EXHIBIT 10.40
[LOGO OF WESTBELT BUSINESS PARK APPEARS HERE]
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into between WESTBELT BUSINESS PARK
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JOINT VENTURE, an Ohio joint venture partnership, 2777 Stemmons Freeway,
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Dallas, Texas 75207
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hereafter referred to as "Lessor" and BOISE CASCADE CORPORATION, a Delaware
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corporation.
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One Jefferson Square, Boise, Idaho 83728
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hereafter referred to as "Lessee":
WITNESSETH:
1. LEASED PREMISES: In consideration of the rents, terms, provisions and
covenants of this Lease Agreement, Lessor hereby leases, lets and demises to
Lessee the following described premises (referred to as "leased premises" and
containing approximately one hundred twenty-six thousand six hundred sixty-five
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(126,665)
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square feet) situated in Park Distribution Center Building A
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(sometimes referred to as "the building"): Situated in the City of Columbus,
County of Franklin, State of Ohio, and further described as:
1630 Westbelt Drive
Columbus, Ohio 43228
as outlined in red on the floor plan of the building attached hereto and made a
part hereof as Exhibit "A".
2. TERM: Subject to and upon the conditions set forth below, the term of
this Lease shall commence on (xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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the "completion date" as defined in paragraph 11 herein which Lessor shall use
its best efforts to establish as June 1, 1984 as to the warehouse portion of
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the leased premises, as shown on Exhibit "A", and July 1, 1984 as to the office
portion of the leased premises, as shown on Exhibit "A" and shall end no later
than September 30, 1989. Upon the completion date as specified in paragraph 11
herein, the parties shall execute an Amendment setting forth the termination
date of the Lease, which shall be no later than September 30, 1989.
3. LEASE RENT AND SECURITY DEPOSIT: Lessee agrees to pay the monthly rent
for the leased premises in the amount of Twenty-Nine Thousand Five Hundred
Fifty-Five Dollars ($29.555.00), which amount shall be payable to Lessor on the
first day of each calendar month, c/o Vantage Properties, Inc., P. O. Box 28248,
Columbus, Ohio 43228, with such rent commencing on December 1, 1984, or five (5)
months after the completion date, whichever is later (in either instance, the
"Rental Commencement Date"); provided, however, that Lessee agrees to pay to
Lessor the amount of Twenty-Seven Thousand Seven Hundred Dollars ($27,700.00)
per month for the period commencing with the later of November 1, 1984 or five
(5) months after the completion of the warehouse portion of the leased premises,
and ending with the day before the Rental Commencement Date. Provided, however,
that in the event the Rental Commencement Date is other than on the first day of
a month, the rent shall be prorated for the remainder of the month based on a
30-day month.
(c) The base rental set forth in the preceding subparagraph (a) shall be
subject to escalation of operating expenses as otherwise provided in this Lease.
(d) Other remedies for nonpayment of rent notwithstanding, if the monthly
rental payment is not received by Lessor on or before the tenth day of the month
for which rent is due, a service charge of five percent of all past due amounts
owed on such date shall become due and payable in addition to the regular rent
owed under this Lease.
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(e) In the event the operating expenses (as defined below) of Lessor upon
the building and/or project of which the leased premises are a part shall, in
any calendar year during the term of this Lease, exceed the sum of $____________
per square foot. Lessee agrees to pay as additional rental Lessee's pro rata
share of the excess operating expenses. Lessor may, within nine months following
the close of any calendar year for which additional rental is due under this
paragraph, invoice Lessee for the excess operating expenses. The invoice shall
include in reasonable detail all computations of the additional rental, and
Lessee agrees to make payment of the additional rental to Lessor within ten days
following receipt of the invoice. In the year in which this Lease terminates,
Lessor, in lieu of waiting until the close of the calendar year in order to
determine any excess operating expenses, has the option to invoice Lessee for
Lessee's pro rata share of the operating expenses based upon the previous year's
excess operating expenses: Lessor shall invoice Lessee under this option within
thirty days prior to the termination of the Lease or at any time thereafter once
the calendar year has closed, however, Lessor shall make any necessary
adjustment to Lessee's pro rata share of the operating expenses based on the
actual expenses. Lessee shall have the right, at its own expense and at a
reasonable time, to audit Lessor's books relevant to the additional rentals due
under this paragraph.
(f) The term "operating expenses" as used above (See Addendum item A.)
includes all expenses incurred with respect to the maintenance and operation of
the building of which the leased premises are a part, including but not limited
to maintenance and repair costs, water, sewer, security, trash and snow removal,
landscaping, wages and fringe benefits payable to employees of Lessor whose
duties are connected with the operation and maintenance of the building amounts
paid to contractors or subcontractors for work or services performed in
connection with the operation and maintenance of the building, all services,
supplies, repairs, replacements or other expenses for maintaining and operating
the building including common area and parking area. The term "operating
expenses" also includes all real property taxes and installments of special
assessments, including special assessments due to deed restrictions and/or
owners' associations, which accrue against the building of which the leased
premises are a part during the term of this Lease as well as all insurance
premiums Lessor is required to pay or deems necessary to pay, including public
liability insurance, with respect to the building. The term "operating expenses"
does not include any capital improvement to the building of which the leased
premises are a part, nor shall it include repairs, restoration or other work
occasioned by fire, wind, storm or other casualty income and franchise taxes of
Lessor, expenses incurred in leasing to or procuring of tenants, leasing
commissions, advertising, expenses, expenses for the renovating of space for new
tenants, interest or principal payments on any mortgage or other indebtedness of
lessor, compensation paid to any employee of Lessor above the grade of building
superintendent nor depreciation allowance or expenses.
4. SIGNS: Lessee shall have the right to erect signs requested by Lessee and
approvedin good taste only on the (or such other location as may be requested by
Lessee and approved by Lessor) subject to all applicable laws, deed restriction
and regulations. See Addendum Item B. The composition and location of such sign
shall be subject to approval of Lessor for the purposes of maintaining
architectural continuity and quality of design. No signs or other objects shall
be erected which are attached to the roof of the building and no signs shall be
attached to the building or canopy at right angles suspended by guy wires, but
shall be attached flush to the canopy in a safe and secure manner. All such
signs erected shall advertise Lessee's business only and no revenue producing
advertising shall be erected on the leased premises without specific written
permission of Lessor. Lessee shall not paint any signs directly on the walls of
the building or otherwise deface, damage or overload the building. Lessee shall
have the right to place lettering upon the entrance doors or upon the plate
glass windows of the leased premises: provided, however, that the lettering
shall not exceed six inches in height and shall be subject to the approval of
Lessor. See Addendum Item C. No other signs shall be displayed on the leased
premises without the prior written consent of Lessor. Lessee shall remove all
signs at the termination of this Lease, at Lessee's sole risk and expense and
shall in a workmanlike manner properly repair any damage and close any holes
caused by the removal of Lessee's signs.
5. USAGE: Lessee warrants and represents to Lessor that the leased premises
shall be used and occupied only for the purposes of general office and
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distribution See Addendum item D
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Lessee shall occupy the leased premises, conduct its business and control its
agents, employees, invitees and visitors in such a way as is lawful, reputable
and will not create any nuisance or otherwise interfere with, annoy or disturb
any other tenant in its normal business operations or Lessor in its management
of the building.
6. INSURANCE: Lessee shall not permit the leased premises to be used in any
way which would, be extra hazardous on account of fire or otherwise which would
in any way increase or render void the fire insurance on leasehold improvements
or contents in the building belonging to other tenants in the building. Lessee
warrants to Lessor that the insurance questionnaire (filled out by Lessee,
signed and presented to Lessor prior to the execution of this Lease Agreement)
accurately reflects Lessee's original intended use of the leased premises. The
insurance questionnaire is made a part of this Lease Agreement by reference as
though fully copied and recorded herein. If at any time during the term of this
Lease the State Board of Insurance or other insurance authority disallows any of
Lessor's sprinkler credits or imposes an additional penalty or surcharge in
Lessor's insurance premiums because of Lessee's original or subsequent placement
or use of storage racks or bins, method of storage or nature of Lessee's
inventory or any other act of Lessee, Lessee agrees to pay as additional rental
the increase (between fire walls) in Lessor's insurance premiums. If an increase
in the fire and extended coverage premiums paid by Lessor for the building in
which Lessee occupies space is caused by Lessee's use or occupancy of the leased
premises, or if Lessee vacates the leased premises and causes an increase, then
Lessee shall pay as additional rental the amount of such increase to Lessor.
7. REPAIRS AND MAINTENANCE: (a) Unless otherwise expressly provided, Lessor
shall not be required to make any improvements, replacement or repairs of any
kind or character on the leased premises during the term of this Lease except
such repairs as are set forth in this subparagraph. Lessor: shall at its expense
maintain only the roof, foundation soundness of the floors and exterior walls
(excluding all windows, window glass, plate glass, all doors and pest control
and extermination) of the building in good repair and condition except for
reasonable wear and tear See Addendum Item E Lessee shall repair and pay for any
damage caused by Lessee's negligence or default. Lessee shall immediately give
written notice to Lessor of the need for repairs, and Lessor shall proceed
promptly, after having had a reasonable opportunity, to make the repairs. Lessor
shall not be liable to Lessee, except as expressly provided in this Lease, for
any damage or inconvenience. Lessee shall not be entitled to any abatement or
reduction of rent by reason of any repairs, alternations or additions made by
Lessor under this Lease, see Addendum item F.
(b) Lessee shall, at its own risk and expense, maintain all other parts of
the buildings and other improvements on the leased premises in good repair and
condition (including all necessary replacement), including, but not limited to,
downspouts, dock bumpers, damage to the floors caused by Lessee's use, regular
mowing of any grass, trimming, weed removal, regular removal of debris See
Addendum item G. However, in a multi-occupancy building, Lessor reserves the
right to perform lawn maintenance and Lessee agrees to pay Lessor for lawn
maintenance on a pro rata basis Lessor shall repaint the exterior doors or other
exposed parts of the building which reasonably require periodic repainting to
prevent deterioration. Lessee shall take good care of all the property and its
fixture, including all landscaping, and suffer no waste??? Should Lessee neglect
to keep and maintain the leased premises, then Lessor shall have the right, but
not the obligation to have the work done and any reasonable costs therefor shall
be charged to Lessee as additional rental and shall become payable by Lease with
the payment of the rental next due. At the termination of this Lease Agreement,
Lessee shall deliver the leased premises "broom clean" in the same good order
and condition as existed at the commencement date or completion date of this
Lease ordinary wear, natural deterioration beyond the control of Lessee, damage
by fire, tornado or other casualty excepted.
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8. UTILITY SERVICE. Lessor shall provide the normal utility service
connections into the leased premises. Lessee shall pay the cost of all utility
services, including, but not limited to, initial connection charges, all charges
for gas, water and electricity used on the leased premises, and for all electric
light lamps or tubes. Lessee shall pay all costs caused by Lessee introducing
excessive pollutants into the sanitary sewer system, including permits, fees and
charges levied by any governmental subdivision for any pollutants or solids
other than ordinary human waste. Lessee shall be responsible for the
installation and maintenance of any dilution tanks, holding tanks, settling
tanks, sewer sampling devices, and traps, grease traps or similar devices as may
be required by the governmental subdivision for Lessee's use of the sanitary
sewer system. If the leased premises are in a multi-occupancy building, Lessee
shall pay all surcharges levied due to Lessee's use of sanitary sewer or waste
removal services insofar as such surcharges affect Lessor or other tenants in
the building. Lessee shall pay all charges for pest control and extermination.
Lessor shall not be required to pay for any services, supplies or upkeep in
connection with the leased premises. However, in a multi-occupancy building
Lessor. See Addendum item H.
10. COMPLIANCE WITH LAWS, RULES AND REGULATIONS: Lessee shall comply with
all laws, ordinances, orders, rules and regulations of state, federal, municipal
or other agencies or bodies having jurisdiction relating to the use, and
occupancy of the leased premises. Lessee will comply with the rules of the
building adopted by Lessor, which are set forth on a schedule attached to this
Lease. Lessor shall have the right at all times to amend the rules and
regulations of the building in any reasonable manner as may be deemed advisable
for the safety, care and cleanliness, and for the preservation of good order, of
the leased premises. All amendments in the rules and regulations of the building
will be sent by Lessor to Lessee in writing and shall thereafter be earned out
and observed by Lessee.
11. LESSOR IMPROVEMENTS: See Addendum item I.
12. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make or allow to be made
any alterations or to the leased premises without first obtaining the written
consent of Lessor. Any alterations, to the leased premises made by Lessee shall
at once become the property of Lessor and shall be surrendered to Lessor upon
the termination of this Lease; provided, however, this clause shall not apply to
moveable equipment or furniture owned by Lessee which may be removed by Lessee
at the end of the term of this Lease if Lessee is not then in default and if
such equipment and furniture is not then subject to any other rights, liens and
interests of Lessor. See Addendum item J.
13. CONDEMNATION: (a) If, during the term (or any extension or renewal) of
this Lease, all or a substantial part of the leased premises are taken for any
public or quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain or by private purchase in lieu thereof, and the
taking would prevent or materially interfere with the use of the leased premises
for the purpose for which they are then being used, this Lease shall terminate
and the rent shall be abated during the unexpired portion of this Lease
effective on the date physical possession is taken by the condemning authority.
See Addendum item K.
(b) In the event a portion of the leased premises shall be taken for any
public or any quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain or by private sale in lieu thereof,
and this Lease is not terminated as provided in the subparagraph above. Lessor
may, at Lessor's sole risk and expense, restore and reconstruct the building and
other improvements situated on the leased premises to the extent necessary to
make it reasonably tenantable. The rent payable under this Lease during the
unexpired portion of the term shall be adjusted to such an extent as may be fair
and reasonable under the circumstances. See Addendum item L.
14. FIRE AND CASUALTY: (a) If the leased premises should be totally
destroyed by fire, tornado or other casualty, or if the leased premises should
be so damaged so that rebuilding or repairs cannot reasonably be completed
within one hundred and twenty (120) working days after the date of written
notification by Lessee to Lessor of the destruction, this Lease shall terminate
and the rent shall be abated for the unexpired portion of the Lease, effective
as of the date of the written notification.
(b) If the leased premises should be partially damaged by fire, tornado or
other casualty, and rebuilding or repairs can reasonably be completed within one
hundred and twenty (120) working days from the date of written notification by
Lessee to Lessor of the destruction, this Lease shall not terminate, but Lessor
may at its sole risk and expense proceed with reasonable diligence to rebuild or
repair the building or other improvements to substantially the condition in
which they existed prior to the damage. If the leased premises are to be rebuilt
or repaired and are untenantable in whole or in part following the damage, and
the damage or destruction was not caused or contributed to by act or negligence
of Lessee, its agents, employees, invitees or those for whom Lessee is
responsible, the rent payable under this Lease during the period for which the
leased premises are untenantable shall be adjusted to such an extent as may be
fair and reasonable under the circumstances. In the event that Lessor fails to
complete the necessary repairs or rebuilding within one hundred and twenty (120)
working days from the date of written notification by Lessee to Lessor of the
destruction, Lessee may at its option terminate this Lease by delivering written
notice of termination to Lessor, whereupon all rights and obligations under the
Lease shall cease to exist; See Addendum item M
15. CASUALTY INSURANCE: Lessor shall at all times during the terms of this
Lease, at its expense, maintain a policy or policies of insurance with the
premiums paid in advance, issued by and binding upon some solvent insurance
company, insuring the building against loss or damage by fire, explosion or
other hazards and contingencies for the full insurable value; provided, that
Lessor shall not be obligated in any way or manner to insure any personal
property (including, but not limited to, any furniture, machinery, goods or
supplies) of Lessee or which Lessee may have upon or within the leased premises
or any fixtures installed by or paid for by Lessee upon or within the leased
premises or any additional improvements which Lessee may construct on the leased
premises.
16. WAIVER OF SUBROGATION: Anything in this Lease to the contrary
notwithstanding, Lessor and Lessee hereby waive and release each other of and
from any and all rights of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage that
may occur to the leased premises, improvements to the building of which the
leased premises are a part, or personal property (building contents) within the
building, by reason of fire or the elements, or other peril regardless of cause
or origin, including negligence of Lessor or Lessee and their agents, officers
and employees. Because this paragraph will preclude the assignment of any claim
mentioned in it by way of subrogation (or otherwise) to an insurance company (or
any other person), each party to this Lease agrees immediately to give to each
insurance company which has issued to it policies of fire and extended coverage
insurance, written notice of the terms of the mutual waivers contained in this
paragraph, and to have the insurance policies properly endorsed, if necessary,
to prevent the invalidation of the insurance coverages by reason of the mutual
waivers contained in this paragraph.
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17. HOLD HARMLESS. Unless caused by the sole negligence or misconduct by
Lessor. Lessor shall not be liable to Lessee's employees, agents, invitees,
licensees or visitors, or to any other person, for any injury to person or
damage to property on or about the leased premises caused by the negligence or
misconduct of Lessee, its agents, servants or employees, or of any other person
entering upon the leased premises under express or implied invitation by Lessee,
or caused by the buildings and improvements located on the leased premises
becoming out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the leased premises, or due to any other cause.
Lessee agrees to indemnify and hold harmless Lessor of and from any loss,
attorney's fees, expenses or claims arising out of any such damage or injury not
caused by the sole negligence of the Lessor. Any liability insurance which may
be carried by Lessor or Lessee with respect to the leased premises shall be for
the sole benefit of the party carrying the insurance and under its sole control.
18. QUIET ENJOYMENT. Lessor warrants that it has full right to execute and
to perform this Lease and to grant the estate demised, and, that Lessee, upon
payment of the required rents and performing the terms, conditions, covenants
and agreements contained in this Lease, shall peaceably and quietly have, hold
and enjoy the leased premises during the full term of this Lease as well as any
extension or renewal; thereof.
19. LESSOR'S RIGHT OF ENTRY: Lessor shall have the right, at all reasonable
hours after providing Lessee with 24 hour notice, to enter the leased premises
for the following: inspection; cleaning or making repairs; alterations or
additions as Lessor may deem necessary or desirable for the uniform and
efficient operation of the leased premises; determining Lessee's use of the
leased premises, or determining if an act of default under this Lease has
occurred, provided however, Lessor may enter the leased premises without notice
to Lessee in the event of an emergency.
20. ASSIGNMENT OR SUBLEASE: Lessor shall have the right to transfer and
assign, in whole or in part, its rights and obligations in the building and
property that are the subject of this Lease. Lessee shall not assign this Lease
or sublet all or any part of the leased premises without the prior written
consent of Lessor. Lessor shall have the option, upon receipt from Lessee of
written request for Lessor's consent to subletting or assignment, to cancel this
Lease or the part of the Lease which pertains to the part of the leased premises
to be subleased as of the date the requested subletting or assignment is to be
effective. The option shall be exercised, if at all, within fifteen (15) days
following Lessor's receipt of written notice by delivery to Lessee or written
notice of Lessor's intention to exercise the option See Addendum item X. In the
event of any assignment or subletting. Lessee shall nevertheless at all times,
remain fully responsible and liable for the payment of the rent and for
compliance with all of its other obligations under the terms, provisions and
covenants of this Lease. Upon the occurrence of an "event of default" as defined
below, if all or any part of the leased premises are then assigned or sublet,
Lessor, in addition to any other remedies provided by this Lease or provided by
law, may, at its option, collect directly from the assignee or subtenant all
rents becoming due to Lessee by reason of the assignment or sublease. Any
collection directly by Lessor from the assignee or subtenant shall not be
construed to constitute a notation or release of Lessee from the further
performance of its obligations under this Lease.
21. HOLDING OVER: In the event of holding over by Lessee after the
expiration or termination of this Lease, the hold over shall be as a tenant at
will and all of the terms and provisions of this Lease shall be applicable
during that period, except that Lessee shall pay Lessor as rental for the period
of such hold over an amount equal to 125% the rent which would have been payable
by Lessee had the hold over period been a part of the prior term of this Lease.
Lessee agrees to vacate and deliver the leased premises to Lessor upon Lessee's
receipt of notice from Lessor to vacate. The rental payable during the hold over
period shall be payable to Lessor on demand. No holding over by Lessee without
consent of Lessor, shall operate to extend this Lease except as otherwise
expressly provided.
22. DEFAULT BY LESSEE. The following shall be deemed to be events of default
by Lessee under this Lease:
(a) Lessee shall fail to pay any installment of the rent required to be paid
under this Lease, and the failure continues for a period of ten (10) days:
(b) Lessee shall abandon any substantial portion of the leased premises:
(c) Lessee shall fail to comply with any term, provision or covenant of this
Lease, other than the payment of rent, and the failure is not cured within
thirty (30) days after written notice to lessee; See Addendum item N
(d) Lessee shall file a petition or be adjudged bankrupt or insolvent under
the National Bankruptcy Act, as amended or any similar law or statute of the
United States or any state; or that a receiver or trustee shall be appointed for
all or substantially all of the assets of Lessee; or that Lessee shall make a
transfer in fraud of creditors or shall make an assignment for the benefit of
creditors.
23. REMEDIES FOR LESSEE'S DEFAULT: Upon the occurrence of any event of
default set forth in this Lease Agreement, Lessor shall have the option to
pursue any one or more of the following remedies after providing Lessee with 15
days prior written notice.
(a) Terminate this Lease, in which event Lessee shall immediately surrender
the leased premises to Lessor, and if Lessee fails to surrender the leased
premises, Lessor may, without prejudice to any other remedy which it may have
for possession or arrearages in rent, enter upon and take possession of the
leased premises Lessee agrees to pay on demand the amount of all loss and damage
which Lessor may suffer by reason of the termination of the Lease under this
subparagraph, whether through inability to relet the leased premises on
satisfactory terms or otherwise.
(b) Enter upon and take possession of the leased premises and relet the
leased premises on behalf of Lessee and receive directly the rent by reason of
the reletting. Lessee agrees to pay Lessor on demand any deficiency that may
arise by reason of any reletting of the leased premises.
(c) Enter upon the leased premises and do whatever Lessee is obligated to do
under the terms of this Lease. Lessee agrees to reimburse Lessor on demand for
any expenses which Lessor may incur in effecting compliance with Lessee's
obligations under this Lease; further, Lessee agrees that Lessor shall not be
liable for any damages resulting to Lessee from effecting compliance with
Lessee's obligations under this subparagraph not caused by the negligence of
Lessor.
24. WAIVER OF DEFAULT OR REMEDY: Failure of Lessor to declare an event of
default immediately upon its occurrence, or delay in taking any action in
connection with an event of default, shall not constitute a waiver of the
default, but Lessor shall have the right after providing Lessee with 15 days'
prior written notice to declare the default while the default remains incurred,
and take such action as is lawful or authorized under this Lease. Pursuit of any
one or more of the remedies set forth in paragraph 23 above shall not preclude
pursuit of any one or more of the other remedies provided in paragraph 23,
provided elsewhere in this Lease or provided by law, nor shall pursuit of any
remedy provided constitute a forfeiture or waiver of any rent or damages
accruing to Lessor by reason of the violation of any of the terms, provisions or
covenants of this Lease. Failure by Lessor to enforce one or more of the
remedies provided upon an event of default shall not be deemed or construed to
constitute a waiver of the default or of any other violation or breach of any of
the terms, provisions and covenants contained in this Lease.
25. ACTS OF GOD: Lessor and Lessee shall not be required to perform any
covenant or obligation in this Lease (except for the payment of rent by Lessee),
or be liable in damages to the other, so long as the performance or non-
performance of the covenant or obligation is delayed, caused by or prevented by
an act of God or force majeure.
26. ATTORNEY'S FEES. In the event Lessee defaults in the performance of any
of the terms, covenants, agreements or conditions contained in this Lease and
Lessor places the enforcement of all or any part of this Lease, the collection
of any rent due or to become due, or recovery of the possession of the leased
premises in the hands of an attorney, Lessee agrees to pay Lessor reasonable
attorney's fees for the services of the attorney, whether suit is actually filed
or not. See Addendum item P
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27. RIGHTS OF MORTGAGEE: Lessee accepts this Lease subject and subordinate
to any recorded mortgage, deed of trust presently existing upon the leased
premises. Lessor is hereby irrevocably vested with full power and authority to
subordinate Lessee's interest under this Lease to any reasonable mortgage, deed
of trust hereafter placed on the leased premises, and Lessee agrees upon demand
to execute additional instruments subordinating this Lease as Lessor may
require. If the interests of Lessor under this Lease shall be transferred by
reason of foreclosure or other proceedings for enforcement of any mortgage on
the leased premises. Lessee shall be bound to the transferee (sometimes called
the "Purchaser") under the terms, covenants and conditions of this Lease for the
balance of the term remaining, and any extensions or renewals, with the same
force and effect as if the Purchaser were Lessor under this Lease, and Lessee
agrees to attorn to the Purchaser, including the mortgagee under any such
mortgage if it be the Purchaser, as its lessor, the attornment to be effective
and self-operative without the execution of any further instruments upon the
Purchaser succeeding to the interest of Lessor under this Lease. The respective
rights and obligations of Lessee and the Purchaser upon the attornment, to the
extent of the then remaining balance of the term of this Lease, and any
extensions and renewals, shall be and are the same as those set forth in this
Lease. See Addendum item O.
28. DEFINITIONS: These definitions apply to the terms defined as those terms
are used throughout this Lease.
(a) "Abandon" means the vacating of all or a substantial portion of the
leased premises by Lessee, whether or not Lessee is in default of the rental
payments due under this Lease.
(b) An "act of God" or "force majeure" is defined for purpose of this Lease
Agreement as strikes, lockouts, sitdowns, material or labor restrictions by any
governmental authority, riots, floods, washouts, explosions, earthquakes, fire,
storms, acts of the public enemy, wars, insurrections and any other cause not
reasonably within the control of Lessor or Lessee and which by the exercise of
due diligence Lessor is Lessee is unable, wholly or in part, to prevent or
overcome.
(e) "Real property tax" means all city, state, and county taxes and
assessments including special taxing, district taxes or assessments.
29. SUCCESSORS: This Lease shall be binding and inure to the benefit of
Lessor and Lessee and their respective heirs, personal representatives,
successors and assigns.
30. EXTRINSIC EVIDENCE: It is expressly agreed by Lessee, as a material
consideration for the execution of this Lease Agreement, that this Lease with
the specific references to written extrinsic documents, is the entire agreement
of the parties; that there are, and were, no verbal representations,
understandings, stipulations, agreements or promises pertaining to this Lease
Agreement or the expressly mentioned written extrinsic documents not
incorporated in writing in this Lease Agreement. It is likewise agreed that this
Lease may not be altered, waived, amended or extended except by an instrument in
writing, signed by both Lessor and Lessee.
31. NOTICE: (a) All rent and other payments required to be made by Lessee
shall be payable to Lessor at the address set forth below, or any other address
Lessor may specify from time to time by written notice delivered to Lessee.
(b) All payments required to be made by Lessor to Lessee shall be payable to
Lessee at the address set forth below, or at any other address within the United
States as Lessee may specify from time to time by written notice.
(c) Any notice or document required or permitted to be delivered by this
Lease shall be deemed to be delivered (whether or not actually received) when
deposited in the United States Mail, postage prepaid, certified mail, return
receipt requested, addressed to the parties at the respective addresses set out
below: See Addendum item Q.
LESSOR:
WESTBELT BUSINESS PARK JOINT VENTURE
c/o VANTAGE PROPERTIES, INC., MANAGING PARTNER
P.O. Box 28248
Columbus, Ohio 43228
32. RENT TAX: If applicable in the jurisdiction where the leased premises
are situated, Lessee shall pay and be liable for all rental, sales and use taxes
or other similar taxes, if any, levied or imposed upon rentals by any City,
State, County or other governmental body having authority, such payments to be
in addition to all other payments required to be paid to Lessor by Lessee under
the terms of this Lease. Any such payments shall be paid concurrently with the
payment of the rent upon which the tax is based as set forth above.
33. ESTOPPEL CERTIFICATES' Lessee agrees to furnish promptly, from time to
time, upon request of Lessor or Lessor's mortgagee, a statement certifying that
Lessee is in possession of the leased premises; the leased premises are
acceptable, the Lease is in full force and effect; the Lease is unmodified See
Addendum item R. Lessee claims no present charge, lien, or claim of offset
against rent, the rent is paid for the current month, but is not paid and will
not be paid for more than one month in advance: there is no existing default by
reason of some act or omission by Lessor See Addendum item S and such other
matters as may be reasonably required by Lessor or Lessor's mortgagee.
34. OTHER PROVISIONS: See Addendum items T, U, V and W, and Y.
5
Signed at Columbus Ohio, this 10th day of May, 1984.
------------- ---- --- --
WITNESSES: LESSOR:
WESTBELT BUSINESS PARK JOINT VENTURE,
AN OHIO JOINT VENTURE PARTNERSHIP
BY: VANTAGE PROPERTIES, INC.,
MANAGING PARTNER
[SIGNATURE NOT LEGIBLE] By /s/ Ronald A. Huff
- --------------------------------- ------------------------------------
Ronald A. Huff
/s/ Catherine A. Zitko Title Vice President
- --------------------------------- ---------------------------------
WITNESSES: LESSEE:
BOISE CASCADE CORPORATION,
A DELAWARE CORPORATION
[SIGNATURE NOT LEGIBLE] By [SIGNATURE NOT LEGIBLE]
- --------------------------------- ------------------------------------
[SIGNATURE NOT LEGIBLE] Title V. P.
- --------------------------------- ---------------------------------
[SIGNATURE NOT LEGIBLE]
ACKNOWLEDGEMENTS
State of Illinois
County of Cook
Dated this 20 day of April, 1984.
--
/s/ Linda M. Hicks
- ---------------------------
Linda M. Hicks, Notary
Commission expires: 2/21/87
6
BUILDING RULES AND REGULATIONS
1. Lessor agrees to furnish Lessee two keys without charge. Additional keys
will be furnished at a nominal charge.
2. No Lessee shall at any time occupy any part of the Building as sleeping or
lodging quarters.
3. Lessor will not be responsible for lost or stolen personal property,
equipment, money or jewelry from Lessee's area or public rooms regardless of
whether such loss occurs when area is locked against entry or not.
4. No birds, fowl, or animals shall be brought into or kept in or about the
building.
5. The water closets and other water fixtures shall not be used for any purpose
other than those for which they were constructed and any damage resulting to
them from misuse, or the defacing or injury of any part of the Building
shall be borne by the person who shall occasion it. No person shall waste
water by interfering with the faucets or otherwise.
6. No person shall disturb the occupants of the Building by the use of any
musical instruments, the making of unseemly noises causing objectionable
odors, or any unreasonable use.
It is Lessor's desire to maintain in the Building the highest standard of
dignity and good care???? consistent with comfort and convenience for Lessees.
Any action or condition not meeting this high standard should be reported
directly to Lessor. Your cooperation will be mutually beneficial and sincerely
appreciated. The Lessor reserves the right to make such other and further
reasonable rules and regulations as in its judgment may from time to time be
needful, for the safety, care and cleanliness of the lease premises, and for the
preservation of good order therein.
7
A C K N O W L E D G E M E N T S
-------------------------------
State of Ohio
County of Franklin
The foregoing instrument was acknowledged before me this 10th day of
----
May, 1984, by Ronald A. Huff, Vice President of Vantage Properties, Inc., a
- ---
Texas corporation, on behalf of the Corporation and on behalf of Westbelt
Business Park Joint Venture.
My Commission Expires: 5.26.88 /s/ Catherine A. Zitko
------- ------------------------------
NOTARY PUBLIC
[NOTARY PUBLIC SEAL APPEARS HERE]
State of [ILLEGIBLE]
---------------
County of [ILLEGIBLE]
--------------
The foregoing instrument was acknowledged before me this 20 day of
--
April, 1984, by /s/ E. Thomas Edquist, of Boise Cascade Corporation, a Delaware
- ----- ---------------------
corporation, on behalf of the Corporation.
My Commission Expires: 2/21/87 /s/ Linda M. Hicks
------- ------------------------------
NOTARY PUBLIC
ADDENDUM TO THAT CERTAIN LEASE AGREEMENT
BETWEEN WESTBELT BUSINESS PARK JOINT VENTURE
AND BOISE CASCADE CORPORATION
EXECUTED May 10, 1984
------
A. Shall include operating expenses attributable to the building under
generally accepted accounting principles consistently applied from year to year
with respect to buildings similar to the building subject to this Lease and
B. The signs shall be approximately 4 feet by 8 feet, basically the same
in appearance as those pictured in Exhibit B, attached hereto and incorporated
by this reference.
C. Lessee shall have the right to erect other signs on the building
approximately 1 foot by 2 feet, to indicate loading, shipping, receiving and
other appropriate instructions.
D. And receiving, storing, shipping and selling products, materials and
merchandise made and/or distributed by Lessee, and for such other lawful
purposes as may be incidental thereto.
E. Such expenses shall be excluded from the term "operating expenses."
F. Provided, however, that if Lessor fails to complete any repairs,
alterations or additions within 60 days after the date of Lessee's notice (or
such longer period of time in the event that such repairs, alterations or
additions cannot be completed within such 60-day period, provided that Lessor
has
commenced such repairs, alterations or additions and is diligently pursuing the
same) and, in Lessee's reasonable opinion, such failure substantially interferes
with Lessee's operations under this Lease, the Lessee may, at Lessee's option,
cause such repairs, alterations or additions to be completed and deduct the cost
therefore from the rent payments to be made under this Lease or be entitled to a
proportionate abatement or reduction of rent for the loss of the use of the
leased premises.
G. In the event the leased premises constitute a portion of a multiple
occupancy building, Lessor shall be responsible for coordinating any repairs and
other maintenance of any rail tracks serving or to serve the building, and if
Lessee uses such rail tracks, Lessee shall reimburse Lessor, from time to time,
upon demand, as additional rent, its proportionate share of the cost of such
repairs and maintenance and of any other sum specified in any agreement to which
Lessor is a party respecting such tracks.
H. Agrees to separately meter all utilities.
I. Lessor shall commence and complete the construction of the improvements
on the leased premises. Should the cost of completing the improvements exceed
$370,000, Lessor shall complete the construction, and Lessee shall pay for any
excess cost over $370,000, so long as Lessor causes the improvements to be made
in accordance with the floor plans and specifications in an efficient and timely
manner. Lessee shall provide Lessor with specifications and floor plans for the
improvements upon the
-2-
execution of this Lease, and such specifications and floor plans shall be agreed
to by the parties and made a part of this Lease. Lessor shall use its best
efforts to complete the construction of the improvements to the warehouse
portion of the leased premises by June 1, 1984, and to the office portion of the
leased premises by July 1, 1984. Upon Lessor's completion of the improvements,
Lessor and Lessee shall inspect the premises and shall prepare a punch list of
items, if any, not completed in accordance with the specifications and floor
plans. All items listed shall be completed by Lessor as soon thereafter as
possible. The "completion date" shall be the date upon which all the
improvements have been constructed and shall have been substantially completed
in accordance with the floor plans and specifications and accepted by Lessee by
a written letter of acceptance to Lessor. Lessee shall deliver the letter of
acceptance to Lessor when the improvements are substantially completed in
accordance with the floor plans and specifications. Should the improvements not
be substantially completed by Lessor and accepted by Lessee within 60 days after
June 1, 1984, with reference to the warehouse portion of the leased premises, or
within 90 days after July 1, 1984, with reference to the office portion of the
leased premises, Lessee, at its option, shall have the right to terminate this
Lease and shall not be obligated to make payment for any improvements. The
improvements shall be deemed to be substantially completed when all essential
facilities and improvements have been constructed or installed by Lessor
-3-
and the leased premises are ready for use by Lessee for its intended purposes.
If any dispute arises between Lessor and Lessee as to the time of substantial
completion or the written acceptance of the improvements by Lessee, Lessor and
Lessee shall appoint a mutually acceptable, independent architect who shall
certify whether the improvements have been substantially completed in accordance
with the floor plans and specifications. The fees for such architect's services
shall be divided equally between Lessor and Lessee.
J. Lessee may, without the consent of Lessor, but at Lessee's own cost and
expense and in a good workmanlike manner, make such minor alterations or erect,
remove or alter partitions, lighting fixtures and dock levelers, or erect such
shelves, bins, machinery and trade fixtures as Lessee may deem advisable without
altering the basic character of the building or improvements. All shelves, bins,
machinery, trade fixtures and light fixtures in the bin areas of the leased
premises installed by Lessee may be removed by Lessee prior to the termination
of this Lease if Lessee so elects, provided that Lessee is not in default under
the terms of this Lease and further provided that Lessee shall repair any damage
done to the leased premises as a result of such removal.
K. In the event of any such taking, Lessor and Lessee shall each be
entitled to receive and retain such separate awards and/or a portion of lump sum
awards as may be allocated
-4-
to their respective interests by the condemning authority or any court of
competent jurisdiction in any condemnation proceedings.
L. In the event of any such taking, Lessor and Lessee shall each be
entitled to receive and retain such separate awards and/or a portion of lump sum
awards as may be allocated to their respective interests by the condemning
authority or any court of competent jurisdiction in any condemnation proceeding.
Further, should Lessor's restoration and reconstruction of the building and
other improvements continue for longer than 90 days after the date physical
possession is taken by the condemning authority, and in Lessee's reasonable
opinion substantially interferes with Lessee's operations under this Lease,
Lessee may, at its option, terminate this Lease.
M. And rent shall be abated for the unexpired portion of the Lease,
effective as of the date Lessee notified Lessor of the destruction.
N. Or if the cure cannot be completed within 30 days, the cure has been
commenced within 30 days and Lessee diligently thereafter completes the cure.
O. Provided, however, that Lessor shall procure from any mortgagee a
nondisturbance agreement providing, in substance, that so long as Lessee shall
faithfully discharge the obligations on its part to be kept and performed under
the terms of this Lease, Lessee's tenancy will not be disturbed nor this Lease
affected by any default under such mortgage, and Lessee agrees
-5-
that this Lease shall remain in full force and effect even though default in the
mortgage may occur.
P. In the event Lessor defaults in the performance of any of the terms,
covenants, agreements or conditions contained in this Lease, and Lessee places
the enforcement of all or any part of this Lease in the hands of an attorney,
Lessor agrees to pay Lessee reasonable attorneys' fees for the services of an
attorney, whether suit is actually filed or not.
Q. To Lessee: Boise Cascade Office Products Division
Attention Vice President, General Manager
---------
800 West Bryn Mawr Avenue
Itasca, IL 60143
Copy to: Boise Cascade Corporation
Attention General Counsel
---------
One Jefferson Square
Boise, ID 83728
R. Or if there have been modifications, that the Lease is in full force
and effect as modified and identifying such modifications.
S. Or if Lessee has knowledge of any default, a statement of the nature
thereof.
T. Wherever the consent of either party is required under the terms of
this Lease, such consent shall not be unreasonably withheld.
U. Provided that Lessee is not in default, Lessee shall have the option to
renew this Lease for an additional term of 60 months at the same terms and
conditions upon providing Lessor with 120 days' prior written notice to the
expiration of this Lease. In the event Lessee exercises this option to renew,
the rent shall be as follows: Lessee shall pay
-6-
no rent for the first three months of the renewal term, and rent thereafter
shall be $36,944 per month. In the event Lessee does not exercise its option to
renew, Lessee agrees to pay Lessor $158,894, as the unamortized portion of the
leasehold improvements remaining at the termination of this Lease, and such
payment shall be made within 30 days after the termination of this Lease. In the
event Lessee exercises the renewal option, at the end of the renewal term,
Lessee may exercise a second option to renew provided that Lessee is not in
default, at the same terms and conditions for a period of 60 months upon
providing Lessor with written notice 120 days prior to the expiration of the
renewal term; however, the rent during the second option shall be the fair
market rental based on the then prevailing rental rates for properties of
equivalent quality, size, utility and location as the leased premises with the
length of the lease term and credit-standing of Lessee to be taken into account,
and the $.38 per square foot for operating expenses under paragraph 3(e) of this
Lease shall be appropriately adjusted to reflect the actual expenses incurred by
Lessor during the year prior to commencement of such renewal option. In the
event Lessee exercises its second renewal option in accordance with the
provisions of this paragraph, but Lessor and Lessee cannot in good faith agree
to the fair market rental for the second option period at least 30 days prior to
the expiration of the first renewal term, the second renewal option contained
herein shall become null and void.
-7-
V. Pursuant to the provisions of this paragraph, Lessor hereby grants to
Lessee the right to lease approximately 46,060 square feet in the building (the
"Adjacent Space" as outlined in yellow in Exhibit A), provided Lessee is not in
default of the Lease and the Lease is in full force and effect. Lessor agrees to
offer the Adjacent Space to Lessee for lease at least one time during the period
commencing 42 months and ending 78 months following the completion date of this
Lease.
Lessor shall deliver to Lessee, in writing, notice that Lessor is
offering Lessee the Adjacent Space. Lessee shall have 30 days from the receipt
of such notice to notify Lessor in writing of its intent to lease all of the
Adjacent Space. In the event Lessor has received no notice from Lessee by the
end of the 30-day period, Lessee shall be deemed to have refused the offer. In
the event Lessee does elect to lease all of the Adjacent Space and so notifies
Lessor, then Lessor and Lessee shall execute an amendment to this Lease
pertaining to the Adjacent Space containing substantially the same terms and
conditions then existing under this Lease, with the term for the Adjacent Space
to coincide with the remaining term of this Lease, including any renewal terms.
Provided, however, that the rental for the Adjacent Space shall be as agreed
upon by Lessor and Lessee.
W. In addition to the rights granted in paragraph V, Lessor does hereby
grant to Lessee the right of first offer to lease additional space in the
building for a term coincident
-8-
with the then remaining term of the Lease and renewal options consistent with
the Lease, provided Lessee is not in default under this Lease and the Lease is
in full force and effect. At any time during the term of this Lease, or any
renewal term, should additional space in the building become available, Lessor
shall notify Lessee in writing of the availability of such additional space.
Lessee shall have 15 days from the receipt of any such notice to notify Lessor
in writing of Lessee's desire to negotiate with Lessor regarding such space and
Lessor shall not, during such 15-day period, enter into any lease with a third
party for such space. A Lessee does not notify Lessor of Lessee's desire to
negotiate with Lessor regarding such space within the 15 day period, Lessor may
thereafter enter into a lease for such space with a third party. If Lessee
notifies Lessor of Lessee's desire to negotiate and Lessor and Lessee do not
reach an agreement regarding such space within 30 days after Lessee notifies
Lessor, then Lessor may thereafter enter into a lease for such space with a
third party. In the event that Lessor enters into a lease with Lessee for such
space, such lease shall contain substantially the same terms and conditions as
contained in this Lease, except for those terms dealing with rental and other
financial items. It is specifically understood by both parties that nothing
contained in this paragraph shall relieve Lessor of its obligation to offer the
Adjacent Space to Lessee under paragraph V hereof.
X. Lessor must either cancel this Lease, or the part of the Lease which
pertains to the part of the leased premises to be subleased, as of the date the
requested subletting or assignment is to be effective, or consent to Lessee's
assignment or subletting.
Y. The rental reserved hereunder for the primary term and first renewal
term of this Lease includes the amortization of $230,668.50 in leasehold
improvements over a ten-year period at
-9-
16% interest per annum. In the event that this Lease is terminated during the
primary term or first renewal term on account of a default by Lessee, Lessee
shall pay to Lessor the unamortized principal portion of the leasehold
improvements remaining at the termination of this Lease, and such payment shall
be made within 30 days after the termination of this Lease.
-10-
[DIAGRAM APPEARS HERE]
R E N E W A L O F L E A S E
This Renewal Agreement is made and entered into between MLH Income Realty
Partnership V, a New York Limited Partnership, hereinafter referred to as
"Lessor", and Boise Cascade Office Products Corporation, a Delaware Corporation,
hereinafter referred to as "Lessee", for and in consideration of One Dollar
($1.00) and other good and valuable consideration, receipt of which is hereby
acknowledged.
W I T N E S S E T H:
1. Lessor and Lessee hereby confirm and ratify, except as modified below,
all of the terms, conditions and covenants in the certain written Lease
Agreement dated May 10, 1984 and Addendum, as modified by Amendment to Lease
dated September, 1985 and by Second Amendment to Lease dated March 19, 1986,
between MLH Realty Partnership V, as Lessor, and Boise Cascade Office Products
Corporation, as Lessee, for the rental of the following described property: 1634
Westbelt Drive, Columbus, Ohio 43228, consisting of approximately 126,665 square
feet.
2. Lessee warrants that Lessee has accepted and is now in possession of
the demised premises and that the Lease Agreement is valid and presently in full
force and effect.
3. Effective as of October 1, 1989 (the "Effective Date"), the term of
this Lease Agreement shall be extended for sixty (60) months (the "Extended
Term") and the expiration date set forth in paragraph 2 is hereby changed from
September 30, 1989 to September 30, 1994.
4. As of the Effective Date, the monthly rental payments set forth in
paragraph 3(a) of the Lease Agreement shall be changed from $29,555.00 per month
to $36,944.00 per month. Notwithstanding the foregoing, and provided Lessee is
not in default, Lessee shall not be obligated to pay the first three
installments of monthly rent due during the Extended Term.
5. All other terms and conditions of the Lease Agreement dated May 10,
1984 and Addendum attached thereto and made a part thereof, shall remain the
same.
Signed at 2 Broadway, NY, NY, this 23rd day of May, 1989.
------------------ ---- ---
Signed and Acknowledged in LESSOR:
the presence of:
MLH Income Realty Partnership V,
a New York Limited Partnership
[SIGNATURE NOT LEGIBLE] By: [SIGNATURE NOT LEGIBLE]
- -------------------------- --------------------------
__________________________ Title: V.P
(Witnesses as to Lessor) -----------------------
LESSEE:
Boise Cascade Office Products
Corporation,
a Delaware Corporation
[SIGNATURE NOT LEGIBLE] By: [SIGNATURE NOT LEGIBLE]
- -------------------------- ---------------------------
[SIGNATURE NOT LEGIBLE] Title: V.P.
- -------------------------- ------------------------
(Witnesses as to Lessee)
A C K N O W L E D G E M E N T S
-------------------------------
STATE OF [ILLINOIS]
-------------
COUNTY OF [ILLEGIBLE]
------------
The foregoing instrument was acknowledged before me this 27 day of
--
April, 1989, by E. J. Edguist, the Vice President of Boise Cascade Office
- ----- ------------- --------------
Products Corporation, a Delaware Corporation, on behalf of the corporation.
/s/ Joanne DeVries
---------------------------
NOTARY PUBLIC
My Commission Expires: 6/27/90
-------
________________________________
"OFFICIAL SEAL"
Joanne deVries
Notary Public State of Illinois
My Commission expires 6/27/90
_______________________________
STATE OF New York )
COUNTY OF New York )
The foregoing instrument was acknowledged before me this 23rd day of
----
May, 1989, by Lawrence T Kwiat, the authorized representative of the
- --- ---------------- ------------------------- ---
Managing General Partner of MLH Income Realty Partnership V, a New York
- ---------------------------
Limited Partnership, on behalf of the partnership.
/s/ Karen A Calabrese
---------------------------
NOTARY PUBLIC
My Commission Expires: 2/28/91
-------
KAREN A. CALABRESE
Notary Public State of New York
No. 24-4823056
Qualified in Kings County
Commission expires 2/28/91
SECOND AMENDMENT TO LEASE
-------------------------
BY THIS AMENDMENT, dated March 19, 1986, to the Lease dated May 10, 1984,
as amended in September 1985 by Amendment to Lease ("Lease"), between MLH INCOME
REALTY PARTNERSHIP V, successor in interest to Westbelt Business Park Joint
Venture ("Lessor"), and BOISE CASCADE OFFICE PRODUCTS CORPORATION, Successor in
Interest to Boise Cascade Corporation ("Lessee"), for 126,665 square feet of
space in Park Distribution Center Building A, Westbelt Business Park, Columbus,
Ohio, Lessor and Lessee agree as follows:
1. The commencement date of the Lease shall be September 30, 1984, and the
Lease termination date shall be September 30, 1989.
2. All other provisions of the Lease, as amended, not affected by this
Amendment, including but not limited to Paragraphs U and V of the Addendum to
the Lease, shall remain valid and effective.
IN WITNESS WHEREOF, the parties have caused this Second Amendment to Lease
to be signed as of the date first set forth above.
LESSEE: LESSOR:
BOISE CASCADE OFFICE PRODUCTS MLH INCOME REALTY PARTNERSHIP V
CORPORATION By: MLH Property Manager V Inc.
By [SIGNATURE NOT LEGIBLE] By [SIGNATURE NOT LEGIBLE]
-------------------------- ----------------------------
Vice President Title [ILLEGIBLE]
-------------------------
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE (this "Amendment") is made as of this _____
day of August, 1994 by and between MLH INCOME REALTY PARTNERSHIP V, a New York
limited partnership having an address at World Financial Center, South Tower,
New York, New York 10080-6112 ("Landlord") and ASSOCIATED STATIONERS, INC., a
Delaware corporation having an address at 1075 Hawthorn Drive, Itasca, Illinois
60143 ("Tenant").
WITNESSETH:
----------
WHEREAS, Westbelt Business Park Joint Venture, as predecessor-in-interest
to Landlord, and Boise Cascade Corporation, as predecessor-in-interest to Tenant
entered into that certain Lease Agreement dated May 10, 1984, as amended by
Addendum dated May 10, 1984, Amendment to Lease dated September, 1985, Second
Amendment to Lease dated March 19, 1986, Renewal of Lease dated May 23, 1989 and
Consent Letter dated December 9, 1991 (collectively, the "Lease") with respect
to premises consisting of approximately 126,665 rentable square feet in the
building (the "Building") located at 1634 Westbelt Drive, Columbus, Ohio, as
more particularly described in the Lease; and
WHEREAS, Landlord and Tenant desire to amend the Lease with respect to an
extension of the term of the Lease and as otherwise provided in this Amendment;
and
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant agree as follows:
1. The provisions of this Amendment shall supersede any inconsistent
provisions contained in the Lease, whether such inconsistent provisions are
contained in the printed portion of the Lease or any addendum, rider or exhibit
annexed thereto. All capitalized items not otherwise defined herein shall have
the respective meanings ascribed to them in Lease.
2. Termination Date. The term of the Lease is hereby extended and shall
----------------
end on August 31, 1999, unless sooner terminated as provided in the Lease or by
applicable law.
3. Base Rent. Effective from and after July 1, 1994 (the "Effective
---------
Date"), Paragraph 3 of the Lease shall be amended so that base rent shall be
$348,328.80 per annum ($29,027.40 per month). Landlord acknowledges that Tenant
has paid rent in the amount of $36,944 for each of the months of July and
August, 1994, and therefore has overpaid rent in the amount of $15,833.20, which
amount shall be credited against Tenant's rent obligations for the month of
November, 1994. Notwithstanding anything to the contrary contained herein,
provided that Tenant shall not be in default under the terms of the Lease as
amended hereby, Tenant shall not be obligated to pay base rent in the amount of
$29,027.40 per month for the months of September and October, 1994. The
foregoing rental concession shall be null and void "ab initio" if Landlord at
any time terminates the Lease or re-enters or repossesses the Premises on
account of any default of Tenant under the Lease, and Landlord shall be entitled
to recover from Tenant, in addition to all other amounts Landlord is entitled to
recover, the amount of all rental concessions.
4. Operating Expenses. Paragraph 3(e) of the Lease is hereby amended by
------------------
deleting the $0.38 expense stop set forth therein and substituting $0.00 in lieu
thereof, it being the intent of Landlord and Tenant that Tenant pay its pro rata
share of all operating expense for the Building.
5. Use. The Premises shall be used for the warehousing and distribution
---
of paper and office and related products and incidental lawful uses.
6. Landlord's Work
---------------
A. Landlord shall perform or cause to be performed certain
improvements to be mutually agreed upon by Landlord and Tenant (the
"Improvements") to the Premises in a building standard manner using building
standard materials as more particularly set fourth on Exhibit "D" attached
hereto and made a part hereof. Landlord agrees to perform any portion of the
Improvement work which materially interferes with Tenant's conduct of business
in the Premises on weekends or after normal business hours.
B. Tenant acknowledges and agrees that it is presently in possession
of the Premises, that it has made a full and complete inspection of the
Premises, and is familiar with the condition thereof
1
and, except for the Improvements, shall and does accept possession of the
Premises in its present "as-is" condition as suitable for Tenant's intended use
and occupancy thereof. Upon Tenant's continued occupancy of the Premises, it
shall be conclusively presumed that same has been so accepted by Tenant, is in
satisfactory condition, and complies fully with Landlord's covenants and
obligations. Tenant acknowledges that Landlord shall have no obligation to
perform any tenant improvement work of any kind in connection with Tenant's
occupancy of the Premises and Tenant, at Tenant's sole cost and expense, shall
perform all necessary or desirable work in connection with preparing the
Premises for its occupancy in accordance with the Lease and any and all costs of
same shall be paid by Tenant in full and Tenant shall provide Landlord with
reasonable evidence of such payment within five (5) days after Landlord's
request therefor.
C. In the event Landlord fails to substantially complete the
Improvements on or before September 30, 1994 (unless such failure is due to an
act or omission of Tenant, its agents or employees or force majeure), then
Tenant shall have the right to send a notice to Landlord specifying the
portion(s) of the Improvements (the "Incomplete Items") which have not been
substantially completed. If Landlord fails to substantially complete the
Incomplete Items within twenty (20) days after the giving of such notice, Tenant
shall have the right to perform the Incomplete Items and thereafter send
Landlord a statement of costs incurred for the Incomplete Items, together with
evidence thereof. Landlord shall promptly reimburse Tenant for the reasonable
cost of performing the Incomplete Items, and in the event fails to do so within
thirty (30) days after rendition of Tenant's statement. Tenant may deduct the
reasonable cost of performing the Incomplete Items from the next installment of
rent coming due under the Lease.
7. Extension Option
----------------
A. Provided that the Lease is in full force and effect, without the
occurrence of an event of default thereunder or any defaults or breaches under
any of the terms, covenants or conditions in the Lease on Tenant's part to
observe or perform on the date that Tenant exercises the option granted herein
or on the expiration date of the Lease, Tenant shall have the option (the
"Extension Option"), to extend the term of the Lease for an extension term (the
"Extension Term") of five (5) year(s) commencing on the day next succeeding the
expiration date of the Lease and ending on the day which shall be the fifth
(5th) anniversary of said expiration date, both dates inclusive, in accordance
with and subject to the terms, covenants and conditions hereinafter set forth.
Tenant shall exercise the Extension Option by sending a written notice thereof
(the "Extension Notice") to the Landlord by certified mail, return receipt
requested or nationally recognized overnight courier service on or before the
date which is 180 days prior to the expiration date, time being of the essence.
If Tenant shall send the Extension Notice within the time and in the manner
hereinabove provided, the term of the Lease shall be deemed extended for the
Extension Term upon the terms, covenants and conditions hereinafter contained.
If Tenant shall fail to send the Extension Notice within the time and in the
manner hereinabove provided, the Extension Option shall cease and terminate, and
Tenant shall have no further option to extend the term of this Lease.
B. The Extension Term shall be upon, and subject to, all of the
terms, covenants and conditions provided in the Lease for the initial term
hereof, without any further right of extension, except that:
(a) any terms, covenants, or conditions in the Lease that are expressly or
by their nature inapplicable to the Extension Term (including, without
limitation, paragraph 6 of this Amendment) shall not apply during the
Extension Term; and
(b) the basic annual rental payable by Tenant during the Extension Term
(the "Extension Rent"), subject to adjustment as otherwise in the
Lease provided, shall be an amount equal to the fair market rental
value of the leased premises to be prevailing as of the commencement
of the Extension Term on the basis of a new five (5) year letting of
the leased premises determined in accordance with paragraph C below.
C. (i) Within thirty (30) days after receipt by Landlord of Tenant's
Extension Notice, Landlord shall submit to Tenant Landlord's determination of
the fair market rental value of the Premises. If Tenant does not notify Landlord
in writing within ten (10) days of Tenant's receipt of Landlord's determination
that Tenant objects to such determination of the fair market rental value,
Tenant shall be deemed to have accepted such determination of the fair market
value and such determination shall be deemed to be fair market value for the
purpose of determining Extension Rent for the Extension Term. If Tenant so
notifies Landlord that Tenant objects to Landlord's determination, Landlord and
Tenant shall endeavor to reach an agreement as to the fair market rental value
of the Premises for the Extension Term. If Tenant and Landlord are unable to
reach agreement within sixty (60) days after Tenant gives the Extension Notice,
then Landlord and Tenant shall each, within twenty (20) days after the
expiration of
2
such sixty (60) day period, select an MAI appraiser (the "Appraisers"). The two
appraisers so selected shall, within forty-five (45) days of such selection,
jointly attempt to determine and agree on the fair market rental value of the
Premises for the Extension Term. If the Appraisers cannot agree on such fair
market rental value, within said forty-five (45) day period, each Appraiser
within such period shall make an independent appraisal of such rental value and
deliver the same to Landlord and Tenant. If either Appraiser fails to deliver
its appraisal within such forty-five (45) day period then the appraisal of the
single Appraiser shall be deemed to be such fair market rental value for
purposes of determining the Extension Rent for the Extension Term. Within ten
(10) days of Landlord's and Tenant's receipt of the last appraisal, the two
Appraisers shall select (by written notice to Landlord and Tenant) another MAI
appraiser (the "Third Appraiser") whose sole responsibility shall be to select,
within ten (10) days, which of the two original appraisals more closely
approximates such fair market rental value, which appraisal shall be deemed to
be the fair market value for purpose of determining Extension Rent. The
determinations of the Appraisers or Third Appraiser, as the case may be, shall
be in writing and shall be binding on both Landlord and Tenant. In determining
such fair market rental value, each of such appraisers shall take into
consideration the rental rate per square foot in comparable buildings in
Columbus, Ohio the size, term, and location of the Building, the existence age
and condition of the tenant improvements then in the Premises, and the terms and
conditions of this Lease.
(ii) The Appraisers and the Third Appraiser shall have at least
ten (10) years experience in appraising the value of leasehold interests in real
estate and shall be familiar with then current rental values in comparable
buildings located in Columbus, Ohio. Duplicate original counterparts of the
determinations of each of the Appraisers and the Third Appraiser, as the case
may be, shall be sent promptly to both Landlord and Tenant by certified mail,
return receipt requested or nationally recognized overnight carrier. The cost
and expense of the Third Appraiser (including fees) or determination shall be
borne equally by Landlord and Tenant. Landlord and Tenant shall each bear the
cost of its respective Appraiser.
D. If the Lease is extended as hereinbefore expressly provided, then
Landlord shall have no obligations or duties to paint or otherwise prepare or
repair the leased premises, or perform any work or make any installations, in
connection with the Extension Term. When used in subparagraph A above, the term
"Tenant" shall mean only the named tenant in the Lease, or, to the extent
permitted under the Lease, a successor by merger, consolidation or sale of
substantially all of the assets of Tenant, and no other assignee, subtenant or
successor thereof.
E. Tenant acknowledges that it shall have no further rights under
Paragraph U of the Addendum dated May 10, 1984.
8. Right of First Refusal
----------------------
A. Provided that the Lease is then in full force and effect, and
provided further that Tenant is not then in breach or default under any of the
terms, covenants or conditions in the Lease as amended hereby on Tenant's part
to observe or perform, if Landlord intends to lease the space consisting of
approximately 79,325 rentable square feet as indicated on Exhibit "A" (the
"Refusal Space") to a third-party tenant, Landlord shall give Tenant written
notice (the "Refusal Space Notice") of such intention. During the five (5)
business day period commencing on the date Landlord gives the Refusal Space
Notice to Tenant, Tenant shall have the option (the "Refusal Space Option") to
lease the Refusal Space from Landlord, upon the terms and conditions set forth
in the Refusal Space Notice by giving to Landlord written notice by U.S.
certified mail, return receipt requested or nationally recognized overnight
courier service (the "Exercise Notice"), of Tenant's exercise of the Refusal
Space Option.
B. If Tenant fails to give the Exercise Notice to Landlord within
said five (5) business day period, time being of the essence, or if Tenant fails
for any reason to duly execute and deliver to Landlord a lease agreement (or
lease amendment) with respect to the Refusal Space in form and content
satisfactory to Landlord, within fifteen (15) days after Tenant gives the
Exercise Notice to Landlord, time being of the essence, the Refusal Space Option
shall be deemed revoked and of no further force and effect and Landlord may
thereafter proceed with the leasing of the Refusal Space to any third-party
tenant upon terms and conditions satisfactory to said Tenant and Landlord.
C. Notwithstanding anything contained in this Lease to the contrary,
if on the date Landlord gives the Refusal Space Notice to Tenant or on the date
Tenant gives the Exercise Notice to Landlord, the Lease is not in full force and
effect or Tenant is in breach or default under any of the terms, covenants and
conditions in the Lease on Tenant's part to observe or perform then, in addition
to all of Landlord's rights and remedies, the Refusal Space Option shall be
deemed revoked and of no further force and effect, and Landlord may thereafter
proceed with the leasing of the Refusal Space to any tenant and upon any terms
and conditions.
3
D. The Refusal Space Option shall apply only to the first (1st)
actual leasing of the Refusal Space immediately succeeding the initial letting
of the Refusal Space (or, if the Refusal Space is currently leased, the existing
letting). If the Refusal Space is initially leased to more than one (1) tenant,
then each portion thereof so leased shall constitute a "Refusal Space" and the
Refusal Space Option shall apply only to the first (1st) actual leasing of each
such Refusal Spaces (or, if the Refusal Space is currently leased, the existing
letting). Tenant expressly agrees that the Refusal Space Option is subject to
the then existing occupancies of, and any rights of first refusal or expansion
of any tenant with respect, to the Refusal Space.
E. Tenant acknowledges that it shall have no further rights under
Paragraph V or W of the Addendum dated May 10, 1984.
9. Insurance. The Insurance Rider attached hereto as Exhibit "B" is
---------
hereby incorporated into and made a part of the Lease. Tenant agrees to comply
with all of the terms, conditions, and provisions of the Insurance Rider.
10. Hazardous Materials. The Hazardous Materials Rider attached hereto as
-------------------
Exhibit "C" is hereby incorporated into and made a part of the Lease. Tenant
agrees to comply with all of the terms, conditions and provisions of the
Hazardous Materials Rider.
11. Broker. Tenant represents and warrants that is has had no dealings,
------
communications or negotiations with any broker or agent in connection with this
Amendment except Grubb & Ellis and Carey Leggett Realty (collectively, "Leasing
Broker") and National Realty (the "Former Broker"). Tenant hereby agrees to
indemnify Landlord from any and against all loss, claim, expense, damage,
liability or cost and expenses (including without limitation attorneys' fees)
resulting from a breach of the foregoing representation and warranty. Landlord
shall pay Leasing Broker a commission pursuant to a separate written agreement.
Landlord represents that the Former Broker is not entitled to receive a
commission in connection with this Amendment, and shall indemnify Tenant from
and against any claim for a commission by the Former Broker.
12. Tax Status. Tenant represents that it is not a tax-exempt
----------
organization as defined in Section 401 or Section 501 of the Internal Revenue
Code or a foreign entity not subject to the U.S. taxation.
13. Notices.
-------
A. Landlord's address for all purposes under the Lease shall be:
MLH Income Realty Partnership V
World Financial Center - South Tower
New York, New York 10080-6112
Attn: Senior Vice President - Portfolio Management
with a copy sent concurrently to:
MLH Income Realty Partnership V
World Financial Center - South Tower
New York, New York 10080-6112
Attn: Sr. Vice President - Legal Department
B. Tenant's address for all purposes under the Lease shall be:
Associated Stationers, Inc.
1634 Westbelt Drive
Columbus, Ohio 43228
Attn: General Manager
with a copy sent concurrently to:
Associated Stationers, Inc.
1075 Hawthorne Drive
Itasca, Illinois 60143
Attn: Vice President-Distribution and Operations
4
14. Exculpation. Notwithstanding anything contained in the Lease to the
-----------
contrary, Tenant agrees that it shall look solely to the estate and property of
the Landlord in the land and building comprising the Property of which the
Premises are a part for the collection of any judgment (or any other judicial
process) requiring the payment of money by Landlord in the event of any default
or breach by Landlord with respect to any of the terms, covenants and conditions
of this Lease to be observed and performed by Landlord and no other property or
estates of Landlord or any of its agents, employees, partners, (general or
limited), affiliates, shareholders or joint venturers shall be subject to levy,
execution or other enforcement procedures for the satisfaction of Tenant's
remedies. In the event of any sale of this Lease or the Property or a lease
thereof by Landlord, Landlord shall be entirely freed, relieved and released of
all covenants and obligations of Landlord hereunder.
15. This Amendment shall not constitute an agreement by Landlord and shall
not be binding upon Landlord unless and until this Amendment shall be executed
by Landlord and Tenant, and shall be delivered by Landlord to Tenant.
16. This Amendment shall not be changed orally, and shall be binding upon
and inure to the benefit of Landlord and Tenant, their respective heirs,
successors and, as permitted their assigns. Tenant hereby confirms that it has
assumed the performance of all of the terms, covenants and conditions of the
Lease and agrees to perform all of the terms, covenants and conditions of the
Lease with the same effect as though Tenant had executed the Lease as the tenant
originally named therein.
17. Except as herein expressly amended or modified the terms and
conditions of the Lease are hereby ratified and confirmed and shall remain in
full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Fifth Amendment
as of the date first written above.
LANDLORD:
MLH INCOME REALTY PARTNERSHIP V
WITNESS: By: MLH Property Managers Inc.
Managing General Partner
[SIGNATURE NOT LEGIBLE] By: [SIGNATURE NOT LEGIBLE]
- ----------------------- ---------------------------
Vice President
(Print Name)
TENANT:
WITNESS/ATTEST: ASSOCIATED STATIONERS, INC.
/S/ Duane Ratay By: /S/ Daniel H. Bushell
- ----------------------- ---------------------------
Name: Daniel H. Bushell
-------------------------
Duane Ratay Title: Chief Financial Officer
- ----------------------- ------------------------
(Print Name)
5
EXHIBIT "A"
[DIAGRAM APPEARS HERE]
EXHIBIT "B"
INSURANCE RIDER
---------------
1. Notwithstanding anything to the contrary set forth in this Lease.
Tenant covenants and agrees that during the term of this Lease (and any renewal
or extension thereof), Tenant, at its sole cost and expense, shall obtain,
maintain and keep in full force and effect:
(a) Comprehensive General Liability Insurance including Blanket
Contractual, Personal Injury, Broad Form Property Damage, Products Liability,
Completed Operations, Fire Legal Liability, Host Liquor Law Liability (and if
Tenant shall be operating a restaurant, tavern or other establishment which
sells or dispenses any drink or beverage containing alcohol, Dram Shop
Liability) and Owned, Non-owned and Hired automobile coverages, naming Landlord
and Tenant, any mortgagee of the Building and any landlord under a ground lease
of the property on which the Building is located, and any other designee of
Landlord, as insureds, with minimum limits of $1,000,000 combined single limit
for property damage and bodily injury per occurrence for any and all claims for
injury or damage to persons or property or for the loss of life or of property
occurring upon, in or about the Premises and the public portions of the Building
arising out of or in connection with any act or omission of Tenant, its
employees, agents, contractors, customers, and invitees.
(b) All Risk insurance including without limitation sprinkler leakage and
flood and earthquake (if flood and earthquake exposure exists) and vandalism and
malicious mischief on a 100% replacement cost basis covering all contents,
merchandise, inventory, equipment, floor coverings, fixtures and improvements
and such other portions of the Premises which Landlord is not responsible for
restoring. Tenant shall apply all insurance proceeds attributable to any of the
foregoing items to the repair and restoration thereof unless this Lease shall be
terminated due to the occurrence of the casualty. In addition, Tenant shall
obtain and keep in full force and effect during the term of this Lease business
interruption insurance with all risk perils and such other insurance in such
amounts as Landlord shall reasonably require.
(c) Workers' Compensation insurance as required by law and Employers'
Liability coverage for a minimum of $100,000 per occurrence.
2. Tenant covenants to comply with any and all rules and regulations
applicable to the Premises issued by the Board of Fire Underwriters or by any
other body hereinafter constituted exercising similar functions and insurance
companies writing policies covering the Premises. Tenant shall pay all costs,
expenses, claims, fines, penalties and damages imposed because of failure of
Tenant to comply with this Section (2) and agrees to indemnify Landlord from all
liability (including without limitation attorney's fees) with reference thereto.
Tenant shall, at its own cost and expense, procure and maintain each and every
permit, license, certificate or other authorization and any renewals, extensions
or continuances of the same required in connection with lawful and proper use of
the Premises for Tenant's business. Tenant agrees to pay upon demand as
additional rent under this Lease any increase in the amount of insurance
premiums payable by Landlord for its insurance on the Building and/or the
underlying property ("Landlord's Insurance") over and above the rate now in
force that may be caused by Tenant's use or occupancy of the Premises or any act
or omission of Tenant, its agents, employees, contractors or invitees. If as
result of any such act or omission, all or any part of Landlord's Insurance
shall be cancelled or suspended, then Tenant shall indemnity Landlord against
any liability, cost or expense which would have been covered thereunder. All
insurance obtained by Tenant hereunder shall be under primary policies and
Landlord's Insurance shall be excess and noncontributory.
3. Tenant shall deposit a policy or policies of all such insurance, or an
approved certificate evidencing such insurance issued by duly authorized agents
of the carriers in question, with Landlord at least ten (10) days before the
Commencement Date and renewals of such policies and at least thirty (30) days
prior to the expiration of any existing policies. All such policies shall
provide that such insurance shall not be modified, cancelled, reduced or allowed
to lapse except upon thirty (30) days prior written notice to Landlord and all
other additional insureds.
4. All such policies shall (a) be written in form and substance
satisfactory to Landlord by an insurance company licensed and authorized to do
business in the state in which the Building is located and otherwise
satisfactory to Landlord in all respects, (b) contain a provision or endorsement
that (i) no act or omission of Tenant shall affect or limit the obligation of
the insurer to pay the amount of the loss sustained, (ii) all of Tenant's
indemnity obligations under this Lease are insured and (iii) Tenant shall be
solely responsible for the payment of all premiums and that Landlord shall have
no obligation to pay
7
same notwithstanding that Landlord is or may be named as an insured. Tenant's
failure to provide and keep in force the aforementioned insurance shall be
regarded as a material default hereunder, entitling Landlord to exercise any or
all of the remedies in the event of a default under this Lease. Carrying the
prescribed insurance shall in no way be construed as either a limitation or
satisfaction of the hold harmless or indemnity agreements contained in this
Lease. In the event Tenant shall not obtain any of the insurance required to be
obtained hereunder, Landlord shall have the right to obtain such insurance on
Tenant's behalf and Tenant shall pay to Landlord the cost thereof upon demand as
additional rent. Landlord shall have the further right to review annually the
form, substance and limits of all of Tenant's insurance required hereunder and
Tenant shall adjust its insurance and/or increase the limits thereof as Landlord
shall deem reasonably necessary provided such adjustment or increase is
consistent with the standards of landlords of comparable buildings in Columbus,
Ohio.
5. Landlord and Tenant shall obtain in all policies of insurance
respectively maintained by them with respect to the Building and/or the Premises
a waiver by the insurer of all right of subrogation against the other in
connection with property insurance. So long as both Landlord's and Tenant's
policies then in force include such mutual waiver of subrogation, Landlord and
Tenant, to the fullest extent permitted by law, each waive all right of recovery
against the other for and agree to release the other from liability from loss or
damage to the extent such loss or damage is covered by valid and collectible
insurance in effect at the time of such loss or damage. If such waiver of
subrogation shall not be obtainable or shall be obtainable only at a premium
over that chargeable without such waiver, the party undertaking to obtain such
waiver shall notify the other thereof in writing, and the latter shall have ten
(10) days in which either to (i) procure on behalf of the notifying party
insurance with such waiver from a company or companies reasonably satisfactory
to the notifying party or (ii) agree to pay such additional premium (in Tenant's
case in the proportion which the rentable area of the Premises bears to the area
covered by the insurance policy of Landlord in question).
8
EXHIBIT "C"
HAZARDOUS MATERIALS RIDER - INDUSTRIAL
--------------------------------------
(1) Tenant's Covenants Regarding Hazardous Materials.
------------------------------------------------
(A) Compliance with Environmental Laws. Tenant shall at all times
----------------------------------
and in all respects comply with all federal, state and local laws, ordinances
and regulations, including, but not limited to, the Federal Water Pollution
Control Act (33 U.S.C. (S)1251, et seq.), Resource Conservation & Recovery Act
(42 U.S.C. (S)6901, et seq.), Safe Drinking Water Act (42 U.S.C. (S)3000f, et
seq.), Toxic Substances Control Act (15 U.S.C. (S)2601, et seq.), the Clean Air
Act (42 U.S.C. (S)7401, et seq.), Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. (S)9601, et seq.) and other comparable
local, state and federal laws, currently in force or enacted in the future
(collectively, "Hazardous Materials Laws") relating to industrial hygiene,
environmental protection or the use, analysis, generation, manufacture, storage,
presence, disposal or transportation of any oil, petroleum products, flammable
explosives, asbestos, urea formaldehyde, radioactive materials or waste, or
other hazardous, toxic, contaminated or polluting materials, substances or
wastes, including, without limitations, any "hazardous substances," "hazardous
wastes," "hazardous materials" or "toxic substances" under any such laws,
ordinances or regulations (collectively, "Hazardous Materials").
(B) Hazardous Materials Handling. Tenant shall at its own expense
----------------------------
procure, maintain in effect and comply with all conditions of any and all
permits, licenses and other governmental and regulatory approvals required for
Tenant's use of the Premises, including, without limitation, discharge of
(appropriately treated) materials or wastes into or through any sanitary sewer
serving the Premises. Except as discharged into the sanitary sewer in strict
accordance and conformity with all applicable Hazardous Materials Laws, Tenant
shall cause any and all Hazardous Materials removed from the Premises to be
removed and transported solely by duly licensed haulers to duly licensed
facilities for final disposal of such materials and wastes. Tenant shall in all
respects handle, treat, deal with and manage any and all Hazardous Materials in,
or under or about the Premises in total conformity with all applicable Hazardous
Materials Laws and prudent industry practices regarding management of such
Hazardous Materials. All reporting obligations imposed by Hazardous Materials
Laws are strictly the responsibility of Tenant. Upon expiration or earlier
termination of the term of the Lease, Tenant shall cause all Hazardous Materials
to be removed from the Premises and transported for use, storage or disposal in
accordance and compliance with all applicable Hazardous Materials Laws. Tenant
shall not take any remedial action in response to the presence of any Hazardous
Materials in or about the Premises or any Building, nor enter into any
settlement agreement, consent decree or other compromise in respect to any
claims relating to any Hazardous Materials in any way connected with the
Premises or Building, without first notifying Landlord of Tenant's intention to
do so and affording Landlord ample opportunity to appear, intervene or otherwise
appropriately assert and protect Landlord's interest with respect thereto. In
addition, at Landlord's request, Tenant shall remove any tanks or fixtures which
contain or contained, or are contaminated with Hazardous Materials.
(C) Notices. Tenant shall immediately notify Landlord in writing of:
-------
(i) any enforcement, cleanup, removal or other governmental or regulatory action
of which Tenant or its agents or employees has knowledge, instituted, completed
or threatened pursuant to any Hazardous Materials Laws in connection with the
Premises or Tenant's use thereof; (ii) any claim made or threatened by any
person against Tenant, the Premises or Building relating to damage,
contribution, cost recovery compensation, loss or injury resulting from or
claimed to result from any Hazardous Materials in connection with the Premises
or Tenant's use thereof; and (iii) any reports made to any environmental agency
of which Tenant or its agents or employees has knowledge, arising out of or in
connection with any Hazardous Materials in, on or removed from the Premises or
Building, including any complaints, notices, warnings, reports or asserted
violations in connection therewith. Tenant shall also supply to Landlord as
promptly as possible, and in any event within five (5) business days after
Tenant first receives or sends the same, with copies of all claims, reports,
complaints, notices, warnings or asserted violations relating in any way to the
Premises, Building or Tenant's use thereof. Tenant shall promptly deliver to
Landlord copies of hazardous waste manifests reflecting the legal and proper
disposal of all Hazardous Materials removed from the Premises.
(2) Indemnification of Landlord. Tenant shall indemnify, defend (by
---------------------------
counsel acceptable to Landlord), protect, and hold Landlord, and each of
Landlord's partners, employees, agents, attorneys, successors and assigns, free
and harmless from and against any and all claims, liabilities, penalties,
forfeitures, losses or expenses (including attorney's fees) for death of or
injury to any person or damage to any property whatsoever (including water
tables and atmosphere), arising from or caused in
9
whole or in part, directly or indirectly, be (A) the presence in, on, under or
about the Premises or Building or discharge in or from the Premises or Building
of any Hazardous Materials or Tenant's use, analysis, storage, transportation,
disposal, release, threatened release, discharge or generation of Hazardous
Materials to, in, on, under, about or from the Premises or Building, except to
the extent such Hazardous Materials were present in the Premises prior to the
initial commencement date of the Lease (June 1, 1984), or (B) Tenant's failure
to comply with any Hazardous Materials Law whether knowingly or unknowingly, the
standard herein being one of strict liability. Tenant's obligations hereunder
shall include, without limitation, and whether foreseeable or unforeseeable, all
costs of any required or necessary repair, cleanup or detoxification or
decontamination of the Premises or Building, and the preparation and
implementation of any closure, remedial action or other required plans in
connection therewith, and shall survive the expiration or earlier termination of
the term of the Lease. For purposes of the release and indemnity provision
hereof, any acts or omissions of Tenant, or by employees, agents, assignees,
contractors or subcontractors of Tenant or others acting for or on behalf of
Tenant (whether or not they are negligent, intentional, willful or unlawful)
shall be strictly attributable to Tenant.
(3) Environmental Audit: Right of Entry. Landlord shall have the right to
-----------------------------------
require Tenant to undertake and submit to Landlord a periodic environmental
audit from an environmental company approved by Landlord, which audit shall
cover Tenant's compliance with this Rider. Landlord may not require an audit
more often than once every two years unless Landlord has reasonable cause to
believe that Tenant has violated the terms or conditions of this Rider Tenant
shall promptly comply with all requirements of any such audit and cure all
matters raised therein at Tenant's sole cost.
(4) Indemnification of Tenant. Landlord shall indemnify, defend (by
-------------------------
counsel reasonably acceptable to Tenant), protect, and hold Tenant free and
harmless from and against any and all claims, liabilities, penalties,
forfeitures, losses or expenses (including reasonable attorney's fees) for death
of or injury to any person or damage to any property whatsoever (including water
tables and atmosphere), arising from or caused in whole or in part, directly or
indirectly, be (A) the presence in, on, under or about the Premises or Building
or discharge in or from the Premises or Building of any Hazardous Materials to
the extent caused by Landlord, its agents or employees, or (B) Landlord's
failure to comply with any Hazardous Materials Law.
10
EXHIBIT "D"
IMPROVEMENTS
------------
1) Removal of all existing carpet throughout the office area including all
necessary furniture relocation.
2) Install new carpet throughout the office area. Carpet will be direct glue
down and shall be Shaw 22 oz. or equivalent. Color and style to be selected
by tenant.
3) Repaint all walls throughout the office area with Sherwin Williams Promar
or equivalent. Color and style to be selected by tenant.
4) Wash down and clean all existing wall covering throughout the office area.
5a) Existing concrete floor to be patched and repaired in selected places.
5b) Ashford Formula sealer or equivalent will be used to reseal aisles and
staging areas.
6) Two existing exterior wall mounted lights located over the north entry will
be replaced with "Hubbel" 400 watt metal halide flood lights and three will
be added as indicated on the diagram provided in the Koll Management
Services letter dated April 29, 1994, addressed to Duane Ratay.
7) The concrete dolly pad will be completely replaced from the main entry
south to door #7.
8) Replace the existing ceiling tiles throughout the office area.
9) Install a hand rail along the steps leading from the front door to the
parking lot.
11