Exhibit 10.4
Property No. 558
INDUSTRIAL BUILDING LEASE
THIS LEASE, made as of the 25 day of September, 1992, by and between THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey Corporation, hereinafter
called "Landlord" and Factory Card Outlet of America, Ltd., a(n) Delaware
Corporation, hereinafter called "Tenant";
ARTICLE I - BASIC TERMS
1.01 (A) Address of Landlord: The Prudential Insurance Company
of America,
c/o: Equity Investment
Attention: Vice President
000 X. Xxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
or such other address as may from time to time be designated by Tenant
in writing.
(B) Address of Tenant: 000 Xxxxxxxx
Xxxxxxxxxxx, XX 00000
or such other address as may from time to time be designated by Tenant
in writing.
(C) Premises: The parcel(s) of real property, the legal description of
which is set forth on Exhibit "A" attached hereto, together with the
Building and improvements thereon located.
(D) Building: The building located upon the Premises, the common
address of which is 745 Birginal
Bensenville, IL
(E) Guarantor(s): FCOA Acquisition Corp.
000 Xxxxxxxx
Xxxxxxxxxxx, XX
(F) Term: The period of time commencing October 13, 1992 and expiring
September 30, 2002, unless extended or sooner terminated as set forth
herein.
(G) Rent: All sums, moneys or payments required to be paid by Tenant
to Landlord pursuant to Landlord pursuant to this Lease.
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(H) Base Rent: $3,854,441.98 for the Term payable as follows:
*1. $294,491.60 per annum ($24,540.97 per month) for the period
from March 13, 1993 **through September 1994;
2. $373,777.80 per annum ($31,148.15 per month) for the period
from October 1994 through September 1997;
3. $430,410.80 per annum ($35,867.57 per month) for the period
from October 1997 through September 2000;
4. $492,707.10 per annum ($41,058.92 per month) for the period
from October 2000 through September 2002;
* Base rent for the period of October 13, 1992 through March 12,
1993 is abated. **Rent for month of March 1993 to be prorated
from March 13th.
(I) Security Deposit: $25,000.00.
(J) Permitted Uses: Office/Warehouse/Distribution of greeting cards,
gifts and related items.
(K) Broker(s): PRUDENTIAL REALTY CO., INC. and XXXXXXXX AND
ASSOCIATES, LTD.
(L) Exhibits: A. Legal Description of Premises
B, B-1, B-2. Plans and Specifications for Tenant Improvements and
Allowances both to be paid by Landlord.
C. Tenant Corporate Resolution and Lease Guaranty.
1.02 Effect of Reference to Basic Terms: Each reference in this Lease to any of
the Basic Terms contained in Section 1.01 shall be construed to incorporate into
such reference all of the definitions set forth in Section 1.01.
ARTICLE II - GRANT AND TERM
2.01 In consideration of the rents, covenants, agreements and conditions
hereinafter provided to be paid, kept, performed and observed, Landlord leases
to Tenant and Tenant hereby hires from Landlord the Premises described in
Section 1.01 (C).
2.02 Tenant shall have and hold the Premises for and during the Lease Term
described in Section 1.01 (F), subject to the payment of the Rent and to the
full and timely performance by Tenant of the covenants and conditions
hereinafter set forth.
2.03 In the event Tenant takes possession of the Premises prior to the beginning
of the Term hereof with Landlord's consent, all the provisions of this Lease
shall be in full force and effect upon Tenant's so taking possession.
ARTICLE III - RENT
3.01 Base Rent. Tenant covenants to pay without notice, deduction, set-off or
abatement unless otherwise provided herein to Landlord the Base Rent specified
in Section 1.01 (H) in lawful money of the United States in equal consecutive
monthly installments
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in advance on the first day of each month during the Lease Term. Rent for any
partial month shall be prorated on a per diem basis. Rent shall be payable to
Landlord at Landlord's address shown at Section 1.01 (A) above or such other
place as Landlord may designate from time to time in writing. Tenant shall pay
the first full month's Base Rent upon execution of this Lease. Base rent
includes $50,070.00 in real estate taxes and $7,929.00 for all risk fire and
extended coverage insurance premiums.
3.02 Real Estate Taxes. During the Lease Term, including any extensions or
holding over, Tenant shall pay to Landlord, as Additional Rent, the amount by
which the Real Estate Taxes levied against the Premises exceeds $50,070.00 per
annum. Commencing in January 1994 and every January thereafter the monthly Base
Rent provided for in paragraph 1.01 (H) will be adjusted to reflect any increase
over $50,070.00. Landlord will furnish Tenant with a copy of the tax xxxx.
Adjustment will be based on the provisions year's xxxx. If there is an increase
for the prorata share of 1993 it will be paid in a lump sum [ILLEGIBLE].
Landlord represents that the fully assessed 1991 Real Estate tax xxxx paid in
1992 was $50,070.00.
"Real Estate Taxes" shall mean: (a) all ad valorem real estate taxes,
assessments, levies, impositions or charges on the Building (adjusted after
protest or litigation, if any) for any part of the Lease Term, exclusive of
penalties, (b) any taxes which shall be levied in lieu of any such ad valorem
Real Estate Taxes, (c) any special assessments for benefits on or to the
Premises paid in annual installments by Landlord, (d) occupational taxes or
excise taxes levied on rentals derived from the operation of the Premises or the
privilege of leasing property, and (e) the reasonable expenses of protesting,
negotiating or contesting the amount or validity of any such taxes, charges or
assessments, such expense to be applicable to the period of the time contested,
protested or negotiated. Landlord will have the responsibility to protest the
Real Estate Taxes; however, if Landlord fails to do so, Tenant may do so at
Tenant's cost and expense. Landlord has no knowledge of any existing or
contemplated special assessments. If the Term of the Lease shall end during a
tax calendar year ("tax calendar year" shall mean each annual period for which
ad valorem real estate taxes are assessed and levied) of which part only is
included in the Term hereof, the amount of such Additional Rent shall be
prorated on a per diem basis and shall be paid on or before the last day of the
Term. If the Term ends in any tax calendar year before the amount to be payable
by Tenant has been determined under the provisions of this Section, an amount
payable for the portion of the Lease Term during the tax calendar year shall be
resaonably estimated by Landlord and the estimated amount shall be promptly paid
by Tenant. The tax xxxx in the last year of the Lease will be prorated based on
105% of the most recent annual ascertainable Real Estate tax xxxx.
3.03
3.04 Payment of Additional Rent. Any Additional Rent payable by Tenant under
this Lease shall be due and payable ten (10) days after billing by Landlord.
3.05 Service Charge. Tenant's failure to make any monetary payment required of
Tenant hereunder within ten (10) days of the due date therefor
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shall result in the imposition of a service charge for such late payment in the
amount of ten percent (10%) of the amount due. In addition, any sum not paid
within thirty (30) days of the due date therefor shall bear interest at the rate
of 4% over the prime rate per annum (or such lesser percentage as may be the
maximum amount permitted by law) from the date due until paid.
ARTICLE IV - USE; HAZARDOUS MATERIAL
4.01 The Premises hereby leased shall be used by and/or at the sufferance of
Tenant only for the purposes set forth in Section 1.01 (J) above and for no
other purposes. Tenant shall not use or permit the use of the Premises in any
manner that will tend to create waste or a nuisance, shall keep all its
mechanical apparatus free of noise and vibration which may be transmitted beyond
the confines of the Premises and shall not cause or permit objectionable odors
to emanate or be dispelled from the Premises.
4.02 In the event any Hazardous Material (hereinafter defined) is brought or
caused to be brought into or onto the Premises by Tenant. Tenant shall handle
any such material in compliance with all applicable federal, state and/or local
regulations. For purposes of this Section, "Hazardous Material" means and
includes any hazardous, toxic or dangerous waste, substance or material defined
as such in (or for purposes of) the Comprehensive Environmental Response,
Compensation, and Liability Act, any so-called "Superfund" or "Superlien" law,
or any federal, state or local statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to, or imposing liability or standards of
conduct concerning, any hazardous, toxic or dangerous waste, substance or
material, as now or at any time hereafter in effect. Tenant shall submit to
Landlord on an annual basis copies of its approved hazardous materials
communication plan, OSHA monitoring plan, and permits required by the Resource
Recovery and Conservation Act of 1976, if Tenant is required to prepare, file or
obtain any such plans or liabilities, damages, costs or expenses (including
reasonable attorneys' fees) which Landlord may suffer or incur as a result of
Tenant's introduction into or onto the Premises of any Hazardous Material. This
Section shall survive the expiration or sooner termination of this Lease.
ARTICLE V - LAWS AND ORDINANCES
5.01 Compliance with Laws and Ordinances. Only as required due to Tenant's use
of Premises, Tenant covenants throughout the Lease Term, at Tenant's sole cost
and expense, promptly to comply with all laws and ordinances and the orders,
rules and regulations and requirements of all federal, state and municipal
governments and appropriate departments, commissions, boards, and officers
thereof, and the orders, rules and regulations of the Board of Fire Underwriters
where the Premises are situated, or any other body or hereafter constituted
exercising similar
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functions, foreseen or unforeseen, ordinary as well as extraordinary, and
whether or not the same require structural repairs or alterations, which may be
applicable to the Premises, or the use or manner of use of the Premises. Tenant
will likewise observe and comply with the requirements of all policies of public
liability, fire and all other policies of insurance at any time in force with
respect to the buildings and improvements on the Premises and the equipment
thereof.
5.02 Tenant's Right to Contest. Tenant shall have the right to contest by
appropriate legal proceedings, and by counsel reasonably acceptable to Landlord,
without cost or expense to Landlord, the validity of any law, ordinance, order,
rule, regulation or requirement of the nature herein referred to, and if, by the
terms of any such law, ordinance, order, rule, regulation or requirement,
compliance therewith may legally be held in abeyance without subjecting Tenant
or Landlord to any liability for failure so to comply therewith, Tenant may
postpone compliance therewith until the final determination of any such
proceedings, provided that all such proceedings shall be prosecuted with all due
diligence and dispatch.
5.03 Licenses and Permits. During the Lease Term, Tenant shall obtain any
necessary licenses or permits to conduct or operate its business in and upon the
Premises which are required by any applicable governmental body or agency having
jurisdiction over the Premises and shall pay the fee or charge imposed for
issuance of such license or permit. Tenant shall renew any such licenses or
permits in accordance with the rules, codes, statutes or ordinances requiring
such licenses or permits. Tenant covenants during the Lease Term to conduct or
operate only the business for which it is licensed and in the event of a change
in the nature of its business or operation to obtain any necessary new or
additional licenses or permits. Tenant shall at its sole cost and expense comply
with all requirements and perform all necessary action required under such
rules, codes, statutes or ordinances for the issuance of such permits or
licenses.
ARTICLE VI - UTILITIES AND SERVICES
6.01 Tenant shall contract in its own name and timely pay for all charges for
electricity, gas, water, fuel, sewer charges, telephone, trash hauling, snow
removal, and any other services or utilities used in, servicing or assessed
against the Premises, unless otherwise herein expressly provided, and to
indemnify, defend and save Landlord harmless against any liability or damages on
such account.
ARTICLE VII - QUIET ENJOYMENT
7.01 Landlord covenants that Tenant, on paying the Rents herein provided and
keeping, performing, and observing the covenants, agreements and conditions
herein provide dof Tenant, shall peaceably and quietly hold and enjoy the
Premises for the term aforesaid, subject, however, to the terms of this Lease.
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ARTICLE VIII - ASSIGNMENT AND SUBLETTING
8.01 Tenant shall not assign or hypothecate this Lease nor sublet or otherwise
transfer its interest in all or any part of the Premises without the prior
written consent of Landlord not to be unreasonably withheld. If Tenant wishes to
assign this Lease or sublet all or any part of the Premises it shall give notice
in writing (by certified mail or by personal delivery) of such intention to
Landlord, furnishing Landlord with a copy of the proposed assignment or sublease
document and full information as to the identity and financial status of the
proposed assignee or subtenant. Thereupon, Landlord shall have, within fifteen
(15) days of receipt of such notice, document and (ILLEGIBLE) the right to
terminate this Lease or to approve or reject such assignment or subletting by
written notice to Tenant. If no such response is given, Landlord shall be deemed
to have elected to approve the assignment or subletting. Notwithstanding any
assignment or sublease, Tenant shall remain liable hereunder and shall not be
released without the express written agreement of Landlord to such release. If a
subletting is so approved and the rents under such a sublease are greater than
the rents provided for herein, then Landlord shall have the further option
either (a) to convert the sublease into a prime lease and receive all of the
rents, in which case this Lease shall be deemed terminated as to the sublet
space and Tenant will be relieved of further liability hereunder with regard
thereto; or (b) to require Tenant to remain liable under this Lease, in which
event Tenant shall be entitled to retain 75% of net profit after deducting
reasonable sublet expenses of such excess rents. The consent by Landlord to any
assignment or subletting shall not constitute a waiver of the necessity for such
consent to any subsequent assignment or subletting.
ARTICLE IX - DAMAGE OR DESTRUCTION
9.01 If the Premises or the Building or any part thereof is so damaged by fire
or other casualty, cause or condition whatsoever as to be substantially
untenantable and Landlord shall determine not to restore same. Landlord may, by
written notice to Tenant given within sixty (60) days after such damage,
terminate this Lease as of the date of the damage. If this Lease id not
terminated as above provided and if the Premises are made partially or wholly
untenantable as aforesaid, Landlord, at its expense, shall restore the same with
reasonable promptness but not greater than 180 days, subject to force xxxxxx as
defined in Section 15.01 to the condition in which Landlord furnished the
Premises to Tenant at the commencement of the Lease Term as to those items that
were provided at Landlord's expense without any reimbursement by Tenant.
Landlord shall be under no obligation to restore any alterations, improvements
or additions to the Premises made by Tenant or paid for by Tenant, including,
but not limited to, any of the initial tenant finish done or paid for by Tenant
or any subsequent changes, alterations or additions made by Tenant.
9.02 If, as a result of fire or other casualty, cause or condition whatsoever
the Premises are made partially or wholly untenantable and, if Landlord has not
given the sixty (60) day notice above provided for and fails within one hundred
twenty (120) days after such damage occurs to substantially restore the Premises
for Tenant's use and occupancy, Tenant may terminate this Lease as of the end of
said one hundred twenty (120) days by notice to Landlord given not later than
five (5) days after expiration of said one hundred twenty (120) day period. If
the
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Premises are rendered totally untenantable but this Lease is not terminated, all
rent shall xxxxx from the date of the fire or other relevant cause or condition
until the Premises are ready for occupancy and reasonably accessible to Tenant.
If a portion of the Premises is untenantable, rent shall be prorated on a per
diem basis and apportioned in accordance with the portion of the Premises which
is usable by the Tenant until the damaged part is ready for the Tenant's
occupancy. In all cases, due allowance shall be made for reasonable delay caused
by adjustment of insurance loss, strikes, labor difficulties or any cause beyond
Landlord's reasonable control. For the purposes of this Lease, the Premises
shall be considered tenantable so long as to the extent that the Premises are
occupied. In any event, Tenant shall be responsible for the removal, or
restoration, when applicable. of all its damaged property and debris from the
Premises, upon request by Landlord or reimburse Landlord for the cost of
removal.
ARTICLE X - LANDLORD'S RIGHTS
10.01 Landlord reserves the right the following rights:
(a)
(b) During the last ninety (90) days of the Term or any extension
thereof, if Tenant has vacated the Premises, to decorate,
remodel, repair, alter or otherwise prepare the Premises for
recoccupancy;
(c) To exhibit the Premises to others and to display "For Lease"
signs on the Premises during the last six months of the Term or
any extension thereof; and
(d) To take any and all measures, including making inspection,
repairs, alterations, additions and improvements to the Premises
or to the Building as may be necessary or desirable for the
operation, safety, protection or preservation of the Premises or
the Building or of Landlord's interest therein.
Landlord may enter upon the Premises at any reasonable time for the purpose of
exercising any or all of the foregoing rights hereby reserved without being
deemed guilty of an eviction or disturbance of Tenant's use or possession and
without being liable in any manner to Tenant.
ARTICLE XI - HOLDING OVER
11.01 In the event of a holding over by Tenant after expiration or termination
of this Lease without the consent in writing of Landlord, Tenant shall be deemed
a tenant at sufferance and shall pay rent for such occupancy at the rate of
twice the last-current Base Rent, plus any Additional Rent, prorated for the
entire holdover period, plus any other damages occasioned by such holdings over.
Except as otherwise agreed, any
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holding over with the written consent of Landlord shall constitute Tenant a
month-to-month tenant.
ARTICLE XII - SIGNS AND ADVERTISEMENTS
12.01 Tenant shall not put upon nor permit to be put upon any part of the
Premises or the Building, any signs, billboards or advertisements whatever in
any location or any form without the prior written consent of Landlord, which
consent shall not be unreasonably withheld.
ARTICLE XIII - MORTGAGE AND TRANSFER; ESTOPPEL CERTIFICATES
13.01 Landlord shall have the right to transfer, mortgage, pledge or otherwise
encumber, assign and convey, in whole or in part, the Premises, the Building,
this Lease, and all or any part of the rights now or thereafter existing and all
rents and amount payable to Landlord under the provisions hereof. Nothing herein
contained shall limit or restrict any such rights, and the rights of the Tenant
under this Lease shall be subject and subordinate to all instruments executed
and to be executed in connection with the exercise of any such rights,
including, but not limited to, the lien of any mortgage, deed of trust, or
security agreement now or hereafter placed upon Landlord's interest in the
Premises providing any transfer, mortgage or other instruments will not affect
Tenant's right to Quiet Enjoyment provided in Para. 7.01 so long as Tenant is
not in default. This paragraph shall be self-operative. However, Tenant
covenants and agrees to execute and deliver upon demand such further reasonable
instruments subordinating this Lease to the lien of any such mortgage, deed of
trust or security agreement as shall be requested by the Landlord and/or
mortgagee or proposed mortgagee or holder of any security agreement.
13.02 Upon Landlord's written request, Tenant shall execute, acknowledge and
deliver to Landlord a written statement certifying: (i) that none of the terms
or provisions of this Lease have been changed (or if they have been changed);
(ii) that this Lease has not been cancelled or terminated; (iii) the last date
of payment of the Base Rent and other charges and the time period covered by
such payment; (iv) that Landlord is not in default under this Lease (or, if
Landlord is claimed to be in default, stating why); and (v) such other matters
as may be reasonably required by Landlord or the holder of a mortgage, deed of
trust or lien to which the Property is or becomes subject. Tenant shall deliver
such statement to Landlord within ten (10) days after Landlord's request. Any
such statement by Tenant may be given by Landlord to any prospective purchaser
or encumbrancer of the Property. Such purchaser or encumbrancer may relay
conclusively upon such statement to Landlord with such ten (10) day period,
Landlord, and any prospective purchasee or encumbrancer, may conclusively
presume and rely upon the following facts: (i) that the terms and provisions of
this Lease have not been changed except as otherwise represented by Landlord;
(ii) that this Lease has not been cancelled or terminated except as otherwise
represented by Landlord; (iii) that not more than one month's Base Rent or other
charges have been paid in advance; and (iv) that Landlord is not in default
under the Lease. In such event, Tenant shall be stopped from denying the truth
of such facts.
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ARTICLE XIV - EMINENT DOMAIN
14.01 If the Premises or such substantial part thereof as reasonably renders the
remainder unfit for the intended uses shall be taken by any competent authority
under the power of eminent domain or be acquired for any public or quasi-public
use or purpose, the Term of this Lease shall cease and terminate upon the date
when the possession of said Premises or the part thereof so taken shall be
required for such use or purpose and without apportionment of the award and
Tenant shall have no claim against Landlord for the value of any unexpired Term
of this Lease. If any condemnation proceeding shall be instituted in which it is
sought to take any part of the Building or to change the grade of any street or
alley adjacent to the Building and such taking or change of grade makes it
necessary or desirable to substantially remodel the Building to conform to the
changed grade, Landlord shall have the right to terminate this Lease after
having given written notice of termination to Tenant not less than 180 days
prior to the date of termination designated in the notice. In either of said
events, rent at the then current rate shall be apportioned as of the date of the
termination. No money or other consideration shall be payable by the Landlord to
the Tenant for the right of termination and the Tenant shall have no right to
share in the condemnation award or in any judgment for damages caused by the
taking or the change of grade. Nothing in this paragraph shall preclude an award
being made to Tenant for loss of business or depreciation to and cost of removal
of equipment or fixtures. Tenant has the right to apply for a separate award
providing it does not interfere with Landlord's rights, unless less time is
afforded by condemning authority.
ARTICLE XV - LANDLORD'S OR TENANT'S INABILITY TO PERFORM
15.01 If, by reason of inability to obtain and utilize labor, materials or
supplies; circumstances directly or indirectly the result of a state of war or
national or local emergency; any laws, rules, orders, regulations or
requirements of any governmental authority now or hereafter in force; strikes or
riots; accident in, damage to or the making of repairs, replacements, or
improvements to the Premises or any of the equipment thereof; or by reason of
any other cause beyond the reasonable control of Landlord or Tenant, Landlord or
Tenant shall be unable to perform or shall be delayed in the performance of any
covenant to supply any service, such nonperformance or delay in performance
shall not render Landlord or Tenant liable to the other in any respect for
damages to either person or property, constitute a total or partial eviction,
constructive or otherwise, work an abatement of rent or relieve Tenant or
Landlord from the fulfillment of any covenant or agreement contained in this
Lease.
ARTICLE XVI - BANKRUPTCY OR INSOLVENCY
16.01 It is understood and agreed that the following shall apply in the event of
the bankruptcy or insolvency of Tenant:
(A) If a petition is filed by, or an order for relief is entered against
Tenant under Chapter 7 of the Bankruptcy Code and the trustee of
Tenant elects to assume this Lease for the purpose of assigning it,
such election or assignment, or both, may be made only if all of the
terms and conditions of subparagraph (B) and (D) below are satisfied.
To be effective, an election to assume
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this Lease must be in writing and addressed to landlord, and in
Landlord's business judgment, all of the conditions hereinafter
stated, which Landlord and Tenant acknowledge to be commercially
reasonable, must have been satisfied. If the trustee fails so to elect
to assume this Lease within sixty (60) days after such filing or
order, this Lease will be deemed to have been rejected, and Landlord
shall then immediately be entitled to possession of the Premises
without further obligation to Tenant or the trustee, and this Lease
shall be terminated. Landlord's right to be compensated for damages in
the bankruptcy proceeding, however, shall survive such termination.
(B) If Tenant files a petition for reorganization under Chapters 11 or 13
of the Bankruptcy Code, or if a proceeding filed by or against Tenant
under any other chapter of the Bankruptcy Code is converted to a
chapter 11 or 13 proceeding and Tenant's trustee or Tenant as
debtor-in-possession fails to assume this Lease within sixty (60) days
from the date of the filing of such petition or conversion, then the
trustee or the debtor-in-possession shall be deemed to have rejected
this Lease. To be effective, any election to assume this Lease must be
in writing addressed to Landlord and, in Landlord's business judgment,
all of the following conditions, which Landlord and Tenant acknowledge
to be commercially reasonable, must have been satisfied:
(1) The trustee or the debtor-in-possession has cured or has provided
to Landlord adequate assurance, as defined in this subparagraph
(B), that:
(a) It will cure all monetary defaults under this Lease within
ten (10) days from the date of assumption; and
(b) It will cure all nonmonetary defaults under this lease
within thirty (30) days from the date of assumption.
(2) The trustee or the debtor-in-possession has compensated Landlord,
or has provided Landlord with adequate assurance, as hereinafter
defined, that within ten (10) days from the date of assumption
Landlord will be compensated for any pecuniary loss it has
incurred arising from the default of Tenant, the trustee, or the
debtor-in-possession, as recited in Landlord's written statement
of pecuniary loss sent to the trustee or debtor-in-possession.
(3) The trustee or the debtor-in-possession has provided Landlord
with adequate assurance of the future performance of each of
Tenant's obligations under this Lease; provided, however, that:
(a) From and after the date of assumption of this Lease, it
shall pay all monetary obligations, including the Base and
Additional Rents payable under this Lease in advance in
equal monthly installments on each date that such Rents are
payable.
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(b) It shall also deposit with Landlord, as security for the
timely payment of Rent, an amount equal to three months'
Base Rent and other monetary obligations payable under this
Lease;
(c) If not otherwise required by the terms of this Lease, it
shall also pay in advance, on each day that any installment
of Base Rent is payable, one-twelfth of Tenant's annual tax,
escalation and other obligations under this Lease; and
(d) The obligations imposed upon the trustee or the
debtor-in-possession will continue for Tenant after the
completion of bankruptcy proceedings.
(4) For purposes of this subparagraph (B), "adequate assurance" means
that:
(a) Landlord determines that the Tenant, trustee or the
debtor-in-possession has, and will continue to have,
sufficient unencumbered assets, after the payment of all
secured obligations and administrative expenses, to assure
Landlord that the trustee or the debtor-in-possession will
have sufficient funds timely to fulfill Tenant's obligations
under this Lease and to keep the Premises properly staffed
with sufficient employees to conduct a fully operational,
actively promoted business in the Premises; and
(b) An order shall have been entered segregating sufficient cash
payable to Landlord and/or a valid and perfected first lien
and security interest shall have been granted in property of
Tenant, trustee, or debtor-in-possession which is acceptable
in value and kind to Landlord, to secure to Landlord the
obligation of the Tenant, trustee or debtor-in-possession to
cure all monetary and nonmonetary defaults under this Lease
within the time periods set forth above.
(C) In the event this Lease is assumed by a trustee appointed for Tenant
or by Tenant as debtor-in-possession under the provisions of
subparagraph (B) above and, thereafter, Tenant is either adjudicated a
bankrupt or files a subsequent petition for arrangement under Chapter
11 of the Bankruptcy code, then Landlord may, as its option, terminate
this Lease and all the tenant's rights under it, by giving written
notice of Landlord's election so to terminate.
(D) If the trustee or the debtor-in-possession has assumed this Lease,
pursuant to subparagraph (A) or (B) above, to assign or to elect to
assign Tenant's interest under this Lease or the estate created by
that interest to any other person, such interest or estate may be
assigned only if the intended assignee has provided adequate assurance
of future performance, as defined in this subparagraph (D), of all of
the terms, covenants, and conditions of this Lease.
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For the purposes of this subparagraph (D) "adequate assurance of
future performance" means that Landlord has ascertained that each of
the following conditions has been satisfied.
(1) The assignee has submitted a current financial statement,
audited by a certified public accountant, which shows a net
worth and working capital in amounts determined by Landlord
to be sufficient to assure the future performance by the
assignee of the tenant's obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain
guarantees, in form and substance satisfactory to Landlord,
from one or more persons who satisfy Landlord's standards of
creditworthiness; and
(3) Landlord or the assignee has obtained consents or waivers
from any third parties which may be required under any
lease, mortgage, financing arrangement, or other agreement
by which Landlord is bound, to enable Landlord to permit
such assignment.
(E) When, pursuant to the Bankruptcy Code, the trustee or the
debtor-in-possession is obligated to pay reasonable use and occupancy
charges for the use of all or part of the Premises, it is agreed that
such charges will not be less than the Base Rent as defined in this
Lease, plus Additional Rent and other monetary obligations of Tenant
included herein.
(F) Neither Tenant's interest in this Lease nor any estate of Tenant
created in this Lease shall pass to any trustee, receiver, assignee
for the benefit of creditors, or any other person or entity, nor
otherwise by operation of law under the laws of any state having
jurisdiction of the person or property of Tenant, unless Landlord
consents in writing to such transfer. Landlord's acceptance of rent or
any other payments from any trustee, receiver, assignee, person, or
other entity will not be deemed to have waived, or waive, either the
requirement of Landlord's consent or Landlord's right to terminate
this Lease for any transfer of Tenant's interest under this Lease
without such consent.
ARTICLE XVII - COMPLETION AND ACCEPTANCE OF PREMISES, MAINTENANCE AND REPAIR
17.01 Completion and Acceptance. Landlord will complete the Premises in
accordance with the Plans and Specifications attached hereto as Exhibit "B",
"B-1," "B-2." Tenant acknowledges that it will examine the Premises before
taking possession hereunder. Unless Tenant furnishes Landlord with a notice in
writing specifying any such defect in the construction of the Premises within
thirty (30) days after taking possession, such taking of possession shall be
conclusive evidence as against Tenant that
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at the time thereof the Premises were in good order and satisfactory condition.
17.02 Maintenance and Repair by Tenant. Tenant shall be responsible for all
maintenance and repair to the Premises of whatsoever kind or nature that is not
hereafter set forth specifically as the obligation of Landlord. Tenant shall
take good care of the Premises and fixtures, and keep them in good repair and
free from filth, overloading, danger of fire or any pest or nuisance, and repair
any damage or breakage done by Tenant or Tenant's agents, employees or invitees,
including damage done to the Building by Tenant's equipment or installations.
Tenant shall be responsible for the repair and replacement of all glass and
plate glass on the Premises. Tenant shall furnish and pay for the upkeep,
maintenance, repair and periodic servicing of the heating, ventilation and air
conditioning system servicing the Premises. At the end of the Lease Term, Tenant
shall quit and surrender the Premises broom clean in as good condition as when
received by Tenant, normal wear and tear excepted. In the event Tenant fails to
maintain the Premises as provided for herein Landlord shall have the right, but
not the obligation, to perform such maintenance as is required of Tenant in
which event Tenant shall promptly reimburse Landlord for its costs in providing
such maintenance or repairs together with a ten percent (10%) charge for
Landlord's overhead.
17.03 Maintenance and Repair by Landlord. Provided Tenant is not in default
Landlord shall be responsible for the maintenance, repair or replacement of the
roof and structural portions of the building and parking lot on the Premises,
provided that any repairs or replacements thereof shall not be necessitated by
the negligence of Tenant. In the event of a transfer by Landlord of its interest
in the Premises to a party not owned by or affiliated with Prudential Insurance
Co. and if Landlord fails to perform its obligations pursuant to this section
17.03, then after notice and opportunity to cure Tenant shall have the right,
but not the obligation to perform same and to set off the reasonable cost
thereof against future installments of rent.
[ARTICLE XVIII - ILLEGIBLE]
ARTICLE XIX - ALTERATIONS AND ADDITIONS, MECHANICS' LIENS
19.01 Alterations and Additions. Except as provided for in paragraph 19.01,
Tenant shall not make any alterations, improvements, or additions to the
Premises without the prior written consent and approval of plans therefor by
Landlord. Such consent and approval not to be unreasonably withheld.
Alterations, improvements or additions so made upon the Premises, except
moveable furniture and equipment placed in the Premises at the expense of
Tenant, shall be and become the property of Landlord and shall remain upon and
be surrendered with the Premises as part thereof at the termination of this
Lease, without
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disturbance, molestation, injury or damage, unless Landlord elects to require
Tenant to remove such alterations or improvements from the Premises. In the
event damage to the Premises or the Building shall be caused by moving said
furniture and equipment in or out of the Premises, said damage shall be promptly
repaired at the cost of Tenant. Tenant shall be permitted to make nonstructural
interior alterations not exceeding $10,000.00 without consent of Landlord.
19.02 Mechanic's Liens. Tenant shall not cause nor permit any mechanic's liens
or other liens to be placed upon the Premises or the Building and in case of the
filing of any such lien or claim therefor, Tenant shall promptly discharge same;
provided, however, that Tenant shall have the right to contest the validity or
amount of any such lien upon its prior posting of security with Landlord, which
security, in Landlord's sole reasonable judgment, must be adequate to pay and
discharge any such lien in full plus Landlord's reasonable estimate of its legal
fees. Tenant agrees to pay all reasonable legal fees and other costs incurred by
Landlord because of any mechanic's or other liens attributable to Tenant being
placed upon the Premises or the Building.
ARTICLE XX - INSURANCE
20.01 Public Liability, Property Damage Insurance. Tenant covenants and agrees
to maintain on the Premises at all times during the Term of this Lease, or any
extension or renewal thereof, a policy or policies of comprehensive public
liability and property damage insurance, naming Landlord and its Managing Agent
as additional insured, with not less than $1,000,000.00 combined single limit
for both bodily injury and property damage.
20.02 Fire and Extended Coverage Insurance. Landlord shall throughout the Term
of this Lease or any extension or renewal thereof maintain all risk fire and
extended coverage insurance on the Building and other improvements located on
the Premises (excluding Tenant's contents) in such amounts and with such
deductibles as Landlord shall reasonably determine. If the amount of the
premises exceed Seven Thousand Nine Hundred Twenty Nine Dollars ($7,929.00) per
annum ($.07 per sq. ft.) Tenant, as Additional Rent, shall reimburse Landlord in
the amount of the excess on an annual basis within ten days, after receipt of
Landlord's insurance [illegible] Landlord represents that current premium (1992)
does not exceed $7,929.00.
20.03 Indemnification of Landlord. Except as set forth in Section 20.04 below,
Tenant shall indemnify and defend Landlord, its employees and agents and save it
harmless from and against any and all loss (including loss of rents payable by
Tenant) and against all claims, actions, damages, liability and expenses in
connection with loss of life, bodily and personal injury or damage arising from
any occurrence in, upon or at the Premises or any part thereof, or occasioned
wholly or in part by any act or omission of Tenant, its agents, contractors,
employees, servants, licensees, concessionaires or invitees or by anyone
permitted to be on the Premises by Tenant. Tenant assumes all risks of and
Landlord, its employees and agents shall not be liable for injury to person or
damage to property resulting from the condition of the Premises or from the
bursting or leaking of any and all pipes, utility lines, connections, or air
conditioning or heating equipment in, on or about the Premises, or from water,
rain or snow which may leak into, issue or flow from any part of the Building.
Tenant agrees, at all times, to indemnify and hold Landlord harmless against all
actions, claims, demands, costs, damages or expenses of any kind which may be
brought or made against the Landlord or which the Landlord may pay or incur by
reason of Tenant's occupancy of the Premises or its negligent
-14-
performance of or failure to perform any of its obligations 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 indemnify, defend
and hold Landlord harmless and shall pay all costs, expenses, and reasonable
attorneys' fees incurred or paid by the Landlord in connection with such
litigation.
20.4 [See Rider]
ARTICLE XXI - USE OF EXTERIOR AREAS
21.01 Tenant shall not use any part of the Building exterior for outside
storage. No trash, rates, pallets, or refuse shall be permitted anywhere on the
outside of the Building by Tenant except in enclosed metal containers to be
located as directed by Landlord. Tenant shall not park any trucks or trailers,
loaded or empty, except in front of the docks on the concrete apron provided for
such purposes.
ARTICLE XXII - DEFAULT AND REMEDIES
22.01 In the event:
(a) Tenant shall at any time fail to pay any item of Rent when due; or
(b) Tenant shall fail to keep, perform or observe any other covenant,
agreement, condition or undertaking hereunder;
(c) The Premises shall be vacated for any period for which Tenant has not
paid its Rent.
If Tenant shall default under this Section and if such default cannot with due
diligence be cured within a period of thirty (30) days after written notice has
been mailed by Landlord to Tenant (except for a default under Section 22.01 (a)
hereof, which default shall be cured within ten (10) days after written notice),
and Tenant promptly commences to eliminate the causes of such default, then
Landlord shall not have the right to declare said term ended by reason of such
default or to repossess without terminating the Lease so long as Tenant is
proceeding diligently and with reasonable dispatch to take all steps and do all
work required to cure such default, and does so cure such default. If said
default is not timely cured then Landlord shall have the right, without further
notice to or demand, to re-enter and take exclusive possession of the Premises,
with legal process, and to refuse to allow Tenant to enter the same or have
possession thereof; to change the locks on the doors to the Premises; take
possession of any furniture or other property in or upon the Premises (Tenant
hereby waiving the benefit of all exemptions by law), sell the same at public or
private sale without notice and apply the proceeds thereof to the costs of sale,
payment of damages and payment of the rent due under this Lease; all without
being liable to Tenant for any damages or to any prosecution therefor; and
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(i) As agent of Tenant to relet the Premises or any part thereof for the
balance of the Lease Term or for a shorter or longer term and receive the
rents therefor, applying them first to the payment of the expenses of such
reletting and, second, to the payment of damages suffered to the Premises
and rents due and to become due under this Lease. Tenant remaining liable
for and hereby agreeing to pay Landlord any deficiency; or
(ii) To cancel and terminate the remaining Lease Term, re-enter and take
possession of the Premises free of this Lease and thereafter this Lease
shall be null and void and the rents in such case shall be apportioned and
paid on and up to the date of such entry. Thereafter both parties shall be
released and relieved from and of any and all obligations thereafter to
accrue hereunder. Tenant shall be liable for all loss and damage resulting
from such breach or default;
(iii) To treat such default as an anticipatory breach of this Lease and, as
liquidated damages for such default, be entitled to the difference, if
any, between the sum which, at the time of such termination for
anticipatory breach represents the then present worth (computed at seven
percent per year) of the excess aggregate Rents and Additional Rents
payable hereunder which would have accrued over the balance of the Term
(including extensions) had such term not been prematurely terminated, over
the aggregate market rental value of the Premises over the Term (including
extensions) which the Lease would have run had it not been so terminated.
22.02 Remedies Cumulative. All rights and remedies provided in this Lease for
Landlord's protection shall be cumulative and in addition to any other rights
and remedies provided by law. Landlord shall be entitled to recover from Tenant
its reasonable attorneys' fees incurred by enforcing its rights hereunder.
22.03 No Waiver. No waiver by Landlord of a breach or default by Tenant under
the terms and conditions of this Lease shall be construed to be a waiver of any
subsequent breach or default nor of any other term or condition of this Lease,
and the failure of Landlord to assert any breach or to declare a default by
Tenant shall not be construed to constitute a waiver thereof so long as such
breach or default continues unremedied.
22.04 No Reinstatement. No receipt of money by Landlord from Tenant after the
expiration or termination of this Lease, or after the commencement of any suit,
or after final judgment for possession of the Premises, shall reinstate,
continue or extent the Term of this Lease nor affect any such notice, demand or
suit.
ARTICLE XXIII - DEFINITION OF LANDLORD
23.01 The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners at the time in question of the fee or the
Premises, and in the event of any transfer or transfers of the title to such
fee, Landlord herein named (and in case of any subsequent transfers or
conveyances, the then-grantor) shall be automatically freed and relieved, from
and after the date of such transfer or conveyance, of all liability as
-16-
respects the performance of any covenants or obligations on the part of Landlord
contained in this Lease thereafter to be performed; provided that any funds in
the hands of such Landlord or the then-grantor at the time of such transfer, in
which Tenant has an interest, shall be turned over to the grantee, and any
amount then due and payable to Tenant by Landlord or the then-grantor under any
provision of this Lease, shall be paid to Tenant. Landlord shall supply Tenant
with written evidence from grantee that funds have been received.
ARTICLE XXIV - NOTICES
24.01 Except as otherwise herein provided, whenever by the terms of this Lease
notice shall or may be given either to Landlord or to Tenant, such notice shall
be in writing and shall be deemed to have been properly served if hand-delivered
or sent by facsimile, by overnight or by certified mail, return receipt
requested, postage prepaid, if to Landlord, at the place where rent is payable,
and if to Tenant, at the Premises. The date of such hand-delivery, mailing or
facsimile transmission, with hard copy to follow, will be deemed the date of
service.
ARTICLE XXV - SECURITY DEPOSIT
25.01 Tenant herewith deposits with Landlord the sum set forth in Section
1.01(I) as security for the performance by Tenant of every covenant and
condition of this Lease. Said deposit may be commingled with other funds of
Landlord and shall bear no interest. If Tenant shall default with respect to any
covenant or condition of this Lease, Landlord may apply the whole or any part of
such security deposit to the payment of any sum in default or any sum which
Landlord may be required to spend by reason of Tenant's default, in which event
Tenant shall re-deposit with Landlord, within five days of demand therefor, the
amount so applied. Landlord may, but shall not be limited to, applying the
security deposit first to any restoration and/or cleanup costs necessary over
and above normal wear and tear of the Premises. It is understood that the
security deposit is not to be considered as the last month's rent under this
Lease. Should Tenant comply with all of the covenants and conditions of this
Lease, the security deposit or any balance thereof shall be returned to Tenant
at the expiration of the Term hereof. Contemporaneously with the Security
Deposit Tenant has deposited $24,540.97, of which $14,724.54 will be balance of
Base Rent for March 1993 and $9,816.43 will be credited to Rent for April 1993,
the balance of April 1993 Base Rent ($14,724.54) will be paid April 1, 1993.
ARTICLE XXVI - MISCELLANEOUS
26.01 Persons Bound. The agreements, covenants and conditions of this Lease
shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and assigns of each of the parties hereto, except
that no assignment, encumbrance or subletting by Tenant, unless permitted by the
provisions of this Lease, shall vest any right in the assignee, encumbrancee or
subtenant of Tenant.
26.02 Partial Invalidity. If any terms, covenant, condition or provision of this
Lease or the application thereof to any person or circumstance shall, to any
extent be invalid, unenforceable or violate a party's legal rights, then such
term, covenant, condition or provision shall be
-17-
deemed to be null and void and unenforceable, however, all other provisions of
this Lease, or the application of such term or provision to persons or
circumstances other than those to which are held invalid, unenforceable or
violative of legal rights, shall not be affected thereby, and each and every
other term, condition, covenant and provision of this Lease shall be valid and
be enforced to the fullest extent permitted by law.
26.03 Captions. The headings and captions used throughout this Lease are for
convenience and reference only and shall in no way be held to explain, modify,
amplify, or aid in the interpretation, construction or meaning of any provisions
in this Lease. The words "Landlord" and "Tenant" wherever used in this Lease
shall be construed to mean plural where necessary, and the necessary grammatical
changes required to make the provisions hereof apply either to corporation,
partnerships, or individuals, men or women, shall in all cases be assumed as
though in each case fully expressed.
26.04 No Option. Submission of this instrument for examination does not
constitute a reservation of nor option for the Premises. The instrument does not
become effective as a lease or otherwise until execution and delivery by both
Landlord and Tenant.
26.05 Brokers. Tenant represents that it has dealt directly with and only with
the broker or brokers set forth at Item 1.01(K) above, and that Tenant knows of
no other broker who negotiated this Lease or is entitled to any commission in
connection herewith. Tenant agrees to indemnify, defend and hold harmless
Landlord from and against any commissions or claims by any other broker or
brokers pertaining to Tenant's having entered into this Lease. Landlord agrees
to pay real estate brokerage fees at Landlord's sole expense to the above named
Brokers.
26.06 Applicable Law. This Lease, its interpretation and enforcement shall be
governed by the laws of the state in which the Premises are located.
26.07 Waiver of Jury. Landlord and Tenant agree that, to the extent permitted by
law, each shall and hereby does waive trial by jury in any action, proceeding or
counterclaim brought by either against the other on any matter whatsoever
arising out of or in any way connected with this Lease.
26.08 Allocation of Rent. Landlord and Tenant agree that no portion of the Base
Rent paid by Tenant during the portion of the Term of this Lease occurring after
the expiration of any period during which such rent was abated shall be
allocated by Landlord or Tenant for income tax purposes to such rent abatement
period, nor is such rent intended by the parties to be allocable for income tax
purposes to any abatement period.
ARTICLE XXVII -ENTIRE AGREEMENT
27.01 This Lease contains the entire agreement between the parties and no
modification of this Lease shall be binding upon the parties unless evidenced by
an agreement in writing signed by the Landlord and the Tenant after the date
hereof. If there be more than one Tenant named herein, the provisions of this
Lease shall be applicable to and binding upon such tenants jointly and
severally.
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ARTICLE XXVIII -RIDER
28.01 A Rider consisting of 1 page, with paragraphs, numbered 20.04, is attached
hereto and made a part hereof.
IN WITNESS WHEREOF, the parties have signed triplicate counterparts hereof
as of the date and year hereinabove set forth.
TENANT: FACTORY CARD OUTLET OF AMERICA LTD. LANDLORD:
/s/J. Xxxxxx Xxxxx Pres THE PRUDENTIAL INSURANCE
---------------------------------- COMPANY OF AMERICA
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
VP, Asset Management
Attest /s/Xxxxx X. Xxxxxx Secretary
------------------------------
Xxxxx X. Xxxxxx its Secretary
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RIDER
ATTACHED TO AND MADE PART OF
LEASE DATED September 25, 1992
BETWEEN THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, AS LANDLORD
AND FACTORY CARD OUTLET OF AMERICA, INC., AS TENANT
20.04 Indemnification of Tenant. Landlord shall indemnify and defend Tenant, its
employees and agents and save it harmless from and against all loss and against
all claims, actions, damages, liability and expenses in connection with loss of
life, bodily and personal injury or damage arising from any occurrence in, upon
or at the Premises or any part thereof, occasioned wholly by the failure or
negligent performance by Landlord or its agents to perform any of its repair or
maintenance obligations under this Lease. In case Tenant shall, without fault on
its part, be made a party to any litigation commenced by or against Landlord,
then Landlord shall indemnify, defend and hold harmless Tenant and shall pay all
costs, expenses and reasonable attorney's fees incurred or paid by Tenant in
connection with such litigation.
Exhibits to Lease between Factory Card Outlet Of America Ltd. and Prudential
Insurance Co. of America for property at 745 Birginal, Bensenville, Illinois.
These Exhibits and the Lease to which they are attached (collectively, the
"Lease") shall be deemed one instrument. Whenever there is a conflict in
provisions between the Exhibits and the Lease, those in the Exhibits shall
prevail.
EXHIBIT A
LEGAL DESCRIPTION
Lots 4 and 5 in X'Xxxx West Industrial Plaza, a Subdivision in the NW 1/2 of
Section 11 and the SW 1/2 of Section 2, Township 40 North, Range 11 East of the
Third Principal Meridian, according to the Plat thereof recorded April 26, 1971
as Document R71-16332, and certificate of correction filed February 21, 1973 as
Document R73-9686, in DuPage County, Illinois.
EXHIBIT B
PLANS AND SPECIFICATIONS FOR TENANT IMPROVEMENTS
AND ALLOWANCE BOTH TO BE PAID BY LANDLORD
Landlord shall perform, at Landlord's sole cost and expense the following tenant
improvements in accordance with provisions of Article 17:01:
a) The carpets in the entire office shall be shampooed and vacuum cleaned.
b) The vinyl tile in the office and washroom areas shall be stripped and
waxed.
c) The walls in the office and rest room area shall be painted with Tenant's
selection of colors from Landlord's standard selection chart.
d) All mechanical, electrical, sprinkler, plumbing and door systems shall be
in good working order and repair.
e) All H.V.A.C. equipment will be in good working order and repair and will
remain in good working order during the first 12 months of the Lease,
providing Tenant performs normal maintenance during this period. Landlord
will pass through to Tenant all warranties and guarantees that are in
effect at the commencement of the Lease.
f) Ceiling tiles will be cleaned, or replaced as necessary.
g) The ceiling grid shall be cleaned or painted as necessary.
h) Rest rooms shall be cleaned and sanitized.
i) All truck and parking areas shall be repaired, seal coated and restriped.
j) See Exhibit B-1 for demolition and construction work to be performed.
k) Landlord shall provide Tenant a maximum allowance of $21,000.00 to move
existing warehouse lighting or install additional warehouse lighting
fixtures, additional carpet or additional painting in office area.
l) The work detailed above in (c) (f) and (g) will not be performed in the
north 5,000 sq.ft. of office area, unless required by Paragraph (m).
m) Tenant reserves the right to have Landlord remove the north office portion
(approximately 5,000 sq. ft.) any time during the first three years of the
lease term, or in the alternative Landlord will complete the work detailed
in (c) (f) and (g) above in the approximate 5,000 sq.ft.
EXHIBIT B-1
COMPLETION SCHEDULE & INSPECTION BY TENANT
All work listed on Exhibit B specified for warehouse and parking areas, except
item (k), shall be completed no later than 15 days after leases are executed by
both parties.
All work specified for office area shall be completed by December 1, 1992.
Tenant shall have 30 days after above stated completion dates to inspect the
work done by Landlord except for H.V.A.C. equipment, which in accordance with
item (e) of Exhibit "B" shall have a 12 month warranty by Landlord, provided
Tenant performs the routine H.V.A.C. service and maintenance. Landlord shall not
be responsible for any damage to H.V.A.C. equipment caused by Tenant or Tenant's
employee. In the event there are any deficiencies or adjustments Landlord shall
have fifteen (15) days after being notified in writing by Tenant to make the
adjustments.
TENANT ESTOPPEL CERTIFICATE
Property Name: 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
("Property")
Tenant: Factory Card Outlet of America, Ltd., an Illinois
Corporation
To: Xxxxxx Brothers Holdings, Inc. d/b/a Xxxxxx
Capital, A Division of Xxxxxx Brothers Holdings
Inc., a Delaware Corporation (Lender) and "CP
Financing Corp II and The First National Bank of
Chicago, as Trustee"
DEFINITIONS:
Lease Date: September 25, 1992
Landlord: CenterPoint Properties Corporation
Tenant: Factory Card Outlet of America, Ltd.
Security Deposit: $25,000.00
Date of Possession: October 13, 1992
Rent Commencement Date: March 13, 1992
Monthly Base Rent: $31,148.15 (Oct '94 - Sept. '97)
Annual Base Rental
Amount: $373,777.80 (Oct '94 - Sept. '97)
Monthly Deposits: None-$50,070.00 Tax Stop and $7,929.00 Insurance
Stop; otherwise, Net Lease
Term: 9 Years and 11.5 Months (Oct. 13, 1992 - Sept.
30, 2002)
Termination Date: September 30, 2002
Renewal Option(s): None
Square Footage: 113,266
Use: Office; warehouse; distribution of greeting
cards, gifts and related items.
Tenants Address For Xxxxx X. Xxxxxx
Notices: Factory Card Outlet of America, Ltd.
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Lender proposes to finance the Property and this Tenant Estoppel
Certificate is to be made and delivered in connection with that financing.
The undersigned Tenant under the above-referenced lease dated as of the
Lease Date between Landlord and Tenant ("Lease"), certifies, represents,
confirms and agrees in favor of Lender the following:
1. The above-described Lease has not been canceled, modified, assigned,
extended or amended and contains the entire agreement between Landlord
and Tenant except as follows:
2. Rent has been paid to August 31, 1995. There is no Prepaid Rent. The
amount of Security Deposit is as set forth above, which is currently
being held by Landlord.
3. Tenant took possession of the leased premises on the Date of
Possession and commenced to pay rent on the Rent Commencement Date, in
the amount of the Monthly Base Rent, each payable in advance. Our
current Annual Base Rental Amount is as set forth above, payable in
equal monthly installments subject to rent escalation. We are
currently in occupancy of the leased premises. Rent abated for the
period of Oct. 15, 1992 through March 12, 1993.
4. The Lease is for the Term set forth above and ending on the
Termination Date as set forth above and we have no Renewal Options.
5. All space and improvements covered by the Lease have been completed
and furnished to the satisfaction of Tenant, all conditions required
under the Lease have been met and Tenant has accepted and taken
possession of the leased premises on the Date of Possession as set
forth above and presently occupies the leased premises, presently
consisting of the Square Footage as set forth above.
6. As of the date set forth below the lease is (a) in full force and
effect, and (b) free from default by both Landlord and Tenant; and we
have no claims, liens, charges or credits against Landlord or offsets
against rent.
7. The undersigned has not assigned or sublet the Lease nor does the
undersigned hold the Property under assignment or sublease.
8. There are no other agreements written or oral between the undersigned
and Landlord with respect to the Lease and/or the leased premises and
building. Landlord has satisfied all commitments, arrangements or
understandings made to induce Tenant to enter into the Leases and
Landlord is not in any respect in default in the performance of the
terms and provisions of the Lease, nor is there now any fact or
condition which, with notice or lapse of time or both, would become
such a default.
9. The leased premises are currently being used for the Use set forth
above.
10. Tenant is maintaining (free of default) all insurance policies that
the Lease requires Tenant to maintain.
11. Neither Landlord nor Lender nor any of their respective successor or
assigns, has or will have any personal liability of any kind or nature
under or in connection with the Lease; and, in the event of a default
by Landlord or Lender under the Lease, Tenant shall look solely to
Landlord's or Lender's interest in the building in which the leased
premises are located.
12. Tenant is not in any respect in default under the terms and provisions
of the Lease (nor is there now any fact or condition which, with
notice or lapse or time or both, would become such a default), and
Tenant has not assigned, transferred or hypothecated its interest
under the Lease.
13. Tenant (i) does not have an option or preferential right to purchase
all or any part of the leased premises or all or any part of the
building of which the leased premises are a part; and (ii) does not
have any right, title or interest with respect to the leased premises
other than as lessee under the Lease.
14. We understand that Lender is planning to finance the Property on which
the leased premises is located to Landlord and we agree to make all
payments required under the Lease to Lender upon our receipt of
written notice from Landlord and Lender. Further, upon receipt of such
written notice, we will thereafter look to Lender and not Landlord as
the landlord under the Lease. We agree to give all notices required to
be given by us to Landlord under the Lease to Lender upon our receipt
of said written notice.
15. The statements contained herein may be relied upon by Lender and by
any prospective purchaser or lender of the Property.
16. If Tenant is a Corporation, the undersigned is a duly appointed
officer of the corporation signing this Agreement and is the incumbent
in the office indicated under his or her name. If Tenant is a
partnership or joint venture, the undersigned is a duly appointed
partner or officer of the partnership or joint venture signing this
certificate. In any event, the undersigned individual is duly
authorized to execute this Agreement on behalf of Tenant.
17. Tenant (a) executes this certificate with the understanding that
Lender is contemplating financing the above mentioned Property and
that if Lender finances the Property, Lender will do so in material
reliance on this certificate; and (b) agrees that the certifications
and representations made herein shall survive such acquisition.
18. The current address to which all notices to Tenant as required under
the Lease should be sent in the Tenant's Address for Notices.
19. Lender's rights hereunder shall inure to its successors and assigns.
IN WITNESS WHEREOF, Tenant has executed this estoppel certificate as of
this 6th day of September, 1995.
Factory Card Outlet of America, Ltd., an
Illinois Corporation
By: /s/???
-----------------------------
Its: Executive V.P., Chief Administrative Officer
