate within ten (10) days after the appointment of the
third appraiser, the average of the two determinations of Market Rate
which are closer to each other than the third determination of Market
Rate shall be the Market Rate for the renewal term in question.
(c) The appraisers selected hereunder shall deliver a signed
and written report of their appraisal, or the average of the two
closer appraisals, as the case may be, to Tenant and Landlord. The fee
of the appraiser initially selected by Tenant shall be paid by Tenant,
the fee of the appraiser initially selected by Landlord shall be paid
by Landlord, and the fee of any third appraiser and any expenses
reasonably incident to the appraisal (except attorneys' fees, which
shall be borne by the party incurring the same) shall be shared equally
by Tenant and Landlord. Any vacancy in the office of the appraiser
appointed by Tenant shall be filled by Tenant, any vacancy in the
office of the appraiser appointed by Landlord shall be filled by
Landlord, and any vacancy in the office of the third appraiser shall be
filled by the first two appraisers in the manner specified above for
the selection of a third appraiser.
(d) If appraisal proceedings are initiated as provided above
in order to determine the Market Rate which is applicable to the
renewal term in question, the decision and award of the appraisers as
to such Market Rate shall be final, conclusive, and binding on the
parties, absent settlement by agreement of the parties prior to the
rendering by the appraisers of any such decision and award. If the
Market Rate is not finally determined prior to the commencement of the
renewal term in question, Tenant shall pay Base Rent based upon Base
Rent theretofore in effect under this Lease until the final
determination of the Market Rate for the renewal term in question
occurs as provided above. If the final determination of such Market
Rate is different from the amount paid by Tenant, Tenant shall promptly
pay to Landlord any deficiency in Base Rent or Landlord shall promptly
pay to Tenant any overpayment of Base Rent from the commencement of the
renewal term in question until such final determination.
(e) If the Market Rate for either renewal Term is established using the
appraisal mechanism act forth above, each party shall act diligently and in good
faith (and shall cause the appraiser appointed by such party to so act) such
that the Market Rate for the renewal term in question is established at least
ten (10) months prior to the expiration of the then current Term.
3. TENANT'S RIGHT OF REVOCATION. If (a) Tenant timely and effectively
exercises a renewal option in accordance with this Exhibit "F" and (b) the
appraisal procedures under paragraph (2) above are commenced, and (c) the Market
Rate determined pursuant to such procedures is finally determined, in
accordance with said paragraph (2), not later than ten (10) months prior to the
expiration of the then current Term (without giving effect to the exercise of
the renewal option in question), and (d) Tenant determines that the Market Rate
so determined
F-2
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pursuant to such procedures is higher than Tenant desires to pay, then in such
event Tenant may as its sole and exclusive remedy rescind and revoke its prior
exercise of the renewal option in question by giving Landlord written notice
thereof ("Revocation Notice") within ten (10) days after the determination of
the Market Rate but in no event, later than ten (10) months prior to the
expiration of the then current Term (time being of the essence with respect
thereto). If Tenant timely and effectively gives the Revocation Notice to
Landlord, (i) Tenant's prior exercise of the renewal option in question shall be
deemed revoked, rescinded and ipso facto null and void, (ii) the Term shall
expire on the date it would otherwise have expired had Tenant not exercised such
renewal option and (iii) Tenant shall not be entitled to exercise any other
renewal option that might be provided for herein.
F-3
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EXHIBIT "G"
STATE OF TEXAS )
COUNTY OF TARRANT )
SUBORDINATION, ATTORNMENT, AND NON-DISTURBANCE AGREEMENT
THIS SUBORDINATION, ATTORNMENT, AND NON-DISTURBANCE AGREEMENT (this
"Agreement") is made and entered into as of the ___ day of ________, 1999, by
and between AMERITRADE HOLDING CORPORATION, a Delaware corporation ("Tenant"),
and SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national banking association
("Bank").
RECITALS:
Tenant is the present tenant under that certain Lease Agreement dated
________________, 1999 (hereinafter the "Lease"), with respect to an
approximately 47,644 square feet of floor space located on the parcel of real
property more particularly described in Exhibit A attached hereto and made a
part hereof. The promises demised to Tenant under the Lease, as more
particularly described therein, are referred to herein as the "Premises."
Alliance Gateway No. ____, Ltd., as the landlord under the Lease (the
"Landlord"), has obtained a loan from Bank, which is secured by a first Deed of
Trust and Security Agreement covering the Premises and an Assignment of Rents
and Leases which collaterally assign to Lender all leases relating thereto. Said
Deed of Trust and Security Agreement and Assignment of Rents and Leases, as the
same may hereafter be amended, increased, renewed, extended, spread,
consolidated, severed, restated, or otherwise changed from time to time (the
consent of Tenant to which shall not be required), are referred to herein as the
"Security Instruments." As a condition to making such loan, Bank has required
that Tenant execute this instrument. The Deed of Trust and the Assignment of
Rents and Leases are recorded at Instrument No. D197202696, Volume ,
Page , and Instrument No. D197202697, Volume , Page ,
respectively, of the Real Property Records of Tarrant County, Texas.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and as an inducement to Bank to extend financing to the
Landlord, the parties hereto do mutually covenant and agree as follows:
1. SUBORDINATION. The Lease shall at all times be subject and
subordinate in all respects to the Security Instruments, the lien and security
interest imposed by the Security Instruments, and all advances made under the
Security Instruments.
2. BANK'S RIGHT TO CURE. Notwithstanding anything to the contrary in
the Lease or this Agreement, Tenant shall give written notice simultaneously to
Landlord and to Bank of any default or breach by Landlord under the Lease that
are of such a nature as to give Tenant a right to terminate the Lease, to reduce
rent, or to credit or offset any amounts against future rents. After Bank
receives such notice, Bank shall have the same time period available to Landlord
under the Lease in which to cure the breach or default by Landlord. Bank shall
have no obligation to cure (and shall have no liability or obligation for not
curing) any breach or default by Landlord.
3. NON-DISTURBANCE. So long as Tenant is not in default in the payment
of rent, additional rent, or other charges or conditions of the Lease, Tenant
shall not be disturbed by Bank in Tenant's possession, enjoyment, use, and
occupancy of the Premises during the original or any renewal term of the Lease
or any extension or modification thereof.
4. PAYMENT OF RENTS TO BANK. Upon Bank's written request and without
regard to contrary instructions from Landlord, Tenant agrees that it will make
the payments to be made by
G-1
45
Tenant under the Lease directly to Bank. Prior to the time that Bank shall
succeed to the interest of Landlord in the Premises as described in Section 5
below, receipt of such payments by Bank shall not relieve Landlord of its
obligations under the Lease nor operate to make Bank responsible for the
performance thereof, and Tenant shall continue to look solely to Landlord for
performance of such obligations.
5. ATTORNMENT. If the interest of Landlord in the Premises shall be
acquired by Bank or any other successor landlord through foreclosure, deed in
lieu of foreclosure, or by any other method, and Bank shall succeed to the
interest of Landlord under the Lease, then the Lease shall continue in full
force and effect and shall not be terminated or disturbed except in accordance
with the terms thereof. Tenant shall thereupon be bound to Bank, and Bank shall
be bound to Tenant, under all the terms, covenants, and conditions of the Lease
for the balance of the term thereof remaining, and any extensions or renewals
thereof, with the same force and effect as if Bank was the original landlord
under the Lease. Tenant does hereby attorn to Bank as its landlord, said
attornment to be effective and self-operative without the execution of any
additional documents by the parties hereto immediately upon Bank's succeeding to
the interest of Landlord under the Lease.
6. PROTECTION OF BANK. Notwithstanding anything to the contrary in the
Lease or the Security Instruments, Bank shall not be liable for or bound by any
of the following matters:
(a) except for any default or breach of which Bank has been
notified pursuant to Section 2 hereof but has failed to cure,
any default or breach in the Landlord's obligations under the
Lease occurring prior to the time Bank succeeds to the
interest of Landlord in the Premises;
(b) any payment of rent (including fixed rent, percentage rent, or
additional rent) that Tenant might have made to Landlord more
then thirty (30) days before the date such rent was first due
and payable under the Lease with respect to any period after
the time Bank succeeds to the interest of Landlord in the
Premises;
(c) any deposit or security which was delivered to Landlord but
which was not subsequently delivered to Bank;
(d) any material modification or material amendment to the Lease,
or any waiver of any material terms of the Lease, made without
Bank's prior written consent as required by the Security
Instruments;
(e) any consensual or negotiated surrender, cancellation, or
termination of the Lease, in whole or in part, agreed upon
between Landlord and Tenant, made without Bank's prior written
consent as required by the Security Instruments; or
(f) any obligation of Landlord under the Lease to make pay for,
or reimburse Tenant for any construction, alterations,
demolition, or other improvements or work at the Premises
(other than day-to-day maintenance and repairs and provided
same shall not restrict Tenant's right to xxxxx Base Rent in
the event of Landlord's default under the Lease).
7. NOTICES. All notices, demands, or requests, and responses thereto,
required or permitted to be given pursuant to this Agreement shall be in writing
and shall be given or served by the United States mail, postage prepaid and
certified with return receipt requested, or by a nationally recognized overnight
courier service, addressed as follows:
If to Bank
SouthTrust Bank, National Association
000 Xxxxx 00xx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxx Group
Xxxxxxxxxx, Xxxxxxx 00000
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46
And to:
SouthTrust Bank, National Association
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Atnn: Xx. Xxxxxx X. Xxxxxxxxxx
If to Tenant:
Ameritrade Holding Corporation
0000 Xxxxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
With copy to:
J. Xxxxxx Xxxxxx
Xxxxx, Xxxx & Xxxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
or at such other single address in the United States as either party may by
notice in writing designate. Any notice shall be effective the next business day
after being sent by overnight courier service and five (5) business days after
being sent by certified mail (return receipt requested).
8. SUCCESSORS AND ASSIGNS. This Agreement shall bind and benefit the
parties, their successors and assigns. If Bank assigns the Security Instruments,
then upon delivery to Tenant of written notice thereof accompanied by the
assignee's written assumption of all obligations under this Agreement, all
liability of the assignor shall terminate.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between Bank and Tenant regarding the subordination of the Lease to the Security
Instruments and the rights and obligations of Tenant and Bank as to the subject
matter of this Agreement.
10. INTERACTION WITH LEASE WITH SECURITY INSTRUMENTS. If this Agreement
conflicts with the Lease, then this Agreement shall govern as between Tenant and
Bank, including upon any attornment pursuant to this Agreement. This Agreement
supersedes, and constitutes full compliance with, my provisions in the Lease
that provide for subordination of the Lease to, or for delivery of
nondisturbance agreements by the holder of, the Security Instruments. Bank
confirms that Bank has consented to Landlord's entering into the Lease.
11. INTERPRETATION; GOVERNING LAW. The interpretation, validity, and
enforcement of this Agreement shall be governed by and construed under the
internal laws of the State of Texas.
12. AMENDMENTS. This Agreement may be amended, discharged, or
terminated, or any of its provisions waived, only by a written instrument
executed by the party to be charged.
13. EXECUTION. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
14. WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ANY RIGHT TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS,
CROSS-CLAIMS OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE LEASE, OR THE SECURITY INSTRUMENTS. TENANT CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF BANK OR BANK'S COUNSEL HAS REPRESENTED, EXPRESSLY OR
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47
OTHERWISE, THAT BANK WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE
THIS WAIVER OF MY TRIAL PROVISION.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused this Agreement to be duly executed, as of the day and year first
above written.
TENANT:
AMERITRADE HOLDING
CORPORATION, a Delaware corporation
By:
------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice-President of Infrastructure and
Facilities
Date of execution:
---------------------------------
BANK:
SOUTHTRUST BANK, NATIONAL
ASSOCIATION, a national banking association
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Date of execution:
---------------------------------
STATE OF )
---------------
COUNTY OF )
--------------
This instrument was acknowledged before me on _______________, 1999 by
______________, ___________ of ___________ on behalf of ____________________.
---------------------------------------------------
Notary Public
My commission expires:
-----------------------------
[NOTARIAL SEAL]
STATE OF )
---------------
COUNTY OF )
--------------
This instrument was acknowledged before me on _______________, 1999 by
______________, ___________ of SouthTrust Bank, National Association, a national
banking association, on behalf of said association.
---------------------------------------------------
Notary Public
My commission expires:
-----------------------------
[NOTARIAL SEAL]
G-4
48
LANDLORD'S CONSENT
Landlord consents and agrees to the foregoing Agreement, which was
entered into at Landlord's request. The foregoing Agreement shall not alter,
waive, or diminish any of Landlord's obligations under the Security Instruments
or the Lease. The foregoing Agreement discharges the obligations of Bank under
the Security Instruments and related loan documents, if any, to enter into a
nondisturbance agreement with Tenant. Landlord is not a party to the foregoing
Agreement.
LANDLORD:
ALLIANCE GATEWAY NO. 16, LTD.
By: Hillwood Operating, L.P., a Texas limited
partnership, its general partner
By: Hillwood Development Corporation,
a Texas corporation, its general partner
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
STATE OF )
---------------
COUNTY OF )
--------------
This instrument was acknowledged before me on _____________, 1999, by
___________________, _________________ of Hillwood Development Corporation, a
Texas corporation, the general partner of Hillwood Operating, L.P. a Texas
limited partnership, general partner of Alliance Gateway No. 16, Ltd., a Texas
limited partnership, on behalf of said partnership.
------------------------------------------------
Notary Public
My commission expires:
--------------------------
[NOTARIAL SEAL]
G-5
49
EXHIBIT "A"
TO
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT
[insert legal description]
1
50
EXHIBIT "H"
SUBORDINATION OF MORTGAGE
_______________, as owner and holder of a certain promissory note
dated ______________, 19___, in the principal sum of _____________ Dollars and
of a certain Mortgage or Deed of Trust of even date therewith and securing the
said Note, recorded on ________ in Volume __________ at Page ________, Real
Property Records, ________ County, __________ now a first lien upon the
premises more particularly demised and described in that certain Lease dated
_________, 19___, by and between _____________, as Lessor, and _______________,
as Lessee, and upon other property, in consideration of such leasing and of the
sum of One ($1.00) Dollar and other good and valuable consideration, receipt of
which is hereby acknowledged,
DOES hereby covenant and agree that the said Mortgage or Deed of Trust
shall be and the same is hereby made SUBORDINATE to the said Lease with the same
force and effect as if the same Lease had been executed, delivered and recorded
prior to the execution, delivery and recording of the said Mortgage or Deed of
Trust;
EXCEPT, HOWEVER, that this Subordination shall not affect nor be
applicable to and does hereby expressly exclude:
(a) The prior right, claim and lien of the said Mortgage or Deed of
Trust in, to and upon any award or other compensation heretofore or hereafter to
be made for any taking by eminent domain of any part of the said premises, and
to the right of disposition thereof in accordance with the provisions of the
said Mortgage or Deed of Trust,
(b) The prior right, claim and lien of the said Mortgage or Deed of
Trust in, to and upon any proceeds payable under all policies of fire and rent
insurance upon the said premises and as to the right of disposition thereof in
accordance with the terms of the said Mortgage or Deed of Trust, and
(c) Any lien, right, power or interest, if any, which may have arisen
or intervened in the period between the recording of the said Mortgage or Deed
of Trust and the execution of the said lease, or any lien or judgment which may
arise at any time under the terms of such lease.
This Subordination shall inure to the benefit of and shall be binding
upon the undersigned, its successors and assigns,
IN WITNESS WHEREOF, the Subordination has been duly signed and
delivered by the undersigned this _____ day of _____________, 1999.
------------------------------
By:
---------------------------
Assistant Secretary
X-0
00
XXXXX XX XXX XXXX )
) Section:
COUNTY OF NEW YORK )
Before me, a Notary Public, in and for said County, personally appeared
_______________, to me known and known to me to be the persons who, as
_______________ of _______________, the entity which executed the foregoing
instrument, signed the same, and acknowledged to me that they did so sign said
instrument in the name and upon behalf of said corporation as such officers
respectively; that the same is their free act and deed as such officers,
respectively, and the free act and deed of said corporation; that they were duly
authorized thereunto by its board of trustees; and that the seal affixed to said
instrument is the corporate seal of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
official seal at [City], [State] this ______ day of _____________, 1999.
------------------------------
Notary Public
LESSEE'S AGREEMENT
The undersigned as Lessee under the lease herein described, does hereby
accept and agree to the terms of the foregoing Subordination, which shall inure
to the benefit of and be binding upon the undersigned and the heirs, executors,
administrators, legal representatives, successors and assigns of the
undersigned.
By:
---------------------------
ACKNOWLEDGMENTS
INDIVIDUAL
STATE OF )
) Section:
COUNTY OF )
On this _____ day of ____________, 1999, before me personally appeared
to me personally known to be the person described in and who executed the
foregoing instrument, and acknowledged that _____________ executed the same as
their free act and deed.
------------------------------
Notary Public
My commission expires:
------------------------------
H-2
52
CORPORATE
STATE OF )
) Section:
COUNTY OF )
On this ____ day of ____________, 1999, before me, personally appeared
__________________ to me personally known, who, being by me duly sworn, did say
he is the _______________ of ____________ and that the seal affixed to the
foregoing instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation by authority of
its Board of Directors, and acknowledged said instrument to be the free act and
deed of said corporation.
------------------------------
Notary Public
My commission expires:
------------------------------
PARTNERSHIP
STATE OF )
) Section:
COUNTY OF )
In _____________ County in said station on the _____ day of
___________, 1999, before me personally appeared _____________ as general
partner of _____________ PARTNERSHIP, to be known and known by me to be the
party executing the foregoing and the acknowledged said instrument by him
executed to be his free act and deed, and his free act and deed in his
capacities as aforesaid, and the free act and deed of ______________
PARTNERSHIP.
------------------------------
Notary Public
My commission expires:
------------------------------
H-3
