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Exhibit 10.29
SMITHWAY ASSOCIATES, INC.
0000 XXXXXXXX XXXXXX
XXXXXXXX, XX 00000
August 4, 1995
Xxxxxx'x Grand Ice Cream, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Gentlemen:
The purpose of this letter is to amend, effective as of August 1, 1995,
the Commerce Lease (as herein after defined) between Smithway Associates, Inc.
("Smithway") and Xxxxxx'x Grand Ice Cream, Inc. ("Dreyer's"). Xxxx and Xxxxxx
Xxxxxxx, predecessor of Smithway, and Dreyer's previously entered into that
certain Agree ment and Lease dated July 1, 1982, as amended, with respect to cer
tain improved real and personal property located at 0000 X. Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx (the "Smithway Property") (the "Original Lease"). By that
certain Assignment of Lease dated March 31, 1989, Xxxxxx, Xxxxxxx Co. ("Xxxxxx")
assigned and trans ferred, and Dreyer's assumed, all the provisions of that
certain Agreement and Lease dated August 1, 1986 between Xxxxxx and Xxxxxx
Xxxxxxx, as Trustee of the Xxxxxx Xxxxxxx Revocable Trust, dba TJ Investments
(the "Xxxxxx Lease"). Dreyer's and Smithway subsequently amended the Xxxxxx
Lease to, among other things, make it coterminous with the Original Lease (the
Xxxxxx Lease, as amended to date, and the Original Lease, as amended to date,
taken together shall be referred to herein as the "Commerce Lease").
In consideration of this amendment letter, and in consideration of the
mutual promises contained herein, the following is hereby agreed upon:
1. Smithway hereby waives any claims it may have against Dreyer's
for rent or common area expenses ("CAM") unbilled under the
Commerce Lease up to and including the date of this amendment
letter and Dreyer's hereby waives any claims it may have
against Smithway for refund of CAM, taxes or insurance under
the Commerce Lease up to and including the date of this
amendment letter.
2. The Commerce Lease is hereby amended as follows:
A. Lease Term:
12 years, commencing August 1, 1995 and terminating
July 31, 2007, subject to Paragraph 2B hereof.
B. Options:
3 options, each option to extend the lease term for 5
additional years.
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C. (i)Rent:
The aggregate amount of $59,000 per month, plus CAM (as
defined in Paragraph 2D hereof), taxes and insurance, for
Dreyer's occupancy of the spaces in the Smithway Property
identified in Exhibit B, attached hereto and made a part
hereof.
(ii)Additional Rent:
Dreyer's shall pay additional rent for August 1995 of $14,153
(plus CAM, taxes and insurance related to, and Dreyer's may
occupy during such month as additional space identified in
Exhibit B attached hereto, the cooler portion of the B Box
space (the "B Cooler") and the freezer portion of the B Box
space (the "B Freezer")).
Dreyer's shall pay additional rent for the B Freezer for
September 1995 of $9,000 (plus CAM, taxes and insurance
related to the B Freezer).
Dreyer's shall pay additional rent for the B Freezer for
October 1995 through December 1996 of $9,000 per month (plus
CAM, taxes and insurance related to the B Freezer) unless the
B Freezer is to be sub-subleased by Smithway to a third party,
at which time (upon not less than thirty (30) days prior
notice from Smithway) Dreyer's will vacate the B Freezer,
sublease the B Freezer to Smithway in accordance with
Paragraph 2H hereof, and the additional rent to be paid by
Dreyer's for the B Freezer thereafter shall be reduced to $1
per month. In any event, Dreyer's will not sublease to
Smithway, and vacate, the B Freezer earlier than September 30,
1995 or later than December 31, 1996. Dreyer's obligation to
pay additional rent of $9,000 per month shall cease on the
earlier to occur of (x) Smithway sub-subleasing the B Freezer
or (y) the payment of $9,000 additional rent for December
1996, provided Dreyer's has vacated the B Freezer, and made
the sublease described in Paragraph 2H hereof available to
Smithway, by the end of such month.
(iii) Payment Date:
Rent and Additional Rent is due on the first day of each
month.
D. CAM:
The CAM to be paid by Dreyer's to Smithway shall be defined as
set out in Exhibit A, attached hereto and made a part hereof,
titled "Southwest Operations Center, CAM Expense Definition."
E. CPI:
Any CPI change shall not exceed 0.75% per year. Rent (as set
out in Paragraph 2C(i) hereof) will be adjusted based upon the
increase in CPI over the base year 1995 on August 1, 2000 and
2005, and, to the extent lease
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extension options are exercised, on August 1 of 2010, 2015,
and 2020, as applicable. The rent of $59,000 shall be used as
the basis for each CPI calculation. A CPI index for the
California area shall be chosen by Dreyer's.
F. Fee:
A fee of $15,000 shall be paid by Dreyer's to Smithway on
January 1, 1996 if both the B Cooler and the B Freezer
portions of the B Box have been rented by Smithway to
third-parties by December 31, 1995. It is understood that
Dreyer's will not vacate the B Freezer earlier than September
30, 1995.
G. Tanks:
Smithway hereby assumes ownership of Dreyer's underground
tanks subject to Smithway (i) receiving from Dreyer's, at
Dreyer's expense, a certification of underground storage tank
closure from the L.A. County Public Works (for the previously
removed tanks) and (ii) obtaining at no cost to Smithway a
permit to own and use the tanks (a "Permit"). Smithway agrees
that any renewal or reissuance of the Permit after initial
issuance shall be at Smithway's expense. Dreyer's will provide
right-of-way to access the tanks/pumps for as long as Dreyer's
or its successor in interest occupies the Smithway Property.
H. Depreciation:
At such time as Dreyer's vacates the B Freezer as described in
Paragraph 2C(ii) hereof, Dreyer's will sublease the B Freezer
to Smithway for $1 per month so that Dreyer's will be able to
legally maintain its current depreciation schedule for the B
Freezer (approximately 5 years); provided however, that the
efficacy of such sublease for depreciation purposes shall not
be a condition to Dreyer's obligations under the Commerce
Lease (or the restated Commerce Lease to be negotiated
pursuant to Paragraph 3 hereof). Smithway agrees that under
such sublease all obligations of Dreyer's under the Commerce
Lease for the B Freezer shall cease except Dreyer's obligation
to pay additional rent to Smithway of $1 per month for
Dreyer's continued lease of the B Freezer for the period of
the depreciation schedule.
I. Surrender of Space:
Dreyer's will surrender, on August 1, 1995, the Sales Office
space to Smithway; provided that Dreyer's will continue to
occupy the small storage room in the Sales Office Space where
its telephone system is currently installed and Dreyer's will
be permitted reasonable access to such storage room for so
long as Dreyer's occupies such storage room under the Commerce
Lease. The B Cooler will be surrendered to Smithway on
September 1,
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1995. Smithway is relying on Dreyer's agreement to surrender
these spaces so a lease can be negotiated and signed with
Malibu Farms for the Sales Office space and the B Cooler.
Smithway agrees that Dreyer's may have reasonable access to
the Sales Office space during the month of August, 1995 so
that Dreyer's may remove certain equipment.
J. Other Space:
Dreyer's will continue to occupy various dry storage space for
the rental rate set out in Paragraph 2C(i) above until such
time as the space is rented to a third-party or Dreyer's
additional rent obligation of $9,000 per month terminates (as
described in Paragraph 2C(ii)above), at which time Dreyer's
will vacate such dry storage space.
3. Smithway and Dreyer's agree that promptly following the
execution of this amendment letter they shall negotiate in
good faith regarding all other necessary and appropriate terms
and conditions to be included in a complete and definitive
restatement of the Commerce Lease containing the terms set out
in this amendment letter.
4. This amendment letter shall be deemed to be a contract
made under the laws of the State of California and for
all purposes shall be governed and construed in
accordance with the laws of such State applicable to
contracts to be made and performed entirely within such
State. If any term or provision of this amendment letter
is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the
remainder of the terms and provisions of this amendment
letter shall in no way be affected, impaired or
invalidated. The language of this amendment letter shall
be construed as a whole and in accordance with the fair
meaning of the language used. The language of this
amendment letter shall not be strictly construed for or
against either of the parties hereto based upon who
drafted or was principally responsible for drafting the
amendment letter or any specific term or condition
hereof. This amendment letter shall be deemed to have
been drafted by each party hereof, and no party may urge
otherwise.
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5. The existing terms and conditions of the Commerce Lease shall
remain in full force and effect except as such terms and
conditions are specifically amended by this amendment letter.
Sincerely,
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, President
SMITHWAY ASSOCIATES, INC.
Agreed and Accepted this 4th day of August, 1995:
XXXXXX'X GRAND ICE CREAM, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Title: Vice President - Finance
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EXHIBIT A
Southwest Operations Center
CAM Expense Definition
I. It is understood and agreed that "common area expenses" ("CAM") as used
herein, shall mean the reasonable costs and expenses incurred by Smithway in
connection with the upkeep, maintenance and repair of the common areas of the
Smithway Property. Dreyer's shall pay the percentage of CAM determined by
dividing: (x) 85,000 square feet of the space occupied by Dreyer's in the
Smithway building (excluding the B Cooler and the B Freezer) by (y) the total
Smithway building square footage (total Smithway building square footage as of
August 1, 1995 is 220,795 square feet). If Smithway, subsequent to August 1,
1995, leases to Dreyer's additional internal space in the Smithway building, the
square footage of such space shall be added to Dreyer's 85,000 square feet for
purposes of determining Dreyer's percentage of CAM applicable after such change;
provided that, if Smithway leases to Dreyer's additional space external to the
Smithway building it shall have no effect on the determination of Dreyer's
percentage of CAM. Smithway agrees that any single expenditure in excess of
$2,500 that will be included in CAM must have prior written approval of
Dreyer's, which approval will not be unreasonably withheld. CAM may include but
is not limited to the following:
- Electricity
- Water & Sewer
- Trash
- Landscaping, Gardening (Both Exterior & Interior)
- Walkway Maintenance
- Parking Lot Maintenance & Repair
- Electrical Repair
- Pest Control, Exterminator
- Dreyer's percentage of CAM determined as set out above
multiplied by 50.0% of one Building Engineer's salary
- Secretarial Services & Record Keeping - Dreyer's shall be
subject to pay for such services only Dreyer's percentage of
CAM determined as set out above multiplied by 50.0% of Xxxxx
Xxxxxx'x salary
- Fire Protection System, Fire Department
- Security
- Exterior Lighting Maintenance & Repair
- Janitorial Services
- Miscellaneous Painting
- Property Taxes
- Insurance
- Miscellaneous Taxes
- Elevator Permits & Maintenance
- Capital Expenditures (Per above single item expenditure
guidelines)
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Exhibit A cont.
It is further understood and agreed that CAM may include the reasonable costs
and expenses incurred by Smithway for a property tax consultant to challenge the
assessed amount of real estate taxes attributable to the Smithway Property.
II. Smithway agrees that any costs and expenses incurred in connection with the
following items, regardless of whether such costs and expenses might otherwise
fall within the definition of CAM set out in part I. of this Exhibit A, may not
be included in CAM to be paid by Dreyer's under the Commerce Lease and that
Dreyer's shall have no obligation to pay any portion of any costs and expenses
related to such items:
- Leasing Commission or Other Commissions
- Property Tax Consultant (Except as noted above)
- Property Management Fees
- Marketing & Promotional Expenses
- Architectural Or General Engineering - Other Consultants
- Legal Fees
- Business Licenses
- Debt Services
- Tenant Improvements by tenants other than Dreyer's
- Health Permits
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EXHIBIT B
Southwest Operations Center
Area Measurements and Space Definition
[Reference] Definition of Space Subject to Rent [Square Feet]
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A1 A Box Freezer 13,801
A2 A Box Ante-Room 640
A3 A Box Truck Loadout 2,340
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Total Refrigerated Space & Cooler 16,781
E Package Prod. 7,781
F Snack & Novelty Prod. 7,621
G Mix Room (Receiving & Storage) 2,580
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Total Production 17,982
H1 Telephone Switching Equipt. Room 300
H2 Offices 18,283
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Total Offices 18,583
I Charger Room 1,305
J Basement 4,219
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Total Other Space (Internal) 5,524
K1 Dry Storage 5,586
K2 Dry Storage 7,350
K3 Dry Storage 6,556
K4 Dry Storage 722
K5 Dry Storage (Aisle) 1,150
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Total Warehouse Area (Dry Storage) 21,364
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Total Square Footage 80,234
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C1 Boiler Room 784
C2 Engine Room 2,080
C3 S/R Box 2,300
C4 Other External Space 28,694
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Total Other Space (External Incl. S/R Box) 39,858
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Total Square Footage Subject To Rent 120,092
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Definition of Space Subject to Additional Rent [Square Feet]
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D1 W/B Cooler (B Cooler) 3,168
D2 W/B Freezer (B Freezer) 6,458
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Total B Cooler & Freezer 9,636
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Total Square Footage Subject To Rent & Additional Rent 129,728
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