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EXHIBIT 10.13
SECOND AMENDMENT TO OFFICE LEASE
THIS SECOND AMENDMENT TO OFFICE LEASE (hereinafter referred to as this
"Second Amendment") is entered into this 24th day of July, 1998, by and between
BSDAL I LIMITED PARTNERSHIP, a Georgia limited partnership (hereinafter referred
to as "Landlord"), and MARKETING SPECIALISTS SALES COMPANY, a Texas corporation
(hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into that certain Office Lease,
dated April 27, 1998 (hereinafter referred to as the "Office Lease"), as amended
by that certain First Amendment to Office Lease, dated June 26, 1998
(hereinafter referred to as the "First Amendment"; the Office Lease and First
Amendment are hereinafter referred to collectively as the "Lease"), pursuant to
which Tenant leased certain premises containing 47,345 square feet of Rentable
Area known as Suite 200 on the 1st and 2nd floors of the building presently
known as "17855 Briargrove Place" situated at the northwest corner of Briargrove
Lane and the North Dallas Tollway, Dallas, Texas (hereinafter referred to as the
"Building"), which premises are more particularly described in the Lease
(hereinafter referred to as the "Original Premises"); and
WHEREAS, the parties desire to amend the Lease to expand the Leased
Premises pursuant to Special Stipulation No. 3 of the Lease and to provide for
such other related matters as are hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree to amend the Lease as follows:
1. Defined Terms. Capitalized terms used herein, unless otherwise
defined herein, shall have the same meanings as given such terms in the Lease.
2. Leased Premises Expansion. Effective on the Commencement Date, the
Leased Premises shall be deemed expanded to include that certain additional
space, comprising 8,924 square feet of Rentable Area and 7,760 square feet of
Usable Area (determined in accordance with Paragraph 1.1(b) of the Lease),
located on the third (3rd) floor of the Building and being more particularly
shown on Exhibit A-2, attached hereto and incorporated herein by this reference
(hereinafter referred to as the "Second Amendment Expansion Area"). On and after
the Commencement Date, the total Leased Premises shall comprise 56,269 square
feet of Rentable Area and 50,224 square feet of Usable Area (determined in
accordance with Paragraph 1.1(b) of the Lease)
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and shall include both the Original Premises and the Second Amendment Expansion
Area. The Second Amendment Expansion Area shall be leased by Tenant subject to
and in accordance with all of the terms and conditions of the Lease, as modified
hereby, but subject to the provisions of subparagraphs d.(ii) and (iii) of
Special Stipulation No. 3 of Exhibit E to the Lease.
3. Base Rent. From and after the Commencement Date, Base Rent for the
entire Leased Premises during the Term shall be ONE HUNDRED THREE THOUSAND ONE
HUNDRED FIFTY-NINE and 83/100 DOLLARS ($103,159.83) per month, ONE MILLION TWO
HUNDRED THIRTY-SEVEN THOUSAND NINE HUNDRED EIGHTEEN and NO/00 DOLLARS
($1,237,918.00) per year, payable in accordance with Paragraph 2.2 of the Lease.
4. Rental Adjustment. Tenant's Share, as defined in the Lease Summary,
shall be amended to provide that Tenant's Share from and after the Commencement
Date shall be FORTY-FIVE and 25/100ths percent (45.25%).
5. Landlord's Allowance. Landlord's Allowance for Tenant Improvement
Costs shall be amended to provide that the total amount of such Landlord's
Allowance shall not exceed ONE MILLION ONE HUNDRED TWENTY-FIVE THOUSAND THREE
HUNDRED EIGHTY and NO/100 DOLLARS ($1,125,380.00).
6. Letter of Credit. Special Stipulation No. 9 of Exhibit E to the
Office Lease, as amended by the First Amendment, is hereby amended by deleting
from the 5th and 6th lines of subparagraph a. thereof the words, numbers and
symbols "ONE MILLION TWO HUNDRED ONE THOUSAND ONE HUNDRED FOURTEEN and NO/100
DOLLARS ($1,201,114.00)" and by inserting, in lieu thereof, the words, numbers
and symbols "ONE MILLION FOUR HUNDRED TWENTY-SEVEN THOUSAND FIVE HUNDRED
FORTY-FOUR AND NO/100 DOLLARS ($1,427,544.00)."
Special Stipulation No. 9 of Exhibit E to the Office Lease, as amended
by the First Amendment, is hereby further amended by deleting from the 4th and
19th lines of subparagraph i. thereof the numbers and symbols "$1,201,114.00",
and by inserting, in lieu thereof, the numbers and symbols "$1,427,544.00."
Special Stipulation No. 9 of Exhibit E to the Office Lease, as amended
by the First Amendment, is hereby further amended by deleting from the 8th line
of subparagraph i. thereof the numbers and symbols "$25,520.12," and by
inserting, in lieu thereof, the numbers and symbols "$30,080.43."
The Lease is hereby further amended by deleting Exhibit E-3 thereto and
by inserting in replacement thereof the amortization schedule attached as
Exhibit E-3 hereto, and incorporated herein by this reference.
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7. Delivery of Original Premises. Landlord and Tenant hereby
acknowledge the continuing effectiveness of the provisions of subparagraphs
d.(ii) and (iii) of Special Stipulation No.
3 of Exhibit E to the Lease.
8. Parking Rights. In addition to Tenant's parking rights set forth in
Additional Provision No. 6 of Exhibit E to the Office Lease, Landlord shall
provide to Tenant during the term of the Lease four (4) reserved, contiguous
parking spaces for Tenant's use located in the parking area for the Building as
shown on Exhibit C-2 hereto. Such spaces shall be designated with appropriate
signage (designed, fabricated, erected and maintained at Tenant's expense)
consistent with Landlord's signage for the Building as "Reserved for the
Exclusive Use of [Name of Tenant]." Landlord shall not have any obligation to
enforce the reservation of such reserved parking spaces. The reserved parking
areas shall be taken from, and not in addition to, the unreserved parking spaces
otherwise required to be provided by Landlord to Tenant pursuant to Additional
Provision No. 6 of the Office Lease. In the event Tenant is in default with
respect to any of its rental obligations under the Lease (which default remains
uncured after the expiration of all applicable notice and cure periods expressly
provided with respect to such default under this Lease), Landlord may revoke
Tenants' rights to any or all such reserved or unreserved parking spaces
provided pursuant to Additional Provision No. 6 of the Office Lease. Said
parking spaces and Tenants' rights thereto, shall not be assignable or
transferrable by Tenant, other than in connection with a permitted assignment of
this Lease.
9. Stove and Exhaust Chase. Notwithstanding the provisions of Paragraph
28 of Exhibit C to the Lease, Tenant shall be permitted to xxxx in space located
within the Leased Premises subject to Tenant's compliance, at Tenant's expense,
with (i) all applicable laws, ordinances, codes, rules, regulations and other
governmental requirements, (ii) requirements of the Board of Fire Underwriters,
(iii) requirements of Landlord's insurer and (iv) the requirements of this
Lease. Tenant shall be solely responsible for venting all cooking exhaust from
the Leased Premises in order to prevent cooking odors from emanating from the
Leased Premises to other portions of the Building. Landlord agrees that it will
provide, at Tenant's expense, an exhaust chase and venting equipment for
Tenant's cooking and exhaust requirements for the purpose of transporting
Tenant's cooking exhaust to the outside air in accordance with the requirements
of this Lease. Landlord shall provide to Tenant the plans and specifications for
the proposed exhaust chase and venting equipment, and Tenant shall be
responsible for satisfying itself that such chase and venting equipment shall be
sufficient for Tenant's purposes and for purposes of satisfying the requirements
of this Lease. In no event shall Landlord's preparation or approval of such
plans and specifications, or work pursuant thereto, relieve Tenant of its
obligations under this paragraph. If Tenant is not satisfied that such chase and
venting equipment shall be sufficient for Tenant's purposes and for purposes of
satisfying the requirements of this Lease, Tenant may propose modifications to
the chase and venting equipment by written notice to Landlord. Upon receipt of
such notice of modification from Tenant, Landlord shall make such adjustments to
the plans and specifications as may be acceptable to Landlord. After
installation of the chase and venting equipment, Tenant shall be responsible, at
its sole expense, for the cleaning, maintenance and repair thereof.
Notwithstanding the foregoing, if Tenant's cooking or any activities related
thereto (i) cause the Building to be in non-compliance with any laws,
ordinances, codes, rules, regulations and other governmental requirements, or
requirements of the Landlord's insurer or the Board of Fire
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Underwriters, (ii) disturb any other tenant's use or occupancy of its premises
or the common areas of the Building, or (iii) cause an increase in any insurance
premiums or make such insurance unavailable to Landlord, then Tenant shall
immediately cease and desist from such cooking or any activity related thereto
within the Leased Premises until further notice from Landlord. Tenant hereby
acknowledges and agrees that the provisions of Section 11.1 of the Lease apply,
without limitation, to Tenant's cooking in the Leased Premises and any other
activity related thereto.
10. Lease Summary. As a result of the expansion of the Leased Premises
and the adjustment in Base Rental, Tenant's Share and Landlord's Allowance for
the Tenant Improvement Costs, the Lease Summary, as originally attached to the
Lease, as amended by the First Amendment, is hereby deleted and Exhibit B-2
attached hereto is hereby inserted in lieu thereof.
11. Brokerage. This Lease has been negotiated through the agency of,
and Tenant warrants and represents to Landlord that no other broker was involved
with the leasing of the Second Amendment Expansion Area or the negotiation of
this Second Amendment acting on Tenant's behalf or at its direct or indirect
request, or is entitled to any commission, except for, Tenant's Broker (as
identified in the Lease Summary). Landlord shall compensate Tenant's Broker for
its services in connection herewith pursuant to a separate commission agreement
between Landlord and Tenant's Broker. Tenant agrees to indemnify and hold
Landlord harmless against any other claims (including court costs and attorneys'
fees) for commissions by any broker other than Tenant's Broker. Landlord
warrants and represents to Tenant that no broker was involved with the leasing
of the Second Amendment Expansion Area or the negotiation of this Second
Amendment acting on Landlord's behalf or at its direct or indirect request.
Landlord agrees to indemnify and hold Tenant harmless against any other claims
(including court costs and attorneys' fees) for commissions by any broker other
than Tenant's Broker.
12. No Further Amendment; Ratification. Except as expressly amended
herein, all terms and conditions of the Lease remain unamended in full force and
effect and are hereby ratified and confirmed by Landlord and Tenant. In the
event of any conflict between the terms and conditions of the Lease and the
terms and conditions of this Second Amendment, the terms and conditions of this
Second Amendment shall control.
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IN WITNESS WHEREOF, the parties have executed this Second Amendment
with intent to be bound hereby on the date and year first above set forth.
LANDLORD:
BSDAL I LIMITED PARTNERSHIP, a Georgia
limited partnership
By: XXXXX & COMPANY, INC., a Georgia
corporation, its sole general partner
By: /s/ XXXXXXXXX X. XXXXXX
----------------------------
Xxxxxxxxx X. Xxxxxx
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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TENANT:
MARKETING SPECIALISTS SALES
COMPANY, a Texas corporation
By: /s/ M. XXXXX XXXXX
-------------------------
M. Xxxxx Xxxxx
Title: Chief Financial Officer
Date: July 24, 1998
[CONSENT ON FOLLOWING PAGE]
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CONSENT
The undersigned hereby acknowledges and consents to the within and
foregoing Second Amendment to Office Lease.
GUARANTY FEDERAL BANK, F.S.B., a federal
savings bank
By: /s/ XXX XXXXXXXX
---------------------
Name: Xxx Xxxxxxxx
Title: Vice President
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EXHIBIT B-2
LEASE SUMMARY
LEASE DATE: April 27, 1998 (First Amendment, _________, 1998; Second Amendment, _________, 1998)
LANDLORD: BSDAL I LIMITED PARTNERSHIP, a Georgia limited partnership
TENANT: MARKETING SPECIALISTS SALES COMPANY, a Texas corporation
SUITE NUMBER: 200
LEASED PREMISES AND
FLOOR(S): 56,269 square feet of Rentable Area located on the 1st, 2nd and 3rd floors
AREA OF THE LEASED PREMISES: FLOOR(S) USABLE AREA RENTABLE AREA
1st 12,686 14,589
2nd 29,778 32,756
3rd 7,760 8,924
TOTAL 50,224 56,269
====== ======
RENTABLE AREA OF THE BUILDING: 124,358 square feet of Rentable Area
TENANT'S SHARE: 45.25%
LEASE TERM: Five (5) Years
COMMENCEMENT DATE: October 1, 1998
EXPIRATION DATE: September 30, 2003
BASE RENT:
Portion Annual Base Annual Base Monthly Base
of Lease Term Rental/RSF Rental Rental
Months 1-60: $22.00 $1,237,918.00 $103,159.83
X-0
0
XXXX XXXX
[XXXXXXX X, XXXXXXXXX 0]: $150.00/month
SECURITY DEPOSIT: $0
TENANT'S BROKER AND THE STAUBACH COMPANY
ADDRESS FOR Southwest Corporate Services
NOTICES: 0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
TENANT'S ADDRESS FOR Prior to Commencement Date:
NOTICES: MARKETING SPECIALISTS SALES COMPANY
00000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Mr. Xxxx Xxxxx
with a copy to: RICHMONT
00000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq., Associate General Counsel
Commencement Date and thereafter:
MARKETING SPECIALISTS SALES COMPANY
00000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Mr. Xxxx Xxxxx
with a copy to: RICHMONT
00000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq., Associate General Counsel
LANDLORD'S ADDRESS FOR BSDAL I LIMITED PARTNERSHIP
NOTICES: 00 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx Xxxxx
with a copy to: Parker, Hudson, Rainer & Xxxxx XXX
000 Xxxxxxxxx Xxxxxx Xxxxxx
0000 Xxxxxxx Xxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
PARKING SPACES: Four (4) spaces for each 1,000 square feet of Usable Area of the Leased Premises
LANDLORD'S ALLOWANCE: $20.00 per square foot of Rentable Area of Leased Premises, for total Landlord's
[EXHIBIT D] Allowance of $1,125,380.00.
B-2
