EXHIBIT 10.5
FIRST AMENDMENT TO A LEASE AGREEMENT
BETWEEN DOMINOS' FARMS OFFICE PARK, L.L.C.
(LANDLORD) AND DOMINO'S PIZZA, LLC (TENANT)
THIS FIRST AMENDMENT to a Lease Agreement is made August 8th, 2002
and is effective as of the 21st day of December, 2003, by and between DOMINO'S
FARMS OFFICE PARK, L.L.C., a Michigan Limited Liability Company, f/k/a Domino's
Farms Office Park Limited Partnership (Landlord) and DOMINO'S PIZZA, LLC
(Tenant).
WHEREAS, Landlord entered into a Lease Agreement for a portion of the
office building known as Domino's Farms Prairie House located at 30 ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ with Domino's Pizza, Inc., whose
successor in interest is Domino's Pizza, LLC (Tenant) for a term of five (5)
years commencing as of December 21, 1998; and
WHEREAS, Landlord and Tenant desire to extend the term of the Lease,
include additional space as part of the Premises, and incorporate additional
provisions;
NOW, THEREFORE, Landlord and Tenant agree to amend the Lease by
replacing the Standard Lease Summary, Rider A, and Rider C with the attached
Standard Lease Summary, Rider A, Rider C, and Rider D.
IN WITNESS WHEREOF, the parties have hereunto executed this First
Amendment to Lease Agreement as of the day and year first above written.
LANDLORD:
DOMINO'S FARMS OFFICE
PARK, L.L.C.
(a Michigan limited liability company)
/s/ ▇▇▇▇▇ ▇. Pear
---------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Its: Manager
TENANT:
DOMINO'S PIZZA, LLC
(a Michigan limited liability company)
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Its: Executive VP of Finance
--------------------------- Chief Financial Officer
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FIRST AMENDED STANDARD LEASE SUMMARY
THIS FIRST AMENDED STANDARD LEASE SUMMARY is made August 8th, 2002, and
contains amendments to certain basic terms of the Lease dated December 21, 1998,
between Domino's Farms Office Park Limited Partnership and Domino's Pizza, Inc.
The amendments to the Lease shall be effective as of the 21st day of December,
2003, between the following parties:
LANDLORD: TENANT:
Domino's Farms Office Park, LL.▇. ▇▇▇▇▇▇'▇ Pizza, LLC
24 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Drive 30 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇
(f/k/a as Domino's Farms ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Limited Partnership (successor in interest to Domino's
Pizza, Inc.)
The following is intended to summarize certain basic terms of this Lease, and is
not intended to be exhaustive. In the event anything set forth in this Lease
Summary ("Lease Summary") conflicts with the other specific provisions of this
Lease contained in the Standard Lease Terms, the latter shall be deemed to
control. All terms of the Lease no amended by this First Standard Lease Summary
or Riders A, C, and D executed in connection with the First Amended Lease
Agreement shall remain in effect.
A. BUILDING:
The office building commonly known as Domino's Farms Prairie House located
at 30 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
B. PREMISES:
Office Space, Lab Space 188,767 rentable square feet [Tenant
and Conference Center shall have the option to terminate the
Square Footage: Lease with regard to approximately 4,500
rentable square feet or up to 15,000
rentable square feet from the south end
of the third floor of the Premises,
subject to adequate ingress and egress
requirements, and upon such termination
the rent shall be reduced accordingly.
Tenant must notify Landlord by December
31, 2002 if it elects to terminate the
Lease with regard to this space].
▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Approximately 5,000
Footage:
Location: All of the highlighted space as shown on
the attached Rider A.
C. TERM
Commencement Date: December 21, 2003
Expiration Date: Midnight December 20, 2013
Option to Renew: See Rider C
D. RENT See Rider C
E. PERMITTED USES: Office, together with uses ancillary and
accessory thereto
F. SECURITY DEPOSIT: None
G. LANDLORD'S AGENT: Domino's Farms Corporation
H. MAILING ADDRESS: ▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
RIDERS ATTACHED:
Rider A - Floor Plan
Rider B - Rules and Regulations
Rider C - Additional Provisions
Rider D - Cleaning Specifications
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RIDER C
This Rider C is part of the First Amendment to Lease Agreement dated August
8th, 2002, and replaced the Rider C attached to the Lease Agreement dated
December 21, 1998.
PARKING LOT
Landlord agrees to provide for a separate parking lot for Tenant of at
least 450 parking spaces in accordance with the drawing attached. Tenant will be
required to use such lot for its employees, invitees, and guests. Landlord will
not grant permission to use such lot to any other person or entity. The
Landlord, at Landlord's expense, will be responsible for maintaining the parking
lot (including replacing, resurfacing repainting, and repairing, as needed, and
keeping it free from ice, snow, debris, and the like) and will provide entry and
exit gates along with a security guard booth which will be staffed by the
Landlord during normal business hours. Tenant may implement a parking sticker or
permit procedure to identify vehicles that may be parked on the lot, at Tenant's
expense. Any of the proposed changes for the parking lot as set forth in the
attached drawing will be subject to approval by the appropriate local
authorities. The number of handicap parking spaces will be maintained as
required by the township parking code. Tenant may designate certain spaces in
the lot as "reserved" spaces provided that the designation complies with
township parking codes. Any parking signage desired by Tenant, including
reserved parking designations, will be subject to approval by Landlord, and will
be at Tenant's expense.
TERM
The term of this Lease shall be ten (10) years commencing December 21,
2003 and shall end at midnight December 20, 2013 (expiration date).
RENT
The rent for the Premises shall be as follows:
Annual Office, Lab and Annual Base Annual
Year Conference Center Rent Storage Space Rent Rental
---- ---------------------- ------------------- ------------
Year 1** $ 25.95 per sq. ft. $ 12.00 per sq. ft.
Year 2 and 3 The base annual rental shall increase each year to reflect the
cost of living increase in accordance with any increase in the
Consumers Price Index of the Bureau of Labor Statistics all items
indexed for Detroit, Michigan or by one and one-half percent,
whichever is less, provided however, in no event shall the base
rent as adjusted be reduced from the previous year.
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Year 4 and 5 The base annual rental shall increase each year to reflect the
cost of living increase in accordance with any increase in the
Consumers Price Index of the Bureau of Labor Statistics all items
indexed for Detroit, Michigan or by two and one-half percent,
whichever is less, provided however, in no event shall the base
rent as adjusted be reduced from the previous year.
Year 6, 7 The base annual rental shall increase each year to reflect the
8, 9, and 10 cost of living increase in accordance with any increase in the
Consumers Price Index of the Bureau of Labor Statistics all items
indexed for Detroit, Michigan or by three percent, whichever is
less, provided however, in no event shall the base rent as
adjusted be reduced from the previous year.
**Tenant will not be required to pay rent for the first year of the Lease.
TENANT IMPROVEMENTS
Tenant desires to make substantial changes and Tenant improvements to
the Premises at Tenant's cost. All changes and Tenant improvements to the
Premises will be made in accordance with plans and specifications which will be
provided to and approved by Landlord, subject to the Interior Specifications for
Tenant Improvement Guidelines. Landlord will not unreasonably withhold consent
for Tenant to make architectural changes to the lobby/entrance area so long as
consistent and compatible with materials and colors of existing building. Tenant
agrees to indemnify and hold Landlord harmless from any claims arising from the
remodeling and making of improvements. Tenant agrees to be responsible for
obtaining any applicable permits and to insure that all work is paid for in full
and that Landlord's interest in the property will be kept free from any liens.
Tenant accepts the Premises in "as is" condition and configuration. To
the extent the Premises consists of space presently not leased by Tenant,
Landlord agrees to deliver the space in a broom clean condition. Tenant shall
obtain, at its own expense, an insurance policy to insure the leasehold
improvements made to the Premises and any other fixtures or equipment of Tenant
which will remain the property of Landlord under Section 19 of this Lease. The
policy shall name Landlord as an additional insured for full replacement costs
against loss by fire, with standard extended risk coverage, vandalism, malicious
mischief, sprinkler leakage and all other risk perils.
OPTION TO RENEW
Upon expiration of the term, provided that Tenant is not then in
default beyond the expiration of any applicable grace and cure period after
notice, Tenant may extend the term of this Lease for an additional term of five
(5) years (the First Extended Term) and Tenant may extend the term of this Lease
for an additional term consisting of five (5) years (the Second Extended Term),
upon the expiration of the First Extended Term, provided that Tenant has
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exercised its option for the First Extended Term and is not then in default
beyond the expiration of any applicable grace and cure period after notice. The
base annual rent for the First Extended Term shall be the fair market rent for
the Premises (the "FMR") on the date which is nine years, thirty days after the
Commencement Date (the "Rent Appraisal Date"), and (ii) in addition to the
payment of Base Annual rent, Tenant shall during the First Extended Term pay to
Landlord for the use of the fitness center a reasonable price or fee which the
Landlord may then be charging to Tenant and the other tenants in the Building on
a prorata basis (based upon the rentable square feet of the Premises in relation
to the rentable square feet of all of Domino's Farms), which amount shall be
payable in equal monthly installments on each Rent Day; provided, however that
Tenant shall not be obligated to pay such price or fee at such times as Tenant
provides Landlord with written notice that it elects not to use such fitness
center during the First or Second Extended Term.
The Tenant shall exercise the option for the First Extended Term by
notifying the Landlord in writing at least 360 days before the initial Term
expires. Upon such exercise this Lease shall be deemed to be extended without
the execution of any further lease or other instrument, except for any
instrument that may be prepared by Landlord to confirm the agreement of the
parties, which Tenant agrees to execute and deliver to Landlord promptly on
request. Time shall be of the essence with respect to the exercise of such
option by Tenant.
The FMR shall be determined by the mutual written agreement of Landlord
and Tenant. In the event that Landlord and Tenant shall not have reached mutual
agreement as to the FMR on or before the sixtieth (60th) day following the Rent
Appraisal Date, but Landlord's determination of the FMR is less than five
percent (5%) greater than Tenant's determination of the FMR (which respective
determinations shall be based on blind written bids submitted at the end of the
sixty (60) day period by each of Landlord and Tenant to the other), the FMR will
be the average of Landlord's and Tenant's respective determinations. In the
event that Landlord and Tenant shall not have reached mutual agreement as to the
FMR on or before the sixtieth (60th) day following the Rent Appraisal Date and
Landlord's determination of the FMR is more than five percent (5%) greater than
Tenant's determination of the FMR, then Landlord and Tenant each shall, no later
than the seventy-fifth (75th) day following the Rent Appraisal Date, select a
Real Estate Appraiser, as hereinafter defined. If either party shall fail to so
appoint a Real Estate Appraiser, the one Real Estate Appraiser so appointed
shall proceed to determine the FMR. In the event that the Real Estate Appraisers
selected by Landlord and Tenant agrees as to the FMR, said determination shall
be binding on Landlord and Tenant. In the event that the Real Estate Appraisers
selected by Landlord and Tenant cannot agree as to the FMR, on or before the one
hundred fifth (105th) day following the Rent Appraisal Date, then said Real
Estate Appraisers shall each designate his or her calculation of FMR and shall
jointly select a third Real Estate Appraiser, provided that if they cannot agree
on the third Real Estate Appraiser on or before the one hundred twentieth
(120th) day following the Rent Appraisal Date, then said third Real Estate
Appraiser shall be selected by the President of the American Arbitration
Association of Southfield, Michigan (or any successor thereto). The third Real
Estate appraiser shall designate his or her calculation of FMR no later than the
one hundred fiftieth (150th) day following the Rent Appraiser Date and the
average of the three FMR's designated by the three Real Estate Appraisers shall
be the FMR as determined hereunder, except that for the purpose of such
averaging each and every designated FMR which varies by more than ten percent
(10%) from the amount which is the average of the other two (2) designated FMR's
shall be ignored (it
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being understood that if two (2) designated FMR's so vary, the remaining
designated FMR shall be the FMR as determined hereunder). The term "Real Estate
Appraiser" shall mean a fit and impartial person having not less than five (5)
years experience as an appraiser of leasehold estates relating to first class
office space in Ann Arbor, Michigan. The appraisal shall be conducted in
accordance with the provisions of this Section and, to the extent not
inconsistent herewith, in accordance with the prevailing rules of the American
Arbitration Association in Michigan or any successor thereto. The final
determination of the Real Estate Appraiser(s) shall be in writing and shall be
binding and conclusive upon the parties, each of which shall receive counterpart
copies thereof. In rendering such decision the Real Estate Appraiser(s) shall
not add to, subtract from or otherwise modify the provisions of this Lease. The
fees and expenses of the Real Estate Appraisers shall be shared equally by
Landlord and Tenant. In rendering the determination of FMR the real estate
appraiser(s) shall assume or take into consideration as appropriate all of the
following: (1) Landlord and Tenant are typically motivated; (2) the Landlord and
prospective Tenant are well informed and well advised and each is acting in what
it considers its own best interest; (3) a reasonable time under then-existing
market conditions is allowed for exposure of the Premises on the open market;
(4) the rent is unaffected by any obligation of Landlord to pay brokerage
commissions or tenant-improvement allowances, or by concessions, special
financing amounts and/or terms, or unusual services, fees, costs or credits in
connection with the leasing transaction; (5) the Premises are fit for immediate
occupancy and use "as is" and require no additional work by Landlord and that no
work has been carried out therein by the Tenant, its subtenant, or their
predecessors in interest during the Term which has diminished the rental value
of the Premises; (6) in the event the Premises have been destroyed or damaged by
fire or other casualty, they have been fully restored; (7) that the Premises are
to be let with vacant possession and subject to the provisions of this Lease;
and (8) market rents then being charged for comparable space in other similar
office buildings in the same area, provided that arm's-length leases of space in
the Building during the preceding year shall be the best evidence of FMR. In
rendering such decision and award, the arbitrators shall not modify the
provisions of this Lease. The decision and award of the real estate appraisers
shall be in writing and shall be final and conclusive on all parties and
counterpart copies thereof shall be delivered to each of said parties. Judgment
may be had on the decision and award of the arbitrators so rendered in any court
of competent jurisdiction.
COMMISSARY
Tenant agrees that the Commissary it presently operates on the Premises
will be moved off the Premises no later April 30, 2003, and at Tenant's option,
the Lease shall terminate as to so much of the Premises as Tenant no longer
needs as a result of moving the Commissary and the annual rent will be reduced
accordingly.
WAREHOUSE RELOCATION
Landlord agrees to lease to Tenant, as part of the Premises,
approximately 5,000 square feet of warehouse space within the existing
warehouse.
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MASSCORP SPACE
If Tenant requests non-contiguous space for MassCorp within the
building, Tenant agrees the rental rate for such additional space shall be the
same as the rate for office space.
BUSINESS USE
Landlord agrees to maintain the Domino's Farms Prairie House as a
building primarily for business, research, and office use and will use
reasonable efforts to minimize the use of the Building and surrounding grounds
for non-business activities that may detract from a Class A office setting. In
any event, Landlord will not intentionally expand the non business use of the
Building and surrounding grounds from the presently permitted non business uses,
and will not replace or institute a substitute Holiday Light Display, without
the consent of Tenant, which will not be unreasonably withheld. Landlord also
agrees that any future expansion of building will be for business, research and
office use. Tenant shall be permitted to use the existing flag poles for
Domino's Pizza related flags.
CLEANING SPECIFICATIONS
The cleaning specifications for the premises are attached as Exhibit D.
PHASE VI
In the event Landlord proceeds with the completion of Phase VI of the
building, Landlord agrees that it will use its best efforts to move the current
fitness center to Phase VI and expand the existing cafeteria area.
Landlord agrees, subject to availability, that the cafeteria area may
be used for occasional meeting use by the Tenant.
2.01 Amenities: Tenant's employees shall be entitled to use the fitness
center on no less favorable terms than those of any other tenant.
Landlord does not guarantee the continued operation of a fitness center
and does not guarantee that there will never be a charge for use of the
fitness center.
2.02 Common Area: Although the term "Common Area" shall continue to include
lobbies and restrooms for the purpose of this Lease, Landlord agrees
that the lobbies and restrooms that are located within the Premises
shall not be made available for use by other tenants.
16.02 Condemnation Award: Landlord agrees that in the event of a
condemnation, or conveyance in lieu thereof, of all or part of the
Premises, Tenant shall be entitled to
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receive a pro rata portion of the award based on the value of the
Tenant Improvements which are taken as a result of the condemnation.
17.01 Assignment or Subletting: Landlord acknowledges that any restructuring
of Tenant, and or the sale of equity in Tenant, or related or successor
entity, shall not constitute an assignment requiring consent of
Landlord.
24.01 Subordination: Landlord agrees that Tenant may pledge its interest in
the Lease to Tenant's lenders and that the Landlord will execute such
consents and other documents as may be required by Tenant's lenders to
perfect the pledge. Tenant will not be required to subordinate its
interest in the Lease if prohibited from doing so by Tenant's lenders.
Tenant will, promptly on request of Landlord, sign an appropriate
estoppel certificate, acknowledging the material terms of this Lease
and whether or not a default exists.
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