Exhibit 10.12
SECOND AMENDMENT TO INDUSTRIAL LEASE
THIS SECOND AMENDMENT TO INDUSTRIAL LEASE (this "AMENDMENT") is made and
entered into as of this 15th day of November, 2001 by and between XXXXX POINT,
LLC, a New Hampshire limited liability company ("LANDLORD") and UNITED
STATIONERS SUPPLY CO., an Illinois corporation ("TENANT").
WITNESSETH:
WHEREAS, Landlord's predecessor-in-interest, Xxxxx Point Builders I General
Partnership ("XXXXX POINT"), and Tenant entered into that certain Standard Form
Industrial Lease (Net) undated (the "ORIGINAL LEASE"), pursuant to which Xxxxx
Point leased to Tenant 139,444 square feet of space at 000 Xxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxxxx (the "DEMISED PREMISES"), as more particularly set forth in the
Original Lease;
WHEREAS, ERI-CP, Inc., predecessor-in-interest to Xxxxx Point ("ERI"), and
Tenant entered into a certain First Amendment to Industrial Lease dated as of
January 23, 1997 (the "FIRST AMENDMENT");
WHEREAS, Landlord and Tenant desire to amend the Original Lease according
to the terms hereof to extend the Term, among other things (as amended by this
Amendment, the Original Lease [as amended by the First Amendment] is hereinafter
referred to as the "LEASE");
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. CONTROLLING LANGUAGE. Insofar as the specific terms and provisions of
this Amendment purport to amend or modify or are in conflict with the specific
terms, provisions and exhibits of the Original Lease, First Amendment or Second
Amendment the terms and provisions of this Amendment shall govern and control;
in all other respects, the Original Lease, First Amendment and Second Amendment
shall remain unmodified and in full force and effect.
2. TERM OF THE LEASE. The Term of the Lease is hereby extended for sixty
(60) months beginning on June 1, 2002 and ending on May 31, 2007, inclusive (the
"SECOND EXTENSION PERIOD"), on all the terms, covenants and conditions of the
Lease, except as hereinafter set forth, and any reference in the Lease to the
Term of the Lease shall be deemed to include the Second Extension Period and
apply thereto unless it is expressly provided otherwise. Likewise, any reference
in the Lease to the expiration date of the Lease shall be deemed to mean May 31,
2007.
3. RENT. Tenant shall pay to Landlord Fixed Rent with respect to the
Demised Premises for the Second Extension Term at the following rates:
TIME PERIOD MONTHLY RENT PER SQUARE FOOT PER YEAR
----------- ------------ ------------------------
June 1, 2002 - May 31, 2003 $48,805.40 $4.20
June 1, 2003 - May 31, 2004 $49,735.03 $4.28
June 1, 2004 - May 31, 2005 $50,780.86 $4.37
June 1, 2005 - May 31, 2006 $51,826.69 $4.46
June 1, 2006 - May 31, 2007 $52,872.52 $4.55
During the Second Extension Period, Tenant shall continue to pay all other
forms of Rent required under the Lease.
4. CONDITION OF DEMISED PREMISES. Except as provided below in this
Paragraph 4, throughout the Second Extension Period, Landlord is leasing the
Demised Premises to Tenant "as is", without any representations or warranties of
any kind (including, without limitation, any express or implied warranties of
merchantability, fitness or habitability) and without any obligation on the part
of Landlord to alter, remodel, improve, repair, or decorate the Demised Premises
or any part thereof. Landlord shall, however, install all of the improvements
described on EXHIBIT A attached hereto and made a part hereof. Landlord also
agrees to use its best efforts to cause the adjacent space now occupied by Party
Lite to have its sprinkler system updated as soon as is reasonably convenient
but in no event later than December 31, 2003 so that it complies with the
Current E.S.F.R. Standard (as defined in EXHIBIT A attached hereto).
5. RENEWAL OPTIONS. Landlord and Tenant acknowledge and agree that
Paragraph 4 of Rider Number One to the Original Lease is hereby deleted and
replaced with the following:
A. OPTIONS TO EXTEND. Provided that Tenant is not in default hereunder
on the date of the Notice to Extend (as hereinafter defined) or on the
Expiration Date and on each such date shall be in occupancy of the entire
Demised Premises, Tenant shall have the right to extend the Term for two (2)
three (3) year renewal terms (the "EXTENSION TERMS"), upon the same terms and
conditions as are herein provided, except that (a) Fixed Rent during the
Extension Term(s) shall be at the annual Fair Market Rent (as hereinafter
defined) for the Demised Premises for such Extension Term, (b) Tenant shall have
no option to extend the Lease beyond the expiration of the final Extension Term,
and (c) the Demised Premises shall be delivered in their existing condition (on
an "as is" basis") at the time such Extension Term commences. Such right shall
be exercised by Tenant by giving written notice (the "NOTICE TO EXTEND") to
Landlord at least nine (9) months prior to the Expiration Date of the Term or
Extended Term(s). Time shall be of the essence for the exercise of such option.
Tenant shall
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have no further right to extend or renew the Lease. The extension options set
forth in this Section 5 are personal to United Stationers Supply Co., and shall
not inure to the benefit of any third party.
B. FAIR MARKET RENT. For the purposes of this Section, "FAIR MARKET
RENT" shall mean the Fixed Rent, on a so-called "net" basis, that would be paid
by a willing tenant, not compelled to lease, and accepted by a willing landlord,
not compelled to lease, for the Demised Premises as of the pertinent date taking
into account all terms and conditions for an extension, including, INTER ALIA,
tenant improvements and other concessions then being offered in the market. Fair
Market Rent shall be determined by Landlord in a notice ("FAIR MARKET RENT
NOTICE") delivered to Tenant no later than six (6) months prior to the
commencement of each Extension Term.
C. DISPUTE OF FAIR MARKET RENT. In the event Tenant shall elect to
dispute Landlord's determination of the Fair Market Rent, Tenant shall be
required to notify Landlord of such dispute in writing (the "DISPUTE NOTICE")
within twenty (20) days after delivery to Tenant of the Fair Market Rent Notice
and provide Landlord its determination of Fair Market Rent. Failure by Tenant to
so notify Landlord of Tenant's dispute of the amount thereof shall be deemed to
constitute Tenant's acceptance thereof. If Tenant shall timely notify Landlord
of Tenant's dispute, and if Landlord and Tenant are not able, within thirty (30)
days after such notice, to agree upon the Fair Market Rent, then the
determination of Fair Market Rent shall be determined by arbitration as
hereinafter set forth. If such arbitration concerning Fair Market Rent shall not
be concluded prior to the commencement of the applicable Extended Term, Tenant
shall nevertheless pay all Fixed Rent and Additional Rent to Landlord with
respect thereto from and after the commencement of the applicable Extension
Term, which shall include Fixed Rent at the rate payable for the period
immediately prior to such Extension Term. If the applicable Fair Market Rent as
determined by arbitration is greater than or less than that specified in the
Fair Market Rent Notice, then such adjustment as shall be needed to correct the
amount previously paid by Tenant on such overpaid or underpaid amount, as the
case may be, computed from the date of such overpayment or underpayment, as the
case may be, to the date of refund or payment, as appropriate shall be made in a
payment by the appropriate party within thirty (30) days after the arbitration
determination.
D. ARBITRATION OF FAIR MARKET RENT. In the event that arbitration of
the Fair Market Rent shall be required pursuant to this Section, then the
following procedures shall apply:
1. If Landlord or Tenant desires to invoke the arbitration procedure set
forth in this Section, the party invoking the arbitration procedure
shall give a notice to the other party and shall in such notice
appoint a person as arbitrator on its behalf. Within twenty (20) days
after such notice, the other party by notice to the original party
shall appoint a second person as arbitrator on its behalf. The
arbitrators thus appointed shall appoint a third person, and such
three arbitrators shall as promptly as possible determine such matter,
provided, however, that:
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(a) If the second arbitrator shall not have been appointed within the
twenty (20) day period as aforesaid, the first arbitrator shall
proceed to determine such matter and shall render his decision
and award in writing within thirty (30) days after the expiration
of said twenty (20) day period; and
(b) If the two arbitrators are appointed by the parties and shall be
unable to agree, within ten (10) days after the appointment of
the second arbitrator, upon the appointment of a third
arbitrator, they shall give written notice to the parties of such
failure to agree, and if the parties fail to agree upon the
selection of such third arbitrator within ten (10) days after the
arbitrators appointed by the parties give notice as aforesaid,
then within five (5) days thereafter either of the parties upon
notice to the other party may request such appointment by the
nearest office of the American Arbitration Association or any
organization which is the successor thereof (the "AAA"), or in
its absence, refusal, failure or inability to act, may apply to a
trial court of the state in which the Demised Premises is located
having jurisdiction over the Demised Premises (the "COURT"), for
the appointment of such appointment of such arbitrator and the
other party shall not raise any question as to the Court's full
power and jurisdiction to entertain the application and make the
appointment.
All such arbitrators shall be competent real estate professionals
experienced in and knowledgeable of the North DuPage County,
Illinois,
industrial real estate market.
2. The arbitration shall be conducted in accordance with the then
prevailing rules of the AAA, modified as follows:
(a) To the extent that any statute of the state in which the Demised
Premises is located imposes requirements different than those of
the AAA in order for the decision of the arbitrator or
arbitrators to be enforceable in the courts of such state, such
requirements shall be complied with in the arbitration;
(b) Each arbitrator shall be disinterested and shall not be
affiliated with Landlord or Tenant; and
(c) The arbitrators, if more than one, shall render their decision
and award in writing, upon the concurrence of at least two of
their number, within thirty (30) days after the appointment of
the third arbitrator.
3. Such decision and award or the decision and award of the single
arbitrator as provided in this Section, shall be binding and
conclusive on the parties, shall
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constitute an "award" by the arbitrator within the meaning of the AAA
rules and applicable law, and counterpart copies thereof shall be.
delivered to each of the parties. In rendering such decision and
award, the arbitrators shall not add to, subtract from or otherwise
modify the provisions of the Lease. The arbitrators may only elect
Landlord's or Tenant's determination of Fair Market Rent and will not
elect any number in between. Judgment may be had on the decision and
award of the arbitrators so rendered in any court of competent
jurisdiction.
4. Each party shall pay the fees and expenses of one of the two original
arbitrators appointed by or for such party and the fees and expenses
of the third arbitrator and all other expenses of the arbitration
(other than the fees and disbursements of attorneys or witnesses for
each party) shall be borne by the parties equally.
6. RIGHT OF FIRST OFFER. Tenant shall continue to have the Right of First
Offer described in Section 6(d) of the First Amendment during the Second
Extension Period.
7. LANDLORD'S ADDRESS. Article A-l(n) of the Lease and Section 6(a) of the
First Amendment are hereby deleted in their entirety and replaced with the
following:
Xxxxx X. Xxxxxx
UBS Realty Advisors
00000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxx 000
Xxxxxx, XX 00000-0000
Xxxxxxx Xxxxx
XXX Xxxxxxx
One Oakbrook Terrace
Oakbrook Terrace, IL 60181
8. REAL ESTATE BROKER. Both parties represent to each other that they have
not dealt with any real estate broker with respect to this Amendment except for
XXX Xxxxxxx and Xxxxx & Xxxxx Company and to their knowledge, no other broker
initiated or participated in the negotiations of this Amendment or is entitled
to any commission in connection with the Amendment. Both parties agree to
indemnify and hold the other harmless from all claims from any other real estate
broker claiming through the indemnifying party for commission or fees in
connection with this Amendment.
9. MISCELLANEOUS.
A. Landlord and Tenant hereby agree that (i) this Amendment is
incorporated into and made a part of the Lease, (ii) any and all references to
the Lease hereinafter shall include this Amendment, (iii) the Lease and all
terms, conditions and provisions of the Lease are in full force and effect as of
the date hereof, except as expressly
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modified and amended hereinabove, and (iv) neither Landlord nor Tenant is in
default under the terms of the Lease.
B. All terms capitalized but not defined herein shall have the same
meaning ascribed to such terms in the Lease.
C. This Amendment shall be governed by and construed under the laws of
the State of
Illinois.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
LANDLORD:
XXXXX POINT, LLC,
a New Hampshire limited liability company
By: UBS REALTY INVESTORS, LLC,
a Delaware limited liability company, its
Manager
By: /s/ Xxxxxx X. Gankler
-----------------------------------------
Name: Xxxxxx X. Gankler
---------------------------------------
Title: Director
--------------------------------------
Date: November 14, 2001
TENANT:
UNITED STATIONERS SUPPLY CO., an
Illinois corporation
By: /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
---------------------------------------
Title: VP, Engineering
--------------------------------------
Date: November 9, 2001
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