EXHIBIT 10.84
LEASE
1. PARTIES.
This Lease is made and entered into as of the ___ day of ______________
(hereafter called the "Effective Date") by and between XXXXXX-XXXXXX
STORAGE CO., (hereafter called "Lessor"), a Tennessee corporation with its
principal office in Nashville, Tennessee, and UNITED STATIONERS SUPPLY
CO., an Illinois corporation with its principal office at 0000 Xxxx Xxxx
Xxxx, Xxx Xxxxxxx, Xxxxxxxx 00000 (hereafter called "Lessee").
2. PREMISES.
(a) The Lessor for and in consideration of the covenants, conditions,
agreements and stipulations herein contained, does hereby lease
unto the Lessee, and the Lessee does hereby take and hire from the
Lessor, those certain premises (hereafter called the "Premises")
identified and described as follows:
191,250 square feet of the Mid-South Logistec Center, (hereafter
referred to as the "Project") at 000 Xxxxxxxxxx Xxxx., XxXxxxxx,
Xxxxxxxxx, as shown on Exhibit A.
(b) To have and to hold the same, subject to the conditions herein
contained for the lawful operation thereon of Lessee's normal
business operations of warehousing and distribution. Lessee shall
not engage in any other business on the Premises without the prior
written consent of Lessor.
3. TERM.
(a) The term of this Lease shall be for the period of ten (10) years
and three (3) months. The commencement date is February 1, 1998 and
the termination date is April 30, 2008.
(b) Lessee shall be entitled to possession of the Premises commencing
February 1, 1998 for the purpose of installing its racking system,
wire guidance system, trade fixtures and equipment, and for receipt
of merchandise inventory. If for any reason other than the fault
of Lessee possession of the Premises for such purposes is delayed
beyond March 1, 1998, Lessee's Rental shall be abated for two days
for each day of delay after March 1, 1998.
4. RENTAL.
Lessee agrees and covenants to pay as rental for said Premises (i) the
sum of $583,312.50 per year for each of the first five years of the
Lease Term, payable in monthly installments of $48,609.38 for each month
of the first five years of the initial term of this Lease commencing May
1, 1998, and (ii) the sum of $659,812.50 per year for each of the next
five years of the Lease Term, payable in monthly installments of
$54,984.38 for each month commencing May 1, 2003. For the period from
February 1, 1998 through April 30, 1998, Lessee shall not be required to
pay any rental pursuant to this paragraph
4, nor shall Lessee be responsible for any portion of the Utilities
pursuant to paragraph 10, the Real Estate Taxes pursuant to paragraph
24, or the Common Area Maintenance costs pursuant to paragraph 25.
(a) Rent shall commence on May 1, 1998, with the first payment for the
month of May 1998 due on lease execution, and due thereafter on the
first day of each month commencing June 1, 1998 until the
expiration of the term hereof, as extended, except that if the
beginning or ending months are not whole, then only the prorata
portion of that month's rent shall be paid for said month. The
total rent due upon each due date shall be paid in full to Lessor
by Lessee in lawful money of the United States by check or draft
payable to the order of Lessor and mailed to Lessor at 000 XXXXXXXX
XXXX, XXXXXXXXX XX 00000. ATTENTION: XXXX XXXXXXX unless Lessee
shall otherwise direct in writing, and no setoff or counter claims
may be deducted by Lessee from the rentals due.
(b) If Lessee fails to pay rent when due or if Lessee's rent payment is
not accepted by Lessor's Bank, Lessor, after providing Lessee with
ten (10) days advance written notice of the failure to receive rent
or the bank's rejection of the rent payment, may if such default is
not cured within such ten (10) day period, assess Lessee a late
charge in the amount of five percent (5%) of the payment due
Lessor.
5. REPAIRS.
(a) Lessor shall, at its own cost and expense, maintain in good working
order, condition and repair, the roof, structural elements of the
floor, driveways, parking lot, foundation and exterior walls (not
including doors, windows and floors), interior stress bearing walls
and columns, landscaping and grounds surrounding the Premises,
gutters, downspouts, concealed and underground plumbing, sewage and
electrical systems; however, Lessor shall not be obligated to make
any repairs of those portions of the Premises that it is obligated
to maintain unless it shall be notified in writing by Lessee, and
Lessor shall then have a reasonable period of time to make such
repairs; provided further, however, that Lessee and not Lessor
shall be responsible for making any such repairs occasioned by the
acts of Lessee, its employees (whether or not acting within the
scope of their employment), invitees, permitted assignees,
permitted subtenants, or licensees. If Lessor fails to maintain,
repair or replace the Premises as required by this paragraph 5,
Lessee may, upon ten (10) days prior written notice to Lessor
(except no notice shall be required in the case of an emergency)
perform such maintenance or repair (including replacement, as
needed) on behalf of Lessor. In such case, Lessor shall reimburse
Lessee for all reasonable, direct costs incurred in performing such
maintenance or repair promptly following receipt of appropriate
documentation of such costs. Lessor shall not be liable for any
damage or loss occasioned by Lessor's failure to repair portions of
the Premises which it has covenanted to maintain until after Lessor
has received written demand from Lessee to make the repair. Lessor
shall, however, indemnify and hold harmless Lessee against any and
all costs, claims or liability arising from Lessor's failure to
make timely repairs after receiving such written notice from Lessee.
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(b) Lessee shall, at its own expense and without notice from Lessor,
keep and maintain (including replacement, as needed) in good repair
the entire Premises, other than those portions for which Lessor
shall be responsible as set forth above. Lessee's obligations shall
extend to doors, windows, floors, interior (non-stress bearing
walls, ceilings, ducts, utilities, air conditioning, heating,
lighting, plate glass, plumbing, sprinkler system, and electrical
wiring, and also including the loading dock, and the cleaning, and
sweeping, removal of snow and ice from walks, stairs and steps,
removal of trash and rubbish, etc., of those areas of the Premises
under Lessee's control, but this enumeration shall not be treated
as a limitation of Lessee's obligations with respect to the care of
the Premises.
(c) Lessee shall, at its own expense, promptly comply with all lawful
orders, regulations, ordinances and statutes of all municipal,
county, state and federal authorities affecting the Premises by
virtue of Lessee's occupancy or use thereof.
(d) Lessee shall, at its own cost and expense, obtain and maintain any
and all permits and licenses necessary for its use of and business
operations at the Premises. Lessee shall not permit, perform or
carry on any practices which may cause injury or damage to the
Premises, produce any objectionable or unpleasant smoke, dust gas,
fumes, odors, noise or vibrations to emanate from the Premises, nor
take or permit any other actions which would constitute a nuisance
or menace to neighboring landowners or their tenant, as determined
by a court of competent jurisdiction. Without Lessor's prior
written consent, which shall not be unreasonably withheld, Lessee
shall not receive, store or otherwise handle any product, material
or merchandise which is explosive. Lessee shall not use or permit
the Premises to be used for any purpose or in any manner (including
without limitation any method of storage) which would render
invalid Lessor's insurance on the Premises or Lessee's liability
insurance for its operation on the Premises or cause the State
Board of Insurance or other insurance regulatory authority to
disallow any sprinkler credits. Lessee shall not use the Premises
for any unlawful purpose.
6. IMPROVEMENTS TO BE MADE, AND DELIVERY OF PREMISES.
Lessor is to make improvements, as generally described on Lessor's
Proposal To Lease Industrial Space dated October 1, 1997, and/or as set
forth on a separate Exhibit "B" which shall be attached and initialed by
each party setting out the agreed improvements. Lessor shall make such
improvements prior to March 1, 1998, and shall warrant its work for the
term of the Lease. Lessor and Lessee acknowledge that the Premises shall
be acceptable when such improvements are substantially complete.
Lessor warrants to Lessee that (a) the Project and (b) that portion of
the Premises already constructed and to be constructed by Lessor or
Lessor's contractor, have been or will be constructed and operated in a
first-class manner, in full compliance with all governmental
regulations, ordinances, and laws existing at the time of construction,
including, but not
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limited to, laws pertaining to disabled access (See Paragraph 9) and
laws pertaining to Hazardous Substances ("Applicable Laws"), in order to
make the Project and the Premises suitable for warehousing and
distribution purposes. Lessor will be responsible for making all
alterations and repairs to the Project and the Premises at its cost,
which shall not be included as Common Area Maintenance expenses (as
described in Paragraph 25 of this Lease), resulting from or necessitated
by the failure of Lessor to comply with the Applicable Laws.
7. ENVIRONMENTAL PROVISIONS.
The term "Hazardous Substance" as used in the Lease shall mean
pollutants, contaminants, petroleum or petroleum products, toxic or
hazardous wastes, or any other substances, (Including without
limitation, asbestos and raw materials which include hazardous
constituents) the removal of which is required or the use of which is
restricted, prohibited or penalized by any "Environmental laws," which
term shall mean any federal, state or local law, regulation or ordinance
relating to pollution or protection of the environment, the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund, Amendment and Reauthorized Act of
1986, the Resource and Conservation and Recovery Act of 1976, as amended
by the Used Oil Recycling Act of 1980, the Solid Waste Disposal Act
amendments of 1980, and the Hazardous and Solid Waste Amendments of
1984, and all state environmental laws.
(a) Lessee hereby agrees that:
(i) no activity will be conducted on the Premises that will
produce any Hazardous Substances, except for such activities
that are part of the ordinary course of its business
activities provided said activities are conducted in
accordance with all Environmental Laws;
(ii) the Premises will not be used in any manner for the storage
of any Hazardous Substances except for the storage of such
materials that are used in the ordinary course of Lessee's
business, provided such materials are properly stored in a
manner and location meeting all Environmental laws;
(iii) no portion of the Premises will be used as landfill or dump;
(iv) Lessee will not use or install any underground tanks of any
type;
(v) Lessee will not allow any surface or subsurface conditions to
exist or come into existence that constitute, or with the
passage of time may constitute, a public or private nuisance,
except with regard to any Hazardous Substances located or
discovered off the Premises that have migrated or leached
onto the Premises from adjacent property through no fault of
Lessee;
(vi) Lessee will not permit any Hazardous Substances to be brought
onto, stored, processed, disposed of; released, discharged
from (including ground water contamination) or otherwise
handled on the Premises, except for those used in the
ordinary course of Lessee's business activities, and if so
brought or found located thereon, the same shall be
immediately removed by Lessee with proper disposal, and all
required cleanup
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procedures shall be diligently undertaken pursuant to all
Environmental Laws. Lessee shall immediately notify Lessor
should Lessee become aware of any Hazardous Substance located
on the Premises or Project in violation of Environmental Laws
or this lease or other environmental problem or liability with
respect to the Premises or Project. If, at any time during or
after the term of the Lease, the Premises or Project are found
to be so contaminated or subject to said conditions, and such
contamination or conditions are shown to have been caused by
Lessee, its employees, agents, contractors, licensees
permitees, invitees, or guests, then Lessee shall indemnify
and hold Lessor (and any mortgagee or trustee under any deed
of trust or mortgage on the Premises or Project) harmless from
all claims, demands, actions, liabilities, costs (including
attorney fees), expenses, damages and obligations that
directly result from the use of the Premises by Lessee.
(b) Except for conditions, if any, resulting from Lessee's occupation
or use of the Premises pursuant to the Prior lease, Lessor represents
and warrants to Lessee, to the best of Lessor's knowledge as of the
Effective Date, as follows:
(i) Lessor has maintained the Premises in compliance with all
Environmental Laws;
(ii) No Hazardous Substances have been disposed of; discharged,
released or spilled on the Premises in violation of any
Environmental Laws during Lessor's ownership, operation or
occupancy of the Premises;
(iii) The Premises have not been used for any dumping or land
filling activities during Lessor's ownership, operation or
occupancy of the Premises; and,
(iv) No underground storage tanks are or have been present on the
Premises during Lessor's ownership, operation or occupancy of
the Premises.
(c) Except as provided to the contrary in paragraph 7(b), Lessor
shall unconditionally and irrevocably indemnify, hold harmless and
defend Lessee, its employees, officers, directors, shareholders,
successors and assigns, from and against any loss, liability, claim,
suit, demand, damage, penalty, fine, cost or expense (including,
without limitation, reasonable attorneys' and consultants' fees) of
whatever kind or nature, whether arising on, before or after the
Effective Date of this Lease, arising out of or resulting from or in
any way related to:
(i) The breach of any environmental representation or warranty
contained in paragraph 7(b) of this Lease;
(ii) The presence, leakage, spillage, discharge or release of any
Hazardous Substances on or from the Premises unless caused by
Lessee; and,
(iii) Any violation or alleged violation of any Environmental Laws,
demands or orders of any governmental authority pertaining to
the presence, leakage, spillage, discharge or release of any
Hazardous Substance on or from the Premises unless caused by
Lessee.
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In no event shall Lessor be obligated to indemnify, defend
or hold harmless Lessee against the results of Lessee's breach of its
obligations under paragraph 7(a) or otherwise against the results of
Lessee's violation of the Environmental Laws.
(d) Paragraphs 7(a), 7(b), 7(c), and 7(d) shall survive the
expiration or earlier termination of this Lease
8. ALTERATIONS.
Lessee may, with the prior written consent of Lessor, which consent
shall not be unreasonably withheld or delayed, make such alterations,
changes and improvements to the Premises, as Lessee deems necessary and
advisable, at Lessee's own cost and expense, so long as the structural
strength of the building is not affected thereby. All such alterations,
changes and improvements made by the Lessee shall comply with all laws,
ordinances rules, building codes and regulations applicable thereto, and
upon completion shall remain upon, and be surrendered with, the Premises at
the termination of this Lease. Lessee agrees that should it make any
alterations, additions, replacements or improvements to the Premises, it
will not be acting as agent or servant of Lessor and that it will promptly
pay the cost or expense for same and shall forthwith pay and discharge all
liens, obligations and encumbrances of any kind and nature whatsoever which
shall attach to, be filed against or imposed upon the Premises by reason of
such alterations, changes, additions, replacements and improvements.
9. AMERICANS WITH DISABILITIES ACT.
(a) Except for any alterations, changes or improvements to the Premises
made by Lessee, Lessor shall, at Lessor's sole cost and expense,
comply with all applicable provisions of the Americans with
Disabilities Act of 1990 and all amendments thereto and all
regulations promulgated thereunder (collectively "ADA"), including,
but not limited to, any required modifications or alterations of the
Premises required by ADA in connection with the use of the Premises as
a warehouse.
(b) Lessor shall reimburse, defend and indemnify and hold Lessee, its
agents and employees, harmless from and against any and all claims,
losses, liabilities, damages, costs, and expenses, including
reasonable attorneys' fees and costs, arising out of or related to
any failure on the part of Lessor to maintain, modify or alter the
Premises in accordance with its obligations under paragraph 9(a) of
this Lease; provided, however, Lessor's obligations under this
paragraph 9(b) shall not arise unless and until Lessee:
(i) gives Lessor timely written notice of the existence of any
such claim or alleged liability but, in any event, not later
than fifteen (15) days following Lessee's first receipt of any
written demand, notice, or service of process asserting such
claim or alleged liability;
(ii) tenders to Lessor the defense of such claim or alleged
liability, along with the right of settlement;
(iii) reasonably cooperates with Lessor in the defense or settlement
of such
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claim or alleged liability.
10. UTILITIES.
Lessee agrees, at its own cost and expense, to pay the cost of electricity,
gas, water, sewer, garbage, metering charges, sprinkler fees and other
public utilities and services used or consumed by the Lessee in or on the
Premises, without liability on the part of Lessor.
11. SIGNS
Lessee shall not be permitted to paint, place, erect or cause to be
painted, placed or erected any sign or flag on the roof or the front, back
or side portions of the building, or on the grounds of the Premises (except
as provided in Exhibit C, attached hereto) without Lessor's prior written
consent, which consent shall not be unreasonably withheld or delayed. At or
prior to the expiration of this Lease, or any extension thereof, Lessee
shall remove all signs or flags so painted, placed or erected, and shall
restore the walls and other portions of the Premises to which any of said
signs or flags were attached to their original condition, ordinary wear and
tear excepted.
12. SURRENDER OF POSSESSION.
Upon termination of this Lease, by expiration or otherwise, Lessee will
peaceably and quietly leave and surrender the Premises in as good
condition as they now are or may be after making alterations, additions or
improvements as herein permitted, ordinary wear and tear, loss by fire,
casualty and causes beyond Lessee's control excepted.
13. LIABILITY.
(a) Lessee shall save Lessor free and harmless from all liability for
injury to any person or persons, firm or corporation, or for the
resultant effect of any injury to any person or persons, firm or
corporation, occurring on the Premises, or arising out of any
accident or other occurrence on the Premises causing injuries to any
person or persons, firm or corporation whatsoever, and due directly or
indirectly to the use of said Premises or any part thereof by Lessee;
unless caused by Lessor's sole negligence or the sole negligence of
Lessor's employees, agents or independent contractors.
(b) Lessee agrees to carry public liability insurance naming Lessor as
additional insured to protect Lessor from risks customarily covered
by such insurance, in an amount not less than $ 2,000,000 per person
and $ 2,000,000 per accident. Lessee shall furnish directly to Lessor
certificates evidencing such insurance is in effect continuously
during the term of this Lease and such policies shall provide they
may not be cancelled on less than thirty (30) days' notice to Lessor.
Lessor shall be named as an additional insured under said policy
and so identified in the Certificate of Insurance. Lessee also shall
carry contents coverage on its contents with a waiver of subrogation
clause as to Lessor.
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14. ASSIGNMENT AND SUBLETTING.
Lessee covenants and agrees not to assign this Lease or sublet the
Premises or any part thereof without the prior written consent of Lessor,
but such consent shall not be arbitrarily or unreasonably withheld or
delayed; provided, however, that Lessee may, without the prior consent of
Lessor, assign this Lease or sublease the Premises, in whole or in part, to
any corporation or other entity which controls, is controlled by or is
under common control with Lessee, or to any corporation into or with which
Lessee may be merged or consolidated; provided further, however, that such
permitted assignee executes an assumption, in a form reasonably acceptable
to Lessor, within fifteen (15) days following any such permitted
assignment. Any permitted sublet of the Premises shall not relieve the
Lessee of any obligations imposed upon Lessee by this Lease and such sublet
shall be on terms and conditions consistent with the provisions of this
Lease. Lessee shall deliver to Lessor a true copy of all permitted sublet
agreements entered into by Lessee with respect to all or part of the
Premises within fifteen (15) days following the execution thereof. In the
event the Lease is assigned or the Premises are sublet, Lessee shall
nevertheless remain liable for the payment of rent and performance of all
of the covenants of this Lease.
15. FIRE AND OTHER CASUALTY.
(a) During the term of the Lease (including any renewal term or
extension, as the case may be):
(i) Lessor, at its sole expense, shall maintain in full force and
effect standard fire and extended coverage insurance for the
buildings and improvements on the Premises in an amount equal
to the full replacement value thereof,
(ii) Lessee shall reimburse Lessor for Lessee's percentage (as
defined below) of said standard fire and extended coverage
insurance;
(iii) Lessee, at its sole expense, shall carry insurance for its
personal property (including but not limited to its fixtures
and inventory) located on the Premises in such amounts as
Lessee shall deem appropriate.
Lessee's Percentages shall be that fraction (expressed as a
percentage), the numerator of which is the space in the Premises
occupied by the Lessee and the denominator of which is the space in
the building (562,500 square feet).
(b) Lessee agrees promptly to comply with and execute all rules, orders
and regulations of the Fire Underwriters Association for the prevent
of fires, at Lessee's own cost and expense; provided, however, that
if any violation of such rules, orders or regulations are not
occasioned by Lessee's use of the Premises, then all costs and
expenses shall be borne by Lessor. Lessor represents that the
Premises are presently in substantial compliance with all rules,
orders and regulations of the Fire Underwriters Association, to the
best of Lessor's knowledge. Payment under this clause shall be due
within thirty (30) days of delivery of notice thereof to Lessee. If
said insurance coverage should escalate due to Lessee's occupancy, the
Lessee may elect to provide insurance coverage, at its expense,
acceptable to Lessor.
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(c) In case the said Premises shall be so damaged by fire or other
cause as to be rendered untenantable, Lessor and Lessee shall
have thirty (30) days from date of said casualty to determine the
extent of repairs to be done and the time required to perform them.
(d) Lessor and Lessee agree (to the extent that such agreement does not
invalidate coverage under an policy of insurance) that, in the event
the Premises, or any part thereof, are damaged or destroyed by fire
or other casualty that is covered by insurance of the Lessor or
Lessee, or the sublessees, assignees of transferees of Lessee, the
rights of any party against the other or against the employees, agents
or licensees of any party, with respect to such damage or destruction
and with respect to any loss resulting therefrom, including the
interruption of the business of any of the parties, are hereby waived
to the extent of the coverage of said insurance, Lessor and Lessee
further agree that all policies of fire, extended coverage, business
interruption and other insurance covering the Premises or the contents
therein shall, if possible, provide that the insurance shall not be
impaired by virtue of this provision or if the insureds have waived
their right of recovery from any person or persons prior to the date
and time of loss or damage.
16. EMINENT DOMAIN.
In the event of Lessor's receipt of notice by a condemning authority's
intention to take by eminent domain a substantial part of the property on
which the leased Premises are situated, the rent shall be abated in
proportion to the amount of the Premises taken. If the taking of the
Project or Premises, or any part thereof, would prevent or materially
interfere with Lessee's use of the Premises, Lessee may terminate the Lease
by written notice to Lessor. In the event of termination of this Lease as
a result of condemnation, Lessee shall have the right to remove all of its
property and contents but shall have no right to any part of the
condemnation award, judgment or settlement, except for reasonable moving
expenses and loss leasehold, if specifically set aside for tenant
relocation by the condemning authority. The rent herein provided for shall
be prorated to the date of termination. If this Lease continues in force
upon such partial taking, the rent herein provided for shall be equitably
adjusted according to the remaining areas of the Premises.
17. RIGHT TO ENTER.
Lessor and its agents shall have the right to enter the Premises at
all reasonable hours upon reasonable notice to examine the same, to make
any repairs or improvements that it my be obligated to do under the terms
of this Lease, to exhibit said Premises for sale, and, at any time within
nine (9) calendar months before the expiration of this Lease, to exhibit
said Premises for rent and affix upon any suitable part thereof a notice
for reletting same. Routine inspections or examinations shall be preceded
by a telephone call.
18. INTENTIONALLY OMITTED.
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19. DEFAULT.
(a) All covenants and agreements herein made and obligations assumed
are to be construed also as conditions and these presents and upon
the express condition that if Lessee should fail to pay when due
any one of the aforesaid installments of rent, or if either party
should fail to perform or observe any of the covenants, agreements, or
obligations herein made or assumed, and if such default is not cured
within ten (10) days (in the case of rental installments) or thirty
(30) days (in case of other covenants, agreements or obligations
herein made or assumed) after written notice of default, then, and
thenceforth, in any of said events, this Lease may be terminated at
the option of the non-defaulting party, and said Lessor may
immediately re-enter said Premises and repossess and have the same as
if Lessor's former estate, and remove therefrom all goods and chattels
not thereto properly belonging and expel said Lessee and all other
persons who may be in possession of said Premises. In the case of
Lessee's default, Lessor shall be entitled to receive from Lessee the
difference in rental, if any, between the rental herein reserved for
the unexpired portion of the term and any lesser amount which Lessor,
in the exercise of reasonable diligence, is able to procure for the
unexpired portion of the term. In the case of Lessor's default, Lessee
may remove their goods and chattels, vacate the Premises, and upon
vacation have no further obligation for rent.
(b) The right to terminate this Lease as herein set forth is in addition
to and not in exhaustion of such other rights that a party hereto
has or causes of action that may accrue because of the other party's
failure to fulfill, perform or observe the obligations, agreements
or covenants of this Lease, and the exercise or pursuit of any of
the rights or causes of action that a party hereto might otherwise
have; and the defaulting party shall pay all attorney's fees and
expenses occasioned by the default or failure to perform any of
the obligations, covenants or provisions hereof, incurred in enforcing
any of the provisions hereof or any of the rights hereunder.
Notwithstanding any other provision of this Lease to the contrary,
Lessor and Lessee agree that neither the Lessor nor the Lessee
shall be liable or responsible for consequential damages.
20. WAIVER.
The failure of Lessor or Lessee to insist in any one or more instances
upon a strict performance of any of the covenants of this Lease shall not
be construed as a waiver or relinquishment for the future of such covenant
with respect to any subsequent breach.
21. RIGHT TO CURE DEFAULT
Either party shall have the right to cure default of any of the terms,
provisions and conditions of this Lease to be performed by the other party
after notice thereof has been given as hereinabove provided, or reasonable
notice thereof has been given if no specific provision therefor has been
made, and default has not been cured within such period of
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notice or such longer period as is reasonably necessary to remedy such
failure to cure, and to charge the defaulting party with the full cost
and expense thereof; which amount the defaulting party agrees to pay
promptly upon demand.
22. NOTICES.
All notices required under this Lease shall be deemed to be properly
served if delivered in writing personally or sent by certified mail to
Lessor at: 000 XXXXXXXX XXXX, XXXXXXXXX XX 00000 ATTENTION: XXXX XXXXXXX
and to Lessee at 0000 Xxxx Xxxx Xxxx, Xxx Xxxxxxx, XX 00000, Attn:
President, or to any other address which either party may designate for
such purpose. The date of service of notice served by mail shall be
three (3) business days after the date on which said notice is deposited
in a post office of the United States Postal Service, properly addressed
with sufficient first-class postage pre-paid thereon to carry same to
the destination in the foregoing address.
23. QUIET ENJOYMENT/NON-DISTURBANCE.
Lessor covenants and agrees with Lessee that upon Lessee's paying said
rent and performing all the covenants and conditions aforesaid on Lessee's
part to be observed and performed, Lessee shall and may peaceably and
quietly have, hold and enjoy the Premises hereby demised for the term
aforesaid. Lessor warrants that it is the holder of the fee title to the
Premises and Lessee acknowledges that the Premises are currently subject to
a mortgage. Lessor agrees to make commercially reasonable efforts to obtain
from Lessor's mortgagee a non-disturbance agreement for Lessee's protection
on such terms and conditions as the parties hereto mutually consent, which
consent shall not be unreasonably withheld.
In the event that Lessee is prevented from using, and does not use, the
Premises or any portion thereof, for five (5) consecutive business days
or fifteen (15) days in any twelve (12) month period (the "Eligibility
Period") as a result of any damage or destruction to the Premises or any
repair, maintenance or alteration performed by Lessor after the
Commencement Date and required or permitted by the Lease, (unless caused
by Lessee) which interferes with Lessee's use of the Premises, or any
failure to provide utilities, services or access to the Premises or
because of an eminent domain proceeding or because of the presence of
hazardous substances in, on or around the building, the Premises or the
Project which could, in Lessee's business judgment and, taking into
account the standards, guidances and recommendations with respect to
Hazardous Substances, pose a health risk to occupants of the Premises,
then Lessee's rent shall be abated or reduced, as the case may be, after
expiration of the Eligibility Period for such time that Lessee continues
to be so prevented from using, and does not use, the Premises or a
portion thereof, in the proportion that the rentable area of the portion
of the Premises that Lessee is prevented from using, and does not use,
bears to the total rentable area of the Premises. However, in the event
that Lessee is prevented from so conducting, and does not conduct, its
business in any portion of the Premises for a period of time in excess
of the Eligibility Period, and the remaining portion of the Premises is
not sufficient to allow Lessee to effectively conduct its business
therein, and if Lessee does not conduct its business from such remaining
portion, then for such time after expiration of the Eligibility Period
during which Lessee is so prevented from effectively conducting
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its business therein, the rent for the entire Premises shall be abated;
provided, however, if Lessee reoccupies and conducts its business from
any portion of the Premises during such period, the rent allocable to
such reoccupied portion, based on the proportion that the rentable area
of such portion of the Premises which was not damaged or destroyed
bears to the total rentable area of the Premises, shall be payable by
Lessee from the date such business operations commence. If Lessee's
right to abatement occurs because of an eminent domain taking and/or
because of damage or destruction to the Premises or Lessee's property,
Lessee's abatement period shall continue until Lessee has been given
sufficient time, and sufficient access to the Premises, to rebuild the
portion of the Premises it is required to rebuild, to install its
property, furniture, fixtures, and equipment and to move in. To the
extent Lessee is entitled to abatement because of an event covered by
paragraph 15 [Fire and Other Casualty] or 16 [Eminent Domain], then the
Eligibility Period shall not be applicable.
24. REAL ESTATE TAXES.
(a) Lessee shall pay to Lessor Lessee's Percentage (Lessee's Percentage
shall be that fraction (expressed as a percentage), the numerator
of which is the space in the Premises occupied by the Lessee and
the denominator of which is the space in the building (562,500
square feet)) of all real property taxes on the Property (including
any fee, taxes or assessments against, or as a result of; any
tenant improvements installed on the Premises by or for the benefit
of the Lessee during the Lease Term, and excluding any fees, taxes
or assessments against, or as a result of, any tenant improvements
installed on the Property for the benefit of any other tenant..
Lessee shall make payment to Lessor within 15 days after Lessee
receives a written statement from Lessor for such real property tax.
(b) DEFINITION OF "REAL PROPERTY TAXES", "Real Property Tax" means:
(i) any fee, license fee, license tax, business license fee,
commercial rental tax, levy, charge, assessment, penalty or
tax imposed by any taxing authority against the Premises;
(ii) any tax on the Lessor's right to receive, or the receipt of,
rent from the Premises;
(iii) any tax or charge for fire protection, streets, sidewalks,
road maintenance, refuse or other services provided to the
Premises by any governmental agency;
(iv) any charge or fee replacing any tax previously included
within the definition of real property tax. "Real Property
Tax: does not, however, include Lessor's federal or state
income, franchise, payroll, inheritance or estate taxes.
(c) All assessments which are not specifically charged to Lessee
because of Lessee's acts, which can be paid by Lessor in
installments, shall be paid by Lessor in the maximum number of
installments permitted by law (prior to the time that further
deferral would result in the imposition of interest or other
carrying charge) and charged as Taxes only in the year in which the
assessment installment is actually paid;
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(d) JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessor shall reasonably determine Lessee's share of the real
property tax payable by Lessee from the assessor's worksheets or
other reasonably available information. Lessee shall pay such share
to Lessor within fifteen (15) days after receipt of Lessor's
written statement.
(e) PERSONAL PROPERTY TAX.
(i) Lessee shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property
belonging to Lessee. Lessee shall try to have personal
property taxed separately from the Premises;
(ii) If any of the Lessee's personal property is taxed with the
Premises, Lessee shall pay Lessor the taxes for the personal
property taxes.
25. COMMON AREA MAINTENANCE.
Lessee shall pay Lessor, as additional rental, Lessee's Percentage (as
defined below) of all costs of operating and maintaining the common areas
applicable to the term of this Lease, including, but not limited to,
parking lot and street lighting; repairs and maintenance to the parking
lot, including cleaning and striping, snow and ice removal; the costs and
expenses of maintaining the landscaped areas (including grass cutting,
planting, fertilizer, replacing flowers and shrubbery, and repairs and
maintenance to the lawn sprinklers, if any); and electricity, water, and
sewer charges for the common areas. Such payment shall be made by Lessee
within ten (10) days after receipt of a statement showing the amount
due. "Lessee's Percentage" shall be that fraction (expressed as a
percentage), the numerator of which is the space in the Premises and the
denominator of which is all of Lessor's space in the Project.
Notwithstanding anything to the contrary in the description of common
area maintenance expenses described above, such expenses shall not
include:
(a) all costs and expenditures for which Lessor has a right to be
reimbursed, whether by insurance proceeds or otherwise, except
through Additional Rent payments by tenants:
(b) costs for repairs or other work occasioned by fire, windstorm or
other casualty for which insurance would at the time of such
casualty customarily be carried by a prudent Lessor in the
metropolitan area of Nashville;
(c) costs of improvements to leasable space in the Project;
(d) costs of relocating any tenant;
(e) costs of capital improvements or capital expenditures (except any
capital expenditures made or installed for the purpose of reducing
common area
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maintenance expenses - only to the lesser of (x) the extent of such
reductions actually achieved (without regard to the "useful life"
of such capital expenditure), or (y) the amortization of the
capital expenditure over its useful life;
(f) depreciation and amortization;
(g) interest, points and fees, on debt or amortization on or for any
mortgages encumbering the property, or any part thereof, and all
principal, escrow deposits and other sums paid on or in respect to
any indebtedness (whether or not secured by a mortgage lien) and on
any equity participations of any lender, lessor or tenant, and all
costs incurred in connection with any financing, refinancing or
syndication of the Project or building, or any part thereof;
(h) all costs relating to activities for the solicitation and execution
of leases of space in the Project, including but not limited to
tenant allowances, space planning fees, legal fees for preparing
leases and amendments to leases, rent payable with respect to any
leasing office, advertising costs and real estate brokerage and
leasing commissions;
(i) expenses incurred in enforcing obligations of other tenants of the
Project;
(j) costs of decorating, redecorating, or special cleaning of tenant
spaces not provided on a regular basis to all tenants of the
Project;
(k) wages, salaries, fees and fringe benefits paid to executive
personnel, officers or partners of Lessor;
(l) The cost of abatement of pollutants and/or hazardous substances or
materials;
(m) Fines and/or penalties incurred due to non-compliance by Lessor or
the building or any other tenant in the Project, with any law,
governmental rule or regulation or directive of any governmental
authority;
(n) The costs and expenses to Lessor in curing its defaults or
performing work expressly provided in the Lease to be borne at
Lessor's expense;
(o) the cost and expenses of correcting defects in equipment in for or
of the Premises, building or Project, or in the construction of the
building or defects in any other improvements on the Project (as
distinguished from repairs thereof in the ordinary course of
business due to normal aging of the equipment, building or the
other improvement);
(p) the cost of any work or service performed for any facility other
than the Project and the Project systems;
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(q) Any costs representing an amount paid to a person, firm,
corporation or other entity related to Lessor, or Lessor's
management company, which is in excess of the amount which would
have been paid in the absence of such relationship;
(r) any and all costs related to Hazardous Substances except to the
extent caused by Lessee.
In no event shall the Lessee's portion of common area maintenance during
the first year of the Lease Term exceed $0.10 per square foot, and in no
event shall Lessee's portion of common area maintenance expenses for any
subsequent year increase by more than 5% over Lessee's share of the
common area maintenance expenses for the preceding year.
26. ENTIRE AGREEMENT AND ENFORCEABILITY.
This Lease contains the entire agreement between Lessor and Lessee. No
representations, inducements, promises or agreement between Lessor and
Lessee as to the subject matter hereof; and not embodied herein, shall
be of any force or effect. If any provision of this Lease shall be
unenforceable, the remaining terms and provisions hereof shall not be
affected, and shall remain enforceable. If the application of any term
or provision of this Lease to any person or circumstances shall to any
extent be invalid, unenforceable, or inappropriate, such term or
provision shall remain applicable as to those persons, entities or
circumstances to which it shall be valid, enforceable and appropriate.
Each provisions of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
27. COUNTERPARTS.
This Lease may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which together shall
compromise but a single instrument.
28. RECORDATION.
A Memorandum of lease describing the Premises, the term of this Lease,
and referring to this Lease, may be recorded by any party, and the other
parties to execute such memorandum of Lease.
29. AMENDMENT.
This Lease may not be altered, changed or amended, except by instrument
in writing and signed by the parties to this Lease. No conduct or
statement by Lessor shall constitute a cancellation, termination or
modification of this Lease, or a waiver of any provisions hereof, unless
evidenced by written instrument duly executed by Lessor.
30. HOLDING OVER.
Holding over by Lessee after the term of this Lease shall not be
construed to extend the term of the Lease or create any periodic
tenancy. in the event of any unauthorized holdingover, Lessee shall
indemnify Lessor against all claims for damages by any part to whom
Lessor shall have leased all or any portion of the Premises. The rental
for any such hold over shall be equal to the then fair market rental for
comparable property in Davidson County and Xxxxxxxxxx County, Tennessee.
15
31. PAYMENT OF EXPENSES.
Except as otherwise expressly provided in this Lease, the parties hereto
shall bear their own expenses in connection with the execution and
performance of this Lease, including legal fees.
32. BINDING EFFECT: PRONOUNS.
This Lease shall be binding upon and inure to the benefit of Lessor, its
successors and assigns, and shall be binding upon and inure to the
benefit of Lessee, its successors and assigns and, to the extent
assignments or subletting may be permitted hereby or approved by Lessor
hereunder, such assigns or sublessees, as the case may be. The pronouns
of any gender shall include the other genders, and either the singular
or the plural shall include the other, wherever appropriate.
33. TENNESSEE CONTRACT.
The Lease is declared to be a Tennessee contract, and all of the terms
hereof shall be construed according to the laws of the State of
Tennessee. Time is of the essence of this lease.
34. PARAGRAPH HEADINGS.
The paragraph heading throughout the Lease are for convenience and
reference only, and the words contained therein shall in no way be held
to explain, modify, amplify or aid in the interpretation, construction
or meaning of the provisions of the Lease.
35. TENANT'S CERTIFICATE.
Upon the request of Lessor or any lender who holds or will be conveyed a
lien against the Premises demised herein, Lessee agrees to furnish
"estoppel certifications," (Exhibit "D") regarding the status of the
Lease, rent payments, defaults by either party, deposits or rental
payments made in advance, any claims for reimbursement by Lessee or
Lessee's rights of set-off against accruing rentals and whether Lessee
is in occupancy of the Premises and actively conducting its business
therein.
36. SECURITY DEPOSIT. Intentionally omitted.
37. BROKER'S FEE.
When this Lease is signed by and delivered to both Lessor and Lessee,
Lessor shall pay a real estate commission to Industrial Real Estate
Services LLC (Broker) as provided in the written agreement between
Lessor and Industrial Real Estate Services LLC, to be shared with
Commercial Property Services, Inc./Xxxxx & Xxxxx Company. Lessor shall
pay broker a commission if Lessee exercises any option to extend the
Lease Term or expand the Premises. Such commission shall be the amount
set forth in Lessor's and Broker's commission schedule in effect as of
the execution of this Lease. Nothing contained in this lease shall
impose any obligation on Lessor or Lessee to pay a commission or fee to
any party other than Broker and Commercial Property Services, Inc./Xxxxx
& Xxxxx Company.
16
38. AGENCY DISCLOSURE; NO OTHER BROKERS.
Lessor and Lessee each warrant that they have dealt with no other real
estate brokers (s) in connection with this transaction except:
Industrial Real Estate Services LLC, who represents Lessor and Xxxxx &
Xxxxx Company/Commercial Property Services, Inc., who represent Lessee.
39. OPTION TO RENEW.
Provided that no Default by Lessee shall be continuing under this Lease,
Lessee is hereby granted two options to renew this Lease on the same
terms and conditions (except as hereinafter provided) as contained in
this Lease, such options each being for a term of five (5) years
("Option Period") commencing immediately after the expiration date of
this Lease. Lessee may exercise the option to renew by written notice
("Option Notice") to Lessor no later than 12 months prior to expiration
of the Lease Term. The annual rental for each Option Period shall be the
Prevailing Rent for industrial/distribution buildings of similar quality
and construction in Nashville's Southeast corridor at the time of the
Option Notice.
Lessor shall determine the Prevailing Rent by using its good faith
judgment. Lessor shall provide written notice of such amount within 15
days after Lessee sends the Option Notice to Lessor exercising an
extension option. Lessee shall have 30 days (the "Lessee's Review
Period") after receipt of Lessor's notice of the new rental within which
to accept such rental or to reasonably object thereto in writing. If
Lessee objects, Lessor and Lessee shall attempt to agree upon such
Prevailing Rent, using their best good faith efforts. If Lessor and
Lessee fail to reach agreement within 15 days following Lessee's Review
Period (the "Outside Agreement Date"), then each party's determination
shall be submitted to arbitration in accordance with Subsections (a)
through (e) below. Failure of Lessee to so elect in writing within the
Lessee's Review Period shall conclusively be deemed its disapproval of
the Prevailing Rent determined by Lessor. In the event that Lessor
fails to timely generate the initial written notice of Lessor's
determination of the Prevailing Rent which triggers the negotiation
period of this paragraph 39, then Lessee may commence such negotiations
by providing the initial notice, in which event Lessor shall have 15
days ("Lessor's Review Period") after receipt of Lessee's notice of the
new rental within which to accept such rental. In the event Lessor does
not affirmatively in writing consent to Lessee's proposed rental, such
proposed rental shall be deemed rejected and Lessor and Lessee shall
attempt in good faith to agree upon such Prevailing Rent, using their
best good faith efforts. If Lessor and Lessee fail to reach agreement
within 15 days following Lessor's Review Period (which shall be, in such
event, the "Outside Agreement Date" in lieu of the above definition of
such date), then each party shall place in a separate sealed envelope
their final proposal as to Prevailing Rent and such determination shall
be submitted to arbitration in accordance with subsections (a) through
(d) below.
(a) Lessor and Lessee shall meet with each other within 10 business
days of the Outside Agreement Date and exchange the sealed
envelopes and then open such envelopes in each other's presence.
If Lessor and Lessee do not mutually agree
17
upon the Prevailing Rent within 5 business days of the exchange and
opening of envelopes, then, within 10 business days of the exchange
and opening of envelopes Lessor and Lessee shall agree upon and
jointly appoint a single arbitrator who shall by profession be a
real estate broker who shall have been active over the 5-year
period ending on the date of such appointment in the leasing of
industrial/distribution properties in the Nashville metropolitan
area. Neither Lessor nor Lessee shall consult with such broker as
to his or her opinion as to Prevailing Rent prior to the
appointment. The determination of the arbitrator shall be limited
solely to the issue of whether Lessor's or Lessee's submitted
Prevailing Rent for the Premises is the closest to the actual
Prevailing Rent for the Premises as determined by the arbitrator,
taking into account the requirements of this provision regarding
same. Such arbitrator may hold such hearings and require such
briefs as the arbitrator, in his or her sole discretion, determines
is necessary.
(b) The arbitrator shall, within 30 days of his or her appointment,
reach a decision as to whether the parties shall use Lessor's or
Lessee's submitted Prevailing Rent, and shall notify Lessor and
Lessee of such determination.
(c) The decision of the arbitrator shall be binding upon Lessor and
Lessee, except as provided below.
(d) The cost of arbitration shall be paid by Lessor and Lessee equally.
40. RIGHT OF FIRST REFUSAL.
If at any time during the first five years of the term of this Lease,
Lessor shall receive a BONA FIDE offer from any third party to lease any
available space adjacent to the Premises which Lessor is willing to
accept, Lessor shall notify Lessee and Lessee shall have the right,
within ten (10) days of receipt of the notice to accept the terms of the
offer in writing and within sixty (60) days thereafter to lease the
available premises under the rent terms specified in Lessor's offer and
otherwise under all of the terms, including but not limited to the Term
of this Lease, specified in this Lease. This Right of First Refusal is
continuing so long as Lessee is not in default under this Lease and is
in addition to Lessee's option to acquire additional space under
Paragraph 41.
41. EXPANSION OPTION.
Lessor hereby grants to Lessee the option to expand the Premises and
lease up to an additional 56,250 square feet of space to be constructed
by Lessor contiguous to the Premises ("Expansion Option"). Lessee may
exercise the Expansion Option only by 6 months' written notice thereof,
that Lessee desires to occupy the Expansion Option space commencing May
1, 2003. The rate of annual rent payable for the Expansion Option space
shall be the same rate per square foot as then in effect for the
initially leased portion of the Premises. Lessor shall construct and
improve the Expansion Option space to at least the building standard
level for the building and tenant improvement work, as it applies to
warehouse space.
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42. CANCELLATION OPTION.
Lessee shall have the sole option to terminate the Lease at the end of
the fifth year of the lease term (i.e., as of April 30, 2003) upon one
year's prior written notice to Lessor. If Lessee elects to exercise
this option it shall pay to Lessor with its final rental payment an
amount of $390,682 which represents all unamortized costs including
tenant improvement construction costs, fees, commissions, etc.
IN WITNESS WHEREOF, the respective parties hereto have entered into this
Lease as of the Effective Date.
LESSOR: Xxxxxx-Xxxxxx Storage Co. LESSEE: United Stationers Supply Co.
By: By:
Its: Its:
Date: Date:
00
XXXXX XX XXXXXXXXX )
)
COUNTY OF DAVIDSON )
Before me, the undersigned, a Notary Public in and for the State and County
aforesaid, personally appeared ________________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence)
and who, upon oath, acknowledged herself to be the __________________________
the within named bargainor, a corporation, and that she, as such officer, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained by signing the name of the corporation by herself as such officer.
Witness my hand and official seal at Nashville, Tennessee, this ______ day
of , 1997.
Notary Public
My Commission expires:
STATE OF ILLINOIS )
)
COUNTY OF XXXX. )
Before me, the undersigned, a Notary Public in and for the State and
County aforesaid, personally appeared XXXXXX X. XXXXXXX, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence)
and who, upon oath, acknowledged himself to be the EXECUTIVE VICE PRESIDENT
AND CFO of United Stationers Supply Co., the within named bargainor, a
corporation, and that he, as such officer, being authorized so to do,
executed the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself as such officer.
Witness my hand and official seal at Des Plaines, Illinois this _____
day of , 1997.
Notary Public
My Commission expires:
___________
