EXHIBIT 10.01
COMMERCIAL LEASE AGREEMENT
THIS COMMERCIAL LEASE AGREEMENT (this "Lease") is made and entered into as
of the 11 day of January, 2008, by and between MP CARGO ORD PROPERTY LLC, a
Delaware limited liability company, with its address at c/o Cargo Ventures LLC,
17th Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and CARGO
CONNECTION LOGISTICS-INTERNATIONAL, INC., an Illinois corporation, with its
address at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000-0000 ("Tenant").
1. PREMISES AND TERM.
A. PREMISES. In consideration of the covenants and agreements
herein contained, Landlord does hereby lease, let and demise unto
Tenant, and Tenant does hereby lease from Landlord, that parcel of
real property commonly known as 000 Xxxxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxx 00000-0000 and legally described on Exhibit A attached
hereto, together with the approximately ninety-two thousand (92,000)
square foot building located thereon (the "Building") and all
appurtenances belong to or pertaining to said premises (such real
estate, the Building and appurtenances shall hereinafter sometimes
jointly or severally, as the context requires, be referred to as the
"Premises"). A floor plan of the Building is attached hereto as
Exhibit B-1. A site plan of the Premises has been attached hereto as
Exhibit B-2. Exhibits B-1 and B-2 are incorporated into and made a
part of this Lease by reference herein.
B. POSSESSION. The Premises shall be delivered to Tenant, and the
Term (hereinafter defined) shall commence, on January 1, 2008 (the
"Commencement Date").
C. TERM. Landlord leases the Premises to Tenant for a term (the
"Term") commencing on the Commencement Date and continuing until
December 31, 2017, unless sooner terminated or extended as provided
herein.
2. BASE RENT. Tenant agrees to pay to Landlord Base Rent for the Premises
for the entire Term of this Lease (and any extensions thereof), without
demand, deduction, abatement or offset of any kind or nature, payable on
the first day of each calendar month, the following sum:
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Lease Year 1 $ 600,000 annually $ 50,000 monthly
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Lease Year 2 $ 600,000 annually $ 50,000 monthly
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Lease Year 3 $ 624,000 annually $ 52,000 monthly
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Lease Year 4 $ 624,000 annually $ 52,000 monthly
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Lease Year 5 $ 672,000 annually $ 56,000 monthly
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Lease Year 6 $ 672,000 annually $ 56,000 monthly
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Lease Year 7 $ 720,000 annually $ 60,000 monthly
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Lease Year 8 $ 720,000 annually $ 60,000 monthly
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Lease Year 9 $ 744,000 annually $ 62,000 monthly
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Lease Year 10 $ 744,000 annually $ 62,000 monthly
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All amounts payable hereunder (collectively, "Rent") shall be paid by
Tenant to Landlord at the address shown above, or such other place as
Landlord may designate in writing from time to time. All Rent shall be paid
without prior demand or notice and without any deduction or offset unless
otherwise specifically provided herein. In the event that Rent is not paid
within ten (10) days after due, Tenant shall pay to Landlord, without
demand: (i) a late fee in an amount of five percent (5%) of the overdue
sum; and (ii) interest on the sums overdue at the prime rate (as quoted in
The Wall Street Journal from time to time) plus two percent (2%) (the
"Default Rate"). All sums due hereunder from Tenant to Landlord, whether or
not denoted as such herein, shall be deemed to be additional rent and
included with the term "Rent".
3. USE. The Premises shall be used and occupied for the purpose of
warehouse and office uses and for no other purpose. Tenant shall cause, at
its sole cost and expense, the Premises to
comply with all laws (including environmental laws), ordinances,
regulations and directives of any governmental authority applicable to the
Premises or Tenant's use thereof, including, without limitation, the
Americans With Disabilities Act (collectively "Applicable Laws") whether
now in effect or as such Applicable Laws are changed or amended from time
to time. Tenant shall not use the Premises, or permit the Premises to be
used, in any manner which: (a) violates any Applicable Law; (b) causes or
is reasonably likely to cause any damage or liability to the Premises, or
Landlord; (c) violates a requirement or condition of any insurance policy
covering the Premises, or increases the cost of such policy; or (d)
constitutes or is reasonably likely to constitute a nuisance or annoyance,
including, without limitation, any immoral or obscene act or any other act
tending to injure the reputation of the Premises. Tenant shall not commit
or allow any waste or damage to be committed on any portion of the
Premises. Tenant shall not do, nor permit, anything which shall increase
the costs of operating or maintaining the Premises, including, but not
limited to, insurance premiums, property taxes and utility bills.
During the Term, except as provided in Section 9, below, Tenant shall, at
its risk and at its own sole cost, maintain the Premises in good working
order, repair and condition (including all necessary replacements),
including, but not limited to, heating, ventilating and air conditioning
equipment, electrical and plumbing systems, elevators, exterior walls,
floors, floor coverings, roof, windows, window coverings and electrical
fixtures, all glass elements, doors (including dock, grade and man doors),
dock bumpers, levelers, light bulbs, other improvements and fixtures upon
the Premises, including, without limitation, the driveways and parking
areas. Tenant shall take good care of all property and fixtures. Tenant
shall engage a certified pest control firm to perform regular extermination
for all pests. As used herein, each and every obligation of Tenant to keep,
maintain and repair shall include, without limitation, all ordinary and
extraordinary structural and nonstructural repairs and replacements. Tenant
shall, to the extent possible, keep the Premises from falling temporarily
out of repair or deteriorating. Tenant shall further keep and maintain the
improvements at any time situated upon the Premises, the parking area and
all sidewalks and areas adjacent thereto, safe, secure, clean and sanitary
(including, without limitation, snow and ice clearance, planting and
replacing flowers and landscaping, and necessary interior painting, and
carpet cleaning at least once every year). Tenant shall, at all times
during the term of this Lease, have and keep in force a maintenance
contract, in form and with a contractor satisfactory to Landlord, providing
for inspection at least once each calendar quarter of the heating, air
conditioning and ventilating equipment, and providing for necessary repairs
thereto. Said contract shall provide that it will not be cancelable by
either party thereto except upon thirty (30) days' prior written notice to
Landlord. Tenant shall, at its sole cost and expense, obtain all
governmental licenses and permits required to allow Tenant to conduct its
business operations in the Building.
4. SIGNS. Tenant may, at its sole cost and expense, erect signs on the
exterior of the Building stating its name, business, and product after
first securing Landlord's written approval of the size, color, design,
wording, and location, which approval shall not be unreasonably withheld,
and provided Tenant obtains all necessary governmental approvals. All signs
installed by Tenant shall be removed upon termination of this Lease, with
the sign location restored to its former state. Tenant shall be
responsible, at Tenant's sole cost and expense, to maintain the appearance
of all of Tenant's signs.
5. IMPROVEMENTS. Tenant accepts the Premises in its "AS IS, WHERE IS"
condition and "WITH ALL FAULTS", but with the benefit of any available
warranties from third parties. Tenant shall not change or alter the
improvements to the Premises or the structure, foundation, or building
systems without Landlord's prior written approval, which consent, with
respect to alterations which are non-structural, non-exterior and which do
not affect any building systems, shall not be unreasonably withheld.
Landlord may require, as condition its consent to any proposed improvement,
that Tenant remove the proposed improvement at the end of the Term. Tenant
shall furnish to Landlord, prior to any work being done, the plans and
specifications for any desired work and once any improvements are completed
Tenant shall forward final as built drawings for such improvements to
Landlord. All such alterations shall be performed in a good
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workmanlike manner using new materials of good quality and shall be
performed in accordance with all Applicable Laws. Upon termination of this
Lease, the Tenant Improvements and other improvements or alterations made
by Tenant after the Commencement Date (collectively "Improvements"),
excluding Tenant's trade fixtures and equipment, which may be removed
without damage to the Premises, shall at once become part of the Premises;
provided that Tenant shall be required to remove any improvements
constructed by Tenant, if Landlord conditioned its consent to such
improvement upon the removal thereof upon the termination of this Lease.
With regard to improvements to the Premises constructed by Tenant, Tenant
shall pay as Rent when due all costs for work performed and materials
supplied to the Premises. Tenant shall keep Landlord, the Premises free
from all liens, stop notices and violation notices relating to any
alterations, and Tenant shall protect, indemnify, hold harmless and defend
Landlord from any and all loss, cost, damage, liability and expense,
including attorneys' fees, related to any such liens or notices. During the
progress of such work, Tenant shall, upon Landlord's request, furnish
Landlord with sworn contractor's statements and lien waivers covering all
work theretofore performed. If Tenant fails to pay and remove such lien,
claim or encumbrance within ten (10) days after recordation, Landlord, at
its election, may pay and satisfy the same and in such event the sums so
paid by Landlord, together with interest thereon equal to the Default Rate,
shall be due and payable by Tenant upon demand.
6. UTILITIES. Tenant shall pay as Rent, when due, directly to the
applicable party furnishing such utilities, all charges for electricity,
natural gas, water, garbage collection, sewer, and all other utilities of
any kind furnished to the Premises during the Term.
7. OPERATING EXPENSES. In addition to the Base Rent specified in this
Lease, Tenant shall pay as Rent to Landlord all "Operating Expenses" (as
subsequently defined) for the Premises. The amount of Operating Expenses
payable to Landlord by Tenant may be estimated by Landlord for such
period(s) as Landlord may determine from time to time [not to exceed twelve
(12) months], and Tenant shall pay to Landlord the amounts so estimated in
equal installments, in advance, on the first day of each month during such
period. Within ninety (90) days after the end of the period for which
estimated payments have been made, Landlord shall make its best efforts to
furnish to Tenant a detailed statement, showing the actual Operating
Expenses incurred by the Landlord (the "Actual Cost Statement"). The Actual
Cost Statement shall clearly set forth those Operating Expenses, broken
down in a line-item format.
If such actual Operating Expenses for such calendar year shall exceed
Tenant's payment so made, Tenant shall pay to Landlord the deficiency
within fifteen (15) days after receipt of the Actual Cost Statement or
within fifteen (15) days after receipt by Tenant of the bills for Taxes or
Insurance Premiums (as such terms are hereafter defined), as applicable. If
Tenant's payments shall exceed such actual Operating Expenses, as shown on
the Actual Cost Statement or the actual bills for Taxes or Insurance
Premiums, as applicable, Landlord shall credit such excess against sums
next coming due for Operating Expenses within fifteen (15) days of
Landlord's determination of excess payments made by Tenant.
For purposes of this Lease, "Operating Expenses" shall mean all actual
costs for "Taxes", and "Insurance Premiums" (as such terms are hereafter
defined) incurred by Landlord with respect to the Premises and an annual
management fee equal to three percent (3%) of the aggregate of Base Rent,
Taxes and Insurance Premiums payable by Tenant during each year of the
Term. "Taxes" shall mean all real estate and personal property taxes and
assessments, including special assessments and sewer rents and all other
taxes or charges levied, assessed, charged or imposed during the Term of
the Lease, whether against or in respect to the Premises or against
Landlord whether ordinary or extraordinary, of every kind and nature
whatsoever, and shall also include the costs of contesting the assessments
or amounts of such Taxes. If at any time during the Term of this Lease the
method of taxation prevailing at the commencement of the Term hereof shall
be altered so that any new tax, assessment, levy, imposition or charge, or
any part
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thereof, shall be measured by or be based in whole or in part upon the
Lease, or the Premises, or the Base Rent, additional rent or other income
therefrom and shall be imposed upon the Landlord, then all such taxes,
assessments, levies, impositions, or charges, or the part thereof, to the
extent that they are so measured or based, shall be deemed to be included
within the term Taxes for the purposes hereof to the extent that such Taxes
would be payable if the Premises were the only property of Landlord subject
to such Taxes, and Tenant shall pay and discharge the same as herein
provided in respect of the payment of Taxes. There shall be excluded from
Taxes all federal income taxes, state and local net income taxes, federal
excess profit taxes, franchise, capital stock and federal or state estate
or inheritance taxes of Landlord. "Insurance Premiums" shall mean the
premiums for the insurance coverage paid by Landlord as set forth in
Section 11.
In the event Tenant desires any type of security system, Tenant shall
provide the same at its sole cost and expense and in compliance with
Section 5 hereof.
8. PARKING. Tenant, its employees, and customers shall have the exclusive
right to use ninety-five (95) parking spaces located on the Premises.
Landlord shall have no obligation to police the use of such parking spaces.
Landlord reserves the right to modify, restrict, regulate and/or remove any
such parking spaces at any time so long as Landlord provides substitute
parking spaces for Tenant's use.
9. LANDLORD RESPONSIBILITIES.
A. MAINTENANCE. Notwithstanding anything in Section 3 above to the
contrary, Landlord shall maintain, at its own expense, the foundation
of the Building. In addition, Landlord shall make all capital
replacement of components of the roof, structural elements,
electrical, plumbing and HVAC systems, that become necessary during
the Term for those elements and systems to operate at the level of
performance reasonably required for industrial properties in the
metropolitan area where the Premises are located. Notwithstanding the
foregoing, Tenant shall bear the entire expense to correct and repair
any damage caused by the negligence of Tenant or its employees, agents
or contractors. Following completion of capital repairs by Landlord
and delivery of reasonable accounting back-up regarding Landlord's
costs and the useful life (as hereinafter described) of such capital
repairs, Tenant shall reimburse Landlord in monthly installments
[within twenty (20) days after receipt of an invoice therefore] for
the portion of such capital repairs amortized during the preceding
month of the Term (which repairs shall be amortized on a straight line
basis applying the useful life set forth in the Internal Revenue Code
for such item), provided, that in any twelve (12) month period,
Tenant's aggregate liability for all capital repairs shall not exceed
Fifty Thousand Dollars ($50,000).
B. LIABILITY. Landlord shall not be liable for injury to Tenant's
business or any loss of income therefrom or for damage to the goods,
wares, merchandise, equipment and vehicles or other property of
Tenant, or its employees, agents or contractors or for injury to the
person of Tenant, Tenant's employees, agents or contractors and
invitees, except when caused by the gross negligence or willful
misconduct of Landlord or its employees, agents or contractors. The
liability of Landlord for its obligations under this Lease shall be
limited to Landlord's interest in the Premises as the same may from
time to time be encumbered.
10. CASUALTY DAMAGE. If fire or other casualty causes damage to the
Premises and the estimated cost to repair and restore the Premises to the
condition existing before the fire or other casualty is in excess of Two
Hundred Fifty Thousand Dollars ($250,000), then Landlord shall have the
right to terminate the Lease as of the date of the damage by giving Tenant
notice in writing of its election within thirty (30) days after the date of
incident. If the estimated cost of repairs in not in excess of Two Hundred
Fifty Thousand Dollars ($250,000) or if such cost is in excess of Two
Hundred Fifty Thousand Dollars ($250,000) and Landlord elects not to
terminate
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the Lease, Landlord shall promptly commence repair the damage and restore
the Premises to their former condition, to the extent of the insurance
proceeds made available to Landlord, as soon as reasonably possible and
shall use good faith efforts to complete such repairs within one hundred
eighty (180) days of the date of damage. Base Rent shall be abated during
the period of restoration to the extent the Premises are not reasonably
usable for the use permitted by this Lease. If Landlord repairs the
Premises, the amount of any deductible paid by Landlord [not to exceed
Twenty-five Thousand Dollars ($25,000)] shall constitute "Operating
Expenses" and shall be reimbursed by Tenant. If completion of the repairs
is estimated to require more than one hundred eighty (180) days from the
date of the incident, then Tenant may terminate this Lease and obtain the
return of its Security Deposit. If Tenant does not elect to terminate or
does not have the right to terminate the Lease as a result of fire or
casualty, Tenant waives any right to terminate this Lease based on the
actual amount of time taken to complete such repairs, provided Landlord
works diligently to complete the same. However, if Landlord fails to
diligently work to complete the same, whether or not because of the
insufficiency of insurance proceeds, and such failure continues following
the giving of thirty (30) days' notice to Landlord, then Tenant may
terminate this Lease.
11. INSURANCE. Landlord shall maintain during the Lease Term all risk
property insurance covering the full replacement cost of the Building and
such other insurance as reasonably determined by Landlord or required by
Landlord's mortgagee of the Premises including, without limitation, flood
and earthquake insurance and coverage for loss by terrorism. Tenant, at its
expense, shall maintain during the Lease Term: (i) all risk property
insurance covering the full replacement cost of all property and
improvements installed or placed on the Premises by Tenant; (ii) worker's
compensation insurance with no less than the minimum limits required by
law; (iii) employer's liability insurance with such limits as required by
law; and (iv) commercial liability and umbrella liability insurance with a
minimum limits of Five Million Dollars ($5,000,000) per occurrence in the
aggregate for property damage, personal injuries or deaths of persons
occurring in or about the Premises. The commercial liability policies shall
name Landlord and its mortgagee as an additional insured as its interests
appear, insure on an occurrence basis and not be cancelable without thirty
(30) days written notice to Landlord and its mortgagee. Neither party shall
be liable to the other for any loss or damage to the Premises or Tenant's
personal property thereon caused by any of the risks insurable under the
insurance required to be carried hereunder and there shall be no subrogated
claim by one party's insurance carrier against the other party arising out
of any such loss. Certificates of such policy shall be delivered to
Landlord upon commencement of the Lease and each renewal of said insurance.
12. INDEMNIFICATION. Each party shall indemnify, defend and hold harmless
the other party, its employees, agents and contractors from and against
liability, loss, damages, claims, liens, costs and expenses, including
attorneys' fees, it may suffer, sustain or incur as a result of the
negligent acts or omissions of the indemnifying party, its employees,
agents or contractors in or about the Building or Premises. In addition,
Tenant shall indemnify, defend and hold harmless Landlord, its employees,
agents and contractors from and against liability, loss, damages, claims,
liens, costs and expenses, including attorneys' fees, it may suffer,
sustain or incur as a result of any action occurring on the Premises during
the Term or caused by any act or omission of Tenant, its agents, employees,
contractors, invitees or licensees. The foregoing provisions shall not be
construed to make Tenant responsible for loss, damage, liability, or
expense resulting from injury or death to persons or damage to property of
third parties caused by the gross negligence of Landlord, its agents,
employees or contractors. In addition, the foregoing indemnities in favor
of Landlord shall also accrue to the benefit of Landlord's mortgagee, its
agents, employees or contractors.
13. CONDEMNATION. If a condemning authority takes the entire Premises or a
portion sufficient to render the remainder of the Premises unsuitable for
Tenant's use then either Landlord or Tenant may elect to terminate this
Lease within sixty (60) days after receipt of notice of the condemnation
and effective on the date that title passes to the condemning authority
("Condemnation Date"). Otherwise, Landlord shall use good faith efforts to
restore the remaining Premises, to the extent
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practical and only to the extent of the proceeds made available in
connection with such condemnation, within one hundred eighty (180) days
after Condemnation Date to a condition comparable to that existing at the
time of the taking. Base Rent shall be abated during the period of
restoration to the extent the Premises are not reasonably usable by Tenant
and not so used by Tenant, and Base Rent shall be reduced for the remainder
of the Term to an amount equal to such base rent multiplied by a fraction,
the numerator of which shall be equal to the size of the Premises after
restoration and the denominator shall be the size of the Premises prior to
the condemnation. All condemnation proceeds shall belong solely to
Landlord, except for any such condemnation proceeds that the condemning
authority specifically provides for Tenant, and provided that Tenant shall
be entitled to bring a separate action to recover any damages suffered by
Tenant to its business or personal property as a result of the
condemnation, provided that such action does not reduce the amount of
condemnation proceeds payable to Landlord. If completion of the repairs is
estimated to require more than one hundred eighty (180) days from the date
the condemning authority takes possession of the Premises or portion
thereof, then either Landlord or Tenant may terminate this Lease and Tenant
shall obtain the return of its Security Deposit. Further, if Landlord fails
to diligently work to complete the repairs, and such failure continues
following the giving of thirty (30) days notice to Landlord, then Tenant
may terminate this Lease.
14. ASSIGNMENT AND SUBLETTING. Tenant may assign all or part of its
interest under this Lease or sublet the Premises to an "Affiliate" of
Tenant (an entity which is owned or controlled or under common control with
Tenant or an entity that succeeds to the ownership of Tenant or of all or
substantially all of Tenant's assets) upon notice to Landlord but without
Landlord's prior consent. Any other assignments, subleases or transfers of
the Tenant's interest in the Premises or this Lease shall require
Landlord's prior written consent which may be withheld for any reason or no
reason. Such consent may be conditioned upon the increase of the rent due
hereunder, an increase in the security deposit or any other additional
restrictions that the Landlord may impose. Provided that, no assignment or
subletting (including to an Affiliate of Tenant) shall relieve Tenant of
its obligation to pay rent or perform other obligations required by this
Lease. A change in the voting control of Tenant shall not constitute an
assignment of the Lease requiring Landlord's consent. Tenant agrees to pay
of Landlord's costs [but in no event more than One Thousand ($1,000)] in
connection with a request for consent under this section. No permitted
assignment shall be effective and no permitted sublease shall commence
unless and until any default by Tenant hereunder shall have been cured.
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15. DEFAULT.
Any of the following shall constitute a "Default" by Tenant under this
Lease:
A. Tenant's failure to timely pay Rent or any other charge under this
Lease, if such failure remains uncured for a period of ten (10) days
after notice of such failure has been given to Tenant, provided
Landlord shall not be required to give such a notice to Tenant more
than twice in any twelve (12) month period.
B. Failure to comply with any other term or condition of this Lease,
other than Rent or any other charge, if such failure remains uncured
for a period of thirty (30) days after notice of such failure has been
given to Tenant, provided that if Tenant commences in good faith to
cure any such default which cannot be cured within thirty (30) days,
and diligently pursues such cure to completion, Tenant shall have such
additional time as is reasonably required to cure such default but in
no event shall such cure period exceed sixty (60) days in total, which
date shall be extended by reason of any delay in completion caused by
or attributable to (i) any act or omission of Landlord, its employees,
agents, contractors, invitees or licensees, or (ii) any strike,
lockout, labor trouble, civil disorder, failure of power, restrictive
governmental laws and regulations, delays in issuance of permits,
riots, insurrections, war, shortages, accidents, casualties, acts of
God, or any other causes beyond the reasonable control of Tenant.
C. Tenant's insolvency, assignment for the benefit of its creditors,
business failure by Tenant, Tenant's voluntary petition in bankruptcy
or adjudication as bankrupt, or the appointment of a receiver for
Tenant's properties, or a petition or answer filed against Tenant
seeking reorganization of Tenant under Federal bankruptcy laws, or the
occurrence of any of such events in respect of any guarantor of this
Lease, or, if Tenant or any guarantor of this Lease is a natural
person, the death of such person.
D. Tenant shall abandon the Premises during the term hereof, provided
that Tenant shall not be deemed to have abandoned the Premises solely
by reason of cessation of operations within the Premises for periods
of ninety (90) days or less or such longer periods as Landlord may
approve in writing, which approval shall not be unreasonably withheld,
but which approval may be conditioned upon adoption of a maintenance
plan for the Premises reasonably acceptable to Landlord.
E. Tenant shall fail to contest the validity of any lien or claimed
lien and give security to Landlord to assure payment thereof, or,
having commenced to contest the same and having given such security,
shall fail to prosecute such contest with diligence, or shall fail to
have the same released and satisfy any judgment rendered thereon, and
such failure continues for thirty (30) days after notice thereof in
writing to Tenant.
16. REMEDIES FOR DEFAULT.
A. Upon the occurrence of any Default, Landlord may at its election
terminate this Lease or terminate Tenant's right to possession only,
without terminating the Lease. Upon termination of the Lease, or upon
any termination of Tenant's right to possession without termination of
the Lease, Tenant shall surrender possession and vacate the Premises
immediately, and deliver possession thereof to Landlord, and hereby
grants to Landlord the full and free right, without demand or notice
of any kind to Tenant (except as hereinabove expressly set forth), to
enter into and upon the Premises, in such event with or without
process of law and to repossess the Premises as Landlord's former
estate and to expel or remove Tenant and any others who may be
occupying or within the Premises without being deemed in any manner
guilty of trespass, eviction, or forcible entry or detainer, without
incurring any liability for any damage resulting therefrom and without
relinquishing Landlord's rights to Rent or any other right given to
Landlord hereunder or
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by operation of law. Upon termination of this Lease, Landlord shall be
entitled to recover as damages all Rent and other sums due and payable
by Tenant on the date of termination, plus (a) an amount equal to the
value of the Rent and other sums provided herein to be paid by Tenant
for the remainder of the Term hereof, less the fair rental value of
the Premises for the remainder of the Term (taking into account the
time and expenses necessary to obtain a replacement tenant or tenants,
including expenses hereinafter described relating to recovery of the
Premises, preparation for reletting and for reletting itself), and (b)
the cost of performing any other covenants to be performed by Tenant.
If Landlord elects to terminate Tenant's right to possession only
without terminating the Lease, Landlord may, at Landlord's option,
enter into the Premises, remove Tenant's signs and other evidences of
tenancy, and take and hold possession thereof as hereinafter provided,
without such entry and possession terminating the Lease or releasing
Tenant, in whole or in part, from Tenant's obligations to pay the Rent
and other sums provided herein to be paid by Tenant for the full term
or from any other of its obligations under this Lease. Landlord may
relet all or any part of the Premises for such Rent and upon such
terms as shall be satisfactory to Landlord (including the right to
relet the Premises as a part of a larger area, and the right to change
the character or use made of the Premises). For the purpose of such
reletting, Landlord may decorate or make any repairs, changes,
alterations or additions in or to the Premises that may be necessary
or convenient. If Landlord does not relet the Premises, Tenant shall
pay to Landlord on demand damages equal to the amount of the Rent, and
other sums provided herein to be paid by Tenant for the remainder of
the Lease Term. If the Premises are relet and a sufficient sum shall
not be realized from such reletting after paying all of the expenses
of such decorations, repairs, changes, alterations, additions, the
expenses of such reletting and the collection of the Rent accruing
therefrom (including, but not by way of limitation, attorneys' fees
and brokers' commission), to satisfy the Rent and other sums herein
provided to be paid for the remainder of the Lease Term, Tenant shall
pay to Landlord on demand any deficiency and Tenant agrees that
Landlord may file suit to recover any Rent or other sums falling due
under the terms of this Section from time to time. Landlord shall use
reasonable efforts to mitigate its damages arising out of Tenant's
default; Landlord shall not be deemed to have failed to use such
reasonable efforts by reason of the fact that Landlord has leased or
sought to lease other vacant premises owned by Landlord in preference
to reletting the Premises, or by reason of the fact that Landlord has
sought to relet the Premises at a rental rate higher than that payable
by Tenant under the Lease (but not in excess of the then current
market rental rate).
B. After giving Tenant at least ten (10) days' written notice of its
intent to do so, Landlord may, but shall not be obligated to, cure any
default by Tenant (specifically including, but not by way of
limitation, Tenant's failure to obtain insurance, make repairs, or
satisfy lien claims); and whenever Landlord so elects, all costs and
expenses paid by Landlord in curing such default, including without
limitation reasonable attorneys' fees, shall be so much additional
rent due on the next rent date after such payment together with
interest (except in the case of said attorneys' fees) at the Default
Rate.
C. No remedy herein or otherwise conferred upon or reserved to
Landlord shall be considered to exclude or suspend any other remedy
but the same shall be cumulative and shall be in addition to every
other remedy given hereunder, or now or hereafter existing at law or
in equity or by statute, and every power and remedy given by this
Lease to Landlord may be exercised from time to time and so often as
occasion may arise or as may be deemed expedient in Landlord's sole
discretion.
17. SURRENDER ON TERMINATION; HOLDOVER. On expiration or early termination
of this Lease, Tenant shall surrender the Premises broom clean and free of
debris inside and out. Subject to the provisions of Section 5 hereof, the
Premises shall be delivered in the same condition as at the commencement of
the Term, subject only to wear and tear from ordinary use.
8
Tenant shall remove all of its furnishings and trade fixtures and shall
repair any damage caused by such removal. Failure to remove shall be an
abandonment of the property, and Landlord may dispose of it at Tenant's
expense in any manner without liability. For each and every month or
partial month that Tenant or any party claiming by, through or under Tenant
remains in occupancy of all or any portion of the Premises after the
expiration of this Lease or after termination of this Lease or Tenant's
right to possession, Tenant shall pay, as minimum damages and not as a
penalty, monthly rental at a rate equal to one hundred fifty percent (150%)
of the rate of Rent payable by Tenant hereunder immediately prior to the
expiration or other termination of this Lease or of Tenant's right to
possession of the Premises. The acceptance by Landlord of any lesser sum
shall be construed as a payment on account and not in satisfaction of
damages for such holding over. In addition, Tenant shall be liable for all
loss, cost damage and expense that Landlord shall incur as a result of
Tenant holding over in the Premises. Landlord may exercise any and all
remedies available to it at law or in equity to recover possession of the
Premises. Within ten (10) days of Tenant's vacation of the Premises,
Landlord shall provide advance written notice to Tenant of its intent to
inspect the Premises during business hours and Tenant may be present at any
such inspection.
18. SUBORDINATION. Conditioned upon obtaining the Mortgagee's agreement
that Tenant's possession of the Premises shall not be disturbed in
connection with any foreclosure if Tenant is not in default hereunder, this
Lease shall, at Landlord's option, be subordinate to any ground lease,
mortgage, real estate sale contract or deed of trust ("Mortgage"), under
which the holder of such Mortgage may hereafter claim an interest in the
real property of which the Premises form a part. Subject to the preceding
sentence, upon Landlord's written request, Tenant or Tenant's successors in
interest will execute and deliver any documents, including, without
limitation the Subordination Agreement in the form of Exhibit D-1 attached
hereto, required to effectuate or confirm such subordination to any
Mortgage.
19. ESTOPPEL CERTIFICATE. Tenant shall, at any time upon not less than ten
(10) days' prior written notice from Landlord, execute, acknowledge and
deliver to Landlord a statement in writing in the form of Exhibit D-2
attached hereto certifying that this Lease is in full force and effect (or,
if modified, stating the nature of such modification and certifying that
this Lease, as so modified, is in full force and effect) and the date to
which the rent and other charges are paid in advance, if any, and
acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, or specifying such defaults, if
any are claimed, and acknowledging that there are not any uncured defaults
on the part of Tenant hereunder, and specifying such other matters as
reasonably requested by Landlord or its potential Mortgagee or purchaser of
its interest.
20. HAZARDOUS SUBSTANCES. Except in compliance with all Applicable Laws,
and in containers which shall be and remain sealed at all times while in
the Premises, Tenant shall not, and shall not cause or allow any other
party to, construct, use, deposit, store, dispose, place or locate on or
about the Premises any Hazardous Substances (as hereinafter defined)
without the prior written consent of Landlord, which may be withheld or
denied for any reason or no reason at all. Landlord acknowledges and agrees
that due to the nature of Tenant's business operations, Tenant occasionally
handles Hazardous Substances and same may be located at the Premises as
such materials are stored, received and forwarded to their destinations by
Tenant. Such Hazardous Substances shall be handled and stored in compliance
with all Applicable Laws and shall not remain at the Premises for in excess
of seventy two (72) hours and in all events will be removed or forwarded as
expeditiously as possible.
Tenant shall immediately notify Landlord of: (i) any disposal, release,
discharge, migration, spill, or leak of Hazardous Substances; (ii) any
inspection, enforcement, cleanup or other regulatory action taken or
threatened by any regulatory authority with respect to any Hazardous
Substances on, about, above, beneath or from the Premises or the migration
thereof from or to other property; (iii) any demands or claims made or
threatened by any party relating to any loss or injury claimed to have
resulted from any Hazardous Substances on, about, above, beneath or from
the
9
Premises; and (iv) any matters where Tenant is required by any Applicable
Laws to give a notice to any regulatory authority concerning Hazardous
Substances on or from the Premises.
Tenant shall indemnify, defend, and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities, or losses
(including direct, indirect and consequential damages of any type) which
result from any violation of Environmental Laws (as hereinafter defined) or
from Hazardous Substances on or about the Premises which occurs or is
contributed to during the Term. Notwithstanding anything contained to the
contrary in this Section 20, Landlord agrees that Tenant shall not be
responsible for any contamination of the Premises which was in existence
prior to the commencement date of the Original Lease, except to the extent
the cost of remediating the contamination was exacerbated by Tenant, its
agents, contractors, customers, invitees or employees.
Landlord may conduct tests on or about the Premises for the purpose of
determining the presence of any Hazardous Substances. If such tests
indicate the presence of an Hazardous Substances on or about the Premises
which occurs during the Lease Term or reveals preexisting environmental
contamination that was exacerbated by Tenant, its agents, contractors,
customers, invitees or employees, then Tenant shall, in addition to its
other obligations hereunder, reimburse Landlord for the cost of conducting
such tests, provided that in the case of a preexisting condition, Tenant's
liability shall be limited to those costs, if any, attributable to the acts
or omissions of Tenant, its agents, contractors, customers, invitees or
employees from and after the commencement date of the Original Lease..
Without limiting Tenant's liability under the preceding paragraph, in the
event of any such Hazardous Substances, Tenant shall promptly and at its
sole cost (to the extent the presence of such Hazardous Substances is the
responsibility of Tenant under this Section, with Landlord reimbursing
Tenant for the portion of the cost that is not the responsibility of
Tenant) and expense, take any and all steps necessary to remedy the same,
complying with all provisions of Applicable Laws and with Section 5 hereof,
or shall, at Landlord's election, reimburse Landlord for the cost to
Landlord of remedying the same.
Landlord shall have sole responsibility for, and shall indemnify and hold
Tenant harmless with respect to environmental conditions existing as of the
commencement date of the Original Lease, except to the extent the
preexisting environmental condition was exacerbated by the acts or
omissions of Tenant, its agents, contractors, customers, invitees or
employees.
If a party is entitled to reimbursement hereunder, such reimbursement shall
be paid in advance of the performance of the work in question, based on the
reasonable estimate of the cost thereof, as estimated by the party doing
the work, and upon completion of such work, the reimbursing party shall pay
any shortfall promptly after being billed therefor, with any reimbursements
paid based on estimates being refunded upon the completion of the work and
determination of actual costs.
As used herein, "Hazardous Substances" shall mean any substance, material,
waste, gas or particulate material which is regulated by any local
governmental authority, the State of Illinois or the United States
government, including but not limited to, any material or substance which
is:
(i) included within the definitions of "hazardous material,"
"hazardous substance," "extremely hazardous substance," "hazardous waste,"
"restricted hazardous waste," "toxic substance," "solid waste," "pollutant"
or "contaminant" in any Environmental Laws; and
(ii) To the extent the handling or release of the same is regulated by
Environmental Laws, any material, waste or substance which is any of the
following: (A) asbestos or any material composed of or containing asbestos;
(B) polychlorinated biphenyls; (C) petroleum or any petroleum based
substance or waste or any constituent of any such substance, waste or
product; (D) highly flammable or explosive; or (E) radioactive; and
10
(iii) Those other substances, materials and wastes which are or become
regulated under any Environmental Laws, or which are or become classified
as hazardous or toxic by any Environmental Laws.
In addition, as used herein the term "Environmental Laws" shall mean any
federal, state or local law, statute, regulations or ordinance and any
order, judgment or decree of any court or administrative body now or
hereafter enacted or issued, relating to any hazardous substance or
pertaining to health, industrial hygiene or the environmental or ecological
conditions on, under or about the Premises, including, without limitation,
each of the following: the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C.
ss. 9601 et seq.; the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. ss. 6901, et seq.; the Toxic Substance Control Act, as
amended, 15 U.S.C. ss. 2601 et seq.; the Illinois Environmental Protection
Act, as amended ("IEPA"), 415 ILCS 5/1 et seq.; the Clean Air Act, as
amended, 42 U.S.C. ss. 7401 et seq.; the Federal Water Pollution Control
Act, as amended, 33 U.S.C. ss. 1251 et seq.; the Federal Hazardous
Materials Transportation Act, 49 U.S.C. ss. 1501 et seq.; the National
Environmental Policy Act of 1975, as amended, 42 U.S.C. ss. 4321 et seq.;
and the rules, regulations and ordinances of the U.S. Environmental
Protection Agency and of all other agencies, boards, commissions and other
governmental bodies and officers having jurisdiction over the Premises or
the use or operation thereof.
21. BROKERAGE FEES. Landlord and Tenant represent and warrant to the other
that no broker participated in this transaction. Landlord agrees to
indemnify and hold Tenant free and harmless from and against all claims for
brokerage commissions or fees and/or finder's fees by any person or entity
claiming to have been retained by Landlord in connection with this
transaction or to be the procuring cause of this transaction in behalf of
Landlord. Tenant agrees to indemnify and hold Landlord free and harmless
from and against all claims for brokerage commissions or fees and/or
finder's fees from any other person or entity claiming to have been
retained by Tenant in connection with this transaction or to be the
procuring cause of this transaction on behalf of Tenant.
22. SECURITY DEPOSIT. Upon the execution of this Lease, Tenant shall
deposit with Landlord Zero Dollars ($0.00) (the "Security Deposit") to
secure Tenant's faithful performance under this Lease. If Tenant shall
default under this Lease, Landlord may apply all or any portion of the
Security Deposit to cure such default or to compensate Landlord for any
loss or damage which Landlord may suffer thereby. If Landlord so applies
any portion of the Security Deposit, Tenant shall immediately, upon written
demand, restore the Security Deposit to the full amount hereinabove stated.
LANDLORD SHALL NOT BE REQUIRED TO KEEP THE SECURITY DEPOSIT SEPARATE FROM
ITS GENERAL ACCOUNTS AND TENANT SHALL NOT BE ENTITLED TO ANY INTEREST ON
ITS SECURITY DEPOSIT. Within thirty (30) days after the expiration of the
Lease Term and the vacation of the Premises by Tenant, the Security
Deposit, less any portion thereof to which Landlord may be entitled, shall
be returned to Tenant provided Tenant is not in default of this Lease. If
Tenant is in default under this Lease more than three (3) times within any
(12) twelve-month period, irrespective of whether or not such default is
cured, then, without limiting Landlord's other rights and remedies provided
for in this Lease or at law or equity, the Security Deposit shall
automatically be increased by an amount equal to two (2) months Base Rent,
which shall be paid by Tenant to Landlord forthwith on demand. Based on the
annual reconciliation of Operating Expenses, the actual amount due from
Tenant for the final estimate period of the Lease Term shall be due and
payable even though it may not be finally calculated until after the
expiration of the Lease Term. Accordingly, Landlord shall have the right to
continue to hold the Security Deposit following the expiration of the Lease
Term until actual Operating Expenses have been calculated by Landlord and
paid by Tenant.
11
23. GENERAL PROVISIONS.
A. Waiver by either party of strict performance of any provision of
this Lease shall not be a waiver nor prejudice the party's right
otherwise to require performance of the same provision or any other
provision.
B. Subject to the limitations on transfer of Tenant's interest, this
Lease shall bind and inure to the benefit of the parties, their
respective heirs, successors and assigns.
C. If this Lease commences or terminates at a time other than the
beginning or end of one of the specified rental periods, then the rent
(including Tenant's share of real property taxes, insurance and common
area charges, if any) shall be prorated as of such date, and in the
event of termination for reasons other than default, all prepaid rent
shall be refunded to Tenant or paid on this account.
D. Landlord and Tenant warrant that they each have full right and
authority to enter into this Lease. Landlord agrees that, so long as
Tenant complies with all terms of this Lease, it shall be entitled to
peaceable and undisturbed possession of the Premises free from any
eviction or disturbance by Landlord or persons claiming through
Landlord.
E. Notices between the parties relating to this Lease shall be in
writing, effective when delivered either in person or by facsimile (as
evidenced by transmission confirmation receipt), or if mailed,
effective on the second day following mailing, postage prepaid,
certified mail, return receipt requested, or if sent by nationally
recognized overnight courier, effective on the next business day
following deposit with such courier, to the address for the party
stated in this Lease or to such other address as either party may
specify by notice to the other. Rent shall be payable to Landlord at
the same address.
If to Landlord: MP Cargo ORD Property LLC
c/o Cargo Ventures LLC
00 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Tel 000-000-0000
Fax 000-000-0000
If to Tenant: Cargo Connection Logistics-International Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Tel: 000-000-0000
Fax 000-000-0000
F. Time is of the essence with respect to the performance of each and
every provision of this Lease. This Lease shall be governed by the
laws of the state where the Premises are located.
G. If either party brings legal action against the other party to
enforce any provision of this Lease, the prevailing party shall be
entitled to recover reasonable attorneys' fees in addition to any
other damages awarded at arbitration, trial and upon any appeal.
H. Annually, within ninety (90) days after the end of Tenant's fiscal
year, Tenant shall furnish to Landlord, the financial statements of
Tenant and any other party which is then liable for any of the
obligations under this Lease. In addition, in the event that Landlord
is then in the process of selling or refinancing the Premises, upon
Landlord's request, Tenant shall
12
provide to Landlord financial statements for Tenant and any other
party which is then liable for any of the obligations under this Lease
for the most recent fiscal quarter then ended, as well as year to date
financial statements, to the extent available.
I. Landlord, and Landlord's contractors, agents and consultants may
enter the Premises at all reasonable times, upon reasonable prior
notice, which may be oral, other than in the case of any emergency in
which case any such party may enter the Premises at any time without
notice, to: inspect the same; exhibit the same to prospective
purchasers, prospective mortgagees or tenants; determine whether
Tenant is complying with all of its obligations under this Lease,
including, without limitation, the handling of Hazardous Substances;
post notices of non-responsibility or to make repairs or improvements
in or to the Premises. Tenant hereby waives any claim for damages for
any injury to, or interference with, Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, or any other loss
occasioned by such entry or repair or service work which Landlord
deems to be reasonably necessary.
J. Notwithstanding anything to the contrary contained in this Lease or
in any exhibits, riders or addenda hereto attached (collectively the
"Lease Documents"), it is expressly understood and agreed that: (a)
the recourse of Tenant against Landlord with respect to the alleged
breach by Landlord of any representation, warranty, covenant,
undertaking or agreement contained in any of the Lease Documents or
otherwise arising out of this transaction or Tenant's use of the
Premises (collectively, "Landlord's Lease Undertakings") shall extend
only to Landlord's interest in the Premises, and not to any other
assets of Landlord; and (b) except to the extent of Landlord's
interest in the Premises, no personal liability or personal
responsibility of any sort with respect to any of Landlord's Lease
Undertakings or any alleged breach thereof is assumed by, or shall at
any time be asserted or enforceable against Landlord.
Landlord shall have the right to sell, transfer or assign the
Premises, or any part thereof, or Landlord's interest in this Lease in
which event, if the purchaser or transferee has assumed the
obligations of Landlord hereunder, then Landlord shall be
automatically freed and relieved from all applicable liability with
respect to performance of any covenant or obligation on the part of
Landlord, to the extent the liability accrues after the sale, transfer
or assignment. Any Security Deposits or advance rents held by Landlord
shall be turned over to the successor and said successor and all of
the obligations of the Landlord hereunder shall be binding on
Landlord, its successors and assigns, only during their respective
periods of ownership.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year
first written above.
Landlord: Tenant:
MP CARGO ORD PROPERTY LLC, CARGO CONNECTION LOGISTICS-
a Delaware limited liability company INTERNATIONAL, INC., an Illinois
corporation
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxxxxx
------------------------------------- ------------------------------------
Signature Signature
Xxxxx Xxxxxx Xxxxx Xxxxxxxxx
------------------------------------- ------------------------------------
Print Name Print Name
Authorized Agent Chairman/CEO
------------------------------------- ------------------------------------
Title Title
13
EXHIBIT A
LEGAL DESCRIPTION
(SEE ATTACHED EXHIBIT)
14
EXHIBIT A
LEGAL DESCRIPTION
LEGAL DESCRIPTION:
A parcel of land being part of lot 1 and all of lot 2 of Thorndale Distribution
Park in Bensenville, Unit No. 11, per document number R94-173467, recorded
August 18, 1994, being a subdivision of lots 6 and 7 in Thorndale Distribution
Park in Bensenville Unit No. 3, being a subdivision of part of the south
one-half of section 2, township 40 north, range 11 east of the third principal
meridian, according to the plat therefor recorded October 31, 1984, as document
number R84-88004, and lot 4 of Thordale Distribution Park in Bensenville, Unit
No. 10, being a subdivision of part of the southeast one-quarter of section 2,
township 40 north, range 11 east of the third principal meridian, according to
the plat therefor recorded January 15, 1991, as document number R91-4837, and
part of the south one-half of section 2, township 40 north, range 11 east of the
third principal meridian, and which parcel of land is more particularly
described as follows:
COMMENCING at the northwest corner of the northeast 1/4 of the southeast 1/4 of
said section 2, which is also the northeast corner of lot 7 of Thorndale
Distribution Park in Bensenville, Unit No. 3, according to the plat thereof
recorded october 31, 1984, as document R84-88004, and for this legal description
the north line of said northeast 1/4 ______ an assumed bearing of north 88
degrees 40 minutes 15 seconds east;
THENCE north 88 degrees 40 minutes 15 seconds east along and upon said north
line, for a distance of 234.00 feet to the northwest corner of lot 4 of
Thorndale Distribution Bensenville, Unit 10, and a POINT OF BEGINNING;
THENCE north 88 degrees 40 minutes 15 seconds east continuing along and upon
said north line, for a distance of 331.25 feet;
THENCE south 00 degrees 34 minutes 25 seconds east for a distance of 530.62
feet;
THENCE south 89 degrees 25 minutes 35 seconds west for a distance of 300.88
feet;
THENCE south 33 degrees 14 minutes 52 seconds west for a distance of 104.97 feet
to a point on the northerly right-of-way line of Supreme Drive as dedicated per
document number R91-4837;
THENCE north 56 degrees 45 minutes 08 seconds west along and upon siad northerly
right-of-way line, for a distance of 146.50 feet;
THENCE north 64 degrees 12 minutes 41 seconds east for a distance of 29.15 feet;
THENCE north 33 degrees 14 minutes 52 seconds east for a distance of 229.53 feet
to a point on the west line of said lot 4;
THENCE north 01 degrees 19 minutes 45 seconds west along and upon the west line
of said lot 4, for a distance of 328.94 feet to the POINT OF BEGINNING, all in
DuPage County, Illinois.
-14-
EXHIBIT B-1
FLOOR PLAN OF PREMISES
(SEE ATTACHED EXHIBIT)
15
EXHIBIT B-1
[The omitted graphic material is a floor plan that depicts the office space and
warehouse space at 000 Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx]
EXHIBIT B-1
[The omitted graphic material is a floor plan that depicts the office space and
warehouse space at 000 Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx]
EXHIBIT B-2
SITE PLAN OF PREMISES
(SEE ATTACHED EXHIBIT)
16
EXHIBIT B-2
[The omitted graphic material is a floor plan that depicts the office space and
warehouse space at 000 Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx]
EXHIBIT C
INTENTIONALLY OMITTED
17
EXHIBIT D-1
SUBORDINATION AGREEMENT
THIS INSTRUMENT WAS PREPARED BY:
-------------------------------
XXXXXX XXXXXXX, ESQ.
XXXXXX LONG
STONERIDGE WEST
00000 XXXXXXXX XXXXXX
XXXXXXXXXX XXXXX, XXXXXXXX 00000
AFTER RECORDING MAIL TO:
-----------------------
-----------------------
-----------------------
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement"), dated as of ____________, 20___, among ________________________, a
_______________________, having an address at _________________, ___________,
_________ _________, in its capacity as administrative agent for the financial
institutions (collectively, the "Lenders"), parties to the Loan Agreement
referred to below (in such capacity, "Mortgagee"), CARGO CONNECTION
LOGISTICS-INTERNATIONAL, INC., an Illinois corporation (successor-in-interest to
Underwing International, LLC, a Delaware limited liability company), having an
office at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000-0000 ("Tenant"), and MP CARGO ORD
PROPERTY LLC, a Delaware limited liability company, having an address at c/o
Cargo Ventures LLC, 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000
("Mortgagor").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to a certain loan agreement, dated as of ___________,
_________, among Mortgagor, Mortgagee and the Lenders (the "Loan Agreement"),
the Lenders have agreed to make a mortgage loan to the Mortgagor and
___________________ in the principal amount of up to $__________________ (the
"Loan "), upon the terms and subject to the conditions set forth in the Loan
Agreement;
WHEREAS, the Loan will be secured by, among other things, a Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing by the Mortgagor for
the benefit of the Mortgagee (the " Mortgage") intended to be recorded in the
real property records of Dupage County, Illinois which Mortgage covers
Mortgagor's interest in certain premises more particularly described on Exhibit
A attached hereto (the "Property");
WHEREAS, Tenant has leased certain space (the "Demised Premises") in the
building located at the Property from Mortgagor pursuant to a certain Lease,
dated January 1, 2008 (the "Lease" );
WHEREAS, as a condition to the disbursement of the Loan, Mortgagee has
required that the Lease and all rights of Tenant thereunder be subordinated to
the Mortgage and all of the rights of Mortgagee thereunder as provided herein;
and
WHEREAS, Tenant wishes to obtain a non-disturbance agreement from Mortgagee
so as to be assured of continued possession of the Demised Premises if the
Mortgage is foreclosed.
NOW, THEREFORE, for valuable consideration, Mortgagee, Mortgagor and Tenant
agree as follows:
18
1. The Lease is and shall continue to be subject and subordinate in all
respects to the lien of the Mortgage, to all of the terms thereof, to all
advances made or to be made thereunder and any renewals, modifications,
increases, consolidations, replacements and extensions thereof and/or thereto.
2. If foreclosure proceedings are instituted under the Mortgage and Tenant
shall not be in default under the Lease beyond the applicable cure period (if
any) specified in the Lease, then: (a) Tenant shall not be made a party
defendant in such proceedings; (b) the Lease shall not be terminated; and (c)
Tenant's possession of the Demised Premises shall not be disturbed by such
proceedings.
3. Upon the completion of foreclosure proceedings and the sale of the
Property, or if Mortgagee should otherwise acquire possession of the Property,
Tenant shall attorn to the purchaser at foreclosure or to Mortgagee, as the case
may be, and shall recognize such purchaser or Mortgagee as Tenant's landlord
under the Lease. The foregoing provisions shall be self-operative and effective
without the execution of any further instruments on the part of any party
hereto. Tenant agrees, however, that from time to time upon the request of the
purchaser at foreclosure or Mortgagee, as the case may be, Tenant shall execute
and deliver any instrument reasonably requested by Mortgagee or such purchaser
to confirm such attornment.
4. Tenant waives the provisions of any statute or rule of law now or
hereafter in effect which accords Tenant any right of election to terminate the
Lease or to surrender possession of the Demised Premises if foreclosure
proceedings are instituted. Tenant shall, upon demand of any receiver in
foreclosure, pay such receiver all base rent, additional rent and all other
charges becoming due under the Lease after such demand.
5. Upon attornment by Tenant pursuant to paragraph 3, the Lease shall
continue in full force and effect as a direct lease between the purchaser at
foreclosure or Mortgagee, as the case may be, and Tenant, upon all of the terms
of the Lease, except that: (a) notwithstanding anything to the contrary
contained herein or in the Lease, in the event of foreclosure of the Mortgage or
if Mortgagee should otherwise acquire possession of the Property, the liability
of Mortgagee, its successors and assigns, or the purchaser at foreclosure, as
the case may be, shall be limited to its or their interest in the Property; and
(b) such purchaser or Mortgagee, as the case may be, shall not:
(i) be liable for any previous act, omission or default of the
landlord under the Lease; or
(ii) be subject to any offset which shall have theretofore accrued to
Tenant against the landlord under the Lease; or
(iii) be bound by any prepayment of more than one month's base rent,
additional rent or other charges due under the Lease unless such prepayment
shall have been approved, in writing, by Mortgagee; or
(iv) be bound by any modification or amendment of the Lease or by any
cancellation or surrender of the Lease, unless the same shall have been
approved, in writing, by Mortgagee; or
(v) be liable to Tenant for any deposit, rental security or any other
sums deposited with the landlord under the Lease and not delivered to Mortgagee
or the purchaser at foreclosure, as the case may be; or
(vi) be liable to Tenant for any work required to be performed to
prepare the Demised Premises for Tenant's occupancy or for payment of any
allowances or contributions to the cost of any such work; or
(vii) be liable to Tenant for construction or restoration, or delays
in construction or restoration, of the Property, or any part thereof resulting
from a fire or other casualty occurring prior to the date that Mortgagee or such
purchaser in foreclosure shall have acquired title to the Property; or
19
(viii) be liable to Tenant for any Lease buy-out agreements or
obligations.
6. Tenant acknowledges that pursuant to the Mortgage, Mortgagor has granted
to Mortgagee, as Mortgagor's assignee, the right to direct Tenant to pay to
Mortgagee (or Mortgagee's designee) the rents due under the Lease. Tenant shall,
after receipt of a notice from Mortgagee directing Tenant to pay such rentals to
Mortgagee (or Mortgagee's designee), pay all base rent, additional rent or other
charges payable under the Lease to Mortgagee (or Mortgagee's designee) until
Mortgagee notifies Tenant to resume payment to Mortgagor. Mortgagor joins in the
execution of this Agreement for the purpose of irrevocably directing Tenant to
make such rental payments in accordance with Mortgagee's instructions. In
complying with the provisions of this paragraph 6, Tenant shall be entitled to
rely solely upon the notices given by Mortgagee which are referred to in this
paragraph 6. Tenant shall be entitled to full credit under the Lease for any
rents paid to Mortgagee (or its designee) in accordance with the provisions of
this paragraph 6 to the same extent as if such rents were paid directly to
Mortgagor.
7. Mortgagor and Tenant each agree not to amend, modify, surrender or
cancel the Lease without the prior written consent of Mortgagee, and any such
purported amendment, modification, surrender and/or cancellation taken without
Mortgagee's written approval shall not be effective.
8. Tenant agrees that if there occurs a default by the landlord under the
Lease, a copy of each notice given to the landlord pursuant to the Lease shall
also be given to Mortgagee, and no such notice shall be effective for any
purpose under the Lease unless so given to Mortgagee. Tenant shall permit
Mortgagee to cure any such default by the Landlord under the Lease.
9. This Agreement may not be modified orally or in a manner other than by
an agreement in writing signed by the parties hereto or their respective
successors in interest.
10. This Agreement contains the entire understanding between Mortgagor,
Mortgagee and Tenant, and may not be changed except by an instrument signed by
the party to be charged.
11. All notices, approvals, consents and other communications referred to
herein shall be in writing and sent by certified mail, return receipt requested,
addressed to the parties at their respective addresses above set forth or to
such other address as either party shall specify by notice to the other.
12. This Agreement shall be binding upon and inure to the benefit of
Mortgagor, Mortgagee and Tenant and their respective successors and assigns.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Mortgagee, Mortgagor and Tenant have executed this
Agreement as of the day and year first above written.
MORTGAGEE:
-----------------------------------,
a , in its capacity as
----------------------------
administrative agent for the Lenders,
By:
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
TENANT:
CARGO CONNECTION LOGISTICS-INTERNATIONAL, INC.,
an Illinois corporation
By:
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
MORTGAGOR:
MP CARGO ORD PROPERTY LLC, a Delaware limited
liability company
By:
------------------------------------
Name:
------------------------------------
Title:
----------------------------------
21
NOTARY FOR MORTGAGEE:
STATE OF ______________ )
) SS
COUNTY OF _____________ )
I, _____________________________, a notary public in and for said County, in the
State aforesaid, DO HEREBY CERTIFY that _________________________,
____________________________________ of _____________________________________, a
______________________________, and _____________________________, of the same
___________________________, a ___________________, personally known to me to be
persons whose names are subscribed to the foregoing instrument, as such
_________________ and ________________, appeared before me this day in person
and acknowledged that they signed and delivered the said instrument as their
free and voluntary act and as the free and voluntary act of said corporation,
pursuant to authority granted by the Board of Directors of said corporation, for
the uses and purposes therein set forth.
GIVEN under my hand and official seal this ______ day of ______________, 20___.
--------------------
Notary Public
NOTARY FOR TENANT:
STATE OF _________ )
) SS
COUNTY OF _______ )
I, ________________, a notary public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that ______________________ of
_____________________, an Illinois corporation, personally known to me to be the
same person whose name is subscribed to the foregoing instrument, as such
_________________, appeared before me this day in person and acknowledged that
he/she signed and delivered the said instrument as his/her free and voluntary
act and as the free and voluntary act of said corporation, pursuant to authority
granted by said _______________, for the uses and purposes therein set forth.
GIVEN under my hand and official seal this ____ day of _________, 20__.
-----------------------
Notary Public
22
NOTARY FOR MORTGAGOR:
STATE OF __________ )
) SS
COUNTY OF _________ )
I, ______________________, a notary public in and for said County, in the
State aforesaid, DO HEREBY CERTIFY that Xxxxx Xxxxxx, of MP CARGO ORD PROPERTY
LLC, a Delaware limited liability company, personally known to me to be the same
person whose name is subscribed to the foregoing instrument, as such
_________________, appeared before me this day in person and acknowledged that
he/she signed and delivered the said instrument as his/her free and voluntary
act and as the free and voluntary act of said company, pursuant to authority
granted by the members of said company, for the uses and purposes therein set
forth.
GIVEN under my hand and official seal this ____ day of ___________, 20__.
----------------------
Notary Public
23
EXHIBIT D-2
ESTOPPEL CERTIFICATE
TENANT ESTOPPEL CERTIFICATE
Name of Tenant:
Leased Premises:
----------------------------------
----------------------------------
----------------------------------
Ladies and Gentlemen:
CARGO CONNECTION LOGISTICS-INTERNATIONAL, INC., an Illinois
corporation ("Tenant"), acknowledges that _____________________, as
administrative agent for certain lenders ("Lender") will be making a loan (the
"Loan") secured by a mortgage covering the interest of MP CARGO ORD PROPERTY
LLC, a Delaware limited liability company ("Landlord"), in the building commonly
known as 000 Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx (the "Building"). Landlord has
requested Tenant execute and deliver this Tenant Estoppel Certificate to Lender.
Tenant acknowledges that Lender, and its successors and assigns, will rely upon
the certifications by Tenant in this Tenant Estoppel Certificate in connection
with the Loan.
Tenant hereby certifies to Lender and its successors and assigns, as
follows:
1. Tenant currently leases the Building ("Premises") and the real
property (as set forth in the Lease) pursuant to the terms and conditions of the
Commercial Lease Agreement dated ________________ between Landlord and Tenant
(the "Lease"). Except for the Lease, there are no agreements (written or oral)
or documents which are binding on Landlord in connection with the lease of the
Premises. The Lease is valid, binding and in full force and effect, and has not
been modified or amended in any manner whatsoever except as described herein.
2. The term of the Lease commenced on January 1, 2008 and, including
any presently exercised option or renewal term, ends on December 31, 2018,
subject to any rights of Tenant to early termination or extensions expressly set
forth in the Lease. Tenant has no right to extend the term of the Lease except
to the extent expressly set forth in the Lease.
3. Landlord has delivered possession of the Premises to Tenant, and
Tenant has accepted possession of, and currently occupies, the Premises.
4. The current monthly base rent payable under the Lease is
_____________ and the current monthly payment payable under the Lease on account
of taxes is ____________ and on account of operating expenses is ____________.
Tenant's percentage share of operating expenses and real estate taxes is one
hundred percent (100%). Rent and all other charges payable under the Lease on or
before the date hereof have been paid through ___________. No amounts of monthly
base rent payable under the Lease have been prepaid except through the end of
the current calendar month, and no other charges payable under the Lease have
been prepaid for any period, other than estimated payments of operating expenses
and taxes.
5. All reconciliations of actual taxes and operating expenses for
calendar year ____ and all previous calendar years ("Expenses") with payments
made by Tenant therefor have been made and a report thereof delivered to Tenant.
Tenant has not made and has no objections to such reconciliation, and waives all
claims against Landlord for any overpayment of or other amounts with respect to
the Expenses.
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6. Tenant has no options, rights of offer, rights of refusal or other
rights to purchase all or any portion of the Building. Tenant has no options,
rights of offer, rights of refusal or other rights to expand the Premises or
lease any other premises in the Building, except to the extent expressly set
forth in the Lease.
7. To Tenant's knowledge, Tenant has no current claims against
Landlord under the terms of the Lease requiring Landlord to perform any
improvements or repairs to the Premises, and all allowances, reimbursements or
other obligations of Landlord for the payment of monies to or for the benefit of
Tenant have been fully paid, all in accordance with the terms of the Lease.
8. Neither Landlord nor Tenant is in default in the performance of any
covenant, agreement or condition contained in the Lease, and no event has
occurred and no condition exists which, with the giving of notice or the lapse
of time, or both, would constitute a default by any party under the Lease.
Tenant has no defenses, counterclaims, liens or claims of offset or credit under
the Lease or against rents, or any other claims against Landlord.
9. Tenant is not the subject of any bankruptcy, insolvency or similar
proceeding in any federal, state or other court or jurisdiction.
10. Tenant is in possession of the Premises and has not subleased any
portion of the Premises or assigned or otherwise transferred any of its rights
under the Lease.
11. Tenant has deposited Zero Dollars ($0.00) with Landlord as a
security deposit under the Lease.
12. Tenant's obligations under the Lease have been guarantied by Cargo
Connection Logistics Holding, Inc., a Florida corporation, _____________________
and ______________________ pursuant to a guaranties dated as of January 1, 2008.
13. The individual executing this Tenant Estoppel Certificate has the
authority to do so on behalf of Tenant and to bind Tenant to the terms hereof.
[SIGNATURE PAGE FOLLOWS]
25
IN WITNESS WHEREOF, the undersigned has executed this Tenant Estoppel
Certificate as of this ___ day of _________, 20____.
TENANT:
CARGO CONNECTION LOGISTICS-INTERNATIONAL, INC.,
an Illinois corporation
By:
-------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
26
