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EXHIBIT 10.5(d)
FOURTH AMENDMENT TO COMMERCIAL LEASE AGREEMENT
THIS FOURTH AMENDMENT TO COMMERCIAL LEASE AGREEMENT, (the "Amendment") is
entered into by and between KANCRO, L.P., a Delaware limited partnership (the
"Lessor") and SOFTWARE SPECTRUM, INC., a Texas corporation (the "Lessee"),
effective as of the 25th day of November, 1996.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of that certain Commercial Lease Agreement
dated April 19, 1993 (the "Lease"), as amended by that certain Third Amendment
to Commercial Lease Agreement dated to be effective as of April 1, 1995
(collectively, the "Lease"), Lessee has heretofore leased from the Lessor
certain premises located within the industrial warehouse project commonly known
as Northgate IV, Garland, Texas (the "Project") and containing approximately
70,390 square feet of space, more or less within Building 15 at 2220 Merritt
Drive, Garland, Texas (the "Original Premises"); and
WHEREAS, the parties desire to further amend certain provisions of the
Lease, all as more particularly set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, and the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Defined Terms. Terms defined in the Lease and delineated herein by
initial capital letters shall have the same meaning ascribed thereto
in the Lease, except to the extent that the meaning of such term is
specifically modified by the provisions hereof. In addition, other
terms not defined in the Lease, but defined herein shall when
delineated with initial capital letters have the meaning ascribed
thereto in this Amendment. Terms and phrases which are not delineated
by initial capital letters shall have the meaning commonly ascribed
thereto.
2. Amendments to the Lease.
(a) Section 1 of the Lease shall be modified in its entirety as
follows:
"Section 1 PREMISES AND TERM.
(A) In consideration of the mutual obligations of Lessor and
Lessee set forth herein, Lessor leases to Lessee, and Lessee
hereby takes from Lessor certain lease premises (the "Original
Premises"), consisting of 70,390 square feet of space, more or
less, in Building 15 situated within the Project, and being more
particularly described on Exhibit "A-1" attached
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hereto and incorporated herein for all purposes, together with
all rights, privileges, easements, appurtenances and amenities
granted to the Lessee in this Lease, to have and to hold,
subject to the terms, covenants and conditions of this Lease.
The term of this Lease shall commence on April 1, 1995 (the
"Commencement Date") and shall end on the last day of the month
that is sixty (60) months after the Commencement Date (the
"Lease Term"); provided, that if the Commencement Date is a date
other than the first day of a calendar month, the Lease Term
shall be extended for the remainder of the calendar month in
which the Commencement Date occurs.
(B) In consideration of the mutual obligations of Lessor and
Lessee set forth herein, Lessor leases to Lessee, and Lessee
hereby takes from Lessor certain leased premises (the "Expansion
Premises"), consisting of 38,286 square feet of space, more or
less, in Building 14 situated within the Project, and being more
particularly described on Exhibit "A" and Exhibit "A-2" attached
hereto and incorporated for all purposes, together with all
rights, privileges, easements, appurtenances and amenities
granted to the Lessee in this Lease, to have and to hold subject
to the terms, covenants and conditions of this Lease. The term
of the Lease of the Expansion Premises shall commence on
December 1, 1996 (the "Expansion Commencement Date"), and shall
end on the last day of the month that is coterminous with the
date of expiration of the term of the lease of the Original
Premises. The Original Premises and the Expansion Premises are
hereinafter sometimes collectively referred to as the
"Premises".
(b) The last sentence of Section 2(c) of the Lease is hereby amended
in its entirety as follows:
"The amount of the monthly rent is as follows:
Base Rent (Original Premises) .................... $ 21,996.88
Base Rent (Expansion Premises) ................... 12,762.00
Tax Escrow Payment (Original Premises) ........... 3,519.50
Tax Escrow Payment (Expansion Premises) .......... 2,252.19
Insurance Escrow Payment (Original Premises) ..... 410.61
Insurance Escrow Payment (Expansion Premises) .... 233.07
Common Area Expenses (Original Premises) ......... 1,055.85
Common Area Expenses (Expansion Premises) ........ 708.80
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Monthly Payment Total: $ 42,938.90"
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(c) A new Section 26 shall be added to the Lease, and shall read in its
entirety as follows:
"26. Construction of Improvements to Expansion Premises. Lessee shall
proceed to construct improvements within the Expansion Premises in
compliance with certain plans and specifications prepared on behalf
of the Lessee (the "Plans"). The Plans for the construction of the
improvements to the Expansion Premises shall be mutually approved by
the parties in writing prior to commencement of construction. Lessor
agrees to notify Lessee in writing at the time Lessor approves the
Plans the items to be constructed by the Lessee which Lessor shall
require the Lessee to remove from the Expansion Premises at the
expiration of the term of this Lease. Lessee shall be responsible for
the cost of all improvements to be constructed within the Expansion
Premises. Lessee shall further be responsible for compliance with all
applicable statutes, codes, ordinances and other regulations for all
construction performed by or on behalf of the Lessee within the
Expansion Premises, including without limitation, the installation of
all utilities within the Expansion Premises. Lessee acknowledges that
the utilities serving the Expansion Premises are jointly metered with
the utilities serving the Additional Premises (as defined in Section
3 of this Amendment). Until such time as the utilities serving both
the Expansion Premises and the Additional Premises are separately
metered, Tenant agrees to pay the cost of all jointly metered
utilities. Lessee shall not permit Lessee's contractors or any
subcontractor to commence any work in connection with the
construction of the improvements to the Expansion Premises until
appropriate insurance has been obtained and certificates evidencing
such insurance coverage have been delivered to and approved by
Lessor. Lessee agrees to indemnify, defend and hold Lessor harmless
from and against all claims, liabilities, costs, damages and expenses
of whatever nature, including those to the property of Lessee,
arising out of or in conjunction with the performance of the
construction of the improvements to the Expansion Premises. At the
expiration of the term of the Lease, and upon written notice from the
Lessor, Lessee, at its sole cost and expense, shall remove all
improvements constructed within the Expansion Premises which were
identified by the Lessor in writing at the time of the approval of
the Plans. Such removal of the improvements to the Expansion Premises
shall be performed in a good and workmanlike manner so as not to
damage or alter the primary structure or structural qualities of the
building and other improvements comprising the Premises. Tenant
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expressly acknowledges and agrees that it shall lease and take
possession of the Expansion Premises in an "AS-IS" condition. Neither
Lessor nor anyone acting on lessor's behalf has made any
representations or warranties as to the condition of the Expansion
Premises. The taking of possession of the Expansion Premises by the
Lessee shall be deemed conclusive evidence that the Expansion
Premises were in a satisfactory condition at the time of possession."
3. Right of First Refusal on Additional Space. At any time between the
Expansion Commencement Date and the expiration of the term of the
Lease, and provided that the Lessee is not then in default under the
Lease and has not assigned this lease or sublet the right to lease
(or any part thereof) Lessee shall have the right to lease premises
adjacent to the Expansion Premises, consisting of of approximately
24,561 square feet, more or less, and outlined on Exhibit "B",
attached to this Amendment and incorporated herein (the "Additional
Premises"). Subject to the foregoing, and provided that Lessee shall
have not previously received a written notice from the Lessor of a
bona fide third-party offer to lease the Additional Premises as
described below, the Lessee may, upon written notice to the Lessor,
lease the additional Premises at a base rent, the lease of the
Additional Premises shall be upon the same terms and conditions as
those herein specified, including without limitation, the date of
termination of the Lease specified herein. Following Lessee's notice,
Lessor and Lessee shall cooperate with each other to expeditiously
execute an amendment to this or an additional lease agreement to
document the lease of the Additional Premises.
In the event Lessor desires to lease all or a portion of the
Additional Premises to a third party, Lessor shall notify Lessee in
writing of its intention, including in the notice the name of the
proposed Lessee and the particular location of the proposed lease
space. Lessee agrees not to enter into a sublease with such third
party, nor discuss such information with any potential sublessee or
assignee of lessee. Lessee shall have thirty (30) days after receipt
of Lessor's notice to notify Lessor of Lessee's decision to lease
that portion of the Additional Premises subject to the proposed lease
with such third party, such lease to be upon the same terms and
conditions as that agreed to in writing by Lesssor and such third
party. If within such thirty (30) day period, Lessee does not deliver
Lessor written notice of Lessee's intent to exercise its right of
first refusal with respect to that portion of the Additional Premises
subject to the proposed lease with such third party, then Lessor
shall be entitled for a period of ninety
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(90) days thereafter to execute a lease with such third party, and if
Lessor does so execute a lease with such third party, Lessee's prior
right to lease all or the portion of the Additional Premises covered
by the lease with such third party shall automatically terminate for
the duration of such lease and any extensions thereto. However, if
Lessor does not execute a lease with such third party during the
ninety (90) day period, that portion of the Additional Premises shall
not thereafter be leased without Lessor's compliance with the terms
of this Section 3.
4. Effect of Amendment. Except as specifically amended by the provisions
hereof, the terms, covenants and provisions of the Lease shall
continue to govern the rights and obligation of the parties
thereunder, and all rights, convenants and provisions of the Lease
shall remain in full force and effect as stated therein. This
Amendment and the Lease shall be construed as one instrument. The
terms, covenants and provisions of this Amendment shall inure to the
benefit and be binding upon the parties hereto and their respective
successors and permitted assigns
IN WITNESS WHEREOF, Lessor and Lessee have executed this Amendment in
multiple counterparts as of the day and year first above written.
LESSOR:
KANCRO, L.P.,
a Delaware limited partnership
By: KPERS Realty Holding #23, Inc.,
a Kansas corporation,
general partner
By: /s/ STEPHEN S. WILLIAMS
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Stephen S. Williams
Title: Vice President
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LESSEE:
SOFTWARE SPECTRUM, INC.
a Texas corporation
By: /s/ KEITH R. COOGAN
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Title: Executive Vice President - COO
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BY: /s/ LISA STEWART
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Lisa Stewart
TITLE: Vice President - Operations
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EXHIBIT "A"
LEGAL DESCRIPTION
BEING approximately 62,847 square feet out of an approximate 62,847 square
foot facility commonly known as Northgate Phase IV, Building 14 located on
2260 Merritt Drive, Garland, Texas, and situated on a tract of land described
as follows:
BEING 7.7771 acres of land situated in the HENRY REID SURVEY, Abstract No.
1197, being part of Lot 1, Block 3 of Northgate Business Park IV, an addition
to the City of Garland as recorded in Volume 85052, Page 1927 of the Deed
Records of Dallas County, Texas;
COMMENCING at the Northeast corner of said Lot 1, said corner being the
intersection of the southerly R.O.W. line of Miller Road (a 100' R.O.W.) and
the westerly boundary line of Santa Fe-Miller Road Industrial District;
THENCE, South 00 degrees 13 minutes 39 seconds West, along the
easterly line of Lot 1 and said westerly boundary line of Santa Fe-Miller Road
Industrial District a distance of 985.10 feet to the POINT OF BEGINNING;
THENCE, South 00 degrees 13 minutes 39 seconds West, continuing along the
easterly line of Lot 1 and said westerly boundary line) a distance of 717.00
feet to a point for a corner, said point being the Southeast corner of Lot 1;
THENCE, North 89 degrees 46 minutes 21 seconds West, along the southerly line
of Lot 1 a distance of 150.00 feet to the beginning of a curve to the right
having a central angle of 30 degrees 00 minutes 00 seconds, a radius of 400.00
feet and a tangent of 107.18 feet;
THENCE, continuing along the southerly line of Lot 1 and said curve to the
right an arc distance of 209.44 feet to a point of tangency;
THENCE, North 59 degrees 46 minutes 21 seconds West, continuing along the
southerly line of Lot 1 a distance of 189.89 feet to a point for a corner said
point being on the easterly R.O.W. line of Merritt Drive a 60' R.O.W.;
THENCE, North 00 degrees 13 minutes 39 seconds East, along said easterly R.O.W.
line of Merritt Drive a distance of 297.92 feet to the beginning of a curve to
the right having a central angle of 27 degrees 39 minutes 58 seconds, a radius
of 320.00 feet and a tangent of 78.80 feet;
THENCE, northeasterly along said easterly R.O.W. and said curve to the right an
arc distance of 154.52 feet to a point of tangency;
THENCE, North 27 degrees 53 minutes 37 seconds East, continuing along said
easterly R.O.W. a distance of 55.81 feet to the beginning of a curve to the
left having a central angle of 06 degrees 54 minutes 30 seconds, a radius of
660.00 feet and a tangent of 39.84 feet;
THENCE, Northeasterly continuing along said easterly R.O.W. and said curve to
the left an arc distance of 79.58 feet to a point for a corner;
THENCE, South 89 degrees 46 minutes 21 seconds East, departing the easterly
R.O.W. line of Merritt Drive a distance of 419.33 feet to the POINT OF
BEGINNING and CONTAINING 338,771 Square Feet or 7.7771 Acres of Land.
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EXHIBIT "A-1"
Site Plan of Original Premises