Exhibit 10.94
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XXXXX XXXXX STREAM ASSOCIATES, LLC
AS LANDLORD,
AND
UNITED STATIONERS SUPPLY CO.,
AS TENANT
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LEASE AGREEMENT
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000 XXXXXXXX XXXXX
XXXXX XXXXXX, XXXXXXXX
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TABLE OF CONTENTS
ARTICLE PAGE
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1 REFERENCE DATA AND DEFINITIONS...........................................................................1
2 DEMISE AND TERM..........................................................................................3
2.1 Demise..........................................................................................3
2.2 Term............................................................................................3
2.3 Early Access to Bulk Storage Space..............................................................3
2.4 Early Access to Warehouse Portion of the Building...............................................4
2.5 Extension Options...............................................................................4
3 FIXED RENT...............................................................................................4
3.1 Fixed Rent......................................................................................4
3.2 Management Fee..................................................................................4
3.3 Additional Rent.................................................................................5
3.4 Past Due Rent...................................................................................5
3.5 Net Lease.......................................................................................5
4 TAXES AND PARK FEES......................................................................................5
4.1 Payment of Taxes and Park Fees..................................................................5
5 COMPLETION AND OCCUPANCY OF THE BUILDING.................................................................6
5.1 Completion of the Building......................................................................6
5.2 Occupancy of Building...........................................................................6
5.3 Allowances......................................................................................7
6 CONDUCT OF BUSINESS BY TENANT............................................................................7
6.1 Use of the Building.............................................................................7
6.2 Compliance with Laws and Requirements of Public Authorities.....................................7
7 ALTERATIONS AND MECHANICS' LIENS.........................................................................8
7.1 Alterations.....................................................................................8
7.2 Mechanics' Liens................................................................................8
8 UTILITIES................................................................................................9
9 MAINTENANCE AND REPAIR...................................................................................9
9.1 Tenant Obligations..............................................................................9
9.2 Landlord Obligations............................................................................9
10 INSURANCE AND INDEMNITY.................................................................................10
10.1 Required Insurance.............................................................................10
10.2 Reimbursement of Landlord's Insurance Premiums.................................................11
10.3 Indemnity and Non-Liability. ..................................................................11
10.4 Waiver of Subrogation..........................................................................12
11 DAMAGE BY CASUALTY......................................................................................12
11.1 Notice.........................................................................................12
11.2 Restoration of Improvements...................................................................12
12 EMINENT DOMAIN..........................................................................................13
12.1 Taking of the Building.........................................................................13
12.2 Partial or Temporary Taking of Building........................................................13
12.3 Surrender......................................................................................13
12.4 Rent Adjustment for Partial Taking of the Building.............................................13
12.5 Awards.........................................................................................13
13 RIGHTS RESERVED TO LANDLORD.............................................................................14
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14 ASSIGNMENT AND SUBLETTING...............................................................................14
14.1 Consent Required...............................................................................14
15 DEFAULT.................................................................................................15
15.1 Default........................................................................................15
15.2 Right of Re-Entry..............................................................................15
15.3 Termination of Right to Possession.............................................................15
15.4 Termination of Lease...........................................................................16
15.5 Other Remedies.................................................................................16
15.6 Bankruptcy.....................................................................................16
15.7 Waiver of Trial by Jury........................................................................16
15.8 Venue..........................................................................................16
16 SURRENDER...............................................................................................16
16.1 Possession.....................................................................................16
16.2 Merger.........................................................................................16
17 HOLDING OVER............................................................................................17
17.1 Holding Over...................................................................................17
18 ESTOPPEL CERTIFICATE, SUBORDINATION, ATTORNMENT.........................................................17
18.1 Estoppel Certificate...........................................................................17
18.2 Subordination..................................................................................17
18.3 Attornment.....................................................................................17
18.4 Mortgages......................................................................................17
18.5 Non-Disturbance Agreement......................................................................17
19 QUIET ENJOYMENT.........................................................................................18
19.1 Quiet Enjoyment................................................................................18
20 NOTICES.................................................................................................18
20.1 Notices........................................................................................18
21 MISCELLANEOUS PROVISIONS................................................................................18
21.1 Time...........................................................................................18
21.2 Applicable Law and Construction................................................................18
21.3 Parties Bound..................................................................................18
21.4 No Representations by Landlord.................................................................18
21.5 Brokers........................................................................................19
21.6 Severability...................................................................................19
21.7 Force Majeure..................................................................................19
21.8 Definition of Landlord.........................................................................19
21.9 No Option......................................................................................19
21.10 Exculpatory Clause.............................................................................19
21.11 No Recording...................................................................................19
21.12 ERISA..........................................................................................19
21.13 Consequential Damages..........................................................................20
22 OPTION TO EXTEND........................................................................................20
22.1 Option to Extend...............................................................................20
22.2 Fair Market Rent...............................................................................20
22.3 Dispute of Fair Market Rent....................................................................20
22.4 Arbitration of Fair Market Rent................................................................20
EXHIBIT A Legal Description
EXHIBIT B Plan of Bulk Storage Space
EXHIBIT C Landlord's Work
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LEASE
This Lease is made between Landlord and Tenant named in Article l as of
the date set forth therein. Landlord and Tenant, in consideration of the
covenants and agreements contained herein, agree as follows:
ARTICLE 1
REFERENCE DATA AND DEFINITIONS
The following are definitions of terms used in this Lease, and each
reference in this Lease to any of the following subjects shall be construed to
incorporate the data, terms, covenants and provisions stated for that subject in
this Article 1, subject to the terms of the balance of this Lease:
DATE OF EXECUTION OF THIS October , 1998
LEASE:
LANDLORD: Xxxxx Xxxxx Stream Associates, LLC, a
Colorado limited liability company
MANAGING AGENT: Corum Real Estate Group
LANDLORD'S MANAGING AGENT'S One DTC
ADDRESS: 0000 XXX Xxxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
TENANT: United Stationers Supply Co., an Illinois
corporation
TENANT'S ADDRESS: FOR NOTICE
0000 X. Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx 00000-0000
Attn: President
FOR BILLING
0000 X. Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Legal Dept.
BUILDING: The building and all other improvements,
including sidewalks, parking areas and
landscaped areas, located on that certain
parcel of real estate legally described on
Exhibit A attached hereto and commonly known
as 000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx,
Xxxxxxxx
SCHEDULED COMMENCEMENT DATE: January 15, 1999
SCHEDULED EXPIRATION DATE Xxxxx 00, 0000
XXXX:
EXTENSION TERMS: two (2) extension terms of five (5) years
each
BROKERS: Colliers, Xxxxxxx & Xxxxxxxxxx, Inc., and
Xxxxx & Xxxxx
FIXED RENT:
___________________________________________________________________________
PERIOD ANNUAL FIXED RENT MONTHLY FIXED RENT
___________________________________________________________________________
From the Commencement $ 0 $ 0
Date to the date that is sixty
(60) days after the
Commencement Date
___________________________________________________________________________
From the date that is sixty- $1,295,600.04 $ 107,966.67
one (61) days after the
Commencement Date (the
"Rent Commencement Date")
to the day before the fifth
(5th) anniversary of the Rent
Commencement Date
___________________________________________________________________________
From the fifth (5th) $1,430,079.96 $ 119,173.33
anniversary of the Rent
Commencement Date to the
Expiration Date
___________________________________________________________________________
ARTICLE 2
DEMISE AND TERM
2.1 DEMISE. Landlord hereby leases unto Tenant, and Tenant hereby
leases from Landlord, the Building, upon and subject to the covenants,
agreements, terms, conditions, limitations, exceptions and reservations of this
Lease.
2.2 TERM.
(a) The Term and Tenant's obligation to pay Rent shall
commence on the earlier to occur of (the "Commencement Date") (i) the
date Landlord obtains a certificate of occupancy from the applicable
municipal authority sufficient to permit Tenant to occupy the Building
for the uses permitted under Section 6.1 below, or (ii) the date on
which Tenant or anyone claiming by, under or through Tenant shall first
occupy any portion of the Building for any purpose, including
installation of equipment (other than early occupancy pursuant to
Sections 2.3 and 2.4 below), or (iii) the later of (A) the date
determined in accordance with the second sentence of Section 5.1 below
and (B) December 1, 1998; and shall end, unless sooner terminated as
herein provided or pursuant to law, at the close of business on the
Scheduled Expiration Date. If for any reason, other than by reason of
any event described in the second sentence of Section 5.1, the Building
is not substantially completed and/or available for occupancy by the
Scheduled Commencement Date, Landlord shall not be liable for any
claims, damages or liabilities in connection therewith or by reason
thereof, nor shall the same make this Lease void or voidable, but the
expiration date shall be extended to a date which shall allow the term
of this Lease to be a complete Term (the later of the Scheduled
Expiration Date or the date determined pursuant to this sentence being
the "Expiration Date").
(b) Following the Commencement Date, the parties shall execute
a supplemental agreement to become a part hereof setting forth the
Commencement Date and Expiration Date of the Term, as determined under
the provisions of this Article 2. The parties' failure
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to execute such supplemental agreement shall in no way affect Tenant's
obligation to perform under this Lease.
2.3 EARLY ACCESS TO BULK STORAGE SPACE. Notwithstanding anything
contained herein to the contrary, Tenant shall be permitted access prior to the
Commencement Date to approximately 100,000 square feet of the Building as
depicted on Exhibit B attached hereto (the "Bulk Storage Space") on or before
November 15, 1998. Landlord shall arrange for obtaining all necessary approvals
for such access by Tenant. Tenant acknowledges, however, that Landlord will not
have completed its construction of the Building as of such early occupancy date
and that Tenant will be accepting the Bulk Storage Space in its "as is"
condition, except, however, that the Bulk Storage Space shall be demised with a
snow fence and will include restrooms and 12 foot to 15 foot candle lighting.
Such acceptance of the Bulk Storage Space in its "as is" condition as of the
date of delivery shall not be deemed or construed, however, to be a waiver by
Tenant of Landlord's obligation to complete the balance of Landlord's Work or a
waiver or release of the general contractor, subcontractors or design
professionals under any warranties provided by any such parties. In connection
with such early occupancy, Tenant agrees to not interfere with Landlord's
completion of the balance of the Building. Such early occupancy of the Bulk
Storage Space shall be subject to all of the terms and conditions of this Lease,
except, however, Tenant shall not be obligated to pay Fixed Rent during such
period of early occupancy. Without limiting the generality of the foregoing,
from and after the date of such early occupancy, Tenant shall be obligated to
provide the insurance required hereunder, be obligated to pay a proportionate
share of Landlord's insurance for the Building, be obligated to pay a
proportionate share of Taxes and be obligated to pay its proportionate share of
utilities for the Building. As used in this Section 2.3, Tenant's proportionate
share shall mean 30.488% (which is 100,000 divided by 328,000).
2.4 EARLY ACCESS TO WAREHOUSE PORTION OF THE BUILDING. Notwithstanding
anything contained herein to the contrary, Tenant shall be permitted access
prior to the Commencement Date to the balance of the warehouse portion of the
Building (i.e., excluding the office space), on or before January 15, 1999.
Landlord shall arrange for obtaining all necessary approvals for such access by
Tenant. Tenant acknowledges, however, that Landlord will not have completed its
construction of the Building as of such early occupancy date and that Tenant
will be accepting the warehouse portion of the Building in its "as is"
condition. Such acceptance of the warehouse portion of the Building in its "as
is" condition as of the date of delivery shall not be deemed or construed,
however, to be a waiver by Tenant of Landlord's obligation to complete the
balance of Landlord's Work or a waiver or release of the general contractor,
subcontractors or design professionals under any warranties provided by any such
parties. In connection with such early occupancy, Tenant agrees not to interfere
with Landlord's completion of the balance of the Building. Such early occupancy
of the warehouse space shall be subject to all the terms and conditions of this
Lease, except, however, Tenant shall not be obligated to pay Fixed Rent during
such period of early occupancy. Without limiting the generality of the
foregoing, from and after the date of such early occupancy, Tenant shall be
obligated to provide the insurance required hereunder, be obligated to reimburse
Landlord for its insurance for the Building, be obligated to pay Taxes and be
obligated to pay utilities for the Building.
2.5 EXTENSION OPTIONS. As more fully provided under Article 21 below,
Tenant shall have the options to extend described under Article 1 above.
ARTICLE 3
FIXED RENT
3.1 FIXED RENT. Tenant shall pay to Landlord, without any prior demand
therefor and without any deduction or set-off whatsoever, the Fixed Rent set
forth in Article 1. Fixed Rent shall be due and payable in monthly installments
each equal to the Monthly Fixed Rent set forth in Article 1, in advance on the
first day of each and every calendar month during the Term. If the Commencement
Date shall be a day other than the first day of a calendar month, then Tenant
shall pay, upon the Commencement Date, an amount equal to the applicable Monthly
Fixed Rent multiplied by a fraction the numerator of which shall be the number
of days remaining in the month,
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including and after the Commencement Date, and the denominator of which shall be
the number of days in the month. Tenant shall pay to Landlord upon execution of
this Lease an amount equal to the first Monthly Fixed Rent, which amount shall
be held by Landlord without interest and applied to the first Monthly Fixed Rent
obligation of Tenant.
3.2 MANAGEMENT FEE. Tenant shall pay to Landlord, without prior demand
therefor, and without any deductions or set off whatsoever, a management fee for
a twelve (12) month period commencing on the Commencement Date in an amount
equal to $30,847.68 payable in twelve (12) equal monthly installments of
$2,570.64 each. Said management fee shall be payable on the first day of each of
the first twelve (12) calendar months following the Commencement Date. After
said initial twelve (12) month period, Tenant shall have no further obligation
to pay said management fee.
3.3 ADDITIONAL RENT. Any sums or charges to be paid by Tenant pursuant
to the provisions of this Lease, other than the Fixed Rent, shall be designated
as "Additional Rent" and shall be payable within thirty (30) days after receipt
by Tenant of written notice that payment is due, unless otherwise provided in
this Lease. Landlord shall have the same rights against Tenant for default in
payment of Additional Rent as for default in payment of the Fixed Rent. As used
in this Lease, the term "Rent" shall mean the Fixed Rent and Additional Rent.
3.4 PAST DUE RENT.
(a) If Tenant shall fail to pay any installment of Rent before
the tenth (10th) day after such Rent is due and payable, Tenant shall
pay a charge (the "Late Charge") which shall be 5% of the amount of
such unpaid installment of Rent; provided, however, that such Late
Charge shall not be imposed upon Tenant for the first (1st) time that
Tenant fails to pay any installment of Rent in any consecutive twelve
(12) month period.
(b) Any amount due from Tenant to Landlord which is not paid
on or before the fifth (5th) day after such Rent is due and payable
shall bear interest at the lesser of twelve percent (12%) or the
maximum rate of interest permitted by law (the "Default Rate") from the
date such payment is due, after the expiration of any applicable grace
period, until paid. The rate so determined shall continue in effect
following any default by Tenant pursuant to this Lease. Payment of such
interest shall not excuse or cure any default by Tenant under this
Lease.
3.5 NET LEASE. This is an absolutely net lease to Landlord. It is the
intent of the parties hereto that the Fixed Rent payable under this Lease shall
be an absolutely net return to Landlord and that Tenant shall pay all costs and
expense relating to the Building and the business carried on therein, unless
otherwise expressly provided in this Lease. Any amount or obligation herein
relating to the Building which is not expressly declared to be that of Landlord
shall be deemed to be an obligation of Tenant to be performed by Tenant at
Tenant's expense.
ARTICLE 4
TAXES AND PARK FEES
4.1 PAYMENT OF TAXES AND PARK FEES. Throughout the Term, Landlord shall
forward copies of all bills for Taxes (as hereinafter defined) to Tenant and
Tenant shall pay all Taxes directly to the applicable taxing authority prior to
the due date and shall simultaneously send evidence of such payment to Landlord.
To the extent any xxxx for Taxes applies to a period falling within the Term
hereof and also a period either before or after the Term hereof, Tenant shall
only be responsible for the portion of the xxxx related to Taxes applicable to
the Term hereof and, accordingly, such xxxx shall be appropriately prorated
between Landlord and Tenant. In addition to payment of Taxes, Tenant shall pay
prior to delinquency any and all payments due and payable under that certain
Declaration of Covenants, Conditions, Restrictions and Easements for Xxxxx Point
Business Center dated October 5, 1990, recorded with the DuPage County Recorder
on October 11, 1990 as Document No. R90-136841, as amended or modified. In the
event Tenant fails to timely
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pay Taxes or Park fees as provided hereunder, in addition to any other rights or
remedies available to Landlord, Landlord may, at its option, pay such Taxes or
park fees, in which event Tenant shall promptly reimburse Landlord for such
payment with interest thereon at the Default Rate from the date paid until the
date reimbursed by Tenant.
Alternatively, and notwithstanding the foregoing or any provision of
the Lease to the contrary, Tenant shall have the right, before delinquency
occurs, of contesting, objecting to or opposing the legality or validity of any
such Taxes attributable to the Building; provided that prompt notice of such
contest, object or opposition shall be given to Landlord by Tenant at least
twenty (20) days before any delinquency; and provided, further, that such
contest, objection or opposition shall not be carried on or maintained after the
aforementioned time limit for the payment of said objections unless Tenant shall
have duly paid the amount involved under protest or shall have procured and
maintained a stay of all proceedings to enforce any collection thereof and shall
also have provided for payment thereof, togther with all penalties, interest,
costs and expenses, by a deposit of sufficient sum of money or by a good and
sufficient undertaking as may be required or permitted by law to accomplish such
a stay. In the event of any such contest, objection or opposition, Tenant agrees
to pay and discharge any unpaid amounts finally determined to be due within
thirty (30) days after the final determination thereof or within such later
grace period as may be allowed by law. Notwithstanding the foregoing, if Tenant
does not undertake to contest Taxes as provided above within fifteen (15) days
after written notice from Landlord, Landlord shall also retain the right to
contest Taxes.
4.2 DEFINITION OF TAXES. Taxes shall mean all taxes, assessments and
fees levied upon the Building, the property of Landlord located therein or the
rents collected therefrom, by any governmental entity based upon the ownership,
leasing, renting or operation of the Building, including all reasonable costs
and expenses of protesting in good faith any such taxes, assessments or fees. To
the extent assessments are permitted by law to be paid in installments, such
assessments shall only be required to be paid in the maximum number of
installments permitted by applicable law and, accordingly, Tenant shall only be
responsible for the payment of such assessments applicable to the Term hereof.
Notwithstanding anything to the contrary contained in this paragraph, Taxes
shall not include any net income, capital stock, succession, transfer,
franchise, gift, estate or inheritance taxes; provided, however, if at any time
during the Term, a tax or excise on income is levied or assessed by any
governmental entity, in lieu of or as a substitute for, in whole or in part,
real estate taxes or other AD VALOREM taxes, such tax shall constitute and be
included in Taxes. Additionally, the term "Taxes" shall not include any tax on
Landlord's "right" to rent or "right" to other income from the Building or
against Landlord's business of leasing the Building, imposed by any taxing
authority or other authority with the power to tax, except and only to the
extent such tax fee (i) is levied and assessed in lieu of a traditional ad
valorem property tax, (ii) applies to the Building and (iii) is applicable to
all owners of industrial properties (and not only to residents or other types of
properties) in the Carol Stream, Illinois, area. For the purpose of determining
Taxes for any given year, the amount to be included for such year shall be Taxes
which are assessed or become a lien during such year rather than Taxes which are
due for payment or paid during such year. For example, if the Commencement Date
occurs on January 1, 1999, Tenant shall be responsible for the 1999 Taxes
payable in 2000. Accordingly, Tenant's obligation to pay Taxes for the Building
shall survive the expiration or earlier termination of this Lease.
ARTICLE 5
COMPLETION AND OCCUPANCY OF THE BUILDING
5.1 COMPLETION OF THE BUILDING. Landlord shall complete the work
described on Exhibit C attached hereto ("Landlord's Work"). In the event
Landlord is delayed in completing Landlord's Work by any delay, interference or
hindrance (which shall include, without being limited to, any delays in the
submission by Tenant of completed and approved (by Landlord) plans and
specifications in respect of Landlord's Work), directly or indirectly, of such
work by Tenant, Tenant's contractors or any of their employees or agents or
Tenant's requirements with respect thereto, then the Commencement Date shall be
deemed to have occurred, notwithstanding that
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Landlord's Work is not completed, as of the date that Landlord's Work would have
been completed notwithstanding such delays .
5.2 OCCUPANCY OF BUILDING. The occupancy of the Building or any part
thereof for business by Tenant or anyone claiming by, under or through Tenant
shall be conclusive evidence that (a) Tenant accepts possession of the Building,
or applicable portion thereof; (b) the Building, or applicable portion thereof,
as the case may be, was in good and satisfactory condition, subject to latent
defects; and (c) Landlord's Work, if any, was satisfactorily completed at the
time such occupancy was so taken, subject to punchlist items, if any, indicated
on a list delivered by Tenant to Landlord and agreed to by Landlord on or before
the date Tenant takes occupancy of the Building, or applicable portion thereof,
as the case may be.
5.3 ALLOWANCES. Landlord's Work includes an allowance of $60,000 for
completion of the fire protection system for the Building, $577,500 for
completion of the office portion of the Building and an allowance of $15,000 for
completion of Tenant's identification signage as more fully described on Exhibit
C attached hereto. In the event the cost and expenses of construction of the
fire protection system, the office portion of the Building or the signage
exceeds the applicable allowance, Tenant shall be responsible for reimbursing
Landlord, promptly upon receipt of invoice for same from Landlord, the amount of
any such overage. In the event the costs and expenses of construction of the
fire protection system, the office portion of the Building or the signage is
less than the applicable allowance, Tenant shall be entitled to a credit against
Fixed Rent next becoming due for any such unused portion of the allowance.
ARTICLE 6
CONDUCT OF BUSINESS BY TENANT
6.1 USE OF THE BUILDING. Tenant shall use the Building during the Term
solely for the storage, assembly and distribution of business products, and/or
related general office purposes, and for no other purpose.
6.2 COMPLIANCE WITH LAWS AND REQUIREMENTS OF PUBLIC AUTHORITIES.
(a) At all times during the Term, Tenant shall give prompt
notice to Landlord of any notice Tenant receives of any violation of
any law or requirement of a governmental authority affecting the
Building or any regulation of the board of fire underwriters having
jurisdiction over the Building ("Applicable Law"), and, at its sole
cost and expense, shall comply with all Applicable Laws, including any
violation, order or duty imposed upon Landlord or Tenant, arising from
or relating to (1) Tenant's use of the Building; (2) the manner or
conduct of Tenant's business or operation of its installations,
equipment or other property therein; (3) any cause or condition created
by or at the insistence of Tenant; or (4) breach of any of Tenant's
obligations hereunder.
(b) Tenant shall not do, permit or suffer any act or thing to
be done which is injurious to the Building, which is immoral, a
nuisance, contrary to Applicable Law or in violation of the certificate
of occupancy issued for the Building or which would result in the
cancellation of, or any increase in premiums for, insurance, if any,
maintained by Landlord with respect to the Building.
(c) Tenant shall not use, maintain or allow the use or
maintenance of the Building or any part thereof to treat, store,
dispose of, transfer, release, convey or recover Hazardous Materials
(as hereinafter defined) nor shall Tenant otherwise, in any manner,
possess or allow the possession of any Hazardous Materials on or about
the Building; provided, however, any Hazardous Material lawfully
permitted and generally recognized as necessary and appropriate for the
permitted use described in Section 6.1 above may be stored and used on
the Building so long as (i) such storage and use is in the ordinary
course of Tenant's business permitted under this Lease; (ii) such
storage and use is performed in compliance with all Applicable Laws and
in compliance with the highest standards prevailing in the
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industry for the storage and use of such materials; and (iii) Tenant
delivers prior written notice to Landlord of the identity of and
information regarding such materials as Landlord may require.
"Hazardous Materials" shall mean any solid, liquid or gaseous waste,
substance or emission or any combination thereof which may (i) cause or
significantly contribute to an increase in mortality or serious
illness, or (ii) pose the risk of a substantial present or potential
hazard to human health, to the environment or otherwise to animal or
plant life, and shall include without limitation hazardous substances
and materials described in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended; the Resource
Conservation and Recovery Act, as amended; and any other applicable
federal, state or local laws. Tenant shall promptly notify Landlord of
the presence or suspected presence of any Hazardous Materials on or
about the Building and shall deliver to Landlord any notice received by
Tenant relating thereto.
(d) Tenant agrees that it shall not keep, use, sell or offer
for sale in or upon the Building any article which may be prohibited by
any then available standard forms of fire insurance policies with
extended coverage. Tenant agrees to pay to Landlord any increase in
premiums for insurance, if any, maintained by Landlord with respect to
the Building, whether, or not Landlord has consented to such use.
ARTICLE 7
ALTERATIONS AND MECHANICS' LIENS
7.1 ALTERATIONS. Tenant shall not make any alterations, additions or
improvements (collectively, "Alterations") in or to the Building without
Landlord's prior written consent. Tenant shall only utilize contractors approved
by Landlord. Tenant shall, before making any Alterations, at its expense, obtain
all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Landlord, and Tenant agrees to carry, and to cause Tenant's
contractors and sub-contractors to carry such workmen's compensation, general
liability, personal and property damage insurance as Landlord may reasonably
require. Upon completion of any Alterations, Tenant shall deliver to Landlord
one set of "as-built" plans and specifications therefor. All Alterations
installed in the Building, either by Tenant or by Landlord on Tenant's behalf,
shall become the property of Landlord and shall remain upon and be surrendered
with the Building upon the expiration or earlier termination of the Lease;
provided, however, that Landlord shall have the right to require Tenant to
remove such alterations at Tenant's sole cost and expense upon the expiration or
earlier termination of this Lease, which required removal shall be specified by
Landlord when Landlord consents to Tenant's requested alterations or shall be
specified by Landlord after written request from Tenant in the event of any
alteration which does not require Landlord's consent as hereinafter described.
Nothing in this section shall be construed to give Landlord title to or to
prevent Tenant's removal of trade fixtures, moveable office furniture and
equipment, but upon removal of any such equipment and fixtures from the Building
or upon removal of other installations as may be required by Landlord, Tenant
shall immediately and at its expense, repair and restore the Building to the
condition existing prior to installation (subject to ordinary wear and tear) and
repair any damage to the Building due to such removal. All property that was
permitted or required to be removed by Tenant at the end of the Term but which
remains in the Building for 10 days after Tenant vacates the Building shall be
deemed abandoned and may, at the election of Landlord, either be retained as
Landlord's property or may be removed from the Building by Landlord at Tenant's
expense.
Notwithstanding the foregoing, Tenant may perform alterations to the
Building without Landlord's prior written consent provided such alterations (or
the performance thereof) do not (i) affect the mechanical, electrical HVAC, life
safety, or other Building operating systems, (ii) affect the structural
components of the Building or require penetration of the floor or ceiling of the
Building, (iii) involve the use or disturbance of any Hazardous Materials or
(iv) cost more than Twenty-Five Thousand and No/100 Dollars ($25,000.00) in any
one instance, and further provided that Tenant gives Landlord prior written
notice of such alterations and that such alterations (and the
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performance thereof) shall otherwise be in compliance with the provisions of
this Article 7 (except for the requirement of Landlord's consent).
7.2 MECHANICS' LIENS. Tenant shall (a) pay before delinquency all costs
and expenses of work done or caused to be done by Tenant in the Building ; (b)
keep the title to the Building and every part thereof free and clear of any lien
or encumbrance in respect of such work; and (c) indemnify and hold harmless
Landlord against any claim, loss, cost, demand (including reasonable legal
fees), whether in respect of liens or otherwise, arising out of the supply of
material, services or labor for such work. Tenant shall promptly notify Landlord
of any lien, claim of lien or other action of which Tenant has knowledge and
which affects the title to the Building or any part thereof, and shall cause the
same to be removed within 15 days (or such additional time as Landlord may
consent to in writing) or deliver to Landlord a bond in form, amount, and issued
by a surety satisfactory to Landlord, indemnifying Landlord against all costs
and liabilities resulting from such lien and the foreclosure or attempted
foreclosure thereof. If Tenant shall fail to remove or bond over same within
said time period, Landlord may take such action as Landlord deems necessary to
remove the same and the entire cost thereof shall be immediately due and payable
by Tenant to Landlord and such amount shall bear interest at the Default Rate.
ARTICLE 8
UTILITIES
Tenant will pay all costs associated with the provision of all utility
services to the Building, including, without limitation, telephone, gas,
electricity, water and sewer service. Landlord and Tenant shall arrange for all
such utility service xxxxxxxx to commence in the name of Tenant upon delivery of
possession of the Building to Tenant, or any portion thereof, and Tenant shall
make all payments directly to the applicable utility company. Landlord will not
be liable to Tenant, nor will Tenant be relieved of any obligation hereunder if
any utility service to the Building is interrupted for any reason.
Notwithstanding the foregoing, in the event any such interruption of utilities
caused by the negligent or wilful misconduct of Landlord causes the Building to
be untenantable and as a result thereof Tenant in fact ceases to use the
Building for a period in excess of five (5) consecutive days, then commencing on
the sixth (6th) consecutive day of such untenantability and non-use, Rent
payable by Tenant shall be abated until the earliest to occur of (a) the date
such interruption is remedied, (b) the date the Building is again tenantable or
(c) the date Tenant resumes use of the Building.
ARTICLE 9
MAINTENANCE AND REPAIR
9.1 TENANT OBLIGATIONS. Except as hereinafter provided in Section 9.2,
Tenant will at its sole expense maintain the entire Building, exterior and
interior, in the same condition and repair as was delivered to Tenant. Tenant's
maintenance obligation will extend to and include the repair and replacement, if
necessary, of all mechanical systems of the Building. Tenant will provide and
maintain, at Tenant's sole cost and expense, maintenance contracts on a
quarterly basis for all air-conditioning, heating and ventilating systems
("HVAC") serving the Building. Copies of all maintenance and service contracts
will be delivered to Landlord upon request by Landlord. Tenant shall contract
with a reputable third party inspector to perform an annual roof inspection.
Copies of the results of such inspection will be delivered to Landlord upon
request by Landlord. Any repairs or replacements made to the Building by Tenant
pursuant to this Article 9 will be made in a workmanlike manner with materials
at least equal in quality and grade to those originally contained within the
Building. Tenant will also contract for its own janitorial and trash removal
services and will promptly pay all costs associated with such services. Landlord
reserves the right to enter upon the Building during normal business hours
(except, however, in the event of an emergency Landlord shall have the right to
enter upon the Building outside of normal business hours), upon reasonable
notice to Tenant (except in the event of an emergency no such notice shall be
required), to inspect same to determine Tenant's compliance with its obligations
under this Article 9.
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9.2 LANDLORD OBLIGATIONS. Notwithstanding anything contained in Section
9.1 above to the contrary, Landlord will be obligated to repair and replace the
roof and the structural components of the exterior walls and foundation in good
condition and order of repair. Notwithstanding the foregoing, however, Tenant
will be responsible for the payment of all costs associated with such repair and
replacement if the need therefore arises due to the fault or negligence of
Tenant or its agents, employees, licensees or invitees. Except as otherwise
expressly provided above, Landlord will not be at any time required to make
improvements, repairs, replacements or alterations to the Building.
ARTICLE 10
INSURANCE AND INDEMNITY
10.1 REQUIRED INSURANCE.
(a) TENANT'S INSURANCE. In consideration of the leasing of the
Building at the rent stated herein, Tenant agrees to maintain, at its
sole cost and expense, commencing on any occupancy of the Building, or
any portion thereof, by Tenant and continuing at all times during the
Term hereof, the following insurance:
(i) "All Risk" Property Insurance, at least as broad
as the Insurance Services Office - Causes of Loss Special Form
in an amount adequate to cover 100% of the replacement cost of
Tenant's leasehold improvements, fixtures, equipment,
furniture, furnishings and personal property.
(ii) Commercial General liability insurance for the
benefit of Landlord, Tenant and any mortgagee against claims
for damages to person or property occurring on, in or about
the Building and the adjoining sidewalks, gutters, curbs,
passageways and other areas adjacent thereto, if any, of at
least $1,000,000 per occurrence, and at least $5,000,000
general aggregate, with respect to property damage or such
greater limits as may be reasonably required from time to time
by a first mortgagee or Landlord, such insurance to included
full contractual liability coverage respecting the
indemnification obligations of Tenant hereunder. Policies for
such insurance shall be for the mutual benefit of Landlord,
Tenant and any mortgagee as their respective interests may
appear.
(iii) Worker's compensation insurance covering all
persons employed by Tenant in connection with any work done on
or about the Building with respect to which claims for death
or bodily injury could be asserted against Landlord, Tenant or
the Building, complying with the laws of the State of
Illinois.
(iv) At any time when any portion of the Building is
being altered or replaced by or on behalf of Tenant, builder's
risk insurance (in completed value nonreporting form) in an
amount not less than the actual replacement value of the
improvements being performed, exclusive of foundations and
excavations.
These policies shall name Landlord, its employees, directors,
officers, agents, invitees or licensees, shareholders, partners and
principals as additional insureds (including, without being limited to,
any mortgagee of Landlord) as their interest may appear under this
Lease and provide that the insurer will not cancel or change the
insurance without first given Landlord 30 days prior written notice.
The insurance shall be written by an insurance company, licensed and
qualified to do business in the State in which the Property is located,
which is reasonably acceptable to Landlord. A certificate of insurance
shall be delivered to Landlord prior to Tenant's occupancy of any
portion of the Building and renewal certificates shall be delivered not
less than ten (10) days prior to the expiration of any then existing
coverage. The insurance which Tenant is required to maintain in force
and effect under this Section 10.1(a) shall be primary insurance as
respects Landlord (and any other additional insureds designed by
Landlord in this Section 10.1) and not excess over or contributory with
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any other available insurance. In no event shall the limits of any
coverage maintained by Tenant pursuant to this Section 10.1(a) be
considered as limiting Tenant's liability under this Lease.
(b) LANDLORD'S INSURANCE. At all times during the term of this
Lease, Landlord shall keep in full force and effect "All Risk" Property
Insurance, at least as broad as the Insurance Services Office-Causes of
Loss Special Form in an amount adequate to cover 100% of the
replacement cost of the Building. Such property insurance may include
rent loss coverage and such other coverages as may be reasonably
determined by Landlord. Such coverage may be provided by Landlord under
a blanket policy of insurance covering other properties of Landlord.
The insurance shall be written by an insurance company, licensed and
qualified to do business in the State in which the Property is located.
A certificate of insurance shall be delivered to Tenant upon the
execution and delivery of this Lease and renewal certificates shall be
delivered not less than ten (10) days prior to the expiration of any
then existing coverage. The insurance which Landlord is required to
maintain in force and effect under this Section 10.1(b) shall be
primary insurance as respects Tenant and not excess over or
contributory with any other available insurance.
10.2 REIMBURSEMENT OF LANDLORD'S INSURANCE PREMIUMS. Tenant shall pay
Landlord, promptly after receipt of invoice for same from Landlord, and in any
event prior to the due date thereof, any premiums payable by Landlord in
connection with the insurance to be provided by Landlord under Section 10.1(b)
above.
10.3 INDEMNITY AND NON-LIABILITY.
(a) Neither Landlord nor Landlord's agents (including, without
limitation, the Managing Agent), employees, contractors, officers,
trustees, directors, shareholders, partners or principals (disclosed or
undisclosed) shall be liable to Tenant or Tenant's agents, employees,
contractors, invitees or licensees or any other occupant of the
Building, and Tenant shall save Landlord, its successors and assigns
and their respective agents, employees, contractors, officers,
trustees, directors, shareholders, partners and principals (disclosed
or undisclosed) harmless from any loss, cost, liability, claim, damage,
expense (including reasonable attorneys' fees and disbursements),
penalty or fine incurred in connection with or arising from any injury
to Tenant or to any other person or for any damage to, or loss (by
theft or otherwise) of, any of Tenant's property or of the property of
any other person, irrespective of the cause of such injury, damage or
loss (including the acts or negligence of any tenant or of any owners
or occupants of adjacent or neighborhood property or caused by
operations in construction of any private, public or quasi-public work)
unless due to the negligence or willful misconduct of Landlord or
Landlord's agents or employees. To the extent of Tenant's insurance
coverage, Landlord, and its agents and employees, shall not be liable
for any loss or damage to any person or property even if due to the
negligence or wilful misconduct of Landlord, its agents or employees.
(b) Neither any (i) performance by Landlord, Tenant or others
of any repairs, improvements, alterations, additions, installations,
substitutions, betterments or decorations in or to the Building or the
Building equipment and systems, (ii) failure of Landlord or others to
make any such repairs or improvements, (iii) damage to the Building,
the Building equipment and systems, or Tenant's property, (iv) injury
to any persons, caused by other tenants or persons in the Building, or
by operations in the construction of any private, public, or
quasi-public work, or by any other cause, (v) latent defect in the
Building or Building equipment and systems, nor (vi) inconvenience or
annoyance to Tenant or injury to or interruption of Tenant's business
by reason of any of the events or occurrences referred to in the
foregoing subdivisions (i) through (v) shall impose any liability on
Landlord to Tenant, other than, subject to Section 21.10 hereof, such
liability as may be imposed upon Landlord by law for Landlord's gross
negligence or the gross negligence of Landlord's agents or employees in
the operation or maintenance of the Building or Building equipment and
systems or for the breach by Landlord of any express covenant of this
Lease on Landlord's part to be performed.
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(c) Tenant hereby indemnifies and holds harmless Landlord and
Landlord's agents, employees, contractors, officers, trustees,
directors, shareholders, partners or principals (disclosed or
undisclosed) from any loss, cost, liability, claim, damage, expense
(including reasonable attorneys' fees and disbursements), penalty or
fine incurred in connection with or arising from (i) any default by
Tenant in the performance of any of the terms of this Lease on Tenant's
part to be performed, or (ii) the use or occupancy or manner of use or
occupancy of the Building by Tenant or any person claiming under
Tenant, or (iii) any acts, omissions or negligence of Tenant or any
such person, or the contractors, agents, employees, invitees,
licensees, assignees or sublessees of Tenant or any such person, or
(iv) any accident, injury or damage whatsoever caused to any person or
to the property of any person and occurring in or about the Building.
Tenant's obligations under this Section 10.3 shall survive the
expiration or earlier termination of this Lease.
10.4 WAIVER OF SUBROGATION. Landlord and Tenant shall each endeavor to
procure an appropriate clause in, or endorsement to, each of its policies for
fire and extended coverage insurance, pursuant to which the insurance company
waives subrogation or consents to waiver of its right of recovery against the
other party, which, in the case of Tenant, shall be deemed to include any
subtenant in the Building, and having obtained such clause or endorsement of
waiver of subrogation or consent to a waiver of the right of recovery, such
party hereby agrees that it will not make any claim against or seek to recover
from the other for any loss or damage to its property or the property of others
covered by such fire or extended coverage insurance; provided, however, that the
release, discharge and covenant not to xxx herein contained shall be limited by
the terms and provisions of the waiver of subrogation clause or endorsement, or
the clause or endorsement consenting to a waiver of right of recovery, and shall
be co-extensive therewith.
ARTICLE 11
DAMAGE BY CASUALTY
11.1 NOTICE. Tenant shall give immediate written notice to Landlord of
any damage caused to the Building by fire or other casualty.
11.2 RESTORATION OF IMPROVEMENTS.
(a) In the event the Building is damaged by fire or other
casualty, Landlord shall, unless this Lease is terminated as
hereinafter provided, proceed with reasonable diligence and at its sole
cost and expense to repair the Building, but only to the extent of
available insurance proceeds or, if Landlord fails to maintain the
insurance required to be procured and maintained by Landlord pursuant
to Section 10.1(b) above, which should have been available had Landlord
procured and maintained such insurance. Tenant shall promptly, at its
sole cost and expense, remove such of its equipment and other
belongings from the Building as Landlord shall require in order to
repair and restore the Building. Until any such repairs to the Building
are completed, the Fixed Rent shall be abated in proportion to the part
of the Building, if any, that is unusable by Tenant in the conduct of
its business. If the fire or other casualty is due to the negligence or
misconduct of Tenant, its agents, employees, contractors or invitees,
there shall be no abatement of Fixed Rent.
(b) If (1) the Building shall be (i) totally destroyed or
substantially damaged, or (ii) partially destroyed or damaged by a
casualty not fully covered by insurance or which, in Landlord's good
faith reasonable judgment, cannot be restored to tenantable condition
within 180 days after the casualty, or (2) the Building shall be
destroyed to the extent of one-quarter or more of its then value or so
damaged that, in Landlord's good faith reasonable judgment, substantial
alteration, demolition or reconstruction of the Building shall be
required, whether or not covered by Landlord's insurance, then in
either such event Landlord may elect to proceed to rebuild and repair
the Building or to terminate this Lease, effective upon giving notice
of such election to Tenant within thirty (30) days after the occurrence
of such casualty. In either of such event, if Landlord does not elect
to terminate this Lease, Landlord shall
11
notify Tenant within thirty (30) days following such casualty of
Landlord's good faith estimate of the time Landlord expects it will
take to complete such restoration. Within ten (10) business days
following receipt of such notice, Tenant may elect to terminate this
Lease or keep this Lease in effect, and in the latter case Landlord
shall proceed to rebuild and repair the Building with due diligence.
Landlord's obligation to rebuild and repair under this Section 11.2
shall in any event be limited to restoring the Building to
substantially the condition in which they existed prior to the casualty
(in no event shall Landlord be required to repair any of Tenant's
leasehold improvements, fixtures, equipment, furniture, furnishings and
personal property) and then only to the extent that insurance proceeds
shall be sufficient to pay for such restoration or, if Landlord fails
to maintain the insurance required to be procured and maintained by
Landlord pursuant to Section 10.1(b) above, which should have been
available had Landlord procured and maintained such insurance. Tenant
agrees that, promptly after the completion of such work by Landlord, it
will proceed with reasonable diligence and at its sole cost and expense
to rebuild, repair and restore its fixtures, equipment and other
installations.
ARTICLE 12
EMINENT DOMAIN
12.1 TAKING OF THE BUILDING. If during the Term all of the Building
shall be taken for any public or quasi-public use under any statute or by right
of eminent domain, or sale-in-lieu of such taking, this Lease shall
automatically terminate on the date on which the condemning authority takes
possession of the Building (hereinafter called the "Date of Taking"). If so much
of the Building (but less than all) is taken as shall render the Building
untenantable in Landlord's and Tenant's mutual good faith judgment, Tenant or
Landlord shall have the right to terminate this Lease by giving written notice
to the other party of termination within 30 days after the Date of Taking.
12.2 PARTIAL OR TEMPORARY TAKING OF BUILDING.
(a) If during the Term, the Building, or any portion thereof,
is taken or sold as set out in Section 12.1, then (1) if in the
reasonable good faith opinion of Landlord substantial alteration or
reconstruction of the Building is necessary as a result thereof, or (2)
if one-quarter or more of the value, in Landlord's reasonable good
faith judgment, of the Building is included in such taking or sale,
then, Landlord shall have the right to terminate this Lease by giving
to Tenant at least 30 days' written notice thereof.
(b) If during the Term the Building, or any portion thereof,
shall be taken as set out in Section 12.1 for a period of less than one
(1) year, this Lease shall remain in full force and effect subject to
Section 12.4 hereof. If such a taking shall be for a period of one (1)
year or more, then the provisions of Section 12.1 and Section 12.2(a),
as the case may be, shall be applicable.
(c) If either party exercises its rights of termination under
Section 12.1 or 12.2 (and any such right must be exercised within 30
days after the Date of Taking, failing which such right shall be deemed
waived), this Lease shall terminate on the date stated in the notice,
provided, however, that no termination pursuant to notice hereunder may
occur later than 60 days after the Date of Taking.
12.3 SURRENDER. On the date of any termination under Section 12.1 or
12.2, Tenant shall immediately surrender to Landlord the Building and all
interests therein under this Lease and Tenant shall pay Landlord Rent through
the date of termination (or through the Date of Taking if such date shall not be
the same as the date of termination). Landlord may re-enter and take possession
of the Building and remove Tenant therefrom.
12.4 RENT ADJUSTMENT FOR PARTIAL TAKING OF THE BUILDING. If any portion
of the Building (but less than the whole thereof) is so taken, and no rights of
termination herein conferred are timely exercised, the Term shall expire (or, in
respect of a taking pursuant to Section 12.2(b)
12
hereof, have no force and effect for the period of such temporary taking) with
respect to the portion so taken on (or from) the Date of Taking. In such event,
the Rent thereafter payable under this Lease shall be adjusted pro rata by
Landlord in order to account for the resulting reduction (either temporarily or
permanently) in the number of rentable square feet in the Building.
12.5 AWARDS. Upon any taking or sale described in this Article 12,
Landlord shall be entitled to receive and retain the entire award or
consideration for the affected lands and improvements, and Tenant shall not have
nor advance any claim against Landlord or anyone else for the value of its
property or its leasehold estate under this Lease, or for the costs or removal
or relocation, or business interruption expense or any other damages arising out
of such taking or purchase. Nothing herein shall give Landlord any interest in
or preclude Tenant from seeking and recovering on its own account a separate
award from the condemning authority attributable to the taking or purchase of
Tenant's trade fixtures, or the removal or relocation of its business and
effects, or the interruption of its business provided that Landlord's award is
not diminished thereby. If any such award made or compensation paid to either
party specifically includes an award or amount for the other, the party first
receiving the same shall promptly account therefor to the other.
ARTICLE 13
RIGHTS RESERVED TO LANDLORD
Landlord and Landlord's agents shall have the right (but shall not be
obligated) to enter the Building in any emergency at any time, and to perform
any acts related to the safety, protection or preservation thereof or of the
Building. At other reasonable times, and upon reasonable notice, Landlord may
enter the Building (1) to examine and make such repairs, replacements and
improvements as Landlord may deem necessary or reasonably desirable to the
Building, (2) for the purpose of complying with laws, regulations and other
requirements of governmental authorities or the provisions of this Lease, or (3)
for the purposes of showing the same to prospective purchasers, mortgagees or
tenants of the Building or, parties thereof. Tenant shall not be entitled to any
damages by reason of loss or interruption of business or otherwise during such
periods. During such periods Landlord shall use reasonable efforts to minimize
any interference with Tenant's use of the Building. In the event of an
emergency, if Tenant is not present to open and permit an entry into the
Building, Landlord or Landlord's agents may enter the same whenever such entry
may be necessary by master key or otherwise, provided reasonable care is
exercised to safeguard Tenant's property.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 CONSENT REQUIRED.
(a) Tenant shall not, voluntarily or involuntarily, by
operation of law or otherwise: (i) assign, mortgage, pledge, encumber
or in any manner transfer this Lease in whole or in part, or (ii)
sublet all or any part of the Building, or allow any other person to
occupy all or any part thereof (a "Transfer"), without the prior
written consent of Landlord in each instance, which consent shall not,
as more fully provided hereafter, be unreasonably withheld, conditioned
or delayed, and any attempt to do any of such acts without such consent
shall be null and void and of no effect. A transfer of control of
Tenant, including, without being limited to, a transfer of stock or the
sale of all or substantially all of the assets of Tenant, shall be
deemed an assignment under this Lease and shall be subject to all the
provisions of this Article, including the requirement of obtaining
Landlord's prior consent. The consent by Landlord to any assignment,
mortgage, pledge, encumbrance, transfer or subletting shall not
constitute a waiver of the necessity for such consent to any subsequent
assignment, mortgage, pledge, encumbrance, transfer or subletting.
(b) If this Lease be assigned, or if the Building or any part
thereof be sublet or occupied by anyone other than Tenant, Landlord may
collect Rent from the assignee,
13
subtenant or occupant, and apply the net amount collected to the Rent
herein reserved, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance
of the assignee, subtenant or occupant as tenant, or a release of
Tenant from the further performance by Tenant of covenants on the part
of Tenant herein contained.
(c) Notwithstanding any assignment, mortgage, pledge,
encumbrance, transfer or sublease of this Lease, Tenant shall remain
fully liable for the performance of all of the terms, covenants,
obligations and conditions of this Lease and shall not be released
therefrom.
14.2 STANDARDS FOR CONSENT. If Tenant desires the consent of Landlord
to a Transfer, Tenant shall submit to Landlord, at least thirty (30) days prior
to the proposed effective date of the Transfer, a written notice which includes
such information as Landlord may require about the proposed Transfer and the
transferee. Landlord shall not unreasonably withhold its consent to any
assignment or sublease, which consent or lack thereof shall be provided within
thirty (30) days after receipt of Tenant's notice. Landlord shall not be deemed
to have unreasonably withheld its consent if, in the reasonable judgment of
Landlord: (i) the transferee is of a character or engaged in a business which is
not in keeping with the standards or criteria used by Landlord in leasing the
Building; (ii) the financial condition of the transferee is such that it may not
be able to perform its obligations in connection with this Lease; (iii) Tenant
is in default under this Lease; or (iv) in the judgment of Landlord, such a
Transfer would violate any term, condition, covenant or agreement of the
Landlord involving the Building. The foregoing, however, is not intended to be
an exhaustive list of reasonable reasons for Landlord to withhold such consent.
If Landlord wrongfully withholds its consent to any Transfer, Tenant's sole and
exclusive remedy therefor shall be to seek specific performance of Landlord's
obligation to consent to such Transfer, unless, however a finding is made by the
court rendering the judgement that Landlord acted in malicious bad faith in
withholding its consent to the proposed Transfer, in which case Tenant shall be
entitled to damages suffered by Tenant as a result thereof.
ARTICLE 15
DEFAULT
15.1 DEFAULT. The occurrence of any of the following shall constitute a
default (a "DEFAULT") by Tenant under this Lease: (i) Tenant fails to pay any
Rent when due and such failure is not cured within ten (10) business days after
notice (give in accordance with Article 20 below) from Landlord (which notice
may be in the form of a Landlord statutory notice); (ii) Tenant fails to perform
any other provision of this Lease and such failure is not cured within thirty
(30) days (or immediately if the failure involves a hazardous condition) after
notice from Landlord, provided, however, that if such failure to perform cannot
by its nature be cured within said thirty (30) day period using due diligence,
then said thirty (30) day period shall be extended for a reasonable period of
time to complete such cure so long as Tenant commences such cure within the
initial thirty (30) days and thereafter diligently proceeds to complete such
cure; (iii) the leasehold interest of Tenant is levied upon or attached under
process of law; (iv) Tenant abandons the Building without notice to Landlord; or
(v) any voluntary or involuntary proceedings are filed by or against Tenant as
debtor under any bankruptcy, insolvency or similar laws and, in the case of any
involuntary proceedings, are not dismissed within thirty (30) days after filing.
15.2 RIGHT OF RE-ENTRY. Upon the occurrence of a Default, Landlord may
elect to terminate this Lease or, without terminating this Lease, terminate
Tenant's right to possession of the Building. Upon any such termination, Tenant
shall immediately surrender and vacate the Building and deliver possession
thereof to Landlord. Tenant grants to Landlord the right to enter and repossess
the Building and to expel Tenant and any others who may be occupying the
Building and to remove any and all property therefrom, without being deemed in
any manner guilty of trespass and without relinquishing Landlord's rights to
Rent or any other right given to Landlord hereunder or by operation of law.
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15.3 TERMINATION OF RIGHT TO POSSESSION. If Landlord terminates
Tenant's right to possession of the Building without terminating this Lease,
Landlord may relet the Building or any part thereof. In such case, Landlord
shall use reasonable efforts to relet the Building on such terms as Landlord
shall reasonably deem appropriate; provided, however, Landlord may first lease
Landlord's other available space and shall not be required to accept any tenant
offered by Tenant or to observe any instructions given by Tenant about such
reletting. Tenant shall reimburse Landlord for the costs and expenses of
reletting the Building including, but not limited to, all brokerage,
advertising, legal, alteration, redecorating, repairs and other expenses
incurred to secure a new tenant for the Building. In addition, if the
consideration collected by Landlord upon any such reletting, after payment of
the expenses of reletting the Building which have not been reimbursed by Tenant,
is insufficient to pay monthly the full amount of the Rent, Tenant shall pay to
Landlord the amount of each monthly deficiency as it becomes due. If such
consideration is greater than the amount necessary to pay the full amount of the
Rent, the full amount of such excess shall be retained by Landlord and shall in
no event be payable to Tenant.
15.4 TERMINATION OF LEASE. If Landlord terminates this Lease, Landlord
may recover from Tenant and Tenant shall pay to Landlord, on demand, as and for
liquidated and final damages, an accelerated lump sum amount equal to the amount
by which Landlord's reasonable estimate of the aggregate amount of Rent owing
from the date of such termination through the Expiration Date plus Landlord's
estimate of the aggregate expenses of reletting the Building, exceeds Landlord's
estimate of the fair rental value of the Building for the same period (after
deducting from such fair rental value the time needed to relet the Building and
the amount of concessions which would normally be given to a new tenant) both
discounted to present value at the rate of five percent (5%) per annum.
15.5 OTHER REMEDIES. Landlord may, but shall not be obligated to,
perform any obligation of Tenant under this Lease, and, if Landlord so elects,
all costs and expenses paid by Landlord in performing such obligation, together
with interest at the Default Rate, shall be reimbursed by Tenant to Landlord on
demand. Any and all remedies set forth in this Lease: (i) shall be in addition
to any and all other remedies Landlord may have at law or in equity; (ii) shall
be cumulative; and (iii) may be pursued successively or concurrently as Landlord
may elect. The exercise of any remedy by Landlord shall not be deemed an
election of remedies or preclude Landlord from exercising any other remedies in
the future.
15.6 BANKRUPTCY. If Tenant becomes bankrupt, the bankruptcy trustee
shall not have the right to assume or assign this Lease unless the trustee
complies with all requirements of the United States Bankruptcy Code, and
Landlord expressly reserves all of its rights, claims and remedies thereunder.
15.7 WAIVER OF TRIAL BY JURY. Landlord and Tenant waive trial by jury
in the event of any action, proceeding or counterclaim brought by either
Landlord or Tenant against the other in connection with this Lease.
15.8 VENUE. If either Landlord or Tenant desires to bring an action
against the other in connection with this Lease, such action shall be brought in
the federal courts located in Chicago, Illinois, or state courts located in
DuPage County, Illinois. Landlord and Tenant consent to the jurisdiction of such
courts.
ARTICLE 16
SURRENDER
16.1 POSSESSION. Upon the expiration or earlier termination of this
Lease, Tenant shall immediately quit and surrender possession of the Building in
as good a state and condition as they were when entered into, reasonable wear
and tear and casualty damage (other than that which Tenant is obligated to
repair) excepted. Upon such surrender, all right, title and interest of Tenant
in the Building shall cease.
15
16.2 MERGER. The voluntary or other surrender of this Lease by Tenant
or the cancellation of this Lease by mutual agreement of Tenant and Landlord
shall not work a merger, but shall, at Landlord's option, terminate all or any
subleases and subtenancies or operate as an assignment to Landlord of all or any
subleases or subtenancies. Landlord's option hereunder shall be exercised by
notice to Tenant and all known sublessees or subtenants in the Building or any
part thereof.
ARTICLE 17
HOLDING OVER
17.1 HOLDING OVER. If Tenant retains possession of the Building or any
part thereof after the expiration or earlier termination of this Lease, Tenant
shall pay as Rent a sum equal to one and one-half times the amount, including
Fixed Rent and Additional Rent hereunder, payable for the month preceding such
holding over computed on a daily basis for each day that Tenant remains in
possession. In addition thereto, Tenant shall be liable for and shall pay to
Landlord, all damages, consequential as well as direct, sustained by reason of
Tenant's holding over.
ARTICLE 18
ESTOPPEL CERTIFICATE, SUBORDINATION, ATTORNMENT
18.1 ESTOPPEL CERTIFICATE. Tenant shall at any time upon the request of
Landlord, execute and deliver in recordable form and in substance satisfactory
to Landlord, an estoppel certificate certifying: the date Tenant accepted
occupancy of the Building; the date to which Rent has been paid; that this Lease
is in full force and effect and has not been modified or amended (or if modified
or amended, describing the same) and that there are no defenses or offsets
thereto or defaults of Landlord under this Lease (or if any be claimed,
describing the same); and such other matters as Landlord may reasonably request.
Tenant's failure to deliver such certificate within ten (10) days after receipt
of the demand therefor shall be a default hereunder.
18.2 SUBORDINATION. This Lease is and shall be subject and subordinate
to all ground or underlying leases, mortgages and deeds of trust which now or
hereafter affect the Building and/or any ground or underlying leases thereof and
to all renewals, modifications, consolidations, replacements and extensions
thereof. The provisions of this section shall be automatic and shall not require
any further action. In confirmation of such subordination, Tenant will execute
and deliver upon demand of Landlord any and all instruments desired by Landlord
subordinating this lease to such lease, mortgage or deed of trust.
18.3 ATTORNMENT. Tenant agrees that, at the option of the landlord
under any ground lease now or hereafter affecting the Building, Tenant shall
attorn to said landlord in the event of the termination or cancellation of such
ground lease and if requested by said landlord, enter into a new lease with said
landlord (or a successor ground-lessee designated by said landlord) for the
balance of the term then remaining hereunder upon the same terms and conditions
as those herein provided.
18.4 MORTGAGES. Tenant covenants and agrees that, if by reason of
default under any mortgage or deed of trust which may now or hereafter affect
the Building, the mortgagee thereunder enters into and becomes possessed of the
said mortgaged property either through possession or foreclosure action or
proceeding, or in the event of the sale of the said mortgaged property as a
result of any action or proceeding to foreclosure the said mortgage, Tenant will
attorn to the mortgagee or such then owner as its landlord under this Lease.
Tenant agrees to execute and deliver, at any time and from time to time, upon
the request of the mortgagee or the then owner of the said mortgaged property of
which the Building forms a part any instrument which may be necessary or
appropriate to evidence such attornment. Tenant further waives the provisions of
any statute or rule of law now or hereafter in effect which may give or purport
to give Tenant any right of election to terminate this Lease or to surrender
possession of the Building in the event any proceeding is brought by the
mortgagee under any such mortgage to terminate the same.
18.5 NON-DISTURBANCE AGREEMENT. Landlord agrees to make commercially
reasonable efforts to obtain from any superior ground lessor or mortgagee, if
any, a non-disturbance agreement
16
for Tenant's protection on such terms and conditions as are mutually agreed upon
by Landlord, Tenant and such ground lessor or holder of a mortgage.
ARTICLE 19
QUIET ENJOYMENT
19.1 QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that
upon payment by Tenant of the Rent hereunder and upon the observance and
performance of all of the terms, covenants and conditions on Tenant's part to be
observed and performed, Tenant may peaceably and quietly enjoy the Building,
free of all claims from Landlord. Landlord represents and warrants to Tenant
that Landlord is the holder of fee title to the Building.
ARTICLE 20
NOTICES
20.1 NOTICES. Whenever any notice or consent is required or permitted
hereunder, such notice or consent shall be in writing. Any notice or document
required or permitted to be delivered hereunder shall be deemed to be delivered
(a) upon receipt when sent by recognized overnight courier or (b) three (3)
business days after deposit in the United States Mail, postage prepaid,
Registered or Certified Mail, Return Receipt Requested, addressed to the parties
hereto at the addresses set forth in Article l, or at such other addresses as
they have theretofore specified by written notice delivered in accordance
herewith.
ARTICLE 21
MISCELLANEOUS PROVISIONS
21.1 TIME. Time is and shall be of the essence of this Lease and all
its provisions.
21.2 APPLICABLE LAW AND CONSTRUCTION.
(a) This Lease shall be governed by and construed under the
laws of the State in which the Building is located.
(b) The necessary grammatical changes required to make the
provisions of this Lease apply in the plural sense where there is more
than one tenant and to either corporations, associations, partnerships
or individuals, males or females, shall in all instances be assumed as
though fully expressed. If there is more than one person or entity who
or which are Tenant under this Lease, the obligations imposed upon
Tenant under this Lease shall be joint and several. The relationship
between Landlord and Tenant created hereunder shall be that of lessor
and lessee and nothing herein shall be construed as creating any joint
venture or partnership. The captions used in this Lease are for
convenience only and do not in any way limit or amplify the terms and
provisions hereof.
21.3 PARTIES BOUND. It is agreed that this Lease, and each and all the
covenants and obligations hereof, shall be binding upon and inure to the benefit
of, as the case may be, the parties hereto, their respective heirs, executors,
administrators, successors and assigns, subject to all agreements and
restrictions herein contained with respect to assignment or other transfer of
Tenant's interest herein.
21.4 NO REPRESENTATIONS BY LANDLORD. Except as may otherwise be
provided elsewhere in this Lease, neither Landlord nor Landlord's agents have
made any representations or promises with respect to the physical condition of
the Building, permissible uses of Building, the rents, leases, expenses of
operation or any other matter or thing affecting or related to the Building
except as herein expressly set forth, and no rights, easements, or licenses are
acquired by Tenant by
17
implication or otherwise except as expressly set forth in the provisions of this
Lease. Tenant has inspected the Building and is thoroughly acquainted with their
condition, and agrees to accept the same "as is" subject to completion of
Landlord's Work; provided, however, that the foregoing is not intended to and
shall not be construed as a waiver by Tenant of any obligations of the general
contractor, subcontractors or design professionals with respect to Landlord's
Work. All understandings and agreements heretofore made between the parties
hereto are merged in this Lease, which alone fully and completely expresses the
agreement between Landlord and Tenant, and any executory agreement hereafter
made shall be ineffective to change, modify, discharge or effect an abandonment
of it, in whole or in part, or a surrender of this Lease or of the Building or
any part thereof or of any interest of Tenant therein unless such executory
agreement is in writing and signed by Landlord and Tenant.
21.5 BROKERS. Each of Landlord and Tenant warrant that it has had no
dealings with any broker, agent or any other person in connection with the
negotiation or execution of this Lease other than the broker(s) identified in
Article 1, the commission due said broker(s) so identified being the sole
responsibility of Landlord. Each of Landlord and Tenant agree to indemnify and
hold harmless the other from and against any and all cost, expense, or liability
for commissions or other compensation and charges claimed by any broker or agent
(other than the broker(s) identified in Article 1) with respect to this Lease on
account of the acts of the indemnifying party.
21.6 SEVERABILITY. The invalidity or unenforceability of any provision
of this Lease shall not affect or impair the validity of any other provision.
21.7 FORCE MAJEURE. In the event Landlord or Tenant shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lock-outs, labor troubles, inability to procure materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, war or other reason of a like nature beyond the reasonable control
of Landlord or Tenant, and the case may be, in performing work or doing acts
required under the terms of this Lease, then performance of such act shall be
extended for a period equivalent to the period of such delay, provided, however,
that the payment of Rent or any portion thereof by Tenant shall not be subject
to such delays or extension.
21.8 DEFINITION OF LANDLORD. As used in this Lease, the term "Landlord"
shall mean only the owner, or the mortgagee in possession, for the time being,
of the Building or the owner of a lease of the Building so that in the event of
any sale of the Building or in the event of a lease of the Building said
Landlord shall be and hereby is entirely freed and relieved of all covenants and
obligations of Landlord hereunder thereafter to be performed or observed, and it
shall be deemed and construed without further agreement between the parties or
their successors in interest, or between the parties and any such purchaser or
lessee, that such purchaser or lessee has assumed and agreed to performed and
observe any and all covenants and obligations of Landlord hereunder.
21.9 NO OPTION. The submission of this Lease for examination or
execution does not constitute a reservation of or option for the Building, and
this Lease becomes effective as a lease only upon execution and delivery thereof
by Landlord and Tenant.
21.10 EXCULPATORY CLAUSE. All separate and personal liability of
Landlord or any trustee, director, officer, partner or principal (disclosed or
undisclosed) thereof of every kind or nature, if any, is waived by Tenant, and
by every person now or hereafter claiming by, through or under Tenant; and
Tenant shall look solely to Landlord's estate in the Building for the payment of
any claim against Landlord. Tenant acknowledges that after the Commencement
Date, Landlord intends on assigning this Lease to Metropolitan Life Insurance
Company, or affiliated entity, and that the foregoing limitation of liability be
applicable to such successor Landlord.
21.11 NO RECORDING. Tenant shall not record this Lease, or any portion
or any reference hereto. In the event Tenant records this Lease, or permits or
causes this Lease, or any portion hereof or reference hereto to be recorded,
this Lease shall terminate at Landlord's option or Landlord may declare a
default hereunder and pursue any and all of its remedies provided in this Lease.
18
21.12 ERISA. Tenant hereby represents and warrants to Landlord that (i)
Tenant is not a "party in interest" (within the meaning of Section 3(14) of the
Employee Retirement Income Security Act of 1974, as amended) or a "disqualified
person" (within the meaning of Section 4975 of the Internal Revenue Code of
1986, as amended) with respect to any retirement or pension plan of the
Metropolitan Life Insurance Company, and (ii) no portion of or interest in the
Lease will be treated as a "plan asset" within the meaning of Regulation 29 CFR
Section 2510.3-101 issued by the Department of Labor.
21.13 CONSEQUENTIAL DAMAGES. Landlord and Tenant, respectively, each
waive, to full extent permitted by law, any claim of consequential damages
against the other party in connection with any default by the other party under
the terms and conditions of this Lease.
ARTICLE 22
OPTION TO EXTEND
22.1 OPTION TO EXTEND. Provided that Tenant is not in default hereunder
on the date of the Notice to Extend (as hereinafter defined) or on the
Expiration Date and on each such date shall be in occupancy of the entire
Building, Tenant shall have the right to extend the Term for the Extension
Term(s) described in Article 1 hereof, upon the same terms and conditions as are
herein provided, except that (a) Fixed Rent during the Extension Term(s) shall
be at the annual Fair Market Rent (as hereinafter defined) for the Building for
the Extension Term, (b) Tenant shall have no option to extend this Lease beyond
the expiration of the final Extension Term, and (c) the Building shall be
delivered in their existing condition (on an "as is" basis") at the time such
Extension Term commences. Such right shall be exercised by Tenant by giving
written notice (the "NOTICE TO EXTEND") to Landlord at least nine (9) months
prior to the Expiration Date of the applicable Term or Extend Term(s). Time
shall be of the essence for the exercise of such option. Tenant shall have no
further right to extend or renew this Lease. The extension options set forth in
this Article 22 are personal to United Stationers Supply Co. and shall not inure
to the benefit of any third party.
22.2 FAIR MARKET RENT. For the purposes of this Article, "FAIR MARKET
RENT" shall mean the Fixed Rent, on a so-called "net" basis, that would be paid
by a willing tenant, not compelled to lease, and accepted by a willing landlord,
not compelled to lease, for the Building as of the pertinent date taking into
account all terms and conditions for an extension, including, INTER ALIA, tenant
improvements and other concessions then being offered in the market. Fair Market
Rent shall be determined by Landlord in a notice ("FAIR MARKET RENT NOTICE")
delivered to Tenant not later than six (6) months prior to the commencement of
each Extension Term.
22.3 DISPUTE OF FAIR MARKET RENT. In the event Tenant shall elect to
dispute Landlord's determination of the Fair Market Rent, Tenant shall be
required to notify Landlord of such dispute in writing (the "DISPUTE NOTICE")
within thirty (30) days after delivery to Tenant of the Fair Market Rent Notice.
Failure by Tenant to so notify Landlord of Tenant's dispute of the amount
thereof shall be deemed to constitute Tenant's acceptance thereof. If Tenant
shall timely notify Landlord of Tenant's dispute, and if Landlord and Tenant are
not able, within thirty (30) days after such notice, to agree upon the fair
market rent, then the determination of Fair Market Rent shall be determined by
arbitration as hereinafter set forth. If such arbitration concerning Fair Market
Rent shall not be concluded prior to the commencement of the applicable Extend
Term, Tenant shall nevertheless pay all Fixed Rent and Additional Rent to
Landlord with respect thereto from and after the commencement of the applicable
Extension Term, which shall include Fixed Rent at the Rate payable for the
period immediately prior to the Extension Term. If the applicable Fair Market
Rent as determined by arbitration is greater than or less than that specified in
the Fair Market Rent Notice, then such adjustment as shall be needed to correct
the amount previously paid by Tenant on such overpaid or underpaid amount, as
the case may be, computed from the date of such overpayment or underpayment, as
the case may be, to the date of refund or payment, as appropriate shall be made
in a payment by the appropriate party within thirty (30) days after the
arbitration determination.
22.4 ARBITRATION OF FAIR MARKET RENT. In the event that arbitration of
the Fair Market Rent shall be required pursuant to this Article, then the
following procedures shall apply:
19
(a) If Landlord or Tenant desires to invoke the arbitration
procedure set forth in this Article, the party invoking the arbitration
procedure shall give a notice to the other party and shall in such
notice appoint a person as arbitrator on its behalf. Within thirty (30)
days after such notice, the other party by notice to the original party
shall appoint a second person as arbitrator on its behalf. The
arbitrators thus appointed shall appoint a third person, and such three
arbitrators shall as promptly as possible determine such matter;
provided, however, that:
(i) If the second arbitrator shall not have been
appointed within the thirty (30) day period as aforesaid, the
first arbitrator shall proceed to determine such matter and
shall render his decision and award in writing within thirty
(30) days after the expiration of said thirty (30) day period;
and
(ii) If the two arbitrators are appointed by the
parties and shall be unable to agree, within ten (10) days
after the appointment of the second arbitrator, upon the
appointment of a third arbitrator, they shall give written
notice to the parties of such failure to agree, and if the
parties fail to agree upon the selection of such third
arbitrator within ten (10) days after the arbitrators
appointed by the parties give notice as aforesaid, then within
five (5) days thereafter either of the parties upon notice to
the other party may request such appointment by the nearest
office of the American Arbitration Association or any
organization which is the successor thereof (the "AAA"), or in
its absence, refusal, failure or inability to act, may apply
to a trial court of the state in which the Building is located
having jurisdiction over the Building (the "COURT"), for the
appointment of such arbitrator and the other party shall not
raise any question as to the Court's full power and
jurisdiction to entertain the application and make the
appointment.
All such arbitrators shall be competent real estate
professionals experienced in and knowledgeable of the North DuPage
County, Illinois, industrial real estate market.
(b) The arbitration shall be conducted in accordance with the
then prevailing rules of the AAA, modified as follows:
(i) To the extent that any statute of the state in
which the Building is located imposes requirements different
than those of the AAA in order for the decision of the
arbitrator or arbitrators to be enforceable in the courts of
such state, such requirements shall be complied with in the
arbitration;
(ii) Each arbitrator shall be disinterested and shall
not be affiliated with Landlord or Tenant; and
(iii) The arbitrators, if more than one, shall render
their decision and award in writing, upon the concurrence of
at least two of their number, within thirty (30) days after
the appointment of the third arbitrator.
(c) Such decision and award or the decision and award of the
single arbitrator as provided in this Article, shall be binding and
conclusive on the parties, shall constitute an "award" by the
arbitrator within the meaning of the AAA rules and applicable law, and
counterpart copies thereof shall be delivered to each of the parties.
In rendering such decision and award, the arbitrators shall not add to,
subtract from or otherwise modify the provisions of this Lease.
Judgment may be had on the decision and award of the arbitrators so
rendered in any court of competent jurisdiction.
(d) Each party shall pay the fees and expenses of one of the
two original arbitrators appointed by or for such party and the fees
and expenses of the third arbitrator and all other expenses of the
arbitration (other than the fees and disbursements of attorneys or
witnesses for each party) shall be borne by the parties equally.
20
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed as of the ___ day of ___________, 1998.
LANDLORD:
XXXXX XXXXX STREAM
ASSOCIATES, LLC
By: /s/ [ILLEGIBLE]
---------------------
Name: [ILLEGIBLE]
Title: Manager
TENANT:
UNITED STATIONERS
SUPPLY CO.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President & CFO
21
EXHIBIT A
LEGAL DESCRIPTION
THAT PART OF LOTS 36 THROUGH 51 IN BLOCK 4 DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF LOT 1 IN 1ST RESUBDIVISION XX XXXXX 0
XX XXXXX XXXXX XXXXXXXX XXXXXX; THENCE SOUTH 00 DEGREES 07 MINUTES 53 SECONDS
WEST, ALONG THE WEST LINE OF BLOCK 4, AFORESAID, 795.28 EAST TO THE POINT OF
BEGINNING, THENCE NORTH 89 DEGREES 52 MINUTES 07 SECONDS EAST, 887.06 FEET TO
A POINT ON THE WEST LINE OF XXXXXXXX DRIVE; THENCE SOUTH 00 DEGREES 09
MINUTES 36 SECONDS EAST, ALONG SAID WEST LINE, 727.20 FEET TO THE XXXXXXXXX
XXXXXX XX XXX 00 XX XXXX XXXXX 0; THENCE SOUTH 87 DEGREES 33 MINUTES 34
SECONDS WEST, ALONG THE NORTH LINE OF SAID LOT 52 (ALSO BEING A POINT ON THE
WEST LINE OF SAID BLOCK 4); THENCE NORTH 00 DEGREES 07 MINUTES 53 SECONDS
WEST, ALONG SAID WEST LINE, 762.98 FEET, TO THE POINT OF BEGINNING, IN XXXXX
POINT BUSINESS CENTER. 1ST RESUBDIVISION OF BLOCK 4, BEING A RESUBDIVISION
OF PART OF THE NORTHEAST 1/4 OF SECTION 29, TOWNSHIP 40 NORTH, RANGE 10,
ACCORDING TO THE PLAT OF SAID RESUBDIVISION RECORDED MARCH 31, 1995 AS
DOCUMENT P95-037733, IN DU PAGE COUNTY, ILLINOIS.
PERMANENT INDEX NUMBER: 00-00-000-000, AFFECTS PART OF XXX 00
XXXXXXXXX XXXXX NUMBER: 00-00-000-000, AFFECTS PART OF LOT 37
PERMANENT INDEX NUMBER: 00-00-000-000, AFFECTS LOT 38
PERMANENT INDEX NUMBER: 02-29-202-015, AFFECTS LOT 39
PERMANENT INDEX NUMBER: 00-00-000-000, AFFECTS LOT 40
PERMANENT INDEX NUMBER: 00-00-000-000, AFFECTS LOT 41
PERMANENT INDEX NUMBER: 00-00-000-000, AFFECTS LOT 42
PERMANENT INDEX NUMBER: 00-00-000-000, AFFECTS LOT 43
PERMANENT INDEX NUMBER: 02-29-202-020, AFFECTS LOT 44
PERMANENT INDEX NUMBER: 02-29-202-021, AFFECTS LOT 45
PERMANENT INDEX NUMBER: 02-29-202-022, AFFECTS LOT 46
PERMANENT INDEX NUMBER: 00-00-000-000, AFFECTS LOT 47
PERMANENT INDEX NUMBER: 02-29-202-024, AFFECTS LOT 48
PERMANENT INDEX NUMBER: 00-00-000-000, AFFECTS LOT 49
PERMANENT INDEX NUMBER: 00-00-000-000, AFFECTS LOT 50
PERMANENT INDEX NUMBER: 00-00-000-000, AFFECTS XXX 00
X-0
XXXXXXX X
DEPICTION OF BULK STORAGE SPACE
[GRAPHIC OMITTED]
B-1
EXHIBIT C
LANDLORD'S WORK
TRUCK LOADING:
(One) 12' x 14' drive-in exterior steel sectional, motor operated overhead door,
insulated with backup panels and weather stripping, high lift hardware.
(42) 9' x 10' manual steel sectional overhead doors, insulated with backup
panels and weather stripping, vertical lift hardware.
60 ft. concrete dock staging apron.
42 manual dock levels, 6' x 8' 30,000 lb. Capacity, with bumpers.
42 dock seals at 9' x 10' exterior overhead dock doors.
5" diameter concrete-filled pipe bollard to be installed in order to protect
jambs at each overhead door.
Dock lights at each loading dock.
WAREHOUSE:
One 1,000 sq. ft. receiving dock office at the southwest corner of the property.
(Included in 16,500 sq. ft. allowance)
(1) 1,500 sq. ft. shipping office at the northeast corner of the facility.
(Included in 16,500 sq. ft. allowance)
Male and female remote bathrooms and small break room to accommodate ten people.
POWER:
2,000 amps/277/480 volt, 3-phase electrical service
200 amp, 480 volt, 3-phase distribution panel for battery charging area with
(24) 30 amp disconnect switches.
400 amp, 480 volt, 3-phase distribution panel for conveyor system.
200 amp, 120 volt, 1-phase distribution panel for convenience outlets on
mezzanine.
60 amp, 480 volt, 3-phase disconnect for trash compactor.
60, amp, 480 volt, 3-phase disconnect for corrugated compactor.
EXTERIOR LIGHTING:
Site lighting will include building wall-mounted 400 watt high pressure sodium
cutoff luminaries and prefinished metal light poles on concrete base in the
parking lot as required by code.
C-1
WAREHOUSE LIGHTING:
Lighting levels specified will require 1000 watt metal halide fixtures providing
30 ft. candles outside the rack area and 20 ft. candles in the aisle ways of the
rack area measured 36" above the floor.
The final lighting grid within the warehouse will be designated to match the
proposed aisles.
FIRE PROTECTION:
ESFR system throughout the building and mezzanine sprinklers for tenant
installed 37,500 sq. ft. mezzanine. As more fully provided under Section 5.3 of
the Lease, a $60,000 allowance has been provided for installation of mezzanine
lighting and mezzanine electrical requirements.
WAREHOUSE HEAT:
Design criteria shall meet 65 degrees Fahrenhelt inside at -10 degrees outside
utilizing positive pressure heating units.
WAREHOUSE VENTILATION:
Three air changes per hour included.
FF RATING:
FF 35 with a 6" reinforced concrete floor.
WAREHOUSE FLOOR SEALANT:
Ashford formula
BATTERY CHARGING AREA:
Eyewash station, drain and hose bib 250' linear feet from sanitary line.
OFFICE AREAS
Approximately 16,500 square feet as more fully described on the plans and
specifications identified on Attachment 1 to then Exhibit C. As more fully
provided under Section 5.3 of the Lease, a $577,500 allowance has been
provided for completion of the office areas. Said allowance does not include
erecting the demising wall between the office areas and the warehouse areas
of the Building, which demising wall shall be erected by Landlord at
Landlord's expense.
SIGNAGE
Corporate identification space as more fully described on the plans and
specifications identified on Attachment 1 to them Exhibit C. As more fully
provided under Section 5.3 of the Lease, a $15,000 allowance has been
provided for such signage.
C-2
ATTACHMENT 1 TO EXHIBIT C
PLANS AND SPECIFICATIONS
Xxxxxx Architects, Inc. Plans for United Stationers Supply Company at Xxxxx
Xxxxx Xxxxxxxx Xxxxxx - Xxxxx Xxxxxx, Xxxxxxxx.
1. Site Plan - Page 1 issued for tenant sign off on 9/30/98.
100,000 s.f. site plan approved and signed by Xxxxxxx Xxxxxx 10/2/98.
2. Floor Plan - Page 2 issued for tenant sign off on 9/30/98.
100,000 s.f. floor plan approved and signed by Xxxxxx Xxxxxx 10/2/98.
With notation of:
- Eye wash and hose bib location
- Restroom location
- 8 and 2 new dock doors, levelers and seals to match existing
3. Schedule Details and Plumbing - Page 3 issued for tenant sign off on
9/30/98.
Approved and signed by Xxxxxx Xxxxxx 10/2/98 with changes as noted.
4. Specifications - Page 4 issued for tenant sign off on 9/30/98.
Approved and signed by Xxxxxx Xxxxxx 10/2/98.
5. Plan E1 dated 9/21/98 100,000 s.f.-approved and signed by Xxxxxx Xxxxxx
10/2/98
6. Plan E2 dated 9/21/98 100,000 s.f.-approved and signed by Xxxxxx Xxxxxx
10/2/98
7. Xxxxxx office plans to be described and signed.
Prairie Mechanical, Inc. Plans for United Stationers Supply Company at Xxxxx
Xxxxx Xxxxxxxx Xxxxxx - Xxxxx Xxxxxx, Xxxxxxxx
8. Plan M-1 dated 9/18/98 approved by Xxxxxx Xxxxxx 10/2/98
9. Plan M-2 dated 9/18/98 approved by Xxxxxx Xxxxxx 00/0/00
00. Plan M-3 dated 9/18/98 approved by Xxxxxx Xxxxxx 00/0/00
00. Plan M-4 dated 9/18/98 approved by Xxxxxx Xxxxxx 00/0/00
00. Plan M-5 dated 9/18/98 approved by Xxxxxx Xxxxxx 10/2/98
13.
Attachment 1-1
