OFFICE/WAREHOUSE LEASE AGREEMENT
THIS LEASE, made this 2nd day of June, 1989, by and between the Owner of the
leased premises through its Agent, Xxxxxx Management Company, a Missouri
corporation, (hereinafter referred to as "Landlord"), and Household Finance
Corporation III, a Delaware corporation (hereinafter referred to as "Tenant");
WITNESSETH:
1. LEASED PREMISES. Landlord hereby demises and leases to Tenant that certain
space known and numbered as 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxx
Xxxxxx, Xxxxxxxx, more fully described on Exhibit "A", attached hereto and made
a part hereof, containing approximately 91,855 square feet of space,
(hereinafter referred to as the "Premises"), plus the use of all common areas in
and around Landlord's building (which building, common areas and the real estate
thereunder, is more fully described on Exhibit "B", attached hereto and made a
part hereof, and is hereinafter referred to as the "Property"). Tenant
acknowledges that it has inspected the Premises and the common areas of the
Property, and accepts same in their present "AS IS" condition excluding latent
defects, and as suitable for the purposes for which they are leased. However,
Landlord warrants that all mechanical, electrial [sp] and plumbing system shall
be in good working condition on the commencement date of this Lease. Tenant
further acknowledges that Landlord has made no representations with respect to
any alterations, repairs or improvements to be constructed within the Premises,
unless otherwise set forth in this Lease.
2. USE. The Premises shall be used only for the purpose of general office
and/or receiving, warehousing and shipping products distributed by Tenant.
Tenant shall obtain, at Tenant's sole cost and expense, any and all licenses and
permits necessary for Tenant's contemplated use of the Premises. Tenant shall
comply with all existing and future governmental laws, ordinances and
regulations applicable to the use of the Premises, as well as all requirements
of Landlord's insurance carrier, excluding the making of structural changes.
Tenant shall not permit any objectionable or unpleasant odors, smoke, dust, gas,
noise or vibrations to emanate from the Premises, nor take any other action
which would constitute a nuisance or which would disturb or endanger any
third-party tenants of the Property, or unreasonably interfere with such
third-party tenant's use of their respective space. Tenant shall not receive,
store or otherwise handle any product, material or merchandise which is
explosive or highly inflammable. Tenant shall comply with all statutes,
ordinances, rules, orders, regulations and requirements of the Federal, State or
municipal governments for any activities involving, directly or indirectly, the
use, generation, treatment, storage, or disposal of any hazardous or toxic
chemicals, materials, substances or wastes used within the Premises. At
Landlord's request, Tenant shall furnish evidence, reasonably satisfactory to
Landlord, that Tenant is in compliance with such environmental requirements.
Tenant agrees to indemnify, defend and hold Landlord harmless from and against
any and all liabilities or claims by reason of any injury to persons or damage
to property arising out of the discharge, disbursement, release, or escape of
smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, hazardous wastes,
liquid or gasses, waste materials, or other irritants, contaminants or
pollutants into or about the Premises or Property, which originate from any
products stored, produced, manufactured, treated, or disposed of by Tenant
within the Premises. The aforesaid indemnification and defenses shall survive
the term of this Lease.
Tenant shall not permit the Premises to be used for any purpose or in any
manner (including, without limitation, any method of storage) which would render
Landlord's insurance thereon void, or the insurance risk more hazardous, or
cause the State Board of Insurance or other insurance authority to disallow any
sprinkler credits.
3. TERM. The term of this Lease shall commence on the 1st day of July, 1989,
and shall expire on the 31st day of December, 1994, both inclusive. Tenant's
responsibilities and liabilities apply from the date of Tenant's possession if
sooner than July 1, 1989, except for payment of rent. See Additional Provisions,
Paragraph 30.
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4. BASE RENT. Tenant shall pay to Landlord as Base Rent for said Premises the
sum of Two Hundred Fifty-two Thousand, Six Hundred and 00/100 ($252,600.00)
Dollars, per year, payable in equal monthly installments of Twenty-one Thousand,
Fifty and 00/100 ($21,050.00) Dollars each, on the first day of each calendar
month, in advance, without setoff or deduction, at the office of Landlord. See
Additional Provisions, Paragraph 31.
5. ADDITIONAL RENT.
(a) Taxes. Landlord shall be initially responsible for the payment of all
general and special taxes, including any assessments for local improvements and
any other governmental charges ("Tax"), which may lawfully be charged, assessed,
or imposed upon the Property, or any part thereof. Tenant shall pay to Landlord,
as Additional Rent, Tenant's proportionate share of such Taxes paid by Landlord
in each calendar year during the term of this Lease. The parties acknowledge
that certain real estate Taxes payable in Illinois are paid one (1) year in
arrears; notwithstanding such fact, Tenant shall pay to Landlord Tenant's
proportionate share of such Taxes paid by Landlord in the calendar year when
such Taxes were actually paid. In addition thereto, Tenant shall pay all taxes
which may lawfully be charged, assessed or imposed upon Tenant's fixtures,
equipment and inventory of every type, and also upon all of Tenant's personal
property within the Premises.
In the event Landlord is assessed with a Tax which Landlord or Tenant deems
excessive, Landlord or Tenant may challenge such Tax to the extent legally
permitted, so long as the validity or amount thereof is contested by Landlord or
Tenant in good faith, and so long as Tenant's occupancy of the Premises is not
disturbed. Prior to Landlord or Tenant challenging such tax, Landlord or Tenant
shall provide the other party written notice of its intention to do so. In the
event Landlord or Tenant is successful in its challenge, resulting in an
abatement and/or refund, Tenant's proportionate share of such Taxes shall be
adjusted to reflect such abatement and/or refund, less Landlord's reasonable
costs in securing same. In the event Landlord or Tenant is unsuccessful in its
challenge, Tenant shall pay its proportionate share of Landlord's costs to
reduce or xxxxx the contested Tax. Landlord shall provide Tenant written notice
setting forth the amount due. Landlord's costs shall include, but shall not be
limited to, reasonable fees of counsel and experts reasonably incurred by
Landlord in connection with any such challenge, or any judicial review thereof.
In the event Landlord is assessed with a Tax which Landlord has the option to
pay in installments over a period of time, and Landlord solely elects to pay
such Tax in installments, the Taxes allocable to Tenant shall only include the
then current installment and any applicable interest due thereon; and should
Landlord elect not to pay such Tax in installments, the Taxes allocable to
Tenant shall only include an amount equal to the installment that would have
come due had Landlord elected the installment method of payment.
The foregoing provisions are predicated on the present system of taxation in
the state where the Property is located. However, if due to a future change in
the method of taxation any franchise, income, profit or other tax shall be
levied against the Landlord in substitution, whole or in part, for or in lieu of
any tax which would otherwise constitute a "real estate tax", such franchise,
income, profit or other tax shall be deemed to be a Tax for the purposes hereof.
(b) Insurance. Landlord shall be initially responsible for the payment of all
premiums for liability, property damage, fire, worker's compensation, rent and
any other insurance ("Insurance") which Landlord deems necessary to carry on or
for the protection of the Property. Tenant shall pay to Landlord, as Additional
Rent, Tenant's proportionate share of such Insurance paid by Landlord in each
calendar year during the term of this Lease. In addition thereto, in the event
Tenant's use of the Premises shall result in an increase of any of Landlord's
insurance premiums, Tenant shall pay to Landlord, upon written notice, and, and
as Additional Rent, an amount equal to such increase in insurance. Such payments
of insurance shall be in addition to all premiums of insurance which Tenant is
required to carry pursuant to Paragraph 19 of this Lease.
(c) Common Area Maintenance. Tenant shall be responsible for the operation and
maintenance of the following: the maintenance, and repair within Exhibit A of
the paving of all parking facilities, access roads, driveways, sidewalks and
passageways, trunk-line plumbing (as opposed to branch-line plumbing),
landscaping, snow removal,
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interior and exterior painting, and rail spur maintenance, if applicable.
Notwithstanding the aforesaid, Tenant shall not be responsible for the payment
of any expense chargeable to a capital account or capital improvement under
generally accepted accounting principles; nor shall Tenant be responsible for
the payment of any expense for which Landlord is otherwise reimbursed.
(d) Payment of Additional Rent. Landlord shall have the right to xxxx Tenant
monthly for all Taxes, Insurance, and Common Area Maintenance expenses which
Tenant is obligated to pay Landlord under this Lease; and, in the event Landlord
so elects, Tenant shall pay to Landlord, in addition to payments of Base Rent,
an amount equal to one-twelfth (1/12) of Tenant's total proportionate share of
such Taxes, Insurance and/or Common Area Maintenance expense. All monies paid in
advance to Landlord by Tenant shall not accrue interest thereon. Such amounts
for the first year of the lease term shall be reasonably estimated by Landlord;
thereafter, such amounts shall be estimated upon the basis of the preceding
year. At the end of each calendar year, Landlord shall deliver a statement to
Tenant setting forth Tenant's actual proportionate share of Taxes, Insurance
and/or Common Area Maintenance expenses along with a copy of the tax xxxx and
the total amount of monthly payments, if any, paid by Tenant to Landlord. Tenant
shall thereafter pay to Landlord the full amount of any difference between
Tenant's proportionate share and Tenant's estimated payments within thirty (30)
days after receipt of Landlord's statement. Conversely, in the event Tenant's
estimated payments exceed the actual amount of Tenant's proportionate share,
Landlord shall refund the overpayment to Tenant. In the event any bills or
computations are not available prior to the end of the lease term, Tenant shall
pay an amount reasonably estimated by Landlord, which amount shall be equitably
adjusted for any partial month or year of the term of this Lease. For purposes
of this Lease, Tenant's proportionate share shall be defined as a fraction, the
numerator of which shall be the square footage of the Premises, and the
denominator of which shall be the square footage of the rentable area of the
Property, which proportionate share is hereby agreed to be equal to 56.55% at
the time the lease was executed.
Within ninety (90) days after receipt of each year-end statement, Tenant or
its authorized agent shall have the right, at Tenant's sole cost and expense, to
inspect and audit Landlord's records with respect to Tenant's proportionate
share of expenses, which audit shall be at Landlord's office during Landlord's
normal business hours, and upon five (5) days prior written notice. Except as
aforesaid, Landlord shall not be obligated to provide Tenant with detailed
summaries and receipts for all expenses incurred by the Property; but Landlord
shall provide Tenant with a statement setting forth such, expenses, categorized
by class and amount. Unless Tenant asserts specific errors within said ninety
(90) days, said year-end statement shall be deemed to be correct.
6. LATE CHARGE. In the event Tenant is late by more than ten (10) days in the
payment of any Base Rent or Additional Rent, Tenant shall be assessed a late
charge for Landlord's increased administrative expenses, which late charge shall
be equal to five (5%) percent, per month, of all outstanding rent owed Landlord.
Landlord, shall provide Tenant written notice setting forth the amount due.
7. UTILITIES. Landlord agrees to supply water, gas, electricity, sewer and
telephone connections to the Premises; but Tenant shall pay for the use of all
such water, gas, electricity, sewer, and telephone services, and any other
utilities and/or services used by Tenant within the Premises, together with any
taxes, penalties, surcharges or the like pertaining thereto. Tenant shall be
liable for all maintenance and equipment with respect to the continued operation
of such utilities which are located within the Premises including, without
limitation, all electric light bulbs, tubes and starters. In the event any such
utilities are not separately metered, Tenant shall pay to Landlord a portion of
the cost of such utilities determined by Landlord's independent engineer.
Landlord shall not be liable for any interruption or failure of any utility
servicing the Property, unless such interruption or failure is directly due to
Landlord's negligence.
8. LANDLORD'S REPAIRS AND MAINTENANCE. Landlord shall, at Landlord's sole
cost and expense, maintain, repair and replace, if necessary, the structural
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portions of the roof, the foundation and the exterior walls, as well as the
maintenance and repair of all subfloors (but not floor coverings) and the
utility supply lines leading to the outside of the demising walls of the
Premises. Notwithstanding the aforesaid, in the event any such maintenance or
repairs are caused by the negligence of Tenant or Tenant's employees, agents or
invitees, Tenant shall reimburse to Landlord, as Additional Rent, the reasonable
cost of all such maintenance and repairs within thirty (30) days after receipt
of Landlord's invoice for same. For purposes of this Paragraph, the term
"exterior walls" shall not include windows, plate glass, doors, office entries,
dock doors, or any exterior improvement made by Tenant. Landlord reserves the
right to designate all sources of services in connection with Landlord's
obligations under this Lease. Tenant hereby grants to Landlord the right to
enter upon the Premises, at reasonable times, and upon reasonable notice, except
in emergencies reasonably determined by Landlord, for the purpose of making
inspections and/or repairs. Tenant shall have the duty to periodically inspect
the Premises and notify Landlord should Tenant observe a need for repairs or
maintenance of any obligation of Landlord under this Lease. Upon receipt of
Tenant's notice, Landlord shall have a reasonable period of time to make such
repairs or maintenance; however, it is expressly understood that Landlord's
liability with respect to such maintenance and repair shall be limited to the
cost of such repairs or maintenance. If Landlord enters in an emergency and no
employee of Tenant is available, Landlord prior to leaving the Premises shall
secure same free from entry by others. Landlord shall notify Tenant as soon as
possible in each such emergency situation.
9. TENANT'S REPAIRS AND MAINTENANCE. Tenant, at Tenant's sole cost and
expense, shall have the affirmative duty to periodically inspect, maintain,
service, repair and replace, if necessary, all non-structural portions of the
Premises which are not expressly the responsibility of Landlord including, but
not limited to, any windows, plate glass, doors, office entries, interior walls
and finish work, floor coverings, heating and air conditioning systems, hot
water heaters, dock bumpers, truck doors, branch plumbing, all of which are
located within and exclusively serve the Premises per Exhibit A and termite and
pest extermination. In the event the Property has available to its rail spur
access, Tenant agrees to sign a Joint Maintenance Agreement with the railroad
company servicing the Property for the use of all tenants within the Property.
Notwithstanding the aforesaid, Tenant shall not be liable for any repairs or
maintenance which are directly caused by the negligence of Landlord or
Landlord's employees, agents or invitees. Upon the expiration or earlier
termination of this Lease, Tenant shall return the Premises to Landlord in
substantially the same condition as when received, reasonable wear and tear
excepted. Tenant shall perform all repairs and maintenance in a good and
workmanlike manner, and in compliance with all governmental and
quasi-governmental laws, ordinances and regulations, as well as all requirements
of Landlord's insurance carrier. In the event such repair or maintenance is not
of the type which Landlord has elected to perform pursuant to Paragraph 5(c) of
this Lease, and in the event Tenant fails to properly perform such repairs or
maintenance within a reasonable period of time but not less than 15 days after
Landlord's written notice, Landlord shall have the option to perform such
repairs on behalf of Tenant, in which event Tenant shall reimburse to Landlord,
as Additional Rent, the reasonable costs thereof within thirty (30) days after
receipt of Landlord's invoice for same.
10. ALTERATIONS. Tenant shall not make any structural alterations, additions
or improvements to the Premises or Property without the prior written consent of
Landlord. Notwithstanding the aforesaid, Tenant, at Tenant's sole cost and
expense, may construct interior non-structural alterations, additions or
improvements to the Premises, or install such trade fixtures as Tenant may deem
necessary, so long as such improvements and trade fixtures do not penetrate or
disturb the structural integrity and support provided by the roof, exterior
walls or subfloors. All such improvements and trade fixtures shall be
constructed and/or installed in a good and workmanlike manner, and in compliance
with all applicable governmental and quasi-governmental laws, ordinances and
regulations, as well as all requirements of Landlord's insurance carrier.
Tenant may remove all alterations, additions, improvements and trade fixtures
installed by Tenant from the Premises upon the expiration or earlier termination
of this Lease; and, upon such removal, Tenant shall repair the Premises to a
condition substantially similar to that condition when received by Tenant,
except for normal wear and tear and damage due to casualty. Notwithstanding the
aforesaid, all such alterations, additions, or improvements left by Tenant after
lease termination shall remain within the Premises upon the termination of this
Lease, and shall be delivered up to Landlord along with the Premises. Landlord
shall have no right to any of Tenant's trade fixtures; and, except as otherwise
set forth in this Lease, Tenant may remove such trade fixtures upon the
termination of this Lease, provided Tenant repairs any damage caused by such
removal.
Upon termination of this lease, Tenant shall restore the premises to its
prior condition for any alterations, additions or improvements made without
Landlord's approval.
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11. DESTRUCTION. If the Premises or the Property are damaged in whole or in
part by casualty so as to render the Premises untenantable, and if the damages
cannot be repaired within 180 days from the date of said casualty, this Lease
shall terminate as of the date of such casualty. If the damages can be repaired
within said 180 days, and Landlord does not elect within sixty (60) days after
the date of such casualty to repair same, then either party may terminate this
Lease by written notice served upon the other. In the event of any such
termination, the parties shall have any no further obligations to the other,
except for those obligations accrued through the effective date of such
termination; and upon such termination, Tenant shall immediately surrender
possession of the Premises to Landlord. Should Landlord elect to make such
repairs, this Lease shall remain in full force and effect, and Landlord shall
proceed with all due diligence to repair and restore the Premises to a condition
substantially similar to that condition which existed prior to such casualty. In
the event the repair and restoration of the Premises extends beyond one hundred
eighty (180) days after the date of such casualty due to causes beyond the
control of Landlord, this Lease shall remain in full force and effect, and
Landlord shall not be liable therefor; but Landlord shall continue to complete
such repairs and restoration with all due diligence. Tenant shall not be
required to pay any rent for any period in which the Premises are untenantable.
In the event only a portion of the Premises are untenantable, Tenant's rent
shall be equitably abated in proportion to that portion of the Premises which
are so unfit, and not used by Tenant as a result thereof. However, there shall
be no rent abatement if said casualty is due to the fault or negligence of
Tenant or Tenant's agents, employees or invitees.
12. INSPECTION. Landlord shall have the right to enter and inspect the
Premises at any reasonable time, and upon reasonable notice, for the purpose of
ascertaining the condition of the Premises, or in order to make such repairs as
may be required or permitted to be made by Landlord under the terms of this
Lease. In addition thereto, during the last nine (9) months of the lease term,
Landlord shall have the right to enter the Premises at any reasonable time, and
upon reasonable notice, for the purpose of showing the Premises to prospective
third-party tenants; unless Tenant has exercised its option to renew and, during
said nine (9) months, Tenant shall have the right to erect on the Property
and/or Premises a suitable sign indicating that the Premises are available for
lease unless Tenant has exercised its option to renew.
Tenant shall give Landlord thirty (30) days written notice prior to vacating
the Premises, for the purpose of arranging a joint inspection of the Premises
with respect to any obligation to be performed by Tenant pursuant to this Lease
including, without limitation, the repair of the Premises. In the event Tenant
fails to notify Landlord of such inspection, Landlord's inspection after Tenant
vacates shall be deemed correct for purposes of reasonably determining Tenant's
responsibility for repairs.
13. SIGNS. Tenant shall not install any signs upon the Premises or Property
without Landlord's prior written consent. Any such approval by Landlord for any
signs shall be subject to any applicable governmental or quasi-governmental
laws, ordinances, regulations and other requirements. Upon the expiration or
earlier termination of this Lease, Tenant shall remove all such signs and repair
the Premises and/or Property to the condition which existed prior to the
installation of such signs including, without limitation, any discoloration
caused by such installation and/or removal. Landlord hereby approves Tenant's
signs at entrance doors identifying the Tenant. Said signs shall be tasteful.
14. SUBLETTING AND ASSIGNING. Tenant shall not assign or sublet the Premises,
nor allow the same to be used or occupied by any other person or for any other
use than herein specified, without the prior written consent of Landlord. In the
event Landlord grants its consent to any sublease or assignment, same shall not
constitute a release of Tenant from the full performance of Tenant's obligations
under this Lease. Further, in the event of any such sublease or assignment,
Tenant shall reimburse Landlord for all reasonable attorneys' fees in connection
with reviewing and/or drafting any appropriate documents to effect such transfer
of Tenant's interests. See Rider 2.
15. DEFAULT AND HOLDING OVER. If Tenant shall default in the payment of any
rent, breach any covenant or agreement of this Lease, (hereinafter singularly or
collectively referred to as "Default"), and if such Default shall continue for
fifteen (15) days after notice thereof from Landlord, or if Tenant makes an
assignment for the benefit of creditors, files or has filed against it a
petition in bankruptcy, or is adjudicated insolvent, Landlord may terminate this
Lease, with or without
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process of law, and expel and remove Tenant, or any other person in occupancy,
together with their property, using such force as may be necessary in the
judgment of Landlord, and repossess the Premises; and thereupon all rent up
through the expiration date of this Lease shall become payable when due.
Landlord may relet the Premises after taking possession thereof upon terms
reasonably satisfactory to Landlord. However, in the event the rent payable
under any reletting is less than the rent payable under this Lease, Tenant shall
be liable for the difference thereof.
If this Lease is terminated, Tenant shall, without demand therefor,
immediately surrender the Premises peaceably to Landlord in as good condition as
when delivered to Tenant, reasonable wear and tear excepted. If Tenant shall
remain in possession of the Premises after the termination of this Lease, and
hold over for any reason, Tenant shall be a Tenant from month to month (either
party may cancel on thirty (30) days written notice); and Tenant shall pay to
Landlord monthly rent per Illinois statute of the Base Rent which was payable
hereunder during the last month prior to Default. Should any of Tenant's
property remain within the Premises after the termination of this Lease, it
shall be deemed abandoned; and Landlord shall have the right to store or dispose
of same. All of the aforesaid rights of Landlord shall be in addition to any
remedies which Landlord may have at law or in equity.
No payment of money by Tenant after the termination of this Lease, after
service of any notice, after commencement of any suit, or after final judgment
for possession of the Premises, shall reinstate this Lease or affect any such
notice, demand or suit, or imply consent for any action for which Landlord's
consent is required. Tenant shall pay all reasonable costs and attorney's fees
incurred by Landlord from enforcing the covenants of this Lease. Forbearance by
Landlord of Landlord's remedies under this Lease, or at law, shall not be deemed
to be a waiver of Landlord's right to enforce any such remedies with respect to
that same Default or any subsequent Default.
17. HOLD HARMLESS. Neither Landlord nor Tenant shall not be liable to the
other party for any damages to the Premises or Property, nor for any damages to
the other party on or about the Property, nor for any other damages arising from
the action or negligence of the other party, third-party tenants or other
occupants of the Property; and Tenant or Landlord hereby releases, discharges
and shall indemnify, hold harmless and defend the other party, at Tenant's or
Landlord's sole cost and expense, from all losses, claims, liability, damages,
and expenses (including attorney's fees) and for any damage or injury to person
or
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property of the parties hereto or of third persons, caused by Tenant's use or
occupancy of the Premises, the other party's breach of any covenant under this
Lease, or use of any equipment, facilities or property in, on, or adjacent to
the Property.
In the event any suit shall be instituted against Landlord by any third
person for which Tenant is hereby indemnifying and holding Landlord harmless,
Tenant shall defend such suit at Tenant's sole cost and expense with counsel
reasonably satisfactory to Landlord or, in Landlord's discretion, Landlord may
elect to defend such suit, in which event Tenant shall pay Landlord, as
Additional Rent, Landlord's cost of such defense.
18. CONDEMNATION. If the whole or any part of the Property or the Premises
shall be taken in condemnation, either Landlord or Tenant may elect to terminate
this Lease by giving written notice of same to the other party, effective as of
the taking date. However, Tenant may only elect to terminate this Lease if the
remaining portion of the Premises and/or Property may no longer be adequately
used for the purpose set forth in Paragraph 2 of this Lease. In the event only a
portion of the Premises and/or Property is taken in condemnation, and Tenant
elects to terminate this Lease, such taking shall be deemed a "casualty"
pursuant to Paragraph 11 of this Lease; and Landlord shall be afforded all of
the rights set forth in said Paragraph 11 to restore the Premises. If neither
Landlord nor Tenant makes such election, then this Lease shall terminate on the
taking date only as to that portion of the Premises and/or Property so taken;
and the rent and other charges payable by Tenant shall be reduced
proportionally. Landlord shall be entitled to the entire condemnation award for
all realty and improvements. Tenant shall have the right to file for a separate
award, but shall have no claim to any portion of Landlord's award.
Notwithstanding the aforesaid, if any condemnation takes a portion of the
parking area and same does not result in a reduction of the minimum required
parking ratio below that established by local Code or Ordinance, this Lease
shall continue in full force and effect without modification.
19. INSURANCE. Landlord shall maintain in full force and effect policies of
insurance covering the Property in an amount not less than eighty (80%) percent
of the "replacement cost" thereof as such term is defined in the Replacement
Cost Endorsement attached to such policy, insuring against physical loss or
damage generally included in the classification of "all risk" coverage. Except
as set forth below, such insurance shall be for the sole benefit of Landlord,
and under Landlord's sole control. Landlord's general liability policy shall
name Tenant as an additional insured though Landlord's insurer shall not insure
Tenant beyond the limit of liability Landlord requires of Tenant. Tenant shall
be provided a certificate evidencing said additional insured status.
Tenant, at Tenant's sole cost and expense, shall maintain in full force and
effect policies providing "all risk" insurance coverage protecting against
physical damage (including, but not limited to, fire, lightning, extended
coverage perils, vandalism, sprinkler leakage, water damage, collapse, and other
special extended perils) to the extent of 100% of the replacement cost of
Tenant's property and improvements during the term of this Lease, as well as
broad form comprehensive general liability insurance insuring Tenant against any
liability (including bodily injury, property damage and contractural [sp]
liability) arising out of Tenant's use or occupancy of the Premises, with a
combined single limit of not less than $1,000,000, or for a greater amount as
may be reasonably required from time to time, and in policy form and content
satisfactory to Landlord. Landlord shall be named as an additional insured, and
all such policies shall be primary and non-contributing with or in excess of any
insurance carried by Landlord. All policies shall be with companies licensed to
do business in the state where the Property is located, and rated B+:X in the
most current issue of Best's Key Rating Guide (1986 guidelines). Tenant shall
furnish Landlord with certificates of all such policies at least thirty (30)
days prior to occupancy, or otherwise upon Landlord's request; and, further,
such insurance shall provide that not less than thirty (30) days written notice
be given to Landlord before any such policies be cancelled or substantially
changed to reduce the insurance provided thereby. Tenant may self-insure for
fire and personal property.
Landlord and Tenant hereby mutually waive any and all right of recovery
against one another, directly or by way of subrogration or otherwise, due to the
negligence of either party, their agents or employees, for real or personal
property damage occurring to the Premises, the Property, or any personal
property located therein, from perils agreed to be insured against in the
aforesaid policies (whether or not such insurance is actually carried). Each
party shall have the
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affirmative duty to inform their respective insurance carriers of this Paragraph
and the mutual waiver of subrogation contained herein.
20. MORTGAGES. This Lease shall be subordinated to any first mortgages, deeds
of trust or underlying leases (hereinafter referred to as "Mortgages"), now of
record or, at the option of Landlord, hereafter placed of record; however, at
Landlord's election, Tenant's interests in this Lease shall be superior to any
Mortgage, whether or not this Lease was executed before or after said Mortgage.
In the event Landlord exercises its option to further subordinate this Lease,
Tenant shall at the option of the holder of said Mortgage attorn to said holder.
Any subordination shall be self- executing, but at the written request of
Landlord, Tenant shall execute such further assurances as Landlord deems
desirable to confirm such subordination. See Riders 3 and 4.
21. LIENS. Tenant shall not mortgage or otherwise encumber its interests
herein. Any consent by Landlord to allow any construction by Tenant within the
Premises shall not be construed as a waiver of any prohibition in this
Paragraph. Should Tenant cause any mortgage, lien or other encumbrance
(hereinafter referred to as "Encumbrance") to be filed, against the Premises or
the Property, Tenant shall dismiss, bond against or bond over same within
fifteen (15) days after the filing of any such Encumbrance. If Tenant fails to
remove said Encumbrance within said fifteen (15) days, Landlord shall have the
absolute right to cause same to be cured by whatever measures Landlord shall
deem convenient including, without limitation, payment of such Encumbrance; in
which event Tenant shall reimburse Landlord for same as Additional Rent; and
Landlord shall be afforded all remedies at law or in equity available to either
Landlord or Tenant. Landlord shall provide Tenant written notice setting forth
the amount due.
22. GOVERNMENT REGULATIONS. Tenant, at Tenant's sole cost and expense, shall
conform with all laws and requirements of any Municipal, State or Federal
authorities now in force, or which may hereafter be in force, pertaining to the
use of the Premises and excluding the making of structural changes. The judgment
of any court, or an admission of Tenant in any action or proceeding at law,
whether Landlord be a party thereto or not, shall be conclusive of the fact as
between Landlord and Tenant.
23. NOTICES. All rents which are required to be paid by Tenant shall be
delivered by the United States mail, postage prepaid, addressed to Landlord at
its address below; and all notices that are required to be given hereunder shall
be in writing and delivered by United States registered or certified mail,
postage prepaid, addressed to the parties hereto at their respective addresses
below:
LANDLORD: TENANT:
Xxxxxx Management Company Household Finance Corporation
0000 Xxxxxxx Xxxx., Xxxxx 0000 0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxxxx Xxxxxxx, XX 00000
ATTN: Property Management Department -
Leasing
Either party may designate a different address by giving notice to the other
party of same at the address set forth above. All notices shall be deemed given
when actually deposited in a United States general or branch post office
addressed as hereinbefore provided.
24. PARKING. Tenant shall be liable for all vehicles owned, rented or used by
Tenant or Tenant's agents and invitees in the operation of Tenant's business.
Tenant will not store any equipment or inventory in any trucks, nor shall Tenant
store any trucks, on the parking lot of the Property. Tenant shall abide by all
parking restrictions now or hereafter placed upon the parking lot; and Tenant
shall only park its vehicles in those areas designated for Tenant's use. Tenant
shall not park any trucks or other vehicles in any driveways, streets or other
areas not specifically designated for parking; and, upon request by Landlord,
Tenant shall move its trucks and vehicles if in Landlord's reasonable opinion
said vehicles are in violation of any of the above restrictions. Unless
otherwise set forth in this Lease, parking shall be provided on an unallocated
basis. See Additional Provisions, Paragraph 32. Landlord shall provide Tenant
written notice of Landlord's parking restrictions and any subsequent changes
thereto.
25. OWNERSHIP. Notwithstanding anything in this Lease to the contrary, the
term "Landlord" as used in this Lease, shall be defined as the current owner(s)
of the Property. In the event of any transfer of the Property, the party
conveying same shall thereafter be automatically relieved of all personal
liability with respect to Landlord's performance of any obligations thereafter
occurring or covenants thereafter to be performed, it being intended hereby that
all obligations
8
under this Lease shall be binding upon the owner(s) of the Property only during
that owner(s)' respective period(s) of ownership of said Property.
27. ESTOPPEL CERTIFICATES. Tenant agrees upon written request by Landlord, to
execute and return to Landlord, within fifteen (15) days, a statement in writing
certifying that this Lease is unmodified and in full force and effect, that
Tenant has no defenses, offsets or counterclaims against its obligations to pay
the rent and to perform its other covenants under this Lease, that there are no
uncured Defaults of Landlord or Tenant, and setting forth the dates to which the
rent and other charges have been paid, as well as any other information
reasonably requested by Landlord. In the event Tenant fails to return such
statement within said fifteen (15) days, setting forth the above or,
alternatively, setting forth those modifications, defenses and/or uncured
Defaults, Landlord may execute such statement as Tenant's attorney-in-fact. Any
such statement delivered pursuant to this Paragraph may be relied upon by any
prospective purchaser, mortgagee, or assignee of any mortgagee of the Premises.
See Riders 3 and 4.
29. BROKERAGE. The parties warrant that they have dealt with no other broker
or person in connection with this transaction other than Corporate Realty
Advisors, Inc. and Xxxxxx X. Xxxxxx & Co. This provision shall survive the
termination of this Lease.
30. MISCELLANEOUS.
(a) All of the covenants of Tenant hereunder shall be deemed and construed to
be "conditions" as well as "covenants" as though both words were used in each
separate instance.
(b) Should any provision of this Lease be unenforceable, it shall be
severable from this Lease; and this Lease shall remain in full force and effect
and be binding upon the parties hereto as though said provision had not been
included.
(c) This Lease shall not be recorded by Tenant without the prior written
consent of Landlord.
(d) In addition to the terms and conditions herein contained, Landlord
reserves the right to establish and enforce reasonable rules and regulations for
all tenants of the Property. Landlord shall provide Tenant written notice
setting forth Landlord's reasonable rules and regulations.
(e) The paragraph headings appearing in this Lease are inserted only as a
matter of convenience, and in no way define or limit the scope of any paragraph.
(f) This offer to lease shall be valid for ten (10) business days from the
date atop page 1, and if not executed and delivered to both parties within said
ten business days, this offer to lease shall be null and void.
9
(g) This Lease demises real estate located in the State of Illinois, and
shall be governed by the laws of such State.
(h) All of the terms of this Lease shall extend to and be binding upon the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed
this Lease the day and year first above written.
WITNESS/ATTEST: LANDLORD:
XXXXXX MANAGEMENT COMPANY,
Agent for the Owner
By: /s/ Xxxxxxx X. Xxxxx
President
WITNESS/ATTEST: TENANT:
HOUSEHOLD FINANCE CORPORATION
III, a Delaware corporation
By: /s/ X.X. Xxxxx
X. X. Xxxxx
Title: Vice President
10
ADDITIONAL PROVISIONS TO LEASE OF EVEN DATE
HEREWITH BY AND BETWEEN XXXXXX MANAGEMENT
COMPANY, AS LANDLORD, AND HOUSEHOLD FINANCE
CORPORATION III, A DELAWARE CORPORATION
30. Notwithstanding anything to the contrary in Paragraph 3 of this Lease,
Tenant shall have the right and option to take early possession of the Premises.
Upon taking occupancy, Tenant shall place all utilities servicing such space in
Tenant's name, and Tenant shall be bound by all of the terms and conditions of
this Lease, except for the payment of Base Rent; however, nothing herein shall
be construed to xxxxx or diminish Tenant's obligation with respect to any
Additional Rent payable under this Lease during such period of early occupancy.
Any such early occupancy by Tenant shall not affect the stated expiration date
of this Lease, nor the periods for any abated Base Rent, set forth in Paragraph
31, below.
31. Notwithstanding anything to the contrary in Paragraph 4 of this Lease,
Landlord agrees to waive the Base Rent that is due and payable for the first six
(6) months of the lease term, that is from July 1, 1989 through and including
December 31, 1989; however, nothing herein shall be construed to xxxxx or
diminish Tenant's obligation with respect to any Additional Rent payable under
this Lease during the period of any abated Base Rent.
32. Notwithstanding anything to the contrary in Paragraph 24 of this Lease,
Tenant acknowledges that Landlord has herebefore leased on an exclusive basis
that certain parking area adjacent to the Property, more fully set forth on
Exhibit "A". Tenant shall have an easement of access over all portions of the
Property cross-hatched on said Exhibit "A".
Landlord states that the parking lots on the Property are of a quality and
construction similar to other parking lots in the general Franklin Park,
Illinois area, and that such parking lots are capable of handling normal truck
traffic, subject to periodic maintenance repair. The parties hereby acknowledge
that Tenant uses in its business a considerable number of tractor trailers
trucks, and that said trucks cause undue wear and tear on said parking areas.
Notwithstanding anything contained in this Lease to the contrary, Tenant agrees
to keep and maintain those parking areas designated for the parking of trucks in
good condition and repair; and, upon termination of this Lease, Tenant shall
return said parking areas to Landlord in the same condition as that condition
which existed at the time of the commencement of this Lease. Periodically
throughout the term of this Lease and upon the termination of this Lease,
Landlord shall inspect said parking area for needed repairs. During the term of
this Lease, Landlord shall have the right to make repairs to said parking areas
whenever, in Landlord's opinion, Landlord believes such repairs are warranted.
In the event of any such repairs, Tenant shall reimburse Landlord within thirty
(30) after receipt of Landlord's invoice. Failure of Tenant to reimburse
Landlord within said thirty (30) days shall constitute a breach of this Lease.
Upon the termination of this Lease, Landlord shall inspect said parking areas
and, in the event Landlord believes that said parking areas are in need of
repair, Landlord shall make such repairs and Tenant shall reimburse Landlord
within thirty (30) days after receipt of Landlord's invoice.
33. Tenant shall have the right and option to extend the term of this Lease
for one renewal period of five (5) years, upon the following additional terms
and conditions:
a. Tenant shall not have received a Notice of Default from Landlord which has
not yet been cured by Tenant or waived by Landlord at the time Tenant exercises
its option or at the time the primary term expires.
b. Tenant shall give to Landlord written notice exercising Tenant's option to
extend the term of this Lease not less than nine (9) months days prior to the
expiration of the primary term.
c. During the first three (3) years of such option period the Base Rent shall
be equal to Two Hundred Ninety-eight Thousand, Five Hundred, Twenty-four and
00/100 ($298,524.00) Dollars, per year, payable in equal monthly installments of
Twenty-four Thousand, Eight Hundred, Seventy-seven and 00/100 ($24,877.00)
Dollars each. During the remaining two (2) years, the Base Rent shall be at the
rate prevailing in the neighborhood for comparable space. See Rider 5.
d. All other terms and conditions of this Lease shall be binding upon
Landlord and Tenant and in full force and effect, as if such terms and
conditions were again fully recited herein. In the event Tenant does not
exercise its option
11
to extend this Lease as herein provided, Landlord shall have the right, during
the nine (9) months prior to the end of the primary term, to show the Premises
during normal business hours to other prospective tenants.
IN WITNESS WHEREOF, the parties hereto have executed these Additional
Provisions to Lease the day and year first above-written.
LANDLORD:
XXXXXX MANAGEMENT COMPANY,
Agent for the Owner
By: /s/ Xxxxxxx X. Xxxxx
President
TENANT:
HOUSEHOLD FINANCE CORPORATION III,
a Delaware corporation
By: /s/ X.X. Xxxxx
X. X. Xxxxx
Title: Vice President
12
RIDER
Lease
Dated May, 26, 1989
Between The Owner of the lease premises through its Agent, Xxxxxx Management
Company
And HOUSEHOLD FINANCE CORPORATION III
1. Landlord and Tenant hereby agree wherever Landlord's consent or approval is
required, such consent or approval will not be unreasonably withheld or
delayed.
2. Notwithstanding anything to the contrary contained in the Lease, Tenant may
sublet all or a portion of the demised premises or assign this lease to
Household Finance Corporation, a Delaware corporation, or to any other
corporation which is a subsidiary or affiliate of, or more than 51% of
whose shares are owned by Household Finance Corporation.
3. Notwithstanding anything to the contrary contained in the Lease, as long as
Tenant pays the rent and is not in default of any of the terms, conditions
or covenants of the Lease, its possession of the premises shall not be
disturbed by Landlord, any Mortgagee or anyone claiming by, through or
under Landlord.
4. Notwithstanding anything to the contrary contained in the Lease, Tenant
shall execute all subordination instruments, non-disturbance agreements,
estoppel certificates or offset statements within 15 days after receipt of
Landlord's written request.
The third and each subsequent such request for Tenant to execute a
subordination, nondisturbance or attornment agreement, estoppel certificate
or similar document shall be accompanied by a $150 processing fee.
5. Notwithstanding anything to the contrary contained in the Lease, if the
parties are unable to agree on the rent for the last two years of the
option period on or before the commencement of the fourth year, the issue
as to rent (based as aforesaid on the prevailing rate) shall be settled in
accordance with the rules of the American Arbitration Association and
judgment upon the award may be entered in any court having jurisdiction
thereof. While such arbitration is pending, Tenant shall continue paying
rent at the last rental rate payable during the third year of the option
period. Once a decision is reached in arbitration, the parties shall
execute and deliver to each other an acknowledgment reflecting the new rent
and Tenant (Landlord) shall promptly pay to Landlord (Tenant) a sum equal
to the increase (decrease) in the monthly rent multiplied by the number of
months in the last two years of the option period during which Tenant
continued paying rent at the last rental rate payable during the third year
of the option period.
Approved:
Landlord: Tenant:
XXXXXX MANAGEMENT COMPANY, HOUSEHOLD FINANCE
Agent for the Owner CORPORATION III
/s/ Xxxxxxx X. Xxxxx By /s/ X. X. Xxxxx
X. X. Xxxxx, Vice President
EXHIBIT A
[MAP OF LEASED PREMISES]
EXHIBIT B - LEGAL DESCRIPTION
That part of the South East Quarter of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00,
Xxxx of the Third Principal Meridian, described as follows:
Commencing at a point in the East line of said South East Quarter which is
1849.19 feet North of the South East corner thereof; thence South 89 Degrees 59
Minutes 13 Seconds West, in a line drawn at right angles to said East line, for
a distance of 2299.41 feet to a point, said point being the place of beginning
of the following described tract of land, to-wit: Thence North 00 Degrees 00
Minutes 47 Seconds West on a line 2299.41 feet West of and parallel with the
East line of said South East Quarter for a distance of 137.41 feet to an
intersection with the South line of the right-of-way of a tract of the Chicago,
Milwaukee, St. Xxxx and Pacific Railroad; thence South 73 Degrees 56 Minutes 40
Seconds East for a distance of 80.13 feet, to its intersection with a curved
line, convex to the North East and having a radius of 394.28 feet; thence
Southeasterly along said curved line for a distance of 518.97 feet to a point of
tangency; thence South 00 Degrees 00 Minutes 47 Seconds East on a line tangent
to the last described curved line and being 1927.41 feet West of and parallel
with the East line of said South East Quarter for a distance of 184.99 feet;
thence South 9 Degrees 26 Minutes 57 Seconds West 121.66 feet; thence South 00
Degrees 00 Minutes 47 Seconds East 30.0 feet; thence South 89 Degrees 59 Minutes
13 Seconds West 322.0 feet; thence North 00 Degrees 00 Minutes 47 Seconds West
601.26 feet; thence South 89 Degrees 59 Minutes 13 Seconds West 30.0 feet to the
point of beginning; in Xxxx County, Illinois.
FIRST AMENDMENT TO LEASE
------------------------
THIS FIRST AMENDMENT TO LEASE, made and entered into this 6th day of July,
1994, by and between Xxxxxx Xxxxxxxx Company, Agent for the Owner (hereinafter
referred to as "Landlord") and Household Finance Corporation III, a Delaware
corporation (hereinafter referred to as "Tenant");
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Office/Warehouse Lease
Agreement, dated June 2, 1989 (hereinafter referred to as "Lease"), for certain
space located at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxx,
containing approximately 91,855 square feet of space (hereinafter referred to as
the "Premises"); and
WHEREAS, the primary term of said Lease commenced on July 1, 1989 and shall
expire on December 31, 1994; and
WHEREAS, both Landlord and Tenant are desirous of further amending said
Lease;
NOW THEREFORE, for and in consideration of the foregoing, and the mutual
covenants set forth below, it is agreed that said Lease is hereby modified and
amended as follows:
1. The term of said Lease is hereby extended for a period of five (5) years,
that is from January 1, 1995 through and including December 31, 1999, upon the
same terms and conditions as said Lease, except as set forth below.
2. Paragraph 4 of said Lease is hereby amended such that, Tenant shall pay
to Landlord the following Base Rent, on the first day of each calendar month, in
advance, without setoff or deduction, at the office of Landlord:
a. For the period January 1, 1995 through and including December 31, 1997,
Tenant shall pay to Landlord, as Base Rent, an amount equal to Two Hundred
Seventy Thousand, Nine Hundred Seventy-two and 00/100 ($270,972.00) Dollars, per
year, payable in equal monthly installments of Twenty-two Thousand, Five Hundred
Eighty-one and 00/100 ($22,581.00) Dollars each.
b. For the period January 1, 1998 through and including December 31, 1999,
Tenant shall pay to Landlord, as Base Rent, an amount equal to Two Hundred
Eighty Thousand, One Hundred Fifty-seven and 76/100 ($280,157.76) Dollars, per
year, payable in equal monthly installments of Twenty-three Thousand, Three
Hundred Forty-six and 48/100 ($23,346.48) Dollars each.
3. Tenant shall have the right to perform certain interior finish within the
Premises, in accordance, provided all such construction is pursuant to drawings
and specifications prepared by Tenant and approved by Landlord prior to the
commencement of any such construction. Any plans prepared by Tenant shall
incorporate all requirements of the Americans with Disabilities Act of 1990, and
Tenant shall be solely responsible for compliance with such Act, notwithstanding
Landlord's approval of any said plans or Tenant's construction. Any changes,
alterations, or additions made to any approved plans shall be in writing and
shall also be approved by Landlord prior to construction. All construction
undertaken by Tenant shall be in compliance with state, federal, and local
codes, and shall be built in a good and workmanlike manner, and shall be subject
to Landlord's inspection from time to time. Tenant shall indemnify and hold
Landlord harmless from any and all claims and damages (including reasonable
attorneys' fees), to persons or property of Landlord or third persons, caused by
Tenant's construction. Tenant shall also indemnify Landlord against any
mechanic's liens or other liens arising out of any construction performed by or
on behalf of Tenant; and Tenant, shall within thirty (30) days after any
construction furnish to Landlord lien waivers for all work performed and
materials furnished. Upon the termination of this Lease, all such improvements
shall be delivered to Landlord with the Premises.
4. On January 1, 1995, Landlord shall pay to Tenant an amount equal to
Seventy-five Thousand and 00/100 ($75,000.00) Dollars, which Tenant may apply
toward the costs of construction of its interior finish.
5. Tenant shall have the right and option to extend the term of said Lease
for one renewal period of five (5) years, upon the following additional terms
and conditions:
a. Tenant shall not have received a notice of Default from Landlord which has
not been cured by Tenant or waived by Landlord at the time Tenant exercises its
option or at the time the then current term expires.
b. Tenant shall give to Landlord written notice exercising Tenant's option to
extend the term of this Lease not less than nine (9) months prior to the
expiration of the then current term.
c. During such option period the Base Rent shall be at an agreed upon rate or
at market rate, determined by Landlord in Landlord's sole judgment, reasonably
exercised, based upon the rate for comparable space in the Property as of the
commencement date of the intended renewal term.
d. All other terms and conditions of this Lease shall be binding upon
Landlord and Tenant and in full force and effect, as if such terms and
conditions were again fully recited herein.
e. In the event Tenant does not exercise its option to extend said Lease as
herein provided, Landlord shall have the right, during the nine (9) months prior
to the end of the then current term, to show the Premises during normal business
hours to other prospective tenants.
6. Paragraph 33 of said Lease is hereby deleted in its entirety.
7. Landlord and Tenant each warrant that they have dealt with no broker or
other person claiming a commission for or in connection with this First
Amendment to Lease, other than Xxxxxx Xxxxxxxx Company, Xxxxx & Company
Industrial Services, and CB Commercial Real Estate Group, Inc.; and each party
shall hold the other party harmless for any breach of such warranty. Landlord
shall be liable for any commissions payable to the aforesaid brokers.
8. Tenant acknowledges that Landlord has to date complied with all
alterations, additions, replacements and services under said Lease, and that the
Premises are not in need of repair or maintenance; and Tenant hereby ratifies
acceptance of the Premises in its present "AS IS" condition.
Except as hereby amended, all other terms and conditions of said Lease shall
remain unchanged, and shall be in full force and effect as if again recited
herein.
WHEREFORE, the parties have executed this First Amendment to Lease the day
and year first above written.
LANDLORD: TENANT:
XXXXXX XXXXXXXX COMPANY, HOUSEHOLD FINANCE CORPORATION III,
Agent for the Owner a Delaware corporation
By: /s Xxxxxxxx X. Xxxxxx By: /s/ X. X. Xxxxx
Print Name: Xxxxxxxx X. Xxxxxx Print Name: X. X. Xxxxx
Title: Senior Vice President Title: Vice President
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE, made and entered into this 30th day of March,
1999, by and between Xxxxxx, Inc., Agent for the Owner (said Owner being
hereinafter referred to as "Landlord") and Household Finance Corporation III, a
Delaware corporation (hereinafter referred to as "Tenant");
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Office/Warehouse Lease
Agreement, dated June 2, 1989 (hereinafter referred to as "Lease"), for certain
space known and numbered as 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxx
Xxxxxx, Xxxxxxxx 00000 containing approximately 91,855 square feet of space
(hereinafter referred to as the "Premises"); and
WHEREAS, the primary term of said Lease commenced on July 1, 1989 and expired
on December 31, 1994; and
WHEREAS, Landlord and Tenant entered into that certain First Amendment to
Lease, dated July 6, 1994, wherein the term of said Lease was extended for a
period of five (5) years, that is from January 1, 1995 through and including
December 31, 1999; and
WHEREAS, both Landlord and Tenant are desirous of further amending said
Lease;
NOW THEREFORE, for and in consideration of the foregoing, and the mutual
covenants set forth below, it is agreed that said Lease is hereby modified and
amended as follows:
1. Term. The term of said Lease is hereby extended for a period of five (5)
years (hereinafter referred to as the "Extended Term"), that is from January 1,
2000 through and including December 31, 2004, upon the same terms and conditions
as said Lease, except as set forth below.
2. Construction. Tenant shall have the right to perform certain interior
finish work within the Premises to configure the interior of Tenant's space;
however, all such work must be performed in accordance with a work letter to be
prepared by Tenant and approved by Landlord prior to the commencement of such
work. It is expressly understood that any plans prepared by or on behalf of
Tenant shall incorporate all requirements of the Americans with Disabilities Act
of 1990, and Tenant shall be solely responsible for compliance with such Act,
and hold Landlord harmless therefrom, notwithstanding Landlord's approval of any
such plans or any construction. Tenant shall select and contract directly with
the general contractor performing such interior finish work; however, such
contractor shall be subject to Landlord's prior approval, which approval shall
not be unreasonably withheld. Any changes, alterations, or additions made to the
original approved work letter shall be in writing and also approved by Landlord
prior to construction.
Landlord shall contribute an allowance toward the actual cost of Tenant's
interior finish work in an amount not to exceed Two Hundred Thousand and 00/100
Dollars ($200,000.00), which amount shall be paid to Tenant upon Landlord's
approval of said work letter, even if such work letter is delivered to Tenant
prior to the commencement of the Extended Term.
All construction undertaken by Tenant shall be in compliance with state,
federal, and local codes, and shall be built in a good and workmanlike manner,
and shall be subject to Landlord's inspection from time to time. Tenant shall
indemnify and hold Landlord harmless from any and all claims and damages
(including reasonable attorneys' fees), to persons or property of Landlord or
third persons, caused by Tenant's construction. Tenant shall also indemnify
Landlord against any mechanic's liens or other liens arising out of any
construction performed by or on behalf of Tenant. In the event a lien is filed
against the Property for any reason as a result of any construction performed or
alleged to have been performed by or on behalf of Tenant, Tenant shall remove or
bond over such lien within thirty (30) days. Should Tenant fail to remove or
bond over any such lien within said thirty (30) days, Landlord shall have the
absolute right to cause such lien to be removed by whatever measures as
Landlord, in Landlord's sole discretion, shall deem convenient or necessary
including, without limitation, payment to any contractor, subcontractor,
laborer, supplier or materialman (and any relating attorney's fees) to
extinguish such lien; and, in such event, Tenant shall pay to Landlord, as
Additional Rent, all of Landlord's reasonable costs and expenses including,
without limitation, any payment made by Landlord to any contractor,
subcontractor, laborer, supplier or materialman, the payment of any attorneys'
fees of any lien holder, as well as the payment of Landlord's attorneys' fees to
extinguish such lien.
Upon the termination of this Lease, all improvements made to the Premises by
Tenant and which are pre-approved in writing by Landlord shall be delivered to
Landlord with the Premises. All improvements made to the Premises by Tenant
which are not pre-approved in writing by Landlord shall, at the option of
Landlord, be either delivered to Landlord with the Premises or removed from the
Premises prior to the lease termination date. In the event Landlord elects for
Tenant to remove any such
improvements, Tenant shall repair and restore the Premises to a condition
substantially similar to the condition of the Premises immediately prior to the
installation of such improvements; and, in the event Tenant fails to so repair
and restore the Premises, Tenant shall be liable for the reasonable costs
thereof, which liability shall survive the termination of this Lease.
3. Option to Terminate. Notwithstanding anything to the contrary in Section
1 of this Amendment, provided said Lease is in full force and effect and Tenant
is not in Default thereunder, Tenant shall have the right and option to
terminate said Lease at any time during the Extended Term, upon the following
terms and conditions. In order to exercise such option, Tenant must give
Landlord written notice at least three (3) months prior to the effective date of
termination (which date of termination is hereinafter referred to as the
"Termination Date"). In the event Tenant elects to terminate said Lease as
aforesaid, Tenant shall pay to Landlord the following amounts on or before said
Termination Date.
a. If the Termination Date is within the first twenty-four (24) months of the
Extended Term (on or before December 31, 2001), Tenant shall pay to Landlord a
termination fee equal to the sum of (a) the Base Rent which, but for the Lease
termination, would have been payable to Tenant for the twenty-four (24) months
next following the Termination Date, plus (b) the product of (i) Tenant's pro
rata share of those charges of the Property for real estate taxes, insurance,
and fire and crime prevention, which are payable by Landlord for the full
calendar year in which Tenant exercises its termination option (and in the event
such amounts are not known at that time, an amount reasonably estimated by
Landlord to reflect Tenant's obligation for such amounts under said Lease for
that same full calendar year); times (ii) two (2); plus (c) an amount equal to
the unamortized portion of Landlord's construction allowance payable to Tenant
pursuant to Section 2 above, it being understood and agreed that the
amortization period for such construction allowance shall be the five (5) year
period constituting the Extended Term, and interest shall be calculated on the
unamortized portion at a rate per annum equal to two percent (2%) over and above
the interest rate announced by CitiBank as its "prime rate" on commercial loans,
as of the date of Landlord's receipt of Tenant's notice of termination.
b. If the Termination Date is after the first twenty-four (24) months of the
Extended Term, Tenant shall pay to Landlord a termination fee equal to the sum
of (a) the Base Rent which, but for the Lease termination, would have been
payable to Tenant for the twelve (12) months next following the Termination
Date, plus (b) Tenant's pro rata share of those charges of the Property for real
estate taxes, insurance, and fire and crime prevention, which are payable by
Landlord for the full calendar year in which Tenant exercises its termination
option (and in the event such amounts are not known at that time, an amount
reasonably estimated by Landlord to reflect Tenant's obligation for such amounts
under said Lease for that same full calendar year); plus (c) an amount equal to
the unamortized portion of Landlord's construction allowance payable to Tenant
pursuant to Section 2 above, it being understood and agreed that the
amortization period for such construction allowance shall be the five (5) year
period constituting the Extended Term, and interest shall be calculated on the
unamortized portion at a rate per annum equal to two percent (2%) over and above
the interest rate announced by CitiBank as its "prime rate" on commercial loans,
as of the date of Landlord's receipt of Tenant's notice of termination.
4. Option to Renew. Except as specifically set forth below, all prior
options of Tenant to renew the term of said Lease have been or are now hereby
made null and void and of no force and effect. Tenant shall have the right and
option to further extend the term of said Lease for one (l) renewal period of
five (5) years, upon the following additional terms and conditions:
a. Tenant shall not have received a notice of Default from Landlord which has
not been cured by Tenant or waived by Landlord at the time Tenant exercises its
option or at the time the Extended Term expires.
b. Tenant shall give to Landlord written notice exercising Tenant's option to
further extend the term of said Lease, not less than twelve (12) months prior to
the expiration of the Extended Term.
c. During the renewal term the Base Rent shall be at market rate, as
determined by Landlord in Landlord's reasonable judgment, based upon the market
rate for comparable space in the market as of the commencement date of such
renewal term. Within fifteen (15) days after receipt of Tenant's notice,
Landlord shall notify Tenant in writing of Landlord's determination of Base
Rent. In the event Tenant disagrees with Landlord's determination, Tenant shall
notify Landlord in writing within five (5) days after receipt of Landlord's
notice, setting forth Tenant's written proposal of Base Rent. If the parties
cannot agree upon the Base Rent for the renewal term, within five (5) days after
Landlord's receipt of Tenant's notice, Tenant's right to extend the term of this
Lease shall be null and void, unless Tenant elects in writing, within fifteen
(15) days after Tenant's receipt of Landlord's original determination of market
rate, to have the Base Rent determined by the arbitration procedure set forth in
Subsection (d), below.
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d. In the event Tenant elects to have Base Rent determined by arbitration,
such election shall also constitute Tenant's non-rescindable election to
exercise its option to extend the lease term. Therefore, after such election,
both parties shall be bound by Tenant's election even though the Base Rent will
thereafter be determined. Within ten (10) days after the date of Tenant's notice
to arbitrate, the parties shall agree upon a single commercial real estate
broker, who has been practicing his or her profession in Franklin Park, Illinois
and the surrounding municipalities for at least ten (10) years immediately
preceding Tenant's notice of election, and who has substantial experience with
the leasing of office/warehouse buildings in Franklin Park, Illinois and the
surrounding municipalities. If the parties agree upon such arbitrator within
said ten (10) days, said arbitrator shall determine the Base Rent for the
renewal term based upon comparable space in the market as of the commencement
date of such renewal term.
In the event Landlord and Tenant cannot agree upon such an arbitrator within
said ten (10) day period, Landlord and Tenant shall each appoint a separate
arbitrator within five (5) days thereafter, said arbitrators both to have the
aforesaid qualifications. Each arbitrator shall then independently determine the
Base Rent within ten (10) days thereafter. In the event the Base Rent as
determined by Landlord's arbitrator is within five percent (5%) of the Base Rent
as determined by Tenant's arbitrator, the two (2) Base Rents shall be combined
and blended for a single composite Rent. However, in the event the Base Rents as
determined by the parties' respective arbitrators are in excess of five percent
(5%) of one another, the two arbitrators shall appoint a third arbitrator within
five (5) days after both arbitrators receive notice of each other's respective
determination. Said third arbitrator shall have similar qualifications as the
other arbitrators, and he/she, alone, shall then determine the Base Rent by
selecting either the Base Rent determined by Landlord's arbitrator or the Base
Rent determined by Tenant's arbitrator.
Each party shall pay the fees and expenses of its arbitrator and one-half
(1/2) of the fees and, not needed expenses of a single or third arbitrator.
However, in the event the arbitrator('s) determination of Base Rent is within
five percent (5%) of that Base Rent originally determined by Landlord, Tenant
shall pay all costs of arbitration. Notwithstanding anything to the contrary in
this Section, in no event shall the monthly Base Rent payable by Tenant for such
renewal term be less than the monthly Base Rent payable by Tenant during the
last year of the Extended Term.
e. All other terms and conditions of said Lease shall be binding upon
Landlord and Tenant and in full force and effect, as if such terms and
conditions were again fully recited herein.
f. In the event Tenant does not exercise its option to extend said Lease as
herein provided, Landlord shall have the right, during the twelve (12) months
prior to the end of the Extended Term, to show the Premises during normal
business hours to other prospective tenants.
5. Rent. Tenant shall pay to Landlord the following Base Rent, during the
Extended Term, on the first day of each calendar month, prior to demand, in
advance, without setoff or deduction, at the office of Landlord, pursuant to the
terms and conditions of said Lease:
MONTHLY ANNUAL
PERIOD BASE RENT BASE RENT
--------------------------------------------------------------------------------------------
January 1, 2000 - December 31, 2000 $23,346.48 $280,157.76
January 1, 2001 - December 31, 2001 $24,035.39 $288,424.68
January 1, 2002 - December 31, 2002 $24,724.30 $296,691.60
January 1, 2003 - December 31, 2003 $25,489.76 $305,877.12
January 1, 2004 - December 31, 2004 $26,255.22 $315,062.64
6. Insurance. The second and third paragraphs of Section 19 of said Lease
(INSURANCE) are hereby deleted in their entirety and replaced with the
following:
"Tenant shall maintain in full force and effect throughout the term of
this Lease the following insurance policies: (a) occurrence commercial
liability insurance in amounts of not less than a per occurrence limit of
$1,000,000, with not less than a $2,000,000 general aggregate applying to
the Property, or such other amounts as Landlord may from time to time
reasonably require (but in no event more than a $3,000,000 per occurrence
and general aggregate limit), insuring Tenant, and as additional insureds,
Landlord, Landlord's managing agent, and their respective affiliates,
against all liability or injury to or death of persons, or damage to
property, arising from the use and/or occupancy of the Premises by Tenant
or any of Tenant's agents, employees, contractors or invitees; (b)
contractual liability insurance coverage sufficient
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to cover Tenant's indemnity obligations hereunder; and (d) all-risk
property insurance covering the full value of all property within the
Premises including, without limitation, Tenant's equipment, inventory,
trade fixtures and supplies, all interior finish constructed by either
Landlord or Tenant within the Premises, and all property of any third
persons placed or otherwise located within the Premises, subject to
Tenant's right of self-insurance below. All insurance deductibles under
Tenant's insurance coverages shall be the sole responsibility of Tenant
without right of reimbursement from Landlord for any reason. Tenant's
insurance shall be primary and non-contributing with or in excess of any
insurance coverage carried by Landlord. Tenant acknowledges that Landlord
makes no representations that the aforesaid required insurance coverages
and limits will necessarily be adequate to protect Tenant and, except as
otherwise specifically set forth in this Lease, such coverage and limits
shall not be deemed as a limitation on Tenant's liability under the
indemnities granted to Landlord under this Lease. Prior to taking
occupancy and thirty (30) days prior to the expiration of any insurance
policy, Tenant shall furnish certificates of all insurance required
hereunder to be carried by Tenant, executed by a duly authorized
representative of each insurer, or such other evidence satisfactory to
Landlord of the maintenance of all insurance coverages required hereunder,
and Tenant shall obtain a written obligation on the part of each insurance
company to notify Landlord at least thirty (30) days before cancellation
or a material change of any such insurance. All such insurance policies
shall be in a form, and issued by companies reasonably satisfactory to
Landlord, and with a Best's rating of B+VIII. Failure of Landlord to
demand any insurance certificate or other evidence with these insurance
requirements, or failure of Landlord to identify a deficiency from
evidence that is provided by Tenant to Landlord, shall not be construed as
a waiver of Tenant's obligation to maintain such coverage. For purposes of
this Section, the term, "affiliate", shall mean any person or entity which
directly or indirectly, controls, is controlled by, or is under common
control with the party in question. Tenant shall not do any act which may
make void or voidable any insurance on the Premises or Property. In the
event Tenant's use of the Premises shall result in an increase in
Landlord's insurance premiums, Landlord shall notify Tenant in writing;
and in the event Tenant fails to correct or take such measures as Landlord
reasonably determines to be necessary with respect to Tenant's use of the
Premises to reduce such premiums, Tenant shall pay to Landlord upon
demand, as Additional Rent, an amount equal to such increase in insurance.
Tenant may elect to insure its personal property, equipment, inventory,
trade fixtures, supplies and any property of any third persons at less
than one hundred (100%) percent of such property's replacement cost, or
elect to entirely self-insure such property. However, in the event
Tenant's property is damaged for any reason, including the negligence of
Landlord or Landlord's agents or employees, it shall be deemed that such
property is insured to the extent of one hundred (100%) percent of its
replacement cost. Therefore, as Tenant would otherwise waive all claims
against Landlord for any damage insured by a third party insurer, Tenant
hereby agrees to similarly waive all claims against Landlord for any
damage which is not insured to one hundred (100%) percent of its
replacement cost or which is self-insured by Tenant.
Notwithstanding anything to the contrary in this Lease, it is agreed
that, except for Landlord's right to recover against any liability
policies herein required to be carried by Tenant, Landlord and Tenant
hereby mutually waive any and all right of recovery against one another,
directly, by way of subrogation or otherwise, due to the negligence of
either party, their agents or employees, for real or personal property
damage occurring to the Premises, the Property, or any personal property
located therein, or from loss of income (whether or not such insurance is
actually carried). Each party shall have the affirmative duty to inform
their respective insurance carriers of this Section and the mutual waiver
of subrogation contained herein."
7. Notices. Section 23 of said Lease is hereby deleted in its entirety and
is replaced with the following:
"All Rents which are required to be paid by Tenant shall be delivered
to Landlord by United States mail, postage prepaid, at Landlord's address
below. All notices that are required to be given under said Lease shall be
in writing, and delivered by either (a) United States registered or
certified mail, return receipt requested or (b) an overnight commercial
package courier/delivery service. All notices shall be sent postage
prepaid, addressed to the parties hereto at their respective addresses
below:
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LANDLORD: TENANT:
Xxxxxx, Inc. Household Finance Corporation
000 Xxxxx Xxxxxxxx, Xxxxx 0000 0000 Xxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000 Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Property Management
Department - Leasing
Either party may designate a different address by giving notice to the
other party at the address set forth above, or at any other address as the
parties may subsequently designate. Notices shall be deemed received on
the date of the return receipt. If any such notices are refused, or if the
party to whom any such notice is sent has relocated without leaving a
forwarding address, then the notice shall be deemed received on the date
the notice-receipt is returned stating that the same was refused or is
undeliverable at such address."
8. Brokerage. The parties warrant that they have dealt with no broker or
other person claiming a commission in connection with this transaction other
than Xxxxxx, Inc. (representing the Landlord), Tenant is not represented by a
broker in this transaction. Each party shall hold the other party harmless for
any breach of such warranty. Landlord shall be liable for any commissions
payable to the aforesaid broker.
9. Acknowledgment. Tenant acknowledges that, as of the date of this
Amendment, Landlord is not in default of any term or condition of said Lease and
that the Premises are not in need of repair or maintenance; and Tenant hereby
ratifies acceptance of the Premises in its present "AS IS" condition.
Except as hereby amended, all other terms and conditions of said Lease shall
remain unchanged, and shall be in full force and effect as if again recited
herein.
WHEREFORE, the parties have executed this Second Amendment to Lease the day
and year first above written.
TENANT: LANDLORD:
HOUSEHOLD FINANCE CORPORATION III, XXXXXX, INC.,
a Delaware corporation Agent for the Owner
By: /s/ X. X. Xxxxxxxxx By: /s/ Xxxxxxxx X. Xxxxxx
Print Name: X. X. Xxxxxxxxx Print Name: Xxxxxxxx X. Xxxxxx
Vice President - Leasing
Title: and Licensing Division Title: President
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