1
Exhibit 10.5
THE MERCHANDISE MART
This Lease made on _________________ between LASALLE NATIONAL TRUST
N.A., not individually but as Trustee under a Trust Agreement dated May 27,
1981, and known as Trust No. 104000 ("Landlord") and WINSTON FURNITURE COMPANY
OF ALABAMA, INC., a corporation organized and existing under the laws of the
State of Alabama ("Tenant").
WITNESSETH
1. DEMISED PREMISES; TERM. Landlord does hereby demise and lease to
Tenant, and Tenant accepts that certain space shown hatched on Exhibit "A" which
is attached hereto and made a part hereof, commonly described as Room(s) 1747,
1748, 1749, 1750, and 1751 ("Premises") on the seventeenth floor(s) of The
Merchandise Mart, a building located at Merchandise Mart Plaza ("Building")
constructed on property bounded by West Kinzie Street, North Orleans Street, the
Chicago River, and North Xxxxx Street in Chicago, Illinois (such land and
Building hereinafter referred to, together with all present and future
easements, additions, improvements and other rights appurtenant thereto, as the
"Property"), for a term beginning September 1, 1996 and ending August 31, 2002
("Term"), unless sooner terminated as provided herein, subject to the terms,
covenants and agreements herein contained.
2. USE. Tenant will use and occupy the Premises for the sale and
display of summer and casual furniture at wholesale only and for no other use or
purpose. Tenant will not use or permit upon the Premises anything that will
invalidate any policies of insurance now or hereafter carried on the Building
which may be caused by the use which Tenant shall make of the Premises (other
than a use stated in the first sentence hereof). Tenant will not (a) use or
permit upon the Premises anything that may be dangerous to life or limb; (b) in
any manner deface or injure the Building or any part thereof or overload the
floors of the Premises; or (c) do anything or permit anything to be done upon
the Premises in any way tending to create a nuisance or tending to disturb any
other tenant in the Building or the occupants of neighboring property, or
tending to injure the reputation of the Building. Tenant shall further not
carry-on or permit any activities which might: (1) involve the storage, use or
disposal of medical or hazardous waste substances or the creation of an
environmental hazard; or (2) impair or interfere with (i) the structure of the
Building or the operation of Building systems, (ii) the character, reputation or
appearance of the Building as a first-class building, (iii) the furnishing of
services (including utilities, telephone and communications) to any portion of
the Building, or (iv) the enjoyment by any other occupants of the Building or
the benefits of such occupancy (for example, free of noise, odors or vibration
emanating from the Premises). The Premises shall not be used for the purposes of
any so called "office suites", schools, employment agencies or medical treatment
facilities. Unless the Premises shall be closed because of needed repairs,
revisions or decorating, Tenant shall otherwise keep the same open, fully
lighted and available for business activity during each and every day of the
Term hereby demised, Saturdays, Sundays and holidays as established by Landlord
from time to time only excepted, and the same shall be kept open by Tenant each
day for business during the customary business hours established in the Building
which are currently from 9:00 A.M. to 5:00 P.M. and during such additional hours
(including Saturdays, Sundays and holidays established by Landlord from time to
time) during market
2
exhibitions in the Building when such exhibitions include a type of merchandise
sold by Tenant in the Premises. Tenant will fully and promptly comply, and
operate the Premises in conformity, with all applicable federal, state and
municipal laws, ordinances, codes, regulations and requirements respecting the
Premises or Tenant's use or occupancy thereof, and activities therein, and
Tenant will not use the Premises for lodging or sleeping purposes, nor conduct
or permit to be conducted on the Premises any business or activity which is
contrary to the provisions of this Lease or to any applicable governmental laws,
ordinances, codes, regulations and requirements. Tenant shall promptly pay all
taxes of whatever kind which are imposed upon Tenant but which are to be
collected by Landlord. Tenant shall at no time sell food on or from the
Premises. Tenant shall at no time sell (within the meaning of the Illinois
Liquor Control Act, as now or hereafter amended) alcoholic liquor on or from the
Premises, provided, however, that Tenant may occasionally give complimentary
food and alcoholic liquor to its guests on the Premises, on condition that
Tenant shall comply with all applicable governmental requirements, and on
further condition that, prior to the giving of such alcoholic liquor, Tenant
shall procure and maintain continuously thereafter (or cause to be procured and
maintained continuously thereafter) in force a policy of host liquor liability
insurance or Dram Shop liability insurance, as set forth in Article 25 hereof.
3. BASE RENT. Tenant shall pay to Landlord an annual base rent ("Base
Rent") for the Premises as shown below for each respective period in equal
monthly installments during each respective period as follows:
PERIOD ANNUAL BASE RENT MONTHLY INSTALLMENT
----------------------------------- ------------------------- -----------------------------
9/1/96--8/31/02 $257,763.00 $21,480.25
Tenant shall pay each installment in advance on the first day of every calendar
month of the Term, except for the first month's rent which is due and payable on
execution of this Lease. All such payments shall be made payable to Landlord or
Landlord's agent and shall be made at the office payable without any prior
demand therefor and without any deductions or set-offs whatsoever. If the Term
commences on a day other than the first day of the calendar month, or ends on a
day other than the last day of the calendar month, the Base Rent for such
fractional month shall be prorated on the basis of 1/360th of the annual Base
Rent for each day of such fractional month.
[4. OMITTED]
5. CONDITION OF PREMISES. Tenant's entry into possession of all or any
part of the Premises shall be conclusive evidence as against Tenant that such
part of the Premises was in good order and satisfactory condition when Tenant
took possession. Tenant acknowledges that no promise of Landlord or its agents
to alter, remodel or improve the Premises or the Building and no representation
respecting the condition of the Premises or the Building have been made by
Landlord or its agents to Tenant other than as may be contained herein.
2
3
6. POSSESSION. In the event that possession of the Premises shall not
be delivered to Tenant on the date above fixed for the commencement of the Term,
this Lease shall nevertheless continue in full force and effect, and no
liability shall arise against Landlord out of any such delay beyond the
abatement of rent until possession of the Premises is delivered to Tenant;
provided, however, that there shall be no abatement of rent if the Premises are
not delivered to Tenant due to any delay caused by, or resulting from the fault
of, Tenant. If Tenant, with Landlord's permission, shall enter possession of all
or any part of the Premises prior to the date fixed above for the first day of
the Term, all of the covenants and conditions of this Lease shall be binding
upon the parties hereto in respect of such possession the same as if the first
day of the Term had been fixed as of the date when Tenant entered such
possession and Tenant shall pay to Landlord as rent for the period prior to the
first day of the Term a proportionate amount of the Base Rent as set forth
above. It is expressly understood that Tenant's obligation to pay rent commences
on the date that possession of the Premises is delivered to Tenant and no
liability, by abatement of rent or otherwise, shall arise against Landlord as a
result of delays in occupancy caused by decoration or other work in the
Premises, done by Landlord or Tenant, under the Lease or any other agreement.
7. REPAIRS. Tenant will, at its own expense and subject to the
provisions of Article 8 of this Lease, keep the Premises in good _____ and
tenantable condition at all times during the Term of this Lease, and Tenant
shall promptly and adequately repair all damages to the Premises (except for
reasonable wear and tear and as otherwise provided in Article 25 of this Lease)
and replace or repair all damaged or broken glass (including any glass demising
walls and signs thereon), fixtures and appurtenances, under the direct
supervision and with the approval of Landlord and within any reasonable period
of time specified by Landlord. If Tenant does not do so, or at Landlord's
election, Landlord may, but need not, make such repairs or replacements and the
amount paid by Landlord for such repairs and replacements (including Landlord's
overhead and profit and the cost of general conditions) shall be deemed
additional rent reserved under this Lease due and payable forthwith. Landlord
may, but shall not be required so to do, enter the Premises at all reasonable
times to make such repairs or alterations, improvements and additions, including
but not limited to ducts and all other facilities for air conditioning service,
as Landlord shall desire or deem necessary for the safety, preservation or
improvement of the Premises or the Building or any equipment located in the
Building, or as Landlord may be required to do by the City of Chicago or by the
order or decree of any court or by any other governmental authority.
In the event Landlord or its agents or contractors shall elect or be
required to make repairs, alterations, improvements or additions to the Premises
or the Building or any equipment located in the Building, Landlord shall be
allowed to take into and upon the Premises all material that may be required to
make such repairs, alterations, improvements or additions and, during the
continuance of any of said work, to temporarily close doors, entryways, public
space and corridors in the Building and to interrupt or temporarily suspend
Building services and facilities without being deemed or held guilty of eviction
of Tenant or for damages to Tenant's property, business or person, and the rent
reserved herein shall in no way xxxxx while said repairs, alterations,
improvements or additions are being made, and Tenant shall not be entitled to
maintain any set-off or counterclaim for damages of any kind against Landlord by
reason thereof. Landlord may, at its option, make all repairs, alterations,
improvements and additions in and
3
4
about the Building and the Premises during ordinary business hours, but if
Tenant desires to have the same done during any other hours Tenant shall pay for
all overtime and additional expenses resulting therefrom.
8. ALTERATIONS. Tenant shall not, without the prior written consent of
Landlord in each instance obtained, make any repairs, replacements, alterations,
improvements or additions (collectively "Improvements") to the Premises. In the
event Tenant desires to make any Improvements, Tenant shall first seek
Landlord's consent therefor, and Landlord's consent to any such Improvements
shall be conditioned upon such requirements as Landlord deems appropriate,
including without limitation, the submission of detailed plans and
specifications. All such Improvements shall be done at Tenant's expense by
employees or agents of Landlord or contractors hired by Landlord except to the
extent Landlord gives its prior written consent to Tenant hiring its own
contractors, and, in either event, Tenant shall pay to Landlord or its agent a
charge for supervision, general conditions, overhead, Landlord's profit and
other costs and expenses incurred by Landlord in connection with such work, as
established by Landlord from time to time.
In the event that Tenant uses its own contractors for the Improvements
Landlord may, without limitation, require Tenant to: (a) comply with such
construction standards or procedures as may be applicable from time to time for
construction activities in the Building; (b) demonstrate that the construction
of such Improvements will not jeopardize labor harmony; (c) submit satisfactory
insurance certificates; (d) obtain all necessary permits; (e) furnish
satisfactory security for the payment of all costs to be incurred in connection
with the Improvements; and (f) upon completing any such Improvements, furnish
Landlord with contractors' affidavits and full and final waivers of lien and
receipted bills covering all labor and material expended and used. There are
some asbestos-containing materials ("ACM") in some areas of the Building.
Landlord has adopted and implemented an abatement and operations and maintenance
program ("O & M Program"), a copy of which is available for review by Tenant,
which sets forth certain procedures to be followed in connection with any
Improvements to be made in the Building, in order to prevent disturbance to any
ACM that may be encountered. Tenant acknowledges, and hereby expressly agrees to
cause its agents, employees and contractors to comply at all times with, the O &
M Program (as amended from time to time).
All Improvements shall comply with all insurance requirements and with
all applicable governmental laws, requirements, codes, ordinances and
regulations. All Improvements shall be constructed in a good and workmanlike
manner and only good grades of material shall be used. Except for Landlord's
negligence, Tenant shall protect, defend, indemnify and hold Landlord, the
Building and the Property, Landlord's beneficiaries, and their respective
officers, directors, beneficiaries, partners, agents and employees harmless from
any and all liabilities of every kind and description which may arise out of or
in connection with such Improvements.
All Improvements made by Landlord or Tenant in or upon the Premises
whether temporary or permanent in character, including but not limited to wall
coverings, carpeting and other floor covering, lighting installations, built-in
or attached shelving, cabinetry, and mirrors, shall become Landlord's property
and shall remain upon the Premises at the termination of this
4
5
Lease by lapse of time or otherwise without compensation to Tenant [excepting
only Tenant's movable office furniture, trade fixtures (other than attached or
installed lighting equipment), and office equipment]; provided, however, that
Landlord shall have the right to require Tenant to remove such Improvements at
Tenant's sole cost and expense in accordance with the provisions of Article 16
of this Lease.
9. SERVICES. Landlord shall provide the following services on all days
during the Term of this Lease excepting Sundays and holidays established by
Landlord from time to time, unless otherwise stated:
(A) Heat will be furnished whenever such heat shall, in Landlord's
judgment, be required for the comfortable occupation of the Premises.
(B) Adequate elevator service will be furnished daily as determined by
Landlord.
(C) Conditioned air will be furnished to the Premises at such time or
times as Landlord's air conditioning system is in operation for the furnishing
of conditioned air to Landlord's other tenants. Landlord represents that it
customarily operates said air conditioning equipment when required for the
purpose of furnishing cooled air during the period commencing on or about the
fifteenth day of May and ending on or about the fifteenth day of October in each
year. Whenever heat-generating machines, equipment or lighting fixtures
installed by Tenant affect the temperature otherwise maintained by Landlord in
the Premises, or whenever the electrical load in the Premises exceeds four and
one-half (4.5) xxxxx per square foot, Landlord shall be relieved of
responsibility for maintaining air conditioning in the Premises, and in such
event Landlord further reserves the right at its option to (1) require Tenant to
discontinue use of such heat-generating machines, equipment, lighting fixtures
or excessive electrical load, or (2) install supplementary air conditioning
units in the Premises, the cost, installation, operation and maintenance of
which shall be paid by Tenant to Landlord at such rates as Landlord charges from
time to time in the Building. Tenant agrees that at all times it will cooperate
with Landlord and abide by all regulations and requirements which Landlord may
prescribe for the proper functioning of the ventilating and air conditioning
systems.
(D) Electricity will be furnished so long as Landlord shall furnish
electric current for light or power to all tenants of the Building during the
Term of this Lease. Tenant agrees to purchase such electric current from
Landlord only, and to pay Landlord for such electric current consumed (measured
by a meter or meters installed by Landlord) at the charges from time to time
customary in the Building. The charges shall be based upon the amount of current
consumed and also the maximum demand of Tenant, both measured and computed in
the manner from time to time customary in the Building. Landlord, upon giving
Tenant not less than thirty (30) days' prior written notice, may discontinue
supplying electric current to Tenant upon connecting the Premises with another
source of supply of electric current. Upon the effective date of such
discontinuance, Tenant agrees to pay Landlord for each month of the remaining
Term of this Lease, as additional rent a sum equal to three cents ($0.03) per
rentable square foot of floor space contained in the Premises. Tenant shall not
install or operate any electrical
5
6
equipment or fixtures that overload lines servicing the Premises or which exceed
the designated electrical load for the Premises specified in Paragraph (C)
above.
(E) Additional services (including after-hour cooling and ventilation
and the provision of water) may be provided on terms and conditions as may be
mutually agreed upon by Landlord and Tenant.
Tenant shall apply to the applicable utility company or municipality
for gas, electricity, telephone and all other utility services, other than those
provided by Landlord, required by Tenant for use in the Premises in accordance
with Article 2 hereof and, subject to Article 8 hereof, Tenant shall be
responsible for the connection and installation of same.
All charges for any services shall be deemed rent reserved under this
Lease and shall be due and payable at the same time as the installment of rent
with which they are billed, or, if billed separately, shall be due and payable
within ten (10) days after such billing. In the event Tenant shall fail to make
payment for such services Landlord may, in addition to all other remedies which
Landlord may have for the non-payment of rent and without notice to Tenant,
discontinue any or all such services (including, without limitation, electric
current for light and power in the Premises), and such discontinuance shall not
be held or pleaded as an eviction or as a disturbance in any manner whatsoever
of Tenant's possession, or relieve Tenant from the payment of rent when due, or
vary or change any other provision of this Lease or render Landlord liable for
damages of any kind whatsoever.
Tenant agrees that neither Landlord nor its beneficiaries nor any of
their respective agents, partners or employees, shall be liable to Tenant, or
any of Tenant's employees, agents, customers or invitees or anyone claiming
through, by or under Tenant, for any damages, injuries, losses, expenses, claims
or causes of action, because of any interruption, diminution, delay or
discontinuance at any time in the furnishing of any of the above services or
operating, maintaining, repairing or supervising the Property when such
interruption, diminution, delay or discontinuance is occasioned, in whole or in
part, by repairs, renewals, improvements or additions, by any strike, lockout or
other labor trouble, by inability to secure gas, electricity, water or other
fuel at the Building, by any accident or casualty whatsoever, by act or default
of Tenant or other parties, or by any other cause beyond Landlord's reasonable
control; nor shall any such interruption, diminution, delay or discontinuance be
deemed an eviction or disturbance of Tenant's use or possession of the Premises
or any part thereof; nor shall any such interruption, diminution, delay or
discontinuance relieve Tenant from full performance of Tenant's obligations
under this Lease.
10. COVENANT AGAINST LIENS. Tenant agrees to pay promptly for any work
done or materials furnished by or on behalf of Tenant in or about the Premises
or to all or any part of the Property and nothing in this Lease contained shall
authorize or empower Tenant to do any act which shall in any way encumber the
title of Landlord in and to the Premises or to the Property, nor shall the
interest or estate of Landlord therein be in any way subject to any claims by
way of lien or encumbrance whether claimed by operation of law or by virtue of
any express or implied contract of Tenant, and any claim to a lien upon the
Premises or the Property arising
6
7
from any act or omission of Tenant shall accrue only against Tenant and shall in
all respects be subordinate to the title and rights of Landlord to the Premises
and the Property. Tenant covenants and agrees not to suffer or permit any lien
or encumbrance to be placed against the Premises, the Building or the Property
with respect to work or services claimed to have been performed for or materials
claimed to have been furnished to Tenant or the Premises and, in case of any
such lien or encumbrance attaching, or claim thereof being asserted, Tenant
agrees to cause it to be immediately released and removed of record. If Tenant
has not removed any such lien or encumbrance within fifteen (15) days after
notice to Tenant by Landlord, such failure shall constitute a default hereunder
and, in addition to all other remedies available herein, Landlord may, but shall
not be obligated to, pay the amount necessary to remove the lien or encumbrance,
without being responsible for making any investigation as to the validity
thereof, and the amount so paid together with all costs and expenses, including
reasonable attorneys' fees, incurred in connection therewith shall be deemed
additional rent reserved under this Lease due and payable forthwith.
11. WAIVER OF CLAIMS. Subject to the provisions of Article 25 hereof,
and except for the negligence of Landlord, Tenant agrees that Landlord,
Landlord's beneficiaries and their respective officers, directors,
beneficiaries, partners, agents, and employees shall not be liable for (nor
shall rent xxxxx as a result of) any direct or consequential damage (including,
without limitation, damages claimed for actual or constructive eviction) either
to person or property sustained by Tenant or other person, due to the Building,
the Property, or any part thereof or any appurtenances thereof becoming out of
repair, or due to the happening of any accident in or about the Building or the
Property, or due to any act or neglect of any tenant or occupant of the Building
or the Property, or any other person. This provision shall apply particularly
(but not exclusively) to damage caused by fire, explosion, water, snow, frost,
steam, sewerage, illuminating gas, sewer gas or odors, or by the bursting or
leaking of pipes, plumbing fixtures, or sprinkler system; without distinction as
to the person whose act or neglect was responsible for the damage and whether
the damage was due to any of the causes specifically enumerated above or to some
other cause of an entirely different kind. Tenant further agrees that all
personal property upon the Premises or brought or caused to be brought within
the Building by Tenant shall be at the risk of Tenant only and that Landlord
shall not be liable for any damage thereto or any theft thereof. Subject to the
provisions of Article 25 hereof, and except for the negligence of Landlord,
Tenant shall protect, indemnify, defend and save Landlord, its beneficiaries and
their respective officers, directors, agents, beneficiaries, partners, and
employees harmless from and against any and all liabilities, damages, costs,
claims, obligations and expenses arising out of or in connection with Tenant's
use or occupancy of the Premises or Tenant's activities in or about the Building
or the Property, or arising from any act or negligence of Tenant or its agents,
contractors, servants, employees or invitees.
12. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior
written consent of Landlord, (a) assign, convey, mortgage, pledge or otherwise
transfer this Lease, or any part thereof, or any interest hereunder; (b) permit
any assignment of this Lease, or any part thereof, by operation of law; (c)
sublet the Premises or any part thereof; or (d) permit the use of the Premises,
or any part thereof, by any parties other than Tenant, its agents and employees.
Tenant shall, by notice in writing, advise Landlord of its desire from, on and
after a
7
8
stated date (which shall not be less than thirty (30) days after the date of
Tenant's notice), to assign this Lease, or any part thereof, or to sublet any
part or all of the Premises for the balance or any part of the Term. Tenant's
notice shall: state the name and address of the proposed assignee or subtenant
and provide such financial information on the proposed assignee or subtenant and
assignment or sublease (whether contained in such assignment or sublease or in
separate agreements) and state the consideration therefor; and include a true
and complete and fully-executed copy of the proposed assignment or sublease and
any and all other agreements relating thereto. In such event, Landlord shall
have the right, to be exercised by giving written notice to Tenant within thirty
(30) days after receipt of Tenant's notice, to recapture the space described in
Tenant's notice and such recapture notice shall, if given, cancel and terminate
this Lease with respect to the space therein described as of the date stated in
Tenant's notice. If Tenant's notice shall cover all of the Premises, and
Landlord shall have exercised its foregoing recapture right, the Term of this
Lease shall expire and end on the date stated in Tenant's notice as fully and
completely as if that date had been herein definitely fixed for the expiration
of the Term. If, however, this Lease be cancelled with respect to less than the
entire Premises, Base Rent and rent adjustments reserved herein shall be
adjusted on the basis of the number of rentable square feet retained by Tenant
in proportion to the number of rentable square feet contained in the Premises,
as described in this Lease, and this Lease as so amended shall continue
thereafter in full force and effect.
If Landlord, upon receiving Tenant's notice with respect to any such
space, shall not exercise its right to recapture as aforesaid, and if Tenant is
not in default under the terms of this Lease, Landlord will not unreasonably
withhold its consent to Tenant's assignment of the Lease or subletting such
space to the party identified in Tenant's notice and upon the terms set forth in
Tenant's notice, provided, however, that in the event Landlord consents to any
such assignment or subletting, and as a condition thereto, Tenant shall pay to
Landlord ninety per cent (90%) of all profit derived by Tenant from such
assignment or subletting. For purposes of the foregoing, profit shall be deemed
to include, but shall not be limited to, the amount paid or payable to Tenant or
any other party to effect or to induce Tenant or any third party to enter into
any such transaction, and the amount of all rent and other consideration of
whatever nature payable by such assignee or sublessee or a third party in excess
of the Base Rent and rent adjustments payable by Tenant under this Lease. If a
part of the consideration for such assignment or subletting shall be payable
other than in cash, the payment to Landlord of its share of such non-cash
consideration shall be in such form as is satisfactory to Landlord.
Tenant shall and hereby agrees that it will furnish to Landlord upon
request from Landlord a complete statement, certified by an independent
certified public accountant, setting forth in detail the computation of all
profit derived and to be derived from such assignment or subletting, such
computation to be made in accordance with generally accepted accounting
principles. Tenant agrees that Landlord or its authorized representatives shall
be given access at all reasonable times to the books, records and papers of
Tenant relating to any such assignment or subletting, and Landlord shall have
the right to make copies thereof. The Percentage of profit due Landlord
hereunder shall be paid to Landlord within two (2) days of receipt of each
payment of profit made from time to time by such assignee or sublessee to
Tenant.
8
9
For purposes of the foregoing, (a) if Tenant is a partnership, any
change in the partners of Tenant, or (b) if Tenant is a corporation the voting
stock of which is not listed on a nationally recognized security exchange, any
transfer of any or all of the shares of stock of Tenant by sale, assignment,
operation of law or otherwise resulting in a change in the present control of
such corporation by the person or persons owning a majority of such shares as of
the date of this Lease, or (c) the transfer of all or substantially all of the
assets of Tenant, shall be deemed to be an assignment within the meaning of this
Article 12.
Landlord's consent to any assignment or sublease shall not operate as a
consent to any subsequent assignment or sublease or as a waiver of Landlord's
right to require Tenant to seek Landlord's approval of all subsequent
assignments and subleases. Any subletting or assignment hereunder shall not
release or discharge Tenant of or from any liability, whether past, present or
future, under this Lease, and Tenant shall continue fully liable thereunder. Any
subsequent or assignee shall agree in a form satisfactory to Landlord to comply
with and be bound by all of the terms, covenants, conditions, provisions and
agreements of this Lease to the extent of the space sublet or assigned, and
Tenant shall deliver to Landlord promptly after execution, an executed copy of
each such sublease or assignment and an agreement of compliance by each such
subtenant or assignee. Tenant agrees to pay to Landlord, on demand, all
reasonable costs incurred by Landlord (including fees paid to consultants,
brokers, accountants and attorneys) in connection with any request by Tenant for
Landlord to consent to any assignment or subletting by Tenant. Any sale,
assignment, mortgage, transfer, or subletting of this Lease which is not in
compliance with the provisions of this Article shall be of no effect and void.
Notwithstanding any requirement for Landlord to consider, solicit or obtain a
sublease or assignment, whether statutory or otherwise, Landlord and Tenant
expressly agree that Landlord's obligation with respect to such sublease or
assignment shall arise only when Tenant submits such sublease or assignment to
Landlord in the manner set out in this Article 12.
13. EXPENSES OF ENFORCEMENT. Tenant shall pay all attorneys' fees and
expenses of Landlord incurred in enforcing any of the obligations of Tenant
under this Lease. In case Landlord shall, without fault on its part, be made a
party to any litigation commenced by or against Tenant, then Tenant shall pay
all cost, expense and reasonable attorney's fees incurred or paid by Landlord in
connection with such litigation.
14. LANDLORD'S LIEN. Landlord shall have a first lien upon any and all
rents from permitted subtenants or assignees of Tenant (if any), upon the
interest of Tenant under this Lease and upon all the goods and chattels of
Tenant which may at any time be affixed to the Premises, to secure the payment
of all money due under this Lease.
15. LANDLORD'S REMEDIES. If default shall be made in the payment of the
rent or any installment thereof or in the payment of any other sum required to
be paid by Tenant under this Lease, or under the terms of any other lease or
agreement between Landlord and Tenant, and such default shall continue for ten
(10) days after written notice to Tenant or if default shall be made in the
performance of any of the other covenants or conditions which Tenant is required
to observe and perform hereunder or under any other lease or agreement between
Landlord and Tenant and such default shall continue for thirty (30) days after
written
9
10
notice to Tenant or if the interest of Tenant in this Lease shall be levied on
under execution or other legal process, or if any petition shall be filed by or
against Tenant to declare Tenant a bankrupt or to delay, reduce or modify
Tenant's debts or obligations or if any petition shall be filed or other action
taken to reorganize or modify Tenant's capital structure, if Tenant be a
corporation or other entity, of if Tenant be declared insolvent according to law
or if any assignment of Tenant's property shall be made for the benefit of
creditors or if a receiver of trustee is appointed for Tenant or its property or
if Tenant shall abandon or vacate the Premises during the Term of this Lease,
then Landlord may treat the occurrence of any one or more of the foregoing
events as a breach of this Lease, and thereupon at its option may, without
notice or demand of any kind to Tenant or any other person, have any one or more
of the following described remedies in addition to all other rights and remedies
provided at law or in equity:
(a) Landlord may terminate this Lease and the Term created
hereby, in which event Landlord may forthwith repossess the Premises and be
entitled to recover forthwith as damages a sum of money equal to the value of
the rent provided to be paid by Tenant for the balance of the stated Term of the
Lease, less the fair rental value of the Premises for such period, and any other
sum of money and damages owed by Tenant to Landlord.
(b) Landlord may terminate Tenant's right of possession and
may repossess the Premises by forcible entry and detainer suit, or otherwise,
without demand or notice of any kind to Tenant and without terminating this
Lease, in which event Landlord may, but shall be under no obligation so to do,
relet all or any part of the Premises for such rent and upon such terms as shall
be satisfactory to Landlord (including the right to relet the Premises for a
term greater or lesser than that remaining under the Term of this Lease and the
right to relet the Premises as a part of a larger area and the right to change
the character or use made of the Premises). For the purpose of such reletting,
Landlord may make such repairs, changes, alterations or additions in or to the
Premises as may be necessary or convenient. If Landlord shall fail or refuse to
relet the Premises, then Tenant shall pay to Landlord as damages a sum equal to
the amount of the rent reserved in this Lease for such period or periods. If the
Premises are relet and a sufficient sum shall not be realized from such
reletting after paying all of the costs and expenses of such repairs, changes,
alterations and additions and the expense of such reletting and the collection
of the rent accruing therefrom, to satisfy the rent above provided to be paid.
Tenant shall satisfy and pay any such deficiency upon demand therefor from time
to time; and Tenant agrees that Landlord may file suit to recover any sums
falling due under the terms of this paragraph from time to time and that any
suit or recovery of any portion due Landlord hereunder shall be no defense to
any subsequent action brought for any amount not theretofore reduced to judgment
in favor of Landlord.
16. SURRENDER OF POSSESSION. On or before the date this Lease and the
Term hereby created terminate, or on or before the date Tenant's right of
possession terminates, whether by lapse of time or at the option of Landlord,
Tenant will: (a) restore the Premises to the same condition they were in at the
beginning of the Term (except for reasonable wear and tear and as otherwise
provided in Article 25 of this Lease) and remove those alterations, improvements
and additions installed by or for the benefit of Tenant (including tenant
improvements acquired by Tenant from former tenants or existing in the Premises
as of the date
10
11
such space is leased to, or occupied by, Tenant) which Landlord shall request
Tenant to remove; (b) remove from the Premises and the Building all of Tenant's
personal property; and (c) surrender possession of the Premises to Landlord. If
Tenant shall fail or refuse to restore the Premises to the above-described
condition on or before the above-specified date, Landlord may enter into and
upon the Premises and put the Premises in such condition, and recover from
Tenant Landlord's cost of so doing. Without limiting the generality of the
foregoing, Tenant agrees to pay Landlord, upon demand, the cost of restoring the
walls, ceilings and floors of the Premises to the same condition that existed
prior to the date of the commencement of any alterations, improvements, or
additions made by or for Tenant's occupancy (or a prior tenant's occupancy if
such alterations, improvements or additions were acquired by Tenant from a
former tenant) of the Premises. If Tenant shall fail or refuse to comply with
Tenant's duty to remove all personal property from the Premises and the Building
on or before the above-specified date, the parties hereto agree and stipulate
that Landlord may, at its election: (1) treat such failure or refusal as an
offer by Tenant to transfer title to such personal property to Landlord, in
which event title thereto shall thereupon pass under this Lease as a xxxx of
sale to and vest in Landlord absolutely without any cost either by set-off,
credit allowance or otherwise, and Landlord may remove, sell, retain, donate,
destroy, store, discard, or otherwise dispose of all or any part of said
personal property in any manner that Landlord shall choose; or (2) treat such
failure or refusal as conclusive evidence, on which Landlord and any third party
shall be entitled absolutely to rely and act, that Tenant has forever abandoned
such personal property, and without accepting title thereof, Landlord may at
Tenant's expense enter into and upon the Premises and remove, sell, retain,
donate, destroy, store, discard or otherwise dispose of all of any part thereof
in any manner that Landlord shall choose without incurring liability to Tenant
or to any other person. In no event shall Landlord ever become or accept or be
charged with the duties of a bailee (either voluntary or involuntary) of any
personal property; and the failure of Tenant to remove all personal property
from the Premises and the Building shall forever bar Tenant from bringing any
action or from asserting any liability against Landlord with respect to any such
property which Tenant fails to remove. If Tenant shall fail or refuse to
surrender possession of the Premises to Landlord on or before the
above-specified date, Landlord may forthwith re-enter the Premises and repossess
itself thereof as of its former state and remove all persons and effects
therefrom, using such force as may be necessary, without being guilty of any
manner of trespass or forcible entry or detainer.
17. HOLDOVER. Tenant will pay to Landlord an amount equal to double the
sum of the annual Base Rent plus rent adjustments as provided in Section 9-202
of Chapter 110 of the Illinois Revised Statutes, or any corresponding provision
of a successor statute, and in addition thereto, all actual damages, whether
direct or consequential, sustained by Landlord, for all the time Tenant shall
retain possession of the Premises or any part thereof after the termination of
this Lease, whether by lapse of time or otherwise, but the provisions of this
Article shall not operate as a waiver by the Landlord of any right of re-entry
hereinbefore provided. At the option of Landlord, expressed in a written notice
to Tenant and not otherwise, such holding over shall constitute a renewal of the
Lease for a period of one (1) year with the Base Rent for such period in an
amount equal to the greater of the annual Base Rent plus rent adjustments
payable hereunder or the then prevailing rental rates for similar space in the
Building.
11
12
18. MERCHANDISE APPROVAL. Tenant shall not at any time during the Term
of this Lease offer for sale, display for sale, or sell (or cause, authorize or
permit any agent, representative or employee of Tenant so to do) in the Premises
any line of merchandise, except as provided in Article 2 above, without first
obtaining the written consent of Landlord.
19. NOTICE. In every case where it shall be necessary or desirable for
Tenant to give or serve upon Landlord any notice or demand, Tenant shall give
the requisite notice either (a) by delivering or causing to be delivered to
Landlord a written or printed copy of such notice or demand, or (b) by sending a
written or printed copy of such notice or demand by mail, postage prepaid,
addressed to Landlord at the address to which rental payments are made pursuant
to Article 3 hereof, and in either case by also delivering or sending a copy of
such notice or demand to the President of Landlord's agent at the Office of the
Building. In every case where under the provisions of this Lease it shall be
necessary or desirable for Landlord to give or serve upon Tenant any notice or
demand it shall be sufficient either (a) to deliver or cause to be delivered to
Tenant a written or printed copy of such notice or demand, or (b) to send a
written or printed copy of said notice or demand by mail, postage prepaid,
addressed to Tenant at the Premises, or (c) to leave a written or printed copy
of said notice or demand upon the Premises or post the same upon any door
leading into the Premises.
20. NO SOLICITATION. Tenant shall not by itself or through any officer,
salesman, employee, agent, advertisement or otherwise solicit business in the
vestibules, entrances, elevator lobbies, corridors, hallways, elevators or other
common areas of the Building.
21. CONDEMNATION. If the whole or any part of the Premises or Building
shall be taken or condemned by any competent authority for any public use or
purpose or if any adjacent property or street shall be condemned or improved in
such manner as to require the use of any part of the Premises or Building, the
Term of this Lease, at the option of Landlord, shall end upon the date when the
possession of the part so taken shall be required for such use or purpose and
Landlord shall be entitled to receive the entire award, if any, without any
payment to Tenant. Current rent shall be apportioned as of the date of such
termination.
22. NONWAIVER. No waiver of any condition expressed in this Lease shall
be implied by any neglect of Landlord to enforce any remedy on account of the
violation of such condition if such violation be continued or repeated
subsequently, and no express waiver shall affect any condition other than the
one specified in such waiver and that one only for the time and in the manner
specifically stated. The receipt and acceptance by Landlord of a sum of money
which is less than the amount due and owing shall not, regardless of any
endorsements or instructions to the contrary, constitute an accord and
satisfaction. No receipt of moneys by Landlord from Tenant after the termination
in any way of the Term hereof or of Tenant's right of possession hereunder or
after the giving of any notice shall reinstate, continue or extend the Term or
affect any notice given to Tenant prior to the receipt of such moneys, it being
agreed that after the service of notice or the commencement of a suit or after
final judgment for possession of the Premises Landlord may receive and collect
any rent due, and the payment of such rent shall not waive or affect such
notice, suit or judgment.
12
13
23. WAIVER OF NOTICE. Except as provided in Article 15 hereof, Tenant
hereby expressly waives the service of any other notice of intention to
terminate this Lease or to re-enter the Premises and waives the service of any
demand for payment of rent or for possession and waives the service of any other
notice or demand prescribed by any statute or other law.
24. FIRE OR CASUALTY. If the Premises or the Building (including
machinery and equipment used in its operation) shall be destroyed or damaged by
fire or other casualty and if the Premises or Building may be repaired and
restored within ninety (90) days (plus such additional time during which
Landlord may be prevented or delayed from completing the repairs for causes
beyond its reasonable control, including without limitation, adjustments on
insurance policies), after such damage then Landlord shall have the option to
(a) repair and restore the same with reasonable promptness; or (b) elect to
demolish the Building or cease its operation, in which event this Lease shall
automatically be cancelled and terminated as of the date of such damage. In the
event any such damage not caused by the act or neglect of Tenant, its agents,
servants, employees, guests, licensees or invitees renders the Premises
untenantable and if this Lease shall not be cancelled and terminated by reason
of such damage, then rent shall xxxxx during the period beginning with the date
of such fire or other casualty and ending with the date Landlord's work is
substantially completed, abatement to be in an amount bearing the same ratio to
the total amount of rent for such period as the untenantable portion of the
Premises bears to the entire Premises. Landlord's work shall not include, and
Landlord shall have no duty relating to, the repair or restoration of Tenant's
fixtures or tenant improvements (including tenant improvements acquired by
Tenant from former tenants or existing in the Premises as of the date such space
is leased to, or occupied by, Tenant), including, but not limited to, special
wall and floor coverings, special lighting fixtures, built-in cabinets and
bookshelves and glass demising walls.
If such damage renders the Premises untenantable, in whole or in part,
and if, in Landlord's judgment, such damage cannot reasonably be repaired and
restored within ninety (90) days (plus such additional time during which
Landlord may be prevented or delayed from completing the repairs for causes
beyond its reasonable control, including without limitation, adjustments on
insurance policies), either party shall have the right to cancel and terminate
this Lease as of the date of such damage, provided, however, that Tenant may not
elect to terminate this Lease if such damage was caused by the act or neglect of
Tenant, its agents, servants, employees, guests, licensees or invitees. Any
right to terminate or any other option provided for any party in this Article 24
must be exercised by written notice to the other party served within one hundred
(100) days after such damage shall have occurred.
25. INSURANCE. In consideration of the leasing of the Premises at the
rental stated in Articles 3 and 4, Landlord and Tenant agree to provide
insurance and allocate the risk of loss as follows:
Tenant, at its sole cost and expense, agrees to purchase and keep in
force and effect during the Term hereof (a) Property Insurance on its
merchandise, inventory, tenant improvements (including tenant improvements
acquired by Tenant from former tenants or existing in the Premises as of the
date such space is leased to, or occupied by, Tenant), contents, furniture,
fixtures, equipment and other personal property located in the Building,
protecting
13
14
Landlord and Tenant from damage or other loss caused by those perils customarily
covered by an all risk policy, and in any event including without limitation,
fire or other casualty, vandalism, theft, sprinkler leakage, water damage
(however caused), explosion, malfunction and failures of heating and cooling or
similar apparatus, perils covered by extended coverage, and other similar perils
in amounts not less than the full insurable replacement value of such property
with a deductible amount not in excess of One Thousand Dollars ($1,000), and (b)
broad from Comprehensive General Liability Insurance, including blanket
contractual liability, host liquor liability (if alcoholic liquor within the
meaning of the Illinois Liquor Control Act will be given to guests), personal
injury liability, and broad form property damage liability coverages, with
limits of not less than Three Million Dollars ($3,000,000) for personal injury,
bodily injury, sickness, disease or death or for damage or injury to or
destruction of property (including the loss of use thereof) for any one
occurrence. Tenant's Property Insurance policy shall provide that it is specific
and not contributory and shall contain a clause pursuant to which the insurance
carrier waives all rights of subrogation against Landlord with respect to losses
payable under such policy. If the potential for Dram Shop liability shall arise
due to Tenant's activities pursuant to Article 2 of this Lease, the Tenant shall
procure and maintain a policy of Dram Shop liability insurance before
undertaking such activities. Tenant's Property Insurance policy, its
Comprehensive General Liability policy and, if required, its Dram Shop liability
policy, shall each name Landlord, its beneficiaries, and their respective
officers, directors, beneficiaries, partners, agents, and employees as
additional insureds. All such insurance shall be provided by insurers of
recognized responsibility.
Landlord agrees to purchase and keep in force and effect insurance on
the Building against fire and such other risks as may be included in extended
coverage insurance from time to time available in an amount not less than the
greater of 80 percent of the full insurable value of the Building or the amount
sufficient to prevent Landlord from becoming a co-insurer under the terms of the
applicable policies and shall contain a clause pursuant to which the insurance
carriers waive all rights of subrogation against the Tenant, its agents,
servants and employees, with respect to losses payable under such policies.
By this Article, Landlord and Tenant intend that the risk of loss or
damage as described above be borne by responsible insurance carriers to the
extent above provided and Landlord and Tenant hereby release each other and
agree to look solely to, and seek recovery only from, their respective insurance
carriers in the event of a loss of a type described above to the extent that
such coverage is agreed to be provided hereunder. For this purpose any
applicable deductible amount shall be treated as though it were recoverable
under such policies. Landlord and Tenant agree that applicable portions of all
moneys collected from such insurance shall be used toward full compliance with
the obligations of Landlord and Tenant under this Lease in connection with
damage resulting from fire and other casualty.
26. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord shall have the
following rights, exercisable without notice and without liability to Tenant for
damages or injury to property, person or business and without effecting an
eviction, constructive or actual, or disturbance of Tenant's use or possession
or giving rise to any claim for set-off or abatement of rent:
14
15
(A) To change the Building's name or street address.
(B) To install, affix and maintain any and all signs on the exterior
and interior of the Building.
(C) To designate and approve, prior to installation, all types of
window shades, blinds, drapes, awnings, window ventilators and other similar
equipment, and to control all internal lighting that may be visible from the
exterior of the Building.
(D) To reserve to Landlord the exclusive right to designate, limit,
restrict and control any business or any service in or to the Building and its
tenants.
(E) To grant to anyone the exclusive right to conduct any business or
render any service in or to the Building, provided such exclusive right shall
not operate to exclude Tenant from the use expressly permitted herein.
(F) To prohibit the placing of vending or dispensing machines of any
kind in or about the Premises without the prior written permission of Landlord.
(G) To show the Premises to prospective tenants at reasonable hours
during the last twelve (12) months of the Term and if vacated during such year
to prepare the Premises for re-occupancy.
(H) To approve the weight, size and location of safes and other heavy
equipment and bulky articles in and about the Premises and the Building (so as
not to exceed the legal live load), and to require all such items and furniture
and similar items to be moved into and out of the Building and Premises only at
such times and in such manner as Landlord shall direct in writing. Any damages
done to the Building or to other tenants in the Building by taking in or putting
out safes, and other articles or from overloading the floor in any way shall be
paid by Tenant. Furniture, boxes, merchandise or other bulky articles shall be
transported within the Building only upon or by vehicles equipped with rubber
tires and shall be carried only in a freight elevator, at such times as the
building manager shall fix. Movements of Tenant's property into or out of the
Building and within the Building are entirely at the risk and responsibility of
Tenant and Landlord reserves the right to require permits before allowing any
such property to be moved into or out of the Building. Landlord reserves the
right to regulate the movement of, and to inspect, all property and packages
brought into or out of the Building to enforce compliance with the terms of this
Lease and to regulate delivery and service of supplies and the usage of loading
docks, receiving areas and freight elevators.
(I) To have access for the Landlord and other Tenant of the Building to
any mail chutes located on the Premises according to the rules of the United
States Postal Service.
(J) To close the Building after regular working hours and on Saturdays,
Sundays and holidays established by Landlord from time to time subject, however,
to Tenant's right to admittance under such regulations as Landlord may prescribe
from time to time, which may include, by way of example, but not of limitation,
that persons entering or leaving the Building
15
16
identify themselves to a security officer by registration or otherwise and that
said persons establish their right to enter or leave the Building.
(K) To decorate or to make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the Building, the
Property and the Premises, or any part thereof, and for such purposes to enter
upon the Premises, and, during the continuance of any of said work, to
temporarily close doors, entryways, public space and corridors in the Building
or the Property and to interrupt or temporarily suspend Building services and
facilities, all without abatement of rent or affecting any of Tenant's
obligations hereunder, so long as the Premises are reasonably accessible for the
use provided under this Lease.
(L) To change the arrangement, configuration, size or location of
entrances, passageways, doors and doorways, corridors, stairs, toilets and other
public service portions of the Building and the Property not contained within
the Premises or any part thereof.
(M) To change the character or use of any part of the Building or the
Property.
(N) To use for itself the roof, the exterior portions of the Premises
and such areas within the Premises required for structural columns and their
enclosures and the installation of utility lines, Building systems and other
installations required to service the Building, the Property or tenants or
occupants and to maintain and repair same, no rights being hereby conferred upon
Tenant, and, unless otherwise specifically provided herein, to exercise for
itself all rights to the land and improvements below the floor level of the
Premises on the air rights above the Premises and to the land and improvements
located on and within the public areas. Neither Tenant nor its employees,
invitees, guests and agents shall, without obtaining in each instance the prior
written consent of Landlord, which consent shall be conditioned upon such
requirements as Landlord deems appropriate, (1) go above or through suspended
ceilings, (2) remove any ceiling tiles or affix anything thereto, remove
anything therefrom or cut into or alter the same in any way, (3) enter fan rooms
or other mechanical spaces, or (4) open doors or remove panels providing access
to utility lines, Building systems or other installations required to service
tenants.
(O) At any time hereafter, provided Landlord shall first give Tenant at
least forty-five (45) days' written notice thereof, to substitute for the
Premises other premises in the Building (herein referred to as "the new
premises"), in which event the new premises will be deemed to be the Premises
for all purposes under this Lease, provided: the new premises shall be similar
to the Premises in size and configuration and shall be usable for Tenant's
purposes, and such change shall be made in order to install a necessary Building
system or in the sole discretion of Landlord to alter, improve or replace common
areas or elements of the Building. If Tenant is already in occupancy of the
Premises, then, in addition (1) Landlord shall pay the expense of Tenant for
moving from the Premises to the new premises and improving the new premises so
that they are substantially similar to the Premises; and (2) such move shall be
made during evenings, weekends, or otherwise so as to avoid unreasonable
inconvenience to Tenant.
(P) To enter the Premises for the purpose of inspecting them for
general condition and state of repair or effecting repairs or modifications for
the benefit of Landlord, Tenant, or other
16
17
tenants of the Building. The holder of any mortgage of the Landlord's interest
in the Property, its agents or designees shall have the same right of entry for
inspection as Landlord.
27. RULES AND REGULATIONS. Tenant agrees to observe the reservations to
Landlord in Article 26 hereof and agrees, for itself, its employees, agents,
servants, clients, customers, invitees, licensees and guests to observe and
comply, at all times, with the following rules and regulations and with such
reasonable modifications thereof and additions thereto as Landlord may make for
the Building, and that failure to observe and comply with such reservations,
rules and regulations shall constitute a default under this Lease:
(A) No sign, picture, advertisement or notice, typewritten or
otherwise, shall be displayed, inscribed, painted or affixed on any part of the
outside or inside of the Building, or on or about the Premises hereby demised,
except on glass of the doors and windows of the Premises and on the directory
board of the Building and then only of such nature, color, size, style and
material as shall be first approved by Landlord in writing.
(B) Tenant shall not, without Landlord's prior written consent, install
or operate any heating device, refrigerating or air conditioning equipment,
steam or internal combustion engine, boiler, stove, machinery or mechanical
devices upon the Premises or carry on any mechanical or manufacturing business
thereon, or use or permit to be brought into the Building flammable fluids such
as gasoline, kerosene, benzene, or naphtha or use any illumination other than
electric lights. All equipment, fixtures, lamps and bulbs shall be compatible
with, and not exceed the capacity of, the Building's electrical system. No
explosives, firearms, radioactive or toxic or hazardous substances or materials,
or other articles deemed extra hazardous to life, limb or property shall be
brought into the Building or the Premises.
(C) Tenant shall not make noises, cause disturbances or vibrations, or
use or operate any electrical or electronic devices or other devices that emit
sound or other waves or disturbances, or create odors or noxious fumes, any of
which may be offensive to other tenants and occupants of the Building or that
would interfere with the operation of any device or equipment or radio or
television broadcasting or reception from or within the Building or elsewhere,
and shall not place or install any projections, antennae, aerials or similar
devices inside or outside of the Premises.
(D) All janitor work and the caring for the Premises, except the
exterior washing of windows, shall be paid for by Tenant. Any person or persons
employed by Tenant to do janitor work, or care for the Premises shall be subject
to and under the control and direction of the building manager while in the
Building and outside of the Premises, but not as agent of Landlord. Tenant shall
be responsible, at its sole cost and expense, for the removal of refuse and
rubbish from the Premises and the Building. Such refuse and rubbish shall be
stored and transported in containers acceptable to Landlord and shall be
deposited in locations acceptable to Landlord.
(E) Tenant shall at its expense provide artificial light for employees
of Landlord while doing work and making repairs or alterations in the Premises.
17
18
(F) All telegraph, telephone, and electric connections which Tenant may
desire shall be first approved by Landlord in writing, before the same are
installed, and the location of all wires and the work in connection therewith
shall be subject to the direction of Landlord. Landlord reserves the right to
designate and control the entity or entities providing telephone or other
communication cable installation, repair and maintenance in the Building and to
restrict and control access to telephone cabinets. In the event Landlord
designates a particular vendor or vendors to provide such cable installation,
repair and maintenance for the Building, Tenant agrees to abide by and
participate in such program.
(G) Tenant must list all furniture and fixtures to be taken from the
Building upon a form furnished by Landlord. Such list shall be presented at the
office of the Building for approval before acceptance by the security officer or
elevator operator.
(H) Tenant, its customers, invitees, licensees, agents, servants,
employees and guests shall not encumber or obstruct sidewalks, entrances,
passages, courts, corridors, vestibules, halls, elevators, stairways or other
common areas in or about the Building.
(I) No bicycle or other vehicle and no animal shall be allowed in the
showroom, offices, halls, corridors or any other parts of the Building.
(J) Tenant shall not allow anything to be placed against or near the
glass in the partitions between the Premises and the halls or corridors of the
Building which shall diminish the light in the halls or corridors.
(K) Tenant shall not allow anything to be placed on the outer window
ledges of the Premises, nor shall anything be thrown by Tenant or its employees
out of the window of the Building. Tenant shall keep all windows closed.
(L) No additional locks shall be placed upon any doors of the Premises
and no locks shall be changed without the prior written consent of Landlord.
Tenant will not permit any duplicate keys to be made (all necessary keys will be
furnished by Landlord), but if more than two keys for any door lock are desired,
the additional number must be paid for by Tenant. Upon termination of this
Lease, Tenant shall surrender the keys of the Premises and of the Building and
give to Landlord the explanation of the combination of all locks on safes or
vault doors in the Premises.
(M) The building manager shall at all times keep a pass key and be
allowed to the Premises to cover any emergency, fire or other casualty that may
arise and in other appropriate instances. Landlord and Landlord's agents shall
have the right to enter the Premises at all reasonable hours to examine the
same.
(N) Unless otherwise advised by Landlord, neither Tenant nor its
employees shall undertake to regulate the radiator controls or thermostats.
Tenant shall report to the office of the Building whenever such thermostats or
radiator controls are not working properly or satisfactorily.
18
19
(O) If Tenant desires shades or venetian blinds for outside windows,
they must be furnished and installed at the expense of Tenant, and must be of
such type, color, material and make as may be prescribed by Landlord.
(P) Tenant assumes full responsibility for protecting its space from
weather, theft, robbery and pilferage, which includes keeping doors locked and
other means of entry into the Premises closed and secured.
(Q) Tenant shall not peddle, canvass, solicit or distribute handbills
or flyers on or about the Property except as specifically authorized by
Landlord. Peddlers, solicitors and beggars shall be reported to the office of
the Building or as Landlord otherwise requests.
(R) Tenant shall not sell food of any kind or xxxx in the Building.
Tenant may serve complimentary foods to its guests provided that it shall first
comply with all applicable laws, ordinances, codes and regulations.
(S) Water on the Premises shall not be wasted by Tenant or its
employees by tying or wedging back the faucets of the washbowls or otherwise.
(T) Tenant shall use neither the name of the Building (except as the
address of its business) nor pictures of the Building in advertising or other
publicity or for any other purpose without Landlord's prior written consent.
(U) In the event Tenant designates non-smoking areas in the Premises,
Tenant shall also designate sufficient smoking areas within the Premises for its
employees, and in no event shall Tenant allow its employees to use the public
areas of the Building as smoking areas.
Landlord reserves the right to make such other and further reasonable
rules and regulations as in Landlord's judgment may from time to time be needful
for the safety, care and cleanliness of the Premises and the prudent operation
of the Building and for the preservation of good order therein.
28. MISCELLANEOUS. Tenant and Landlord further covenant with each other
that:
(A) All rights and remedies of Landlord under this Lease shall be
cumulative, and none shall exclude any other rights and remedies allowed by law.
(B) The word "Tenant" wherever used herein shall be construed to mean
tenants in all cases where there is more than one tenant, and the necessary
grammatical changes required to make the provisions hereof apply either to
corporations or individuals, men or women, shall in all cases be assumed as
though in each case fully expressed. If there is more than one tenant, all
obligations and liabilities hereunder imposed upon Tenant shall be joint and
several.
(C) This Lease and the rights of Tenant hereunder shall be and are
subject and subordinate at all times to any ground leases or master leases and
to the lien of any mortgages or
19
20
deeds of trust now or hereafter in force against the Property or the Building,
or both of them, and to all advances made or hereafter to be made upon the
security thereof, and to all renewals, modifications, amendments,
consolidations, replacements and extensions thereof. Any mortgagee or
beneficiary under a deed of trust, however, may elect to have this Lease be
superior to its mortgage or deed of trust. This provision is self-operative and
no further instrument of subordination or priority shall be required. In
confirmation of such subordination or priority, Tenant shall promptly execute
such further instruments as may be requested by Landlord and in the event Tenant
fails to do so within ten (10) days after demand in writing Tenant hereby
irrevocably appoints Landlord as attorney-in-fact for Tenant with full power and
authority to execute and deliver in the name of Tenant any such instruments.
(D) Each of the provisions of this Landlord shall extend to and shall,
as the case may require, bind or inure to the benefit of, not only Landlord and
Tenant, but also their respective heirs, legal representatives, successors and
assigns, provided, this clause shall not permit any assignment contrary to the
provisions of Article 12 hereof.
(E) All of the representations and obligations of Landlord are
contained herein and no modification, waiver or amendment of this Lease or any
of its conditions or provisions shall be binding upon Landlord unless in writing
signed by a duly authorized officer of Landlord's agent.
(F) All amounts due and payable from Tenant under this Landlord or
under any work order or other agreement relating to the Premises shall be
considered as rent and, if unpaid when due, shall bear interest from such date
until paid at the maximum legal rate of interest allowable on the date first
above written.
(G) Submission of this instrument for examination shall not bind
Landlord in any manner, and no lease or obligation on Landlord shall arise until
this instrument is signed and delivered by Landlord and Tenant.
(H) No rights to light or air over any property, whether belonging to
Landlord or any other persons, are granted to Tenant by this Lease.
(I) The laws of the State of Illinois shall govern the validity,
performance and enforcement of this Lease. The invalidity or unenforceability of
any provision of this Lease shall not affect or impair any other provision.
(J) Landlord's title is and always shall be paramount to the title of
Tenant. Nothing herein contained shall empower Tenant to commit or engage in any
act which can, shall or may encumber the title of Landlord.
(K) In case Landlord or any successor owner of the Property or the
Building shall convey or otherwise dispose of any portion thereof to another
person, such other person shall in its own name thereupon be and become Landlord
hereunder and shall assume fully in writing and be liable upon all liabilities
and obligations of this Lease to be performed by Landlord which first arise
after the date of conveyance, and such original Landlord or successor owner
shall, from and after the date of conveyance, be free of all liabilities and
obligations not then incurred.
20
21
(L) Neither this Lease, nor any memorandum, affidavit or other writing
with respect thereto, shall be recorded by Tenant or by anyone acting through,
under or on behalf of Tenant, and the recording thereof in violation of this
provision shall constitute a material breach of this Lease.
(M) Nothing contained in this Lease shall be deemed or construed by the
parties hereto or by any third party to create the relationship of principal and
agent, partnership, joint venture or any association or relationship between
Landlord and Tenant other than that of landlord and tenant.
(N) Landlord shall have the right to apply payments received from
Tenant pursuant to this Lese (regardless of Tenant's designation of such
payments) to satisfy any obligations of Tenant hereunder, in such order and
amounts as Landlord in its sole discretion may elect.
(O) All indemnities, covenants and agreements of Tenant contained
herein which inure to the benefit of Landlord shall be construed to inure also
to the benefit of Landlord's beneficiaries, and their respective officers,
directors, beneficiaries, partners, agents and employees.
29. ATTORNMENT. Upon request of the holder of any note secured by a
mortgage or deed of trust on the Building or Property, Tenant will agree in
writing that no action taken by such holder to enforce said mortgage or deed of
trust shall terminate this Lease or invalidate or constitute a breach of any of
the provisions hereof and Tenant will attorn to such mortgagee or holder, or to
any purchaser of the Property or Building, at any foreclosure sale or sale in
lieu of foreclosure, for the balance of the Term of this Lease and on all other
terms and conditions herein set forth.
30. ESTOPPEL CERTIFICATE. Tenant agrees that from time to time upon not
less than ten (10) days' prior request by Landlord, Tenant or Tenant's duly
authorized representative having knowledge of the following facts shall deliver
to Landlord a statement in writing certifying (a) that this Lease is unmodified
and in full force and effect (or if there have been modifications that the Lease
as modified is in full force and effect); (b) the dates to which the rent, rent
adjustments and other charges have been paid; (c) that neither Landlord nor
Tenant is in default under any provision of this Lease, or, if in default, the
nature thereof in detail; and (d) that there are no offsets or defenses to the
payment of Base Rent, additional rent or any other sums payable under this
Lease, or if there are any such offsets or defenses, specifying such in detail.
In the event Tenant fails to deliver such statement to Landlord within such
10-day period, Tenant hereby irrevocably appoints Landlord as attorney-in-fact
for Tenant with full power and authority to execute and deliver in the name of
Tenant any such statement, which statement shall be binding upon Tenant and may
be relied upon by Landlord and any third party.
31. BROKERS. Tenant represents and warrants to Landlord that neither it
nor its officers or agents nor anyone acting on its behalf has dealt with any
real estate broker in the negotiation or making of this Lease, and Tenant agrees
to indemnify and hold harmless Landlord from the claim or claims of any broker
or brokers claiming to have interested Tenant in the Building or Premises or
claiming to have caused Tenant to enter into this Lease.
21
22
[32. omitted]
33. TRUSTEE CLAUSE. It is expressly understood and agreed that this
Lease is executed on behalf of LASALLE NATIONAL TRUST N.A., not personally but
as Trustee as aforesaid, in the exercise of the power and authority conferred
upon and invested in it as such Trustee, and under the direction of the
beneficiaries of a certain Trust Agreement dated May 27, 1981, and known as
Trust No. 104000. It is further expressly understood and agreed that LASALLE
NATIONAL TRUST N.A., as Trustee aforesaid, has no right or power whatsoever to
mange, control or operate said real estate in any way or to any extent and is
not entitled at any time to collect or receive for any purpose, directly or
indirectly, the rents, issues, profits or proceeds of said real estate or any
lease or sale or any mortgage or any disposition thereof. Nothing in this Lease
contained shall be construed as creating any personal liability or personal
responsibility of the Trustee or any of the beneficiaries of the Trust, or any
of their respective officers, directors, beneficiaries, partners, agents, and
employees, and in particular, without limiting the generality of the foregoing,
there shall be no personal liability to pay any indebtedness accruing hereunder
or to perform any covenant, either expressly or impliedly herein contained, or
to keep, preserve or sequester any property of said Trust or for said Trustee to
continue as said Trustee; and that so far as the parties herein are concerned
the owner of any indebtedness or liability accruing hereunder shall look solely
to and attempt to collect solely from the trust estate from time to time subject
to the provisions of said Trust Agreement for payment thereof. Tenant hereby
expressly waiving and releasing said personal liability and personal
responsibility of the Trustee and any of the beneficiaries of the Trust, and any
of their respective officers, directors, beneficiaries, partners, agents and
employees on behalf of itself and all persons claiming by, through or under
Tenant.
34. RIDERS. All riders attached to this Lease and signed by Landlord
and Tenant are made a part hereof and are incorporate herein by reference.
IN TESTIMONY WHEREOF, the parties hereto have caused this instrument to
be executed in duplicate as of the day and year first above written.
TENANT: LANDLORD:
WINSTON FURNITURE COMPANY OF LASALLE NATIONAL TRUST N.A., not individually
ALABAMA, INC. but as Trustee under a Trust Agreement dated
May 27, 1981, and known as Trust No. 104000,
as aforesaid.
/s/ Xxxxxxx X. Xxxx By:
--------------------------- -------------------------------------
--------------------------- _______________, Vice President
22
23
CERTIFICATE
(If Tenant is a Corporation)
I, Xxxxxxx X. Xxxxxxxxx, Secretary of Winston Furniture Company of Alabama,
Inc., Tenant, hereby certify that the foregoing Lease has been authorized by all
necessary corporate action on behalf of Tenant, the officer(s) executing the
foregoing Lease on behalf of Tenant was/were duly authorized to act in his/their
capacities as President and _____________ and his/their action(s) are the action
of Tenant.
(Corporate Seal)
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Assistant Secretary
-------------------
23
24
RIDER ATTACHED TO AND MADE AN INTEGRAL PART OF THE LEASE DATED ______________,
19__ BY AND BETWEEN LASALLE NATIONAL TRUST N.A., NOT INDIVIDUALLY BUT AS TRUSTEE
UNDER A TRUST AGREEMENT DATED MAY 27, 1981 AND KNOWN AS TRUST NO. 104000
("LANDLORD") AND WINSTON FURNITURE COMPANY OF ALABAMA, INC. ("TENANT").
--------------------------------------------------------------------------------
35. MEMBERSHIP. Tenant is currently a member in good standing of the
Summer and Casual Furniture Manufacturers Association ("SCFMA"). SCFMA
exclusively sponsors an annual marketing event, currently known as the
International Casual Furniture Market ("ICFM") which is produced by Landlord.
SCFMA and Landlord have entered into an agreement with respect to the ICFM which
provides certain benefits for SCFMA members, including Tenant, in the Building.
It is expressly understood and agreed that such benefits apply to Tenant only so
long as Tenant continues to be a member in good standing of the SCFMA. In the
event Tenant ceases to be a member in good standing of the SCFMA during the Term
hereof, effective as of the first day of the calendar month following such
cessation: (a) the annual Base Rent payable by Tenant hereunder shall be
increased by an amount equal to the product of Three Dollars times the rentable
square footage in the Premises; (b) the limitation on the Base Rent adjustment
and any abatement noted in Article 36 below shall cease and have no further
force and effect; and (c) the provisions of Article 37 hereof shall have no
further force and effect.
36. BASE RENT ADJUSTMENT. Commencing with the second Lease Year, as
hereinafter defined, and at the start of each succeeding Lease Year, the Base
Rent shall be increased by an amount equal to the product obtained by
multiplying the then applicable annual Base Rent by the sum of (a) one percent
(1%), plus (b) the percentage of increase in the Consumer Price Index ("CPI")
for December of the prior Lease Year over the CPI for the period ending December
31, 1995. For example, if the Term commences September 1, 1996, the second Lease
Year shall begin September 1, 1997 and the CPI comparison applicable to the
second Lease Year shall be December 31, 1996 compared to December 31, 1995. The
result thus obtained shall thereafter be deemed the Base Rent for such Lease
Year, provided, in no event shall the annual Base Rent payable during any Lease
Year be less than the annual Base Rent payable during the immediately preceding
Lease Year. For purposes of this Lease, the first Lease Year shall be a period
of twelve calendar months and shall commence on the first day of the Term. Each
succeeding twelve-month period shall be a Lease Year. Notwithstanding the
foregoing, in no event shall the total Base Rent, as adjusted, for a Lease Year
be more than one hundred and four percent (104%) higher than the adjusted Base
Rent for the immediately preceding Lease Year. No base adjustment until 2001
@ 25.63 2002 @ 26.66 [initials].
For purposes of this Lease, the CPI shall mean the twelve (12) month average as
of December in any year of the Consumer Price Index for All Urban Consumers (All
Items And Commodity Groups-Chicago-Gary-Lake County, IL-IN-WI) (1982-84 = 100),
or such other successor or substitute area index as may be applicable to Chicago
Metropolitan Area, as appropriately adjusted. If the manner in which the CPI is
determined by the Department of Labor shall be substantially revised, and the
effect of that revision can be reasonably determined or approximated, an
adjustment shall be made in such revised index in order to produce results
equivalent, as nearly as possible, to those which would have been obtained if
the CPI had not
24
25
been so revised. If the 1982-84 average shall no longer be used as an index of
100, or if any component of the CPI is changed in a material degree, such change
shall constitute a substantial revision. If the CPI shall become unavailable to
the public because publication is discontinued, or otherwise, Landlord will
substitute therefor a comparable index base upon changes in the cost of living
or purchasing power of the consumer dollar published by any other governmental
agency or, if no such index shall then be available, a comparable index
published by a major bank or other financial institution or by a university or a
recognized financial publication.
Landlord shall deliver to Tenant on or before the start of the applicable Lease
Year, or as soon thereafter as possible, a statement setting forth the
adjustment, if any, of Tenant's Base Rent. In the event of any such adjustment,
Tenant shall pay Landlord: (a) on or before the 10th day immediately following
such notification, that portion of any increase for the period of the current
Lease Year prior to the date of such notification; and (b) for each month
thereafter, an amount equal to 1/12 of such increase, which sum shall be added
to each monthly installment of Base Rent then being paid by Tenant.
In order to induce Tenant to enter into this Lease, Landlord agrees that so long
as Tenant is not in default under any of the terms, covenants, or agreements on
Tenant's part to be performed, any amounts payable by Tenant during the first
four (4) Lease Year(s) pursuant to this Article 36 shall xxxxx and Tenant shall
have no liability therefore ("Abatement Amount"). Tenant agrees that in the
event this Lease, or Tenant's right of possession, is terminated prior to the
regularly scheduled expiration date due to a default by Tenant, then in addition
to all other rights and remedies available to Landlord hereunder, Tenant agrees
to repay to Landlord as additional rent the unamortized portion of the Abatement
Amount, calculated using a 9% interest factor.
37. SUCCESS FEE. Landlord, in conjunction with the SCFMA, will be
developing a new casual accessory show which will be held in The Merchandise
Mart ExpoCenter(TM) in conjunction with the ICFM. In order to encourage the
promotion of the new show by the SCFMA and its members, Landlord agrees to pay a
fee ("Success Fee") to all permanent showroom tenants in the Building who are
members of SCFMA based on an aggregate annual amount equal to $4.00 per square
foot for each foot of exhibition space sold for the new casual accessory show
during that year's ICFM. This fee will begin in the first year of the new show
and will be allocated among permanent SCFMA member showrooms in the Building as
of the first day of such market each year. Tenant will receive a prorata portion
of the Success Fee based on the rentable area of the Premises compared to the
total rentable square footage of permanent casual showrooms in the Building as
of the first day of the respective market. Any fees earned by Tenant in
accordance with this provision shall be credited against rent owing under the
Lease following the show but not affect the adjustment calculations under
Article 36 above.
It shall be a condition to Tenant's entitlement of the Success Fee from time to
time that Tenant is not in default in the payment of all rent owing under this
Lease and is not otherwise in default under any of the terms, covenants and
conditions as of the first day of the market.
25
26
37. CONFIDENTIALITY. Tenant recognizes and acknowledges that the rental
and other terms contained herein reflect a significant concession on Landlord's
part and the concessions are being provided, in part, due to Tenant's membership
in SCFMA and to induce Tenant to enter into this Lease. In consideration of this
Lease, Tenant covenants and agrees that the contents of this Lease, especially
as to the rental rate and terms, shall remain strictly confidential and shall
not be disclosed by Tenant to third parties without the prior written consent of
Landlord which consent may be granted or withheld in Landlord's sole discretion.
Notwithstanding the foregoing, Tenant may in the ordinary course of its business
disclose this information to its attorneys or accountants provided that they
recognize the confidential nature of this information. Any breach of this
agreement by Tenant shall constitute a default under the terms of this Lease
entitling Landlord to exercise all rights and remedies available herein. Tenant
shall use efforts at least comparable to its other procedures with respect to
maintaining confidential information to protect the information in this Lease.
38. PRIOR LEASE. It is mutually understood and agreed that effective as
of the commencement date of the Term of this Lease ("Effective Date"), that
certain lease between Landlord and Tenant dated July 13, 1987 and covering Rooms
1747, 1748, 1749, 1750 and 1751 in the Building ("Prior Lease") shall be
terminated and canceled except that Tenant shall remain liable for any and all
obligations and liabilities due and accruing thereunder through the Effective
Date.
TENANT: LANDLORD:
WINSTON FURNITURE COMPANY OF LASALLE NATIONAL TRUST N.A., not individually
ALABAMA, INC. but as Trustee under a Trust Agreement dated
May 27, 1981, and known as Trust No. 104000,
as aforesaid.
By: /s/ Xxxxxxx X. Xxxx By:
---------------------------- -------------------------------
________________, Vice President
Attest: [illegible]
------------------------
26
