-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KBSTH7xOvO8HS8fqZUHchKxFJMtHmspgIkBd+2dg1slrpTq/OZEwt02KEt5IHkbb C3Vcq0S6kFzqPrcGtX2Jhg== 0001193125-08-139904.txt : 20080625 0001193125-08-139904.hdr.sgml : 20080625 20080625105420 ACCESSION NUMBER: 0001193125-08-139904 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20080625 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20080625 DATE AS OF CHANGE: 20080625 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RADIOSHACK CORP CENTRAL INDEX KEY: 0000096289 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-RADIO TV & CONSUMER ELECTRONICS STORES [5731] IRS NUMBER: 751047710 STATE OF INCORPORATION: DE FISCAL YEAR END: 0226 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-05571 FILM NUMBER: 08915855 BUSINESS ADDRESS: STREET 1: 100 THROCKMORTON ST STREET 2: STE 1700 CITY: FORT WORTH STATE: TX ZIP: 76102 BUSINESS PHONE: 8174153700 MAIL ADDRESS: STREET 1: 100 THROCKMORTON SUITE 1700 CITY: FORTH WORTH STATE: TX ZIP: 76102 FORMER COMPANY: FORMER CONFORMED NAME: TANDY CORP /DE/ DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: TANDY LEATHER CO DATE OF NAME CHANGE: 19681216 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN HIDE & LEATHER CO DATE OF NAME CHANGE: 19660825 8-K 1 d8k.htm FORM 8-K Form 8-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

Current Report Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 25, 2008

 

 

RADIOSHACK CORPORATION

(Exact name of registrant as specified in its charter)

 

 

Commission file number 1-5571

 

Delaware   75-1047710
(State or other jurisdiction of incorporation)   (I.R.S. Employer Identification No.)

 

300 RadioShack Circle, Mail Stop CF3-203,

Fort Worth, Texas

  76102
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (817) 415-3700

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act

 

 

 


Section 1 – Registrant’s Business and Operations

 

Item 1.01 Entry into a Material Definitive Agreement

On June 25, 2008, Tarrant County College District (“TCCD”) announced that it had purchased from Kan Am Grund Kapitalanlagegesellshaft mbH (“Kan Am”) the buildings and real property comprising RadioShack Corporation’s headquarters in Fort Worth, Texas (the “Headquarters”), which were previously sold to Kan Am and then leased for a period of 20 years by RadioShack in a sale and lease-back transaction in December 2005.

On June 25, 2008, RadioShack entered into an agreement with TCCD to convey certain real property located adjacent to the Headquarters; the oil, gas and other minerals in and under the Headquarters and the adjacent property; a parking easement on property located near the Headquarters; an option to purchase certain additional parcels of real property located near the Headquarters; certain contracts relating to the use and operation of the real property adjacent to and comprising the Headquarters; and certain personal property and equipment located within the Headquarters (excluding personal property and equipment relating to RadioShack’s business and operations).

In consideration of this conveyance, RadioShack and TCCD entered into an amended and restated lease for RadioShack’s continued use of a reduced portion of the Headquarters. The lease with TCCD allows RadioShack to remain in the approximately 400,000 square feet it currently occupies of the approximately 900,000 square foot Headquarters facility through June of 2011 with an option to remain in a further reduced portion of the Headquarters through June of 2013.

The foregoing is subject to, and qualified entirely by the terms of the purchase and sale agreement and the lease agreement attached hereto as Exhibits 10.1 and 10.2. The terms of the purchase and sale agreement and lease agreement are incorporated herein by reference.

On June 25, 2008, RadioShack issued a press release containing certain information with respect to this transaction. A copy of the press release is attached as Exhibit 99.1.

Section 9 – Financial Statements and Exhibits

 

Item 9.01 Financial Statements and Exhibits

 

(d) Exhibits. The following exhibit is filed as part of this Report on Form 8-K:

 

Exhibit No.

  

Description of Exhibit

10.1

   Purchase and Sale Agreement

10.2

   Amended and Restated Lease Agreement

99.1

   Press Release


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

RADIOSHACK CORPORATION
BY:  

/s/ James F. Gooch

  James F. Gooch
  Executive Vice President and Chief Financial Officer

Date: June 25, 2008


EXHIBIT INDEX

 

Exhibit No.

  

Description of Exhibit

10.1

   Purchase and Sale Agreement

10.2

   Amended and Restated Lease Agreement

99.1

   Press Release
EX-10.1 2 dex101.htm PURCHASE AND SALE AGREEMENT Purchase and Sale Agreement

Exhibit 10.1

PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (“Agreement”) is made as of the 25th day of June, 2008 (the “Effective Date”), by and between RADIOSHACK CORPORATION, a Delaware corporation (“Seller”), and TARRANT COUNTY COLLEGE DISTRICT, a political subdivision of the State of Texas (“Buyer”).

RECITALS

A. Buyer intends to open a campus of Tarrant County College District in downtown Fort Worth, Texas (the “Campus”).

B. In connection with the Campus, KAN AM GRUND KAPITALANLAGEGESELLSCHAFT MBH, a German limited liability company, for the benefit of the KanAm-grundinvest Fonds, a German open-end real estate fund sponsored by Kan Am Grund Kapitalanlagegesellschaft mbH (“Lot 1 Owner”) as Seller, and Buyer as buyer, entered into that certain Purchase and Sale Agreement (the “Lot 1 Contract”) pertaining to the purchase of that certain tract of real property described as Lot 1, Block 1, RadioShack Addition, an Addition to the City of Fort Worth, Tarrant County, Texas, according to the replat thereof recorded in Cabinet A, Slide 10730, Plat Records of Tarrant County, Texas (“Lot 1 Land”) together with all improvements located thereon (“Lot 1 Improvements”; the Lot 1 Land and the Lot 1 Improvements may be referred to collectively herein as the “Lot 1 Property”).

C. Seller currently leases the Lot 1 Property pursuant to that certain Lease dated December 20, 2005 (the “Lease”), between Lot 1 Owner’s predecessor in interest, Kan Am Riverfront Campus, LP (“Riverfront”), as landlord, and Seller, as tenant, which will be assigned to Buyer at the closing of the purchase and sale of the Lot 1 Property. Riverfront and Seller executed a Memorandum of Lease with respect to the Lease, dated December 20, 2005, and recorded as Instrument No. D205379265, Real Property Records of Tarrant County, Texas (the “Memorandum”). Lot 1 Owner and Seller amended the Memorandum pursuant to that certain Amendment to Memorandum of Lease dated June 15, 2007, recorded as Instrument No. D207219120, which amendment provided notice that Lot 1 Owner had accepted an assignment of all of Riverfront’s right, title and interest as “Landlord” under the Lease.

D. Seller owns the RS Property (as defined in Section 1(a)(ii) below), which is adjacent to the Lot 1 Property.

E. Buyer desires to purchase the RS Property and certain other real and personal property from Seller, which shall be used in connection with the Campus.

F. Seller desires to sell the Property (as defined in Section 1 below) to Buyer in consideration of Buyer agreeing to amend the Lease as set forth herein.


In consideration of the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:

1. Sale and Purchase.

(a) Seller hereby agrees to sell, transfer and convey to Buyer, and Buyer hereby agrees to purchase and accept from Seller, in each case for the Consideration (as defined in Section 2 below) and on and subject to the other terms and conditions set forth in this Agreement, the following (collectively, the “Property”):

(i) Those certain tracts of real property owned by Seller described as Lots 2 and 3, Block 1, RadioShack Addition, an Addition to the City of Fort Worth, Texas, according to the replat thereof recorded in Cabinet A, Slide 10730, Plat Records of Tarrant County, Texas, together with all of Seller’s right, title and interest, if any, in and to all easements, rights of way, appurtenances, strips and gores of land, water rights and other interests, rights and benefits thereunto belonging, and to all public or private streets, roads, avenues, alleys, or passageways, open or proposed, on or abutting the parcels of land (collectively, the “RS Land”).

(ii) All improvements on, over, under or to the RS Land, if any (the “RS Improvements”; the RS Land and the RS Improvements may be collectively referred to herein as the “RS Property”) (the Lot 1 Property and the RS Property may be collectively referred to herein as the “Real Property).

(iii) All of Seller’s right, title and interest in and to the oil, gas and other minerals in, on or under the RS Land and the Lot 1 Land (“Mineral Estate).

(iv) All of Seller’s right, title and interest in and to all fixtures, furniture, equipment, machinery and similar personal property located on the Lot 1 Land that is owned by Seller, except for the Excluded Property (as defined in Section 1(b) below) (the “Personal Property”). The Personal Property shall be conveyed to Buyer on an as-is, where-is basis and without warranty of any kind except that the Personal Property shall be conveyed free and clear of any liens. The Personal Property shall be conveyed subject to the terms and provisions set forth in any applicable Contract (as defined in Section 1(a)(v) below) pertaining to any part thereto. On or before the Closing Date, Buyer shall provide to Seller a fully executed Texas Sales and Use Tax Exemption Certification in respect of the purchase of the Personal Property. Such certification must be in the form required by applicable law to enable Seller to legally exempt the sale of the Personal Property to Buyer from imposition of otherwise applicable sales and/or use tax charges.

(v) To the extent assignable, all of Seller’s interest in all service, maintenance, labor and similar contracts pursuant to which services or goods are provided for the use and operation of the Real Property and the Personal Property as well as all subleases under the Lease (the “Contracts”). The Contracts shall be deemed to be Permitted Encumbrances (as defined in Section 3(b) below).

(vi) All of Seller’s right, title and interest in the intangible property used in connection with the Real Property including, without limitation, all contract rights, guarantees, architectural drawings, plans and specifications, licenses, permits, registrations and warranties relating to the ownership, construction, or occupancy of the Real Property, if any (the “Intangible Personal Property”).


(vii) As an appurtenance to the RS Land conveyed under Section 1(a)(i) above, all of Seller’s right, title, and interest, without warranty, in and to that certain easement estate as created in Agreement dated October 7, 1953, between Tarrant County Water Control and Improvement District Number #1 and Leonards, recorded in Volume 2645, Page 494, Deed Records of Tarrant County, Texas and in that Easement Agreement dated March 1, 1965, between Tarrant Water Control and Improvement District #1 and Leonards, Inc., recorded in Volume 4049, Page 356, Deed Records of Tarrant County, Texas, as well as that certain easement estate reserved by Tandy Corporation in deed dated December 1, 1977 to Tarrant County Water Control and Improvement District No. 1, recorded in Volume 6352, Page 995, Deed Records of Tarrant County, Texas (collectively, the “Parking Easements”).

(viii) Seller’s Additional Consideration (as defined in Section 7(b)(10) below).

(b) Notwithstanding anything to the contrary, the Property conveyed by Seller to Buyer pursuant to this Agreement shall not include any of the following (collectively, the “Excluded Property”):

(i) All of Seller’s office equipment (not including the audio/video meeting, projecting, and conferencing equipment currently located in the East Fork and Trinity Buildings) and computer and data processing equipment located on the Lot 1 Property and all inventory, merchandise, supplies and trade fixtures used in connection with Seller’s retail and model stores located on the Lot 1 Property;

(ii) All economic development incentives (the “Excluded Incentives”) including, but not limited to, economic development grants and property tax abatements and reimbursements previously or at any time granted to Seller by the City of Fort Worth, the Tax Increment Reinvestment Zone Number Six, City of Fort Worth, Texas, or any other Governmental Authority (as defined in the Lease);

(iii) All of Seller’s furniture and equipment (including audio/video meeting and conferencing equipment), decorations, furnishings, and interior artwork located in the West Fork and Clear Fork Buildings located on Lot 1 (except for items of personal property used in the operation or maintenance of these two buildings) and certain other furniture and equipment owned by Seller located on the Lot 1 Property described on Exhibit A attached hereto (the “Excluded Personal Property”); and

(iv) Any trade names, service marks, trademarks (and any exterior sign facings or panels bearing any of the foregoing to the extent that such can be removed from monument signs or other Lot 1 Improvements without damage thereto), patents, other intellectual property, trade secrets, phone numbers and the like which are associated with Seller’s business.


(c) The Property shall be conveyed subject to the Permitted Encumbrances.

2. Consideration. As consideration (“Consideration”) for Seller conveying the Property to Buyer, Buyer agrees to amend the Lease pursuant to and in accordance with the Amended and Restated Lease (as defined in Section 18). The execution of the Amended and Restated Lease by Buyer at Closing shall be a condition precedent to Seller’s obligation to convey the Property to Buyer.

3. Title Exceptions.

(a) Attached as Exhibit B is Schedule B of that certain Commitment for Title Insurance issued by Rattikin Title Company, Attention: Larry Townsend, 201 Main Street, Suite 800, Fort Worth, Texas 76102, telephone number (817) 332-1171, telecopier number (817) 877-4237 (the “Title Company”) as agent for Chicago Title Insurance Corporation, dated effective as of June 10, 2008 (the “Commitment”). In addition, Buyer acknowledges that prior to the Effective Date, Buyer has received that certain survey of the Lot 1 Property and the RS Property prepared by Eugene D. Abbey, RPLS No. 4886, dated June 20, 2008, revised June 23, 2008 (the “Survey”).

(b) At Closing, provided that neither Buyer nor Seller has terminated this Agreement pursuant to the terms hereof, Seller shall transfer title to the RS Property and the Mineral Estate to Buyer pursuant to the Deed (as defined in Section 7(b)(1)), subject only to (i) the Contracts, (ii) any matter shown in paragraphs 1, 5 and 10 of Schedule B to the Commitment, and (iii) any matter which appears on the Survey (“Permitted Encumbrances”).

4. Due Diligence. Buyer acknowledges that prior to the Effective Date, (i) pursuant to that certain Confidentiality Agreement by and between Seller and Buyer dated May 8, 2008 (“Confidentiality Agreement”), Seller delivered to Buyer certain due diligence documents and (ii) pursuant to that certain Agreement for Temporary Access for Site Investigation, by and between Seller and Buyer dated May 28, 2008 (“Access Agreement”), Buyer has inspected and tested the Property to the extent deemed necessary or desirable by Buyer.

5. Representations and Warranties of Seller.

(a) Subject to all matters disclosed in the Confidential Information (as defined in the Confidentiality Agreement), and subject to any information discovered by Buyer or other information disclosed in writing to Buyer by Seller or any other person prior to the Closing (all such matters being referred to herein as “Exception Matters”), Seller represents and warrants to Buyer and agrees with Buyer as follows:

(i) Seller is a corporation organized and validly existing under the laws of the State of Delaware, is qualified to do business and is in good standing in the State of Texas, and has all requisite power and authority to enter into this Agreement and all related agreements and perform its obligations hereunder. The execution and delivery of this Agreement by Seller has been duly authorized. This Agreement and any other documents executed in connection herewith have been duly executed and delivered, and are legally valid obligations of Seller, enforceable in accordance with their terms.


(ii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder on the part of Seller do not and will not conflict with or result in the breach of any material terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the Property or assets of Seller by reason of the terms of any contract, mortgage, lien, lease, agreement, indenture, instrument or judgment to which Seller is a party or which is binding upon Seller or which otherwise affects Seller, which will not be discharged or released at Closing.

(iii) Seller has not received any written notice of any pending or contemplated condemnation, eminent domain or similar proceeding with respect to all or any portion of the Real Property; provided, however, Buyer acknowledges that Seller has disclosed to Buyer the general concept of the Trinity River Vision project and that this representation is subject thereto. To Seller’s current actual knowledge, no portion of the Real Property is proposed to be taken as part of the Trinity River Vision project.

(iv) Seller has not received written notice of any existing violations of any federal, state, county or municipal laws, ordinances, orders, codes, regulations or requirements affecting the Real Property which have not been cured.

(v) To Seller’s current actual knowledge, there is no action, suit or proceeding pending or threatened against or affecting the Real Property, or arising out of the ownership, management or operation of the Real Property, this Agreement or the Lot Contract or the transactions contemplated hereby.

(vi) Seller is not a “foreign person” as defined in Section 1445(f)(3) of the Internal Revenue Code.

(vii) To Seller’s current actual knowledge, there are no authorizations, consents or approvals of and filings with any Governmental Authority or any other person or entity required with respect to Seller for the execution and delivery of the documents contemplated by this Agreement and the performance of its obligations thereunder and under the Lease.

(viii) To Seller’s current actual knowledge, the Real Property, including the use and operation thereof, is in substantial compliance with all applicable legal requirements, including without limitation, the Americans With Disabilities Act, Public Law 101-336, as codified, and with all applicable requirements of every Governmental Authority, including without limitation, zoning, subdivision, building and environmental requirements. To Seller’s current actual knowledge, (A) except for the Excluded Incentives, there are no special or preferential assessments in effect with respect to the Real Property, and (B) except for Permitted Encumbrances there are no written agreements with any Governmental Authority which affect the Real Property.


(ix) Pursuant to the Confidentiality Agreement, Seller has delivered to Buyer, among other things, copies of the Phase I Environmental Site Assessment (including a limited asbestos survey) dated May 14, 2001 and the Phase II Environmental Site Assessment dated June 4, 2001, both prepared by Carter & Burgess, Inc. To Seller’s current actual knowledge, Seller has received no written notice from any Governmental Authority of any violation of any Environmental Laws (as defined in the Lease) in relation to the Real Property.

(x) To Seller’s current actual knowledge, Seller has not received written notice or demand from any of the insurers of all or any portion of the Real Property (or insurers of any activities conducted thereon) to correct or change any physical condition on the Real Property or any practice of Seller.

(xi) To Seller’s current actual knowledge, Seller has received no written notice from any Governmental Authority of (A) any pending or contemplated change in any federal, state or local governmental or private restriction applicable to the Real Property, (B) any pending or threatened judicial or administrative action applicable to the Real Property, or (C) any action pending or threatened by adjacent land owners or other persons, which would result in a material adverse change in the condition of the Real Property, or any part thereof, or in any material way prevent or limit the operation of the Improvements or the Lot 1 Improvements or any part thereof.

(b) As used in this Agreement, or in any other agreement, document, certificate or instrument delivered by Seller to Buyer, the phrase “to Seller’s current actual knowledge” or any similar phrase shall mean the current actual, not constructive or imputed, knowledge of Bob Donohoo and Mark Hullinger.

(c) Buyer agrees to inform Seller promptly in writing if it discovers that any representation or warranty of Seller is inaccurate in any material respect, or if it believes that Seller has failed to deliver to Buyer any document or material which it is obligated to deliver hereunder.

(d) The representations and warranties set forth in this Section 5, each of which shall be true in all material respects as of the date hereof and at Closing, shall be for the benefit of Buyer and its respective successors and assigns and shall be binding upon Seller and each of its successors and assigns and shall survive the Closing for a period of one (1) year from the date of the Closing after which time they will terminate and be of no further force or effect. Subject to the terms and provisions set forth herein, Seller shall, as Buyer’s exclusive remedy, defend, indemnify and hold harmless Buyer and its successors and assigns, from and against any and all liabilities, losses, damages, costs, expenses (including without limitation reasonable attorneys’ fees and expenses), causes of action, suits, claims, demands or judgments should any representation or warranty set forth in this Section 5 prove to have been untrue or inaccurate in any material respect when made. No right of rescission shall be available to Buyer or its successors and assigns if any representation or warranty set forth in this Section 5 shall prove to have been untrue or inaccurate in any material respect when made.


6. Conditions Precedent to Buyer’s Obligations. All of Buyer’s obligations hereunder are expressly conditioned on the satisfaction at or before the time of Closing hereunder, or at or before such earlier time as may be expressly stated below, of each of the following conditions (any one or more of which may be waived in writing in whole or in part by Buyer, at Buyer’s option), and in the event that any of the conditions set forth below has not so been fully satisfied or waived, then Buyer shall have the right, in its discretion, to terminate this Agreement by notice to Seller, whereupon this Agreement shall terminate and Seller and Buyer shall have no further obligations hereunder except for any obligations which expressly survive the termination of this Agreement:

(i) All of the representations and warranties of Seller contained in this Agreement shall have been true and correct in all material respects when made, and shall be true and correct in all material respects on the date of Closing with the same effect as if made on and as of such date.

(ii) Seller shall have performed, observed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with on its part prior to or as of Closing hereunder.

(iii) All instruments and documents required on Seller’s part to effectuate this Agreement and the transactions contemplated hereby shall be delivered to Buyer and shall be in form and substance consistent with the requirements herein.

(iv) The Title Company’s commitment to issue the Owner Policy in the form required by the Commitment, as the same may have been supplemented, in the amount set forth in Section 7(b)(3) below.

7. Closing; Deliveries.

(a) Subject to Section 19(b) below, the closing (“Closing”) shall take place on or before June 25, 2008, at the offices of the Title Company, or on such other date as may be agreed to in writing by both Seller and Buyer (“Closing Date”).

(b) At Closing, Seller shall deliver to Buyer (or the Title Company, as appropriate) the following, and it shall be a condition to Buyer’s obligation to close that Seller shall have delivered the same to Buyer:

(1) A Special Warranty Deed (“Deed”) conveying the RS Property and the Mineral Estate to Buyer, including a conveyance without warranty of the Parking Easements, duly executed and acknowledged by Seller and substantially in the form of Exhibit C, subject to the Permitted Encumbrances.

(2) Two (2) original counterparts of an Assignment of Warranties and Permits and Bill of Sale (“Assignment and Bill of Sale”) assigning and conveying the Personal Property, Contracts and Intangible Personal Property to Buyer, substantially in the form of Exhibit D, duly executed by Seller.


(3) The Title Company’s irrevocable commitment to issue a TLTA Owner Policy of Title Insurance (“Owner Policy”) to Buyer, at Seller’s expense, insuring that, upon Closing, Buyer is the owner of indefeasible fee simple title to the RS Property and the owner of Seller’s rights under the Parking Easements subject only to the Permitted Encumbrances and the standard printed exceptions included in a Texas Standard Form Owner Policy of Title Insurance, and containing, at Buyer’s expense, such endorsements as requested by Buyer. Without limiting the generality of the foregoing, the printed form exception for restrictive covenants must be deleted unless one or more restrictive covenants are included among the Permitted Encumbrances; there must be no exception for rights of parties in possession except Seller as tenant under the Lease and any other tenants disclosed in the Lease or the Confidential Information (as defined in the Confidentiality Agreement, and the standard exception for taxes must read: “Standby fees, taxes and assessments by any taxing authority for the year 2008 and subsequent years, and subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership.” Seller and Buyer agree that the Owner Policy shall be issued in the amount of $100,000 and may be combined into the Owner Policy being issued under the Lot 1 Contract.

(4) An original Certificate executed by the secretary of Seller (or appropriate authorized officer) containing resolutions authorizing the sale of the Property pursuant to this Agreement.

(5) An original incumbency certificate for Seller.

(6) Original good standing certificates for Seller from the Delaware and Texas Secretaries of State.

(7) True and correct copies of all documents (to the extent in Seller’s possession) evidencing or relating to any of the Intangible Personal Property. Buyer acknowledges that some or all of such documents may be delivered to Buyer after Closing.

(8) Possession and occupancy of the Real Property, subject to the Permitted Encumbrances and the Lease (as amended in accordance with Section 18).

(9) Four (4) original counterparts of a closing statement (the “Closing Statement”) for the purchase and sale of the Property, in form and substance reasonably acceptable to Buyer and Seller.

(10) Immediately available funds via wire transfer in the amount of $2,250,000.00 (such amount being the difference between the purchase price under the Lot 1 Contract and the amount of $235,000,000.00 which Buyer is paying towards the purchase price under the Lot 1 Contract) (“Seller’s Additional Consideration”).

(11) Seller’s affidavit setting forth its U.S. Taxpayer Identification Number, its office address, and its statement that it is not a “foreign person” as defined in Internal Revenue Code §1445(f)(3), as amended.


(12) Four (4) original counterparts of the Amended and Restated Lease, duly executed by Seller.

(13) An original Memorandum of Amended and Restated Lease (as defined in Section 18 below), duly executed and acknowledged by Seller.

(14) An estoppel certificate executed by Seller in connection with the Lease in the form attached hereto as Exhibit E.

(15) An original Memorandum of Option (as defined in Section 20 below) and an original Termination of Option (as defined in Section 20 below), which shall be held in escrow pursuant to Section 20 below, duly executed and acknowledged by Seller.

(16) An original Escrow Agreement (as defined in Section 20 below), duly executed by Seller.

(17) All other instruments and documents reasonably required by the Title Company to issue the Owner Policy and/or to effectuate this Agreement and the transactions contemplated hereby.

(c) At Closing, Buyer shall deliver to Seller (or the Title Company, as appropriate) the following, and it shall be a condition to Seller’s obligation to close that Buyer shall have delivered the same to Seller:

(1) Two (2) original counterparts of the Assignment and Bill of Sale, duly executed by Seller.

(2) Four (4) original counterparts of the Closing Statement.

(3) Four (4) original counterparts of the Amended and Restated Lease, duly executed by Buyer.

(4) An original Memorandum of Amended and Restated Lease, duly executed and acknowledged by Buyer.

(5) An original Memorandum of Option and an original Termination of Option, duly executed and acknowledged by Buyer.

(6) A Texas Sales and Use Tax Exemption Certification as required by Section 1(a)(iv) executed by Buyer.

(7) An original Escrow Agreement, duly executed by Buyer.


(8) All other instruments and documents reasonably required by the Title Company to effectuate this Agreement and the transactions contemplated hereby.

8. Taxes; Closing Costs.

(a) Seller and Buyer shall each pay their respective attorney’s fees. Seller shall pay the base premium for the Owner Policy, and Buyer may purchase, at its expense, any additional coverage or endorsements in excess of the standard TLTA Owner Policy. Buyer shall pay for the Survey. All other escrow and closing costs shall be paid in the customary fashion for transactions in the Fort Worth, Texas area.

(b) Real property taxes on the Real Property (Lot 1 Property and RS Property) (except any property taxes assessed against any of the Excluded Property) for the current year and rents (except for rents under the Lease for the month of June 2008, which shall be retained in full by the Lot 1 Owner in connection with the sale and purchase of the Lot 1 Property) and all other operating income and expenses related to the Lot 1 Property and the Property and the Contracts, shall be prorated at the Closing, effective as of the Closing Date, using the best available computations of such items. At Closing, the Title Company shall estimate Seller’s prorata share of 2008 taxes (“Seller’s Estimated Taxes”) by applying 2007 tax rates to the 2008 assessment values for the Real Property. Seller shall pay Seller’s Estimated Taxes to the Title Company at Closing with instructions to deliver such funds to the Tarrant County Tax Assessor/Collector and to request a written receipt for such funds. If the total tax liability for the Real Property calculated as of the Closing Date exceeds Seller’s Estimated Taxes, Seller shall promptly pay such deficiency to the Title Company. If such tax liability is less than Seller’s Estimated Taxes, the Title Company shall promptly refund such excess to Seller upon its receipt of same from the tax collector. Seller shall be responsible for any taxes owed or charged for prior tax years. Seller and Buyer may enter into an agreement at Closing to prorate operating expenses relating to the Lot 1 Property and the Property paid or incurred by either party for pre and post Closing periods of time. The obligations of Seller and Buyer under this Section 8(b) shall survive the Closing.

9. Disclaimer.

(a) Subject to the representations and warranties of Seller contained in Section 5 hereof, Buyer expressly acknowledges that the Property is being sold and accepted AS-IS, WHERE-IS AND WITH ALL FAULTS and, except as expressly set forth herein, Seller makes no representations or warranties with respect to the physical condition or any other aspect of the Property, including, without limitation, (i) the structural integrity of any Improvements on the Property, (ii) the manner, construction, condition, and state of repair or lack of repair of any of such Improvements, (iii) the conformity of the Improvements to any plans or specifications for the Property, including but not limited to any plans and specifications that may have been or which may be provided to Buyer, (iv) the conformity of the Property to past, current or future applicable zoning or building code requirements or the compliance with any other laws, rules, ordinances, or regulations of any government or other body, (v) the financial earning capacity or history or expense history of the operation of the Property, (vi) the nature and extent of any right-of-way, lease, possession, lien, encumbrance, license, reservation, condition, or otherwise,


(vii) the existence of soil instability, past soil repairs, soil additions or conditions of soil fill, susceptibility to landslides, sufficiency of undershoring, sufficiency of drainage, (viii) whether the Property is located wholly or partially in a flood plain or a flood hazard boundary or similar area, (ix) the existence or non-existence of asbestos, underground or above ground storage tanks, hazardous waste or other toxic or hazardous materials of any kind or any other environmental condition or whether the Property is in compliance with applicable laws, rules and regulations, (x) the Property’s investment potential or resale at any future date, at a profit or otherwise, (xi) any tax consequences of ownership of the Property, or (xii) any other matter whatsoever affecting the stability, integrity, other condition or status of the Property or any Improvements situated on all or part of the Property (collectively, the “Property Conditions”), and except as expressly set forth herein, BUYER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL ACTUAL OR POTENTIAL RIGHTS BUYER MIGHT HAVE REGARDING ANY FORM OF WARRANTY, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE relating to the Property, its Improvements or the Property Conditions, such waiver being absolute, complete, total and unlimited in any way.

(b) Subject to Seller’s representations and warranties set forth in Section 5 above, Buyer acknowledges that the Property may not be in compliance with all regulations, rules, laws and ordinances that may apply to the Property or any part thereof and the continued ownership, maintenance, management and repair of the Property (“Requirements”). Buyer shall be solely responsible for any and all Requirements, Property Conditions, and all other aspects of the Property, whether the same shall be existing as of the Closing Date or not. To the fullest extent permitted by law, except for claims based on fraud, Buyer hereby waives any and all rights and benefits which it now has, or in the future may have, conferred upon it by virtue of any applicable state, federal, or local law, rule, or regulation as a result of the purchase of the Property, including, without limitation, (i) the provisions of the Deceptive Trade Practices-Consumer Protection Act of the State of Texas, (ii) any other comparable statute of the State of Texas, and (iii) any environmental law, rule, or regulation whether federal, state or local, including, without limitation, the Comprehensive Response, Compensation and Liability Act of 1980 (42 U.S.C. §§9601 et seq.) as amended by the Superfund Amendments and Reauthorization Act of 1986, and any analogous federal or state laws, including without limitation, the Texas Solid Waste Disposal Act. With respect to Buyer’s waiver of the above, Buyer represents and warrants to Seller that: (a) Buyer is not in a significantly disparate bargaining position; (b) Buyer is represented by legal counsel in connection with the sale contemplated by this Agreement; and (c) Buyer is knowledgeable and experienced in the purchase, operation, ownership, refurbishing and sale of commercial real estate, and is fully able to evaluate the merits and risks of this transaction. As part of the provisions of this Section 9(b), but not as a limitation thereon, Buyer hereby agrees, represents and warrants that the matters released herein are not limited to matters which are known or disclosed. In this connection, to the extent permitted by law, Buyer hereby agrees, represents, and warrants that it realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and Buyer further agrees,


represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Buyer nevertheless hereby intends to release, discharge and acquit Seller from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which might in any way be included in the waivers and matters released as set forth in this Section 9(b) above, subject to the representations and warranties of Seller contained in Section 5 hereof.

(c) Without limiting the generality of the foregoing, Buyer acknowledges that except with respect to any Seller’s representations and warranties set forth in Section 5 above, Seller does not make any representations whatsoever as to the presence or absence of hazardous substances or toxic wastes on the Property, nor as to any disposal or release thereof on the Property at any time. Other than as may arise in connection with a breach of a representation or warranty of Section 5 hereof or a claim based on fraud, BUYER HEREBY KNOWINGLY WAIVES AND RELEASES SELLER FROM ALL CLAIMS THAT BUYER MAY NOW HAVE OR MAY BE ABLE TO ASSERT IN THE FUTURE (INCLUDING, BUT NOT LIMITED TO, ANY ACTIONS BASED ON FEDERAL, STATE OR COMMON LAW AND ANY COST-RECOVERY OR CONTRIBUTION CLAIM OR OTHER PRIVATE RIGHT OF ACTION UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980, AS AMENDED (“CERCLA”), THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976, AS AMENDED, THE TEXAS SOLID WASTE DISPOSAL ACT, AS AMENDED, OR ANY OTHER STATE OR FEDERAL LAW TO WHICH THE PROPERTY IS OR MAY BE SUBJECT, INCLUDING ANY CLAIMS BASED ON THE STRICT LIABILITY OR CONCURRENT NEGLIGENCE OF SELLER) REGARDING THE PHYSICAL CHARACTERISTICS OR CONDITION (INCLUDING THE PRESENCE OR RELEASE IN THE SOIL, AIR, STRUCTURES, SURFACE OR SUBSURFACE WATERS, OR ELSEWHERE ON THE PROPERTY, OF HAZARDOUS SUBSTANCES (AS DEFINED BY CERCLA) OR SUBSTANCES THAT HAVE BEEN OR MAY IN THE FUTURE BE DETERMINED TO BE TOXIC, HAZARDOUS, UNDESIRABLE OR SUBJECT TO REGULATION, TREATMENT OR REMOVAL), VALUATION, SALABILITY OR UTILITY OF THE PROPERTY, OR ITS SUITABILITY FOR ANY PURPOSE WHATSOEVER. Buyer further hereby assumes the risk of changes in applicable laws and regulations relating to past, present and future environmental conditions on the Property.

Notwithstanding anything to the contrary, all of the terms and provisions of this Section 9 shall survive the Closing.

10. Default; Remedies.

(a) In the event Buyer fails to close this transaction by the Closing Date, other than due to Seller’s default or termination hereof by Buyer pursuant to the applicable provisions hereof, Seller may, at its option and as its sole and exclusive remedy, either bring a suit for damages not to exceed Three Million Dollars ($3,000,000.00) or seek to enforce specific performance of this Agreement.

(b) In the event that the closing of this transaction does not occur by reason of


Seller’s default hereunder, Buyer may, at its option and as its sole and exclusive remedy, either terminate this Agreement or seek to enforce specific performance of this Agreement. In no event shall any consequential damages be recovered by Buyer against Seller arising out of any alleged default under this Agreement.

11. Confidentiality. Buyer and Seller agree that the terms and provisions set forth in this Agreement and in any exhibits or schedules attached hereto and any negotiations associated with the transaction described herein shall be deemed to be Confidential Information. Buyer may disclose the Confidential Information only in accordance with the terms and provisions set forth in the Confidentiality Agreement.

12. Notices. All notices and other communications provided for herein shall be in writing and shall be sent to the addresses or facsimile numbers set forth below (or such other address or number as a party may hereafter designate for itself by notice to the other parties as required hereby) of the party for whom such notice or communication is intended:

 

If to Seller:    RadioShack Corporation   
  

300 RadioShack Circle, MS 3-307

Fort Worth, Texas 76102

Attn.: Jim Gooch, Executive Vice President and Chief Financial Officer

Facsimile: (817) 415-3744

  
With a copy to:   
  

RadioShack Corporation

300 RadioShack Circle, MS CF4-101

Fort Worth, Texas 76102

Attn.: Bob Donohoo, Vice President and General Counsel

Facsimile: (817) 415-6593

  
And with a copy to:   
  

E. Brad Mahon

Murphy Mahon Keffler & Farrier, L.L.P.

500 Main Street, Suite 1200

Fort Worth, Texas 76102

Facsimile: (817) 877-3668

  
If to Buyer:    Tarrant County College District   
  

1500 Houston Street

Fort Worth, Texas 76102

Attn: Dr. Leonardo de la Garza

Facsimile (817) 515-5450

  


With a copy to:
  

Burch Waldron

Law, Snakard & Gambill, P.C.

1600 W. 7th Street, Suite 500

Fort Worth, Texas 76102-2598

Facsimile (817) 332-7473

  

If to Title

Company:

  

Rattikin Title Company

201 Main Street, Suite 800

Fort Worth, Texas 76102

Attn: Larry Townsend

Facsimile (817) 877-4237

  

Notices shall be sent by (i) U. S. registered or certified mail, postage prepaid, return receipt requested, (ii) reputable overnight delivery service providing proof of receipt, (iii) hand delivery, or (iv) legible facsimile transmission sent to the intended addressee at the addresses and/or numbers set forth above, in which case they shall be deemed delivered on the date of actual delivery to said offices or on the date of refusal to accept delivery, in the case of (i), (ii) or (iii) above, or on the date of the facsimile transmission (or the next business day if transmitted later than 5:00 p.m. in the recipient’s time zone), provided that an original of such facsimile is also sent to the intended addressee by means described in clauses (i), (ii) or (iii) above. Any notice delivered pursuant to clause (i), (ii) or (iii) above that is actually received or deemed received pursuant to the foregoing provisions after 5:00 p.m. (in the recipient’s time zone) shall be deemed received on the next business day. Either party may by written notice to the other party given as provided hereunder change its address or facsimile number for service of Notice to any other address or number. Any address so designated shall include a street address for courier delivery.

13. Brokers. Seller and Buyer represent and warrant to each other that neither party has engaged any agent, broker, or other similar party in connection with this transaction except (i) Jones Lang LaSalle Americas, Inc., which represents Seller (“Seller’s Broker”) and (ii) Champion Partners, which represents Buyer (“Buyer’s Broker”). Seller shall pay to Seller’s Broker a fee pursuant to separate agreement. Buyer shall pay to Buyer’s Broker a fee of $3,075,000 upon the closing of the Lot 1 Property. Each party agrees to indemnify and hold the other harmless from the claims of any agent, broker, or other similar party claiming by, through, or under the indemnifying party. The provisions of this Section 13 shall survive the Closing or any termination of this Agreement.

14. Representations and Warranties of Buyer. Buyer represents and warrants that:

(a) Buyer is a political subdivision of the State of Texas duly organized and validly existing under the laws of the State of Texas, and has all requisite power and authority to enter into this Agreement and to perform its obligations hereunder. The execution and delivery of this


Agreement by Buyer has been duly authorized. This Agreement, and all other agreements executed in connection herewith, have been duly executed and delivered by Buyer, and are legally valid obligations of Buyer, enforceable in accordance with their terms.

(b) The execution and delivery of this Agreement and all related agreements and the consummation of the transactions contemplated hereunder on the part of Buyer does not and will not violate any applicable law, ordinance, statute, rule, regulation, order, decree or judgment, conflict with or, as of the Closing, result in the breach of any material terms or provisions of, or constitute a default under, or, as of the Closing, result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of the Buyer by reason of the terms of any contract, mortgage, lien, lease, agreement, indenture, instrument or judgment to which Buyer is a party or which is or purports to be binding upon Buyer or which otherwise affects Buyer, which will not be discharged, assumed or released at Closing.

(c) Buyer hereby acknowledges that, as of the Effective Date, Buyer has been advised in writing that Buyer should have an abstract covering the RS Land examined by an attorney of Buyer’s own selection or that Buyer should be furnished with or obtain a policy of title insurance.

15. Assignment. Buyer may not assign its rights and obligations under this Agreement to any other entity or person without the prior written approval of Seller.

16. Risk of Loss.

(a) In the event of loss or damage to the RS Property or the Personal Property or any portion thereof, this Agreement will remain in full force and effect, in which event Seller will assign to Buyer all of Seller’s right, title and interest to any claims and proceeds Seller may have with respect to any casualty insurance policies relating to the portion of the RS Property or the Personal Property in question. Upon Closing, full risk of loss with respect to the Property will pass to Buyer.

(b) In the event of loss or damage to the Lot 1 Property or a condemnation which results in the termination of the Lot 1 Contract, this Agreement will automatically terminate as provided in Section 20(a).

17. Miscellaneous.

(a) This Agreement shall be governed by the laws of the State of Texas and shall bind and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

(b) This Agreement or any notice or memorandum hereof shall not be recorded in any public record.

(c) Time is of the essence of this Agreement. Whenever a date specified in this Agreement falls on a Saturday, Sunday, or federal holiday, the date will be extended to the next business day.


(d) The headings preceding the text of the sections hereof are inserted solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect.

(e) This Agreement may be executed simultaneously in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. To expedite the transaction contemplated herein, telecopied signatures may be used in place of original signatures on this Agreement and on any written notice delivered pursuant hereto. Seller and Buyer intend to be bound by the signatures on the telecopied document, are aware that the other party will rely on the telecopied signatures, and hereby waive any defenses to the enforcement of the terms of this Agreement based on the form of signature.

(f) All Exhibits which are referred to herein and which are attached hereto or bound separately and initialed by the parties are expressly made and constitute a part of this Agreement.

(g) Unless otherwise expressly stated in this Agreement, each of the warranties and representations of Seller and of Buyer made hereunder shall survive the Closing and delivery of the Deed and other closing documents by Seller to Buyer, and shall not be deemed to have merged therewith; provided, however, that any suit or action for breach of any of the representations or warranties set forth herein must be commenced within one (1) year after the Closing or any claim based thereon shall be deemed irrevocably waived provided that this Section 17(g) shall not be deemed to modify or affect or limit the survival of any separate representations in the Lease. Unless expressly made to survive, all obligations and covenants of Seller contained herein shall be deemed to have been merged into the Deed and shall not survive the Closing.

(h) Any provision of this Agreement that shall be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction, and each party hereto shall remain liable to perform its obligations hereunder except to the extent of such prohibition or unenforceability. To the extent permitted by applicable law, each party hereby waives any provision of law that renders any provision hereof prohibited or unenforceable in any respect.

(i) The submission of this Agreement or a summary of some or all of its provisions for examination or negotiation by Buyer or Seller does not constitute an offer by Seller or Buyer to enter into an agreement to sell or purchase the Property, and neither party shall be bound to the other with respect to any such purchase and sale until a definitive agreement satisfactory to the Buyer and Seller in their sole discretion is executed and delivered by both Seller and Buyer.

(j) Except for the Confidentiality Agreement and any access agreement previously executed between Seller and Buyer, this Agreement and the Exhibits hereto set forth all of the promises, covenants, agreements, conditions and undertakings between the parties hereto with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements


and understandings, inducements or conditions, express or implied, oral or written, except as contained herein. This Agreement may not be changed orally but only by an agreement in writing, duly executed by or on behalf of the party or parties against whom enforcement of any waiver, change, modification, consent or discharge is sought.

(k) Seller and Buyer, at the cost and expense of the requesting party (except as otherwise set forth in this Agreement to the contrary), will cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as the other reasonably may request from time to time to carry out more effectively the intent and purposes of this Agreement.

(l) In the event that litigation is instituted by one party against the other in connection with this Agreement, the prevailing party shall be entitled to reimbursement from the other party for all of its reasonable attorneys’ fees and expenses.

18. Lease. At Closing, Buyer as landlord, and Seller as tenant, shall enter into (i) an amended and restated Lease (the “Amended and Restated Lease”), which shall be substantially in the form attached hereto as Exhibit F and (ii) a “Memorandum of Amended and Restated Lease” (herein so called), in form and substance reasonably acceptable to the parties, which shall be recorded in the Real Property Records of Tarrant County, Texas.

19. Lot 1 Contract.

(a) The parties’ obligation to close the transaction contemplated herein is expressly contingent on the closing of the Lot 1 Contract. If the Lot 1 Contract is terminated for any reason whatsoever, then this Agreement shall automatically terminate and neither party will have any further obligations one to the other except as set forth in Sections 11 and 13.

(b) It is the intent of the parties that the Closing shall occur concurrently with the closing under the Lot 1 Contract; accordingly, all of the parties’ documents and funds shall be fully executed and delivered into escrow with the Title Company immediately preceding the closing of the Lot 1 Contract and the Closing Date shall be automatically adjusted as necessary to give effect to such intent.

(c) In connection with the closing of the Lot 1 Contract and subject to the terms and conditions thereof, Buyer agrees to pay $237,250,000 for the purchase price of the Lot 1 Property. As provided in Section 7(b)(10), Seller shall deliver to the Title Company Seller’s Additional Consideration to be applied by the Title Company in closing the Lot 1 Contract. If the Lot 1 Contract fails to close for any reason, the Title Company shall return to Seller and Buyer all funds delivered by each party in contemplation of the closing of the Lot 1 Contract.

20. Purchase Option. Seller hereby grants to Buyer an option (the “Option”) to purchase that certain real property described in Exhibit G attached hereto (the “Option Property”). If Buyer elects to exercise the Option, Buyer will provide written notice thereof to Seller (the “Option Notice”) and Buyer shall acquire the Option Property in accordance with the terms of this Agreement except (a) the purchase price for the Option Property shall be $850,000.00 (the


Option Price”), (b) Buyer shall conduct, at its sole expense, any title, feasibility and environmental studies and/or other review of the Option Property prior to Buyer’s exercise of the Option, (c) the closing of the Option Property shall occur within fifteen (15) days after the date of the Option Notice, and (d) Buyer shall accept the Option Property AS IS, WHERE IS, AND WITH ALL FAULTS and subject to the Permitted Exceptions (to the extent applicable) and all other matters of record and any matters that would be disclosed on a survey of the Option Property as of the date of the Option Notice, and in the condition existing as of the closing thereof (thereby waiving any obligation of Seller to cure any title defect or property condition). If Buyer properly and timely exercises the Option, Seller shall convey the Option Property to Buyer by special warranty deed. Buyer shall pay for any title insurance policy covering the Option Property and all closing, recording and escrow fees charged by the Title Company in connection with the conveyance of the Option Property to Buyer. Notwithstanding anything to the contrary, if the Option Notice is not received by Seller within sixty (60) days after the Closing Date, all of Buyer’s rights, title and interest in and to the Option shall terminate. At Closing, the Option Price shall be escrowed by the Title Company pursuant to an escrow agreement (the “Escrow Agreement”) in substantially the form as attached hereto as Exhibit H. If Buyer does not timely exercise the Option as provided herein, the Title Company shall deliver the Option Price to Buyer. A “Memorandum of Option” (herein so called), in form and substance reasonably acceptable to the parties, shall be recorded in the Real Property Records of Tarrant County, Texas, and a “Termination of Memorandum of Option” (herein so called) in form and substance reasonably acceptable to the parties, shall be signed by the parties at Closing and delivered into escrow with the Title Company. If Buyer does not timely exercise the option, the Title Company will promptly record the Termination of Memorandum of Option.

[Signature Pages Attached]


IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first above written.

 

SELLER:

RADIOSHACK CORPORATION,

a Delaware corporation

By:  

/s/ Robert C. Donohoo

  Robert C. Donohoo, Vice President and General Counsel

[Signature page to Purchase and Sale Agreement]


BUYER:

TARRANT COUNTY COLLEGE DISTRICT,

a political subdivision of the State of Texas

By:  

/s/ Dr. Leonardo de la Garza

  Dr. Leonardo de la Garza, Chancellor

[Signature page to Purchase and Sale Agreement]


Title Company Joinder

By its execution below, Title Company acknowledges its receipt of a copy of this Agreement and agrees to act as escrow agent thereunder.

 

RATTIKIN TITLE COMPANY

By:  

/s/ Larry Townsend

Name:   Larry Townsend
Title:   Senior Vice President
EX-10.2 3 dex102.htm AMENDED & RESTATED LEASE AGREEMENT Amended & Restated Lease Agreement

Exhibit 10.2

AMENDED AND RESTATED

LEASE

BETWEEN

TARRANT COUNTY COLLEGE DISTRICT,

AS LANDLORD,

AND

RADIOSHACK CORPORATION,

AS TENANT

DATED AS OF JUNE 25, 2008


          Page

1.

   Demise of Premises.    2

2.

   Title and Condition.    2

3.

   Use of Premises.    3

4.

   Term.    3

5.

   Rent.    4

6.

   Non-Terminability.    4

7.

   Taxes and Assessments; Compliance with Law; Environmental Matters.    5

8.

   Indemnification.    7

9.

   Liens.    8

10.

   Maintenance and Repair.    8

11.

   Alterations.    9

12.

   Insurance.    10

13.

   Casualty    12

14.

   Condemnation.    13

15.

   Assignment and Subletting.    14

16.

   Permitted Contests.    14

17.

   Default Provisions.    15

18.

   Additional Rights of Landlord.    17

19.

   Notices, Demands and Other Instruments.    18

20.

   Transfer by Landlord.    19

21.

   Mortgaging by Landlord.    20

22.

   Estoppel Certificates.    20

23.

   No Merger.    21

24.

   Surrender.    21

25.

   Severability.    21

26.

   Savings Clause.    21

27.

   Binding Effect.    22

28.

   Memorandum of Lease.    22

29.

   Table of Contents; Headings.    22

30.

   Governing Law.    22

31.

   Certain Definitions.    22


32.

   Tenant’s Use of Campus Amenities    23

33.

   Exhibits.    24

34.

   Signage Rights    24

35.

   Brokers    25

36.

   Force Majeure    25

37.

   Exculpatory Clause    25

38.

   Waiver of Landlord Liens    25

39.

   Transition Period    25

40.

   Landlord’s Access to Loading Docks    27

41.

   Parking    27

42.

   Security    27

43.

   Partial Consideration    27

EXHIBITS

 

Exhibit 1.3

   Control Center

Exhibit 1.4

   Data Center

Exhibit 5

   Basic Rent

Exhibit 9

   Permitted Exceptions

Exhibit 21

   Subordination, Non-Disturbance and Attornment Agreement


AMENDED AND RESTATED LEASE

This AMENDED AND RESTATED LEASE, dated as of June 25, 2008 (“Amendment Date”), between Tarrant County College District, a political subdivision of the State of Texas (herein, as further defined in Subparagraph 31(d), called “Landlord”), and RadioShack Corporation, a Delaware corporation (herein called “Tenant”).

RECITALS

A. Concurrently herewith, Landlord has purchased from KAN AM GRUND KAPITALANLAGEGESELLSCHAFT MBH, a German limited liability company, for the benefit of the Kan Am-grundinvest Fonds, a German open-end real estate fund sponsored by Kan Am Grund Kapitalanlagegesellschaft mbH (“Kan Am”) that certain tract of real property described as Lot 1, Block 1, RadioShack Addition, an Addition to the City of Fort Worth, Texas, according to the replat thereof recorded in Cabinet A, Slide 10730, Plat Records of Tarrant County, Texas, (“Lot 1 Land”) together with all improvements located on the Lot 1 Land including a five building office campus containing approximately 875,694 square feet of floor area (the “Buildings”) and a 2,362 space structured garage (“Parking Garage”) and all other parking areas on the Lot 1 Land (collectively, the “Lot 1 Improvements”; the Lot 1 Land and the Lot 1 Improvements may be referred to collectively herein as the “Lot 1 Property”).

B. Tenant leases the Lot 1 Property pursuant to that certain Lease dated December 20, 2005 between Landlord’s predecessor in interest, Kan Am Riverfront Campus, LP (“Riverfront”), as landlord, and Tenant, as tenant, which was assigned to Landlord at the closing of the purchase and sale of the Lot 1 Property. Riverfront and Tenant executed a Memorandum of Lease with respect to the Lease, dated December 20, 2005, and recorded as Instrument No. D205379265, Real Property Records of Tarrant County, Texas (the “Memorandum”). Kan Am and Tenant amended the Memorandum pursuant to that certain Amendment to Memorandum of Lease dated June 15, 2007, recorded in Instrument No. D207219120, which Amendment provided notice that Kan Am had accepted an assignment of all of Riverfront’s right, title and interest as “Landlord” under the Lease.

C. Concurrently herewith, pursuant to that certain Purchase and Sale Agreement by and between Tenant as seller, and Landlord as buyer, dated effective as of June 25, 2008 (the “PSA”), Landlord has purchased from Tenant certain property interests and rights, including (i) certain real property described as Lots 2 and 3, Block 1, RadioShack Addition, an Addition to the City of Fort Worth, Texas, according to the replat thereof recorded in Cabinet A, Slide 10730, Plat Records of Tarrant County, Texas together with all improvements located thereon (collectively, the “Lots 2 and 3 Property”); the Lot 1 Property and Lots 2 and 3 Property may be collectively referred to herein as “Landlord’s Property”), (ii) Tenant’s mineral rights in and under Landlord’s Property, (iii) certain personal property heretofore used by Tenant in connection with its use and occupancy of the Lot 1 Property, and (iv) certain parking easements, all as more particularly described in the PSA.

D. Landlord desires to occupy and use Landlord’s Property as a campus for Tarrant County College (the “Campus”) and Tenant desires to accommodate Landlord’s planned use of Landlord’s Property by consolidating Tenant’s offices and associated business operations into a portion of the Lot 1 Property.

 

Page 1


E. The parties desire to amend and restate the Lease in certain respects as herein provided.

NOW THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth, and intending to be legally bound, the parties agree as follows:

1. Demise of Premises.

In consideration of the rents and covenants herein stipulated to be paid and performed, Landlord hereby demises and lets to Tenant, and Tenant hereby lets from Landlord, for the Term herein described, the premises (herein collectively called the “Premises”) consisting of the following Lot 1 Improvements:

1.1 The building known as the “West Fork Building” (herein so called.

1.2 The building known as the “Clear Fork Building” (herein so called), excluding the Control Center and the Data Center.

1.3 The “Control Center” (herein so called), which is located in the Clear Fork Building, as depicted on Exhibit 1.3 attached hereto.

1.4 The “Data Center” (herein so called), which is located in the Clear Fork Building, as depicted on Exhibit 1.4 attached hereto, subject to the joint use provisions in Subparagraph 39(d).

For purposes of this Lease, the Premises shall not include any mineral rights or interest in, to or underlying the land on which the Premises are located.

2. Title and Condition.

(a) The Premises are demised and let subject to (i) the rights of any parties in possession and the existing state of the title as of the commencement of the Term of this Lease, (ii) any state of facts which an accurate survey or physical inspection thereof might show, (iii) all zoning regulations, restrictions, rules and ordinances, building restrictions and other laws and regulations now in effect or hereafter adopted by any Governmental Authority (as defined in Subparagraph 31(b)) having jurisdiction, and (iv) the condition of the Premises, as of the commencement of the Term of this Lease, without representation or warranty by Landlord. Tenant represents that it is in possession of the Premises and is fully familiar with the Premises in all respects, having been in possession of the Premises immediately prior to the commencement of the Term of this Lease, having owned the Premises prior to the commencement of the Term of this Lease and having caused the construction of the Lot 1 Improvements thereon. Tenant further represents that it has examined the title to, zoning of and other restrictions applicable to, and the condition of, the Premises and has found the same to be satisfactory to it. Tenant has unconditionally accepted the Premises in all respects.

 

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(b) During the Term, Tenant shall retain all economic development incentives including, but not limited to, economic development grants and property tax abatements and reimbursements previously or at any time granted to Tenant by the City of Fort Worth, the Tax Increment Reinvestment Zone Number Six, City of Fort Worth, Texas, or any other Governmental Authority (collectively, “Incentives”); provided, however, that if during any portion of the Interim Term or the Primary Term any Taxes are assessed on all or any portion of the Premises, all such Incentives that provide any property tax abatements (‘Tax Abatements”) shall be assigned by Tenant to Landlord (if assignment is permitted by the terms thereof), without further consideration, so that Landlord will have the full benefit of the Tax Abatements for the period covered by the Interim Term and the Primary Term; provided, further, Landlord will reassign the Tax Abatements to Tenant during any Extended Term upon Tenant’s request.

3. Use of Premises.

Subject to applicable Legal Requirements (as defined in Subparagraph 31(f)), Tenant may use the Premises for general office use, including executive, managerial, administrative and sales offices, media and broadcast production, training and testing facilities, employee related services, parking, and uses ancillary thereto, and otherwise in conformity with this Lease, but for no other purposes.

4. Term.

Subject to the terms and conditions hereof, Tenant shall have and hold the Premises for an interim term (herein called the “Interim Term”) commencing on the date hereof and continuing until the last day of the calendar month in which the date hereof occurs (provided that if the Lease commences on the first day of a calendar month there shall be no Interim Term) and a primary term (herein called the “Primary Term”) commencing on the first day of the first calendar month following the date hereof (except if this Lease commences on the first day of a calendar month, the Primary Term shall commence on said first day) and continuing for three (3) years for all of the Premises. Tenant shall have the option to extend this Lease for one term of two (2) years for each of the West Fork Building, the Control Center and the Data Center, unless this Lease shall expire or be sooner terminated pursuant to the terms hereof. Tenant may exercise this two (2) year option as to one or more of the West Fork Building, the Control Center and the Data Center. If Tenant exercises the two (2) year option as to the Control Center and the Data Center, Tenant thereafter shall have the option to extend this Lease for up to three (3) consecutive terms of five (5) years each for the Control Center and the Data Center, unless this Lease shall expire or be sooner terminated pursuant to the terms hereof. Each such extension is herein individually called an “Extended Term” and, together with the Interim Term, if any, and the Primary Term, called the “Term.” In the event Tenant elects to extend the Term for an Extended Term, Tenant shall give a written notice to Landlord (an “Extension Notice”) no later than six (6) months prior to the then-scheduled expiration of the Term, which notice shall designate those portions of the Premises (as described in Paragraph 1) as to which the Extended Term will cover. Upon the giving of an Extension Notice, the Term shall be automatically extended for such Extended Term as to the portion of the Premises designated in the Extension

 

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Notice on the terms and conditions provided in this Lease, except that Tenant shall have no further option to extend the Term beyond said (i) one (1) term of two (2) years for the West Fork Building and (ii) three (3) consecutive terms of five (5) years each for the Control Center and the Data Center (assuming Tenant exercises its initial option to extend for two (2) years with respect to the Control Center and the Data Center). Upon the request of Landlord or Tenant, the parties hereto will execute and exchange an instrument in recordable form setting forth any extension of the Term in accordance with this Paragraph 4. If (i) an Event of Default shall exist as of the giving of the Extension Notice and such Event of Default remains uncured thirty (30) days after the giving of the Extension Notice or (ii) Tenant does not timely give an Extension Notice in accordance with the provisions of this Paragraph 4, then, unless Landlord and Tenant otherwise agree in writing, Tenant shall thereafter have no right to extend the Term for the subject or any succeeding Extended Term.

5. Rent.

(a) If Tenant extends the Term in accordance with Paragraph 4, beginning on the Rent Commencement Date (as defined in Paragraph 5(c) below), Tenant covenants to pay to Landlord, as rent for the Premises during each Extended Term of this Lease, the amounts set forth on Exhibit 5 attached hereto (herein called the “Basic Rent”) in monthly installments, in advance, on the first business day of each calendar month (herein called the “Basic Rent Payment Dates”) by wire or other electronic transfer of immediately available funds to the Landlord at the address set forth above or to such other person or such other place or account as Landlord from time to time may designate to Tenant in writing.

(b) Tenant covenants that all other amounts, liabilities and obligations which Tenant assumes or agrees to pay or discharge pursuant to this Lease together with every fine, penalty, interest and cost which may be added for nonpayment or late payment thereof, shall constitute additional rent hereunder (herein called “Additional Rent”). In the event of any failure by Tenant to pay or discharge any Additional Rent, Landlord shall have all rights, powers and remedies provided herein or by law in the case of nonpayment of Basic Rent. Tenant further covenants to pay to Landlord on demand interest on all Basic Rent and Additional Rent due to Landlord beginning five (5) days after the date due until such amount is paid in full at the per annum rate of interest (the “Default Rate”) equal to the annual “prime rate” identified in the “Money Rates” column in the Wall Street Journal (the “Prime Rate”) plus four percent (4%), but in no event shall the Default Rate exceed the maximum rate permitted by law. If the Wall Street Journal is no longer published or the Wall Street Journal discontinues publication of the “prime rate,” then Landlord shall designate a reasonably comparable source to identify the Prime Rate.

(c) The first (1st) monthly installment of Basic Rent shall be due and payable on or before the first business day of the thirty-seventy (37th) calendar month following the commencement of the Primary Term (“Rent Commencement Date”).

6. Non-Terminability. Except as otherwise provided herein, Basic Rent and Additional Rent shall be paid by Tenant without notice or demand, setoff, counterclaim, abatement, suspension, deduction or defense; provided, however, that overpayments of Basic Rent or Additional Rent, as reasonably substantiated in writing by Tenant, shall be subject to a right of offset against subsequent payments of Basic Rent or Additional Rent.

 

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7. Taxes; Compliance with Law; Environmental Matters.

(a) If Tenant exercises any extension option under Paragraph 4 and subject to Paragraphs 16 and 43 below, Tenant shall reimburse Landlord for all Taxes (as defined in Subparagraph 31(c)), if any, assessed against the portion of the Premises leased by Tenant during any Extended Term, but only to the extent such Taxes are proportionately allocated to that portion of the Extended Term included within the tax year for which such Taxes are assessed. Notwithstanding the foregoing provisions of this Subparagraph 7(a), Tenant shall not be required to pay any franchise, business margin, severance, corporate, estate, inheritance, succession, net income or excess profits taxes of Landlord hereunder. Taxes shall be prorated from the Rent Commencement Date through the end of the Term.

(b) Landlord will bill Tenant when the Taxes become payable and Tenant shall pay the same no later than twenty (20) Business Days (as defined in Subparagraph 31(a) below) following Tenant’s receipt of Landlord’s bill therefor (along with any supporting documentation reasonably requested by Tenant).

(c) Landlord agrees, to the extent reasonably necessary for Tenant to continue to prosecute any tax abatement proceedings or to obtain any economic development grants and/or tax incentives granted to Tenant by any Governmental Authority, to reasonably cooperate with Tenant, at no cost to Landlord, and also agrees to promptly endorse or pay over to Tenant any such abatement amounts, grants and/or incentives received by Landlord for any years prior to the Amendment Date or falling within the Term; provided, however, Landlord shall have the full and exclusive benefit of all Tax Abatements attributable to the Interim Term and/or the Primary Term or any part thereof.

(d) Tenant shall conduct its operations in and on the Premises in accordance with all Legal Requirements applicable to the Premises. Each party shall provide the other party(ies) with notice as soon as reasonably possible of any written complaints from any Governmental Authority pertaining to any alleged violation of any Legal Requirements and/or the commencement of any proceedings or investigation (of which the notifying party has knowledge) under any Legal Requirements affecting or pertaining to the Premises.

(e) Tenant shall:

(i) Not cause or knowingly permit any Hazardous Material (as defined below) to exist on or be discharged from or be released at the Premises in violation of Environmental Laws (as defined below) and to the extent caused or permitted by Tenant, Tenant shall promptly: (A) remove, remediate and dispose of any such Hazardous Material in compliance with all Environmental Laws, (B) pay any claim against Tenant, Landlord, any Indemnified Party (as defined below) or the Premises arising therefrom, (C) remove any charge or lien upon any of the Premises relating thereto, and (D) without limitation of the foregoing comply, at its sole cost and expense, during the Term in all respects with all Environmental Laws applicable to the Premises in regard to all Hazardous Materials.

 

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(ii) Notify Landlord in writing of any Hazardous Material (other than Hazardous Material stored or transported to or from the Premises in the ordinary course of Tenant’s or Tenant’s sublessee’s business and in compliance with all Environmental Laws) that exists on or is discharged from or onto or released at the Premises within twenty (20) days after Tenant first has actual knowledge of such existence or discharge.

(iii) Defend (with counsel selected by Tenant and reasonably acceptable to Landlord), indemnify and hold harmless Landlord and its officers, directors, trustees, members, partners, shareholders, beneficiaries, employees and agents (herein collectively called “Indemnified Parties” and individually an “Indemnified Party”) from and against any and all claims, expenses, liability, loss or damage (including all reasonable attorneys’ fees and expenses) resulting from the failure of Tenant to comply during the Term with Environmental Laws. Tenant shall give Landlord notice as soon as reasonably possible of (A) any proceeding or inquiry of which Tenant becomes aware during the Term by any Governmental Authority with respect to the presence of any Hazardous Material on, under, from or about the Premises, (B) all claims made by any third party against Tenant or the Premises relating to any loss or injury resulting from any Hazardous Material of which Tenant becomes aware, and (C) Tenant’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Premises that Tenant reasonably determines is likely to cause the Premises to be subject to any investigation or cleanup pursuant to any Environmental Law. Tenant shall permit Landlord to join and participate in, as a party if it so elects, any legal proceedings or action initiated with respect to the Premises in connection with any Environmental Law or Hazardous Material, and Tenant shall pay all reasonable attorneys’ fees and disbursements incurred by Landlord in connection therewith to the extent such proceedings or action relate to the breach by Tenant of its obligations under this Lease.

(iv) Not change the use of the Premises or permit the use of the Premises to be changed to any purpose other than the use on the date hereof, or change Tenant’s business operations conducted at the Premises from that conducted on the date hereof, if any such change of use or operations would (A) increase the risk of any Hazardous Material being released or discharged at or from the Premises in violation of any Environmental Laws, (B) result in Tenant or Landlord being obligated to perform any remediation of any Hazardous Material, or (C) result in the rescinding or adverse modification of any waiver or stand-still agreement as to environmental compliance matters granted by any Governmental Authority.

For purposes of this Lease, the following terms shall have the following meanings: (1) “Hazardous Material” means any hazardous or toxic material, substance or waste which is defined by those or similar terms and is regulated as such under any Environmental Laws, except for cleaning solvents, paints, construction materials, fuel supplies, and similar materials used in the ordinary course of business and in compliance with all applicable laws (including Environmental Laws) with respect thereto; and (2) “Environmental Laws” means any statute, law, ordinance, rule or regulation of any local, county, state or federal authority having

 

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jurisdiction over the Premises or any portion thereof or its use, which pertains to environmental, health or safety matters and/or the regulation of any Hazardous Materials, including but not limited to: (a) the Federal Water Pollution Control Act (33 U.S.C. §1317 et seq.) as amended; (b) the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.) as amended; (c) the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601 et seq.) as amended; (d) the Toxic Substances Control Act (15 U.S.C. §2601 et seq.), as amended; and (e) the Clean Air Act (42 U.S.C. §7401 et seq.), as amended. Tenant’s obligations and liabilities under this Subparagraph 7(e) shall survive the expiration or earlier termination of this Lease with respect to any obligation accruing prior to the end of the Term and any Hazardous Material which exists or is discharged from or onto or released at the Premises (to the extent caused or permitted by Tenant) prior to the end of the Term in violation of any Environmental Law.

8. Indemnification.

(a) Tenant agrees to pay, and to protect, defend (with counsel reasonably acceptable to Landlord), indemnify and hold harmless Landlord and its Indemnified Parties from and against any and all liabilities, losses, damages, costs, expenses (including all reasonable attorneys’ fees and expenses), causes of action, suits, claims, demands or judgments of any nature (herein collectively called “Damages”) whatsoever arising from (i) any injury to, or the death of, any person or damage to property on Landlord’s Property prior to or during the Term arising from the negligent acts or willful misconduct of Tenant, (ii) any violation by Tenant of any agreement or condition of this Lease, and (iii) any violation by Tenant of any Legal Requirement; provided, however, the foregoing indemnity shall not apply with respect to claims arising from the negligent acts or willful misconduct of Landlord or any Indemnified Party. If Landlord or any Indemnified Party shall be made a party to any litigation covered by Tenant’s indemnity, Tenant shall, at its option, either defend, at Tenant’s sole cost and expense, such party with counsel selected by Tenant reasonably acceptable to Landlord or pay all costs and reasonable attorneys’ fees and expenses incurred or paid by Landlord or such Indemnified Party in connection with such litigation. In the event Tenant shall, pursuant to this Paragraph 8, discharge any claim against Landlord or any Indemnified Party, Tenant shall be subrogated to the rights of Landlord or such Indemnified Party with respect thereto.

(b) Tenant shall indemnify Landlord with respect to any loss or damage suffered by Landlord by reason of any material inaccuracy or misstatement in any representation or warranty of Tenant set forth in this Lease.

(c) If and to the extent allowed by applicable law and without waiving any immunities, Landlord agrees to pay, and to protect, defend (with counsel reasonably acceptable to Tenant), indemnify and hold harmless Tenant and its Indemnified Parties from and against any and all Damages whatsoever arising from (i) any injury to, or the death of, any person or damage to property on Landlord’s Property during the Term arising from the negligent acts or willful misconduct of Landlord, (ii) any violation by Landlord of any agreement or condition of this Lease, and (iii) any violation by Landlord of any Legal Requirement; provided, however, the foregoing indemnity shall not apply with respect to claims arising from the negligent acts or willful misconduct of Tenant or

 

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any Indemnified Party. If Tenant or any Indemnified Party shall be made a party to any litigation covered by Landlord’s indemnity, Landlord shall, at its option, either defend, at Landlord’s sole cost and expense, such party with counsel selected by Landlord reasonably acceptable to Tenant or pay all costs and reasonable attorneys’ fees and expenses incurred or paid by Tenant or such Indemnified Party in connection with such litigation. In the event Landlord shall, pursuant to this Paragraph 8, discharge any claim against Tenant or any Indemnified Party, Landlord shall be subrogated to the rights of Tenant or such Indemnified Party with respect thereto.

(d) Tenant’s and Landlord’s obligations and liabilities under this Paragraph 8 shall survive expiration or earlier termination of this Lease.

9. Liens.

Tenant will not, directly or indirectly, create or permit to be created and to remain for more than thirty (30) days after the creation thereof, and will, subject to Paragraph 16 below, promptly discharge, at Tenant’s expense, within thirty (30) days after receipt of notice thereof, any mortgage, lien, encumbrance or charge on, pledge of, or conditional sale or other title retention agreement with respect to, the Premises or any part thereof, which was created or permitted to be created by Tenant.

10. Maintenance and Repair; Landlord Services.

(a) Tenant acknowledges that Tenant has accepted the condition, state of repair and appearance of the Premises as such exists on the Amendment Date.

(b) Except as otherwise provided herein and subject to Paragraphs 10(b), 12, 13 and 43, Landlord shall maintain, repair and replace, as Landlord deems reasonably necessary, the Premises, the Buildings and all other improvements located or installed in or on Landlord’s Property, including, without limitation, the roof and structural members thereof (including gutters and downspouts), the foundations, the interior and exterior walls of the Buildings, windows, doors, door closure devices and other exterior openings; window and door frames, molding locks and hardware; interior and exterior lighting; all Building systems including, without limitation, heating, air conditioning, underground and all above ground plumbing and plumbing fixtures, elevators, escalators and other electrical, mechanical and electromotive installations, equipment and fixtures; and the structural soundness of the Buildings. Landlord shall maintain and repair the Premises and all common areas on Landlord’s Property in the manner and to the extent reasonably deemed by Landlord to be standard for buildings of similar class, size, age and location. Any roof cuts made necessary because of Tenant’s use of the Premises or the installation of any equipment required by Tenant and approved by Landlord, shall be performed by Tenant at its sole cost and expense and under Landlord’s supervision. Landlord, however, if required to make any repairs occasioned by the act or negligence of Tenant, its agents, employees, subtenants, licensees and concessionaires shall be reimbursed by Tenant for all uninsured damage within thirty (30) days after receipt of a bill sent by Landlord. In the event that the Premises should become in need of repairs required to be made by Landlord hereunder, Tenant shall give prompt written notice thereof to Landlord; and Landlord shall not be responsible for failure to make any such repairs until a reasonable time shall have elapsed after receipt by Landlord of such written notice.

 

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(c) Landlord agrees to furnish Tenant the following services: (i) hot and cold water for use in the lavatories and break areas on the floor(s) on which the Premises is located; (ii) central heat and air conditioning in season during Tenant’s normal business hours, at such temperatures and in such amounts as are standard for buildings of similar class, size, age and location, or as required by Governmental Authority; (iii) janitorial and cleaning service in and about the Premises on Business Days; (iv) electricity to the Premises for general office use; (v) fluorescent and incandescent bulb and ballast replacement in the Premises and common areas of the Buildings; and (vi) passenger and freight elevator service and escalator service in common with Landlord and other persons.

(d) Landlord and its agents and designees may, in the company of a representative of Tenant if Tenant so requires, enter upon and inspect the Premises at reasonable times and on reasonable prior notice and show the Premises to prospective Mortgagees and/or purchasers. Tenant may designate an employee to accompany Landlord, any Mortgagee and their respective agents and designees on such examinations.

11. Alterations.

(a) Tenant may make or suffer to be made any non-structural alterations, additions or improvements in, on or to the Premises or any part thereof (“Alterations”), provided Tenant shall not make any Alterations which would (i) cost more than $100,000 (as determined with respect to each Alterations project), (ii) create a hazardous or illegal condition or violate any Legal Requirements, (iii) change the intended use of the Premises from the use permitted under Paragraph 3, or (iv) increase the risk of a violation of any Environmental Law or otherwise increase any environmental risk to the Premises, or (v) result in the modification of any mechanical system, without, in each such case, submitting a written request for and obtaining the prior written consent of Landlord, which consent may be withheld in Landlord reasonable discretion (Alterations described in any one or more of the foregoing clauses (i) – (v) being referred to as “Restricted Alterations.”) Redecoration of the interior of the Premises, such as painting, wallpapering, replacement of light fixtures or floor covering and installation or deinstallation of artworks shall not constitute Alterations for purposes of this Lease. Moreover, Tenant shall not be required to obtain the prior written consent of Landlord as to non-structural alterations consisting solely of the reconfiguration of offices, workstations, support spaces and common areas in the Premises which are not Restricted Alterations.

(b) All Alterations shall be constructed in a good and workmanlike manner in compliance with all Legal Requirements.

(c) Except as Landlord and Tenant otherwise agree in writing, all Alterations other than Severable Additions (as defined below) shall at once become a part of the realty and belong to Landlord. Severable Additions, moveable furniture, furnishings, decorations, art work, trade fixtures and other personal property of Tenant and its sublessees may be removed from the Premises upon or at any time prior to the expiration or earlier termination of this Lease, provided

 

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that Tenant shall repair any damage to the Premises resulting from such removal. For purposes of this Lease, the term “Severable Additions” shall mean all additions to the Premises prior to or during the Term which (i) are readily removed without causing more than de minimus damage to the Premises, (ii) will not materially reduce the value, useful life or utility of the Premises if removed, and (iii) are not required for lawful occupancy of the Premises. The obligations of Tenant under this Paragraph 11 shall survive expiration or earlier termination of this Lease.

12. Insurance.

(a) Tenant shall maintain, or cause to be maintained, at its sole expense, the following insurance on the Premises (herein called the “Tenant’s Required Insurance”):

(i) Commercial general liability insurance naming Landlord and any Mortgagee as additional insureds against any and all claims as are customarily covered under a standard policy form routinely accepted, for bodily injury, death and property damage occurring in or about the Premises. Such insurance shall have a combined single limit of not less than $2,000,000 per occurrence with a minimum $5,000,000 aggregate limit and excess umbrella liability insurance in the amount of at least $10,000,000. If Tenant has other locations that it owns or leases, the liability insurance provided by this clause (ii) policy may be a so-called blanket policy. Such liability insurance shall be primary and not contributing to any insurance available to Landlord, and Landlord’s insurance, if any, shall be in excess thereto.

(ii) During any period of construction by Tenant on the Premises, builder’s risk insurance insuring perils covered by the loss-special form (all risk, extended coverage) shall be purchased for the value of the alteration and/or additions made to the Premises when the work is not insured under the Tenant’s property insurance policy. Each builder’s risk policy shall name Landlord and any first Mortgagee as additional insureds and loss payees as their interests may appear.

(b) The policies required to be maintained by Tenant shall be with companies having (i) an insurance company claims paying rating equal to or greater than A- by Standard & Poor’s Corporation or A2 by Moody’s Investment Service, or (ii) a general policy rating of A or better and a financial class of X or better by A.M. Best Company, Inc. Insurers shall be licensed to do business in the State of Texas and domiciled in the USA. Certificates of insurance as to liability insurance, using Accord Form 25-S (or the equivalent thereof)), together with reasonable evidence of payment of the premiums therefor, shall be delivered to Landlord on or before the Amendment Date and thereafter at least ten (10) days prior to the expiration date of each required policy. Tenant shall have the right to provide insurance coverage which it is obligated to carry pursuant to the terms hereof in a blanket policy, provided such blanket policy expressly affords coverage to the Premises and to Landlord and any Mortgagee as required by this Lease. Each policy of insurance shall provide notification to Landlord and any first Mortgagee at least thirty (30) days prior to any non-renewal, cancellation or modification to reduce the insurance coverage.

(c) In the event Tenant does not purchase the insurance required by this Lease or keep the same in full force and effect, Landlord may, but shall not be obligated to, purchase

 

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the necessary insurance and pay the premium therefor. Tenant shall repay to Landlord, as Additional Rent, the amount so paid promptly upon demand together with interest at the Default Rate on such payment from the date expended until the date reimbursed. In addition, Landlord may recover from Tenant and Tenant agrees to pay, as Additional Rent, any and all expenses (including reasonable attorneys’ fees) and damages which Landlord may sustain by reason of the failure of Tenant to obtain and maintain such insurance.

(d) At Tenant’s option, Tenant may elect to increase the deductibles from the current amounts thereof on all or any portion of Tenant’s Required Insurance so long as Tenant provides information reasonably satisfactory to Landlord that Tenant can adequately fund any increase in deductible amounts. Sums due from Tenant in lieu of insurance proceeds because of Tenant’s deductibles shall be treated as insurance proceeds for all purposes under this Lease.

(e) Landlord shall not be limited in the proof of any damages which Landlord may claim against Tenant arising out of or by reason of Tenant’s failure to provide and keep in force any of Tenant’s Required Insurance to the amount of the insurance premium or premiums not paid or incurred by Tenant and which would have been payable under such insurance; but Landlord shall also be entitled to recover as damages for such breach, the uninsured amount of any loss to the extent of any deficiency in Tenant’s Required Insurance, and damages, costs and expenses of suit suffered or incurred by reason of or damage to, or destruction of the Premises, occurring during any period when the Tenant may have failed or neglected to obtain Tenant’s Required Insurance.

(f) Nothing in this Paragraph 12 shall prohibit Tenant from maintaining at its expense insurance on or with respect to the Premises, naming Tenant as insured and/or loss payee for any amount greater than the insurance required to be maintained under this Paragraph 12, unless such insurance would conflict with or otherwise limit the availability of or coverage afforded by insurance required to be maintained under this Paragraph 12.

(g) Landlord shall, during the entire term hereof, carry an all-risk insurance policy, including flood and earthquake, change in building code requirements, demolition, increased costs of construction, a waiver of co-insurance with an insurance policy licensed to do business in Texas and domiciled in USA and subject to all other relevant requirements for an insurer set forth in Paragraph 12(b) above, on an occurrence basis, insuring the Lot 1 Improvements including the Premises and all appurtenances thereto, without deduction or depreciation (except Tenant’s merchandise, trade fixtures, furnishings, operating equipment and personal property, such as signs, wall coverings, carpeting and drapes) for an amount not less than one hundred percent (100%) of the actual replacement costs exclusive of the cost of excavations, foundations and footings (“Landlord’s Required Insurance”). Tenant shall not be liable to Landlord for any loss or damage suffered by Landlord which is not covered by such insurance, including, without limitation, the amount of any such deductibles. Landlord shall provide Tenant with evidence of such insurance coverage on Tenant’s request for the same. Landlord shall have the right to provide Landlord’s Required Insurance in a blanket policy or master policy.

(h) Landlord and Tenant each hereby waives any and all rights of recovery

 

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against the other, its officers, members, agents and employees, occurring on or arising out of the use and occupation of the Premises or Landlord’s Property to the extent such loss or damage is covered by proceeds received from insurance required under this Lease to be carried by the other party. This waiver of subrogation provision shall be limited to loss or damage to the property of Landlord and Tenant. Landlord and Tenant shall each indemnify the other against any loss or expense, including reasonable attorneys’ fees, resulting from the failure to obtain such waiver. This mutual waiver shall be in addition to, and not in limitation or derogation of, any other waiver or release contained in this Lease with respect to any loss of, or damage to, property of the parties hereto. Inasmuch as the above mutual waivers will preclude the assignment of any aforesaid claim by way of subrogation to an insurance company, Landlord and Tenant agree immediately to give to each insurance company providing a policy described in Paragraph 12 of this Lease, written notice of the terms of said mutual waivers, and to have said insurance policies properly endorsed, if necessary, to prevent the invalidation of said insurance coverages by reason of said waivers.

13. Casualty.

(a) If all or any part of the Premises are damaged by fire or other casualty Tenant shall immediately notify Landlord in writing. Unless the Lease is terminated as hereinafter provided, if the Premises shall be damaged or destroyed in whole or in any part by fire, or other casualty, Landlord shall at its own cost and expense promptly repair and restore the Premises, including any leasehold additions or improvements (but excepting Tenant’s trade fixtures, equipment or other personal property and any improvements made by Tenant hereunder after the Amendment Date) to substantially the same condition as existed immediately prior to such damage or destruction; provided, however that Landlord shall only be required to reconstruct building standard leasehold improvements existing in the Premises as of the date of damage, and Tenant shall be required to pay the cost for restoring any other leasehold improvements. If the insurance proceeds received by Landlord are insufficient to pay the full cost of repair or restoration, Landlord shall pay the deficiency.

(b) If the damage or destruction shall occur (i) during the last year of the Primary Term or at any time during any Extended Term, or (ii) at any time during the Primary Term of this Lease and the cost of repairs or restoration shall exceed twenty-five percent (25%) of the replacement value of the Premises in their condition just prior to the occurrence of the damage or destruction, Tenant may, no later than sixty (60) days following the damage, give Landlord notice that it elects to terminate this Lease.

(c) In the event of a partial destruction of the Premises and Landlord shall fail to restore and rebuild same completely within one hundred twenty (120) days of the casualty, or in the event of a total destruction of the Premises and Landlord shall fail to restore and rebuild same completely within one hundred eighty (180) days thereafter, Tenant may give Landlord notice at any time after the one hundred twenty (120) or one hundred eighty (180) day period, that it elects to terminate this Lease.

(d) Landlord shall have the right to terminate this Lease if: (i) the Buildings shall be damaged so that, in Landlord’s reasonable judgment, substantial alteration or

 

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reconstruction of the Buildings shall be required (whether or not the Premises have been damaged); (ii) Landlord is not permitted by Governmental Requirements to rebuild the Buildings in substantially the same form as existed before the fire or casualty; (iii) the Premises have been materially damaged and there is less than one (1) year of the Term remaining on the date of the casualty and Tenant does not elect to extend the Term as provided in Paragraph 4 of this Lease; (iv) in Landlord’s reasonable opinion, repairs necessary for Tenant’s occupancy of the Premises cannot be completed within one year after the date of the casualty; or (v) in Landlord’s reasonable opinion, the cost of the repairs or restoration shall exceed fifty percent (50%) of the replacement value of the Premises in their condition just prior to the occurrence of the damage or destruction. Landlord may exercise its right to terminate this Lease by notifying Tenant in writing within sixty (60) days after the date of the casualty.

(e) If such notice shall be given pursuant to subparagraphs (b), (c) or (d) above, (i) this Lease shall terminate on the date given in such notice with the same effect as if it were the date herein specified for the expiration of the Lease Term; (ii) Tenant shall surrender possession of the Premises within a reasonable time thereafter; and (iii) any rent paid for any portion of the Lease term beyond the date of damage or destruction shall be repaid to Tenant.

(f) The rent and all other charges shall equitably abate from the date of the damage until the date on which the Landlord shall have repaired or restored the Premises or the date on which Tenant reoccupies the Premises, whichever first occurs. At Tenant’s option, the Primary Term on the West Fork Building, the Control Center and the Data Center may be proportionately extended as to such affected premises for the period of time such affected premises could not be used by Tenant in the same manner as before such damage.

14. Condemnation.

(a) If the whole of the Premises shall be taken by eminent domain or sold under threat of eminent domain, then this Lease shall terminate as of the date title is taken or transferred.

(b) If ten percent (10%) or more of the Premises or ten percent (10%) of the Buildings that compose the Campus shall be taken, then Tenant shall have the right to terminate this Lease within ninety (90) days of the taking by giving Landlord thirty (30) days written notice of such termination. Rent shall be adjusted to the date of the termination. If this Lease is not terminated as provided in this Paragraph 14, then subject to the provisions set forth herein, Landlord shall promptly restore, at its sole cost and expense, the remaining portion of the Premises and the remaining portion of the Campus to a condition substantially equal to the condition prior to such taking to the extent reasonably practicable. Tenant shall be responsible for the repair, restoration and replacement of Tenant’s movable partitions, furniture, trade fixtures, equipment and other personal property.

(c) If ten percent (10%) or more of the parking areas of the Campus (including the Parking Garage) shall be taken, then Tenant shall have the right to terminate this Lease within ninety (90) days of the taking by giving Landlord thirty (30) days written notice. Rent shall be adjusted to the date of termination.

 

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(d) If less than ten percent (10%) of the Premises or the Campus, or less than ten percent (10%) of the parking areas of the Campus (including the Parking Garage), shall be taken, then Landlord, subject to the provisions set forth herein, shall promptly and at its sole cost and expense, restore the remaining Premises, the remaining Campus and/or the remaining parking areas to a condition substantially equal to that existing immediately prior to the taking to the extent reasonably practicable. Rent and all other changes shall be reapportioned based on the remaining space as provided in Subparagraph 14(b).

(e) If fifty percent (50%) or more of the Premises shall be taken, or if fifty percent (50%) of the Buildings that compose the Campus shall be taken, or if fifty percent (50%) or more of the parking areas of the Campus (including the Parking Garage) shall be taken, then Landlord shall have the right to terminate this Lease within thirty (30) days of the taking by giving Tenant thirty (30) days written notice. Rent shall be adjusted to the date of termination.

(f) The award for such taking (or the proceeds of sale in lieu thereof) of the Premises shall belong to Landlord except that Tenant shall be entitled to claim from the condemning authority all damages for loss of value to its leasehold estate, its business, damage to or loss of its fixtures and equipment, furniture and personal property, and the costs of removal, moving and reinstallation of any of the same, Tenant’s relocation costs, as well as the value of any leasehold improvements made by Tenant or Tenant’s alterations to the Premises after the Amendment Date.

15. Assignment and Subletting.

(a) Except as permitted by Subparagraph 15(b) below, Tenant shall not assign, transfer or encumber any interest in this Lease or sublease or allow any third party to use any portion of the Premises without the prior written consent of Landlord, which consent may be withheld in Landlord’s sole discretion.

(b) Notwithstanding anything to the contrary contained in this Lease, Tenant shall have the right to assign and/or sublease, and Landlord’s consent shall not be required to any such assignment and/or subletting, to any corporation or other entity which succeeds to all or substantially all of the assets and business of Tenant, whether by merger, consolidation, purchase of assets or other similar corporate restructuring. In such event, the successor entity shall automatically become the Tenant under this Lease and the prior Tenant hereunder shall have no further obligations, duties or liabilities under this Lease.

16. Permitted Contests.

Tenant shall not be required to (i) pay any Imposition; (ii) comply with any Legal Requirements; or (iii) discharge or remove any lien, encumbrance or charge caused or permitted by Tenant, so long as Tenant shall contest, in good faith and at its expense, the existence, the amount or the validity thereof, the amount of the damages caused thereby, or the extent of its liability therefor, by appropriate proceedings provided that (A) during the pendency of the contest there is prevented (1) the collection of, or other realization upon, the tax, assessment, levy, fee, rent or charge or lien, encumbrance or charge so contested (or in the alternative, Tenant pays the full amount in dispute under protest); (2) the sale, forfeiture or loss of the Premises, or any part

 

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thereof, or the Basic Rent or any Additional Rent, or any portion thereof; and (3) any interference with the payment of the Basic Rent or any Additional Rent, or any portion thereof; and (B) such contest shall not subject Landlord to the risk of any criminal liability. While any such proceedings are pending, so long as all of the foregoing conditions continue to be met, Landlord shall not pay, remove or cause to be discharged the tax, assessment, levy, fee, rent or charge or lien, encumbrance or charge thereby being contested. Tenant further agrees that each such contest shall be prosecuted to a final conclusion as soon as reasonably possible. Tenant shall pay, indemnify, defend (with counsel selected by Tenant and reasonably acceptable to Landlord) and hold harmless Landlord and its Indemnified Parties against any and all losses, judgments, decrees and costs (including all reasonable attorneys’ fees and expenses) in connection with any such contest and shall, promptly after the final settlement, compromise or determination of such contest, fully pay and discharge the amounts which shall be levied, assessed, charged or imposed or be determined to be payable therein or in connection therewith, together will all penalties, fines, interests, costs and expenses thereof or in connection therewith, and perform all acts, the performance of which shall be ordered or decreed as a result thereof. The obligations of Tenant under this Paragraph 16 shall survive expiration or earlier termination of this Lease.

17. Default Provisions.

(a) Any of the following occurrences or acts shall constitute an event of default (herein called an “Event of Default”) under this Lease:

(i) If Tenant, at any time during the continuance of this Lease (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, at law, in equity, or before any administrative tribunal, which have or might have the effect of preventing Tenant from complying with the terms of this Lease), shall (A) fail to make any payment when due of Basic Rent and such failure continues for ten (10) Business Days following written notice from Landlord to Tenant specifying such failure, (B) fail to make any payment when due of Additional Rent and such failure continues for twenty (20) Business Days following written notice from Landlord to Tenant specifying such failure, (C) fail to maintain any insurance required under this Lease and such failure continues for ten (10) Business Days following written notice from Landlord to Tenant specifying such failure, or (D) fail to observe or perform any other material provision hereof for thirty (30) Business Days following written notice from Landlord to Tenant specifying such failure, provided, that in the case of any default referred to in this Lease which is reasonably susceptible of cure but cannot with diligence be cured within such thirty (30) Business Day period, then, upon receipt by Landlord of a certificate of Tenant signed by an officer of Tenant stating the reason such default cannot be cured within thirty (30) Business Days, describing the efforts being undertaken by Tenant to cure such default and reasonably estimating the cure period, and provided that Tenant at all times proceeds with good faith due diligence to cure such default, the time within which such failure may be cured shall be extended for such period as may be necessary to complete the curing of the same with continuous, good faith due diligence (provided further that Tenant shall provide Landlord with an update of such original certificate, signed by an officer of Tenant, no less frequently than monthly, which update

 

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shall include a reasonably detailed description of what Tenant is continuing to do and what Tenant has then accomplished, and a reasonable estimate of how long it will take to complete the cure); or

(ii) If Tenant shall file a petition commencing a voluntary case under the Federal Bankruptcy Code or any other federal or state law (as now or hereafter in effect) relating to bankruptcy, insolvency, reorganization, winding-up or adjustment of debts (hereinafter singly a “Bankruptcy Law” and collectively “Bankruptcy Laws”) or if Tenant shall (A) apply for or consent to the appointment of, or the taking of possession by, any receiver, custodian, trustee, United States Trustee or liquidator (or other similar official) of the Premises or any part thereof or of any substantial portion of Tenant’s property or (B) make a general assignment for the benefit of its creditors; or

(iii) If an order for relief against Tenant shall be entered in any involuntary case under the Federal Bankruptcy Code or any similar order against Tenant shall be entered pursuant to any other Bankruptcy Law, or if a petition commencing an involuntary case against Tenant or proposing the reorganization of Tenant under any Bankruptcy Law shall be filed and not be discharged or denied within ninety (90) days after such filing, or if an order, judgment or decree by any court of competent jurisdiction approving or ordering (A) the liquidation, reorganization, dissolution, winding-up or adjustment of debts of Tenant, or (B) the appointment of a receiver, custodian, trustee, United States Trustee or liquidator (or any similar official) of the Premises or any part thereof or of Tenant or of any substantial portion of Tenant’s property shall be entered and continue unstayed and in effect for ninety (90) days.

(b) If an Event of Default shall have occurred and be continuing, Landlord shall have, in its sole discretion, the following rights:

(i) To terminate the Term of this Lease by written notice to Tenant. Thereupon, the Term of this Lease and the estate hereby granted shall terminate on the date on which Landlord designates in such notice as completely and with the same effect as if such date were the date fixed herein for the expiration of the Term of this Lease, and all rights of Tenant hereunder shall terminate, but Tenant shall remain liable as provided herein. In the event of Landlord’s termination of this Lease, Tenant shall pay to Landlord all Basic Rent and Additional Rent to and including the date of termination.

(ii) If Landlord has terminated this Lease pursuant to clause (i) above, to (A) re-enter and repossess the Premises or any part thereof by summary proceedings, ejections or otherwise and (B) remove all persons and property therefrom.

(iii) To use reasonable efforts to relet the Premises or any part thereof for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its absolute discretion, may determine; provided Landlord shall not be required to make any effort to relet the Premises except as required by applicable law. Landlord may

 

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collect and receive any rents payable by reason of such reletting. If the Premises are relet by Landlord for the account of Tenant, Tenant shall be liable to Landlord for, and shall pay to Landlord, as damages (A) all Basic Rent and all Additional Rent as and when such amounts would be payable under this Lease by Tenant in the absence of any such reletting, together with all reasonable expenses of Landlord in connection with such reletting efforts, if any (including, without limitation, all reasonable repossession costs, brokerage commissions, reasonable attorneys’ fees and expenses, and reasonable repair costs), less (B) the net proceeds, if any, of any reletting. Notwithstanding the foregoing, in the event any such reletting is for a term longer than the balance of the Term, Tenant shall be responsible for only a proportionate part of the expenses based on the balance of the Term as compared to the fixed minimum term of the reletting. Tenant shall pay such damages on the dates on which Rent would be payable under this Lease in the absence of such reletting, and Landlord shall be entitled to recover the same from Tenant on each such date.

(iv) without thereby waiving such Event of Default, Landlord may, but shall not be obligated to, take all action, including, without limitation, entry upon the Premises, to perform the obligation of Tenant hereunder immediately and without notice in the case of any emergency as may be reasonably determined by Landlord and upon five (5) business days’ notice to Tenant in other cases. All reasonable expenses incurred by Landlord in connection therewith, including, without limitation, reasonable attorneys’ fees to the extent actually incurred and expenses (including, without limitation, those incurred in connection with any appellate proceedings), shall constitute Additional Rent under this Lease and shall be paid by Tenant to Landlord upon demand.

(c) No termination of this Lease pursuant to Subparagraph 17(b)(i), by operation of law or otherwise, and no repossession of the Premises or any part thereof pursuant to Subparagraph 17(b)(ii) or otherwise, and no reletting of the Premises or any part thereof pursuant to Subparagraph 17(b)(iii), and no payment of any amounts by Tenant under Subparagraph 17(b) or the exercise by Landlord of any of its other rights under Subparagraph 17(b) shall relieve Tenant of any liabilities under this Lease which by express provision of this Lease survive such expiration, termination, repossession, reletting or purchase. Nothing in this Paragraph 17 shall be deemed to waive any duty of Landlord under applicable law to mitigate damages as a result of an Event of Default.

(d) In the event of litigation between the parties with respect to the enforcement of Landlord’s remedies under this Lease, the losing party shall reimburse the prevailing party for all reasonable attorneys’ fees and expenses incurred by the prevailing party with respect thereto.

18. Additional Rights of Landlord.

(a) The rights and remedies set forth in Subparagraph 17(b) may be exercised in any order and in any combination whatsoever. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given

 

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hereunder or now or hereafter existing at law or in equity. The failure of Landlord to insist at any time upon the strict performance of any covenant or agreement or to exercise any option, right, power or remedy contained in this Lease shall not be construed as a waiver or a relinquishment thereof for the future. A receipt by Landlord of any Basic Rent, any Additional Rent or any other sum payable hereunder with knowledge of the breach of any covenant or agreement contained in this Lease shall not be deemed a waiver of such breach, and no waiver by Landlord of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. In addition to other remedies provided in this Lease, Landlord shall be entitled, to the extent permitted by applicable law, to injunctive relief in case of the violation, or attempted or threatened violation, of any of the covenants, agreements, conditions or provision of this Lease, or to a decree or judgment compelling performance of any of the covenants, agreements, conditions or provisions of this Lease, or to any other remedy allowed to Landlord at law or in equity.

(b) Tenant shall promptly (upon receipt of any invoices therefor) reimburse Landlord for any reasonable costs and expenses incurred by Landlord in connection with any consents, approvals, waivers or amendments requested by Tenant of Landlord or otherwise required under or in connection with this Lease.

19. Notices, Demands and Other Instruments.

Any notice, demand, request, consent, approval, or other instrument (“Notice”) which may be permitted, required or desired to be given in connection herewith shall be given in writing and directed to Tenant or Landlord (as applicable) as follows:

 

If to Tenant:   

RadioShack Corporation

300 RadioShack Circle, MS CF6-118

Fort Worth, Texas 76102

Attn.: Vice President – Real Estate

Facsimile: (817) 415-2392

With a copy to:   

RadioShack Corporation

300 RadioShack Circle, MS CF4-101

Fort Worth, Texas 76102

Attn.: Bob Donohoo, Vice President and General Counsel

Facsimile: (817) 415-6593

And with a copy to:   

E. Brad Mahon

Murphy Mahon Keffler & Farrier, L.L.P.

500 Main Street, Suite 1200

Fort Worth, Texas 76102

Facsimile: (817) 877-3668

 

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If to Landlord:   

Tarrant County College District

1500 Houston Street

Fort Worth, Texas 76102

Attn: Chancellor

Facsimile (817) 515-5450

And with a copy to:   

Burch Waldron

Law, Snakard & Gambill, P.C.

1600 W. 7th Street, Suite 500

Fort Worth, Texas 76102-2598

Facsimile (817) 332-7473

Notices shall be sent by (i) U. S. registered or certified mail, postage prepaid, return receipt requested, (ii) reputable overnight delivery service providing proof of receipt, or (iii) hand delivery, to the offices set forth above, in which case they shall be deemed delivered on the date of delivery to said offices or refusal to accept delivery, or (iv) by facsimile transmission during normal business hours followed by a confirmatory letter sent in another manner permitted hereunder. Any notice actually received or deemed received pursuant to the foregoing provisions on a non-Business Day or after 5:00 p.m. (in the recipient’s time zone) on a Business Day shall be deemed received on the next Business Day. Either party may by written notice to the other party given as provided hereunder change its address for service of Notice to any other recognized business address in the continental United States. Any address so designated shall include a street address for courier delivery.

20. Transfer by Landlord.

Landlord shall be free to transfer its fee interest in the Premises or any part thereof or interest therein. Landlord shall be released from the responsibility for the performance of any liabilities and obligations which shall arise under the terms, covenants and conditions of this Lease subsequent to the date of any such permitted transfer. In no event shall a transfer or sale of the Premises be binding upon Tenant until Tenant has received a copy of the original instrument assigning Landlord’s interest in this Lease. Such instrument shall evidence the fact that such assignee or transferee has assumed full and complete liability for all future obligations and responsibilities of Landlord, which will arise under, out of and/or in connection with this Lease from and after the effective date of such assignment or transfer; provided, however, that such assignee shall not be liable for the obligations and responsibilities of Landlord arising under, out of and/or in connection with this Lease prior to the effective date of such assignment or transfer. In the event that, in compliance with this Paragraph 20, Landlord transfers its interest in this Lease, Tenant agrees to attorn to such assignee or transferee with respect to Tenant’s obligations under this Lease provided such assignee or transferee recognizes Tenant’s rights under this Lease. Tenant shall, upon Landlord’s or such transferee’s written request, enter into an attornment agreement providing for such attornment.

 

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21. Mortgaging by Landlord.

Landlord shall be free to grant one or more mortgages, deeds of trust or like security interest in the Premises and this Lease (individually a “Mortgage”) to one or more mortgagees, deed of trust trustees or other grantees (individually, together with each holder of any note secured thereby, a “Mortgagee”) on the condition that either (i) this Lease shall be superior to the Mortgage, or (ii) if this Lease is to be subordinate to the Mortgage, Tenant receives from the Mortgagee a subordination, nondisturbance and attornment agreement (an “SNDA”) substantially in the form attached hereto as Exhibit 21. Tenant agrees, within fifteen (15) Business Days after request by Landlord, to execute and deliver an SNDA substantially in the form attached hereto as Exhibit 21 and to cooperate with Landlord and any Mortgagee and consider in good faith any changes to the form of SNDA attached hereto as Exhibit 21 reasonably requested by such Mortgagee. Tenant agrees to attorn, at the request of any Mortgagee, to such Mortgagee or other transferee upon a transfer of title by reason of foreclosure of such Mortgage or deed in lieu of foreclosure thereof. No such transfer shall be effective as to Tenant until Tenant receives written notice thereof and a certified copy of the recorded deed or other instrument evidencing such transfer. In connection with any proposed transfer, pledge or mortgage of Landlord’s fee interest in the Premises or any portion of the ownership interests in Landlord, Tenant shall, within fifteen (15) Business Days after receipt of Landlord’s written request therefor, provide Landlord and the proposed transferee and/or Mortgagee with confirmation in writing that subject to the applicable provisions of Subparagraph 21(a), Tenant shall recognize such transferee and Mortgagee as such in the event of the consummation of the transaction described in such notice.

22. Estoppel Certificates.

(a) Tenant shall at any time and from time to time, within twenty (20) days following receipt by Tenant of a written request therefor from Landlord or any Mortgagee, execute, acknowledge and deliver to such requesting party a certificate reciting factually correct information pertaining to this Lease as reasonably requested by Landlord, including, without limitation, whether to Tenant’s actual knowledge Landlord is then in default hereunder, the last dates and amounts of Rent paid hereunder and the dates of any modifications to this Lease and confirming or addressing any other facts, circumstances or matters relating to this Lease that may be reasonably requested so long as such other facts, circumstances or matters do not include a waiver of any rights of Tenant. Any such certificate may be relied upon by any Mortgagee, prospective purchaser or prospective Mortgagee of the Premises or any interest in Landlord.

(b) Landlord shall at any time and from time to time, within twenty (20) days following receipt by Landlord of a written request therefor from Tenant, execute, acknowledge and deliver to Tenant (or as Tenant may reasonably direct), a certificate reciting factually correct information pertaining to this Lease as reasonably requested by Tenant, including, without limitation, whether to Landlord’s actual knowledge Tenant is then in default hereunder, the last dates and amounts of Rent paid hereunder and the dates of any modifications to this Lease and confirming or addressing any other facts, circumstances or matters relating to this Lease that may be reasonably requested so long as such other facts, circumstances or matters do not include a waiver of any rights of Landlord. Such certificates may be relied upon by the parties to whom Tenant requests that they be addressed, including Tenant’s lenders or a potential purchaser of Tenant.

 

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23. No Merger.

There shall be no merger of this Lease or the leasehold estate hereby created with the fee estate in the Premises or any part thereof by reason of the same person acquiring or holding, directly or indirectly, this Lease or the leasehold estate hereby created or any interest in this Lease or in such leasehold estate as well as the fee estate in the Premises or any portion thereof.

24. Surrender.

Upon the expiration of the Term or earlier termination of this Lease, Tenant shall peaceably surrender the Premises to Landlord in the condition in which the Premises is to be kept under the other provisions of this Lease. There shall be no renewal of this Lease by operation of law. Tenant shall, at Tenant’s expense, remove from the Premises prior to such termination all property not owned by Landlord, and immediately repair any damage caused by such removal. Any such Property not so removed shall, at Landlord’s election, become the property of Landlord. Landlord may thereafter cause such property to be removed and disposed of and the cost of repairing any damage caused by such removal shall be borne by Tenant. Notwithstanding anything to the contrary contained herein, upon termination of this Lease, all building fixtures and mechanical systems, including, but not limited to, the plumbing, electrical, heating, ventilation and air conditioning systems, shall remain on the Premises and shall become the property of Landlord.

25. Severability.

Each and every covenant and agreement contained in this Lease is separate and independent, and the breach of any thereof by Landlord shall not discharge or relieve Tenant from any obligation hereunder. If any term or provision of this Lease or the application thereof to any person or circumstances shall at any time be invalid and unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances or at any time other than those to which it is invalid or unenforceable, shall not be affected thereby, and each such remaining term and provision of this Lease shall be valid and shall be enforced to the extent permitted by law.

26. Savings Clause.

No provision contained in this Lease which purports to obligate Tenant to pay any amount of interest or any fees, costs or expenses which are in excess of the maximum permitted by applicable law shall be effective to the extent that it calls for payment of any interest or other sums in excess of such maximum.

 

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27. Binding Effect.

Subject to Paragraphs 15, 20 and 21, all of the covenants, conditions and obligations contained in this Lease shall be binding upon and inure to the benefit of the respective successors and assigns of Landlord and Tenant. No amendment of this Lease shall be effective unless expressed in writing executed by Landlord and Tenant. Time is of the essence of this Lease.

28. Memorandum of Lease.

Simultaneously with the execution and delivery hereof, Landlord and Tenant shall enter into and record an amendment to the Memorandum of Lease in form and substance reasonably acceptable to Landlord and Tenant. Upon the expiration or earlier termination of the Term, Tenant, upon request by Landlord, shall promptly execute and deliver any documentation reasonably requested by Landlord to cancel, terminate and release such Memorandum of Lease from the Real Property Records of Tarrant County, Texas and any other public records in which it has been recorded.

29. Table of Contents; Headings.

The table of contents and headings used in this Lease are for convenient reference only and shall not to any extent have the effect of modifying, amending or changing the provisions of this Lease.

30. Governing Law.

This Lease shall be governed by and interpreted under the laws of the State of Texas.

31. Certain Definitions.

(a) The term “Business Day” shall mean a day other than Saturday, Sunday or any day on which regular U.S. mail is not delivered or banks are generally closed in the State of Texas.

(b) The term “Governmental Authority” shall mean any federal, state, county, municipal or any other governmental or regulatory authority, agency, board, body, commission, instrumentality, court or quasi-governmental authority (or private entity in lieu thereof).

(c) The term “Imposition” means:

(i) all real estate taxes which accrue during the Term, which are imposed or levied upon or assessed against the portion of the Premises leased by Tenant during the tax year for which such taxes are assessed (all such taxes being referred to collectively as “Taxes”);

 

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(ii) all charges for water, gas, telephone, electricity, power, trash removal, and other utilities and communications services used by Tenant on or about the Premises; and

(iii) all charges for Landlord’s Required Insurance.

(d) The term “Landlord” means the owner of the rights of the Landlord under this Lease and upon any assignment or transfer of such rights, except an assignment or transfer made as security for an obligation, any heirs, successors and assigns. The assignor or transferor shall be relieved of all future duties and obligations under this Lease provided the assignee or the transferee shall expressly agree in writing to be bound by and to assume all the covenants and obligations of Landlord hereunder arising from and after such assignment or transfer.

(e) The term “Lease” means this Amended and Restated Lease, as amended and modified from time to time, together with any memorandum or short form of lease entered into for the purpose of recording.

(f) The term ”Legal Requirements” means collectively (i) all laws, rules, regulations, ordinances or orders, in effect from time to time, of all federal, state, local, county and other Governmental Authorities having authority over the Premises, any portion thereof, the use thereof, Tenant or Landlord, including without limitation, all Environmental Laws and the Americans With Disabilities Act of 1990, 42 U.S.C. Section 12101 et seq. and (ii) any covenants, restrictions or agreements to which the Premises are subject.

32. Tenant’s Use of Campus Amenities.

Landlord hereby issues and grants to Tenant and Tenant’s employees a non-exclusive license (the “Campus Amenities License”) in common with Landlord and Landlord’s employees, agents, contractors, students and invitees and the general public, to use during the Term, that portion of the common areas of the Campus and the Campus facilities and amenities that are intended for use by students of the Campus or the general public and which facilities and amenities are open to the public, including, without limitation, any food service facilities, recreational and exercise facilities, and hiking and biking trails (but specifically excluding any classrooms, offices, laboratories, security facilities, police facilities, communications facilities, mechanical spaces and storage rooms) on the same terms, conditions and basis (including the payment of fees and other costs) and subject to the same rules and regulations as such facilities and amenities may be used by the students of the Campus or the general public. The Campus Amenities License is personal to Tenant, may not be assigned by Tenant, does not and will not run with the land, is not and will not be appurtenant to any property (whether real or personal) and is applicable only during the Term. Landlord, Landlord’s employees, agents, contractors, students and invitees and, if and to the extent permitted by Landlord, the general public shall have the right to enter upon, remain in and use the common areas of the Campus and all of the Campus facilities and amenities intended for use by students of the Campus or the general public at any and all times during the Term, and Landlord reserves the right to grant rights to others to have access to and use of such common areas, facilities and amenities at any and all times during the Term. Tenant agrees to pay, and to protect, defend (with counsel reasonably acceptable

 

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to Landlord), indemnify and hold harmless Landlord and the other Indemnified Parties from and against any and all Damages whatsoever arising from any injury to, or the death of, any person or damage to property on Landlord’s Property prior to or during the Term due to Tenant’s use of such common areas, facilities and amenities; provided, however, the foregoing indemnity shall not apply as to an Indemnified Party with respect to claims arising from the negligent acts or willful misconduct of such Indemnified Party.

33. Exhibits.

The Exhibits attached hereto are hereby incorporated by reference into this Lease and made a part hereof.

34. Signage Rights.

(a) Landlord, at Landlord’s sole cost and expense, will install two (2) corporate monument signs (the “Monument Signs”) on the ground level of Landlord’s Property, one located near the entrance to the Parking Garage on Belknap Street and the other located near the entrance to the Parking Garage on Henderson Street. The location, plans, specifications, size, design, text, substance, materials, composition and workmanship of the Monument Signs shall be determined by Landlord in Landlord’s sole discretion subject to all Legal Requirements. Tenant shall be entitled to place its name, text or graphics on the Monument Signs in such manner as may be reasonably approved by Landlord. Landlord shall operate and maintain the Monument Signs throughout the Term. Tenant agrees that if Tenant or any successor to Tenant desires to change Tenant’s name, text or graphics on the Monument Signs, Landlord shall have the right to approve such change. Upon Landlord’s approval of such change, Landlord, at Tenant’s sole cost and expense, will replace Tenant’s name, text or graphics on the Monument Signs. Upon the earlier of the expiration or earlier termination of this Lease for any reason or the expiration of the Term as to the West Fork Building, the Monument Signs shall remain on Landlord’s Property and Tenant shall have no further rights thereto.

(b) During the Term, Tenant may maintain the two existing monument signs located near the entrance to the Parking Garage on Henderson Street and at the corner of Belknap Street and Henderson Street (collectively, “Tenant’s Signs”). Tenant shall not make any modifications to Tenant’s Signs or place any new signs on the exterior of Landlord’s Property without the prior consent of Landlord. If Landlord grants such consent, the signage will be at Tenant’s expense. All of Tenant’s signs shall comply with, and otherwise meet or exceed the requirements of, all Legal Requirements, including, without limitation, the City of Fort Worth Downtown Design Review Board standards.

(c) Except for the Monument Signs and Tenant’s Signs, Landlord may remove or modify (except no modification, other than removal, shall be made to Tenant’s trademarks located on such signs), at Landlord’s expense, all of Tenant’s other exterior signs located on any portion of Landlord’s Property. Except as otherwise provided in Subparagraph 34(a), Tenant shall have no obligation to remove, or reimburse Landlord for the costs of removal of, Tenant’s Signs or any other signs located on any portion of Landlord’s Property.

 

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35. Brokers.

Tenant has not dealt with anyone other than Jones, Lang, LaSalle Americas, Inc. (“Tenant’s Broker”) in connection with this Lease. Tenant will pay a fee to Tenant’s Broker by separate agreement. Other than Tenant’s Broker, Landlord and Tenant do hereby indemnify and hold and save each other harmless from any loss, cost, damage or expense, including attorneys’ fees due by virtue of any claim for a brokerage commission claimed by any other broker, agent or similar party claiming by, through or under the indemnifying party. Each of the parties hereto represents and warrants to the other that it has not caused any other broker, agent, finder, or other party to be entitled to a fee or commission by reason of this Lease except for Tenant’s Broker.

36. Force Majeure.

Anything contained herein to the contrary notwithstanding, Landlord and/or Tenant shall be excused for the period of delay in the performance of any and all of their obligations under this Lease other than the obligation to pay any monetary amounts as same shall fall due, and shall not be considered in default when prevented from so performing by cause or causes beyond Landlord’s or Tenant’s reasonable control, including, but not limited to, all labor disputes, civil commotion, war, fire or other casualty, shortage of supplies and materials, government regulation or through act of God; provided, however, this Paragraph 36 shall in no way affect Tenant’s lease termination rights under Paragraph 13.

37. Exculpatory Clause.

Notwithstanding any provision of this Lease to the contrary, the liability of Landlord under and with respect to this Lease shall be limited to the interest of Landlord in the Premises, and any judgment in favor of Tenant or any party claiming by, through or under Tenant against Landlord shall be collectable only out of Landlord’s interest in the Premises.

38. Waiver of Landlord Liens. Landlord waives all constitutional, statutory and contractual landlord’s liens against any of Tenant’s personal property located at the Premises.

39. Transition Period.

(a) Notwithstanding anything to the contrary, Landlord acknowledges and agrees that it will take a period of time after the Amendment Date for Tenant to consolidate its offices and business operations into the Premises including, without limitation, the relocation of Tenant’s Excluded Personal Property (as defined in the PSA) to the Premises from the remainder of the Lot 1 Property. Landlord agrees that Tenant may, at no additional cost or expense to Tenant, but otherwise at Tenant’s sole risk and cost, occupy and use the remainder of the Lot 1 Property until one hundred twenty (120) days after Tenant receives notice from Landlord to vacate the remainder of the Lot 1 Property or any portion thereof.

(b) Landlord and Tenant acknowledge and agree that issues not initially covered or fully addressed by this Lease may arise due to Tenant’s consolidation of its operations into the Premises and Landlord’s use and occupancy of the remainder of the Lot 1 Property and Landlord’s use of a portion of the Data Center and the systems associated therewith as contemplated herein (“Transition Issues”). Such Transition Issues may include, without

 

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limitation, security access control to the Premises and the remainder of Landlord’s Property, shared use of the Data Center as contemplated in subparagraph (c) below, shared use of the existing mail room located in the Trinity Building (which use (subject to the notice requirements of subparagraph (a) above) shall terminate when Landlord commences remodeling of this area for other uses), shared use of the existing phone system, continuing operation of the food service and fitness facilities prior to Landlord’s opening of the Campus to students, and to the extent, but only to the extent, not addressed in Paragraph 34 or Paragraph 41 hereof, removal or replacement of exterior signage and designated parking spaces for the exclusive use of Landlord and Tenant.

(c) Both parties agree to use reasonable and good faith efforts and to work diligently and expeditiously to resolve any Transition Issues. The parties agree that if they are unable to resolve any Transition Issue despite their reasonable and good faith efforts within thirty (30) days after either party delivers a written proposal to the other party to resolve such Transition Issue, then the party receiving the written proposal may elect to submit such Transition Issue to either John W. Hughes or Wade H. McMullen (“Authorized Individuals”). If the selected Authorized Individual is unable or unwilling to resolve the Transition Issues, the other Authorized Individual shall resolve the Transition Issues. If neither Authorized Individual is willing or able to resolve the Transition Issues and Landlord and Tenant cannot agree upon a substitute Authorized Individual (“Substitute Authorized Individual”) within ten (10) days after it is determined that neither Authorized Individual is willing or able to resolve the Transition Issues, then Landlord and Tenant will each select a representative within five (5) days thereafter and said representatives shall then select a third individual who is willing and able to act as the Substitute Authorized Individual. The determination of the Authorized Individual or the Substitute Authorized Individual (as applicable) regarding the resolution of the Transition Issues shall be binding on both parties. Landlord and Tenant shall share equally the fees and expenses of the Authorized Individuals, any Substitute Authorized Individual and each party’s representative (as applicable).

(d) The parties acknowledge that Tenant operates the Data Center, which houses Tenant’s data processing and computer network facilities. Landlord and Tenant agree to negotiate in good faith regarding ways that Landlord may use a portion of the Data Center and the systems associated therewith; provided, however, that Landlord and Tenant agree that a minimum of 4,000 square feet of the Data Center shall be made available by Tenant for Landlord’s exclusive use no later than 120 days after the Amendment Date.

(e) Landlord and Tenant shall jointly and in good faith work to agree upon a set of rules and regulations for the Campus to be adopted by Landlord. If Landlord and Tenant cannot agree upon rules and regulations to be applicable to Tenant within 120 days after the Amendment Date, such matter will be resolved as a Transition Issue pursuant to Subparagraph 39(c) above. Upon adoption by Landlord, such rules and regulations will be applied in an equitable manner as reasonably determined by Landlord. Tenant shall also cause its agents, contractors, subcontractors, employees, customers, subtenants and invitees to comply with all such rules and regulations.

 

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40. Landlord’s Access to Loading Docks.

Landlord shall have access to and use of the loading docks located in the West Fork Building; provided, however, Landlord shall comply with Tenant’s security rules and regulations and any other reasonable rules and regulations established by Tenant with respect thereto. Landlord agrees to pay, and to protect, defend (with counsel reasonably acceptable to Tenant), indemnify and hold harmless Tenant from and against any Damages arising from any injury to, or the death of, any person or damage to property on the Premises during the Term due to Landlord’s use of said loading docks; provided, however, the foregoing indemnity shall not apply as to Tenant with respect to claims arising from the negligent acts or willful misconduct of Tenant.

41. Parking.

During the Term of this Lease, Tenant, at no additional charge, shall have the non-exclusive use in common with Landlord and its employees, agents, guests and invitees, of the parking areas, driveways, and footways for the Campus, including, without limitation, the Parking Garage, subject to rules and regulations for the use thereof as reasonably prescribed from time to time by Landlord. The use of such parking spaces shall be on a first come-first served basis, except for any mutually-agreed upon designated portion(s) of the Parking Garage which may be set aside for reserved parking for Landlord and Tenant. Notwithstanding the foregoing or anything to the contrary, Landlord at all times shall ensure that Tenant shall have a minimum of 1510 parking spaces until Landlord opens the Campus for classes, after which date Landlord and Tenant shall reassess Tenant’s parking needs and if agreement cannot then be reached as to the minimum number of parking spaces allocated for Tenant’s use, such matter will be resolved as a Transition Issue pursuant to Subparagraph 39(c) above.

42. Security.

Landlord agrees that Tenant may implement security rules and regulations pertaining to the Premises and may, at its expense and discretion, install security gates on the Premises and prohibit access to any part of the Premises by students of the Campus and the general public; provided, however, that notwithstanding any such security rules or regulations and notwithstanding the installation of any such security gates, Landlord’s security personnel, police officers, maintenance or repair personnel or janitorial personnel or any other personnel necessary or desirable in order for Landlord to perform any of Landlord’s duties or obligations under this Lease (in each case whether employees of Landlord or independent contractors) shall be permitted reasonable access to the Premises.

43. Partial Consideration.

As Partial Consideration for Tenant agreeing to amend and restate the Lease as set forth herein and in connection with Landlord’s purchase of Landlord’s Property, Landlord and Tenant agree that Tenant shall not be liable for, or obligated to pay, (i) any Basic Rent or Additional Rent during the Interim Term or the Primary Term or (ii) any Taxes or other Impositions accruing in, or payable with respect to, the period beginning on the first day of the Term and ending on the Rent Commencement Date. Notwithstanding the foregoing and

 

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notwithstanding anything contained in this Lease to the contrary, Tenant shall be responsible for and shall pay prior to becoming delinquent any and all Taxes assessed against or accrued with respect to any part of Landlord’s Property for any and all periods prior to the Amendment Date. Also, Tenant shall not be responsible during the Interim Term or the Primary Term for any maintenance or repairs, unless such maintenance or repairs are caused by Tenant.

[Signature Pages Attached]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year first above set forth.

 

LANDLORD:

TARRANT COUNTY COLLEGE DISTRICT,

a political subdivision of the State of Texas

By:  

/s/ Dr. Leonardo de la Garza

  Dr. Leonardo de la Garza, Chancellor

 

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TENANT:

RADIOSHACK CORPORATION,

a Delaware corporation

By:  

/s/ Robert C. Donohoo

  Bob Donohoo, Vice President and General Counsel

 

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EX-99.1 4 dex991.htm PRESS RELEASE Press Release

Exhibit 99.1

RadioShack Corporation Agrees to Assign Fort Worth Headquarters Lease from KanAm

Grund to Tarrant County College District (TCC)

FORT WORTH, TEXAS – (June 25, 2008) – RadioShack Corporation (NYSE: RSH) today announced it has agreed to assign its headquarters lease with its former landlord (KanAm Grund) to the new property owner, Tarrant County College District (TCC). As part of the renegotiated lease agreement with TCC, RadioShack will remain in the approximately 400,000 square feet it currently occupies with its headquarters staff through June 2011 with an option to remain in a portion of the complex through June 2013.

By agreeing to assign its lease, RadioShack helped facilitate the acquisition of the approximately 900,000 square foot, 18.7-acre downtown Fort Worth complex by TCC from the German real estate investment company. TCC is also acquiring the surrounding land owned by RadioShack as well as the RadioShack retail store connected to the complex.

“Our lease agreement with TCC will enable us to greatly reduce our on-going occupancy costs while allowing us to remain in our current headquarters.” said Julian Day, RadioShack’s Chairman and Chief Executive Officer. “In addition, our ability to maintain our current location will ensure we remain focused on our business without creating any unnecessary disruptions or distractions for our staff. We’re pleased the 500,000 square feet of space we were either not using or underutilizing will help a leading Tarrant County educational institution create a positive new dimension for the downtown business community.”

About RadioShack Corporation

RadioShack Corporation (NYSE: RSH) is one of the nation's most experienced and trusted consumer electronics specialty retailers. Operating from convenient and comfortable neighborhood and mall locations, RadioShack stores deliver personalized product and service solutions within a few short minutes of where most Americans either live or work. The company has a presence through almost 6,000 company-operated stores and dealer outlets in the United States and nearly 800 wireless phone kiosks. RadioShack's dedicated force of knowledgeable and helpful sales associates has been consistently recognized by several independent groups as providing the best customer service in the consumer electronics and wireless industries. For more information on RadioShack Corporation, or to purchase items online, visit www.RadioShack.com.

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