EXHIBIT 10.39
THIS LEASE, dated the 17th day of April 1989, between ISAAC HELLER
having an office at 205 Mill Road, Edison, New Jersey 08817
(hereinafter designated as Landlord), and UNITED STATIONERS SUPPLY CO. a
corporation of the State of Illinois
having an office at 2200 East Golf Road, Des Plaines, Illinois 60016
(hereinafter designated as Tenant).
WITNESSETH:
ARTICLE I - DEMISE AND PREMISES
SECTION 1.01. DEMISE AND PREMISES. Landlord does hereby demise and lease
to Tenant and Tenant does hereby take and hire from Landlord all that certain
tract or parcel of land, together with the building and improvements, both
hereinafter designated as the Building, to be erected thereon by Landlord, as
provided herein, situate, lying and being in the Township of Edison, Middlesex
County, New Jersey and shown on the plot plan designated Exhibit A, annexed
hereto and made a part hereof, the lands aforesaid being more particularly
described on Exhibit B annexed hereto and made a part hereof, together with the
fixtures and equipment therein and the appurtenances now or hereafter belonging
or pertaining thereto (all referred to hereinafter as the Demised Premises or
the Premises).
TO HAVE AND TO HOLD for the Term and at the rents as herein provided,
subject to the terms, covenants and conditions herein contained which each of
the parties hereto expressly covenants and agrees to keep, perform and observe.
ARTICLE II - TERM AND COMMENCEMENT
SECTION 2.01. TERM AND COMMENCEMENT.
(a) TERM. The term of this Lease is three (3) years plus the fractional
month, if any, referred to in this section. (Term). If the Commencement Date is
the first day of a calendar month, the Term of this Lease shall terminate at
5:00 P.M. (prevailing time) on the day before the third anniversary of the
Commencement Date. If the Commencement Date is not the first day of a calendar
month (the period between the latter Commencement Date and the end of the month
in which it falls being herein called Fractional Month) this Lease shall
terminate on the last day of the month in which shall fall the third anniversary
of the Commencement Date.
(b) COMMENCEMENT OF TERM. The Term shall commence on the first business
day (hereinafter designated as Commencement Date) following the date on which
the last of all of the following shall have occurred or been performed:
(i) After or simultaneously with substantial compliance with the
conditions in (ii), (iii), (iv) and (v) of this paragraph (b) Tenant shall
have received written notice from Landlord authorizing Tenant to enter upon
the premises to do such work as Tenant may decide, the Commencement Date
shall be the next business day following the receipt by Tenant of said
notice. By sending such notice to Tenant, Landlord covenants, represents
and warrants that it has theretofore performed, or that it will thereafter
complete the performance of the covenants and conditions set forth in (ii),
(iii), (iv), and (v) of this paragraph (b), which obligation to perform
shall survive the commencement of the Term;
(ii) Landlord shall have certified to Tenant, in writing, that the
construction work as defined in Article III hereof has been substantially
completed in accordance with the Final Plans (as defined in said Article
III), and that the Building is ready for Tenant's occupancy and use except
for any installations Tenant may make;
(iii) Landlord shall deliver to Tenant a copy of a Certificate of
Occupancy (or temporary certificate of occupancy if Tenant is permitted
thereunder to have full use and enjoyment of the Premises) issued by the
appropriate local authority certifying that the Demised Premises may be
lawfully occupied for the purposes set forth in Section 15.01 of this
Lease;
(iv) All utilities required by the Final Plans shall have been
connected and shall be ready for use.
(v) Landlord shall deliver to Tenant a copy of Architects
Certificates that the Building has been substantially completed in
accordance with the Final Plans.
Notwithstanding the above, Landlord hereby agrees that
Commencement of the Lease shall not occur prior to June 1, 1989.
(c) COMMENCEMENT DATE AGREEMENT. Within 10 days after the request of
either party after the Commencement Date has been determined, Landlord and
Tenant shall execute, acknowledge and deliver to each other duplicate originals
of an agreement, in recordable form, setting forth the Commencement Date.
(d) RIGHT OF TERMINATION. Notwithstanding anything herein contained to the
contrary, in the event that Landlord enters into a contract with Tenant to build
for Tenant an expansion of the existing facility owned by Tenant and located at
77 Executive Avenue, Edison, New Jersey; Landlord and Tenant hereby agree that
Tenant shall have the right to terminate this Lease by serving written notice to
Landlord of such desire to terminate within 30 days of execution of the
aforesaid contract. In such event, this Lease would terminate simultaneously
with Tenant taking occupancy of the expanded facility.
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SECTION 2.02. OCCUPANCY PRIOR TO COMMENCEMENT. Subject to all provisions
of this Lease relating to occupancy or performance of Tenant's Work by Tenant
prior to the Commencement Date as provided in this Lease, Tenant shall have the
right to occupy and use a portion of the Demised Premises (hereinafter called
Portion) prior to the commencement of the Term provided that Landlord shall have
issued to Tenant written authorization for such occupancy and use and the
Portion has been substantially completed and can be legally occupied and used by
Tenant. The performance of Tenant's Work as set forth in Section 26.21 of this
Lease shall not be considered Occupancy Prior to Commencement.
SECTION 2.03. PRO-RATA RENT DURING PRE COMMENCEMENT OCCUPANCY. If Tenant
occupies the Portion, as aforesaid, (i) it shall commence to pay rent and all
other charges payable under the Lease, as of the date of occupancy, on a pro-
rata basis in proportion to the area occupied, (ii) all of the terms and
provisions of this Lease shall become operative with respect to the Portion as
if the Commencement Date had occurred including, without limitation, the
obligation of Tenant to provide insurance coverage hereunder; provided, however,
that notwithstanding such partial occupancy the Term shall not commence until
the conditions of Section 2.01(b) have been fulfilled. During the period it
occupies a Portion of the premises, Tenant shall, at its cost and expense as a
condition precedent to such prior occupancy, obtain and keep in force during the
period in which Landlord is completing the balance of the Construction Work,
insurance coverage in amounts as required in Section 7.01(i) of this Lease in
respect of the entire Demised Premises, including the portion being completed by
Landlord. However, Landlord shall reimburse Tenant for that portion of the cost
of such insurance in proportion to the part of the building not occupied by
Tenant and being completed by Landlord for the period ending with delivery of
possession thereof to Tenant.
SECTION 2.04. RIGHT OF RENEWAL. Provided this Lease is not in default, the
Tenant is granted a right of renewal of this Lease as follows: At the option of
the Tenant, the Term of this Lease may be extended for three renewal period(s)
of 2 years, 3 years, 2 years respectively each by written notice to the Landlord
at least six (6) months prior to the expiration of the Term, or any renewal term
thereof, as the case may be.
Upon valid exercise of any such rights of renewal, the terms of this
Lease shall remain in full force and effect except that the rental shall be as
stipulated in Section 5.03.
ARTICLE III - PLANS AND CONSTRUCTION
SECTION 3.01. PLANS AND SPECIFICATIONS.
PLANS. The parties hereto have approved and signed for purposes of
identification plans and specifications for construction of the Building
(hereinafter called Plans) prepared by Abrahm Hertzberg, Consulting Engineer,
P.C. (hereinafter called Architect) and attached hereto as Exhibit A.
SECTION 3.02. CONSTRUCTION OF IMPROVEMENTS.
(a) SUBSTANTIAL COMPLETION. Landlord shall as soon after the date of
execution of this Lease as is practicable start construction hereunder and
thereafter proceed with diligence and substantially complete the Construction
Work on or before June 1, 1989 all at Landlord's cost and expense. The term
Substantial Completion as used in this Lease is intended to constitute that
stage of completion which will permit the Tenant to occupy the Demised Premises
and to use the same for intended purpose of such occupancy without any
substantial interference by reason of any failure of Landlord to finish punch
list items.
(b) INSPECTION BY TENANT. Tenant may inspect the progress of the
Construction Work as frequently as it may desire provided Tenant does not
interfere with the Construction Work or with the workmen.
ARTICLE IV - LANDLORD'S COVENANTS
SECTION 4.01. NO WAIVER BY TENANT. No act of Tenant, including the taking
possession of the Demised Premises, shall constitute a waiver by Tenant of any
of Landlord's obligations respecting the Construction Work or to correct any
defects in materials or workmanship as provided in this Lease.
SECTION 4.02. LANDLORD'S COVENANTS REGARDING CONSTRUCTION. Landlord
represents, warrants and covenants that on the Commencement Date:
(i) The Building will be structurally safe and sound and that all
parts thereof and all mechanical equipment therein (except such as may be
installed by Tenant) will be in good working order;
(ii) Liability of the Landlord as to the foregoing (i) shall be
limited to one year and to the extent set forth in Section 10.01:
(iii) All utilities serving the Demised Premises will have been
installed and paid for.
(iv) To the best of Landlord's knowledge and belief there are no
"Hazardous Substances" or "Wastes" (as defined in ECRA and/or Spill Compensation
and Control Act) presently upon the Demised Premises.
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ARTICLE V - RENT AND PAYMENT
SECTION 5.01. RENT DURING TERM. Landlord reserves and Tenant covenants
to pay to Landlord during the Term of this Lease without demand or notice, and
without any setoff or deduction, a net basic rental (herein called Basic Rent)
as follows:
First Year - $519,390.30 per year ($43,282.53 per month)
Second Year - $532,708.00 per year ($44,392.33 per month)
Third Year - $546,025.70 per year ($45,502.14 per month)
Such annual Basic Rent shall be paid monthly in installments in the amounts
set forth above, in advance, on the first day of each and every month.
SECTION 5.02. PAYMENT OF RENT. The Basic Rent and all additional rents and
moneys payable to Landlord under this Lease shall be paid at the above address
of Landlord or at such other address as may be specified by Landlord from time
to time by notice given to Tenant.
SECTION 5.03. RENT DURING RENEWAL TERM(S). In the event the Tenant shall
exercise the option(s) to renew this Lease for any of the renewal period
provided for in Section 2.04, the annual Basic Rent during each renewal period
shall be adjusted for the applicable year term thereof by multiplying
$532,708.00 by the "Index Change" herein after defined, provided, however, that
the Basic Rent during the renewal period(s) shall not be less than the Basic
Rent paid for the immediately preceding period.
SECTION 5.04. The first monthly installment of Basic Rent shall be due
and payable by Tenant on the Commencement Date. Subsequent monthly installments
of Basic Rent shall be due and payable by Tenant on or before the first day of
each month following the Commencement Date and continuing thereafter until the
expiration of the Term. Basic Rent for the Fractional Month, if any, shall be
prorated and shall be due and payable by Tenant on the first day of the month
following the month in which the Commencement Date occurs.
Upon the execution of this Lease, Tenant shall pay to Landlord a deposit in
the amount of the first monthly installment of Basic Rent which deposit shall be
held by Landlord as additional security for Tenant's performance of this Lease
and applied by Landlord against the first monthly installment of Basic Rent on
the Commencement Date.
ARTICLE VI - TAXES AND IMPOSITIONS
SECTION 6.01. REAL ESTATE TAXES. As additional rental hereunder Tenant
shall, throughout the term, pay to the Landlord pro rata taxes and assessments
levied or assessed against the Demised Premises or any part thereof, including
those presently in effect, as well as those which may be enacted in the future.
Such payment as to all real estate taxes levied or assessed against the Demised
Premises or any part thereof, shall be made by Tenant to Landlord at the time of
the next Basic Rent payment due after Tenant's receipt of an invoice or
statement from Landlord setting forth the amount of such taxes or assessments
and Tenant's pro rata share thereof.
The real estate taxes and assessments aforesaid shall be apportioned by
Landlord among tenants or users of Landlord's Property including Landlord, to
arrive at Tenant's pro rata share of real estate taxes and assessments.
Landlord's Property shall mean the two (2) buildings totalling 336,464 sq. ft.
located on Lot 15, Block 366-A. The computation of Tenant's pro rata share of
taxes and assessments on land and building shall be made by multiplying the real
estate taxes or assessments levied against the Landlord on Landlord's Property
by a fraction the numerator of which is the number of square feet of building
premises demised to Tenant and the denominator of which is the total number of
square feet in Landlord's Property assessed by the taxing authorities.
In the calculation of the total number of square feet of building
premises demised to Tenant, finished space, i.e. offices, including toilet
areas, shall be weighted in determination of the numerator in the fraction
described in this subsection by doubling the square footage devoted to such
finished space. Tenant's pro rata share will be 40.08%. In the event that
subsequent to the date hereof the total square footage of either building
changes, the percentage set forth herein shall be recalculated accordingly.
Notwithstanding the above, Landlord hereby agrees that he will attempt to
obtain a statement from the Edison Township Tax Assessor's office allocating the
taxes applicable to each of the buildings located on Landlord's Property. In
such event, Tenant's pro rata share of taxes shall be determined based on the
statement received from the Tax Assessor's office.
To the extent that Tenant shall be liable for the payment of other taxes
under this Article VI which may be assessed against Landlord or for which
Landlord may become liable by reason of its estate or interest in the Demised
Premises, Tenant shall pay its pro rata share thereof in accordance with the
above.
SECTION 6.02. OTHER TAXES AND PAYMENT THEREOF. In addition to the pro rata
taxes and assessments described in Section 6.01, Tenant shall pay pro rata in
accordance with Section 6.01 for each and every item of expense in the nature of
a tax or charge or assessment for which Landlord is or shall become liable by
reason of its estate or interest in the Demised Premises, or any part thereof,
including, without limiting the generality thereof, all personal property taxes,
gross receipts taxes, use and occupancy taxes, and excise taxes levied or
assessed against Landlord or Tenant by reason of the use, occupancy or any other
activity by the Tenant in connection with the Demised Premises or any part
thereof, or which may be levied or assessed or imposed upon any rents or rental
income, as such, payable to Landlord or payable to Tenant from any subtenant in
connection with the Demised Premises or any part thereof. There is expressly
included among Tenant's obligations with respect to taxes and assessments as set
forth in this Article any tax which may be levied against Landlord enacted as
part of tax reform legislation in lieu of taxes presently levied against real
estate or any portion thereof.
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SECTION 6.03. CERTAIN TAXES NOT PAYABLE BY TENANT. Tenant shall not be
required to pay any of the following taxes or governmental impositions which
shall be levied or imposed against Landlord by any governmental authority:
(i) Any estate, inheritance, devolution, succession, transfer,
legacy or gift tax which may be imposed upon or with respect to any transfer of
Landlord's interest in the Demised Premises;
(ii) Any capital stock tax or other tax imposed against Landlord
for the privilege of doing business;
(iii) Any income tax levied upon or against the profits of the
Landlord from all sources.
SECTION 6.04. APPORTIONMENT DURING FIRST AND LAST YEAR OF TERM. All
taxes which shall become payable during the tax fiscal year in which this lease
commences or ends shall be apportioned between Landlord and Tenant in
accordance with the portion of the tax year within the term.
SECTION 6.05. ASSESSMENTS PAYABLE IN INSTALLMENTS. With respect to any
assessment levied by any governmental or municipal agency or authority which is
or may be payable, at the option of the taxpayer, in installments, Tenant
agrees to pay Landlord, as additional rent, annually, from the date of payment
of the assessment, the installment due therefor, at least five (5) days before
the last day on which each such installment may be paid without penalty or
interest. Tenant shall not be required to pay any installment which shall fall
due after the expiration of this Lease.
ARTICLE VII - INSURANCE
SECTION 7.01. COVERAGE AND AMOUNT. Tenant shall, at its sole cost and
expense, and as additional rent, during the term of this Lease:
(i) Keep and maintain the Building and the building equipment, fixtures
and appurtenances insured with 100% co-insurance against all loss and
damage including, but not limited to, coverage by an all risk form of
insurance policy issued by a "Best A Rated Co." or better with agreed
amount endorsement and replacement cost endorsement, in an amount no less
than One Hundred percent (100%) of the full replacement value thereof
(exclusive of cost of foundation, excavation and land) from time to time.
(ii) Rent insurance covering the risks described in (i) above in an
amount equal to the Basic Rent and additional rent payable; and
(iii) Provide, keep and maintain in force, if and when obtainable and
generally carried on building of the type to be leased hereunder, war risks
and nuclear damage, as well as flood and earthquake insurance for the full
replacement value of the Demised Premises if such insurance is required by
any institutional first mortgagee of the Premises; and
(iv) Provide any additional insurance coverages as may be reasonably
required from time to time, by any institutional first mortgagee of the
Premises; and
(v) Provide, keep and maintain in force, comprehensive general public
liability insurance against claims arising out of the ownership, operation
and control of the Demised Premises, including but not limited to
contractual liability in connection with the Tenant's indemnification of
Landlord herein as to the liability of Landlord to Tenant's employees,
agents, invitees and licensees in limits of not less than Five Million
Dollars ($5,000,000.00) combined single limit arising out of one
occurrence. The Landlord may insure his Liability under his Blanket
Comprehensive General Liability Policy, Umbrella Liability Policy, and
Environmental Impairment Liability Policy, and the Tenant will reimburse
the Landlord for the Tenant's pro rata share of the premium.
(vi) PROVIDE INSURANCE COVERAGE OF ANY AND ALL TRADE FIXTURES AND
PERSONAL PROPERTY (INCLUDING, BUT NOT LIMITED TO, ANY FURNITURE, MACHINERY,
GOODS OR SUPPLIES) OF TENANT, WHICH TENANT MAY HAVE UPON OR WITHIN THE
DEMISED PREMISES WHICH TENANT DEEMS NECESSARY.
SECTION 7.02. FORMS AND CERTIFICATES. The coverage above required in
Section 7.01 and its subsections shall be:
(i) As to 7.01 (i), (ii), (iii), and (iv), by policies in form and
reasonably acceptable to Landlord showing loss payable to Landlord and to the
first mortagee by standard mortgage clause, as their respective interests may
appear. Tenant shall furnish a certificate thereof to the first mortgagee and
to the Landlord showing continuous coverage for the risks stated; and
(ii) As to 7.01 (v) and (vi) by policies in form reasonably
acceptable to Landlord. Tenant shall provide Landlord with certificates of such
policies showing continuous coverage for the risks stated. As to 7.01 (v),
Landlord shall be named as an additional named insured on any such policy.
SECTION 7.03. BLANKET POLICIES, RENEWALS, RECOGNIZED INSURANCE
COMPANIES, CANCELLATION. Tenant may carry any or all of such insurance under
blanket policies. In any case, Tenant shall deliver to Landlord at or prior to
the Commencement Date, policies or certificates of the insurance required
above, and shall procure and deliver to Landlord, policies or certificates of
renewals thereof from time to time at least thirty (30) days before the
expiration thereof, together with evidence of payment as is required by the
first mortgagee. If Tenant shall default in such delivery or renewal, Landlord
may, at its option, without waiving or releasing Tenant from any obligation
hereunder, procure any such insurance and Tenant shall, on demand, pay to
Landlord as additional rent, the cost of the premium thereof, plus a 15%
handling charge, together with interest at the Lease Interest Rate (as
hereinafter defined). All such insurance shall be taken in companies of
recognized responsibility licensed to do business in the state in which the
Premises are located and be reasonably acceptable to Landlord and to each
mortgagee. Every policy shall provide that it may not be cancelled by the
carrier without at least (30) days prior written notice to each insured.
SECTION 7.04. WAIVER OF SUBROGATION. Landlord shall not be liable for
any damage by fire or other peril in the coverage afforded by the Standard All
Risk Policy (whether or not such coverage is in effect), no matter how caused,
it being understood that the Tenant will look solely to its insurer for
reimbursement. Tenant shall not be liable for any damage by fire or other peril
includable in the coverage afforded by the Standard All Risk Policy (whether or
not such coverage is in effect), no matter how caused, it being understood that
the Landlord will look solely to its insurer for reimbursement. Each party, as
applicable, shall obtain a Waiver of Subrogation Endorsement if necessary to
permit the Waiver of Subrogation and mutual release as set forth herein in
connection with any applicable Insurance Policy carried by it. Any Waiver of
Landlord's rights against Tenant as contained in this Section shall be
ineffective if such Waiver of Subrogation Endorsement shall not be obtained.
*pursuant to Section 7.01 (i) through (iv) above
SECTION 7.05. PAYMENT OF LOSSES. All property losses of Seventy-Five
Hundred ($7,500.00) Dollars or less* shall be settled by Tenant and loss
payments therefor paid to Tenant alone, to be held and used by Tenant pursuant
to Article XI hereof. All losses in excess of Seventy-Five Hundred ($7,500.00)
Dollars shall be settled jointly by Landlord and Tenant. Loss payments in such
case shall be paid jointly to Landlord and first mortgagee and shall be held in
trust for repair and restoration pursuant to Article XI hereof.
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ARTICLE VII - CONSTRUCTION OR OTHER WORK
SECTION 8.01. CONDITIONS AS TO REPAIRS, ALTERATIONS OR OTHER WORK.
Whenever any repairs, alterations, changes or other work in on, to or about the
Premises shall be made by either Landlord or Tenant as provided in this Lease:
(i) The work shall be done in a good and workmanlike manner and in
compliance with all applicable laws, ordinances and codes, and all
applicable governmental rules, regulations and requirements, and in
accordance with the standards, if any, of the Board of Fire Underwriters,
or other organizations exercising the functions of a board of fire
underwriters whose jurisdiction includes the Demised Premises.
(ii) All materials and workmanship shall be of good quality, and in
case of repairs, restoration, changes, additions, alterations or
improvements, shall be at least equal to the original;
(iii) All said work shall be paid for as promptly as is practicable and
consistent with good business practices under the then existing
circumstances;
(iv) Such work shall be done as promptly as is possible and practicable
under the existing circumstances;
(v) The comprehensive general liability insurance provided for in
Section 7.01 shall be extended by Tenant, if necessary, to apply to the
work being done, and evidence thereof shall be delivered to the Landlord
prior to commencement of such work.
(vi) The party doing or having the work done shall carry or cause its
contractors, if any, to carry workman's compensation insurance as required
by law in connection with such work, and evidence thereof shall be
delivered to the other party prior to commencement of such work;
(vii) Title to all buildings, building fixtures and improvements erected
and installed by Tenant (but not Tenant's trade fixtures, however the same
may be attached to the realty) shall become the property of Landlord upon
the expiration or earlier termination of this Lease;
(viii)The contractor or the party performing the work shall obtain an
official certificate of occupancy or an amended certificate of occupancy
upon completion of the work in each instance if under local practice such
certificates of occupancy are issued or required in connection with such
work. The party performing the work shall also obtain the certificate from
the Board of Fire Underwriters, or other organization exercising the same
functions, whose jurisdiction includes the Demised Premises in each
instance, certifying that the electrical work has been properly completed
whenever the work done involves any electrical work for which such a
certificate is issued under local practice. If, under local practice,
official certificates of occupancy are not issued or required by a
governmental officer or department, or if the Board of Fire Underwriters,
or other such organization does not issue certificates on proper completion
of electrical work, this covenant shall be satisfied upon issuance of such
certifications by an architect or engineer selectedby Landlord.
(ix) Landlord agrees to join in the applications for all permits and
authorizations whenever necessary.
ARTICLE IX - MECHANIC'S LIENS
SECTION 9.01. MECHANIC'S LIENS PROHIBITED. Tenant shall not suffer any
mechanic's lien to be filed against the Demised Premises by reason of work,
labor, services or materials performed or furnished to Tenant or to anyone
holding the Demised Premises, or any part thereof, through or under Tenant. If
any mechanic's lien or any notice of intention to file a mechanic's lien shall
at any time be filed against the Demised Premises, (unless the labor or
materials were actually performed for or furnished to Landlord in connection
with its obligations under this Lease) Tenant shall at Tenant's cost, within
fourteen (14) days after knowledge or notice of the filing of any mechanic's
lien cause the same to be removed or discharged of record by payment, bond,
order of a court of competent jurisdiction, or otherwise.
SECTION 9.02. LANDLORD'S REMEDY FOR TENANT'S BREACH. If Tenant shall
fail to remove or discharge any mechanic's lien or any notice of intention to
file a mechanic's lien within the prescribed time, then in addition to any
other right or remedy of Landlord. Landlord may, at its option, procure the
removal or discharge of the same by payment or bond or otherwise. Any amount
paid by Landlord for such purpose, together with all legal and other expenses
of Landlord in procuring the removal or discharge of such lien or notice of
intention and together with interest thereon at the Lease Interest Rate (as
hereinafter defined), shall be and become due and payable by Tenant to Landlord
as additional rent, and in the event of Tenant's failure to pay therefor within
fifteen (15) days after demand, the same shall be added to and be due and
payable with the next month's rent.
SECTION 9.03. NON-CONSENT OF LANDLORD TO FILING OF LIENS. Nothing
contained in this Lease shall be construed as a consent on the part of Landlord
to subject Landlord's estate in the Demised Premises to any lien or liability
arising out of Tenant's use or occupancy of the Premises.
ARTICLE X - REPAIRS AND MAINTENANCE
SECTION 10.01 (a) LANDLORD'S COVENANTS. Landlord at its sole cost and
expense shall remedy all defects in workmanship and materials in the
Construction Work, evidence of which shall appear or be discovered within
twelve (12) months after the Commencement Date. Landlord shall not be liable
under this Section however unless Tenant shall give Landlord notice specifying
such defects or of the need for remedying them on or before the last day of the
twelfth month of the Term.
In addition, Landlord agrees to procure a five (5) year guarantee of
the roof installation from the roofer in the form attached hereto as Exhibit D,
and to assign said guarantee to Tenant. Landlord agrees to exercise its
reasonable efforts to cause the guarantor on the roof guarantee to perform its
obligations thereunder.
(b) STRUCTURAL COMPONENTS. In addition Landlord at its sole cost and
expense shall remedy all defects in workmanship and materials in the
Construction Work with respect to the Structural Components of the Building,
evidence of which shall appear or be discovered within thirty-six (36) months
after the Commencement Date, and shall repair all damage to the Demised
Premises caused thereby. For the purpose of this paragraph, this term
Structural Components, shall be limited to the structural steel framing
including roof framing, the foundations, and the masonry perimeter walls
(excluding all windows, plate glass, and doors). Landlord shall not be liable
under this Section however unless Tenant shall give Landlord notice specifying
such defects or the need for remedying them on or before the last day of the
thirty-sixth month of the Term.
(c) ALTERATIONS BY TENANT. Notwithstanding any of the above, if Tenant
shall make any changes or alterations, structural or otherwise, to any portion
of the building, Landlord's obligations under this Section 10.01 shall not
thereafter extend to any portion of the building affected by such change or
alteration.
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(d) LIMITED LIABILITY OF LANDLORD. Landlord's liability under the
provisions of this Article X is limited to repair or correction of the defect
or condition to be rectified, and Landlord shall not be liable for any
consequential loss or damage. Landlord shall not be required to make any
repairs caused by Tenant's abuse or misuse, or lack of routine maintenance, of
the Demised Premises.
Section 10.02. TENANT'S OBLIGATIONS. Except for items which are the
obligation of Landlord under Section 10.01 hereof, Tenant, for and during the
Term of this Lease, at Tenant's sole cost and expense, assumes all
responsibility and obligation for the physical condition of the Demised
Premises and shall:
(a) Keep and maintain in good repair, as well as paint and decorate,
both the exterior and interior of the Demised Premises including, but not
limited to, all structural repairs, roof, floor, heating and air conditioning
systems, electrical system, sprinkler system and plumbing facilities.
(b) Keep and maintain the Demised Premises in a clean and sanitary
condition free from rubbish, flammable or other objectionable materials.
(c) Perform all normal routine adjustments and maintenance on all
equipment, including but not limited to filter changes, cleaning and
lubrication of heating, ventilating and air conditioning systems.
(d) Replace all mechanical and working parts used in connection with
the heating, air conditioning, electrical and plumbing and sprinkler and other
systems.
(e) Keep, maintain and repair all drainage facilities including drain
pipes, ditches and detention areas, as well as the lawns, shrubbery, driveways
and parking areas, including the keeping of the driveways, sidewalks and steps
and parking areas free and clear of ice and snow.
(f) Comply with all present and future applicable Federal, State and
local laws, ordinances and codes and all applicable rules, regulations and
requirements, including without limitation, those relating to environmental
protection and the requirements set forth in the applicable sections of the
"National Fire Codes" as published by the National Fire Protection Association;
and pay any and all costs of compliance and all fines and penalties imposed
upon Landlord, or consequential damages incurred, by reason of any violations
thereof.
SECTION 10.03 LANDLORD'S REMEDY FOR TENANT'S BREACH. In the event
Tenant shall fail or neglect to comply with the aforesaid statutes, ordinances,
rules, orders, regulations and requirements referred to in this Article X, or
any of them, or in the event Tenant shall fail or neglect to make any repairs
required of it, then Landlord or Landlord's agents may, after compliance with
the notice requirements set forth in Section 13.01 hereof, enter in and upon
the Demised Premises to make an inspection and make said repairs and comply
with any and all the said statutes, ordinances, rules, orders, regulations or
requirements, at the cost and expense of Tenant, and in the event of Tenant's
failure to pay therefor within 15 days after demand the said cost and expense
shall be added to the next month's rent and be due and payable as additional
rent. This provision is in addition to the right of the Landlord to terminate
this Lease by reason of any default on the part of Tenant, and Landlord's
remedies provided in Article XXI.
ARTICLE XI - FIRE, DAMAGE AND DESTRUCTION
SECTION 11.01. NOTICE OF CASUALTY, CONTINUATION OF LEASE, RESTORATION.
In the event of the total destruction of the Building by fire or otherwise
during the term created hereby, or in the event of such partial destruction
thereof:
(a) Tenant shall immediately notify Landlord in writing thereof;
(b) Upon receipt of said notice Landlord shall have its Architect make
a full and comprehensive report on the damage of the building, and ascertain
the number of days to complete the repair of the building. Unless such damage
can, in the opinion of Landlord's Architect, be repaired within ninety (90)
days after it occurrence, this Lease and the term hereby created shall cease
and become null and void from the date of such damage or destruction, and
Tenant shall upon written notice from Landlord, then immediately surrender the
Demised Premises and all interest therein to Landlord, and Tenant shall pay
rent within said term only to the time of such damage or destruction.
If, however, in such Architect's opinion, the damage aforesaid can be
repaired within ninety (90) days from the occurrence thereof, Landlord shall
repair or rebuild the Demised Premises with all reasonable speed, and this
Lease shall continue in full force and effect, but there shall be an abatement
of rent to the extent of insurance payments received from rent insurance.
SECTION 11.02. INSURANCE PROCEEDS UP TO $7,500. The net insurance
proceeds amounting to Seventy-Five Hundred ($7,500.00) Dollars or less payable
to Tenant shall be held in trust by Tenant for the purpose of promptly
repairing, restoring or rebuilding that portion of the Demised Premises so that
the Demised Premises will be as nearly as practicable in the condition they
were immediately prior to the occurrence of such damage or destruction.
SECTION 11.03. INSURANCE PROCEEDS ABOVE $7,500.00. The net insurance
proceeds amounting to more than Seventy-Five Hundred ($7,500.00) Dollars
payable to Landlord, first mortgagee and Tenant jointly shall be held in trust
by a trustee satisfactory to the first mortgagee for application to the repair,
restoration and rebuilding of the Demised Premises. Any proceeds remaining
after such repair, restoration and rebuilding shall have been paid for, shall
be the property of and belong solely to Tenant. If the insurance proceeds are
insufficient to cover the cost of restoration, repair, and rebuilding, Tenant
agrees to pay whatever additional sums are necessary to complete such
restoration, repair and rebuilding.
SECTION 11.04. STATUTORY CONDITIONS. Tenant hereby expressly waives the
benefit of New Jersey Revised Statutes, Title 46, Chapter 8, Sections 6 and 7.
Tenant agrees that it will not be relieved of the obligation to pay basic net
rent or any additional rent in case of damage to or destruction of the Demised
Premises except as specifically provided in this Lease.
ARTICLE XII - EMINENT DOMAIN
SECTION 12.01. TOTAL TAKING. In the event that any public authority or
agency holding the power of eminent domain under applicable law shall at any
time during the term of this Lease condemn or acquire title in lieu of
condemnation of substantially all of the Demised Premises, this Lease and the
Term hereby created shall terminate and expire as of the date upon which title
shall vest in such authority, and Tenant shall pay rent only to the time of
such vesting of title.
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SECTION 12.02. PARTIAL TAKING. If there shall be only a partial taking
or condemnation as aforesaid which shall not substantially prevent Tenant's use
of the Demised Premises for purposes of its business, this Lease shall
thereafter continue as to the untaken part and Tenant shall be entitled to a
reduction in the basic rent in such proportion and in such manner as shall be
fair and equitable, and if the parties hereto cannot agree thereto the dispute
shall be settled by arbitration as set forth in this Lease.
SECTION 12.03. RESTORATION BY LANDLORD. If there shall be a partial
taking and this Lease shall continue as to the remaining balance of the Demised
Premises, Landlord, at its own expense and as promptly as practicable, shall
restore the remaining building and land as nearly as may be practicable to
their former condition.
SECTION 12.04. AWARD TO LANDLORD. Landlord reserves the exclusive
right to negotiate with the condemning authority with respect to any proposed
award, and all damages and compensation paid for the taking under the power of
eminent domain, whether for the whole or a part of the Demised Premises shall
belong to and be the property of Landlord, except that Landlord consents to
efforts by Tenant separately to seek additional compensation from the
condemning authority for the loss of depreciated value of leasehold
improvements installed by Tenant resulting from the taking, provided always,
that Tenant hereby releases and disclaims any interest or right whatsoever in
the award or compensation offered or paid by the condemning authority to the
Landlord for the loss of the fee. There is expressly excluded from any right of
compensation to the Tenant and the Tenant expressly waives, any claim against
the condemning authority for dimunition in the value of the leasehold.
SECTION 12.05. Notwithstanding any of the paragraphs above pertaining
to eminent domain, there is expressly reserved to the Tenant the right to
recover against the condemning authority for its actual reasonable expenses in
moving its business from the Demised Premises and its actual direct losses in
tangible personal property by virtue of the taking, all as contemplated in the
the Relocation Assistance Act (R. S. 20:4-1 et seq), and rules and regulations
adopted by the Department of Community Affairs of the State of New Jersey
pursuant to the legislation aforesaid, and applicable regulations of the State
Department of Transportation contemplated in the said Relocation Assistance Act.
ARTICLE XIII - NOTICES
SECTION 13.01. NOTICES. Every notice required or permitted under this
Lease shall, unless otherwise specifically provided herein, be given in writing
and shall be sent by United States certified mail, return receipt requested,
addressed by the party giving, making or sending the same to the Landlord at
the address first above given, and to the Tenant at the Demised Premises or to
such other address as either party may designate from time to time by a notice
given to the other party. Notice shall be deemed to be given upon receipt,
provided, however, that in the event a party shall refuse to accept delivery of
said Certified Mail, the notice shall nevertheless be deemed to be given upon
the date of refusal to accept delivery and further provided that if the postal
service is unable to deliver said Certified Mail the notice shall nevertheless
be deemed to be given as of the date of the Postal Service's second notice of
attempted delivery. Notwithstanding the above, a notice of change of address
shall not be effective until received.
Landlord may, at its option, substitute for service by United States
First Class Certified Mail, service by Federal Express or similar overnight
courier, provided that such courier obtains and makes available to its
customers evidence of delivery. Notice given via such courier shall be deemed
to be given upon receipt.
ARTICLE XIV - MEMORANDUM OF LEASE
SECTION 14.01. MEMORANDUM OF LEASE. Tenant shall not record this
lease, but if either party should desire to record a short form Memorandum of
Lease setting forth only the parties, the Demised Premises and the Term, such
Memorandum of Lease shall be executed, acknowledged and delivered by both
parties upon notice from either party.
ARTICLE XV - USE
SECTION 15.01. USE. The Demised Premises shall be used and occupied by
Tenant as a warehouse and office for the distribution of office products and
other similar uses.
ARTICLE XVI - ASSIGNMENT, SUBLETTING, ETC.
SECTION 16.01. ASSIGNMENT, SUBLETTING, ETC. Tenant shall not sell,
assign, mortgage, pledge, or, in any manner, transfer or encumber this Lease or
any estate of interest hereunder (hereinafter designated as Assignment), or
sublet the Demised Premises or any part thereof without the previous written
consent of the Landlord which consent shall not be unreasonably withheld;
provided, however, with respect to a corporation into which Tenant shall have
been merged or consolidated or which shall have purchased all or substantially
all of the assets of Tenant, such previous written consent by Landlord shall
not be necessary. In any of the events aforesaid, Tenant, nevertheless, shall
remain primarily liable for the payment of the basic net rent and all
additional rents, and the performance of Tenant's other covenants and
obligations hereunder. No consent to any Assignment of this Lease or subletting
of any or all of the Demised Premises shall be deemed or be construed as a
consent by Landlord to any further or additional Assignment or subletting. In
the event of an Assignment of this Lease, the assignee shall assume, by written
recordable instrument reasonably satisfactory to Landlord, the due performance
of all Tenant's obligations under this Lease. No Assignment shall be valid or
effective in the absence of such assumption. A true copy of such Assignment and
the original assumption agreement or the sublease, as the case may be, shall be
delivered to Landlord within 10 days of the effective date thereof.
Notwithstanding anything hereinabove contained to the contrary, Landlord may
refuse to permit Tenant to assign this Lease or sublet to a third party any
portion of the Demised Premises if Landlord agrees to sublet back the Demised
Premises from Tenant under the same terms and conditions as set forth in this
Lease and for the remaining term of this Lease.
ARTICLE XVII - WARRANTY OF TITLE
SECTION 17.01. WARRANTY OF TITLE. Landlord covenants, represents and
warrants that Landlord on the Commencement Date will be the sole and absolute
owner of the fee title to the Demised Premises and has the right to execute
this Lease, and that on the Commencement Date there will be no liens affecting
the Demised Premises, or any covenants, easements or restrictions adversely
affecting Tenant's use of the Demised Premises except as set forth in Exhibit
B. Such exceptions are herein referred to as Permitted Encumbrances.
ARTICLE XVIII - SUBORDINATION
SECTION 18.01. SUBORDINATION TO MORTGAGES. At the option of Landlord,
this Lease shall either be:
(a) Subject and subordinate to all mortgages which may now or
hereafter affect the Demised Premises, and to all renewals, modifications,
consolidations, replacements or extensions thereof, PROVIDED HOWEVER THAT THE
HOLDER OF ANY SUCH MORTGAGE SHALL EXECUTE A "NON-DISTURBANCE" AGREEMENT
SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT E.
OR
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(b) This Lease shall be paramount in priority as an encumbrance against
the Demised Premises with respect to the lien of any mortgage which may now or
hereafter affect the Demised Premises and to all renewals, modifications,
consolidations, replacements and extensions thereof.
SECTION 18.02. TENANT'S CERTIFICATE. Tenant further agrees, upon request
of Landlord, to certify by written instrument duly executed and acknowledged to
any mortgagee or purchaser, or any proposed mortgage lender, or purchaser, that
this Lease is in full force and effect or, if not, in what respect it is not;
that this Lease has not been modified, or to the extent to which it has been
modified: that there are no existing defaults hereunder to the best of the
knowledge of the party so certifying, or specifying the defaults, if any; and
any additional statements of fact that may be requested or required from time to
time by any mortgagee or purchaser, or any proposed mortgage lender or
purchaser; that any such certification shall be without prejudice as between the
Landlord and Tenant, it being agreed that any document required hereunder shall
not be used in any litigation between Landlord and Tenant.
ARTICLE XIX - QUIET ENJOYMENT
SECTION 19.01. QUIET ENJOYMENT. Tenant, upon payment of the Basic Rent
and all additional rents and all sums herein reserved and due upon the due
performance of all the Terms, covenants and conditions herein contained on the
Tenant's part to be kept and performed, shall and may at all times during the
Term hereby granted peaceably and quietly enjoy the Demised Premises, subject,
however, to the Terms of this Lease.
ARTICLE XX - INDEMNIFICATION
SECTION 20.01. INDEMNIFICATION OF LANDLORD. Tenant agrees to indemnify and
save Landlord harmless from and against all liability, and all loss, cost and
expense, including reasonable attorneys' fees, arising out of the operation,
maintenance, management and control of the Premises or in connection with (a)
any loss, injury or damage whatsoever caused to or by any person, including but
not limited to Tenant, its employees or agents, licensees or invitees, or
property including Tenant's property arising out of any occurrence on the
Premises, (b) any breach of this Lease by Tenant, (c) any act or omission of
Tenant or of any person on the Premises, occuring in, on, or about the Premises
or on the sidewalks adjoining the same, or (d) any contest or proceeding brought
by Tenant as provided for herein. However, notwithstanding anything herein
contained to the contrary, Tenant shall not be obligated or required hereunder,
to hold harmless or indemnify Landlord from or against any liability, loss,
cost, expense, or claim arising from any act, omission or negligence of Landlord
or its agents, servants, employees or contractors. The provisions hereof are not
intended to abrogate the provisions regarding waiver of subrogation by the
parties to this Lease.
ARTICLE XXI - DEFAULTS AND REMEDIES
SECTION 21.01. TENANT'S DEFAULTS. If Tenant defaults (a) in the payment of
Basic Rent or any additional rent and fails to cure the default within 10 days
after receipt of notice specifying the default, or (b) in compliance with or in
the performance of any of the other covenants or conditions of this lease, and
fails to cure the same within 30 days after the receipt of notice specifying the
default, or within such additional period of time beyond said 30 days as shall
be required by reason of strikes, lockouts, acts of God, governmental
restrictions or prohibitions, or other causes beyond Tenant's Control, whether
similar or dissimilar to the foregoing (each of which notices specifying a
default is referred to in this lease as "FIRST NOTICE"), then at the expiration
of said 10 days in the case of a default described in (a), at the expiration of
said 30 days (or longer period as aforesaid in the case of a default described
in (b), Landlord may (x) cancel and terminate this lease on not less than five
days' notice (hereinafter called "SECOND NOTICE") to Tenant, and on the date
specified in the Second Notice the term of this lease shall terminate and
expire, and Tenant shall then quit and surrender the Premises to Landlord, but
Tenant shall remain liable as hereinafter provided and/or (y) at any time
thereafter re-enter and resume possession of the Premises by summary
proceedings, an action in ejectment or by force or otherwise and dispossess or
remove Tenant and other occupants and their effects and hold the Premises as if
this lease had not been made; and Tenant waives the service of any additional
notice of intention to re-enter or to institute legal proceedings to that end.
SECTION 21.02. LANDLORD'S REMEDIES. If this lease shall be terminated or
if Landlord shall be entitled to re-enter the Demised Premises and dispossess or
remove Tenant under the provisions of Section 21.01, the Landlord, or Landlord's
agents or servants, may immediately or at any time thereafter re-enter the
Demised Premises and remove therefrom the Tenant, its agents, employees,
servants, licensees, and any subtenants and other persons, firms or
corporations, and all or any of its or their property therefrom, either by
summary dispossess proceedings or by any suitable action or proceeding at law
without being liable to indictment, prosecution or damages therefor, and
repossess and enjoy said premises together with all additions, alterations and
improvements thereto.
SECTION 21.03. LANDLORD'S DAMAGES. In case of such termination, re-entry,
or dispossess or removal by summary proceedings or otherwise, the annual rent
and all other charges required to be paid by the Tenant hereunder shall
thereupon become due and be paid up to the time of such termination, re-entry,
or dispossess or removal; and the Tenant shall also pay to the Landlord all
reasonable expenses which the Landlord may then or thereafter incur for
necessary legal expenses, attorneys' fees, brokerage commissions, and all other
necessary costs paid or incurred by the Landlord for restoring the Demised
Premises to good order and condition and for altering and otherwise preparing
the same for re-letting. The Landlord may, at any time and from time to time,
re-let the Demised Premises, in whole or in part, either in its own name or as
agent of the Tenant, for a term or terms which, at the Landlord's option, may be
for the remainder of the then current Term of this Lease, or for any longer or
shorter period, and (unless the statute or rule of law which governs the
proceedings in which such damages are to be proved, limits or shall limit the
amount of such claim capable of being so provided and allowed, in which case the
Landlord shall be entitled to prove as and for liquidated damages and have
allowed an amount equal to the maximum allowed by or under any such statute or
rule of law) the Tenant shall be obligated to, and shall pay to the Landlord as
damages, upon demand, and the Landlord shall be entitled to recover of and from
the Tenant, at the election of the Landlord, either
(a) liquidated damages, in an amount which, at the time of such
termination, re-entry or dispossess or removal by the Landlord, as the case may
be, is equal to the excess, if any, of the then present value of the
installments of annual rent reserved hereunder, otherwise have constituted the
unexpired portion of the then current Term of this Lease, over the then present
value of the market rental value of the Demised Premises for such unexpired
portion of the then current Term of this Lease, discounted at the rate of six
(6%) percent per annum; or
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(b) damages (payable in monthly installments, in advance, on the first
day of each calendar month following such termination re-entry or dispossess,
and continuing until the date originally fixed herein for the expiration of the
then current Term of this Lease) in any amount or amounts equal to the excess,
if any, of the sums of the aggregate expenses paid by the Landlord during the
month immediately preceding such calendar month for all such items as, by the
terms of this Lease, are required to be paid by the Tenant, plus an amount
equal to the amount of the installment of annual rent which would have been
payable by the Tenant hereunder in respect to such calendar month, has this
Lease and the Demised Term not been so terminated, and had the Landlord not so
re-entered, over the sum of rents, if any, collected by or accruing to the
Landlord in respect to such calendar month pursuant to such re-letting or any
holding over by any subtenants of the Tenant, plus the amount of the rental
value of any portion of the Demised Premises occupied by the Landlord or any
agent of the Landlord. Any suit for any month shall not prejudice in any way
the rights of the Landlord to collect the deficiency for any subsequent month
by a similar proceeding. The Landlord, at its option and at its expense, may
make such alterations, repairs and/or decorations in the Demised Premises as in
its reasonable judgment the Landlord considers advisable and necessary, and the
making of such alterations, repairs and/or decorations shall not operate or be
construed to release the Tenant from liability hereunder.* Landlord will use
reasonable efforts to re-let Demised Premises, however Landlord shall in no
event be liable in any way whatsoever for failure to re-let the Demised
Premises, or in the event that the Demised Premises are re-let, for failure to
collect rent thereof under such re-letting; and in no event shall the Tenant be
entitled to receive any excess of such annual rents over the sums payable by
the Tenant to the Landlord hereunder but such excess shall be credited to the
unpaid rentals due hereunder, and to the expenses of re-letting and preparing
for re-letting as provided in this Section 21.03. Suit or suits for the
recovery of such damages, or any installments thereof, may be brought by the
Landlord from time to time at its election, and nothing herein contained shall
be deemed to require the Landlord to postpone suit until the date when the Term
of this Lease would have expired if it has not been terminated under the
provisions of this Lease, or under any provision of law, or had the Landlord
not re-entered into or upon the Demised Premises.
SECTION 21.04. WAIVER OF REDEMPTION. Tenant hereby waives all rights of
redemption to which Tenant or any person claiming under Tenant might be
entitled, after an abandonment of the Premises, or after a surrender and
acceptance of the Premises and the Tenant's leasehold estate, or after a
dispossession of Tenant from the Demised Premises, or after a termination of
this lease, or after a judgment against Tenant in an action in ejectment, or
after the issuance of a final order or warrant of dispossess in a summary
proceeding, or any other proceeding or action authorized by any rule of law or
statute now or hereafter in force or effect.
ARTICLE XXII - BANKRUPTCY
SECTION 22.01. BANKRUPTCY, INSOLVENCY, ETC. If the Tenant shall have
applied or consented to the appointment of a custodian, receiver, trustee or
liquidator, or other court appointed fiduciary of all or a substantial part of
its property; or a custodian shall have been appointed with or without the
consent of the Tenant; or Tenant is generally not paying its debts as they
become due by means of available assets and the fair use of credit; or has made
a general assignment for the benefit of creditors; or has committed an act of
bankruptcy, or has filed a voluntary petition in bankruptcy, or a petition or
an answer seeking reorganization or an arrangement with creditors or seeking to
take advantage of any insolvency law, or an answer admitting the material
allegations of a petition in any bankruptcy, reorganization or insolvency
proceeding; or has taken corporate action for the purpose of effecting any of
the foregoing, or if within thirty (30) days after the commencement of any
proceeding against the Tenant seeking any reorganization, rehabilitation,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under the present or any future federal bankruptcy code or any present
or future applicable federal, state or other statute or law, such proceeding
shall not have been dismissed; or if, within thirty (30) days after entry of an
Order for Relief under the present Bankruptcy Code, or similar order under
future similar legislation, or the appointment of any trustee, receiver,
custodian, liquidator, or other court appointed fiduciary of the Tenant
(without the consent or acquiescence of such party), or of all or any
substantial part of its property or any of the leased Premises, such order or
appointment shall not have been vacated or stayed on appeal or otherwise or if,
within thirty (30) days after the expiration of any such stay, such order or
appointment shall not have been vacated, the occurrence of any one of such
contingencies shall be deemed to constitute and shall be construed as a
repudiation by Tenant of Tenant's obligations hereunder and shall cause this
lease IPSO FACTO to be cancelled and terminated, without thereby releasing
Tenant; and upon such termination Landlord shall have the immediate right to
re-enter the Demised Premises and to remove all persons and property therefrom
and this lease shall not be treated as an asset of the Tenant's estate and
neither the Tenant nor anyone claiming by, through or under Tenant by virtue of
any law or any order of any Court shall be entitled to the possession of the
Demised Premises or to remain in the possession thereof. Upon the termination
of this lease, as aforesaid, Landlord shall have the right to retain as partial
damages, and not as a penalty, any prepaid rents and any security deposited by
Tenant hereunder and Landlord shall also be entitled to exercise such rights
and remedies to recover from Tenant as damages such amounts as are specified in
Article XXI hereof, unless any statute or rule of law governing the proceedings
in which such damages are to be proved shall lawfully limit the amount of such
claims capable of being so proved, in which case Landlord shall be entitled to
recover, as and for liquidated damages, the maximum amount which may be allowed
under any such statute or rule of law. As used in this Article XXII, the term
"Tenant" shall be deemed to include Tenant and its successors and assigns and
the guarantor of the Tenant's obligations under this lease, if any.
ARTICLE XXIII - CHANGES, ALTERATIONS
SECTION 23.01. CHANGES AND ALTERATIONS. If Landlord shall have first
consented thereto in writing, Tenant may make structural and nonstructural
changes, alterations, additions and improvements to the Demised Premises.
Landlord's reasonable consent shall be granted if the proposed work does not:
(a) Impair the structural soundness of the building;
(b) Lessen the present and future value of the building or improvement;
(c) Change the type of use from a general warehouse to a specialty type of
building with a limited resale or re-letting market; or
(d) Increase risk or endanger the building or occupants of the building.
Furthermore, Landlord reserves the right to require Tenant to restore the
premises to the original condition as nearly as may be practical, upon the
expiration or sooner termination of this Lease. If Landlord requests, Tenant
shall deliver to Landlord assurance, reasonably satisfactory to Landlord, of
Tenant's financial ability to complete and pay for such changes, alterations,
additions or improvements, and restorations thereof. In any event, however,
Tenant may, without Landlord's consent, make nonstructural changes,
alterations, additions and improvements costing in each case less than
$10,000.00 (hereinafter called Minor Alterations). Tenant shall give written
notice to Landlord of each change, alteration, addition and improvement to the
Demised Premises costing more than $10,000.00 and obtain Landlord's consent as
provided herein. In the event, however, that as the result of any changes,
alterations, additions and improvements made by Tenant with or without
Landlord's consent, the Building or any other part of the Demised Premises is
damaged thereby, Tenant, at Tenant's sole cost, shall be obligated and
responsible to repair said damage forthwith and restore the Building or Demised
Premises to the condition they were in just prior to the damage. Landlord shall
have no obligation to make any repairs with respect to any changes,
alterations, additions, and improvements made by Tenant. Tenant need not obtain
or furnish Landlord any certificate of completion or otherwise (unless required
by law) with respect to Minor Alterations.
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ARTICLE XXIV - END OF TERM
SECTION 24.01. END OF TERM.
(a) CONDITION OF THE DEMISED PREMISES. Tenant shall on the last day of
the Term, or upon its earlier termination, peaceably and quietly surrender and
deliver up to Landlord the Demised Premises broom clean including all
buildings, alterations, rebuildings, replacements, changes or additions placed
by Tenant thereon (except as expressly provided to the contrary in Section
23.01), with all equipment in or appurtenant thereto, in as good condition and
repair as when delivered to Tenant; subject, however, to reasonable wear and
tear, and to damage or destruction by any of the risks covered by insurance
required under Section 7.01 of this Lease, or a taking by eminent domain, if
this Lease is terminated by reason of such damage or destruction, or such
taking.
(b) REMOVAL OF TRADE FIXTURES. Not withstanding anything to the
contrary contained in any other Article of this Lease but subject to subsection
24.01 (c) below and provided Tenant is not in default hereunder beyond any
grace period to cure the same, Tenant may remove all trade fixtures installed
or paid for by it, however affixed to the realty. If any trade fixtures or
personal property are not removed by the end or earlier termination of the
Term, they shall be deemed abandoned if Landlord shall so elect, and if
Landlord shall not so elect, it may cause the removal and storage of same at
Tenant's risk and expense, but if the Term ends by reason of condemnation or
destruction of all or part of the Premises. Tenant shall have a reasonable time
to effect such removal without being deemed to abandon said property. Tenant,
at Tenant's cost, shall repair any damage caused to the Premises by reason of
such removal. All obligations of Tenant under this paragraph shall survive the
termination of this lease.
(c) COMPLETION OF REPAIRS. Any repair or restoration required to be
performed by Tenant in order for Tenant to comply with its obligations under
this Section 24.01 shall be completed on or before thirty (30) days prior to
the end of the term or earlier termination of this Lease ("End of Term"). On or
about thirty (30) days prior to this End of Term representatives of Landlord
and Tenant shall inspect the Demised Premises to determine what repair or
restoration remains to be completed, if any. If Tenant has not completed said
repair or restoration within the time set forth above Landlord shall promptly
advise Tenant of such fact and shall specify the work which has not been
completed. Notwithstanding any other provision of this Lease, Tenant's failure
to complete such repair or restoration by no later than fifteen (15) days prior
to the End of Term shall, without further notice, constitute an uncured event
of default hereunder. Landlord shall have the right to inspect the Demised
Premises to determine whether Tenant has completed such work within the time
periods provided herein. During the last thirty (30) days prior to the End of
Term Landlord shall be permitted access to the Demised Premises for the purpose
of performing such work as Landlord may desire in which event Landlord shall
use reasonable efforts not to interfere with Tenant's activities at the Demised
Premises.
SECTION 24.02. LANDLORD'S RIGHT TO INSPECT AND EXHIBIT SIGNS. Tenant
shall permit Landlord or its agents to enter the Demised Premises during
business hours on not less than 48 hours prior notice for the purpose of
inspecting or showing the Demised Premises to persons wishing to purchase the
same and, at any time within one year prior to the expiration of the term, to
persons wishing to rent same; and Tenant shall, within one year prior to the
expiration of the term, permit the usual notice of "To Let", "For Rent" and
"For Sale" to be placed at reasonable locations on the Demised Premises and to
remain thereon without hindrance and molestation.
ARTICLE XXV - DISPUTES
SECTION 25.01. RESOLUTION OF DISPUTES. All disagreements, controversies
and disputes (other than with regard to the payment of the Basic Rent and
additional rent) between the parties arising out of or related to
interpretation, performance, validity or enforcement of any of the provisions of
this Lease shall be resolved by a final judgment in any court of competent
jurisdiction.
SECTION 25.02. NO ABATEMENT IN RENT PENDING FINAL JUDGMENT; LIMITED
RIGHT OF OFFSET AFTER AWARD. The parties expressly agree that during the
pendency of any litigation and until such dispute shall have been resolved
thereby, Tenant shall continue to pay the Basic Rent and any additional Rent
stipulated herein without any abatement or deduction. If the dispute as
resolved by a court of competent jurisdiction results in an award to Tenant,
and Landlord does not promptly satisfy the said award in accordance with the
Terms thereof, the Tenant shall have the right to offset said award against the
Basic Rent to become due hereunder; provided, however, that the right of offset
is expressly limited to exclude from any right of offset that portion of the
Basic Rent necessary to satisfy (i) the mortgage obligations of the Landlord as
Mortgagor, to the extent such obligations are set forth in the provisions of
the Note and Mortgage; and (ii) in addition to the amounts required under (i)
above, such amounts as then may be required to satisfy the obligations of the
Landlord in the operation of the Demised Premises under the provisions of this
Lease.
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ARTICLE XXVI - GENERAL PROVISIONS
SECTION 26.01. NO WASTE. The Tenant covenants not to do or suffer any
waste or damage, or injury to any building or improvement now or hereafter on
the Demised Premises, or the fixtures and equipment thereof, or permit or
suffer any overloading of the floors thereof.
SECTION 26.02. LANDLORD'S LIABILITY. If Landlord shall breach any of
the provisions hereof, Landlord shall only be liable to Tenant for monetary
damages and Landlord's liability shall in no event exceed the Landlord's
interest in Landlord's Property as of the date of Landlord's breach; and Tenant
expressly agrees that any judgment or award which it may obtain against
Landlord shall be recoverable and satisfied solely out of the right, title and
interest of Landlord in the Demised Premises and Tenant shall have no rights of
lien or levy against any other property of Landlord, nor shall any other
property or assets of the Landlord be subject to levy, execution or other
enforcement proceedings for the collection of any such sums or satisfaction of
any such judgment or award.
Landlord hereby agrees that the aggregate principal outstanding under
any mortgage or mortgages placed upon Landlord's Property during the Initial
Term of this Lease shall not exceed $10,000,000.00; and thereafter the maximum
mortgage amount shall be increased by multiplying $10,000,000.00 by the Index
Change as defined in Section 26.22(e). For purposes of this Section, in the
definition of "Index Change" the words "mortgage is signed" shall be
substituted for the words "relevant Renewal Term commences" in the fifth line.
SECTION 26.03. PARTIAL INVALIDITY. If any Term or provision of this
Lease or the application thereof to any party or circumstances shall to any
extent be invalid or unenforceable, the remainder of this Lease or the
application of such term or provision to parties or circumstances other than
those to which it is held invalid or unenforceable, shall not be affected
thereby, and each Term and provision of this Lease shall be valid and enforced
to the fullest extent permitted by law.
SECTION 26.04. NO WAIVER. One or more waivers by either party of the
obligation of the other to perform any covenant or condition shall not be
construed as a waiver of a subsequent breach of the same or any other covenant
or condition.
The receipt of rent by the Landlord, with knowledge of any breach of
this Lease by the Tenant or of any default on the part of the Tenant in the
observance or performance of any of the conditions or covenants of this Lease,
shall not be deemed to be a waiver of any provision of this Lease. Neither the
acceptance of the keys nor any other act or thing done by the Landlord or any
agent or employee during the Term herein demised shall be deemed to be an
acceptance of a surrender of said premises, excepting only an agreement, in
writing, signed by the Landlord accepting or agreeing to accept such a
surrender.
SECTION 26.05. NUMBER AND GENDER. Wherever herein the singular number
is used, the same shall include the plural and the masculine gender shall
include the feminine and neuter genders.
SECTION 26.06. SUCCESSORS AND ASSIGNS. The Terms, covenants and
conditions herein contained shall be binding upon and inure to the benefit of
the respective parties and their successors and assigns.
SECTION 26.07. ARTICLE AND MARGINAL HEADINGS. The article and marginal
headings herein are intended for convenience in finding the subject matters,
are not to be used in determining the intent of the parties to this Lease.
SECTION 26.08. ENTIRE AGREEMENT. This instrument contains the entire
and only agreement between the parties, and no oral statements or
representations or prior written matter not contained in this instrument shall
have any force or effect. This Lease shall not be modified in any way or
terminated except by a writing executed by both parties.
SECTION 26.09. OBLIGATIONS ALSO COVENANTS. Whenever in this Lease any
words of obligation or duty are used, such words or expressions shall have the
same force and effect as though made in the form of covenants.
SECTION 26.10. COST OF PERFORMING OBLIGATIONS. The respective obligations
of the parties to keep, perform and observe any Terms, covenants or conditions
of this Lease shall be at the sole cost and expense of the party so obligated.
SECTION 26.11. REMEDIES CUMULATIVE. The specified remedies to which
the Landlord or Tenant may resort under the Terms of this Lease are cumulative
and are not intended to be exclusive of any other remedies or means of redress
to which the Landlord or Tenant may be lawfully entitled in case of any breach
or threatened breach of any provision of this Lease.
SECTION 26.12. HOLDING OVER. If Tenant holds over after the expiration
or earlier termination of this Lease, and if Tenant is not otherwise in default
hereunder, such holding over shall not be deemed to create an extension of the
Term, but such occupancy shall be deemed to create a month-to-month tenancy at
a rental rate of 150% of the then current Basic Rent, and on the same terms and
conditions (except as the same may be then inapplicable) as are in effect on
the date of said expiration or earlier termination.
SECTION 26.13. UTILITIES.
(a) UTILITY LINES. Landlord shall be responsible for bringing all
utilities and utility services to the Building and connecting them to the
interior lines installed in the Demised Premises.
(b) UTILITY CHARGES. Tenant shall undertake and be responsible for having
all utilities metered in its name in the Demised Premises and agrees to pay all
charges for same directly to the respective utility companies. Such utilities
include gas, water, sewer, electricity, heat, power, telephone or other
communication service or other utility or service used, rendered or supplied to
Tenant at the Demised Premises throughout the demised Term.
(c) SPRINKLER AND SECURITY MONITORING SERVICE. Tenant shall install a
Sprinkler Monitoring Service and a Security Monitoring Service with respect to
the Demised Premises, all at Tenant's own cost and expense, and subject to all
provisions of this Lease pertaining to construction and alterations in Articles
VIII and XXIII and in Section 26.21 of this Article.
(d) WATER LINE AND SEWER. Tenant acknowledges that the water line and
the sanitary sewer pump station and force main shown on Exhibit A, serve both
buildings on Landlord's Property. The costs of operation, maintenance and
repair of the water line, pump station and force main shall be performed by
Landlord and Tenant shall reimburse Landlord for its pro rata share of the
costs, such share to be calculated in accordance with the formula in Section
6.01.
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SECTION 26.14. SIGNS.
(a) ERECTION OF SIGNS. Tenant shall have the right and privilege of
erecting signs for identification purposes at the Demised Premises provided,
however, that no sign shall be erected on the roof and that all signs comply
with the applicable rules and regulations of the applicable governmental boards
and bureaus having jurisdiction thereof, and Tenant shall remove same at the
expiration or sooner termination of this Lease. Notwithstanding the foregoing,
Landlord shall have the right to order removal of such signs if in its
reasonable judgment the content or design of said signs are not in harmony with
the character of the building or the surrounding locale. In such case Tenant
shall promptly remove same.
(b) REPAIR OF DAMAGE. Tenant shall be responsible for any damage
caused by said signs and any damage so caused shall be repaired forthwith at
Tenant's sole cost and expense. In the event any sign erected by Tenant is
removed during the term of this Lease or at the expiration or earlier
termination thereof, Tenant shall repair any damage whatsoever caused by the
removal at Tenant's sole cost and expense.
SECTION 26.15. FORCE MAJEURE. The period of time during which the
Landlord is prevented from performing any act required to be performed under
this Lease by reason of fire, catastrophe, labor difficulties, strikes,
lock-outs, civil commotion, acts of God or of the public enemy, governmental
prohibitions or preemptions, embargoes, inability to obtain materials or labor
by reason of governmental regulations or prohibitions, or other events beyond
the reasonable control of Landlord, as the case may be, shall be added to the
time for performance of such act, and Landlord shall not be liable to Tenant or
in default under this Lease as the result thereof.
SECTION 26.16. VACANCY OR ABANDONMENT. In the event that the Demised
Premises shall become vacant as the result of being vacated or abandoned by
Tenant during the Term and such vacancy or abandonment shall exist for a period
of two months, Landlord may re-enter the same, either by force or otherwise,
without being liable to prosecution therefor and re-let said Demised Premises
as agent of Tenant and receive the rent therefor and apply the same first to
payment of such expenses as Landlord may be put to in reentering and then to
payment of rent due under this Lease. In addition, such vacancy or abandonment
shall constitute a default under paragraph (b) of Section 21.01. In any event,
Tenant shall remain liable for any deficiency.
SECTION 26.17. GOVERNING LAW. The interpretation and validity of this
Lease shall be governed by the laws of the state in which the Demised Premises
are located.
SECTION 26.18. BROKERAGE. Tenant warrants and represents to the
Landlord that it has not sought or engaged the services of any real estate
broker with respect to leasing the Demised Premises.
SECTION 26.19. ADDITIONAL RENT. If Tenant shall be in default under
any term, covenant, provision or condition hereof, Landlord, after 30 days
notice that Landlord intends to cure such default, or without notice if in
Landlord's reasonable judgment an emergency shall exist, shall have the right,
but not the obligation, to cure such default, and Tenant shall pay to Landlord
upon demand as additional rent the reasonable cost thereof with interest at the
Lease Interest Rate (as hereinafter defined).
SECTION 26.20. NOTICE BY TENANT TO MORTGAGEE. If required by the
holder of a mortgage lien on the Premises (provided Tenant is furnished with
written notice of such requirement), Tenant agrees (a) to notify such mortgagee
of any alleged default by Landlord in any of the provisions of this Lease; and
(b) to allow to the said mortgagee a reasonable period of time to cure such
alleged default.
SECTION 26.21. CONDUCT OF TENANT'S WORK.
(a) The parties mutually acknowledge that Tenant may determine to
effect installation on the premises which are the subject of this Lease certain
leasehold improvements (Tenant's Work) in the nature of fixtures, equipment and
personalty. Such Tenant's Work is contemplated to be effected subsequent to the
execution hereof and prior to the Commencement Date as herein defined. Landlord
agrees to permit Tenant and its agents and contractors to enter upon the
premises for such purposes with the understanding by the parties that it is of
the essence that the progress of Landlord's construction of the improvements
required hereunder (Landlord's Work) on the lands described in Exhibit "B"
shall not be delayed, interrupted, or impeded; nor shall Landlord's Work be
affected in any manner whatsoever which, will result in an increase in the
Landlord's cost in completion of Landlord's Work prior to the Commencement Date.
(b) Subject to all of the provisions hereof, if Tenant shall determine
to perform Tenant's Work, Landlord agrees to permit Tenant and its contractors
and agents to enter upon the Demised Premises for such purposes.
(c) Labor used in the performance of Tenant's Work (Tenant's Labor)
shall be such as is compatible with the Labor used in the performance of
Landlord's Work (Landlord's Labor); and use of Tenant's Labor shall not result
in any stoppage, delay or interruption whatsoever in Landlord's Work.
(d) In the event of any stoppage, delay or interruption in Landlord's
Work while Tenant's Labor is engaged on the premises, Tenant shall forthwith
cease and desist use of Tenant's Labor on the premises upon receipt of written
notice from Landlord demanding cessation of Tenant's Work. Thereafter, Tenant
shall not engage Tenant's Labor on the premises until Landlord shall have given
written approval therefor.
(e) The parties acknowledge that the performance of Tenant's Work on
the premises may effect additional costs to Landlord above those costs
contemplated by Landlord in the performance of Landlord's Work by virtue of (i)
delay in the progress of Landlord's Work, or (ii) additional work made
necessary to complete Landlord's Work because of required changes in work
procedures to accommodate Tenant's Work.
(f) If Landlord determines during the progress of Tenant's Work that
the cost of Landlord's Work is being increased or will be increased by virtue
of the factors described in (e) (i) and (ii) above, Landlord shall have the
right to order Tenant to cease and desist in the performance of Tenant's Work;
and Tenant agrees to comply with such order or orders. Tenant shall not
recommence Tenant's Work unless and until Landlord and Tenant shall have
mutually agreed upon compensation to Landlord for such increase in costs to
Landlord. Any such agreement between Landlord and Tenant to compensate Landlord
for increased costs shall, among other things, provide for monthly invoices and
monthly payment.
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SECTION 26.22. DEFINITIONS.
(a) "RE-ENTER AND RE-ENTRY". The terms "re-enter" and "re-entry" as
used in this Lease are not restricted to their technical legal meaning.
(b) "LANDLORD". The term "Landlord" as used in this Lease means only
the holder, for the time being, of Landlord's interest under this Lease so that
in the event of any transfer of title to the Demised Premises Landlord shall be
and hereby is entirely freed and relieved of all obligations of Landlord
hereunder accruing after such transfer, and it shall be deemed without further
agreement between the parties that such grantee, transferee or assignee has
assumed and agreed to observe and perform all obligations of Landlord hereunder
arising during the period it is the holder of Landlord's interest hereunder.
(c) "LEASE INTEREST RATE". The term "Lease Interest Rate", as used in
Sections 7.03, 9.02 and 26.19 of this Lease, shall mean interest at the rate
which is three percent 3% in excess of the then current rate of interest
charged by the First Fidelity Bank, N.A., New Jersey as its so called "base
rate."
(d) "CONSTRUCTION WORK". The term "Construction Work" means the
performing of all services and the furnishing of labor and material and all
equipment necessary in the preparation for and completion of the construction
of the Building in accordance with the Final Plans, including, but not limited
to, the design of the improvements to be erected by Landlord, site preparation
and subsoil footings and foundations, grading, surfacing of parking area, paths
and ways, installation of all utilities, and the cleaning up and removal of
debris, so that when the Demised Premises are completed the Building shall be
fully available for the conduct of Tenant's business, except for such
installations as Tenant may make.
(e) "INDEX CHANGE". The term "Index Change" shall mean the "all items"
portions of the United States Department of Labor Bureau of Labor Statistics
Consumer Price Index for urban wage earners and clerical workers (1982-1984 =
100) for the city or region closest to the Demised Premises for which an index
is prepared for the shortest period for which an index is published which
includes the date on which this lease is signed, divided into the said index
for the shortest period for which an index is published which includes the date
on which the relevant Renewal Term commences. If the index is no longer
published, the index of consumer prices in such city or region most closely
comparable to said index, after making such adjustments as may be prescribed by
the agency publishing same or as otherwise may be required to compensate for
changes subsequent to the Commencement Date, in items included or method of
compilation or computation thereof, shall be substituted therefor.
SECTION 26.23 LATE PAYMENT SERVICE CHARGE Tenant covenants and agrees
to pay to the Landlord a "late payment service charge" equal to 4% of any rent
payment, or any other payment prescribed herein, which has not been paid in
accordance with the terms and conditions of this Lease Agreement. Said "late
payment service charge" shall be paid by Tenant to Landlord promptly upon
proper notice and demand therefor.
SECTION 26.24. CONSENTS. With respect to any provision of this Lease
which provides, or is held to provide that Landlord shall not unreasonably
withhold or unreasonably delay any consent or any approval. Tenant, in no
event, shall be entitled to make, nor shall Tenant make, any claim for, and
Tenant hereby waives any claim for money damages; nor shall Tenant claim any
money damages by way of setoff, counterclaim or defense, based upon any claim
or assertion by Tenant that Landlord has unreasonably withheld or unreasonably
delayed any consent or approval; but Tenant's sole remedy shall be to seek
specific performance of the Consent or approval in question through arbitration
proceedings as set forth in Article XXV.
SECTION 26.25. SAFETY REQUIREMENTS. All requirements promulgated by
any Federal, State or local governmental authority, including without
limitation, under the Occupational Safety and Health Act (OSHA), the Spill
Compensation and Control Act and the Environmental Clean Up Responsibility Act
(ECRA), with respect to Tenant's use of the Premises shall be the sole
responsibility of the Tenant, except that Landlord warrants that the Premises
are in compliance with governing requirements, if any, which are of general
application at the Commencement Date of the Lease Term for light industrial
type buildings, without regard to any specific use thereof (notwithstanding
that such use may be for the purposes herein permitted or may have been
consented to by Landlord).
SECTION 26.26. INFORMATION FOR MORTGAGEE. The Tenant shall furnish to
the Landlord any data or information which the Landlord shall reasonably
require in his preparation of applications for mortgage financing, or as may be
required by the Mortgage from time to time throughout the term of this Lease.
SECTION 26.27. INSPECTION BY LANDLORD. The Tenant agrees that Landlord,
its agents and other representatives, shall have the right to enter into and
upon said Premises, or any part thereof, at all reasonable hours, for the
purpose of examining the same upon reasonable advance notice not less than 24
hours, except in the event of emergency, or making such repairs or alterations
therein as may be necessary for the safety and preservation thereof, without
unduly disturbing the operations of Tenant.
SECTION 26.28. SUBMISSION. Submission of this Lease for examination or
signature of Tenant does not constitute an offer, reservation of, or option to
lease; and this Lease will not be effective or binding upon the parties as a
Lease or otherwise, until execution and delivery by both Landlord and Tenant.
SECTION 26.29. ENVIRONMENTAL COVENANTS.
(a) Tenant covenants not to discharge any "Hazardous Substances" or
"Wastes" (as said terms are defined in ECRA and/or Spill Compensation and
Control Act) upon the Premises or any adjacent lands. In the event of any such
discharge, Tenant shall immediately notify Landlord, and shall, at Tenant's
sole cost and expense, immediately take any and all actions required by law.
(b) Tenant agrees to conduct any and all environmental testing and
sampling required by ECRA not more than six months, or less than two months,
before the earlier of (i) the anticipated termination date of this Lease, or
(ii) the date on which Tenant intends to "close, terminate or transfer
operations" at the Premises (as those terms are defined in ECRA), or (iii) the
commencement of an assignment or sublease of all or a portion of the Premises,
or (iv) the termination of any such assignment or sublease. Tenant shall notify
Landlord at least seven days in advance of any such testing or sampling and
permit Landlord or its representatives to observe all testing and sampling
activities. Tenant shall provide to the Landlord, within seven days from
Landlord's request the following:
(1) the name, address and telephone number and primary contact name of
Tenant's environmental testing or sampling consultants or
contractors; and
(2) written authorization to such consultant or contractor to
communicate freely with Landlord or its environmental consultants
and to provide to Landlord or its environmental consultants, copies
of all written materials relating to the Premises.
(c) Tenant agrees to remove and clean up any Hazardous Substances or
Wastes prior to cessation of operation or termination of this Lease. In the
event that the clean-up is not completed prior to the termination date of this
Lease, Tenant shall be deemed to be a Hold Over in accordance with Section
26.12 and all the obligations of Tenant under the Lease shall continue until
such completion, including, but not limited to, the Tenant's obligation to pay
rent; provided, however, that Tenant's rights under the Lease shall be limited
to a right of access for the sole and limited purpose of completing the
required clean-up.
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(d) Landlord shall have the right to inspect the Premises and
surrounding lands and waters and to conduct environmental surveys and testing
of any nature whatsoever (collectively "Inspection"), at any time. Landlord's
right to conduct Inspection shall include, without limitation, a right of
access to all portions of the Premises for testing and a right to inspect all
of Tenant's raw materials, processes, work in process, finished products,
machinery, waste disposal procedures, waste disposal equipment and waste
materials, and the right to remove samples of any of the foregoing for
analysis. Landlord shall pay the cost of such Inspection unless any one or more
of the following conditions are applicable, in which event the entire cost and
expense of the Inspection shall be borne by the Tenant:
(1) the Inspection occurs within six months prior to, or within a
reasonable time after, (i) the termination date of the Lease or the
closure, termination or transfer of operations at the Premises and
Tenant has failed to provide such testing as required in subsection
(b) above; (ii) the assignment or sublease of all or a portion of
the Premises by Tenant and Tenant has failed to provide such
testing as required in subsection (b) above; or (iii) the
termination of any such assignment or sublease and Tenant or
Subtenant has failed to provide such testing as required in
subsection (b) above; or
(2) the Inspection is required by any governmental authority having
jurisdiction ("Environmental Regulator") and is related to Tenant's
use of or operations at the Premises; or
(3) the Inspection reveals any unlawful environmental contamination of
or discharge on the Premises; or
(4) the Inspection is the result of or in response to any discharge,
spill or contamination of the Premises, or any clean-up of any of
the foregoing.
As used herein, the costs and expenses of Inspection includes all costs
directly or indirectly related to such Inspection, or as may be required by any
Environmental Regulator in the formulation of a clean-up plan or otherwise.
(e) Landlord shall have the right of injunctive relief to enforce any and
all of Tenant's obligations under this Section.
(f) Landlord shall have the right to remedy, at Tenant's sole cost and
expense, which shall be due from Tenant upon demand as additional rent, any
environmental contamination revealed by any Inspection or clean-up required by
any Environmental Regulator.
(g) All rights and remedies of the Landlord under this Section are
cumulative and in addition to any other rights or remedies provided to Landlord
elsewhere in this Lease or pursuant to applicable law. In the event of any
conflict between the provisions of this Section and the other provisions of this
Lease, the provision which gives the greater protection to the Landlord shall
control.
(h) Notwithstanding anything to the contrary contained in this Lease,
Landlord shall indemnify and hold Tenant and its employees harmless from any
loss, liability, suits, expenses, including but not limited to reasonable
attorneys fees and expenses, and costs, including but not limited to any clean-
up costs and related remedial investigations and feasibility studies, arising
out of or related to Hazardous Substances or Waste existing on the Demised
Premises prior to the Commencement date hereof.
SECTION 26.30. TESTS PRIOR TO COMMENCEMENT. Prior to the Commencement
Date, the Landlord, at its own cost and expense, shall cause the Demised
Premises to be inspected by an environmental testing consultant who shall make
such tests as he shall deem reasonable so that he may issue to Landlord and
Tenant a report confirming that as of the Commencement Date of this Lease the
Demised Premises are in compliance with applicable governmental regulations.
SECTION 26.31. FIT AND FINISH. The parties herein acknowledge that
they have inspected several buildings constructed and leased by the Landlord to
others. The parties agree that the fit and finish of the Demised Premises shall
be substantially equal to the quality of those which they have inspected.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
Witness: LANDLORD:
/s/Ellen M. Carpenter /s/Isaac Heller
- ------------------------- -------------------------------
ELLEN M. CARPENTER Isaac Heller
Attest: TENANT:
/s/Emily Burger UNITED STATIONERS SUPPLY CO.
- ------------------------ -------------------------------
EMILY BURGER By:/s/Ronald W. Weissman
----------------------------
Ronald W. Weissman
Sr. Vice President, Logistics
-15-
EXHIBIT "B"
Township of Edison, County of Middlesex, State of New Jersey Being part of Lot
15, in Block 366-A, as shown on a map entitled Tax Map of the Township of
Edison.
The said Demised Premises consist of a one-story building located upon
the land above described. The said building encloses a total area of 133,177
sq. ft. including 12,578 sq. ft. of mezzanine area as more particularly shown
on Exhibit A. The land demised includes all of the land under the building
demised and additional lands as is more particularly shown within the Lease
Line on Exhibit A.
This demise is subject to the following Permitted Exceptions:
(a) A servitude of the public in and to that portion of the Premises that
lies within
(b) Restrictions to run with the land as follows:
(i) No building shall at any time be erected on the Premises unless
such building shall be set back 50 feet from abutting public roadways and
not less than 40 feet from other property boundaries.
(ii) All buildings erected on the property shall be of masonry
construction or its equivalent. All walls facing public roadways and the
first bay on each side of such walls shall be finished with face brick,
natural stone, architecturally treated concrete panels, e.g. stucco, modern
metal paneling or glass. Other walls shall be faced with common brick,
concrete block, or concrete panel construction or its equivalent.
(iii) All areas in the setbacks required by these restrictions shall be
used either for open landscaped and green areas, driveways or for service
access to the building or as a paved parking area subject to applicable
law. The said landscaped and green areas shall be properly maintained in a
slightly and attractive condition.
(iv) Water tower, water tanks, stand pipes, penthouses, elevators or
elevator equipment, stairways, ventilating fans or similar equipment
required to operate and maintain the building, fire or parapet walls,
skylight, tanks, cooling or other towers, wireless radio or television
masts, flagpoles, chimneys, smoke stacks, gravity flow storage and mixing
towers or similar structures may exceed a height of fifty (50) feet from
the established building grade only with the written approval of the
Landlord.
(v) In addition to such easements as shall have been reserved by
Landlord as provided herein, Landlord excepts and reserves for itself non-
exclusive easements under and through the above designated set-back areas
for constructing, erecting, maintaining and operating facilities, including
wires and conduits for lighting and power, telephone wires, gas and water
lines, railroad tracks, sanitary and storm sewer lines and drains, all of
which facilities are hereinafter referred to as Utilities, and the Landlord
may grant and convey easements to others for such purposes. All contracts
for the installation and maintenance of such Utilities shall provide, inter
alia, that the surface of the Premises shall be restored in harmony to its
condition existing prior to work performed thereon, and so as not to
interfere with Tenant's operations.
(vi) Outdoor storage areas shall be effectively screened from streets
upon which the Premises may have frontage by a wall, fence, shrubs, hedges
or other foliage, all of which shall be properly maintained in a sightly
and attractive condition.
(vii) Neither the Premises nor any portion thereof shall be used or
maintained as a dumping ground for rubbish, trash, garbage or other waste,
which shall be kept in sanitary containers and regularly taken away from
the Premises. All equipment for the storage or disposal of such material
shall be kept in a clean and sanitary condition and shall be effectively
screened from streets upon which the Premises may have frontage by a wall,
fence, shrubs, hedges or other foliage all of which shall be properly
maintained in a sightly and attractive condition.
(viii) The Premises shall not be used in any manner which will permit
dust, noxides, odors, fumes or harmful airborne particles or gases which
might contaminate, damage or injure persons or property to emanate or be
emitted from any structure or facility on the Premises.
(ix) The Premises shall not be used in any manner which will permit
solid or liquid contaminates to be put upon the land either under the
building(s) or outside of the building(s). No underground storage tanks,
wells, cisterns, pipes or other similar structures shall be constructed
without prior written approval of the Landlord. No pumping of underground
water shall be permitted.
(x) Upon any breach by the Tenant of any of the foregoing covenants or
conditions, Landlord shall have a remedy of injunctive relief in addition
to all other remedies available to Landlord under applicable law. It is
understood, however, that the breach of any of the foregoing covenants,
conditions and restrictions shall not defeat or render invalid the lien of
any mortgage on the Premises made in good faith and for value; provided,
however, that any breach or continuance thereof may be enjoined, abated or
remedied by the proper arbitration proceedings as aforesaid and provided
further, that each and all of the foregoing covenants, conditions and
restrictions shall at all times remain in full force and effect against
said Premises or any part thereof, title to which is obtained by
foreclosure of any such mortgage.
(xi) Reference in these restrictions and conditions to Landlord or
Tenant shall include their respective heirs, executors, administrators,
successors and assigns.
(c) Such facts as an accurate survey may disclose provided there is
nothing revealed thereby which would prohibit the use and occupancy by Tenant in
accordance with the provisions of the Lease.
(d) Lien of Construction mortgage, if any, encumbering the premises used
for the purpose of financing construction of the Building on the Demised
Premises, provided that at the Commencement Date an institutional permanent loan
commitment has been issued to and accepted by Landlord; or subject to mortgage
liens which are in compliance with Article XVIII "Subordination" of the Lease.
(e) Easements as shown on Exhibit "A".
Drawings under this Letter of Credit cannot be effected before
Very truly yours,
APPROPRIATE BANK
APPROPRIATE SIGNATURE
EXHIBIT D
TO:
RE: LOCATION:
AREA OF ROOF: SQUARE FEET
EFFECTIVE DATE:
Dear Sir:
The undersigned certifies that they have applied the roof on the building at the
above named location in a good and workmanlike manner, and do hereby guarantee
that, subject to the conditions herein set forth, they will, at their own cost
and expense, make or cause to be made such repairs of injury to or failure of
the said roof as may be necessary to maintain said roof in a watertight
condition during the period of five years from the "effective date" above
mentioned.
This guarantee shall not include damages caused by fire, hurricane, lightning,
tornado, hail, or other unusual phenomena of the elements, nor shall the
undersigned be liable for any defects caused by the act of any third party.
This guarantee is made with further conditions as follows:
a. The undersigned will be notified promptly in writing, if such repairs
are required, and the undersigned agrees to make such repairs within
five (5) working days after receiving such notice.
b. Nothing in this guarantee shall render the undersigned liable in any
respect for any damage to said building or any contents thereof.
c. The undersigned shall not be liable for any damage to said roof due to
settlement, failure or cracking of the roof deck, walls or foundations
of said building.
d. This guarantee runs to the owner named above, and shall be transferable
to any future owners, or tenants of said building provided only if we
are informed of same in writing.
Very truly yours,
___________________________________
EXHIBIT E
---------
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the ____ day of ________,
198, by and between
(hereinafter called "Mortgagee"),
ISAAC HELLER, an individual, with his principal office at 205 Mill Road,
Edison, New Jersey 08817 (hereinafter called "Lessor") and UNITED STATIONERS
SUPPLY CO., an Illinois Corporation, having its principal office at 2200 East
Golf Road, Des Plaines, Illinois 60016 (hereinafter called "Lessee");
W I T N E S S E T H:
WHEREAS, Lessee has by a written lease dated __________________,
(hereinafter called the "Lease") leased from Lessor all or part of certain real
estate and improvements thereon located in the Township of Edison, New Jersey,
as more particularly described in Exhibit A attached hereto (the "Demised
Premises"); and
WHEREAS, Lessor is encumbering the Demised Premises as security for a
loan in the original principal amount of from Mortgagee to Lessor
(the "Mortgage"); and
WHEREAS, Lessee, Lessor, and Mortgagee have agreed to the following
with respect to their mutual rights and obligations pursuant to the Lease and
the Mortgage;
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) paid
by each party to the other and the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt whereof is
hereby acknowledged, the parties hereto do hereby covenant and agree as follows:
(1) Lessee's interest in the Lease and all rights of Lessee thereunder
shall be and are hereby declared subject and subordinate to the Mortgage upon
the Demised Premises and its terms, and the term "Mortgage as used herein shall
also include any amendment, supplement, modification, renewal or replacement
thereof.
(2) In the event of any foreclosure of the Mortgage or any conveyance
in lieu of foreclosure, provided that the Lessee shall not then be in default
beyond any grace period under the Lease, Lessee shall not be made a party in
any action or proceeding to remove or evict Lessee or to disturb its
possession, nor shall the leasehold estate of Lessee created by the Lease be
affected in any way, and the Lease shall continue in full force and effect as a
direct lease between Lessee and Mortgagee.
(3) After the receipt by Lessee of notice from Mortgagee of any
foreclosure of the Mortgage or any conveyance in lieu of foreclosure, Lessee
will thereafter attorn to and recognize Mortgagee as its substitute Lessor, and
having thus attorned, Lessee's possession shall not thereafter be disturbed
provided, and so long as, Lessee shall continue to timely pay all rentals under
the Lease and otherwise observe and perform the covenants, terms and conditions
of the Lease.
(4) Lessee shall not prepay any of the rents under the Lease more than
one month in advance except with the prior written consent of Mortgagee.
(5) In no event shall Mortgagee be liable for any act or omission of
the Lessor, nor shall Mortgagee be subject to any offsets or deficiencies which
Lessee may be entitled to assert against the Lessor as a result of any act or
omissions of Lessor occurring prior to Mortgagee's obtaining possession of the
premises.
(6) No conveyance of Lessor's interest in the Demised Premises or any
part thereof to Lessee shall, insofar as Mortgagee is concerned, cause the fee
estate and leasehold estate created by the Lease to merge, rather said estates
shall remain separate and distinct and the Lease shall continue in full force
and effect notwithstanding the vesting of the leasehold and fee estates in any
single person or entity by reason of such conveyance or otherwise.
(7) The Lease may not be amended, altered, or terminated without the
prior written consent of Mortgagee.
(8) This Agreement and its terms shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
including without limitation, any purchaser at any foreclosure sale.
IN WITNESS WHEREOF, this Agreement has been fully executed under seal
on the day and year first above written.
By: ____________________________________
By: ____________________________________
________________________________________
ISAAC HELLER, Lessor
UNITED STATIONERS SUPPLY CO., Lessee
By: ____________________________________
By: ____________________________________
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE, dated the 21st of April, 1992, between:
---- ------
ISAAC HELLER, having an office at 205 Mill Road, Edison,
New Jersey 08817, hereinafter referred to as;
"LANDLORD"
and
UNITED STATIONERS SUPPLY CO., having an office at 2200
East Golf Road, Des Plaines, Illinois 60016, hereinafter
referred to as;
"TENANT".
W I T N E S S E T H:
WHEREAS, Isaac Heller and United Stationers Supply Co. entered into a
certain Agreement of Lease dated April 17, 1989 ("Lease") with respect to
certain real property premises located in the Township of Edison, County of
Middlesex, State of New Jersey ("Demised Premises") more particularly shown,
identified, and described in said Lease; and
WHEREAS, pursuant to Section 2.01(a) of the Lease, Tenant is currently
in its Initial Term, which Initial Term commenced on June 12, 1989 and is due
to expire on June 30, 1992; and
WHEREAS, the parties hereto desire to amend certain provisions of said
Lease so as to extend the Initial Term under the terms and conditions set forth
in this Amendment To Lease.
NOW THEREFORE, in consideration of the terms and conditions contained
herein together with other good and valuable consideration, the parties hereto
agree as follows:
1. The Initial Term of this Lease is hereby extended an additional
three (3) years commencing July 1, 1992 and shall terminate on June 30, 1995.
2. Section 5.01 of the Lease is hereby amended by deleting this
section in its entirety and replacing same with the following:
"Section 5.01 Rent During Initial Term. Landlord reserves and Tenant
covenants to pay to Landlord during the Initial Term of this Lease without
demand or notice, and without any setoff or deduction, a net basic rental
(herein called Basic Rent) as follows:
6/12/89 - 6/30/90 - $519,390.30 per year ($43,282.53 per month)
7/ 1/90 - 6/30/91 - $532,708.00 per year ($44,392.33 per month)
7/ 1/91 - 6/30/92 - $546,025.70 per year ($45,502.14 per month)
7/ 1/92 - 9/30/92 - $440,004.00 per year ($36,667.00 per month)
10/ 1/92 - 6/30/95 - $461,820.00 per year ($38,485.00 per month)
Such annual Basic Rent shall be paid monthly in installments in the amounts
set forth above, in advance, on the first day of each and every month."
-21-
3. Section 5.03 of the Lease is hereby amended by deleting this
Section in its entirety and replacing same with the following:
"SECTION 5.03. RENT DURING REMOVAL TERM(S).
(a) In the event the Tenant shall exercise the first option to renew
this Lease as provided for in Section 2.04, the annual Basic Rent during the
two (2) year first renewal period shall be as follows:
7/1/95 - 6/30/97 - $512,731.45 per year ($42,727.62 per month).
(b) In the event that Tenant shall exercise the second and/or third
renewal options provided for in Section 2.04, the annual Basic Rent during each
such renewal period shall be adjusted for the applicable term thereof by
multiplying $532,708.00 by the "Index Change" herein after defined, provided,
however, that the Basic Rent during any such renewal period(s) shall not be
less than the Basic Rent paid for the immediately preceding period."
4. Section 26.18 to the Lease is hereby amended by adding the
following new paragraph:
"Notwithstanding the foregoing, the parties hereto acknowledge that
Tenant has advised Landlord that it has dealt with McCollom Realty Ltd., a real
estate brokerage firm ("Broker"), regarding current market rentals for the
period July 1, 1992 through June 30, 1995. In consideration for Tenant's
extending the Initial Term as set forth herein, Landlord hereby agrees that
Landlord will pay said Broker pursuant to an Agreement entered into between
Landlord and said Broker."
5. Section 26.29 of the Lease is hereby amended by deleting this
Section in its entirety and replacing same with the following:
"SECTION 26.29. ENVIRONMENTAL CONVENANTS.
(a) Tenant covenants not to discharge any "Hazardous Substances" or
"Wastes" (as said terms are defined in ECRA and/or Spill Compensation and
Control Act) upon the Premises or any adjacent lands. In the event of any such
discharge by Tenant, its agents, employees, contractors, licensees or anyone
acting under its authority or right, Tenant shall immediately notify Landlord,
and shall, at Tenant's sole cost and expense, immediately take any and all
actions required by law.
(b) Tenant agrees to conduct any and all environmental testing and
sampling required by ECRA not more than six months, or less than two months,
before the earlier of (i) the anticipated termination date of this Lease, or
(ii) the date on which Tenant intends to "close, terminate or transfer
operations" at the Premises (as those terms are defined in ECRA), or (iii) the
commencement of an assignment or sublease of all or a portion of the Premises,
or (iv) the termination of any such assignment or sublease. Tenant shall notify
Landlord at least seven days in advance of any such testing or sampling and
permit Landlord or its representatives to observe all testing and sampling
activities. Tenant shall provide to the Landlord, within seven days from
Landlord's request the following:
(1) the name, address and telephone number and primary contact
name of Tenant's environmental testing or sampling
consultants or contractors; and
(2) written authorization to such consultant or contractor to
communicate freely with Landlord or its environmental
consultants and to provide to Landlord or its environmental
consultants, copies of all written materials relating to the
Premises.
(c) Tenant agrees to remove and clean up any Hazardous Substances or
Wastes caused by Tenant, its agents, employees, contractors, licensees or
anyone acting under its authority or right, prior to the cessation of operation
or termination of this Lease. In the event that the clean-up is not completed
prior to the termination date of this Lease, Tenant shall be deemed to be a
Hold Over in accordance with Section 26.12 and all the obligations of Tenant
under the Lease shall continue until such completion, including, but not
limited to, the Tenant's obligation to pay rent; provided, however, that
Tenant's rights under the Lease shall be limited to a right of access for the
sole and limited purpose of completing the required clean-up.
(d) Landlord shall have the right to inspect the Premises and
surrounding lands and waters and to conduct environmental surveys and testing
of any nature whatsoever (collectively "Inspection"), at any time. Landlord's
right to conduct Inspection shall include, without limitation, a right of
access to all portions of the Premises for testing and a right to inspect all
of Tenant's raw materials, processes, work in process, finished products,
machinery, waste disposal procedures, waste disposal equipment and waste
materials, and the right to remove samples of any of the foregoing for
analysis. Landlord shall pay the cost of such Inspection unless any one or more
of the following conditions are applicable, in which event the entire cost and
expense of the Inspection shall be borne by the Tenant:
(1) the Inspection occurs within six months prior to, or
within a reasonable time after, (i) the termination
date of the Lease or the closure, termination or
transfer of operations at the Premises and Tenant has
failed to provide such testing as required in
subsection (b) above; (ii) the assignment or sublease
of all or a portion of the Premises by Tenant and
Tenant has failed to provide such testing as required
in subsection (b) above; or (iii) the termination of
any such assignment or sublease and Tenant or Subtenant
has failed to provide such testing as required in
subsection (b) above; or
(2) the Inspection is required by any governmental
authority having jurisdiction ("Environmental
Regulator") and is related to Tenant's use of or
operations at the Premises; or
(3) the Inspection reveals any unlawful environmental
contamination of or discharge on the Premises caused by
Tenant, its Agents, invitees, employees, contractors,
licensees or anyone acting under its authority or
right; or
(4) the Inspection is the result of or in response to any
discharge, spill or contamination of the Premises, or
any clean-up of any of the foregoing caused by Tenant,
its agents, invitees, employees, contractors, licensees
or anyone acting under its authority or right.
As used herein, the costs and expenses of Inspection includes all
costs directly or indirectly related to such Inspection, or as may be required
by any Environmental Regulator in the formulation of a clean-up plan or
otherwise.
(e) Landlord shall have the right of injunctive relief of enforce any
and all of Tenant's obligations under this Section.
(f) Landlord shall have the right to remedy, at Tenant's sole cost
and expense, which shall be due from Tenant upon demand as additional rent, any
environmental contamination revealed by any Inspection or clean-up required by
any Environmental Regulator caused by Tenant, its Agents, invitees, employees,
contractors, licensees or anyone acting under its authority or right.
(g) All rights and remedies of the Landlord under this Section are
cumulative and in addition to any other rights or remedies provided to Landlord
elsewhere in this Lease or pursuant to applicable law. In the event of any
conflict between the provisions of this Section and the other provisions of
this Lease, the provision which gives the greater protection to the Landlord
shall control.
(h) Notwithstanding anything to the contrary contained in this Lease,
Landlord shall indemnify and hold Tenant and its employees harmless from any
loss, liability, suits, expenses, including but not limited to reasonable
attorneys fees and expenses, and costs, including but not limited to any
clean-up costs and related remedial investigations and feasibility studies,
arising out of or related to Hazardous Substances or Waste existing on the
Demised Premises prior to the Commencement Date or any Hazardous Substances or
Waste not caused by Tenant, its agents, invitees, employees, contractors,
licensees or anyone acting under its authority or right."
6. Except as modified herein, all of the terms and conditions as set
forth in the Agreement of Lease, as amended, shall remain in full force and
effect throughout the Term.
IN WITNESS WHEREOF, the parties hereunto set their hands and seals or
caused these premises to be duly executed by their proper corporate officers
the day and year first written above.
WITNESS: LANDLORD
/s/ Ellen M. Carpenter /s/ Isaac Heller
- ----------------------- --------------------------------
ATTEST: UNITED STATIONERS SUPPLY CO.
/s/ Joan M. Heffernan /s/ BY: Otis H Heller
- ----------------------- --------------------------------
Vice President
[LOGO OF I. HELLER GOES HERE]
I. Heller 205 Mill Road
Edison, N.J. 08817
(908) 287-4880
FAX (908) 287-5033
February 22, 1995
United Stationers Supply Company
2200 East Gulf Road
Des Plaines, Illinois 60016
RE: Lease dated April 17, 1989 as amended
by Amendment to Lease dated April 21, 1992
133,177 Square Foot Building, Edison, New Jersey
------------------------------------------------
Gentlemen:
This letter shall serve as a Second Amendment to the above referenced Lease.
In consideration of the terms and conditions contained herein together with
other good and valuable consideration, the parties hereto agree to amend the
Lease as follows:
1. Notwithstanding the provisions of Section 2.04 of the Lease, by their
signatures below, Landlord and Tenant hereby acknowledge and agree that
Tenant hereby exercises a right of renewal for a renewal period of
three (3) years ("First Renewal Period") commencing July 1, 1995 and
continuing through June 30, 1998 under the terms and conditions set
forth in this Second Amendment to Lease.
2. Landlord and Tenant hereby acknowledge that Tenant shall have two (2)
remaining renewal options of two (2) years each.
3. Notwithstanding the provisions of Section 5.03(a) of the Lease, as
stated in Paragraph 3 of the Amendment to Lease, it is hereby agreed
that Basic Rent for the First Renewal Period (7/1/95 - 6/30/98) shall
be as follows:
7/1/95 - 6/30/98 $461,820.00/yr payable $38,485.00/mo
4. Except as modified herein, all of the terms and conditions of said
Lease shall remain in full force and effect throughout the Term of this
Lease and any extensions thereof.
Ingenuity in distribution center
side location and construction.
United Stationers Supply Company
February 22, 1995
Page - 2
Please indicate your agreement and acceptance of the foregoing by signing
all four (4) copies of this letter where indicated below, and return same to
us. Two fully executed copies will be returned to you for your files. Thank you
for your courtesy and cooperation in this matter.
Very truly yours,
/s/ Isaac Heller
- -----------------------
ISAAC HELLER, LANDLORD
ACCEPTED AND AGREED:
UNITED STATIONERS SUPPLY CO,
TENANT
by: /s/ Otis H Heller
------------------------
Vice President