FOURTH AMENDMENT TO LEASE AGREEMENT
This Fourth Amendment to Lease Agreement (this "Fourth Amendment") is
entered into by and between CIIF ASSOCIATES II LIMITED PARTNERSHIP, a
Delaware limited partnership (hereinafter called "Landlord") and SOFTWARE
SPECTRUM, INC., a Texas corporation formerly known as The Software Store,
Inc. (hereinafter called "Tenant").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated May 1, 1990 (the "Original Lease"), wherein Landlord leased to Tenant
approximately fifty-one thousand one hundred forty-five (51,145) square feet
of rentable area in the building known as 2140 Merritt Drive, Garland, Texas
(the "Building"), all as more fully described in the Lease (the "Premises");
and
WHEREAS, Landlord and Tenant amended the Original Lease pursuant to the
terms and provisions of that certain First Amendment to Lease Agreement dated
March 31, 1995 (the "First Amendment") executed by Landlord and Tenant; and
WHEREAS, Landlord and Tenant further amended the Original Lease
pursuant to the terms and provisions of that certain First Addendum to Lease
Agreement dated July 31, 1996 (the "Second Amendment") executed by Landlord
and Tenant; and
WHEREAS, Landlord and Tenant further amended the Original Lease
pursuant to the terms and provisions of that certain Third Amendment to Lease
Agreement dated effective April 20, 1998 (the "Third Amendment") executed by
Landlord and Tenant (the Original Lease, as amended by the First Amendment,
the Second Amendment and the Third Amendment, is herein referred to as the
"Lease"); and
WHEREAS, desire to further amend the Lease in accordance with the terms
and conditions set forth below;
NOW, THEREFORE, for and in consideration, of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby
agree as follows (capitalized terms used herein having the meanings ascribed
to them in the Lease unless specifically defined herein):
1. Tenant shall have the right to lease additional parking area in
accordance with the terms and conditions of EXHIBIT A attached hereto.
2. By its execution of this Fourth Amendment, Tenant acknowledges and
agrees that all leasehold improvements and tenant finish in the Premises are
in good and satisfactory condition
acceptable to Tenant. Tenant acknowledges that it accepts the Premises in
their present condition, I.E. "AS IS" and "WITH ALL FAULTS," subject to any
latent defects of which Tenant is unaware as of the date of Tenant's
execution of this Fourth Amendment. Notwithstanding the foregoing, Landlord
shall remain responsible for any subsequent repairs required to portions of
the Building for which Landlord is responsible under the terms of the Lease.
3. Landlord agrees to pay to The Industrial Group ("Landlord's Broker")
a real estate brokerage commission as set forth in a separate listing
agreement between Landlord and Landlords' Broker and agrees to pay The
Staubach Company ("Tenant's Broker") a real estate brokerage commission as
set forth in a separate commission agreement between Landlord and Tenant's
Broker. Tenant hereby represents and warrants to Landlord that it has not
employed any other agents, brokers or other such parties in connection with
the extension of the lease term pursuant to the terms and conditions of this
Fourth Amendment, and Tenant agrees that it shall hold Landlord harmless from
and against any and all claims of all agents, brokers or other such parties
claiming by, through or under Tenant.
4. The Lease, as amended by this Fourth Amendment, is hereby ratified
and affirmed and, except as expressly amended hereby, all other items and
provisions of the Lease remain unchanged and continue to be in full force and
effect. The terms of this Fourth Amendment shall control over any conflicts
between the terms of the Lease and the terms of this Fourth Amendment.
5. The Lease, as amended by this Fourth Amendment, constitutes the
entire agreement and understanding between the parties hereto relating to the
subject matter hereof and all prior agreements, proposals, negotiations,
understandings and correspondence between the parties in this regard, whether
written or oral, are hereby superseded and merged herewith.
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IN WITNESS WHEREOF, this Fourth Amendment may be executed by the parties
hereto on separate multiple counterparts, each of which shall be deemed to be
an original, executed to be effective as of the 1st day of October, 1998.
"Landlord"
CIIF ASSOCIATES II LIMITED PARTNERSHIP,
a Delaware limited partnership
By: AEW Advisors, Inc., a Massachusetts
corporation, its managing general partner
By:
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Name:
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Title:
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"Tenant"
SOFTWARE SPECTRUM, INC.,
a Texas corporation
By: /s/ Robert D. Graham
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Name: Robert D. Graham
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Title: Vice President and General Counsel
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EXHIBIT A
SECOND EXPANSION PARKING OPTION
1. Subject to the terms and conditions of this EXHIBIT A, Tenant shall
have the additional option ("Second Expansion Parking Option"), by providing
written notice thereof to Landlord (the "Second Expansion Parking Election
Notice"), at any time on or before September 1, 2000, to include under the
Lease all or any portion of the land identified on EXHIBIT A-1 attached
hereto (the "Second Expansion Parking Area"). The amount of the Second
Expansion Parking Area to be included under the Lease pursuant to the Second
Expansion Parking Option shall be identified by Tenant in the Second
Expansion Parking Election Notice. The actual portion of the EXHIBIT A-1 land
to be included under the Lease pursuant to the Second Expansion Parking
Option shall be designated by Landlord, provided, however, it shall have a
reasonable configuration (the "Second Expansion Parking Space"). If Tenant
timely delivers the Second Expansion Parking Election Notice, then (a)
Landlord shall promptly pave the Second Expansion Parking Area so that it may
be used for the parking of motor vehicles and (b) Tenant and Landlord shall
execute an amendment to the Lease acknowledging Tenant's leasing of the
Second Expansion Parking Area on the terms and conditions of the Lease,
except as follows:
(a) the monthly Base Rent for the Second Expansion Parking Space
shall equal the sum of (1) the product of the number of square feet in
the Second Expansion Parking Space and $.235 divided by 12 and (2) the
amount of the monthly installment of principal and interest that would
be payable on a hypothetical loan whose principal balance equaled all
hard and soft costs incurred by Landlord in paving the Second Expansion
Parking Space (including, without limitation, geotechnical studies,
survey costs, and consultant costs), whose interest rate is 12%, and
which is payable in equal monthly installments for purposes of making
such calculation, the number monthly installments of the hypothetical
loan shall equal the number of full calendar months remaining in the
Term after the Second Expansion Parking Space Commencement Date (as
hereinafter defined). Tenant's obligation to commence paying monthly
Base Rent on such Second Expansion Parking Space shall commence upon
substantial completion of Landlord's paving of the Second Expansion
Parking Space (the "Second Expansion Parking Space Commencement Date").
(b) After completion of the paving to the Second Expansion
Parking Space, Landlord shall maintain the Second Expansion Parking
Space in good condition; however Landlord shall have no obligation to
make any repairs with respect to the Second Expansion Parking Space
unless and until Tenant has delivered to Landlord notice of the need
therefor.
(c) Tenant shall pay all Taxes, utility costs, insurance costs,
and maintenance costs regarding the Second Expansion Parking Space;
accordingly, Tenant's proportionate share for purposes of calculating
Tenant's obligations under Paragraph 2.C under the Lease as to the
Second Expansion Parking Space shall be 100%.
A-1
(d) Tenant shall defend, indemnify, and hold Landlord harmless
from and against all liabilities, claims, and expenses (including,
without limitation, reasonable attorney's fees and expenses), except for
those arising from Landlord's negligence or wilful misconduct.
(e) Tenant may not construct any alteration or place any signs on
the Second Expansion Parking Space without Landlord's prior written
consent, which consent shall not be unreasonably withheld; provided,
however, Tenant may install signage on the portion of the Second
Expansion Parking Space then being leased by Tenant to the extent such
signage is reasonably necessary to identify Tenant's use of such Second
Expansion Parking Space and provided such signage is approved by
Landlord and complies with all applicable laws, ordinances and
restrictions affecting the Second Expansion Parking Space.
(f) The Second Expansion Parking Space shall only be used for the
parking of motor vehicles by Tenant, Tenant's employees, customers and
visitors. In no event will any boat, camper, trailer, truck larger than
a one-ton pickup or any other vehicle be parked or stored on the Second
Expansion Parking Spaces. The Second Expansion Parking Space shall not
be used for the repair or restoration of any motor vehicle, boat,
camper, trailer or other vehicle, except for emergency repairs, and then
only to the extent necessary to enable its movement to a proper repair
facility. Tenant's use of the Second Expansion Parking Space shall
comply at all times with all deed restrictions, zoning ordinances and
other laws applicable to Tenant's use of the Second Expansion Parking
Space.
(g) The term for the Second Expansion Parking Space shall be
coterminous with the Term.
(h) Tenant may not assign its right to use the Second Expansion
Parking Space or assign its rights under this Exhibit, other than in
connection with an assignment of the entire Lease.
2. The Second Expansion Parking Option of Tenant as provided for
herein can be exercised only if, at the time of such exercise of the Second
Expansion Parking Option, Tenant is not in default under the Lease beyond any
applicable grace period. In the event that such condition is not satisfied
and is not waived by Landlord in its sole and absolute discretion, Tenant's
Second Expansion Option shall be terminated and of no further force and
effect. Tenant's Second Expansion Option shall terminate if (a) the Lease or
Tenant's right to possession of the Premises is terminated, or (b) Tenant
fails to timely exercise its Second Expansion Parking Option under this
EXHIBIT A, time being of the essence with respect to Tenant's exercise
thereof. Tenant shall not have the right to assign its Second Expansion
Parking Option to any sublessee of the Premises, nor may any such sublessee
exercise such Second Expansion Parking Option.
3. Tenant may exercise its Second Expansion Parking Option on one or
more occasions, provided that any Second Expansion Parking Election Notice
must be delivered to Landlord on or before September 1, 2000. Each exercise
of Tenant's Second Expansion Parking Option shall be
A-2
treated independently of any previous exercise by Tenant of the Second
Expansion Parking Option for all purposes hereunder, including, without
limitation, the determination of the monthly Base Rent and the Second
Expansion Parking Space Commencement Date attributable to the portion of the
Second Expansion Parking Area identified in the applicable Second Expansion
Parking Election Notice.
4. Notwithstanding anything else contained herein to the contrary, at any
time prior to September 1, 2000, if Landlord desires to accept an offer (a
"Third Party Offer"), to sell to any third party all or any portion of the
real property upon which the Second Expansion Parking Area is located,
Landlord shall give Tenant written notice thereof (the "Offer Notice"), and
Tenant shall have ten (10) days from the date of receipt of the Offer
Notice to either (i) elect to exercise its Second Expansion Parking Option
by delivering written notice thereof to Landlord prior to the expiration of
such ten (10) day period, or (ii) notify Landlord that it does not desire to
exercise its Second Expansion Parking Option, in which case Tenant's Second
Expansion Parking Option shall be deemed to be terminated and of no further
force and effect. In the event Tenant fails to respond within said ten (10)
day period, Tenant shall be deemed to have elected not to exercise its Second
Expansion Parking Option, in which case Tenant's Second Expansion Parking
Option shall be deemed to be terminated and of no further force and effect.
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EXHIBIT A-1
DESCRIPTION OF SECOND EXPANSION PARKING AREA
A-1-1
EXHIBIT A-1
Second Expansion Parking Area
SOFTWARE SPECTRUM, INC.
2140 Merritt Drive
Garland, Texas 75041
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