Exhibit 10.9
EXHIBIT A
TO SHARE PURCHASE
AGREEMENT
AMENDMENT TO LEASE
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THIS AMENDMENT TO LEASE, dated as of October 1, 1987, by and between
Chicago Title and Trust Company, not individually but as Trustee under a Trust
Agreement dated February 1, 1977, and known as Trust No. 1069185 ("Lessor"), and
AGI Incorporated, an Illinois corporation ("Lessee"),
W I T N E S S E T H:
WHEREAS, Lessor and Lessee are parties to a certain lease dated May
29, 1985 demising the real estate commonly known as 0000 Xxxx Xxxxxx, Xxxxxxx
Xxxx, Xxxxxxxx, including the industrial building containing 256,629 square
feet located thereon ("Lease"); and
WHEREAS, Lessor and Lessee mutually desire to amend the Lease in
certain respects,
NOW, THEREFORE, the Lease is hereby amended as follows:
1. Term. The initial term of the Lease set forth in paragraph 2
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thereof is extended for four months through September 30, 1992.
2. Renewal Option. Lessor hereby grants Lessee options to renew the
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Lease for four consecutive periods of five years each; provided, however, that
so long as Chicago Title and Trust Company, as Trustee under Trust No. 1069185
remains the Lessor, and the beneficial interest of such trust has not been
transferred or assigned, in whole or in part, other than for collateral
purposes, Lessee's option to renew the Lease for the five year period commencing
on October 1, 1992 shall be expressly conditioned upon the audited financial
statements of Lessee as of December 31, 1991 evidencing a net worth and a debt
to equity ratio equal to or better than set forth in its audited financial
statements for the year ending December 31, 1984, and similarly, its options to
renew the Lease for each of the three additional renewal periods shall be
expressly conditioned upon the audited financial statements of Lessee as of
December 31, 1996, December 31, 2001, and December 31, 2006, respectively,
evidencing a net worth and a debt to equity ratio equal to or better than set
forth in such statements for the year ending December 31, 1984. Lessee shall
exercise any such option by giving Lessor not less than 180 days' notice of its
election to do so prior to the termination of the original term or renewal term,
as the case may be. In the event Lessee shall fail to exercise any such option,
any subsequent option or options shall automatically be deemed void.
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3. Rent During Extended Initial Term and Renewal Terms. The
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annual Net Rent for the four months extension of the initial term shall be the
same as the existing annual Net Rent for the initial term. The annual Net rent
for each renewal term shall be the "fair market rental value" of the Premises as
determined substantially in accordance with the procedures set forth in
paragraph 23 of the Lease for the determination of "fair market value," less a
6.1% discount, computed on a monthly basis. Such net Rent shall be determined
prior to the commencement of the first and any subsequent renewal term.
4. Right of First Refusal. Lessor shall promptly notify Lessee in
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writing if Lessor becomes aware of the fact that a third party may be interested
in purchasing the Premises. Lessor shall promptly give Lessee written notice of,
and furnish Lessee with all terms and conditions of, any actual offer to
purchase the Premises which Lessor may receive and desire to accept. Lessee
shall have 30 days after notice of such actual offer within which to determine
whether it desires to purchase the Premises on substantially the same terms and
conditions, the Lessor hereby granting to the Lessee the first right to do so;
provided, however, that such 30 day period shall be reduced by the number of
days, if any, but not in excess of 15, that the Lessor had, prior to giving
Lessee written notice of such actual offer, given Lessee written notice of the
offeror's interest in purchasing
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the Premises as hereinabove provided. Lessee shall exercise such right by
giving Lessor written notice of its intent to do so prior to the end of the
foregoing 15 to 30 day period as the case may be. In the event Lessee exercises
such option, the transaction shall be closed substantially in accordance with
the terms and conditions of the actual offer received by Lessor; provided,
however, that in no event shall the Lessee be required to close the transaction
in less than 90 days from the date of the exercise of its option, and Lessee
shall have the right to substitute cash equivalent to the fair market value of
any non cash consideration included in the actual offer received by the Lessor.
5. Parking Facilities. The words "(in common with others)" in lines
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seven and eight of paragraph 1 of the Lease are deleted.
6. Real Estate Taxes. Paragraph 4(a) of the Lease is "amended by
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adding at the end thereof the following sentence: "The real estate taxes for the
calendar year in which the Lease expires by its terms shall be equitably
prorated between Lessor and Lessee."
7. Liens. Paragraph 9 of the Lease is amended by adding the
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following sentence: "Notwithstanding the foregoing, Lessee shall have the right
to contest any liens or claims of lien provided Lessee deposits with Lessor
reasonable security
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to protect the Lessor and the Premises against such lien and any penalties and
interest related thereto."
8. Damage Or Destruction. Effective June 1, 1992, the provisions of
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paragraph 10 of the Lease are amended, and to the extent of any inconsistency
superseded, by the following: "(i) Lessee shall have the right to terminate this
Lease as of the date of any fire or other casualty if it can reasonably be
estimated that the time to repair will extend beyond 180 days, or if completion,
once any repairs have commenced, actually extends beyond 180 days; (ii) the
second sentence of the second paragraph is amended to read as follows: in the
event such damage shall occur during the last two years of any renewal term,
either Lessor or Lessee may elect to terminate this Lease upon giving written
notice to the other within 45 days of the casualty; provided, however, that if
the Lessor shall elect to terminate during the first two renewal terms, the
Lessee may void such termination by giving Lessor written notice within 30 days
thereafter that it has elected to exercise its option to renew this Lease for
the next succeeding renewal term; (iii) to the extent that rent insurance may be
in effect pursuant to paragraph 5(b)(iv) of the Lease, Net Rent shall equitably
xxxxx until the Premises are fully repaired; and (iv) the provisions of the last
paragraph of paragraph 10 of the Lease shall relate solely to the mortgage of
record on the date of
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this Amendment to Lease and not to any subsequent mortgage of the Premises."
9. Alterations. The Lessor shall not unreasonably withhold its
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consent to any alterations and improvements which may be requested by the Lessee
pursuant to paragraph 11 of the Lease.
10. Assignment of Lease. The Lessor's consent shall not be required in
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connection with an assignment of this Lease by reason of a merger, consolidation
or sale of substantially all of Lessee's assets, provided the surviving
corporation has a net worth equal to or greater than that of the Lessee
immediately prior thereto. Effective June 1, 1992, the Lessor agrees not to
unreasonably withhold its consent to any requested assignment of the Lease under
paragraph 14 thereof, and the Lessee shall be permitted to sublet all, as well
as portions, of the Premises.
11. Default of Lessee. The second full paragraph of paragraph 15 of
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the Lease is hereby deleted and the following substituted therefor: "Upon and
after entry into possession without terminating this Lease, Lessor may relet all
or any part of the Premises for such reasonable rent and upon such other
reasonable terms and conditions as Lessor shall determine. For the purpose of
reletting, Lessor may reasonably decorate and make reasonable repairs,
alterations
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and additions in or to the Premises. In the event the rent received by the
Lessor less the cost of such decorations, repairs, alterations and additions, is
less than the rent due hereunder, Lessee shall pay the difference as and when
due."
12. Eminent Domain. Paragraph 16 of the Lease is amended by deleting
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the last paragraph thereof and by substituting for the words "more than 50% of
the floor area of the improvements in the Demised Premises" in lines one and two
of subparagraph (b) the words "sufficient floor area of the improvements to make
it impractical to operate Lessee's business."
13. Non-Disturbance Agreement. Paragraph 17 of the Lease is amended
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by the deletion of the appointment of an agent for the Lessee. In addition,
Lessor agrees to exert its best efforts to obtain from the existing mortgagee an
agreement to the effect that it will recognize the Lessee's rights under this
Lease so long as Lessee is not in default.
14. Lessee's Option to Purchase. Paragraph 23 of the Lease is amended
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as follows: (i) Lessee's option to purchase shall be in effect commencing on the
third anniversary of the date of this Amendment to Lease and thereafter
throughout the initial term, as extended, and any renewal term of the Lease, not
simply during the final 60 days thereof; (ii) "90" shall be substituted for
"180" in sub-
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paragraph 23 (a)(i) of the Lease, and such paragraph shall be further amended in
that the purchase price shall be the greater of (a) the scheduled principal
balance of the mortgage now of record at the time of the closing of the sale
plus any prepayment penalty then required to be paid with respect thereto if the
purchase occurs prior to the expiration of the initial term, or the scheduled
principal balance of such mortgage as of the third anniversary of this Amendment
to Lease plus any prepayment penalty which would have been required to have been
paid with respect thereto if it had been paid in full on such third anniversary,
in the event purchase occurs during any renewal term of this Lease, or (b) the
fair market value of the Premises, reduced by the unamortized cost at closing of
the sale, calculated in accordance with generally accepted accounting principles
as though Lessee were the owner of the building and other improvements, of any
capital improvements to the Premises made by Lessee after the date of this
Amendment to Lease with the prior written approval of the Lessor, unless such
capital improvements were made solely for the benefit of Lessee's business and
do not enhance the value of the Premises themselves, Lessor shall not
unreasonably withhold its consent to any capital improvements which Lessee may
desire to make. (iii) subparagraph 23(a)(ii) of the Lease is amended by adding
"In the event two of the three appraisers shall agree upon a value, such value
shall be the fair market value. If no two appraisers shall agree, the fair
market value shall be
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deemed to be the average of the three appraisals; (iv) subparagraph 23(a) (iii)
of the Lease is deleted; (v) subparagraph 23(c) of the Lease is amended to
provide that the $150,000 deposit shall be made to a joint order escrow at
Chicago Title and Trust Company; and (vi) paragraph 23(c) of the Lease is
amended to provide that the tile insurance policy in the amount of the purchase
price shall be paid for by Lessor and that it shall include extended coverage
insurance over the general exceptions; that a current ALTA plat of survey shall
be furnished by the Lessor showing all improvements to be located within the lot
lines and no encroachments from adjacent property; and Lessor's beneficiary
shall deliver to the Lessee at the closing a proper Warranty Xxxx of Sale
covering all personal property on the Premises owned by such beneficiary.
15. Arbitration. Paragraph 25 of the Lease should be renumbered
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"24". The provision is amended by adding "in the event no two arbitrators can
agree, either party may commence litigation.
16. Access to Premises. Lessor shall give Lessee reasonable notice
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of any proposed entry into the Premises, emergency situations expected. The
purpose of any such access should be reasonable.
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17. Attorney's Fees. Paragraph 36 of the Lease is amended by the
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addition of the following paragraph:
"In case Lessee, its agents or employees or any of them shall be made
a party to any litigation commenced by or against Lessor or its beneficiaries,
and Lessee, its agents or employees are not found to be at fault, then Lessor
shall pay all costs, expenses and reasonable attorneys' fees incurred or paid by
Lessee, its agents and employees, in connection with such litigation. Lessor
shall also pay all costs, expenses and reasonable attorneys' fees that may be
incurred or paid by Lessee in enforcing the covenants and agreements of this
Lease."
18. Security Deposit. The Security Deposit which has been deposited
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with Lessor pursuant to paragraph 21 of the Lease is confirmed to be in the
amount of $339,508.80. Notwithstanding the provisions of paragraph 21 of the
Lease, the Security Deposit shall, during any renewal term, earn interest for
the benefit of the Lessee at a rate equal to the Prime Rate from time to time in
effect at the Continental Illinois National Bank and Trust Company of Chicago,
payable at least once in every lease year. The Security Deposit, with any
accrued and unpaid interest thereon, may be applied by the Lessee toward the
payment of Net Rent and any other payments due under the Lease (i) during the
twelve month period prior to its ascertained termination date, and (ii) in
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the event Lessor's beneficiary or any successor thereto shall, voluntarily or
involuntarily, come under the jurisdiction of the Bankruptcy courts.
19. Delinquent Rent. Lessee acknowledges that Lessor may be liable
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to pay a 4% penalty to its existing mortgagee in the event its monthly mortgage
payment is not received by the mortgagee on or before the fifteenth day of any
month, and that Lessor utilizes the rent received from Lessee to make such
payment. Accordingly, and notwithstanding the grace period provided for in
paragraph 15 of the Lease, Lessee agrees to reimburse Lessor for any such
penalty which may be incurred by Lessor if such penalty results from the
inability of Lessor to make its mortgage payment on or before the fifteenth day
of any month solely by reason of a delay by Lessee in making any rental payment
due from it under the Lease.
20. Subordination to Mortgage. Lessee acknowledges that the Lease,
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as amended by this Amendment To Lease, is subject and subordinate to the terms
and conditions of Lessor's existing mortgage to The Mutual Benefit Life
Insurance Company.
21. Continuing Effect. Except as otherwise specifically provided
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herein, all terms and conditions of the Lease remain in full force and effect.
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It is expressly understood and agreed that this Lease is executed by
the undersigned Trustee, not personally, but solely as Trustee under the terms
of that certain agreement dated the 1st day of February, 1997, creating Trust
No. 1069185; the covenants, undertakings, representations and agreements herein
made are made and intended not as personal covenants, undertakings,
representations and agreements of the Trustee or its beneficiaries,
individually, or for the purpose of binding them personally, but this instrument
is executed and delivered by Chicago Title and Trust Company as trustee, solely
in the exercise of the powers conferred upon it as such Trustee under said
agreement and no personal liability or personal responsibility is assumed by,
nor shall at any time be asserted or enforced against the Chicago Title and
Trust Company as trustee or its beneficiaries, on account hereof, or on account
of any covenant, undertaking, representation, warranty or agreement herein
contained, either expressed or implied, all such personal liability, if any,
being hereby expressly waived and released by the parties hereto, and by all
persons claiming by or through or under said parties.
IN WITNESS WHEREOF, said Chicago Title and Trust Company has caused
its name to be signed to these presents by a ___________________________________
and its corporate seal to be hereunto affixed and attested by
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its ______________________________________________________,
the day and year first above written.
LESSOR: CHICAGO TITLE AND TRUST COMPANY, not
individually, but as Trustee under Trust
Agreement dated February 1, 1977, and known
as Trust No. 1069185
By ______________________________________
Its______________________________________
ATTEST:
______________________________
Its __________________________
LESSEE: AGI INCORPORATED, an Illinois corporation
By _____________________________________
Its President
ATTEST:
_______________________________
Its ___________________________
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STATE OF ILLINOIS )
)SS
COUNTY OF XXXX )
I, _______________________, a Notary Public, in and for said County in
the State aforesaid, DO HEREBY CERTIFY that ___________________________,
personally known to me to be the _______________________ of CHICAGO TITLE AND
TRUST COMPANY, a corporation of the State of Illinois, and __________________
personally known to me to be the ___________________ Secretary of said
corporation, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument appeared before me this day in person and
severally acknowledged that they signed and delivered the said instrument as
their own free and voluntary acts and as the free and voluntary act of said
corporation for the uses and purposes therein set forth, and the said
___________ Secretary did also then and there acknowledge that he as custodian
of the corporate seal of said corporation, did affix the said corporate seal of
the said corporation to said instrument as his own free and voluntary act and as
the free and voluntary act of said corporation for the uses and purposes therein
set forth.
GIVEN under my hand a notarial seal this _________ day of __________,
1987.
__________________________
Notary Public
STATE OF ILLINOIS )
)SS
COUNTY OF XXXX )
I, _______________________, a Notary Public, in and for said County in
the State aforesaid, DO HEREBY CERTIFY that ___________________________,
personally known to me to be the _______________________ of AGI INCORPORATED, a
corporation of the State of Illinois, and __________________ personally known to
me to be the Assistant Secretary of said corporation, and personally known to me
to be the same persons whose names are subscribed to the foregoing instrument
appeared before me this day in person and severally acknowledged that they
signed and delivered the said instrument as their own free and voluntary acts
and as the free and voluntary act of said corporation for the uses and purposes
therein set forth, and the said ___________ Secretary did also then and there
acknowledge that he as custodian of the corporate seal of said corporation, did
affix the said corporate seal of the said corporation to said instrument as his
own free and voluntary act and as the free and voluntary act of said corporation
for the uses and purposes therein set forth.
GIVEN under my hand a notarial seal this _________ day of __________,
1987.
__________________________
Notary Public
