FIRST AMENDMENT TO LEASE AGREEMENT
This FIRST AMENDMENT TO LEASE AGREEMENT ("Amendment") is entered into as
of the 9th day of October, 2000 by and between ProLogis North American
Properties Fund I LLC, a Delaware Limited Liability Company (the "Landlord") and
1-800-CONTACTS (the "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into a Lease, dated as of the
13th day of October, 1998, pursuant to which Landlord Leased in Tenant certain
premises located at 0000 Xxxxx 0000 Xxxx, Xxxx 000 (such Lease, as heretofore
and hereafter modified, being herein referred to as the "Lease").
WHEREAS, Landlord and Tenant desire to extend the Lease on the terms and
conditions set forth below:
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Landlord and Tenant agree as follows:
1. The current premises (the "Premises"), consisting of 34,850 square
feet, will be increased by approximately 31,000 square feet (the
"Expansion Premises") more commonly known as 0000 Xxxxx 0000 Xxxx,
Xxxx 000, Xxxx Xxxx Xxxx, Xxxx. Total square footage of the Premises
and Expansion Premises (the "Total Premises") will equal 65,850
square feet. The Expansion Premises are depicted on Exhibit "A"
attached hereto.
2. The term for the Expansion Premises will commence on November 1,
2000 and expire on December 31, 2002, and the term for the Existing
Premises will be extended with an expiration date of December 31,
2002.
3. The Base Rent for the Expansion Premises will be $9,765.00 per month
added in the existing rent of $11,674.75 per month due and payable
on the 1st day of each calendar month.
4. The Estimated Basic Operating Costs per month of the Expansion
Premises, to be added to the existing monthly Estimated Operating
Costs of $2,556.61, areas follows:
Property Taxes: $ 328.60
CAM $1,472.50
Insurance $ 102.30
Other $ 372.00
---------
$2,275.40
5 Landlord agrees to furnish or perform at Landlord's sole cost and
expense those improvements to the Premises (the "Tenant
Improvements") specified below and Landlord shall be under no
further obligation to perform any other improvements to the Premises
or the Expansion Premises.
Landlord, at Landlord's expense, shall penetrate a 16'0" X
16'0" opening in wall connecting the spaces, and construct an
additional 8'0" X 8'0" opening as a walkway between the
spaces. Landlord shall also construct approximately 1,000 s.f.
of office space. Landlord further warrants that all mechanical
portions of the Expansion Premises are to be delivered in good
operating condition. Lighting specifications of the Expansion
Premises are as follows: 15' 30" above finished door.
6. One Renewal Option:
(a) Provided that as of the time of the giving of the Extension Notice and
the Commencement Date of the Extension Term, (x) Tenant is the Tenant
originally named herein or a Tenant affiliate or successor by merger
consolidation or transfer of assets as set forth in Paragraph 17 of the
Lease, (y) Tenant actually occupies all of the Premises initially demised
under this Lease and any space added to the Premises, and (z) no Event of
Default exists or would exist but for the passage of time or the giving of
notice, or both; then Tenant shall have the right to extend the Lease Term
for an additional Term of 2 years (such additional term is hereinafter
called the "Extension Term") commencing on the day following the
expiration of the Lease term (hereinafter referred to as the "Commencement
Date of the Extension Term"). Tenant shall give Landlord notice
(hereinafter called the "Extension Notice") of its election to extend the
term of the Lease Term at least 7 months, but not more than 12 months
prior to the scheduled expiration date of the Lease Term.
(b) The Base Rent payable by Tenant to Landlord during the Extension Term
shall be the greater of (i) the Base Rent of $21,439.75 and (ii) the then
prevailing market rate for comparable space in the Project and comparable
buildings in the vicinity of the Project, taking into account the size of
the Lease, the length of the renewal term, market escalations and the
credit of Tenant. The Base Rent shall not be reduced by reason of any
costs or expenses saved by Landlord by reason of Landlord's not having to
find a new tenant for such premises (including, without limitation,
brokerage commissions, costs of improvements, rent concessions or lost
rental income during any vacancy period). In the event Landlord and Tenant
fail to reach an agreement on such rental rate and execute the Amendment
(defined below) at least 5 months prior to the expiration of the Lease,
then Tenant's exercise of the renewal option shall be deemed withdrawn and
Lease shall terminate on its original expiration date.
(c) The determination of Base Rent does not reduce the Tenant's obligation
to pay or reimburse Landlord for operating expenses and other reimbursable
items as set forth in the Lease, and Tenant shall reimburse and pay
Landlord as set forth in the Lease with respect to such operating expenses
and other items with respect to the Premises during the Extension Term
without regard to any cap on such expenses set forth in the Lease.
(d) Except for the Base Rent as determined above, Tenant's occupancy of
the Premises during the Extension Term shall be on the same terms and
conditions as are in effect immediately prior to the expiration of the
initial Lease Term; provided, however, Tenant shall have no further right
to any allowances, credits or abatements or any options to expand,
contract, renew or extend the Lease.
(e) If Tenant does not give the Extension Notice within the period set
forth in paragraph (a) above, Tenant's right to extend the Lease Term
shall automatically terminate. Time is of the essence as to the giving of
the Extension Notice.
(f) Landlord shall have no obligation to refurbish or otherwise improve
the Premises for the Extension Terms. The Premises shall be tendered on
the Commencement Date of the Extension in "as-is" condition, except as
necessary, the re-carpeting of office in the original 34,850 s.f.
Premises.
(g) If the Lease is extended for the Extension Term, then Landlord shall
prepare and Tenant shall execute an amendment to the Lease confirming the
extension of the Lease Term and the other provisions applicable thereto
(the "Amendment").
(h) If Tenant exercises its right to extend the terms of the Lease for the
Extension Term pursuant to this Addendum, the term "Lease Term" as used in
the Lease, shall be construed to include, when practicable, the Extension
Term, as applicable, except as provided in (d) above.
7. Right of First Offer.
(a) "Offered Space" shall mean the adjacent 17,850 sf which is located to
the north of the initial Premises, 0000 Xxxxx 0000 Xxxx, Xxxx 000, in the
Crossroads Xxxxxxxxx Xxxxxx #0, Xxxx Xxxx Xxxx, Xxxx.
(b) Provided that as of the date of the giving of Landlord's Notice, (x)
Tenant in the Tenant originally named herein, (y) Tenant actually occupies
all of the Premises originally demised under this Lease and any premises
added to the Premises, and (z) no Event of Default or event which but for
the passage of time in the giving of notice, or both, would constitute and
Event of Default has occurred and is continuing, if at any time during the
Lease Term any lease for any portion of the offered space shall expire,
then Landlord, before offering such Offered Space to anyone, other than
the tenant them occupying such space (or it affiliates), shall offer to
Tenant the right to include the Offered Space with the Premises on the
same terms and conditions upon which Landlord intends to offer the Offered
Space for lease.
(c) Such offer shall be made by Landlord to Tenant in a written notice
(hereinafter called the "First Offer Notice") which shall designate the
space being offered and shall specify the terms which Landlord intends to
offer with respect to any such Offered Space. Tenant may accept the offer
set forth in the First Offer Notice by delivering to Landlord an
unconditional acceptance (hereinafter called "Tenant's Notice") of such
offer within five (5) business days after delivery by Landlord of the
First Offer Notice to Tenant. Time shall be of the essence with respect to
giving of Tenant's Notice. If Tenant does not accept (or fails to timely
accept) an offer made by Landlord pursuant to the provisions of this
Addendum with respect to the Offered Space designated in the First Offer
Notice, Landlord shall be under no further obligation with respect to such
space by reason of this Addendum.
(d) Tenant must accept all Offered Space offered by Landlord at any one
time if it desires to accept any of such Offered Space and may not
exercise it right with respect to only part of such space. In addition, if
Landlord desires to lease more than just the Offered Space to one tenant.
Landlord may offer to Tenant pursuant to the terms hereof all such space
which Landlord desires to lease, and Tenant must exercise it rights
hereunder with respect to all such space and may not insist on receiving
an offer for just the Offered Space.
(e) If Tenant at any time declines any Offered Space offered by Landlord,
Tenant shall be deemed to have irrevocably waived all further rights under
this Addendum, and landlord shall be free to lease the Offered Space to
third parties including on terms which may be less favorable to Landlord
than those offered to Tenant.
8. Any obligation or liability whatsoever of ProLogis North American
Properties Fund I LLC, a Delaware Limited Liability Company, which
may arise at any time under the Lease or this Amendment or any
obligation or liability which may be incurred by it pursuant to any
other instrument, transaction or undertaking contemplated hereby,
shall not be personally binding upon, nor shall resort for the
enforcement thereof be had to the property of its trustees,
directors, shareholders, officers, employees, or agents regardless
of whether such obligation or liability is in the nature of
contract, tort or otherwise.
9. Insofar as the specific terms and provisions of this Amendment
purport to amend or modify or are in conflict with the specific
terms, provisions and exhibits of the Lease, the terms and
provisions of this Amendment shall govern and control.
10. Landlord and Tenant hereby agree that (a) this Amendment is
incorporated into and made a part of the Lease, (b) any and all
references to the Lease hereinafter shall include this Amendment,
and (c) the
Lease and all terms, conditions, provisions and exhibits of the
Lease are in full force and effect as of the date hereof, except as
expressly modified and amended hereinabove.
11. Tenant warrants that it has had no dealings with any broker or agent
in connection with this Amendment other than Xxxxx & Xxxxx, and
covenants to pay, hold harmless and indemnify Landlord from and
against any and all costs, expenses of liability for any
compensation, commissions, and charges claimed by any other broker
or agent, with respect to this Amendment or the negotiation thereof
with whom Tenant had dealings.
IN WITNESS WHEREOF, the parties hereto have signed this First Amendment to
Lease Agreement as of the day and year first above written.
1-800-CONTACTS PROLOGIS NORTH AMERICAN PROPERTIES
FUND I LLC, a Delaware Limited Liability
Company by
ProLogis Management Incorporated, Manager
By: /s/ Xxxx Xxxxxxx By: /s/ Xxx X. Xxxxxxxx
--------------------------- --------------------------
Name: Xxxx Xxxxxxx Name: Xxx X. Xxxxxxxx
------------------------ -------------------------
Title: Director of Distribution Title: Managing Director
------------------------ -----------------------------
(Tenant) (Landlord)
[ProLogis LOGO]
December 12, 2000
Xx. Xxxx Xxxxxxx
1800 CONTACTS
0000 Xxxxx 0000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
RE: 0000 Xxxxx 0000 Xxxx, Xxxxx 000
Dear Kale:
Welcome to our Crossroads Corporate Xxxxxx #0, Xxxxx 000 xx Xxxx Xxxx
Xxxx, Xxxx. We would like to clarify some of the terms of your lease agreement
with ProLogis North American Properties Fund I LLC.
Lease Commencement Date: December 10, 2000
Lease Expiration Date: December 31, 2002
December, 00
------------
Proration
---------
Base Rental per month: $9,765.00 $6,930.00
Monthly Estimated Operating Expenses $2,275.40 $1,614.80
TOTALS $12,040.40 $8,544.80
Please forward payment of $8,544.80 as soon as possible for the month of
December, 2000 to my attention at our local office. Coupons for 2001 with new
estimated monthly charges will be forthcoming under separate cover.
Rental payments are due by the 1st of each month. Please make every effort
to ensure timely payment in order to avoid possible late fees.
We are pleased to welcome you again as a customer in your new space at
Crossroads Corporate Center #1 and look forward to continuing to work with you.
Please indicate your agreement with the above changes to your lease by signing
and returning the enclosed copy of this letter to me. If I can be of service,
please do not hesitate to contact me.
Sincerely,
/s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
Property Manager
Accepted by: /s/ Xxxx Xxxxxxx 12/20/00
---------------------------
Xxxx X. Xxxxxxx DATE
1 800 CONTACTS
