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EXHIBIT 10.12
SIXTH AMENDMENT TO LEASE
This Sixth Amendment to Lease ("Amendment") is made and entered into as
of the ______day of February, 1998 by and among NTS/SPRINGS OFFICE, LTD., a
Kentucky limited partnership d/b/a THE SPRINGS (successor in interest to
NTS/Breckinridge, Ltd., a Kentucky limited partnership d/b/a the Springs)
("Lessor"), And KFC NATIONAL PURCHASING COOPERATIVE, INC., a Delaware
corporation d/b/a FoodService Purchasing Cooperative, Inc. ("Lessee").
RECITALS
A. NTS/Breckinridge, Ltd. d/b/a The Springs, as Lessor, and KFC
National Purchasing Cooperative, Inc., as Lessee, entered into a certain Lease
dated April 8, 1988, relating to certain space in The Springs Office Building on
Breckenridge Lane in Louisville, Kentucky, as modified by: (i) Addendum to Lease
dated December 29, 1989, (ii) Second Amendment to Lease dated January 15, 1993,
(iii) Third Amendment to Lease dated April 11,1995, (iv) fourth Amendment to
Lease dated April 11,1995 and (v) Fifth Amendment to Lease dated December 15,
1997 (as amended, the "Lease").
X. Xxxxxx and Lessee desire to enter into this Amendment for the
purpose of amending certain of the terms and conditions of the Lease as
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged the parties agree as
follows:
1. Amendments to Lease. Effective as of March 1, 1999, the Lease is
amended as follows:
1.1 Section 2 of the Lease is amended and restated in its
entirety as follows:
Section 2. GRANT AND THE PREMISES. Lessor does hereby
lease to Lessee and Lessee does hereby lease from
Lessor the following office space (the "Premises") in
the office building (the "Building"), containing
124,771 square feet, forming part of the development
known as "The Springs" (the "Development") and
located at 000 Xxxxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx:
Xxxxx 00 (containing approximately 3, 713 sq. feet)
Suite 240 (containing approximately 6,644 sq. feet)
Suite 270
and 280 (containing approximately 4,530 sq. feet)
Suite 295 (containing approximately 3,287 sq. feet)
Suite 300 (comprising the entire third floor and
Containing approximately 33,300 sq. feet)
Total Square Footage: 51,474 sq. feet
Lessee shall have the right (i) in common with Lessor, other
lessees in the Building, their employees, agents, customers
and invitees to use the common areas of the Building and the
legally subdivided tract of real property on which the
Building is situated, including without limitation, entrances
and exits, halls, corridors, stairwells, elevators, restrooms,
sidewalks, driveways, parking areas, landscaped areas and the
conference room, but only for the purposed intended therefor
(the "Common Areas"), and (ii) in common with the foregoing
and other occupants of the Development, their employees,
agents and invitees, to use the access road from Breckenridge
Lane to the Building. The term "Common Areas" shall also
include a picnic area with a gazebo and any other outdoor
amenities which Lessor in its sole discretion may elect to
provide, all of which are to be installed by Lessor at its
expense and maintained by Lessor.
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1.2 Section 3 of the Lease is amended and restated in its
entirety as follows:
Section 3. The Term. The term of this Lease shall be
extended for a period of six (6) years commencing on March 1,
1999 and ending on February 28, 2005 (the "Term").
1.3 Section 4 of the Lease is amended and restated in its
entirety as follows:
Section 4. Rent. During the Term, Lessee shall pay to
Lessor as rent, the monthly amounts set forth in this Section
4 for the respective periods indicated (the "Rent"). All
payments of the Rent shall be made payable to Lessor and paid
in advance on the first (1st) business day of each and every
month. The Rent and all sums hereinafter designated as
additional rent shall be mailed to Lessor at the office of NTS
Development Company, 00000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, all of which Lessee hereby covenants and
agrees to pay without demand or notice and without any right
of offset, set-off or deduction. In the event Lessee shall
fail to pay any of the Rent or other monies due under this
Lease within ten (10) days after the same become due and
payable, then a service charge of one and one-half percent
(1.5%) per month or any portion of a month for which such
payment of the Rent or additional payment is late shall be
charged as follows:
03/01/1999 - 02/28/2002 Annual rent in the amount of $720,636.00 payable in
monthly installments of $60,053.00.
03/01/2002 - 02/28/2005 Annual rent in the amount of $784,978.50 payable in
monthly installments of $65,414.88.
0.4 Section 4.1 of the Lease is amended and Lessee's
Prorata Share is as follows:
In their Lease, the Prorata Share for Lessee is
41.25%.
0.5 Section 4.2, Paragraphs A and B shall be deleted in
their entirety, and the following paragraph shall be
inserted as subsection 4.2 A:
Section 4.2A. The rent shall be adjusted from time to
time in accordance with this Section to reflect
increases in the expense of operating the Building
("Expenses"). The rent, including the adjustments
made pursuant to this Section, is referred to in this
Lease as the "Rent." If the Operating Expenses in any
period during the Term exceed the Operating Expenses
for Calendar Year 1999, Operating Expenses shall be
adjusted to include Lessee's Prorata Share of such
excess. As soon as practicable after the end of each
calendar year (or portion thereof) during the Term,
Lessor will provide Lessee with a written notice
("Statement") setting forth the amount of any
adjustments to Rent together with a statement of
Operating Expenses for the previous calendar year and
copies of supporting documentation comparable to
information supplied to other tenants in the
Building. Within thirty (30) days following receipt
of the Statement and other required information,
Lessee shall pay Lessor: [i] the adjustment to Rent
for the previous calendar year after credit for any
estimated adjustment to Rent for the months which
Lessee has made pursuant to this Section; and [ii] an
estimated adjustment to Rent for the months which
have lapsed in the current calendar year based on the
previous calendar year's increase in Operating
Expenses and Lessor's good faith projection of the
increase in Operating Expenses during the current
calendar year after credit for any estimated payments
made by Lessee pursuant to this Section. Commencing
with the month following the month in which the
Statement is dated and continuing until such time as
Lessee receives
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Lessor's next Statement, the Monthly Basic Rent
Installments shall be adjusted to include Lessee's
Proportionate Share of any Operating Expenses in
excess of Operating Expenses in calendar year 1999
based on Operating Expenses for the previous calendar
year and Lessor's good faith projection of the
increase in Operating Expenses for the current
calendar year. The adjusted portion of the payments
of Rent shall be credited against the actual
Operating Expenses as shown in Lessor's next
Statement. If the next Statement shows that Lessee
has overpaid and if Lessee is not then in default,
Lessor shall credit such overpayment against the next
accruing payments of Rent until the overpayment is
reduced to zero. The obligation to pay the
adjustments to Rent shall survive any termination of
the Term with respect to the period prior to such
termination. Notwithstanding any other provision
herein to the contrary, it is agreed that in the
event the Building is not fully occupied during any
partial calendar year or any full calendar year, an
adjustment shall be made by Lessor in computing the
Expenses for such year as though the Building had
been 95% occupied during such calendar year and as
though the entire Building had been provided with
building standard services during such calendar year,
and Rent payable by Lessee shall in no event be less
than the Rent specified in Section 4 hereof.
0.6 The last sentence of Section 4.1 of the Lease is
deleted and the following sentence is substituted
therefor:
Notwithstanding the foregoing, in the event a tax
increase is attributable to an increase in the
assessed value resulting from a transfer of the
Building, Lessee's Prorata Share of such taxes shall
not be increased by more than four percent (4%) in
any given year.
0.7 Section 4.2 of the Lease is amended to add the
following sentence at the end of Paragraph C thereof:
Notwithstanding the foregoing, Operating Expenses
shall not include:
(i) interest and principal payments on
mortgages;
(ii) rent under any ground or underlying leases;
(iii) depreciation of the Building and
improvements and financing costs of the
Building and improvements;
(iv) compensation paid to officers and executives
of Lessor above the level of the Building's
property manager;
(v) any cost paid to a Lessor-related
corporation or entity which cost is in
excess of the amount which would typically
be paid by a building owner in an
arms-length transaction;
(vi) managing agents' fees or commissions in
excess of the rates that are customarily
charges for building management for
buildings of like class and character;
(vii) auditing fees;
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(viii) legal and other professional fees and
expenses incurred in preparing, negotiating
and executing leases, amendments,
terminations and extensions or in resolving
any disputes with Lessees and other
occupants or enforcing lease obligations,
including, without limitation, court costs;
(ix) any fines or penalties, including interest
payable by Lessor in connection with its
late payment of any operating costs, taxes
and expenses;
(x) expenses incurred by Lessor in connection
with the transfer or disposition of the
underlying land or the Building or any
ground or underlying lease, including,
without limitation, transfer, deed and
capital gains taxes;
(xi) the cost of any alterations, additions,
changes, replacements, improvements and
repairs and other items, which under
generally accepted accounting principles are
properly classified as capital expenditures;
(xii) payments under equipment leases, the cost of
which would have constituted a capital
expenditure if Lessor had purchased such
equipment;
(xiii) the cost of removing or remediating any
substances or materials which are deemed
hazardous by any law, ordinance or other
governmental regulation or asbestos-
containing materials;
(xiv) the cost of any repair made by Lessor to
remedy damage caused by, or resulting from,
the negligence or willful wrongful act or
willful omission of Lessor, its agents,
contractors or its employees;
(xv) the cost of installing, operating and
maintaining any portion of the Building
operated by Lessor for uses other than
office use and storage including, without
limitation, observatory, broadcasting
facility, luncheon club, theater, rehearsal
hall, art gallery or garage;
(xvi) any cost or expenditure for which Lessor is
reimbursed, whether by lessees pursuant to
such lessees' leases, insurance proceeds,
condemnation proceeds or otherwise,
including any expense for which Lessor would
have been reimbursed had Lessor carried
insurance policies which are required under
this Lease;
(xvii) the cost of any work or service performed
for or made available to any lessee of the
Building (other than Lessee), the scope of
which exceeds the services furnished
generally, without additional expense, to
the lessees and other occupants (including
Lessee) of the Building;
(xviii) the overtime costs of any heating, air
conditioning or electrical current furnished
to other lessees of the Building to the
extent such costs are to be separately
reimbursed by such other lessees;
(xix) costs of lessee alterations or decorations,
including initial lessee improvements;
(xx) advertising, marketing and promotional
expenses and brokerage and leasing
commissions;
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(xxi) costs incurred by Lessor to induce
prospective lessees of the Building which
are payable in connection with space located
in other buildings previously occupied by
such prospective lessees;
(xxii) costs of acquiring or leasing art work;
(xxiii) costs of membership in any political,
professional or social organizations or any
political or charitable contributions; or
(xxiv) costs of significant repairs to the roof,
parking lot and other structural components
of the Building or replacement of or
significant repairs to the existing HVAC
zone line units.
24.1 Section 6 of the Lease is amended and restated in its
entirety as follows:
Section 6. Utilities.
Lessor shall, at Lessor's sole cost and
expense, furnish the following utilities to the
Premises:
(a) hot and cold water for lavatory
purposes and cold water for drinking (at all
times);
(b) air-conditioning, heating and
ventilation (during Lessee's ordinary
business hours; Lessee shall pay for any
requested additional services at the
standard utility rates); and
(c) electricity and lighting (at
all times).
Notwithstanding the foregoing, Lessee shall pay for
the services described in items (b) and (c)
immediately preceding to the extent provided to the
computer room. Lessor shall also provide telephone
service and any requested cable service at Lessee's
sole cost and expense.
3.1 The following sentence is added to the end of Paragraph A
of Section 8 of the Lease:
Lessor shall promptly make all necessary repairs and
or replacements to the HVAC, electrical and plumbing systems,
floors, roofs, load bearing walls and columns, common areas,
parking lot and side walks as it reasonably deems necessary.
In addition, Lessor shall periodically refurbish and/or
replace the exercise equipment in the fitness room.
3.2 Section 31 of the Lease entitled "First Option to
Expand the Premises; First Refusal Right." is deleted in its entirety.
3.3 Section 32 of the Lease entitled "Second Option to Expand
the Premises" is deleted in its entirety.
3.4 Section 33 of the Lease entitled "Renewal Options" is
deleted in its entirety.
2. Refurbishment Allowance. Within ten (10) business days of the date
hereof, Lessor shall pay Lessee, in the form of cash or check, a refurbishment
allowance in the amount of $140,000. Said amount shall be used toward tenant
finish improvements to the Premises and for such other purposes as Lessee may
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elect. On or about January 1, 2002, Lessor shall pay Lessee an
additional refurbishment allowance in the amount of $25,000, which
amount shall be in the form of cash, check or rent credit, at Lessor's
option.
3. Right of First Offer. Lessee shall have a right of first offer to
lease for the remaining Term up to all of the remaining office space located on
the first and second floors of the Building which is currently vacant or leased
to other tenants as and when such space from time to time becomes available (the
"Offer Space"). Lessor shall not, during the Term, lease any portion of the
Offer Space to another tenant or renew an existing lease for any portion of the
Offer Space with another tenant unless obligated to do so under the terms of
such lease, without (a) providing Lessee a written offer to lease such Offer
Space, and (b) the earlier to occur of Lessee providing Lessor a written
rejection of offer to lease such Offer Space or a period of ten (10) business
days elapsing after Lessee's receipt of such offer. The offer leasing notice
shall contain a description of the available Offer Space, the date on which
Lessor anticipates such space to be available and the rental rate applicable to
such space. Contemporaneously with the actual execution date hereof, Lessor
shall provide Lessee a list of the expiration dates and renewal dates for the
existing second floor leases.
4. Effect of Amendment. After the date hereof, each reference to the
Lease shall mean and be deemed to be a reference to the Lease as modified by
this Amendment. Except as expressly modified by this Amendment, the Lease shall
remain in full force and effect in the same form thereof as it existed
immediately prior to the date of this Amendment.
IN WITNESS WHEREOF, this Amendment has been executed by the parties as
of the date set forth above.
Signed and Acknowledged LESSOR:
In the Presence of:
NTS/SPRINGS OFFICE, LTD., dba THE SPRINGS
By: NTS Capital Corporation, General Partner
By:
Xxxxx X. Xxxxx
Title: Executive Vice President
Signed and Acknowledged LESSEE:
In the Presence of:
KFC NATIONAL PURCHASING COOPERATIVE, INC., a
Delaware corporation d/b/a FoodService
Purchasing Cooperative, Inc.
By:
Name:
Title:
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SEVENTH AMENDMENT TO LEASE
This Seventh Amendment to Lease ("Amendment") is made and
entered into as of the 2nd day of November, 1998 by and among
NTS/SPRINGS OFFICE, LTD., a Kentucky limited partnership d/b/a THE
SPRINGS (successor in interest to NTS/Breckenridge, Ltd., a Kentucky
limited partnership d/b/a the Springs) ("Lessor"), And KFC NATIONAL
PURCHASING COOPERATIVE, INC., a Delaware corporation d/b/a FoodService
Purchasing Cooperative, Inc. ("Lessee").
RECITALS
D. NTS/Breckenridge, Ltd. d/b/a The Springs, as Lessor, and
KFC National Purchasing Cooperative, Inc., as Lessee, entered into a
certain Lease dated April 8, 1988, relating to certain space in The
Springs Office Building on Breckenridge Lane in Louisville, Kentucky,
as modified by: (i) Addendum to Lease dated December 29, 1989, (ii)
Second Amendment to Lease dated January 15, 1993, (iii) Third Amendment
to Lease dated April 11,1995, (iv) Fourth Amendment to Lease dated
April 11,1995, (v) Fifth Amendment to Lease dated December 15, 1997 and
(vi) Sixth Amendment to Lease dated February 9, 1998 (as amended, the
"Lease").
E. Pursuant to a certain sublease dated January 15, 1993,
between Xxxxxx Xxxxx, Inc., as Sublessor and lessee, as Sublesse,
Lessee subleased Suite 295 from Xxxxxxxx Xxxxx, Inc. Said sublease
expired on September 13, 1996.
X. Xxxxxx and Lessee desire to enter into this Amendment for
the purpose of amending certain of the terms and conditions of the
Lease as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Amendments to Lease. For the period from September 14,
1996 through December 14, 1997, the Lease is hereby
amended as follows:
1.1 Section 2 of the Lease is amended and restated in
its entirety as follows:
Section 2. GRANT AND THE PREMISES. Lessor does hereby
lease to Lessee and Lessee does hereby lease from
Lessor the following office space (the "Premises") in
the office building (the "Building"), containing
124,771 square feet, forming part of the development
known as "The Springs" (the "Development") and located
at 000 Xxxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx:
Suite 240 (containing approximately 6,644 sq. feet)
Suite 270
and 280 (containing approximately 4,530 sq. feet)
Suite 295 (containing approximately 3,287 sq. feet)
Suite 300 (comprising the entire third floor and
containing approximately 33,300 sq. feet)
Total Square Footage: 47,761 sq. feet
Lessee shall have the right (i) in common with Lessor, other
lessees in the Building, their employees, agents, customers
and invitees to use the common areas of the Building and the
legally subdivided tract of real property on which the
Building is situated, including without limitation, entrances
and
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exits, halls, corridors, stairwells, elevators, restrooms,
sidewalks, driveways, parking areas, landscaped areas and the
conference room, but only for the purposed intended therefor
(the "Common Areas"), and (ii) in common with the foregoing
and other occupants of the Development, their employees,
agents and invitees, to use the access road from Breckenridge
Lane to the Building. The term "Common Areas" shall also
include a picnic area with a gazebo and any other outdoor
amenities which Lessor in its sole discretion may elect to
provide, all of which are to be installed by Lessor at its
expense and maintained by Lessor.
1.2 Section 4 of the Lease is amended and restated in its
entirety as follows:
Section 4. Rent. During the Term, Lessee shall pay to
Lessor as rent, the monthly amounts set forth in this Section
4 for the respective periods indicated (the "Rent"). All
payments of the Rent shall be made payable to Lessor and paid
in advance on the first (1st) business day of each and every
month. The Rent and all sums hereinafter designated as
additional rent shall be mailed to Lessor at the office of NTS
Development Company, 00000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, all of which Lessee hereby covenants and
agrees to pay without demand or notice and without any right
of offset, set-off or deduction. In the event Lessee shall
fail to pay any of the Rent or other monies due under this
Lease within ten (10) days after the same become due and
payable, then a service charge of one and one-half percent
(1.5%) per month or any portion of a month for which such
payment of the Rent or additional payment is late shall be
charged as follows:
09/14/1996 - 12/14/1997: Annual rent in the amount of $782,166.96 payable in
monthly installments of $65,180.58.
0.3 Section 4.1 of the Lease is amended and Lessee's
Prorata Share is as follows:
In their Lease, the Prorata Share for Lessee is
41.25%.
For the period from December 15, 1997 through February 28, 1999,
the Lease is hereby amended as follows:
1.4 Section 2 of the Lease is amended and restated in its
entirety as follows:
Section 2. GRANT AND THE PREMISES. Lessor does hereby
lease to Lessee and Lessee does hereby lease from
Lessor the following office space (the "Premises") in
the office building (the "Building"), containing
124,771 square feet, forming part of the development
known as "The Springs" (the "Development") and
located at 000 Xxxxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx:
Xxxxx 00 (containing approximately 3, 713 sq. feet)
Suite 240 (containing approximately 6,644 sq. feet)
Suite 270
and 280 (containing approximately 4,530 sq. feet)
Suite 295 (containing approximately 3,287 sq. feet)
Suite 300 (comprising the entire third floor and
containing approximately 33,300 sq. feet)
Total Square Footage: 51,474 sq. feet
Lessee shall have the right (i) in common with Lessor, other
lessees in the Building, their employees, agents, customers
and invitees to use the common areas of the Building and the
legally subdivided tract of real property on which the
Building is situated, including without limitation, entrances
and exits, halls, corridors, stairwells, elevators, restrooms,
sidewalks, driveways, parking areas,
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landscaped areas and the conference room, but only for the
purposed intended therefor (the "Common Areas"), and (ii) in
common with the foregoing and other occupants of the
Development, their employees, agents and invitees, to use the
access road from Breckenridge Lane to the Building. The term
"Common Areas" shall also include a picnic area with a gazebo
and any other outdoor amenities which Lessor in its sole
discretion may elect to provide, all of which are to be
installed by Lessor at its expense and maintained by Lessor.
1.5 Section 4 of the Lease is amended and restated in its
entirety as follows:
Section 4. Rent. During the Term, Lessee shall pay to
Lessor as rent, the monthly amounts set forth in this Section
4 for the respective periods indicated (the "Rent"). All
payments of the Rent shall be made payable to Lessor and paid
in advance on the first (1st) business day of each and every
month. The Rent and all sums hereinafter designated as
additional rent shall be mailed to Lessor at the office of NTS
Development Company, 00000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, all of which Lessee hereby covenants and
agrees to pay without demand or notice and without any right
of offset, set-off or deduction. In the event Lessee shall
fail to pay any of the Rent or other monies due under this
Lease within ten (10) days after the same become due and
payable, then a service charge of one and one-half percent
(1.5%) per month or any portion of a month for which such
payment of the Rent or additional payment is late shall be
charged as follows:
12/15/1997 - 2/28/1999: Annual rent in the amount of $841,573.80 payable in
monthly installments of$70,131.15.
1.6 Section 4.1 of the Lease is amended and Lessee's
Prorata Share is as follows:
In their Lease, the Prorata Share for Lessee is
41.25%.
2. Effect of Amendment. After the date hereof, each reference to
the Lease shall mean and be deemed to be a reference to the Lease as modified by
this Amendment. Except as expressly modified by this Amendment, the Lease shall
remain in full force and effect in the same form thereof as it existed
immediately prior to the date of this Amendment.
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IN WITNESS WHEREOF, this Amendment has been executed by the parties as
of the date set forth above.
Signed and Acknowledged LESSOR:
In the Presence of:
NTS/SPRINGS OFFICE, LTD., dba THE SPRINGS
By: NTS Capital Corporation, General
Partner
By:
Xxxxx X. Xxxxx
Title: Executive Vice President
Signed and Acknowledged LESSEE:
In the Presence of:
KFC NATIONAL PURCHASING COOPERATIVE,
INC., a Delaware corporation d/b/a
FoodService Purchasing Cooperative, Inc.
By:
Name:
Title: