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EXHIBIT 10.4b
LEASE EXTENSION AGREEMENT TO INDUSTRIAL LEASE AGREEMENT
THIS LEASE EXTENSION AGREEMENT TO THE INDUSTRIAL LEASE AGREEMENT (the
"Lease Extension Agreement") is made and entered into by and between Beltline
Business Center Limited Partnership ("Landlord") and Danvid Company, Inc.
("Tenant").
R E C I T A L S
A. Centre Consolidated Properties, Ltd. (the "Original Landlord") and
Tenant have heretofore entered into a Lease Agreement (the "Original Lease")
executed by Tenant and Original Landlord in December 1989 (said Original Lease
as heretofore amended is hereinafter referred to as the "Lease") covering
portions of a building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ within the Beltline
Business Center, Carrollton, Texas and more specifically described in the
attached Exhibit A (the "Premises"). The Premises are located within the
Beltline Business Center Office/Showroom/Warehouse project located on a tract of
land more specifically described in Exhibit B (the "Project").
B. Subsequently, Landlord acquired from the Original Landlord, and the
Original Landlord assigned to Beltline Business Center LTD Partnership, all of
the Original Landlord's interest in and to the Lease. The correct name of the
Landlord is Beltline Business Center Limited partnership which is a Texas
limited partnership.
C. Subsequently, the Lease was amended by the (First) Amended dated
April 26, 1991, Second Amendment dated March 19, 1992, Third Amendment dated
January 21, 1994 and Fourth Amendment dated March 15, 1995.
D. The purpose of this Lease Extension Agreement, among other things,
is to (i) modify and extend the Lease Term to December 31, 2004; (ii) modify the
Basic Rental amount paid per month; (iii) modify the Security Deposit with an
additional deposit amount; and (iv) outline an agreement regarding the parking
issues.
E. Unless specifically stated otherwise, all defined terms used in this
Lease Extension Agreement shall have the same definition given to them in the
Lease.
NOW, THEREFORE, for and in consideration of the above recitals and the
mutual covenants of the parties hereto, it is hereby agreed that the Lease be
and is hereby amended as follows:
1. SUBPARAGRAPH 1(a) "LANDLORD" of the Lease is hereby modified and
amended to reflect that Beltline Business Center Limited Partnership is now
Landlord.
2. SUBPARAGRAPH 1(d) "LEASE TERM" is hereby modified and amended to
reflect a period of ninety-six (96) months commencing on January 1, 1997 and
ending on December 31, 2004. Upon 90 days (minimum) advance written, irrevocable
notice, Tenant may terminate the Lease effective on each of its annual
anniversary dates beginning January 1, 2002. To be
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effective, the notice must be accompanied by a payment of the Termination
Payment listed in the schedule (the "Rental Schedule") below.
3. SUBPARAGRAPH 1(c) "BASIC RENTAL" is hereby modified and amended to
reflect new monthly rental payments on 168,616 square feet in accordance with
the Rental Schedule as well as the new Lease Term.
RENTAL SCHEDULE
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RATE ANNUAL MONTHLY TERMINATION
PERIOD /SF RENTAL RENTAL PAYMENT
Jan. 1, 1997 through Dec. $3.00 $505,848.00 $42,154.00
31, 1997
Jan. 1, 1998 through Dec. $3.10 $522,709.60 $43,559.13
31, 1998
Jan. 1, 1999 through Dec. $3.20 $539,571.20 $44,964.27
31, 1999
Jan. 1, 2000 through Dec. $3.30 $556,432.80 $46,369.40
31, 2000
Jan. 1, 2001 through Dec. $3.40 $573,294.40 $47,774.53
31, 2001
Jan. 1, 2002 through Dec. $3.45 $581,725.20 $48,477.10 $124,565.07
31, 2002
Jan. 1, 2003 through Dec. $3.50 $590,156.00 $49,179.67 $83,275.23
31, 2003
Jan. 1, 2004 through Dec. $3.55 $598,586.80 $49,882.23 $41,753.54
31, 2004
4. SUBPARAGRAPH 1(f) "SECURITY DEPOSIT" is hereby modified and amended
to reflect $46,545.03.
5. PARAGRAPH 4 "RENTAL ESCALATION" is unchanged.
6. PARAGRAPH 8 "USE" shall be expanded to include the following
provisions:
(a) Landlord and Tenant agree to use their best efforts to
work with the City of Carrollton to allow for Tenant, at its sole cost and
expense, to obtain any necessary conditional use permit, variances, or licenses
as may be required by the City to utilize the property for Tenant's normal
conduct of business. Tenant agrees that should off-site parking for Tenant's
personnel become necessary in order to resolve parking restrictions enforced by
the City of Carrollton, Tenant will provide, at Tenant's sole expense, off-site
parking and transportation for a maximum of 225 off-site parking spaces for
Tenant's employees.
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Additionally, tenant and Landlord, or Tenant's personnel and Landlord's
personnel, hereby agree to assist each other in meetings and negotiations with
the City of Carrollton in an attempt to resolve the parking restrictions at
Beltline Business Center, if requested by either party.
Tenant currently has 237 attributed parking spaces of the 741 parking
spaces that the City of Carrollton allows for the Project. Tenant can continue
to use the 237 spaces. Landlord has 504 spaces dedicated for other tenants.
Landlord has applied to the City of Carrollton for recognition of an additional
141 spaces resulting from a redesign of the property to bring the total
available in the Project to 882. Landlord needs additional spaces in order to
lease approximately 32,000 square feet of empty space. Landlord agrees to allow
Tenant to use 32, or 22.33%, of the additional spaces upon approval by the City.
If the City approves less than the 882 requested spaces, Tenant's additional
spaces shall be reduced by the 22.33% factor accordingly. I f Tenant expands
into additional space, then Tenant would be allocated the additional parking
spaces attributed to the added space. Exhibit "C" shows the location of the 237
attributed parking spaces and the additional 32 proposed spaces. Exhibit "C" is
a modified proposal to meet City requirements and the other necessary parking
spaces for the Project. The City is currently reviewing and rearranging the
spaces. Within thirty (30) days of Tenant's written request, Landlord shall at
Landlord's sole cost and expense, ▇▇▇▇ Tenant's parking spaces which are not
already marked and which are not located in the lot fronting Premises (between
to the east building line of Premises and ▇▇▇▇▇ Boulevard), but the foregoing
shall not obligate Landlord than otherwise agreed above. Tenant may ▇▇▇▇ spaces
in the lot fronting Premises at its own cost and expense.
7. PARAGRAPH 30 "NOTICES" is hereby modified and amended to reflect the
Landlord's name and address and remittance instructions:
LANDLORD:
Beltline Business Center Limited Partnership
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, President of American Diversified Properties, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Business phone (▇▇▇) ▇▇▇-▇▇▇▇
REMIT PAYMENTS TO:
Beltline Business Center Limited Partnership
c/or Business Operations Support Systems, Inc.
Attn. ▇▇▇▇▇ ▇'▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
8. PARAGRAPH 43 "RENEWAL OPTION." If at the end of the Lease Term on
December 31, 2004, and so long as Tenant is not then in default of any of the
terms, conditions or covenants of the Lease, Tenant (but not including any
assignee or subtenant of Tenant) may
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extend the Lease Term for one additional term of five (5) years (the "Renewal
Term") upon the same terms and conditions contained in this Lease with the
following exceptions:
(a) No further renewal options will be available unless
granted by Landlord in writing, which Landlord has no obligations to grant; and
(b) Rental Escalation and Basic Rental for the Renewal Term
(the "Renewal Basic Rental") shall be based on the then prevailing rental rates
for properties of equivalent quality, size, utility and location, with the
length of the Renewal Term and credit standing of Tenant to be taken into
account.
If Tenant desires to extend the Lease Term in accordance with the
Renewal Term pursuant to this paragraph, Tenant will notify Landlord of its
intention to renew no later than July 1, 2004 (the "Tenant's Renewal Notice").
The Tenant's Renewal Notice shall also set forth Tenant's determination of the
Renewal Basic Rental. Landlord shall, within fifteen (15) days following receipt
of Tenant's Renewal Notice, notify Tenant in writing of Landlord's acceptance or
rejection of the Renewal Basic Rental as proposed by Tenant. If Landlord and
Tenant are unable to agree on the appropriate Renewal Basic Rental, Landlord and
Tenant will agree on an appraiser who will determine for them the Renewal Basic
Rental. The cost of such appraiser shall be shared equally by Landlord and
Tenant.
9. PARAGRAPH 44 "RIGHT OF FIRST REFUSAL"
(a) If Tenant is not then in default of any of the terms,
conditions, or covenants of the Lease and if Landlord wishes to lease space in
the Project contiguous to the Premises (the "Subject Space") to a third party
other than the tenant then occupying Subject Space, Landlord shall advise Tenant
in writing of the space to be covered by the contemplated third-party lease, and
additionally specify the prevailing rental rate for properties of equivalent
quality, size, utility and location as to the Subject Space. Within ten (10)
business days following Tenant's receipt of Landlord's notice, Tenant shall
notify Landlord in writing whether it (a) desires to lease the Subject Space on
the same terms and conditions contained in this Lease, except at the rental rate
set forth in Landlord's notice, or (b) does not wish to exercise such option. If
Tenant fails to notify Landlord in writing within such ten (10) business day
period, Tenant will be deemed to have rejected such offer. If Tenant notifies
Landlord in writing within such ten (10) business day period that Tenant wishes
to lease Subject Space, Tenant shall amend the Lease for the Subject Space, on
the same terms and conditions set forth in this Lease, except the rental rate
for the Subject Space shall be the rate specified in Landlord's notice. Upon
Tenant's rejection of any offer pursuant to this paragraph, Tenant shall have no
further option or right of first refusal with respect to the Subject space so
long as a Lease is executed with the same third party. Tenant's rights under
this paragraph may be executed by Tenant, but not by any assignee or sublessee
or Tenant.
10. If a law, ordinance or regulation is hereafter adopted requiring
installation in the Project of any environmental protection equipment, then
Tenant shall pay tenant's proportionate share of the cost (amortized over the
full life of the equipment), maintenance and operating
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expense of that equipment. If that requirement related solely to Tenant's use of
the Premises, then Tenant shall bear the entire expense.
11. PARAGRAPH 36 "BROKER'S OR AGENT'S COMMISSION" is hereby modified to
note that Tenant has engaged TRG Investment Corporation ("TRG") as its exclusive
real estate broker in negotiating this Lease Extension Agreement. Landlord
hereby agrees to pay to TRG $122,878.91 (the "Commission"). TRG, ▇▇▇▇ ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Broker Parties") execute this Lease Extension Agreement
for the purpose of acknowledging and confirming that the Commission constitutes
all amounts any of them may have or claim with respect to this Lease Extension
Agreement or the Original Lease, as amended, and hereby waive any and all rights
and claims any of them may have to any commission or other compensation in
connection therewith. The Broker parties represent and warrant that none of them
will share or pay, or is obligated to share or pay, any of the Commission to any
other person or entity.
12. ENVIRONMENTAL PROVISION. Tenant and Landlord shall not, and shall
not permit their employees, agents or contractors (within the scope of
employment, agency or contract) to, intentionally or accidentally release, emit,
dispose of or discharge any hazardous substance on the Project,in soil, surface
water or groundwater on or under the Project or in the air above the Project in
violation of any applicable environmental law or regulations. Each, Tenant and
Landlord, shall defend, indemnify and hold the other and its agents,
shareholders, partners, contractors, attorneys, employees, and representatives
(collectively, the "Indemnitees," and individually, "Indemnitee") harmless from
and against all liabilities, losses, charges, damages (including damages to
persons, entities, or the environment), costs and expenses asserted against or
payable by any Indemnitee and arising from or in any way connected with any
hazardous substance released, emitted, disposed of or discharged by the other or
its employees, agents or contractors on the Project, to soil, surface water or
ground water on or under the Project, or in the air above the Project. The
provisions of this paragraph shall survive (i) the termination of the Lease and
(ii) the sale of the project, as provided by applicable law. Notwithstanding any
other provision of this Lease, no assignment, sublease or transfer of Tenant's
interest in this Lease or any part thereof shall relieve Tenant of its
obligations, and no transfer of the ownership of the project shall relieve
Landlord of its obligations, under this paragraph.
13. AMERICANS WITH DISABILITIES ACT. If the Premises is now, or at any
time during the term of this Lease becomes, a "public accommodation" under the
Americans with Disabilities Act of 1990 (the "Act"), Tenant shall, at its own
expense, be responsible (a) for compliance with Title III of the Act to the
extent that the Act impose obligation on the procedure and design of any
alterations to the Premises made by the Tenant and (b) for making modification
in its policies, practices and procedures in connection with the operating of
the Tenant's business if a failure to make such modifications would constitute a
violation of the Act. Tenant shall indemnify and hold harmless Landlord with
respect to its failure to comply with the foregoing responsibilities.
14. ENTIRE AGREEMENT. The Original Lease as amended by the (First)
Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, and
this Lease Extension Agreement constitute the entire agreement between the
Landlord and Tenant, and between Landlord and Tenant, respectively, and Broker
Parties, in connection herewith. Any
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prior agreements are hereby superseded and replaced. There are no other
agreements, written or oral, which will survive the execution of this Lease
Extension Agreement.
15. EFFECTIVE DATE. The effective date of this Lease Extension
Agreement is the 29th day of September, 1996, except for the amendments of
Subparagraphs 1(d) and 1(e) herein, which are effective on January 1, 1997.
EXECUTED BY:
LANDLORD: TENANT:
Beltline Business Center Limited Partnership Danvid Company, Inc.
By its General Partner, Sagawa Investment, Inc.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇, Vice President
--------------------------------------- ------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President ▇▇▇▇ ▇▇▇▇▇, Vice President
TENANT'S BROKER:
TRG Investment Corporation /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- ---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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EXHIBIT "A"
ATTACHED TO AND MADE A PART
OF
LEASE AGREEMENT
Site Plan
[GRAPHICS OF SITE PLAN]
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Exhibit "B"
Being a tract of land located in the City of Carrollton, Dallas County, Texas,
being part of Belt Line Business Center, an Addition in the ▇▇▇▇ ▇. ▇▇▇▇▇
Survey, Abstract 939, according to the plat thereof recorded in Volume 73093,
Page 2922 of the Map Records of Dallas County, Texas, and being described more
particularly as follows;
Beginning at a steel pin in concrete at the intersection of the north line of
Belt Line Road, 100 feet wide, with the east line of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ feet
wide;
Thence N 00(degree)36' E, along the east line of Vantage Drive, a distance of
2196.44 feet to a steel rod for corner on the north line of said Belt Line
Business Center Addition;
Thence N 89(degree)38'30" E, along said Addition line, a distance of 608.85 feet
to a steel rod for corner on the west line of ▇▇▇▇▇ Boulevard, formerly
Kelly-Springfield Boulevard;
Thence S 00(degree)36' W, along the west line of ▇▇▇▇▇ Boulevard, a distance of
2185.24 feet to a cross cut in concrete at the northeast end of the intersection
cutoff to the north line of Belt Line Road;
Thence S 45(degree)18' W, along said cutoff, a distance of 21.32 feet to a steel
rod for corner on the north line of Belt Line Road;
Thence West, along the north line of Belt Line Road, a distance of 593.80 feet
to the place of beginning;
Containing 1,338,160 square feet of land or 30.720 acres.
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Exhibit C
[GRAPHIC OF SITE PLAN]
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