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EXHIBIT 10.4
THE MERCHANDISE MART
THIS LEASE made on April 1, 1996 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 attached on Exhibit "A"
which is attached hereto and made a part hereof, commonly described as Room(s)
351 and 353 ("Premises") on the third 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,
improvement and other rights and other rights appurtenant thereto, as the
"Property"), for a term beginning April 1, 1996 and ending June 30, 2001
("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 contract furnishings relating to the contract furnishings industry
which are manufactured by or sold under Winston Furniture Company of Alabama,
Inc., 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 or that will increase the rate of
insurance on the Premises or on the Building. Tenant will pay all extra
insurance premiums 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 of
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
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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 exhibitions in
the Building when such 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 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
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4/1/96-3/31/97 $56,350.00 $4,695.83
4/1/97-3/31/98 $58,650.00 $4,887.50
4/1/98-3/31/99 $60,950.00 $5,079.17
4/1/99-3/31/00 $63,250.00 $5,270.83
4/1/00-3/31/01 $65,550.00 $5,462.50
4/1/01-6/30/01 $67,850.00 $5,654.17
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 to
Landlord or Landlord's agent and shall be made at the office of the Building or
at such other places and to such other parties at Landlord shall from time to
time by written notice appoint. Base Rent shall be 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.
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4. RENT ADJUSTMENTS. Landlord and Tenant agree that the following rent
adjustments shall be made with respect to each calendar year of the Term, or
portion thereof, including the calendar year in which this Lease begins and the
calendar year in which this Lease terminates, after the Base Year (which Base
Year for purposes of this Lease shall be the calendar year ending on the
December 31st immediately prior to the commencement date of the Term hereof).
For purposes of such rent adjustments, Tenant's Proportionate Share is agreed to
be .073%.
(A) Tenant shall pay to Landlord as additional rent an amount equal to
Tenant's Proportionate Share of the amount by which Ownership Taxes paid in any
calendar year after the Base Year exceed Ownership Taxes paid in the Base Year.
"Ownership Taxes" shall mean all taxes, assessments, impositions and
governmental charges of every kind and nature which Landlord shall pay in a
calendar year because of or in any way connected with the ownership, leasing,
management, and operation of the Building and the Property, subject to the
following:
(1) the amount of ad valorem real and personal property taxes
against Landlord's real and personal property to be included in Ownership Taxes
shall be the amount shown by the latest available tax bills required to be paid
in the calendar year in respect of which Ownership Taxes are being determined.
The amount of any tax refunds shall be deducted from Ownership Taxes in the
calendar year they are received by Landlord;
(2) the amount of special taxes and special assessments to be
included shall be limited to the amount of the installments (plus any interest,
other than penalty interest, payable thereon) of such special tax or special
assessment required to be paid during the calendar year in respect of which
Ownership Taxes are being determined;
(3) there shall be executed from Ownership Taxes all income
taxes [except for a specific tax or excise on rents or other income from the
Property (or on the value of leases thereon) or a specific gross receipts tax or
excise on rents or other income from the Property (or on the value of leases
thereon)], excess profit taxes, franchise, capital stock and inheritance or
estate taxes, except to the extent that any such tax is in lieu of, in
substitution for, or a supplement to, in whole or in part, any tax included in
Ownership Taxes; and
(4) Ownership Taxes shall also include, in the calendar year
paid, all fees, costs and expenses (including reasonable attorneys' fees)
incurred by Landlord in contesting or attempting to reduce or limit any
Ownership Taxes, regardless of whether any such reduction or limitation is
obtained.
(B) Tenant shall also pay to Landlord as additional rent an amount
equal to Tenant's Proportional Share of the amount by which Operating Expenses
for any calendar year after the Base Year exceed Operating Expenses for the Base
Year. Operating Expenses shall mean all expenses, costs and disbursements of
every kind and nature paid, incurred, or otherwise arising in respect of a
calendar year because of or in any way connected with the ownership, management,
maintenance, repair, leasing and operating of the Building and the Property.
There shall be excluded from Operating Expenses: (1) costs of alterations of
tenant spaces; (2) depreciation; (3) principal and interest payments on
mortgages, and financing or refinancing
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expenses; (4) return on investment; (5) Ownership Taxes with the respect to
which Tenant's is liable for its Proportionate Share pursuant to the preceding
paragraph (A); and (6) the cost of capital improvements and capital equipment
with the exception of governmental requirements noted below. In the event
Landlord makes any capital improvements or installs any capital equipment during
the Term hereof which results in a reduction or limitation in Operating
Expenses, the Operating Expenses for the Base Year may be comparably reduced as
determined by Landlord. In the event Landlord makes any capital improvements or
installs any capital equipment during the Term hereof required to comply with
any governmental rules, regulations or requirements applicable from time to time
to the Building or to the Property, the costs thereof, as depreciated, may be
included in Operating Expenses. If the Building shall not have been fully
occupied by tenants at any time during the Base Year or any succeeding calendar
year, the Operating Expenses for such year may be equitably adjusted to reflect
the Operating Expenses as though the Building had been fully occupied throughout
such year.
(C) If the twelve (12) month average 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 the Chicago Metropolitan Area, as appropriately
adjusted, for the Base Year ("Base CPI") shall be less than the twelve (12)
month average of the Consumer Price Index for any calendar year subsequent to
the Base Year, Tenant shall pay Landlord as additional rent for any such
subsequent calendar year subsequent to the Base Year, Tenant shall pay Landlord
as additional rent for any such subsequent calendar year or portion thereof upon
written notice from Landlord an amount (the "CPI Adjustment") equal to the
product obtained by multiplying thirty-three and one-third percent (33 1/3%) of
the annual Base Rent in such subsequent year by the percentage by which the
twelve (12) month average of the Consumer Price Index for such subsequent year
exceeds the Base CPI.
If the manner in which the Consumer Price Index 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 or if the underlying Base Year index in order to
produce results equivalent, as nearly as possible, to those which would have
been obtained if the Consumer Price Index had not been so revised. If the
1982-84 average shall no longer be used as an index of 100, or if any component
of the Consumer Price Index is changed in a material degree, such change shall
constitute a substantial revision. If the Consumer Price Index shall become
unavailable to the public because publication is discontinued, or otherwise,
Landlord will substitute therefor a comparable index based 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.
(D) In order to provide for current payments on account of increases in
Ownership Taxes and Operating Expenses over the Base Year and increases in the
Consumer Price Index over the Base CPI, Tenant agrees, at Landlord's request, to
pay on account to Landlord for each calendar year of the Term or portion thereof
commencing on the 1st day of January immediately
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following the commencement date of the Term hereof, Tenant's share of
adjustments due for such ensuing calendar year or portion thereof, as estimated
by Landlord from time to time, in equal monthly installments, commencing on the
first day of the month following the month in which Landlord notifies Tenant of
the amount of such estimated rent adjustments or revisions thereto. The
installments of estimated rent adjustments payable for each month of the current
calendar year prior to the date of receipt of Landlord's estimate shall be due
and payable within thirty (30) days after the receipt of such estimate. If, as
finally determined (whether in the succeeding calendar year at the time of
delivery of the statement provided for in paragraph (E) hereof, or in the
current calendar year when the final amount of any portion of Ownership Taxes
becomes known to Landlord), such rent adjustments shall be greater than or less
than the aggregate of all installments so paid on account to Landlord prior to
receipt of an invoice from Landlord, then Tenant upon receipt of such invoice
shall pay to Landlord within ten (10) days immediately following such
notification the amount of such underpayment, or, provided Tenant is not in
default hereunder. Landlord shall credit Tenant for the amount of such
overpayment, as the case may be. It is the intention hereunder to estimate from
time to time the amount of increases in Ownership Taxes and Operating Expenses
and the Consumer Price Index for each year and then to finally determine such
rent adjustments at the end of such calendar year or as soon thereafter as
possible based upon actual increases in Ownership Taxes and Operating Expenses
and the Consumer Price Index for such year.
(E) Landlord agrees to keep books and records showing the Ownership
Taxes and Operating Expenses in accordance with a system of accounts and
accounting practices consistently maintained on a year-to-year basis in
compliance with such provisions of this Lease as may affect such accounts.
Landlord shall deliver to Tenant after the close of each calendar year
(including the calendar year in which this Lease begins and the calendar year in
which this Lease terminates), a statement by an officer of Landlord's agent and
containing (1) the agent's statement that the books and records covering the
operation of the Building have been maintained in accordance with the
requirements of this paragraph (E), (2) the amounts by which the Operating
Expenses and Ownership Taxes for such calendar year exceed the Operating
Expenses and Ownership Taxes, respectively, for the Base Year, (3) the total
rent adjustments owning to Landlord due to increases in the Consumer Price Index
over the Base CPI, (4) the total of the estimated rent adjustments previously
paid by Tenant during such calendar year, and (5) the amount of any excess or
deficiency with respect to such calendar year. Failure or delay in delivering
any such statement or accompanying invoice, or failure or delay in computing the
rent adjustments pursuant to this Article 4, shall not be deemed a waiver by
Landlord of its right to deliver such items nor shall any such failure or delay
be deemed a release of Tenant's obligations with respect to any such statement
or invoice, or constitute a default hereunder. All rent adjustments payable
hereunder shall be made without any deductions or set-offs whatsoever.
(F) The obligation of Tenant with respect to the payment of Base Rent
and rent adjustments due hereunder shall survive the expiration or termination
of this Lease. Any payment, refund, or credit made pursuant to this Article
shall be made without prejudice to any right of Tenant to dispute, or in
Landlord to correct, any items as billed pursuant to the provisions hereof. In
the event that this Lease shall have been in effect for less than the full
calendar year immediately preceding Tenant's receipt of the invoices provided
for in paragraphs
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(D) and (E) hereof, the rent adjustment shall be pro rata. In no event shall any
rent adjustment result in a decrease in the Base Rent payable from time to time
hereunder.
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.
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 repair and
tenantable condition at all times during the Term of this Lease, and Tenant
shall promptly and adequately 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 not 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 aid
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
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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 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 form 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.
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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 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 at 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
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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 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 term 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 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 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, electric, 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.
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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 from any act or omission of Tenant shall
accrue only against Tenant and shall in al 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 he 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 al 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 act 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 provisions 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, damage, 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.
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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 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 nor 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 as requested by Landlord; include all of the terms of the proposed
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 therein
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
no 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 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 percent (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 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.
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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, such computation to be
made in accordance with generally accepted accounting principles. Tenant agrees
that Landlord or its authorized representatives hall 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.
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 n 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 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
subtenant 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 xxx 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 injured 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.
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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 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, or 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 receive or 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 Leas, 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 cat 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
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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, 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 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, ceiling 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 tide 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 matter 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 thereto, 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 or 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.
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17. HOLDOVER. Tenant will pay to Landlord an amount equal to double the
sum of the annual Base rent plus 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 prevailng rental rates for similar space in the
Building.
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 on 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
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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 owning 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 extent 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.
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 operations) 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, licenses 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 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
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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 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 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 in an amount not less than the greater of
80 per cent 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
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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 or 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:
(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 hour
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 terms 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, furniture, 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
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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 Tenants 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 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 the 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 thereof 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 or 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.
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(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 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
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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.
(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
showrooms, 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 windows 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
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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 all 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 admittance 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.
(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 is 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.
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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 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 appoint 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 Lease 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 Lease or under
any work order or other agreement relating to the Premises shall e 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.
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(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.
(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 Lease (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 not 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
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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 relief 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 in the negotiation or making of this Lease, and Tenant agrees to
indemnify and hold harmless Landlord from the claims 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.
32. 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
manage, 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 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.
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34. RIDERS. All riders attached to this Lease and signed by Landlord
and Tenant are made a part hereof and are incorporated 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
ALABAMA, INC. individually but as Trustee under a
Trust Agreement dated May 27, 1981, and
known as trust No. 10400, as aforesaid.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx [Illegible]
----------------------------- ---------------------------------------
Vice President
Attest: /s/ [ILLEGIBLE]
-----------------------------
CERTIFICATE
(If Tenant is a Corporation)
I, XXXXXXX X. XXXXXXXXX, Assistant 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
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Rider attached to and made a part of a Lease dated APRIL 1, 1996, 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 (hereinafter
"Landlord") and WINSTON FURNITURE COMPANY OF ALABAMA, INC., an Alabama
corporation (hereinafter, "Tenant").
35. RENT ADJUSTMENTS. Article 4 of the Lease is hereby amended by
adding the following thereto:
"Notwithstanding anything to the contrary herein contained, it is
understood and agreed that the rent adjustments payable by Tenant pursuant to
Article 4 shall be based only upon Ownership Taxes and Operating Expenses
allocable to the "Non-Retail Section" of the Building. For purposes hereof, the
"Non-Retail Section" of the Building means the entire Building and Property
exclusive of the "Retail Center". The "Retail Center" consists of the first and
second floors of the Building, excluding those portions of the first and second
floors of the Building. In determining the Ownership Taxes and Operating
Expenses with respect to the Non-Retail Section of the Building in accordance
with the provisions of Article 4, the parties acknowledge that Landlord shall
make a reasonable allocation between the Non-Rtail Section of the Building and
the Retail Center of those items which pertain to the entire Building or which
are shared or purchased on a building-wise basis and Landlord may, but need not,
make such allocation of the basis of relative size or use."
36. ABATEMENT. In consideration of the covenants and agreements herein
contained, and so long as Tenant is not in default under the terms, covenants
and agreements contained in this Lease, it is expressly understood and agreed
that Base Rent for the period beginning April 1, 1996 and ending September 30,
1996, in the amount of Four Thousand Six Hundred Ninety-Five and 83/100 Dollars
($4,695.83) per month, for a total of Twenty Eight Thousand one Hundred Seventy
Four and 98/100 Dollars ($28,174.98) ("Abatement") shall xxxxx and Tenant
shall have no liability therefore; provided, however, that in the event this
Lease, or Tenant's right of possession, is terminated prior tot he regularly
scheduled expiration date of the Term then in such event, in addition to all
other rights and remedies available to Landlord hereunder, Tenant agrees to pay
to landlord as additional rent under this Lease an amount equal to the
unamortized amount of the Abatement as of the date of such termination.
TENANT: WINSTON FURNITURE COMPANY OF LANDLORD: LASALLE NATIONAL TRUST, N.A.,
ALABAMA, INC. individually but as Trustee under a
Trust Agreement dated May 27, 1981, and
known as Trust No. 104000, as
aforesaid.
By: /s/ Xxxxx Xxxxxx By: /s/ [ILLEGIBLE]
-------------------------------- ----------------------------------
Senior Vice President
Attest: /s/ [ILLEGIBLE]
------------------------------------
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