Exhibit 10.3
LEASE AGREEMENT
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THIS LEASE is made the 7th day of October, 1991.
THE PARTIES ARE:
XXXXXXX PROPERTIES, INC., 0000 Xxxx Xxxx Xxxx, Xxxxx X-000, Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
--"Landlord";
and, FIRST CHICAGO BUILDING CORPORATION, Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000
--"Tenant."
THE DEMISED PREMISES ARE:
THAT APPROXIMATELY 2,500 SQUARE FOOT PART of the three-story office
condominium building and facility, more particularly described on
Exhibit A (the "Improvements"), which are located upon and within the
land and improvements known as 0000 Xxxx Xxxx Xxxx, Xxxxxxxxx Xxxxxxx,
Xxxxxxxx more particularly described on Exhibit B and (the
Improvements and the said land being herein jointly referred to as the
"Premises").
LANDLORD, for and in consideration of the payment of the rent and the
performance of the covenants and agreements by Tenant herein contained, does
hereby lease to Tenant, and Tenant does hereby lease from Landlord, the demised
Premises.
ARTICLE ONE
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Term, Commencement Date, Construction and Security Deposit
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Section 1-1. Term. The term of this Lease shall be for the period commencing on
the commencement date as hereinafter set forth and expiring without further
notice or act on July 31, 1997 with two (2) five (5)-year renewal options.
Section 1-2. Commencement Date. The commencement date shall be the later of
October 1, 1991 or the date upon which the Improvements are substantially
completed to permit Tenant to open Tenant's business for the intended use of the
Premises or the date upon which the proper municipal authorities grant a
certificate of occupancy to permit Tenant to open Tenant's business for the
intended use of the Premises if such certificate is required by applicable
municipal ordinances.
Section 1-3. Delivery of Possession; Consent to Combining Premises With
Adjoining Premises; Condition of Premses. Landlord will deliver
the Premises to Tenant immediately upon execution of this Lease by Landlord and
Tenant. The Premises will be delivered in their "AS-IS" condition. Tenant may
cause such alterations to be made to the Premises as Tenant may desire to
prepare the Premises for Tenant's intended use of the Premises. As more
particularly set forth below, Landlord acknowledges that Tenant intends to
combine the Premises with those premises (the "Adjoining Premises") leased by
Tenant pursuant to a Lease Agreement (the "Adjoining Lease"), dated February 6,
1981, between Xxxxxx Xxxxx, as landlord ("Adjoining Landlord"), and Glenview
Guaranty Savings & Loan Association, Tenant's remote predecessor in interest, as
tenant, and to use and operate the Premises and the Adjoining Premises as a
single unit. Landlord specifically consents to Tenant demolishing, opening
passages or doors through, or otherwise altering, the wall or walls between the
Premises and the Adjoining Premises or such other portions of the Premises as
Tenant may desire (the "Adjoining Walls") to accommodate such combination.
Tenant will deliver to Landlord Tenant's plans and specifications relating to
such alterations of the Premises which will demonstrate to Landlord's reasonable
satisfaction that the Premises as so altered will be structurally sound.
Landlord represents to Tenant that, as of the date of this Lease, except as set
forth below, the Premises and the Improvements, and all equipment serving the
Premises and Improvements are in good condition and working order, that the
Premises and Improvements comply will all applicable state, federal, municipal,
and other laws, rules, and regulations applicable to the Premises and
Improvements and that the Premises and Improvements may lawfully be used for
Tenant's intended purpose as set forth in this Lease, and that there is no
breach or violation by Landlord or by the Premises or Improvements of the
conditions, convenants, declarations, rules, or regulations of the Condominium
Documents, as defined below. Notwithstanding the foregoing, Landlord
acknowledges that the parking lot serving the Premises is in need of repair.
Rand Olive Condominium Association, Inc. (the "Condominium Association") will
cause the parking lot to be patched, seal coated, and striped on or before June
30, 1992. Landlord acknowledges that Tenant may desire to modify the front
stairs of the main entrance of the building containing the Premises. Landlord
agrees to support Tenant's efforts to so modify the stairway at a reasonable
cost. Landlord agrees to cast all votes in Landlord's control, and to cause all
affiliates of Landlord to cast all votes in such affiliates' control, in the
same manner as Tenant cast the votes controlled by Tenant in any meeting of the
Condominium Association at which such modifications are voted upon.
Section 1-4. Options to Renew Term.
In accordance with Section 1-1 of this Lease, Landlord does hereby grant to
Tenant the right, privilege and option to renew this Lease for two (2)
successive five (5) year periods (collectively, the "Option Periods") upon the
same terms and conditions as herein contained except as otherwise provided in
this Section. The Base Rent during the first Option Period will be as set forth
below. The Base Rent during the
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second Option Period will be equal to the market rent for the Premises as of the
commencement of the first day of the second Option Period. For the purposes of
this section, "market rent" is the rent for which the Premises would be leased
to a tenant of similar creditworthiness as Tenant, for uses similar to Tenant's
use, and for terms similar to the terms of this Lease, less all applicable
concessions and other economic inducements then customarily given to new tenants
of similar leased premises. The market rent will be determined by agreement of
the parties and/or by appraisal, as provided below. The Option Period will
commence on the date immediately following the expiration of the initial Lease
term or the expiration of the first Option Period, if applicable.
Landlord shall give Tenant written notice of the impending expiration of the
initial Lease term or the first Option Period, as applicable, at least 210 days
prior to the expiration thereof. With respect to the first Option Period, Tenant
thereafter shall exercise its option by giving Landlord written notice of its
intent to renew at least 180 days prior to the expiration of the initial Lease
term.
With respect to the second Option Period, together with Landlord's notice to
Tenant, Landlord will also deliver to Tenant Landlord's estimation of the then
market rent for the Premises for purposes of establishing the rent during the
second Option Period. Tenant will have a period of 30 days after receiving such
notice within which to either accept Landlord's estimation of market rent or to
propose a different estimate of market rent. If Tenant accepts Landlord's
estimation of market rent, such estimation will be the rent during the second
Option Period if Tenant exercises its option to extend the term this Lease into
the second Option Period. If Tenant proposes a different estimate of market
rent, Landlord will have a period of 10 days after receiving such proposal
within which to either accept Tenant's estimation of market rent or to notify
Tenant in writing of Landlord's decision to submit the issue of market rent to
appraisal, as provided below. If Landlord accepts Tenant's estimation of market
rent, such estimation will be the rent during the second Option Period if Tenant
exercises its option to extend th term of this Lease into the second Option
Period. If Landlord notifies Tenant of Landlord's election to submit the rent
issue to appraisal, then, together with such notice, Landlord will submit the
name of an appraiser, qualified in the area of appraising the market rental
value of properties similar to the Premises. Tenant will have a period of 10
days within which to either accept the appraiser submitted by Landlord as the
sole appraiser or to submit the matter to a panel of appraisers. If Tenant
accepts such appraiser as the sole appraiser, such appraiser's determination of
market rent will be binding on the parties if Tenant exercises its option to
extend the term of this Lease into the second Option Period. If Tenant does not
so accept such appraiser, Tenant will so notify Landlord and, together with such
notice, Tenant will submit the name of an appraiser qualified in the area of
appraising the market rental value of properties similar to the Premises. The
two appraisers so selected by Landlord and Tenant will name a third appraiser
qualified in the area of appraising the market rental value of properties
similar
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to the Premises, and such three appraisers will independently estimate the then
market rental for the Premises and the market rental value of the Premises will
be the arithmatic average of the two appraised values which are closet together.
In the event that there is a sole appraiser, Landlord and Tenant will each pay
one-half of the costs and expenses of such appraiser. In the event that there is
a panel of appraisers, Landlord will pay all of the costs of the appraiser named
by Landlord, Tenant will pay all of the costs of the appraiser named by Tenant,
and Landlord and Tenant will each pay one-half of the third appraiser named by
the other two appraisers. Tenant will notify Landlord as to whether Tenant will
exercise its option to evoke the second Option Period within 30 days after the
date on which the market rent has been determined.
ARTICLE TWO
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Base Rental and Rental Adjustments
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Section 2-1. Base Rent.
Tenant shall pay to Landlord as base rent for the Premises the following amounts
monthly in advance on the first day of each and every calendar month during the
term of this Lease and during the Option Period if exercised by Tenant.
During the initial term of this Lease, Tenant will pay the following amounts as
minimum monthly rent:
Commencement through September 30, 1992: $2,395.00
October 1, 1992 through September 30, 1993: $2 494.79
October 1, 1993 through September 30, 1994: $2,598.74
October 1, 1994 through September 30, 1995: $2,707.02
October 1, 1995 through September 30, 1996: $2,819.81
October 1, 1996 through July 31, 1997: $2,937.30
If Tenant elects to exercise the Option Period, Tenant will pay the following
amounts as base rent monthly rent during the Option Period:
August 1, 1997 through September 30, 1997: $2,937.30
October 1, 1997 through September 30, 1998: $3,059.69
October 1, 1998 through September 30, 1999: $3,187.18
October 1, 1999 through September 30, 2000: $3,319.98
October 1, 2000 through September 30, 2001: $3,458.31
October 1, 2001 through July 31, 2002: $3,602.41
Section 2-2. Additional Rent. In addition to the base rent, Tenant shall pay to
Landlord in accordance with Section 2-4 the following as additional rents:
(a). Tenant shall pay as additional rent an amount equal to the Direct Expenses
(as defined in Section 2-5 below) paid or incurred by the Landlord on account of
the operation and/or maintenance of the Premises (as defined in Section 2-5).
The amount to be paid and the manner of payment shall be determined in
accordance with Section 2-4.
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(i) expenses directly attributable to Tenant's occupancy and use:
(aa) all heating, electrical and other utility services directly zoned
and separately metered;
(bb) all non-structural repairs;
(cc) telephone services; and,
(dd) other expenses, if any.
(ii) The following expenses indirectly related to Tenant's occupancy and
use of the Premises for the period beginning on the commencement date
and ending on the last day of each full year following commencement
date and each full year thereafter during the remainder of the term,
including any renewal thereof:
(aa) a proportion (as defined below) of all property taxes paid by
Landlord;
(bb) a proportion (as defined below) of any insurance premiums, other
than those reimbursed by Tenant as Direct Expenses, paid or
incurred by Landlord after deduction of premiums attributable to
the Improvements used and occupied by Tenant as provided for in
subparagraph 2-2(b)(i) of this Section.
The word "proportion" as hereinabove used shall be deemed to mean that
Tenant's expense shall be determined on a prorata basis which is
Tenant' s percentage of gross rentable area occupied under this Lease
in relation to total gross rentable area contained in the building of
which the Premises are a part. Tenant shall pay these expenses to
Landlord within thirty (30) days after receiving Landlord's statement
therefor. Notwithstanding any other provision of the Lease to the
contrary, the additional rent payable by Tenant with respect to any
given Lease Year, as defined below (other than the first Lease Year),
will not increase by more than five percent (5%) over the additional
rent paid by Tenant with respect to the previous Lease Year.
Section 2-3. Intentionally Omitted.
Section 2-4. Payment of Base Rent and Additional Rent. Base rent shall be paid
by Tenant on the first day of each and every calendar month during the term
hereof. If the commencement date is other than the first day of a calendar
month, rent for the portion of the calendar month at the beginning of the term
and at the end of the term shall be prorated.
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The additional rent required to be paid by Tenant in Section 2-2(a) shall be
determined and paid in the ofllowing manner. Landlord shall notify Tenant thirty
(30) days in advance, in writing, of the estimated amount of the direct expenses
to be paid or incurred by Landlord (as defined in Section 2-5 and based on the
financial statements prepared by Landlord's accountants for the prior year) for
the next succeeding 12 month period commencing upon the commencement date of the
term of this Lease (such 12 month period, and each succeeding 12 month period
thereafter may be referred to as a "Lease Year"). For the first Lease Year,
Landlord and Tenant shall agree as to the estimated amount of such expenses.
Tenant shall pay such sum in advance to Landlord in equal monthly installments
during the balance of the then current Lease Year on the first day of each
remaining month in said Lease Year commencing on the first day of the first
month following Tenant's receipt of such notification so that Tenant's entire
share of such increases shall have been paid to Landlord prior to the end of the
Lease Year. Within thirty (30) days following the end of each Lease Year during
the term of any renewal hereof Landlord shall submit to Tenant a statement
showing the actual amount of expenses of Landlord reimbursable by Tenant under
this Lease, the actual amount which should have been paid by Tenant with respect
to these expenses for the past Lease year, the amount thereof actually paid
during that year by Tenant, and the amount of any balance or overpayment thereof
as the case may be. Tenant may, upon notice to Landlord given within thirty (30)
days after Tenant receives such statement from Landlord, review, copy, or audit
Landlord's records with respect to such expenses. Any deficiency shall be paid
by Tenant to Landlord within thirty (30) days following Tenant's receipt of such
statement or completion of Tenant's review of Landlord's records if Tenant has
given Landlord notice of such review as provided above, and any overpayment
thereof shall be immediately credited against Tenant's additional rent due
hereunder.
The payments due hereunder shall be made in such manner and at such place or
places as Landlord may direct in writing and until further notice to:
Xxxxxxx Properties, Inc.
c/o X.X. Xxxxxxx & Associates, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxx X-000
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Tenant shall pay promptly all expenses required to be paid directly by Tenant
pursuant to Section 2-2(b)(i) and (ii).
Section 2-5. Definition of Direct Expense. Direct expense paid or incurred by
Landlord on account of the operation and/or maintenance of the Premises shall be
deemed to mean all reasonable direct costs of operations and maintenance as
determined by generally accepted principles of accounting and auditing practices
and includes by way of illustration and not limitation: heat, water, electricity
and other utility costs; insurance premiums; condominium association
assessments; real estate taxes; permits, licenses and inspection fees; cost of
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labor, materials and other services; and personal property taxes or replacement
taxes therefor, paid or incurred by Landlord in the operation and maintenance of
the Premises as determined by the certified public accountant employed by
Landlord for the applicable period or year. Direct expenses shall not include,
however, any property or other taxes levied or assessed attributable to the
Premises, or insurance premiums, to the extent that the payment of these
expenses has already been provided for in Section 2-2(b) (ii), or any expenses
or costs to be paid by Tenant under Sections 2-2(b) (i) or (ii). Any dispute
arising under this Section as to the reasonableness of the amount of direct
expenses, the inclusion of certain expenses or their attributability to Tenant
shall be resolved by arbitration pursuant to Section 6-1.
ARTICLE THREE
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Landlord's Additional Rights and Duties
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Section 3-1. Services. Landlord, at Landlord's expense subject to the provisions
of this Lease (specifically including but not limited to Section 2-2), shall
provide Tenant with the following services and shall pay all direct expenses,
all subject to reasonableness and applicable law and regulations:
(a) utilities for common areas;
(b) janitorial services for common areas;
(c) landscape services;
(d) trash removal;
(e) window washing as deemed necessary;
(f) snow removal as required;
(g) all structural repairs and maintenance;
(h) exterior maintenance;
(i) parking area maintenance;
(j) elevator service; and,
(k) management services.
Section 3-2. Taxes and Assessments. Subject to the provisions of this Lease,
Landlord shall be responsible to pay all state, city and county taxes,
assessments and other charges of every kind that become due and payable in
connection with the Premises and any Improvements now thereon or hereafter
placed upon said Premises during the original term of this Lease or during any
extended term if Tenant exercises Tenant's option to extend.
Section 3-3. Fire and Extended Coverage Insurance. Subject to the provisions of
this Lease, during the term of this Lease or any extensions thereof, Landlord at
landlord's own expense, covenants that Landlord will keep the Improvements now
standing upon, or which may hereafter be erected upon, the Premises insured
against loss or damage by fire, vandalism, and malicious mischief and the
hazards covered by extended coverage insurance in a responsible insurance
company or companies and to maintain such insurance at all times during the term
of this Lease or any extensions thereof in an amount equal to not less
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than the full insurable value of said Improvements. The policy or policies
thereof shall be taken out by Landlord and/or the Condominium Association and
shall name Tenant as co-insured or as additional insured and if required by any
mortgagee shall have loss payable to the mortgagees as their interests shall
appear.
Section 3-4. Maintenance. Landlord represents and warrants that the Premises,
including hot water, heating, plumbing and electrical systems, and all other
items, are in good working order and repair. Landlord shall make any repairs of
a structural nature to the Improvements and any non-structural repairs made
necessary by defects in construction as well as maintaining the roof, exterior
walls, foundation walls, driveways and parking lots.
If the repairs required to be made by Tenant are not completed within a
reasonable time after request for such repair by Landlord, Landlord shall have
the option to make such repairs after first giving Tenant fifteen (15) days'
notice of intention to do so, and any amounts expended by virtue thereof shall
be added to the next month's rent in the full amount of the expenditures.
Section 3-5. Landlord's Right to Access. Tenant shall permit Landlord and
Landlord's agents to enter upon the Premises at all reasonable times during
business hours to examine the condition of the same, provided that Landlord
gives Tenant a twenty-four (24) hour notice of coming, except in time of
emergency, and shall permit Landlord to make such repairs as may be required.
Notwithstanding the foregoing, including specifically, the foregoing provision
regarding entry into the Premises in time of emergency, due to the nature of
Tenant's business, Tenant may designate areas within the Premises which Landlord
may not enter into without Tenant's prior consent and then only when accompanied
by a representative designated by Tenant. Tenant shall permit Landlord, for a
period of one hundred eighty (180) days prior to the expiration of the term of
this Lease, as such term may have been extended, to place upon the Premises the
usual "For Rent" or "For Sale" signs, and shall permit Landlord and Landlord's
agents, at reasonable times during such period, to conduct prospective Tenants
or purchasers through the Premises after giving notice as aforesaid.
Section 3-6. Landlord's Title. Landlord's title is and always shall be paramount
to the title of Tenant and nothing contained in this Lease shall empower Tenant
to do any act which can, shall or may encumber Landlord's title.
ARTICLE FOUR
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Tenant's Additional Rights and Duties
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Section 4-1. Purpose of Use of Premises. Tenant is hereby given the privilege of
using the Premises and the common area of the Improvements for the purpose of
maintaining offices in the conduct of Tenant's principal business as set forth
in Exhibit E; provided, however, that in the event Tenant is by law, regulation
or ordinance prohibited or
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forbidden to use the Improvements for the purposes previously set forth, Tenant
is then hereby given the privilege of using the Improvements for any lawful
purpose in accordance with the terms and conditions of this Lease.
Section 4-2. Observation of Laws. Tenant shall at its own cost and expense,
promptly observe and comply with all laws, ordinances, requirements, orders,
directives, rules and regulations of the federal, state, county, municipal or
town governments and of all governmental authorities affecting the Premises and
Improvements, including land abutting the same and the street and parking lot
abutting it and any sidewalks which may be constructed adjacent to said street,
whether the same are in force at the commencement of the term of this Lease or
may be in the future passed, enacted or directed (collectively, "Laws") and
Tenant shall pay all costs, expenses, liabilities, losses, damages, fines,
penalties, claims and demands that may in any manner arise out of, or be imposed
because of the failure of Tenant to comply with its obligations under this
Lease; provided, however, that Landlord will pay the cost of causing the
Premises to comply with any Laws to the extent that the Premises fail to comply
with any such Laws as of the date of this Lease, and will also pay all costs,
expenses, liabilities, losses, damages, fines, penalties, claims and demands
that may in any manner arise out of, or be imposed because of such failure, and
provided also that in observing and complying with all Laws Tenant shall not be
required to make any structural repairs or changes in the Improvements or any
non-structural repairs made necessary by defects in construction.
Tenant shall not use or permit the Improvements or the Premises to be used for
any purpose other than as specified herein and shall not use or permit the
Improvements or Premises to be used for any unlawful, immoral or disreputable
purposes, nor for any use or occupation which would be in conflict with
provisions of the Municipal Code of the applicable village, city, county or
other governmental subdivision applicable to the use and occupancy of the
Premises, or which would jeopardize or invalidate any of the insurance coverage
on the Premises.
Section 4-3. Quiet Enjoyment. Tenant shall have the peaceable possession and
enjoyment of the Improvements throughout the term of this Lease without any
hindrance, disturbance of ejectment by Landlord, Landlord's successors and
assigns.
Section 4-4. Insurance on Tenant's Property. Tenant shall be solely responsible
for obtaining any fire or extended coverage insurance for Tenant's personal
property and the Leasehold Improvements of Tenant and for all goods, commodities
and materials stored by Tenant in or about the Premises.
Section 4-5. Liability Insurance. At all times during the term hereof or any
extension thereof, Tenant at Tenant's own expense shall maintain and keep in
force for the mutual benefit of Landlord and Tenant general public liability
insurance against claims for personal injury, death or property damage occurring
in or about the Premises or sidewalks or areas adjacent to the Premises to
afford protection to the limit of not
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less than $300,000.00 in respect to injury or death of a single person and to
the limit of not less than $500,000.00 in respect to any one accident and to the
limit of not less than $100,000.00 in respect to property damage.
In order to evidence the coverage in effect, Tenant shall provide Landlord with
a certificate of insurance. Tenant agrees to obtain a written obligation from
the insurers to notify Landlord in writing at least ten (10) days prior to
cancellation or refusal to renew any such policies. Should Tenant fail to carry
such public liability insurance, Landlord may at Landlord's option cause public
liability insurance as aforesaid to be issued, and in such event, Tenant agrees
to pay the premiums for such insurance promptly, upon Landlord's demand, as
additional rent.
Section 4-6. Maintenance. Tenant shall make, subject to the representations and
warranties of Landlord stated in Sections 1-3 and 3-4, at Tenant's own expense,
all non-structural repairs of every kind and description which may be needed to
normally maintain the interior of that part of the Premises leased to Tenant,
and the water and heating systems, plumbing system, electrical wiring system,
sprinkler system and air-conditioning in good condition and repair.
Notwithstanding any of the above, Tenant shall repair any damage to the Premises
or appurtenances thereunto belonging caused by the misuse or negligence of
Tenant, Tenant's employees or invitees. Tenant agrees to replace all broken
glass in connection with the Premises with glass of the same size and quality of
that broken. Landlord, upon Tenant's notice, will replace all major components
of the HVAC systems as necessary.
If the repairs required to be made by Landlord are not completed within a
reasonable time after request for such repair by Tenant, Tenant shall have the
option to make such repairs after first giving Landlord fifteen (15) days'
notice of intention to do so, and any amounts expended by virtue thereof shall
be subtracted from the next month's rent in the full amount of the expenditures.
Where applicable, Tenant shall have the benefit of all warranties and
maintenance agreements by the contractor, sub-contractor and/or materialmen
relative to the Premises.
Section 4-7. Alterations and Additions. Tenant at Tenant's expense, shall have
the right to make such changes in the interior of the Premises, other than major
structural changes, as Tenant shall deem necessary or advisable in adapting the
Premises for Tenant's use. No structural changes shall be made without the prior
written consent of Landlord, which consent shall not be unreasonably withheld.
All fixtures shall become a part of the Premises and the property of Landlord at
the termination of the Lease except that trade fixtures, machinery and equipment
and power wiring, conduits and other fixtures installed by Tenant shall be
considered as Tenant's own and Tenant shall have the right to recover same at
any time during the term of
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this Lease or any extension thereof, provided that Tenant shall repair any
damage caused to said Premises by such removal.
Section 4-8. Signs. The building shall be known as the "First Chicago Building"
or any other name as designated by Tenant and approved by the Condominium
Association.
Tenant shall comply with all laws, ordinances, plat and deed restrictions,
condominium declarations, by-laws of the Condominium Association, and lawful
regulations applicable to the erection, maintenance and the removal of any signs
approved, and damage and injury from the maintenance of such signs shall be
expressly included in the above-mentioned liability insurance. Any damage to any
Improvements caused by such sign or signs shall be restored by Tenant forthwith.
Tenant shall have the right to modify any exterior or interior sign currently
relating to the Premises which may be on the Improvements or freestanding on the
real property on which the Improvements are located, subject to obtaining any
necessary approval of any local governmental authority and of the Association,
as defined below.
Section 4-9. Assignment and Subletting. Tenant shall not assign this Lease or
sublet the demised Premises, or any part thereof, without obtaining the prior
written consent of Landlord which consent shall not be unreasonably withheld.
Any dispute which arises under this Section regarding the reasonableness of
Landlord's consent shall be settled by arbitration pursuant to the provisions of
Section 6-1. No assignment or subletting consented to by Landlord shall relieve
Tenant from Tenant's liability hereunder, and each and every assignee or
sublessee shall be charged with all of the provisions hereof. Notwithstanding
the foregoing, Tenant may assign or sublet all or any portion of the Premises or
of Tenant's rights under this Lease to any affiliate of Tenant, or to any entity
which acquires all or a substantial portion of the assets of Tenant, or to any
entity into or with which Tenant merges or is consolidated in any manner.
Section 4-10. Default. If Tenant shall fail to pay any installment of the
fixed-rent or any additional rent or other charges as and when the same shall
become due and payable, and such default shall continue for a period of twenty
(20) days after written notice given to Tenant by Landlord, or if Tenant shall
default in the performance of any of the other terms, covenants or conditions of
this Lease and such default shall continue for a period of twenty (20) days
after written notice given to Tenant by Landlord, or if any execution shall be
issued against Tenant or any of Tenant's property whereby any part of the
Improvements shall be taken or occupied by someone other than Tenant, or if
Tenant shall vacate and abandon the Premises, or if this Lease or the estate of
Tenant hereunder shall be transferred or passed to or devolve upon any other
person, firm or corporation, except in the manner provided in this Lease, or if
Tenant shall assign, mortgage or encumber this Lease or sublet the Premises or
any part of the Premises, except as otherwise provided in this Lease, without
the prior written consent of Landlord, Landlord shall have the right, at
Landlord's
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option, to terminate this Lease and the term hereof, as well as the right, title
and interest of Tenant hereunder, by giving Tenant fifteen (15) days' notice in
writing of such intention, and upon the expiration of the time fixed in such
latter notice, if such default be not cured prior thereto or (except a default
for non-payment of rent or additional rent), Tenant shall not then be diligently
engaged in good faith in prosecuting the work necessary to remove said cause or
in taking the steps necessary to remedy said default, this Lease and term
hereof, as well as all the right, title and interest of Tenant hereunder, shall
wholly cease and expire in the same manner and with the same force and effect as
if the date fixed by such latter notice were the expiration of the term herein
originally granted; and Tenant shall immediately quit and surrender the Premises
to Landlord and Landlord may re-enter the demised Premises and take possession
of all or any part thereof, and remove all property and persons therefrom and
shall not be liable for any damage therefor or for trespass.
Section 4-11. Waiver of Subrogation Clause. Landlord and Tenant hereby release
the other from any and all liability or responsibility to the other or anyone
claiming through or under them by way of subrogation or otherwise for any loss
or damage to property caused by fire or any of the extended coverage or
supplementary contract casualties, even if such fire or other casualty shall
have been caused by the fault or negligence of the other party, or anyone for
whom such party may be responsible, provided, however, that this release shall
be applicable in force and effect only with respect to loss or damage occurring
at such a time that the releasor's policies shall contain a clause or
endorsement to the effect that any such release shall not adversely affect or
impair said policies or prejudice the right of the releasor to recover
thereunder.
Section 4-12. Subordination and Non-Disturbance. This Lease and all of the
rights of Tenant hereunder are and shall be subject and subordinate to the lien
of any mortgage or mortgages whether now on the Premises or whether hereafter
placed on the Premises or any part thereof, except Tenant's property or trade
fixtures, and to any and all renewals, modifications, replacements, extensions
or substitutions of any such mortgage or mortgages (collectively, "Mortgage"),
provided, nevertheless, each Mortgage shall contain a provision to the effect
that so long as Tenant is not in default under this Lease, or any renewal
thereof, no foreclosure of the lien of such Mortgage or any other proceeding in
respect thereof shall divest, impair, modify, abrogate or otherwise adversely
affect any interest or rights whatsoever of Tenant under this Lease. Landlord
will use Landlord's best efforts to obtain from Landlord's existing mortgagee
with respect to the Property a written non-disturbance agreement in accordance
with the foregoing provision.
This Lease, if required, shall be submitted by Landlord to Landlord's mortgagee
for such mortgagee's approval and is subject to such approval, and, this Lease,
if required, shall be assigned to Landlord's mortgagee by instrument in form
satisfactory to such mortgagee.
12
Section 4-13. Indemnification. Tenant shall indemnify and save Landlord harmless
from and against any and all liability, claims, damages, penalties or judgments
arising from or in any way connected with injury to person or property sustained
by action in and about the Premises in custody and control of Tenant, during the
term of this Lease, or any extension thereof. The fact that Tenant maintains the
insurance required by Section 4-5 shall be considered complete compliance with
this Section. If Landlord shall, without fault on Landlord's part, be made a
part of any litigation commenced by or against Tenant, Tenant shall protect and
hold Landlord harmless and pay all reasonable costs, expenses and reasonable
attorney fees that may be incurred or paid by Landlord in enforcing the
covenants and agreements of this Lease.
Except for the negligence or wilful misconduct of Landlord or the negligence or
wilful misconduct of Landlord's officers, agents, servants, employees or
contractors, Landlord shall not be responsible or liable for any damage or
injury to any property, fixtures, buildings or other improvements, or to any
person or persons at any time on the Premises, including any damage or injury to
Tenant or to any of Tenant's officers, agents, servants, employees, contractors,
customers or sublessees.
Section 4-14. Surrender of Premises. Tenant shall surrender and deliver up the
Premises and appurtenances at the end of the term of this Lease, as it may be
extended, broom-clean and in as good condition and order as they were at
commencement of the term hereof, reasonable use and natural wear and tear
thereof and damage by fire or other casualty and changes made with Landlord's
consent excepted. Tenant may remove all the trade fixtures, signs, equipment,
stock in trade, and other items of a similar nature used in connection with
Tenant's business, including such as may have been temporarily attached to the
realty. If such removal results in injury to or defacement of the Premises,
Tenant shall immediately repair the Premises at Tenant's expense.
Section 4-15. Condominium; Right to Vote. The Premises are part of the Rand
Olive Condominium (the "Condominium"). As long as Tenant is not in default under
this Lease, Tenant shall have the right to participate in all meetings of the
owners of the Condominium and shall have the right to vote Landlord's vote as a
unit owner of the Premises, or give a proxy therefor. Landlord shall execute any
proxy necessary to establish Tenant of record as the holder of the vote
attributable to the Premises. Landlord has delivered to Tenant copies of the
Rand Olive Condominium Declaration, the Articles of Incorporation and By-Laws of
the Condominium Association, all rules and regulations of the Condominium and
the Condominium Association, and all other similar documents relating to the
Condominium and the Condominium Association (collectively, the "Condominium
Documents"). Landlord will not agree to any modification to the Condominium
Documents without Tenant's prior approval. Landlord will deliver to Tenant
notice of any proposed modification of the Condominium Documents and copies of
any documents
13
or other materials relating to such proposal which may be in Landlord's
possession or control.
Section 4-16. Right of First Refusal; Expansion Option Space. Landlord is the
owner of the premises directly beneath the Premises (the "Associates Expansion
Premises") and the owner of the premises directly beneath the Adjacent Premises
(the "Additional Expansion Premises") (the Associates Expansion Premises and the
Additional Expansion Premises may be referred to collectively as the "Expansion
Premises"). Landlord hereby grants to Tenant the following rights with respect
to the Expansion Premises.
Tenant, upon 180 days written notice to Landlord, may elect to rent all of any
portion of the Associates Expansion Premises. If Tenant so elects to rent all or
any portion of the Associates Expansion Premises, Landlord will cause such
premises to be available to Tenant upon the date specified by Tenant in such
notice provided that such specified date will be reasonably sufficient to permit
Landlord time to prepare such premises for delivery to Tenant.
Tenant will have the right to rent all or any portion of the Additional
Expansion Premises commencing at the end of the term of the existing leases
affecting the Additional Expansion Premises or of any subsequent lease of such
premises. Landlord will give Tenant 210 days notice of the pending termination
of a lease affecting the Additional Expansion Premises, unless such lease would
terminate earlier that 210 days from such notice due to no default by Landlord,
such as, for example, due to a default by the tenant under such lease, in which
case Landlord would give Tenant as much notice as Landlord reasonably could give
under the circumstances. Tenant would have a period of 30 days within which to
notify Landlord of Tenant's exercise of Tenant's rights under this Section.
The lease of any Expansion Premises would be upon the same terms and conditions
as contained in this Lease except that the Base Rent with respect to such
Expansion Premises would be the then market rental for such Expansion Premises.
The then market rental would be determined by agreement of the parties or by
arbitration, in accordance with the procedures set forth is Section 1-4 of the
Lease.
If Tenant elects to rent less than all of the available Expansion Premises, the
portion of the Expansion Premises not so rented would be an architecturally
complete space of a reasonably marketable size and configuration.
Landlord will deliver the Expansion Premises to Tenant in its then "as-is"
condition, unless otherwise agreed to by the parties.
Landlord hereby also grants to Tenant the right of first refusal with respect to
all Expansion Premises as provided in this Section. If Landlord desires to lease
all or any portion of the Expansion Premises to any party, Landlord will first
offer such space to Tenant together with the terms and conditions upon which
Landlord intends to offer such
14
space for rent. Tenant will have a period of 30 days within which to notify
Landlord as to whether Tenant desires to rent the space offered upon the terms
offered. If Tenant does not accept such offer, Landlord may rent the offered to
space to any party provided that the economic terms of such rental are not more
favorable to such party as those which were offered to Tenant. If Landlord
desires to rent such space upon terms which are economically more favorable to
such party, Landlord will first offer such space to Tenant upon such more
favorable terms. Tenant will have a period of 15 days within which to accept
such terms. If Tenant does not accept such terms, Landlord may rent the offered
space to any party on such terms.
ARTICLE FIVE
------------
Eminent Domain, Damage or Destruction of Premises
-------------------------------------------------
Section 5-1. Eminent Domain. If the entire Premises, or the Adjacent Premises,
or such part of the Premises or the Adjacent Premises, as, in Tenant's judgment,
renders the remainder of the combined area of the Premises and the Adjacent
Premises unsuitable for Tenant's continued use, shall be taken in appropriation
proceedings or by any rights of eminent domain, then this Lease shall terminate
and be void from the time when possession thereof is required for public use,
and such taking shall not operate as or be deemed an eviction of the Tenant or a
breach of Landlord's covenant for quiet enjoyment; but Tenant shall pay all rent
due, and perform and observe all other covenants hereof, up to the time when
possession is required for public use; provided, however, that if in Tenant's
judgment, the combined area of the Premises and the Adjacent Premises after such
taking can be made to be suitable for Tenant's continued use, and if two (2)
years or more of the term hereof (including the extension of such term) then
remains unexpired or available, and if the remaining Premises and Adjacent
Premises can be substantially restored within sixty (60) days, then, at Tenant's
option, this Lease shall not terminate, but Landlord shall, at Landlord's sole
expense, restore the Premises to a condition satisfactory to Tenant. The rent
payable by Tenant during the period of restoration will be reduced by a
reasonable amount, but after such restoration, the rent herein reserved shall be
paid by Tenant as herein provided during the remainder of the term hereof abated
by the percentage that the fair market value of the Premises, attributable
solely to the land and Improvements, has been reduced because of such taking.
Said market value immediately before and after such taking shall be determined
by agreement of the parties or, failing agreement of the parties within thirty
(30) days of the effective date of such taking, by a local Independent Fee
Appraiser selected by mutual agreement of Landlord and Tenant, which appraiser's
decision will be final and binding on the parties.
The cost of such appraiser shall be borne equally by Landlord and Tenant.
Tenant shall have the right at Tenant's sole cost and expense to assert a
separate claim or join in Landlord's claim in any condemnation
15
proceeding for its personal property, Tenant's improvements, loss of value in
Tenant's leasehold estate, moving expenses or any other claims Tenant may have.
Tenant shall be entitled to and shall receive that portion of any award or
payment made which is attributable solely to Tenant's claims, and Landlord shall
be entitled to and shall receive that portion of any award or payment made which
is attributable solely to the land and Improvements erected thereon.
Section 5-2. Damage or Destruction of Improvements. In the event the
Improvements shall be rendered untenantable by fire or other casualty, Landlord
shall within one hundred twenty (120) days from the date of such damage or
destruction, repair or replace the Improvements to substantially the same
condition as prior to the damage or destruction. If Landlord fails to commence
repair of the damage or destruction within thirty (30) days from the date of
such damage or destruction, or if the Improvements have not been replaced or
repaired to such condition within one hundred twenty (120) days, Tenant, at
Tenant's option (to be exercised by written notice to Landlord), may terminate
this Lease, or Tenant may cause such repairs to be completed, and any cost or
expense incurred by Tenant with respect to such repairs will be immediately
reimbursed by Landlord. If Landlord fails to so reimburse Tenant, Tenant, at
Tenant's option, may off set the amount of such costs and expenses against the
rent due under this Lease. The rent herein required to be paid shall xxxxx
during the period of such untenantability.
If the Improvements shall be damaged in part by fire or other casualty, but
still remain tenantable, Landlord shall repair the Improvements to substantially
the same condition as prior to the damage. During the period of such repairs and
restorations, the Lease shall continue in full force and effect, provided,
however, that Tenant shall be required to pay the rent herein reserved abated by
the percentage of area destroyed as compared to the total area herein demised,
unless such fire or other casualty is caused by Tenant's negligence in which
case the rental shall not xxxxx but will continue unaffected during the repair
period. If Landlord fails to commence repair of the damage or destruction within
thirty (30) days from the date of such damage or destruction, or if the
Improvements have not been replaced or repaired to such condition within one
hundred twenty (120) days, Tenant, at Tenant's option (to be exercised by
written notice to Landlord), may terminate this Lease, or Tenant may cause such
repairs to be completed, and any cost or expense incurred by Tenant with respect
to such repairs will be immediately reimbursed by Landlord. If Landlord fails to
so reimburse Tenant, Tenant, at Tenant's option, may off set the amount of such
costs and expenses against the rent due under this Lease.
In the event that any damage or destruction occurs during the last twelve (12)
months of the original term of this Lease or any extension of the term, to the
extent of fifty (50%) percent or more of the insurable value of the
Improvements, Landlord or Tenant may elect to terminate this Lease as of the
date of destruction or damage, by giving notice of such election will fifteen
(15) days after such damage or destruction. In such event, Landlord shall
receive the proceeds of the
16
insurance without obligation to rebuild or restore the Premises, and shall
execute any waiver which may be required of it by any or Landlord. Any dispute
which arises under this Section regarding the negligence of Tenant shall be
settled by arbitration pursuant to the provisions of Section 6-1.
ARTICLE SIX
-----------
General Provisions
------------------
Section 6-1. Arbitration. Any controversy or claim arising out of or relating
to:
(a) the usability of the Premises after a taking as provided in Section
5-1; or,
(b) the negligence of Tenant as provided in Section 5.2; or
(c) the reasonableness of Landlord's consent to assign or subletting as
provided in Section 4-9,
(d) the resolution of disputes relating to Direct Expenses as provided in
Section 2-5,
shall be settled by arbitration in accordance with the rule the American
Arbitration Association. The arbitration decision shall be final and binding
upon the parties.
Section 6-2. Service of Notice. Every notice, approval, or other communication
authorized or required by this Lease will be in writing and either hand
delivered, which includes delivery by commercially reasonable delivery services,
or sent by certified or registered mail, postage prepaid, to the other party at
the following address or at such other address as may be designated by notice in
writing given from time to time and shall be deemed given, if made by personal
delivery, on the date of delivery, or if made by mailing, three days after the
date postmarked.
If notice is to be given to Landlord, it shall be given at following address:
Xxxxxxx Properties, Inc.
c/o X.X. Xxxxxxx & Associates, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxx X-000
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
If notice is to be given to Tenant, it shall be given at th address set forth in
Exhibit E.
17
Section 6-3. Governing Law. This Lease and the performance hereof shall be
governed, interpreted, construed and regulated by the laws of the State of
Illinois.
Section 6-4. Partial Invalidity. If any term, covenant, condition or provision
of this Lease, or the application thereof, to any person or circumstances, shall
at any time or to any extent be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term, covenant, condition and provision of this Lease
shall be valid and be enforced to the fullest extent permitted by law.
Section 6-5. Combined Space; Cooperation And Coordination With Adjoining
Landlord. Landlord acknowledges that Tenant intends to combine the Premises
leased by Tenant under this Lease with the Adjoining Premises lease by Tenant
under the Adjoining Lease and to operating such combined premises as a single
unit. At Tenant's request, Landlord agrees to cooperate and coordinate with
Tenant and the Adjoining Landlord with respect to matters which may or may not
be addressed in either or both of this Lease and the Adjoining Lease but which
affect the combined premises as a whole.
Section 6-6. Conditioned Upon Consent And Agreement Of Adjoining Landlord.
Notwithstanding any other provision of this Lease to the contrary, this Lease
and Tenant's obligations under this Lease are conditioned upon Tenant receiving
consent from the Adjoining Landlord, satisfactory to Tenant, pursuant to which
the Adjoining Landlord consents to the demolition or other alteration of the
Adjoining Walls, to the combining of the Adjoining Premises and the Premises,
and to the combined use of the Adjoining Premises.
Section 6-7. Termination Of Lease Upon Termination Of Adjoining Lease.
Notwithstanding any other provision of this Lease to the contrary, at Tenant's
option, this Lease will terminate if the Adjoining Lease terminates. If Tenant
desires to so terminate this Lease, Tenant will deliver written notice to
Landlord of such termination. The effective date of such termination will be the
effective date of the termination of the Adjoining Lease.
Section 6-8. Interpretation. Wherever in this Lease the singular number is used,
the same shall include the plural, and the masculine gender shall include the
feminine and neuter genders, and vice versa, as the context shall require.
Section 6-8. Headings. The headings used herein are for reference and
convenience only and shall not enter into the interpretation hereof.
Section 6-9. Counterparts. This Lease may be executed in several counterparts,
each of which shall be an original but all of which shall constitute one and the
same instrument.
18
Section 6-10. Exhibits. The Exhibits referred to herein are attached hereto and
by reference made a part hereof.
Section 6-11. Entire Agreement. No oral statement or prior written matter shall
have any force or effect. This agreement shall not be modified or canceled
except by writing subscribed by all parties.
Section 6-12. Benefit. Except as otherwise expressly provided herein, the
covenants, conditions and agreements contained in this Lease shall bind and
inure to the benefit of Landlord and Tenant and their respective successors and
assigns.
Section 6-13. Authority of Parties. Landlord and Tenant each to the other
represents and warrants that each has full right and authority to enter into and
perform the obligations under this Lease for the full term hereof.
Section 6-14. Recording of Lease. This Lease shall not be recorded by Tenant.
Landlord and Tenant, at the request of the other, will execute, acknowledge, and
deliver a Memorandum of this Lease, in recordable form, which Memorandum may be
recorded with respect to the Premises.
Section 6-15. Compliance with Condominium Documents. Landlord and Tenant shall
each obey and conform to the declaration of condominium, by-laws and rules and
regulations of the Condominium Association which are hereby incorporated herein.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
the day and year first above written.
Landlord
--------
XXXXXXX PROPERTIES, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx, President 10-17-91
Tenant
------
FIRST CHICAGO BUILDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxx, President
19
ASSIGNMENT AND ASSUMPTION OF LEASE
----------------------------------
This Assignment and Assumption of Lease ("Assignment") is made as of
August 16, 1994 by FIRST CHICAGO BUILDING CORPORATION, an Illinois corporation
("Assignor") in favor of NATIONAL BANCORP, INC., a _______________ corporation
("Assignee"). (Assignor and Assignee are hereinafter sometimes together referred
to as the "Parties").
RECITALS
--------
A. By Lease Agreement dated as of October 7, 1991, a copy of which is
attached hereto as Exhibit "A" and by this reference made a part hereof
(collectively the "Lease"), XXXXXXX PROPERTIES, INC., ("Landlord") leased to
Ansignor's predecessor certain premises defined and described in the Lease as
the "demised premises".
B. Assignor and Assignee have agreed to enter into this Assignment.
C. Any term used in this Amendment which is defined in the Lease and
not otherwise defined in this Assignment will have the same meaning in this
Amendment as in the Lease.
The Parties agree as follows:
AGREEMENTS
----------
1. Assignor hereby grants, conveys, transfers and assigns to Assignee
all of Assignor's right, title, estate and interest as tenant in, to and under
the Lease.
2. Assignee hereby accepts the foregoing assignment and agrees to
observe and perform all terms, covenants, conditions amd obligations as tenant
under the Lease and agrees to comply with all restrictions contained in the
Lease which are applicable to the demised premises and the occupancy by any
person thereof.
3. Assignee hereby agrees to indemnify, protect, defend and hold
Assignor harmless from and against all claims, demands, liabilities, losses,
costs, damages or expenses, (including, without limitation, reasonable
attorneys' fees and costs) arising out of or resulting from any breach or
default by Assignee under the terms of the lease arising on or after the date
hereof.
4. This Assignment is expressly conditioned on the following:
(a) Consent of the Landlord to this Assignment;
(b) Landlord and Assignee executing an amendment to the Lease in
substantially the form of Exhibit "B" attached hereto;
(c) The approval of Assignee's application for a bank charter at
the Premises and the issuance thereof to Assignee;
(d) The assignment of the Adjoining Lease by Assignor to
Assignee.
(e) Assignee installing its ATM and assignor removing its
existing ATM from its current location at the Lease site; provided,
however, that Assignor shall not remove its ATM until Assignee has arranged
for and has provided Assignor written notice of the date and time for
installation of Assignee's ATM, in coordination with Assignor's removal of
its ATM. It is the intention of Assignor and Assignee to coordinate the
substitution of their respective ATMs so as not to create a period time in
which ATM service is provided to the Lease premises.
It is understood and agreed that in the event the above conditions are
not satisfied on or before November 1, 1994, this Assignment shall be null and
void and of no further force and effect; provided, however, Assignor at its
option may extend the November 1, 1994 date to December 1, 1994 by written
notice to Assignee prior to November 1, 1994.
5. From the period commencing August 1, 1994 until the earlier of
November 1, 1994, or as may be extended by paragraph 4 above, or the issuance of
the aforedescribed bank charter, Assigneee shall pay Assignor as a fee $3,000 on
August 1, 1994 and $3,000 on or before the first day of each month thereafter,
but not later than December 1, 1994, which fee shall be non-refundable.
6. Until the expiration of the original term of the Lease on July 31,
1997, Assignee agrees not to amend or modify the Lease without the prior written
consent of Assignor.
7. Assignee represents and warrants to Assignor that neither it nor
its officers or agents nor anyone acting on its behalf has dealt with any real
estate broker other than Mid-America Real Estate Corporation in the negotiation
or making of this Assignment, and Assignee agrees to indemnify and hold harmless
Assignor from the claim or claims of any other broker or brokers claiming to
have caused Assignee to enter into this Assignment.
8. Any notice required or permitted to be given under this Assignment
shall be deemed given when dispatched by registered or certified mail, return
receipt requested, postage prepaid, addressed:
-2-
to Assignee at:
National Bancorp, Inc.
0000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxx Xxxx, President
with a copy to:
Xxx Xxxxxxx
Xxxxxxx, Ramello & Xxxxxx
0000 Xxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
to Assignor at:
First Chicago Building Corporation
Real Estate Transaction Unit
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Unit Manager
with a copy to:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Law Department
9. This Assignment constitutes the entire agreement of the Parties
relative to the subject matter hereof, and all prior negotiations, agreements
and understandings are specifically merged herein and superseded hereby. This
Assignment may be modified only by a written instrument executed by the Parties.
This Assignment is the result of the prior negotiations, agreements and
understandings of the Parties and is to be construed as the jointly prepared
product of the Parties.
10. The terms and provisions of this Assignment shall inure to the
benefit of and shall be binding upon the Parties and their respective
successors, representatives and permitted assigns.
11. This Assignment shall be construed in accordance with and governed
by the laws of the State of Illinois.
-3-
12. If any terms or provision of this Assignment or the application
thereof to any person or circumstances shall to any extent, be invalid or
unenforceable, the remainder of this Assignment, or the application of such term
or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each remaining term
and provision of this Assignment shall be valid and be enforced to the fullest
extent permitted by law.
IN WITNESS WHEREOF, Assignor and Assignee have caused their duly
authorized representatives to execute this Assignment as of the date first above
written.
Assignor:
FIRST CHICAGO BUILDING CORPORATION
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman
Assignee:
NATIONAL BANCORP, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name:
Title: President 8-17-94
-4-
EXHIBIT "B"
-----------
AMENDMENT TO LEASE
------------------
This Amendment to Lease ("Amendment") is made as of 8/16, 1994, by
XXXXXXX PROPERTIES, INC., ("Landlord") and NATIONAL BANCORP, INC. ("Tenant").
RECITALS
--------
A. By Lease Agreement dated as of October 7, 1991, leased to FIRST
CHICAGO BUILDING CORPORATION ("FCBC") certain premises described and defined in
the Lease.
B. By Assignment and Assumption of Lease dated 8/16, 1994, FCBC
assigned the Lease to Tenant.
C. Landlord and Tenant desire to amend the Lease.
In consideration of the mutual promises contained in this Amendment,
and for the good and valuable consideration, the receipt and sufficiency of
which are acknowledged, Landlord and Tenant agree as follows:
1. Notwithstanding any provisions of the Lease to the contrary, Tenant
shall pay to Landlord the following amounts as minimum monthly rent:
October 1,* 1994 through September 30,* 1995 $3,333.33
October 1,* l995 through September 30,* 1996 $3,466.67
October 1,* 1996 through July 31, 1997 $3,605.33
* or later, as may be extended pursuant to paragraph 4 of the Assignment and
Assumption of Lease.
Notwithstanding any provisions of the Lease to the contrary, if Tenant
elects to exercise the Option Period, Tenant will pay the following amounts as
base monthly rent during the Otion Period:
August 1, 1997 through September 30, 1997 $3,605.33
October 1, 1997 through September 30, 1998 $3,749.55
October 1, 1998 throuqh September 30, 1999 $3,899.53
October, 1999 through September 30, 2000 $4,055.51
October 1, 2000 through Septpmber 30, 2001 $4,217.73
October 1, 2001 through September 30, 2002 $4,386.44
2. Tenant shall deposit with Landlord concurrently with the execution
of this Amendment an irrevocable letter of credit in an initial amount equal to
the total amount of base rent payable during the balance of the term of the
Lease issued by a financial institution approved by Landlord naming Landlord,
its successors and assigns as beneficiary and bearing an expiration date not
-1-
earlier than July 31, 1997 as security for Tenant's rental obligations under the
lease. So long as Tenant is not in default under the Lease, Tenant may decrease
the initial amount of the letter of credit annually commencing on October 1,
1995, or later as may be extended pursuant to paragraph 4 of the Assignment and
Assumption of Lease, and each October 1 thereafter by an amount equal to the
total amount or the base rent paid by the Tenant under the Lease during the
previous twelve months. If Tenant exercised the Option to Renew Term, Tenant
will deposit with Landlord a replacement letter of credit in an amount equal to
the total amount of base rent payable during the renewal term which shall be
subject to annual reductions on Each October 1 thereafter equal to the total
amount of base rent paid during the previous twelve (12) months.
3. This Amendment will be governed by the laws of the State of
Illinois. This Amendment is binding on parties or the respective successors and
assigns. Any terms used in this Amendment which is defined in the Lease and not
otherwise defined in this Amendment will have the same meaning as in the Lease.
In the event of any conflict between the terms of this Amendment and the terms
of the Lease, the terms of this Amendment will control.
4. Except for the modifications contained herein, the Lease shall
remain unmodifiod and in full force and effect.
The parties have executed this Amendment as of the date first above
written.
Landlord:
XXXXXXX PROPERTIES, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------
Its: President 8/16/94
Tenant:
FIRST BANCORP, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------
Its: President 8-17-94
-2-
CONSENT OF LANDLORD
-------------------
The undersigned, being the Landlord under the Lease, hereby consents
to the terms and provisions of the foregoing Assignment and Assumption of Lease.
Landlord agrees as follows:
1. Upon the expiration of the original term of the Lease on July 31,
1997, Assignor shall be released from all of the terms, covenants, conditions
and obligations as tenant under the Lease notwithstanding the exercise by
Assignee of its option to extend the Lease under Section 1-4 of the Lease.
2. The Amemdment to the Lease in substantially the form attached as
Exhibit "B" to the foregoing Assignment and Assumption of Lease when executed by
Landlord and Assignee shall not be binding upon Assignor.
3. Until the expiration of the original term of the Lease on July 31,
1997, Landlord will not amend or modify the Lease without the prior written
consent of Assignor and Assignor shall in no event or to any extent be bound by
any amendment or modification of the Lease not consented to by Assignor.
Executed 8/16, 1994.
XXXXXXX PROPERTIES, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------
Its: President
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EXHIBIT "B"
-----------
AMENDMENT TO LEASE
------------------
This Amendment to Lease ("Amendment") is made as of __________, 1994,
by XXXXXXX PROPERTIES, INC., ("Landlord") and NATIONAL BANCORP, INC. ("Tenant").
RECITALS
--------
A. By Lease Agreement dated as of October 7, 1991, leased to FIRST
CHICAGO BUILDING CORPORATION ("FCBC") certain premises described and defined in
the Lease.
B. By Assignment and Assumption of Lease dated __________, 1994, FCBC
assigned the Lease to Tenant.
C. Landlord and Tenant desire to amend the Lease.
In consideration of the mutual promises contained in this Amendment,
and for the good and valuable consideration, the receipt and sufficiency of
which are acknowledged, Landlord and Tenant agree as follows:
1. Notwithstanding any provisions of the Lease to the contrary, Tenant
shall pay to Landlord the following amounts as minimum monthly rent:
October 1,* 1994 through September 30,*1995 $3,333.33
October 1,* 1995 through September 30,* 1996 $3,466.67
October 1,* 1996 through July 31, 1997 $3,605.33
* or later, as may be extended pursuant to paragraph 4 of the Assignment and
Assumption of Lease.
Notwithstanding any provisions of the Lease to the contrary, if Tenant
elects to exercise the Option Period, Tenant will pay the following amounts as
base monthly rent during the Option Period:
August 1, 1997 through September 30, 1997 $3,605.33
October 1, 1997 through September 30, 1998 $3,749.55
October 1, 1998 through September 30, 1999 $3,899.53
October, 1999 through September 30, 2000 $4,055.51
October 1, 2000 through September 30, 2001 $4,217.73
October 1, 2001 through September 30, 2002 $4,386.44
2. Tenant shall deposit with Landlord concurrently with the execution
of this Amendment an irrevocable letter of credit in an initial amount equal to
the total amount of base rent payable
-1-
during the balance of the term of the Lease issued by a financial institution
approved by Landlord naming Landlord, its successors and assigns as beneficiary
and bearing an expiration date not earlier than July 31, 1997 as security for
Tenant's rental obligations under the lease. So long as Tenant is not in default
under the Lease, Tenant may decrease the initial amount of the letter of credit
annually commencing on October 1, 1995, or later as may be extended pursuant to
paragraph 4 of the Assignment and Assumption of Lease, and each October 1
thereafter by an amount equal to the total amount of the base rent paid by the
Tenant under the Lease during the previous twelve months. If Tenant exercised
the Option to Renew Term, Tenant will deposit with Landlord a replacement letter
of credit in an amount equal to the total amount of base rent payable during the
renewal term which shall be subject to annual reductions on Each October 1
thereafter equal to the total amount of base rent paid during the previous
twelve (12) months.
3. Notwithstanding any other provisions contained in this lease, in
the event (a) Tenant or its successors or assignees shall become insolvent or
bankrupt, or if it or their interests under this Lease shall be levied upon or
sold under execution or other legal process, or (b) the depository Institution
then operating on the Premises is closed, or is taken over by any depository
Institution supervisory authority ("Authority"), Landlord may, in either such
event, terminate this Lease only with the concurrence of any Receiver or
Liquidator appointed by such Authority; provided, that in the event this Lease
is terminated by the Receiver or Liquidator, the maximum claim of Landlord for
rent, damages, or indemnity for injury resulting from the termination,
rejection, or abandonment of the unexpired Lease shall by law in no event be in
an amount equal to all accrued and unpaid rent to the date of termination.
4. This Amendment will be governed by the laws of the State of
Illinois. This Amendment is binding on parties or the respective successors and
assigns. Any terms used in this Amendment which is defined in the Lease and not
otherwise defined in this Amendment will have the same meaning as in the Lease.
In the event of any conflict between the terms of this Amendment and the terms
of the Lease, the terms of this Amendment will control.
5. Except for the modifications contained herein, the Lease shall
remain unmodified and in full force and effect.
-2-
The parties have executed this Amendment as of the date first above
written.
Landlord:
XXXXXXX PROPERTIES, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------
Its: President 8/25/94
Tenant:
NATIONAL BANCORP, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------
Its: President
-3-
FIRST AMENDMENT TO
ASSIGNMENT AND ASSUMPTION OF LEASE
This First Amendment to Assignment and Assumption of Lease ("First
Amendment Assignment") is made as of December 1, 1994 by and between FIRST
CHICAGO BUILDING CORPORATION, an Illinois corporation ("Assignor") and NATIONAL
BANCORP, INC., a Delaware corporation ("Assignee"). (Assignor and Assignee are
hereinafter sometimes together referred to as the "Parties").
RECITALS
A. By Lease Agreement dated as of October 7, 1991 (the "Lease")
XXXXXXX PROPERTIES, INC. ("Landlord") leased to Assignor certain premises
defined and described in the Lease as the "Premises".
B. By an Assignment and Assumption of Lease dated as of August 16,
1994 ("Assignment") Assignor assigned to Assignee, and Assignee assumed, the
Lease.
C. Pursuant to the terms of the Assignment Landlord and Assignee
executed an Amendment to the Lease dated August 16, 1994.
D. Assignee was issued a Permit to Organize the Northwest Community
Bank (the "Bank") by the Commissioner of Banks and Trust Companies for the State
of Illinois ("Commissioner") and Assignee has filed applications with the
Federal Deposit Insurance Corporation ("FDIC") and with the Federal Reserve
Board of Governors through the Federal Reserve Bank of Chicago ("Federal
Reserve") for, respectively, depository insurance for the Bank and approval for
the acquisition of the Bank by Assignee, which applications are pending.
E. The Parties have agreed to enter into this First Amendment
Assignment.
F. Any term used in this First Amendment Assignment which is defined
in the Lease or the Assignment and not otherwise defined in this First
Assignment Amendment will have the same meaning in this First Assignment
Amendment as in the Lease or the Assignment.
The Parties agree as follows:
AGREEMENTS
1. With regard to Paragraph 4 of the Assignment, the Parties
acknowledge that conditions (a), (b) and (d) have been satisfied and that the
date in condition (c) was extended to December 1, 1994.
2. Condition (c) of Paragraph 4 of the Assignment is deleted and with
regard to condition (c) of Paragraph 4 of the Assignment, Assignor acknowledges
and agrees that the Assignment shall continue from calendar month to calendar
month commencing December 1, 1994 until the earlier of the date that (i) the
Charter for the Bank has been issued to the Assignee or any of the applications
filed with the Commissioner, the FDIC or the Federal Reserve have been denied
and no appeal is pending or (ii) April 30, 1995. Notwithstanding the foregoing,
the Parties agree that the Assignment shall automatically terminate, unless
extended by the Parties in writing, if the foregoing conditions have not been
satisfied by April 30, 1995.
3. With respect to condition (e) of Paragraph 4 of the Lease, Assignor
will modify the security system for its existing ATM so that it is separate from
the security system for the Premises and the Adjoining Premises. Assignee has
paid Assignor $600 to cover Assignor's costs in connection with such
modification.
4. Subject to the terms and conditions of Section 4-7 of the Lease,
commencing on the date that this First Amendment Assignment is fully executed,
Assignee, at Assignee's expense, shall have the right to make changes in the
interior of the Premises other than major structural changes, as Assignee shall
deem necessary or advisable in adapting the Premises for Assignee's use. No
structural changes shall be made without the prior written consent of Assignor
which consent shall not be unreasonably withheld. Assignee shall indemnify and
save Assignor harmless from any mechanics' liens for work done in the interior
of the Premises or materials supplied in connection with such work. If the
Assignment is terminated pursuant to the provisions of paragraph 2 of this First
Amendment Assignment and Assignor elects, and so notifies Assignee, Assignee, at
its expense, shall remove such changes and repair any damages to the interior of
the Premises caused by such removal.
5. This First Amendment Assignment is expressly conditioned upon
Landlord and Assignee executing a Second Amendment to Lease in substantially the
form attached hereto.
6. Subject to the terms and conditions hereof, keys to, and possession
of, the Premises will be provided to Assignee upon the full execution of this
First Amendment Assignment.
7. Except for the modifications contained herein, the Assignment shall
remain unmodified and in full force and effect.
Page 2
In Witness Whereof the Parties have caused their respective duly
authorized representatives to execute this First Amendment Assignment as of the
date first above written.
Assignor:
FIRST CHICAGO BUILDING CORPORATION
By:________________________________
Title:_____________________________
Assignee:
NATIONAL BANCORP, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Title: President
Page 3
Consent of Landlord
The undersigned, being the Landlord under the Lease, hereby consents
to the terms and provisions of the foregoing First Amendment to Assignment and
Assumption of Lease.
Landlord agrees as follows:
1. The Second Amendment to Lease in substantially the form attached to
the foregoing First Amendment to Assignment and Assumption of Lease when
executed between Landlord and Assignee shall not be binding upon Assignor.
2. If the Assignment and Assumption of Lease dated August 16, 1994
between Assignor and Assignee is terminated pursuant to the terms and provisions
of paragraph 2 of the foregoing First Amendment to Assignment and Assumption of
Lease (i) the Amendment to Lease dated August 16, 1994 between Landlord and
Assignee and (ii) the above described Second Amendment to Lease shall be null
and void.
Executed 1-5, 1995.
XXXXXXX PROPERTIES, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------
Its: President
SECOND AMENDMENT TO LEASE
-------------------------
This Second Amendment to Lease ("Second Amendment") is made as of
December 1, 1994, by XXXXXXX PROPERTIES, INC. ("Landlord") and NATIONAL BANCORP,
INC. ("Tenant").
RECITALS
--------
A. By Lease Agreement dated as of October 7, 1991 (the "Lease"),
Landlord leased to First Chicago Building Corporation ("FCBC") certain Premises
described and defined in the Lease.
B. By Assignment and Assumption of Lease dated as of August 16, 1994,
FCBC assigned to Tenant, and Tenant assumed, the Lease ("Assignment") to which
Assignment Landlord consented.
C. By Amendment to Lease dated as of August 16, 1994, Landlord and
Tenant amended the Lease ("First Amendment").
D. By a First Amendment to Assignment and Assumption of Lease dated as
of December 1, 1994, FCBC and Tenant amended the Assignment ("First Amendment
Assignment").
E. Landlord and Tenant desire to further amend the Lease.
In consideration of the mutual promises contained in this Second
Amendment, and for good and valuable consideration, the receipt and sufficiency
of which are acknowledged, Landlord and Tenant agree as follows:
1. Paragraph 1 of the First Amendment is modified such that Tenant
shall pay the following amounts as minimum monthly rent:
January 1, 1995 through September 30, 1995 $3,333.33
October 1, 1995 through September 30, 1996 $3,466.67
October 1, 1996 through July 31, 1997 $3,605.33
2. Paragraph 2 of the First Amendment is deleted in its entirety.
3. If the Assignment and Assumption of the Lease is terminated
pursuant to paragraph 2 of the First Amendment Assignment, the First Amendment
and this Second Amendment shall be null and void.
4. This Second Amendment will be governed by the laws of the State of
Illinois. This Second Amendment is binding on the parties and their respective
successors and assigns. Any term used in this Second Amendment which is defined
in the Lease and not otherwise defined in this Second Amendment will have the
same meaning as in the Lease. In the event of any conflict between the terms of
this Second Amendment and the terms of the Lease, the terms of this Second
Amendment will control.
5. Except for the modifications contained herein, the Lease shall
remain unmodified and in full force and effect.
The parties have executed this Second Amendment as of the date first
above written.
Landlord:
XXXXXXX PROPERTIES, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------
Its: President
Tenant:
NATIONAL BANCORP, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------
Its: President
Page 2
AMENDMENT TO LEASE
------------------
This Second Amendment to Lease ("Second Amendment") is made as of Nov.
3, 1994, 1994, by XXXXXXX PROPERTIES, INC. ("Landlord") and NATIONAL BANCORP,
INC. ("Tenant").
RECITALS:
---------
A. By Lease Agreement dated as of February 6, 1981 and Amendment
thereto dated July 15, 1982 (collectively the "Lease") Landlord leased to the
predecessor in interest of First Chicago Building Corporation ("FCBC") certain
demised premises described and defined in the Lease.
B. By Assignment and Assumption of Lease dated August 16, 1994, FCBC
assigned the Lease to the Tenant.
C. Landlord and Tenant entered into a first Amendment to Lease dated
as of August 16, 1994 (the "First Amendment").
D. Landlord and Tenant desire to further amend the Lease.
In consideration of the mutual promises contained in this Second
Amendment, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Landlord and Tenant agree as follows:
1. Landlord hereby agrees to eliminate the requirement that Tenant
obtain and deposit with Landlord the irrevocable letter of credit referred to in
Paragraph 2 of the First Amendment. Accordingly, Paragraph 2 of the First
Amendment is deleted in its entirety from and after August 16, 1994.
2. This Second Amendment will be governed by the laws of the State of
Illinois. This Second Amendment is binding on parties or the respective
successors and assigns. Any term used in this Second Amendment which is defined
in the Lease and not otherwise defined in this Second Amendment will have the
same meaning as in the Lease. In the event of any conflict between the terms of
this Second Amendment and the terms of the Lease, the terms of this Second
Amendment will control.
3. Except for the modifications contained herein, the Lease shall
remain unmodified and in full force and affect.
The parties have executed this Second Amendment as of the date first
above written.
Landlord: Tenant:
XXXXXXX PROPERTIES, INC. FIRST BANCORP, INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxx
------------------------------------ -------------------------------
Title: President Xxxxxx X. Xxxx, President
AMENDMENT TO LEASE
------------------
This Third Amendment to Lease ("Third Amendment") is made as of 11/29,
1994, by XXXXXXX PROPERTIES, INC. ("Landlord") and NATIONAL BANCORP, INC.
("Tenant").
RECITALS:
---------
A. By Lease Agreement dated as of February 6, 1981 and Amendment
thereto dated July 15, 1982 (collectively the "Lease") Landlord leased to the
predecessor in interest of First Chicago Building Corporation ("FCBC") certain
demised premises described and defined in the Lease.
B. By Assignment and Assumption of Lease dated August 16, 1994, FCBC
assigned the Lease to the Tenant.
C. Landlord and Tenant entered into both a first Amendment to Lease
dated as of August 16, 1994 (the "First Amendment") and a Second Amendment to
Lease dated as of November 3, 1994 (the "Second Amendment").
D. Landlord and Tenant desire to further amend the Lease.
In consideration of the mutual promises contained in this Third
Amendment, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Landlord and Tenant agree as follows:
1. Tenant's Right of First Refusal. Tenant shall have a continuing
right of first refusal to acquire the Demised Premises at all times during the
term of this Lease. In the event Landlord receives a bona fide offer to purchase
the Demised Premises, Landlord shall notify the Tenant in writing of any such
purchase offer and Tenant shall have the right to purchase the Demised Premises
on the same terms and conditions as are contained in the purchase offer. Tenant
shall have a thirty (30) day period following Landlord's receipt of the notice
and of a copy of the purchase offer to advise Landlord in writing of Tenant's
intention to exercise the right of first refusal provided in this paragraph.
Should Tenant exercise this option, the purchase shall be subject to the same
terms and conditions as are set out in the offer, including conditions as to
purchase price, financing contingency and the like, with the closing date to be
not later than forty-five (45) days after the closing date provided in the
purchase offer. This right of first refusal shall apply to each and every offer
to purchase the Demised Premises hereunder, whether or not Tenant may have
elected to exercise its purchase option with respect to any prior sale or sales
of the Demised Premises hereunder.
2. Applicable Law. This Third Amendment will be governed by the laws
of the State of Illinois. This Third Amendment is binding on parties or the
respective successors and assigns. Any term used in this Third Amendment which
is defined in the Lease and not
otherwise defined in this Third Amendment will have the same meaning as in the
Lease. In the event of any conflict between the terms of this Third Amendment
and the terms of the Lease, the terms of this Third Amendment will control.
3. Modifications. Except for the modifications contained herein, the
Lease shall remain unmodified and in full force and effect.
The parties have executed this Third Amendment as of the date first
above written.
Landlord: Tenant:
XXXXXXX PROPERTIES, INC. NATIONAL BANCORP, INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxx
---------------------------------------- -------------------------------
Title: President Xxxxxx X. Xxxx, President
2
