Exhibit 10.09
ASB WALLKILL, LLC
Post Office Box 429
Middletown, NY 10940
September 30, 2003
Xxxxxxx Xxxxxx, President
RAL Purchasing Corp.
000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Re: Assumption of Lease
ASB Walkill, LLC, as Landlord
The RAL Supply Group, Inc., as
Tenant
Premises located at 00 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxx
("The RAL Middletown Store")
Lease dated May 1, 1998
(the "Lease Agreement")
Dear Xx. Xxxxxx:
With regard to the above lease which is being assigned to RAL Purchasing Corp.
("Tenant" or "Buyer") by The RAL Supply Group, Inc., ("Seller") it is hereby
understood and agreed that the lease is hereby modified and amended as follows
(capitalized terms not defined herein or in the Lease Agreement are defined in
or refer to the Asset Purchase Agreement (the "Agreement") dated September 5,
2003 among Buyer, Seller and certain other parties):
1. Intended Use
------------
Landlord represents that the intended use is consistent with valid CO or a
pre-existing legal non-conforming use and does not violate or prohibit
zoning or other ordinances and governmental requirements, and that that all
plumbing electrical and HVAC is in good condition and working order and, to
the best of landlord's knowledge, there are no outstanding violations of
record.
2. Abatement of Rent
-----------------
Section 6.4 is hereby amended to provide for abatement of rent for
substantial and material destruction of property.
3. Structural Repairs & Replacements
---------------------------------
Section 9.1 is hereby amended to clarify that landlord is responsible for
all structural repairs and replacements.
4. Tenant Default
--------------
Section 16.1 is hereby amended to state that, for all matters other than
payment of rent or additional rent (as to which the current default
provisions shall continue to apply), tenant will be in default only if the
designated failure is not cured for 30 days after notice; provided that the
time periods in this Section 4 shall not extend any cure period in the
lease beyond 30 days,
5. Tenant Improvements
-------------------
In section 22.1 the amount of improvements that can be made during the term
of the lease without the landlord's approval shall be $50,000.00.
6. Notices
-------
The notice provision of the lease is hereby revised to provide that all
notices to the tenant shall be as follows:
If to Tenant;
RAL Purchasing Corp.,
c/o Universal Supply Group, Inc.
000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
7. Real Estate Taxes
-----------------
Article 3.1(a) is hereby amended to provide that tenant's responsibility
for payment of all taxes in this article is limited to its proportionate
share of taxes calculated as a square footage of space it occupies divided
by the total square footage of the tax property.
8. Utility Charges
---------------
Article X is hereby amended to provide that tenant's responsibility for
payment of utility charges is limited to its proportionate share of utility
charges calculated by the square footage it occupies divided by the square
footage of the area to which the utility charges apply.
9. Environmental Matters
---------------------
All relevant provisions of the lease are hereby amended to provide that
tenant's sole environmental responsibility is to do what tenant in its
capacity as tenant is required to do under federal and New York statutes,
and to provide further that the landlord will indemnify the tenant and
holds it harmless from any and all claims, actions or proceedings asserted
at any time against tenant with respect to any environmental contamination
of the leased premises prior to the date of the Closing (including without
limitation any issues arising from an underground gasoline tank referred to
in Section 3.17(c) of the Agreement, including reasonable attorney's fees).
10. Security Deposit
----------------
On the 18th month after the Closing, tenant shall deposit with landlord
one-month's rent as security deposit. On the 24th month after the Closing,
tenant shall deposit with landlord one half month's rent as an additional
security deposit.
11. Additional Default Remedies
---------------------------
In addition to any default remedies afforded to the landlord under the
lease, (i) in the event that the tenant defaults under its obligation to
pay the Promissory Note due and owing to the Company as provided in the
Agreement and such default is not cured within 30 days after notice and/or
(ii) in the event that the Buyer defaults under its obligations hereunder
to pay trade payables that are included in the Assumed Obligations assumed
by it under the Agreement and such failure is not cured by the Buyer within
30 days after Company has given notice to the Buyer of the Buyer's failure
to pay such payables within such time, and (iii) a default by the tenant
under any of such leases, which is not cured within 30 days after notice,
shall constitute a default under all such leases, any of the aforesaid
defaults of the Buyer shall be deemed additional rent due and owing by the
tenant under each lease. In such event tenant shall consent to the entry by
the court having jurisdiction thereof to Judgments of Possession and
issuance of a Warrant of Eviction to be consented to by the landlord, the
Company and the tenant ("Buyer") to be submitted by the Landlord or the
Company to any Court having competent jurisdiction over summary possession
proceedings pursuant to the pertinent provisions of Article 7 of the Real
Estate Practices and Proceedings Act of the State of New York. The
aforesaid provisions of this subsection 11 shall survive the Closing and
the delivery of the Conveyance Documents and shall not merge therein.
12. Assignment
----------
Notwithstanding anything to the contrary contained in the lease, tenant is
permitted to assign the lease with landlord's approval which will not be
unreasonably withheld or delayed. Provisions related to recapture are
hereby deleted.
Except as otherwise provided herein, all of the terms and conditions of the
lease shall remain in full force and effect.
If this comports with your understanding, kindly sign below.
Sincerely, Agreed and Accepted:
ASB Wallkill, LLC RAL Purchasing Corp.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxx
-------------------------- --------------------------
Xxxxx X. Xxxxxx, President Xxxxxxx Xxxxxx, President
