EXHIBIT 10.4
STANDARD COMMERCIAL LEASED -----------------------
(EXISTING BUILDING) 0000 X. Xxxx Xxxxxx
IL 1/80 -----------------------
Drafted January 4, 1984
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between LASALLE NATIONAL
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BANK, Not Personally but as Trustee Under Trust Agreement dated March 2, 1977
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and known as Trust No. 52157
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hereinafter referred to as "Landlord" and
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MODERN WHOLESALE DRUG MIDWEST, INC. hereinafter
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referred to as "Tenant":
W I T N E S S E T H:
1. Premises and Term. In consideration of the obligation of Tenant to pay
rent as herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant and Tenant hereby
accepts and leases from Landlord, all that portion (hereinafter referred to as
the "premises") of certain real property, buildings and improvements situated
within the County of Xxxx , State of Illinois ,
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legally described in Exhibit "A", said premises being as outlined on the site
plan contained in Exhibit "B", and including any parking areas and truck loading
areas specifically marked in red on said Exhibit B for the exclusive use of
Tenant, said Exhibits being attached hereto and incorporated herein by
reference, and all rights, privileges, easements, appurtenances and immunities
belonging to or in any way pertaining to the premises.
TO HAVE AND TO HOLD the same for a term commencing on March 1, 1984
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and ending February 28, 1989 sixty (60) months thereafter,
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unless terminated pursuant to any provision hereof. Tenant acknowledges that it
has inspected the premises, knows the condition thereof, and accepts such
premises, and specifically the buildings and improvements comprising the same,
in their present condition, as suitable for the purposes for which the premises
are leased. Taking of possession by Tenant shall be deemed conclusively to
establish that said buildings and other improvements are in good and
satisfactory condition as of when possession was taken. Tenant further
acknowledges that no representations as to the repair of the premises, nor
promises to alter, remodel of improve the premises have been made by Landlord,
unless such are expressly set forth in this lease. If this lease is executed
before the premises become vacant or otherwise available and ready for
occupancy, or if any present tenant or occupant of the premises holds over and
Landlord cannot, using good faith efforts, acquire possession of the premises
prior to the date above recited as the commencement date of this lease, Landlord
shall not be deemed to be in default hereunder, nor in any way liable to Tenant
because of such failure. and Tenant agrees to accept possession of the premises
at such time as Landlord is able to tender the same, which date shall
thenceforth be deemed the "commencement date"; and the term of this tease shall
automatically be extended so as to include the full number of months
hereinbefore provided for, except that if the commencement date is other than
the first day of a calendar month. such
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term shall also be extended for the remainder of the calendar month in which
possession is tendered. Landlord hereby waives payment of rent covering any
period prior to such tendering of possession. After the commencement date,
Tenant shall, upon demand, execute and deliver to Landlord a letter of
acceptance of delivery of the premises.
2. Base Rent and Security Deposit.
A. Tenant agrees to pay to Landlord for the premises in lawful money of the
United States rent for the entire term hereof at the rate of See Paragraph 27
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Dollars ($
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) per month, in advance, except that the monthly installment which
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otherwise shall be due on the commencement date recited above, shall be due and
payable on the date hereof. Thereafter, one such monthly installment shall be
due and payable without demand on or before the first day of each calendar month
succeeding the commencement date recited above during the demised term; further
provided, that the rental payment for any fractional calendar month at the
commencement or end of the lease term shall be prorated.
B. In addition, Tenant agrees to deposit with Landlord on the date hereof
the sum of Twenty Five Thousand Three Hundred Eighty-Two and 81/100---Dollars
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($25,382.81), which sum shall be held by Landlord, without obligation for
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interest, as security for the full, timely and faithful performance of Tenant's
covenants and obligations under this lease, it being expressly understood and
agreed that such deposit is not an advance rental deposit or a measure of
Landlord's damages in case of Tenant's default. Upon the occurrence of any
event of default by Tenant, Landlord may, from time to time, without prejudice
to any other remedy provided herein or provided by law, use such fund to the
extent necessary to make good any arrears of rent or other payments due Landlord
hereunder, and any other damage, injury, expense or liability caused by any
event of Tenant's default; and Tenant shall pay to Landlord on demand the amount
so applied in order to restore the security deposit to its original amount.
Although the security deposit shall be deemed the property of Landlord, any
remaining balance of such deposit shall be returned by Landlord to Tenant at
such time after termination of this lease when Landlord shall have determined
that all Tenant's obligations under this lease have been fulfilled. Subject to
the other terms and conditions contained in this lease, if the premises are
conveyed by Landlord. said deposit may be turned over to Landlord's. or its
successor's, grantee. and if so, Tenant hereby releases Landlord, or its
successor, as the case may be, from any and all liability with respect to said
deposit and its application or return.
3. Use. The demised premises shall be continuously used by Tenant, but only
for the purpose of receiving, storing. shipping and selling (other than at
retail) products, materials and merchandise made and/or distributed by Tenant
and for such other lawful purposes as may be incidental thereto. Tenant shall at
its own cost and expense obtain any and all licenses and permits necessary for
any such use. The parking of automobiles, trucks or other vehicles in the areas
not specifically designated on Exhibit B (unless such other areas are designated
by Landlord to be common parking areas) and the outside storage of any property
(including, without limitation, over-night parking of trucks and other vehicles)
are prohibited without Landlord's prior written consent. Tenant shall comply
with all governmental laws. ordinances and regulations applicable to the use of
the premises and its occupancy thereof, and shall promptly comply with all
governmental orders and directives for the correction, prevention and abatement
of any violations or nuisances in of upon, or connected with, the premises, all
at
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Tenant's sole expense. If, as a result of any change in the governmental
laws, ordinances and regulations, the premises must be altered to lawfully
accommodate Tenant's use and occupancy thereof, such alterations shall be made
only with the consent of Landlord, but the entire cost thereof shall be borne by
Tenant; provided, that, the necessity of Landlord's consent shall in no way
create any liability against Landlord for failure of Tenant to comply. or alter
the premises to comply, with such laws. ordinances and regulations. 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 would disturb or endanger any other tenants of
the building in which the premises are situated or unreasonably interfere with
such tenants' use of their respective premises or permit any use which would
adversely affect the reputation of the building in which the premises are
situated. Without Landlord's prior written consent, Tenant shall not receive,
store or otherwise handle any product, material or merchandise which is
explosive or highly flammable. Tenant will not permit the premises to be used
for any purpose (including, without limitation, the storage of merchandise) in
any manner which would render the insurance thereon void or increase the
insurance rite thereof, and Tenant shall immediately cease and desist from such
use, paying all cost and expense resulting from such improper use.
4. Taxes.
A. Landlord agrees to pay all general and special taxes, assessments and
governmental charges of any kind and nature whatsoever (hereinafter collectively
referred to as "taxes") lawfully levied against the real property described in
Exhibit A, the building situated thereon and the grounds, parking areas,
driveways and alleys around the building. If for any real estate tax year
applicable to the term hereof (or any renewal or extension of such term)
Tenant's proportionate share of such taxes levied for such tax year shall exceed
the sum of Sixty Nine Thousand Seven Hundred Thirty-One and 81/100 Dollars
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($ 69,731.81 ) - ("Landlord's share"), Tenant shall pay to Landlord as
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additional rent upon demand at the time the xxxx for each installment for such
tax year issues, the amount of such excess applicable to each installment less
any monthly payments paid by Tenant as provided below for such tax year. Upon
the issuance of the actual bills (as distinguished from any estimated xxxx) for
taxes to be paid in the calendar year in which the commencement date falls and
upon tile issuance of such actual bills in each succeeding calendar year during
the term hereof. Tenant shall, upon Landlord's request, commencing with the
first day of the month next succeeding the date of which the taxes covered by
such term are due without penalty and on the first day of each of the next
eleven months, pay as additional rent, and not as a deposit, one-twelfth
(1/12th) of the amount by which the taxes paid in such calendar year exceeded
Landlord's share. In addition, Tenant shall pay upon demand its proportionate
share of any fees, expenses and costs incurred by Landlord in protesting any
assessments, levies or the tax rate.
B. If at any time during the term of this lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments or governmental charges levied, assessed or imposed on real estate
and the improvements thereon, thereto shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received therefrom
and/or a franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rents for the present or any future building or
buildings on the premises, then all such taxes, assessments, levies or charges,
or the part thereof so measured or based, shall be deemed to be included within
the term "taxes" for the purposes hereof.
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C. Any payment to be made pursuant to this Paragraph 4 with respect to the
real estate tax year in which this lease commences or terminates shall be
prorated.
5. Landlord's Repairs. Landlord shall at its expense maintain in good
repair, reasonable wear and tear excepted, only the foundation and the
structural soundness of the exterior walls of the building. Tenant shall
immediately give Landlord written notice of any defect or need for repairs in
the foundation and exterior walls, after which Landlord shall have reasonable
opportunity to repair same of cure such defect. Landlord's liability with
respect to any defects, repairs or maintenance for which Landlord is responsible
under any of the provisions of this lease shall be limited to the cost of such
repairs or maintenance or the curing of such defect. The term "walls" as used
herein shall not include windows, glass or plate glass, doors, special store
fronts or office entries.
6. Tenant's Repairs.
A. Tenant shall at its own cost and expense keep and maintain all parts of
the premises and the real estate on which the building is located, including any
areas shared in common with other tenants of the building, for which Landlord is
not expressly responsible under the terms of this lease, in good condition,
promptly making all necessary repairs and replacements, whether ordinary or
extraordinary, or structural or nonstructural, with materials and workmanship of
the same character, kind and quality as the original, including but not limited
to, windows, glass and plate glass, doors, skylights, any special office
entries, interior walls and finish work, floors and floor coverings, downspouts,
gutters, heating and air conditioning systems, electrical systems and fixtures,
sprinkler systems, dock boards, truck doors, dock bumpers, paving, plumbing work
and fixtures, termite and pest extermination, regular removal of trash and
debris, regular mowing of any grass, trimming, weed removal and general
landscape maintenance, including the rail spur areas. Tenant as part of its
obligations hereunder shall (i) keep the parking areas, driveways, alleys and
the whole of the premises in a clean and sanitary condition, (ii) if the
premises are served by a railroad switch or spur track, maintain (or reimburse
the railroad company for maintaining) any railway switch or spur track and
related facilities serving the real estate of which the premises are a part
(Tenant hereby agreeing to sign a joint maintenance agreement with the railroad
company servicing the premises, if requested by the Landlord or railroad
company), and (iii) without injury to the roof, other horizontal surfaces of the
building, downspouts, parking areas, driveways and sidewalks, remove all snow
and ice from same. Tenant will, as far as possible, keep all such parts of the
premises and the real estate on which the building is located from deterioration
due to ordinary wear and from falling temporarily out of repair, and upon
termination of this lease in any way Tenant will yield up the premises to
Landlord in good condition and repair, loss by fire or other casualty covered by
insurance to be maintained by Landlord pursuant to paragraph 12A hereof excepted
(but not excepting any damage to glass).
B. Tenant shall not damage any demising wall or disturb the integrity and
support provided by any demising wall and shall, at its sole cost and expense,
promptly repair any damage or injury to any demising wall caused by Tenant or
its employees, agents or invitees.
C. Tenant and its employees, customers and licensees shall have the
nonexclusive right to use, in common with the other parties occupying said
building, common parking areas, if any, (exclusive of any parking or work load
areas designated or to be designated by Landlord for the
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exclusive use of Tenant or other tenants occupying or to be occupying other
portions of the building), driveways and alleys adjacent to said building,
subject to such reasonable rules and regulations as Landlord may from time to
time prescribe. Further, Landlord reserves the right to perform the paving and
landscape maintenance for the grounds around the building, including, but not
limited to, the mowing of the grass, care of shrubs, general landscaping and
maintenance of common parking areas, if any, driveways and alleys, exterior
painting, common sewage line plumbing, and repair and maintenance of any other
items, the obligations for which are shared by other tenants in the building and
other improvements of which the premises are a part, all of which are otherwise
Tenant's obligations under subparagraph A above, and Tenant shall, in lieu of
the obligations set forth under subparagraph A above with respect to such items,
be liable for its proportionate share (as defined in subparagraph 24J) of the
cost and expense thereof unless Landlord in its sole discretion determines that
such cost and expense is properly allocable in another proportion or solely to
either Tenant or the other tenants occupying said building. Tenant shall pay to
Landlord its share, determined as aforesaid, of such costs and expenses, upon
demand, as additional rent, in the event Landlord elects to perform or cause to
be performed such work.
D. Landlord shall have the right to coordinate any repairs and other
maintenance of any rail tracks serving or to serve the building, and if Tenant
uses such rail tracks, Tenant shall reimburse Landlord or the railroad company
from time to time upon demand, as additional rent, for a share of the costs of
such repairs and maintenance and any other sums specified in any agreement to
which Landlord or Tenant is a party respecting such tracks, such costs to be
borne proportionately by all tenants in the building of which the premises are a
part using such rail tracks, based upon the actual number of rail cars shipped
and received by each tenant during each calendar year in which the lease term
falls.
E. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Landlord, for servicing all heating and air conditioning systems and
equipment within the premises. The service contract must include all services
suggested by the equipment manufacturer within the operation/maintenance manual
and must become effective within thirty (30) days of the date Tenant takes
possession of the premises.
F. Tenant shall, at its own cost and expense, repair any damage to the
premises resulting from and/or caused in whole or in part by the negligence or
misconduct of Tenant, its agents, servants, employees, patrons, customers, or
any other person entering upon the premises as a result of Tenant's business
activities or caused by Tenant's default hereunder.
7. Alterations. Tenant shall not make any alterations, additions or
improvements to the premises (including, without limitation, the roof and wall
penetrations) without the prior written consent of Landlord, which consent may
in Landlord's sole discretion be withheld. Tenant may, without the consent of
Landlord, but at its own cost and expense and in a good workmanlike manner,
erect such shelves, bins, machinery and other trade fixtures as it may deem
advisable, without altering the basic character of the building or improvements
and without overloading or damaging such building or improvements, and in each
case after complying with all applicable governmental laws, ordinances,
regulations and other requirements. All alterations, additions, improvements
and partitions erected by Tenant shall be and remain the property of Tenant
during
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the term of this lease and Tenant shall, unless Landlord otherwise elects
as hereinafter provided, remove all alterations, additions, improvements and
partitions erected by Tenant and restore the premises to their original
condition by the date of termination of this lease or upon earlier vacating of
the premises; provided, however, that if at such time Landlord so elects such
alterations, additions, improvements and partitions shall become the property of
Landlord as of the date of termination of this lease or upon earlier vacating of
the premises, and title shall pass to Landlord under this lease as by a xxxx of
sale. All shelves, bins, machinery and trade fixtures installed by Tenant may
be removed by Tenant prior to the termination of this lease if Tenant so elects,
and shall be removed by the date of termination of this lease or upon earlier
vacating of the premises it required by Landlord; upon any such removal Tenant
shall restore the premises to their original condition. All such removals and
restoration shall be accomplished in a good workmanlike manner so as not to
damage the primary structure or structural qualities of the buildings and other
improvements within which the premises are situated. If Landlord shall, in its
sole discretion, consent to any alterations, additions or improvements proposed
by Tenant, Tenant shall construct the same in accordance with all governmental
laws, ordinances, rules and regulations and shall, prior to construction,
provide such assurances to Landlord, (including but not limited to, waivers of
lien, surety company performance bonds and personal guaranties of individuals of
substance) as Landlord shall require to protect Landlord against any loss from
any mechanics', laborers' or materialmen's liens, or other liens.
8. Signs. Tenant shall not install any signs upon the exterior of said
buildings, except that Landlord will provide, at Tenant's request and cost,
Landlord's standard identification sign, which sign shall be removed by Tenant
upon termination of this lease.
9. Inspections. Landlord and Landlord's agents and representatives shall
have the right to enter and inspect the premises at any reasonable time during
business hours, for the following purposes: (i) to ascertain the condition of
the premises; (ii) to determine whether Tenant is diligently fulfilling Tenant's
responsibilities under this lease; (iii) to make such repairs as may be required
or permitted to be made by Landlord under the terms of this lease; or (iv) to do
any other act or thing which Landlord deems reasonable to preserve the premises
and the building and improvements of which the premises are a part. During the
period that is six (6) months prior to the end of the term hereof and at any
time Tenant is in default hereunder and such default has remained uncured for at
least thirty (30) days, Landlord and Landlord's agents and representatives shall
have the right to enter the premises at any reasonable time during business
hours for the purpose of showing the premises and shall have the right to erect
on the premises suitable signs indicating that the premises are available for
lease. Tenant shall give written notice to Landlord at least thirty (30) days
prior to vacating the premises and shall arrange to meet with Landlord for a
joint inspection of the premises prior to vacating. In the event of Tenant's
failure to give such notice or arrange such joint inspection, Landlord's
inspection at or after Tenant's vacating the premises shall be conclusively
deemed correct for purposes of determining Tenant's responsibility for repairs
and restoration.
10. Utilities. Landlord agrees to provide, at its cost, water, electricity
and telephone service connections into the premises; but Tenant shall pay for
all water, gas, heat, light, power, telephone, sewer, sprinkler system charges
and other utilities and services used on or from the premises, including without
limitation, Tenant's proportionate share as determined by Landlord of any
central station signaling system installed in the premises or the building of
which the
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premises are a part, together with any taxes, penalties, and surcharges or the
like pertaining thereto and any maintenance charges for utilities. Tenant shall
furnish all electric light bulbs, tubes and ballasts. If any such services are
not separately metered to Tenant, Tenant shall pay such proportion of all
charges jointly metered with other premises as determined by Landlord, in its
sole discretion, to be reasonable. Any such charges paid by Landlord and
assessed against Tenant shall be immediately payable to Landlord on demand and
shall be additional rent hereunder. Landlord shall in no event be liable for any
interruption or failure of utility services on or to the premises.
11. Assignment and Subletting.
A. Tenant shall not have the right to assign or pledge this lease or to
sublet the whole or any part of the premises, whether voluntarily or by
operation of law, or permit the use or occupancy of the premises by anyone other
than Tenant, without the prior written consent of Landlord, and such
restrictions shall be binding upon any assignee or subtenant to which Landlord
has consented. In the event Tenant desires to sublet the premises, or any
portion thereof, or assign this lease, Tenant shall give written notice thereof
to Landlord within a reasonable time prior to the proposed commencement date of
such subletting or assignment, which notice shall set forth the name of the
proposed subtenant or assignee, the relevant terms of any sublease and copies of
financial reports and other relevant financial information of the proposed
subtenant or assignee. Notwithstanding any permitted assignment or subletting,
Tenant shall at all times remain directly, primarily and fully responsible and
liable for the payment of the rent herein specified and for compliance with all
of its other obligations under the terms, provisions and covenants of this
lease. Upon the occurrence of an "event of default" (as hereinafter defined), if
the premises or any part thereof are then assigned or sublet, Landlord, in
addition to any other remedies herein provided, or provided by law, may, at its
option collect directly from such assignee or subtenant all rents due and
becoming due to Tenant under such assignment or sublease and apply such rent
against any sums due to Landlord from Tenant hereunder, and no such collection
shall be construed to constitute a novation or a release of Tenant from the
further performance of Tenant's obligations hereunder.
B. In addition to, but not in limitation of, Landlord's right to approve of
any subtenant or assignee, Landlord shall have the option, in its sole
discretion, in the event of any proposed subletting or assignment, to terminate
this lease, or in the case of a proposed subletting of less than the entire
premises, to recapture the portion of the premises to be sublet, as of the date
the subletting or assignment is to be effective. The option shall be exercised,
if at all, by Landlord giving Tenant written notice thereof within sixty (60)
days following Landlord's receipt of Tenant's written notice as required above.
If this lease shall be terminated with respect to the entire demised premises
pursuant to this paragraph, the term of this lease shall end on the date stated
in Tenant's notice as the effective date of the sublease or assignment as if
that date had been originally fixed in this lease for the expiration of the term
hereof; provided, however, that effective on such date Tenant shall pay Landlord
all amounts, as estimated by Landlord, payable by Tenant to such date, with
respect to taxes, insurance, repairs, maintenance, restoration and other
obligations, costs or charges which are the responsibility of Tenant hereunder.
Further, upon any such cancellation Landlord and Tenant shall have no further
obligations or liabilities to each other under this lease, except with respect
to obligations or liabilities which accrued hereunder as of such cancellation
date (in the same manner as if such cancellation date were the date originally
fixed in this lease for the expiration of the term hereof). If Landlord
recaptures
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under this paragraph only a portion of the demised premises, the rent
during the unexpired term hereof shall xxxxx proportionately based on the rent
per square foot contained in this lease as of the date immediately prior to such
recapture. Tenant shall, at Tenant's own cost and expense, discharge in full
any outstanding commission obligation on the part of Landlord with respect to
this lease, and any commissions which may be due and owing as a result of any
proposed assignment or subletting, whether or not the premises are recaptured
pursuant hereto and rented by Landlord to the proposed tenant or any other
tenant.
C. Notwithstanding the provisions of the foregoing paragraphs, Tenant may,
without Landlord's consent, assign this lease to any corporation succeeding to
substantially all the business and assets of Tenant by merger, consolidation,
purchase of assets or otherwise or to any corporation or entity which is a
subsidiary or division of Tenant, provided that the following conditions are
satisfied: (i) the total assets and net worth of such assignee shall be equal to
or more than that of Tenant immediately prior to such transaction; (ii) Tenant
is not then in default hereunder; and (iii) such successor shall execute and
deliver to Landlord an instrument in writing fully assuming all the obligations
and liabilities imposed upon Tenant hereunder. Upon satisfaction of the
foregoing, Landlord agrees to discharge Tenant from any further liability
hereunder.
D. If Tenant is a corporation, the shares of which at the time of execution
of this lease, are held by fewer than fifty (50) persons, and if at any time
during the term of this lease persons, firms or corporations who own at least
one-third (1/3) of its shares at the time of the execution of this lease, or
following Landlord's consent to a transfer of such shares, cease to own such
shares (other than as a result of transfer by bequest or inheritance) and such
transfer shall not first have been approved in writing by Landlord, such
transfer shall, at the option of Landlord, be deemed a default by Tenant under
this lease and Landlord shall have all the rights and remedies granted to it
hereunder and by law in case of defaults. Tenant may transfer stock under the
terms of this lease to members of the immediate family of shareholders of the
parent corporation.
12. Fire and Casualty Damage.
A. Landlord agrees to maintain standard fire and extended coverage
insurance covering the building of which the premises are a part in an amount
not less than ninety percent (90%) (or such greater percentage as may be
necessary to comply with the provisions of any co-insurance clauses of the
policy) of the "replacement cost" thereof as such term is defined in the
Replacement Cost Endorsement to be attached thereto, insuring against the perils
of fire and lightning and including extended coverage, or at Landlord's option
all risk coverage, such coverages and endorsements to be as defined, provided
and limited in the standard bureau forms prescribed by the insurance regulatory
authority for the state in which the premises are situated for use by insurance
companies admitted in such state for the writing of such insurance on risks
located within such state. Subject to the provisions of subparagraphs 12C, 12D
and 12F below, such insurance shall be for the sole benefit of Landlord and
under its sole control. If during the second full lease year after the
commencement date of this lease, or during any subsequent year of the primary
term or any renewal or extension, Landlord's cost of maintaining such insurance
shall exceed Landlord's cost of maintaining such insurance for the first full
lease year of the term hereof, Tenant agrees to pay to Landlord, as additional
rental, Tenant's full proportionate share (as defined in subparagraph 24J) of
such excess. Said payments shall be made to Landlord within ten (10) days after
presentation to Tenant of Landlord's statement setting forth the amount
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due, and the failure to pay such excess shall be treated in the same manner as a
default in the payment of rent hereunder when due. Any payment to be made
pursuant to this subparagraph 12A with respect to the year in which this lease
commences or terminates shall bear the same ratio to the payment which would be
required to be made for the full year as the part of such year covered by the
term of this lease bears to a full year. Tenant shall not take out separate
insurance concurrent in form or contributing in the event of loss with that
required to be maintained by Landlord hereunder unless Landlord is included as
an additional insured thereon. Tenant shall immediately notify Landlord whenever
any such separate insurance is taken out and shall promptly deliver to Landlord
the policy or policies of such insurance.
B. If the buildings situated upon the premises should be damaged or
destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
C. If the buildings situated upon the premises should be damaged by any
peril covered by the insurance to be provided by Landlord under subparagraph 12A
above, but only to such extent that rebuilding or repairs can in Landlord's
estimation be completed within one hundred fifty (150) days after the date upon
which Landlord is notified by Tenant of such damage, (except that Landlord may
elect not to rebuild if such damage occurs during the last year of the term
hereof), this lease shall not terminate, and Landlord shall at its sole cost and
expense thereupon proceed with reasonable diligence to rebuild and repair such
buildings to substantially the condition in which they existed prior to such
damage, except Landlord shall not be required to rebuild, repair or replace any
part of the partitions, fixtures, additions and other improvements which may
have been placed in, on or about the premises by Tenant. If the premises are
untenantable in whole or in part following such damage, the rent payable
hereunder during the period in which the premises are untenantable shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances. In the event that Landlord should fail to complete such repairs
and rebuilding within one hundred fifty (150) days after the date upon which
Landlord is notified by Tenant of such damage, Tenant may at its option
terminate this lease by delivering written notice of termination to Landlord as
Tenant's exclusive remedy, whereupon all rights and obligations hereunder shall
cease and terminate; provided, however, that if construction is delayed because
of changes, deletions, or additions in construction requested by Tenant,
strikes, lockouts, casualties, acts of God, war, material or labor shortages,
Governmental regulation or control or other causes beyond the reasonable control
of Landlord, the period for restoration, repair or rebuilding shall be extended
for the amount of time Landlord is so delayed.
D. If the buildings situated upon the premises should be damaged or
destroyed by fire, tornado or other casualty and Landlord is not required to
rebuild pursuant to the provisions of subparagraph 12C hereof, this lease shall
at the option of Landlord, upon notice to Tenant, given within thirty (30) days
after Landlord is notified by Tenant of such damage, terminate and the rent
shall be abated during the unexpired portion of this lease, effective upon the
date of the occurrence of such damage.
E. Tenant covenants and agrees to maintain insurance on all alterations,
additions, partitions and improvements erected by or on behalf of Tenant in, on
or about the premises in an amount not less than ninety percent (90%) (or such
greater percentage as may be necessary to comply with the provisions of any co-
insurance clause of the policy) of the "replacement cost" thereof, as such term
is defined in the Replacement Cost Endorsement to be attached thereto. Such
9
insurance shall insure against the perils and be in form, including stipulated
endorsements, as provided in subparagraph 12A hereof. Such insurance shall be
for the sole benefit of Tenant and under its sole control provided that Tenant
shall be obligated to immediately commence the rebuilding of the improvements
erected by Tenant and to apply such proceeds in payment of the cost thereof.
All such policies shall be procured by Tenant from responsible insurance
companies satisfactory to Landlord. Certified copies of policies of such
insurance, together with receipt evidencing payment of the premiums therefor,
shall be delivered to Landlord prior to the commencement date of this lease.
Not less than fifteen (15) days prior to the expiration date of any such
policies, certified copies of renewals thereof (bearing notations evidencing the
payment of renewal premiums) shall be delivered to Landlord. Such policies
shall further provide that not less than thirty (30) days written notice shall
be given to Landlord before such policy may be cancelled or changed to reduce
insurance provided thereby.
F. Notwithstanding anything herein to the contrary, in the event the holder
of any indebtedness secured by a mortgage or deed of trust covering the premises
or the building of which the premises are a part requires that the insurance
proceeds be applied to such indebtedness, then Landlord shall have the right to
terminate this lease by delivering written notice of termination to Tenant
within fifteen (15) days after such requirement is made by any such holder,
whereupon all rights and obligations hereunder shall cease and terminate.
G. Each of Landlord and Tenant hereby releases the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured in policies of insurance covering
such property, even if such loss or damage shall have been caused by the fault
or negligence of the other party, or anyone for whom such party may be
responsible, including any other tenants or occupants of the remainder of the
building in which the premises are located; provided, however, that this release
shall be applicable and in force and effect only to the extent that such release
shall be lawful at that time and in any event only with respect to loss or
damage occurring during such times as the releasor's policies shall contain a
clause or endorsement to the effect that any such release shall not adversely
affect or impair said policies or prejudice the right of the releasor to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. Each of Landlord and Tenant agrees that it will request its
insurance carriers to include in its policies such a clause or endorsement. If
extra cost shall be charged therefor, each party shall advise the other thereof
and of the amount of the extra cost, and the other party, at its election, may
pay the same, but shall not be obligated to do so. If such other party fails to
pay such extra cost, the release provisions of this paragraph shall be
inoperative against such other party to the extent necessary to avoid
invalidation of such releasor's insurance.
H. In the event of any damage or destruction to the premises by any peril
covered by the provisions of this Paragraph 12, Tenant shall, upon notice from
Landlord, forthwith remove, at its sole cost and expense, such portion or all of
Tenant's shelves, bins, machinery and other trade fixtures and all other
property belonging to Tenant or his licensees from such portion or all of the
premises as Landlord shall request and Tenant hereby indemnifies and holds
harmless the property. Landlord (including without limitation the trustee and
beneficiaries if Landlord is a trust). Landlord's agents and employees from any
loss, liability, claims, suits, costs, expenses, including attorney's fees and
damages, both real and alleged, arising out of any damage or injury
10
as a result of the failure to properly secure the premises prior to such removal
and/or as a result of such removal.
13. Liability. Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the premises, resulting
from and/or caused in part or whole by the negligence or misconduct of Tenant,
its agents, servants or employees, or of any other person entering upon the
premises, or caused by the buildings and improvements located on the promises
becoming out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the premises, or due to any cause whatsoever, and
Tenant hereby covenants and agrees that it will at all times indemnify and hold
safe and harmless the property, the Landlord (including without limitation the
trustee and beneficiaries if Landlord is a trust), Landlord's agents and
employees from any loss, liability, claims, suits, costs, expenses, including
attorney's fees and damages, both real and alleged, arising out of any such
damage or injury; except injury to persons or damage to property the sole cause
of which is the negligence of Landlord or the failure of Landlord to repair any
part of the premises which Landlord is obligated to repair and maintain
hereunder within a reasonable time after the receipt of written notice from
Tenant of needed repairs. Tenant shall procure and maintain throughout the term
of this lease a policy or policies of insurance, in form and substance
satisfactory to Landlord, at Tenant's sole cost and expense, insuring both
Landlord (and if Landlord is a trust, the trustee, beneficiaries and their
agents) and Tenant against all claims, demands or actions arising out of or in
connection with: (i) the premises; (ii) the condition of the premises; (iii)
Tenant's operations in and maintenance and use of the premises; and (iv)
Tenant's liability assumed under this lease; the limits of such policy or
policies to be in the amount of not less than $2,000,000 per occurrence in
respect of injury to persons (including death), and in the amount of not less
than $250,000 per occurrence in respect of property damage or destruction,
including loss of use thereof. All such policies shall be procured by Tenant
from responsible insurance companies satisfactory to Landlord. Certified copies
of such policies, together with receipt evidencing payment of premiums therefor,
shall be delivered to Landlord prior to the commencement date of this lease. Not
less than fifteen (15) days prior to the expiration date of any such policies,
certified copies of the renewals thereof (bearing notations evidencing the
payment of renewal premiums) shall be delivered to Landlord. Such policies shall
further provide that not less than thirty (30) days written notice shall be
given to Landlord before such policy may be cancelled or changed to reduce the
insurance coverage provided thereby.
14. Condemnation.
A. If the whole or any substantial part of the premises should be taken for
any public or quasi-public use under governmental law, ordinance or regulation,
or by right of eminent domain, or by private purchase in lieu thereof and the
taking would prevent or materially interfere with the use of the premises for
the purpose for which they are then being used, this lease shall terminate and
the rent shall be abated during the unexpired portion of this lease, effective
when the physical taking of said premises shall occur.
B. If part of the premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and this lease is not terminated
as provided in the subparagraph above, this lease shall not terminate but the
rent payable hereunder during the unexpired portion of this lease shall
11
be reduced to such extent as may be fair and reasonable under all of the
circumstances and Landlord shall undertake to restore the premises to a
condition suitable for Tenant's use, as near to the condition thereof
immediately prior to such taking as is reasonably feasible under all the
circumstances.
C. In the event of any such taking or private purchase in lieu thereof,
Landlord and Tenant shall each be entitled to receive and retain such separate
awards and/or portion of lump sum awards as may be allocated to their respective
interests in any condemnation proceedings; provided that Tenant shall not be
entitled to receive any award for Tenant's loss of its leasehold interest, the
right to such award being hereby assigned by Tenant to Landlord.
15. Holding Over. Tenant will, at the termination of this lease by lapse of
time or otherwise, yield up immediate possession to Landlord. If Tenant retains
possession of the premises or any part thereof after such termination, then
Landlord may, at its option, serve written notice upon Tenant that such holding
over constitutes any one of (i) creation of a month to month tenancy, upon the
terms and conditions set forth in this lease, or (ii) creation of a tenancy at
sufferance, in any case upon the terms and conditions set forth in this lease;
provided, however, that the monthly rental (or daily rental under (ii)) shall,
in addition to all other sums which are to be paid by Tenant hereunder, whether
or not as additional rent, be equal to double the rental being paid monthly to
Landlord under this lease immediately prior to such termination (prorated in the
case of (ii) on the basis of a 365 day year for each day Tenant remains in
possession). If no such notice is served, then a tenancy at sufferance shall be
deemed to be created at the rent in the preceding sentence. Tenant shall also
pay to Landlord all damages sustained by Landlord resulting from retention of
possession by Tenant, including the loss of any proposed subsequent tenant for
any portion of the premises. The provisions of this paragraph shall not
constitute a waiver by Landlord of any right of re-entry as herein set forth;
nor shall receipt of any rent or any other act in apparent affirmance of the
tenancy operate as a waiver of the right to terminate this lease for a breach of
any of the terms, covenants, or obligations herein on Tenant's part to be
performed.
16. Quiet Enjoyment. Landlord covenants that it now has, or will acquire
before Tenant takes possession of the premises, good title to the premises, free
and clear of all liens and encumbrances, excepting only the lien for current
taxes not yet due, such mortgage or mortgages as are permitted by the terms of
this lease, zoning ordinances and other building and fire ordinances and
governmental regulations relating to the use of such property, and easements,
restrictions and other conditions of record. In the event this lease is a
sublease, then Tenant agrees to take the premises subject to the provisions of
the prior leases. Landlord represents and warrants that it has full right and
authority to enter into this lease and that Tenant, upon paying the rental
herein set forth and performing its other covenants and agreements herein set
forth, shall peaceably and quietly have, hold and enjoy the premises for the
term hereof without hindrance or molestation from Landlord, subject to the terms
and provisions of this lease. Landlord agrees to make reasonable efforts to
protect Tenant from interference or disturbance by other tenants or third
persons; however, Landlord shall not be liable for any such interference or
disturbance, nor shall Tenant be released from any of the obligations of this
lease because of such interference or disturbance.
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17. Events of Default. The following events shall be deemed to be events of
default by Tenant under this lease:
(a) Tenant shall fail to pay when or before due any sum of money
becoming due to be paid to Landlord hereunder, whether such sum be any
installment of the rent herein reserved, any other amount treated as
additional rent hereunder, or any other payment or reimbursement to
Landlord required herein, whether or not treated as additional rent
hereunder, and such failure shall continue for a period of five (5) days
from the date such payment was due; or
(b) Tenant shall fail to comply with any term, provision or covenant
of this lease other than by failing to pay when of before due any sum of
money becoming due to be paid to Landlord hereunder, and shall not cure
such failure within twenty (20) days (forthwith, if the default involves a
hazardous condition) after written notice thereof to Tenant; or
(c) Tenant shall abandon or vacate any substantial portion of the
premises; or
(d) Tenant shall fail to immediately vacate the premises upon
termination of this lease, by lapse of time or otherwise, or upon
termination of Tenant's right to possession only; or
(e) The leasehold interest of Tenant shall be levied upon under
execution or be attached by process of law or Tenant shall fail to contest
diligently the validity of any lien or claimed lien and give sufficient
security to Landlord to insure payment thereof or shall fail to satisfy any
judgment rendered thereon and have the same released, and such default
shall continue for ten (10) days after written notice thereof to Tenant; or
(f) Tenant shall become insolvent, admit in writing its inability to
pay its debts generally as they become due, file a petition in bankruptcy
or a petition to take advantage of any insolvency statute, make an
assignment for the benefit of creditors, make a transfer in fraud of
creditors, apply for or consent to the appointment of a receiver of itself
or of the whole or any substantial part of its property, or file a petition
or answer seeking reorganization or arrangement under the federal
bankruptcy laws, as now in effect or hereafter amended, or any other
applicable law or statute of the United States or any state thereof; or
(g) A court of competent jurisdiction shall enter an order, judgment
or decree adjudicating Tenant a bankrupt, or appointing a receiver of
Tenant, or of the whole or any substantial part of its property, without
the consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the
United States, as now in effect or hereafter amended, or any state thereof,
and such order, judgment or decree shall not be vacated or set aside or
stayed within thirty (30) days from the date of entry thereof.
18. Remedies. Upon the occurrence of any of such events of default
described in Paragraph 17 hereof or elsewhere in this lease, Landlord shall have
the option to pursue any one or more of the following remedies without any
notice or demand whatsoever:
(a) Landlord may, at its election, terminate this lease or terminate
Tenant's right to possession only, without terminating the lease;
13
(b) Upon any termination of this lease, whether by lapse of time or
otherwise, 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
Tenant hereby grants to Landlord full and free license to enter into and
upon the premises in such event with or without process of law and to
repossess Landlord of the premises as of Landlord's former estate and to
expel or remove Tenant and any others who may be occupying or within the
premises and to remove any and all property therefrom without being deemed
in any manner guilty of trespass, eviction or forcible entry or detainer,
and without incurring any liability for any damage resulting therefrom,
Tenant hereby waiving any right to claim damage for such re-entry and
expulsion, and without relinquishing Landlord's right to rent or any other
right given to Landlord hereunder or by operation of law ;
(c) Upon any termination of this lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all rent,
including any amounts treated as additional rent hereunder, and other sums
due and payable by Tenant on the date of termination, plus the sum of (i)
an amount equal to the then present value of the rent, including any
amounts treated as additional rent hereunder, and other sums provided
herein to be paid by Tenant for the residue of the stated term hereof, less
the fair rental value of the premises for such residue (taking into account
the time and expense necessary to obtain a replacement tenant or tenants,
including expenses hereinafter described in subparagraph (d) relating to
recovery of the premises, preparation for relettling and for reletting
itself), and (ii) the cost of performing any other covenants which would
have otherwise been performed by Tenant .
(d) (i) Upon any termination of Tenant's right to possession only
without termination of 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 provided in subparagraph (b) above,
without such entry and possession terminating the lease or releasing
Tenant, in whole or in part, from any obligation, including Tenant's
obligation to pay the rent, including any amounts treated as additional
rent, hereunder for the full term. In any such case Tenant shall pay
forthwith to Landlord, if Landlord so elects, a sum equal to the entire
amount of the rent, including any amounts treated as additional rent
hereunder, for the residue of the stated term hereof plus any other sums
provided herein to be paid by Tenant for the remainder of the lease term.
(ii) Landlord may, but need not, relet the premises or any part
thereof for such rent and upon such terms as Landlord in its sole
discretion shall determine (including the right to relet the premises for a
greater or lesser term than that remaining under this lease, 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) and Landlord shall not be required
to accept any tenant offered by Tenant or to observe any instructions given
by Tenant about such reletting. In any such case, Landlord may make
repairs, alterations and additions in or to the premises, and redecorate
the same to the extent Landlord deems necessary or desirable, and Tenant
shall, upon demand, pay the cost thereof, together with Landlord's expenses
of retelling, including, without limitation, any broker's commission
incurred by Landlord. If the consideration collected by Landlord upon any
such reletting plus any sums previously collected front Tenant are not
sufficient to pay the full amount of all rent, including any
14
amounts treated as additional rent hereunder and other sums reserved in
this lease for the remaining term hereof, together with the costs of
repairs, alterations, additions, redecorating, and Lessor's expenses of
reletting and the collection of the rent accruing therefrom (including
attorney's tees and broker's commissions), Tenant shall pay to Landlord the
amount of such deficiency upon demand and Tenant agrees that Landlord may
file suit to recover any sums falling due under this section from time to
time;
(e) Landlord may, at Landlord's option, enter into and upon the
premises, with or without process of law, it Landlord determines in its
sole discretion that Tenant is not acting within a commercially reasonable
time to maintain, repair or replace anything for which Tenant is
responsible hereunder and correct the same, without being deemed in my
manner guilty of trespass, eviction or forcible entry and detainer and
without incurring any liability for any damage resulting therefrom and
Tenant agrees to reimburse Landlord, on demand, as additional rent, for any
expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this lease;
(f) Any and all property which may be removed from the premises
by Landlord pursuant to the authority of the lease or of law, to which
Tenant is or may be entitled, may be handled, removed and stored, as the
case may be, by or at the direction of Landlord at the risk, cost and
expense of Tenant, and Landlord shall in no event be responsible for the
value, preservation or safekeeping thereof. Tenant shall pay to Landlord,
upon demand, any and all expenses incurred in such removal and all storage
charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Any such property of Tenant not
retaken by Tenant from storage within thirty (30) days after removal from
the premises shall conclusively be presumed to have been conveyed by Tenant
to Landlord under this lease as a xxxx of sale without further payment or
credit by Landlord to Tenant.
In the event Tenant fails to pay any installment of rent, including any
amount treated as additional rent hereunder, or other sums hereunder as and when
such installment or other charge is due, Tenant shall pay to Landlord on demand
a late charge in an amount equal to five percent (5%) of such installment or
other charge overdue in any month and five percent (5%) each month thereafter
until paid in full to help defray the additional cost to Landlord for processing
such late payments, and such late charge shall be additional rent hereunder and
the failure to pay such late charge within ten (10) days alter demand therefor
shall be an additional event of default hereunder. The provision for such late
charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law (all
such remedies being cumulative), nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent due to Landlord hereunder or of
any damages accruing to Landlord by reason of the violation of any of the terms,
provisions and covenants herein contained. No act or thing done by Landlord or
its agents during the term hereby granted shall be deemed a termination of this
lease or an acceptance of the surrender of the premises, and no agreement to
terminate this lease or accept a surrender of said premises shall be valid
unless in writing signed by Landlord. No
15
waiver by Landlord of any violation or breach of any of the terms, provisions
and covenants herein contained shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants herein contained. Landlord's acceptance of the payment of rental or
other payments hereunder alter the occurrence of an event of default shall not
be construed as a waiver of such default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to constitute
a waiver of such default or of Landlord's right to enforce any such remedies
with respect to such default or a subsequent default. If, on account of any
breach or default by Tenant in Tenant's obligations under the terms and
conditions of this Lease, it shall become necessary or appropriate for Landlord
to employ or consult with an attorney concerning or to enforce or defend any of
Landlord's rights or remedies hereunder, Tenant agrees to pay any attorney's
fees so incurred.
Without limiting the foregoing, Tenant hereby: (i) appoints and designates
C T Corporation System, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, or any
other party Landlord may from time to time hereinafter designate, by notice to
Tenant, as Tenant's true and lawful agent for service of process only, and
agrees that such service of process upon such party shall constitute personal
service of such process upon Tenant (provided, however, Landlord does not hereby
waive the right to serve Tenant with process by any other lawful means); (ii)
expressly waives any right to trial by jury; and (iii) expressly waives the
service of any notice under any existing or future law of the State of Illinois
applicable to landlords and tenants.
Tenant hereby constitutes and irrevocably appoints any attorney of any
court to be the true and lawful attorney of Tenant, and, in the name. place and
stead of Tenant, to appear for and on behalf of Tenant in any court of record at
any time in any suit or suits brought against Tenant for the enforcement of any
right hereunder by Landlord, to waive the issuance and service of process and
trial or jury, and, from time to time, to confess judgment or judgments in favor
of Landlord and against Tenant for any rent, including any amounts treated as
additional rent hereunder, other charges, and interest thereon due hereunder by
Tenant to Landlord and not paid and for costs of suit and for a reasonable
attorney's fee in favor of Landlord to be fixed by the court, and to release all
errors that may occur or intervene in such proceedings, including the issuance
of execution upon any such judgment, and to stipulate that no appeal shall be
prosecuted from such judgment or judgments, or that no proceedings in chancery
or otherwise shall be filed or prosecuted to interfere in any way with the
operation of such judgment or judgments or of any execution issued thereon or
with any supplemental proceedings taken by Landlord to collect the amount of any
such judgment or judgments, and to consent that execution on any judgment or
decree in favor of Landlord and against Tenant may issue to forthwith.
19. [Intentionally Omitted]
Mortgages. Tenant accepts this lease subject and subordinate to any mortgage(s)
and/or deed(s) of trust now or at any time hereafter constituting a lien or
charge upon the premises or the improvements situated thereon, provided,
however, that if the mortgagee, trustee, or holder of any such mortgage or deed
of trust elects to have Tenant's interest in this lease superior to any such
instrument, then by notice to Tenant from such mortgagee, trustee or holder,
this lease shall be deemed superior to such lien, whether this lease was
executed before or after said mortgage or deed of trust. Tenant shall at any
time hereafter on demand execute any instruments, releases or
16
other documents which may be required by any mortgagee for the purpose of
subjecting and subordinating this lease to the lien of any such mortgage or for
the purpose of evidencing the superiority of this lease to the lien of any such
mortgage, as may be the case.
21. Landlord's Liability. In no event shall Landlord's liability for any
breach of this lease exceed the amount of rental then remaining unpaid for the
then current term (exclusive of any renewal periods which have not then actually
commenced). This provision is not intended to be a measure or agreed amount of
Landlord's liability with respect to any particular breach, and shall not be
utilized by any court or otherwise for the purpose of determining any liability
of Landlord hereunder, except only as a maximum amount not to be exceeded in any
event.
22. Mechanic's and Other Liens. Tenant shall have no authority, express or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of Landlord in the
premises or to charge the rentals payable hereunder for any claim in favor of
any person dealing with Tenant, including those who may furnish materials or
perform labor for any construction or repairs, and each such claim shall affect
and each such lien shall attach to, if at all, only the leasehold interest
granted to Tenant by this instrument. Tenant covenants and agrees that it will
pay or cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work performed on
the premises on which any lien is or can be validly and legally asserted against
its leasehold interest in the premises or the improvements thereon and that it
will save and hold Landlord harmless from any and all loss, cost or expense
based on or arising out of asserted claims or liens against the leasehold estate
or against the right, title and interest of the Landlord in the premises or
under the terms of this lease. Tenant will not permit any mechanic's lien or
liens or any other liens which may be imposed by law affecting Landlord's or its
mortgagees' interest in the premises or any building or other improvement of
which the premises are a part to be placed upon the premises or any building or
improvement thereon during the term hereof, and in case of the filing of any
such lien Tenant will promptly pay same. If any such lien shall remain in force
and effect thirty (30) days after written notice thereof from Landlord to
Tenant, Landlord shall have the right and privilege at Landlord's option of
paying and discharging the same or any portion thereof without inquiry as to the
validity thereof, and any amounts so paid, including expenses and interest,
shall be so much additional indebtedness hereunder due from Tenant to Landlord
and shall be repaid to Landlord immediately on rendition of a xxxx therefor.
Notwithstanding the foregoing, Tenant shall have the right to contest any such
lien in good faith and with all due diligence so long as any such contest, or
action taken in connection therewith, protects the interest of Landlord and
Landlord's mortgagee in the premises and Landlord and any such mortgagee are, by
the expiration of said thirty (30) day period, furnished such protection, and
indemnification against any loss, cost or expense related to any such lien and
the contest thereof as are satisfactory to Landlord and any such mortgagee.
23. Notices. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivery of any notice or the making of any payment
by Landlord to Tenant or with reference to the sending, mailing or delivery of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
17
(a) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Xxxx Xxxxx Joint Venture or to such
------------------------
other entity at such other address as Landlord may specify from time to
time by written notice delivered in accordance herewith.
(b) All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address hereinbelow set forth, or at such
other address within the continental United States as Tenant may specify
from time to time by written notice delivered in accordance herewith.
(c) Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered, whether actually received or
not, when deposited in the United States Mail, postage prepaid, Certified
or Registered Mail, addressed to the parties hereto at the respective
addresses set out below, or at such other address as they have theretofore
specified by written notice delivered in accordance herewith:
LANDLORD: TENANT:
LaSalle National Bank Trust #52157 MODERN WHOLESALE DRUG MIDWEST, INC.
c/o Xxxxxxxx Xxxx Company 0000 X. Xxxx Xxxxxx
000 Xxxx Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 00000
Xxxxxx, Xxxxxxxx 00000 c/o Xxxxxxx X. Xxxxxx
If and when included within the term "Landlord", as used in this instrument,
there are more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord; if and when included within the term "Tenant", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively, shall be bound
by notices given in accordance with the provisions of this paragraph to the same
effect as if each had received such notice.
24. Miscellaneous.
A. Words of any gender used in this lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions contained in this
lease shall apply to, inure to the benefit of, and be binding upon, the parties
hereto and upon their respective heirs, legal representatives, successors and
permitted assigns, except as otherwise herein expressly provided Landlord shall
have the right to assign any of its rights and obligations under this lease and
Landlord's grantee or Landlord's successor, as the case may be, shall upon such
assignment,
18
become Landlord hereunder, thereby freeing and relieving the grantor or
assignor, as the case may be, of all covenants and obligations of Landlord
hereunder. Each party agrees to furnish to the other, promptly upon demand, a
corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of such party to
enter into this lease. Nothing herein contained shall give any other tenant in
the building of which the premises are a part any enforceable rights either
against Landlord or Tenant as a result of the covenants and obligations of
either party set forth herein.
C. The captions inserted in this lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this lease, or
any provision hereof, or in any way affect the interpretation of this lease.
D. Tenant shall at any time and from time to time within ten (10) days
after written request from Landlord execute and deliver to the Landlord or any
prospective Landlord or mortgagee or prospective mortgagee a sworn and
acknowledged estoppel certificate, in form reasonably satisfactory to Landlord
and/or Landlord's mortgagee or prospective mortgagee certifying and stating as
follows: (i) this lease has not been modified or amended (or if modified or
amended, setting forth such modifications or amendments); (ii) this lease as so
modified or amended is in full force and effect (or if not in full force and
effect, the reasons therefor); (iii) the Tenant has no offsets or defenses to
its performance of the terms and provisions of this lease, including the payment
of rent, of it there are any such defenses or offsets, specifying the same; (iv)
Tenant is in possession of the premises, if such be the case; (v) if an
assignment of rents or leases has been served upon Tenant by a mortgagee or
prospective mortgagee, Tenant has received such assignment and agrees to be
bound by the provisions thereof; and (vi) any other accurate statements
reasonably required by Landlord or its mortgagee or prospective mortgagee. It is
intended that any such statement delivered pursuant to this subsection may be
relied upon by any prospective purchaser or mortgagee and their respective
successors and assigns and Tenant shall be liable for all loss, cost or expense
resulting from the failure of any sale or funding of any loan caused by any
misstatement contained in such estoppel certificate. Tenant hereby irrevocably
appoints Landlord or if Landlord is a trust, Landlord's beneficiary, as
attorney-in-fact for the Tenant with full power and authority to execute and
deliver in the name of Tenant such estoppel certificate if Tenant fails to
deliver the same within such ten (10) day period and such certificate as signed
by Landlord or Landlord's beneficiary, as the case may be, shall be fully
binding on Tenant, if Tenant fails to deliver a contrary certificate within five
(5) days after receipt by Tenant of a copy of the certificate executed by
Landlord or Landlord's beneficiary, as the case may be, on behalf of Tenant. In
addition to any other remedy Landlord may have hereunder, Landlord may, at its
option, if Tenant does not deliver to Landlord an estoppel certificate as set
forth above within fifteen (15) days after Tenant is requested so to do, cancel
this lease effective the last day of the then current month, without incurring
any liability on account thereof, and the term hereby granted is expressly
limited accordingly.
E. This lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation, all payment obligations with respect to taxes and insurance
19
and all obligations concerning the condition of the premises. Upon the
expiration or earlier termination of the term hereof, and prior to Tenant
vacating the premises, Landlord and Tenant shall jointly inspect the premises
and Tenant shall pay to Landlord any amount estimated by Landlord as necessary
to put the premises, including without limitation heating and air conditioning
systems and equipment therein, in good condition and repair. Any work required
to be done by Tenant prior to its vacation of the premises which has not been
completed upon such vacation, shall be completed by Landlord and billed to
Tenant. Tenant shall also, prior to vacating the premises, pay to Landlord the
amount, as estimated by Landlord, of Tenant's obligation hereunder for unpaid
real estate taxes for the years during the term of this lease for which such
taxes are a lien against the premises, and insurance premiums for the year in
which the lease expires or terminates. All such amounts shall be used and held
by Landlord for payment of such obligations of Tenant hereunder, with Tenant
being liable for any additional costs therefor upon demand by Landlord, or with
any excess to be returned to Tenant after all such obligations have been
determined and satisfied, as the case may be. Any security deposit held by
Landlord shall be credited against the amount payable by Tenant under this
subparagraph 24F.
G. If any clause, phrase, provision or portion of this lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not affect, impair or
render invalid or unenforceable the remainder of this lease nor any other
clause, phrase, provision or portion hereof, nor shall it affect the application
of any clause, phrase, provision or portion hereof to other persons or
circumstances, and if is also the intention of the parties to this lease that in
lieu of each such clause, phrase, provision or portion of this lease that is
invalid or unenforceable, there be added as a part of this lease contract a
clause, phrase, provision or portion as similar in terms to such invalid or
unenforceable clause, phrase, provision or portion as may be possible and be
valid and enforceable.
H. Submission of this lease shall not be deemed to be a reservation of the
premises. Landlord shall not be bound hereby until its delivery to Tenant of an
executed copy hereof signed by Landlord, already having been signed by Tenant,
and until such delivery Landlord reserves the right to exhibit and lease the
premises to other prospective tenants. Notwithstanding anything contained herein
to the contrary Landlord may withhold delivery of possession of the premises
from Tenant until such time as Tenant has paid to Landlord the security deposit
required by subparagraph 2B hereof and the first month's rent as set forth in
subparagraph 2A hereof.
I. All references in this lease to "the date hereof" or similar references
shall be deemed to refer to the last date in point of time, on which all parties
hereto have executed this lease.
J. Tenant's "proportionate share" as used in this lease shall mean a
fraction, the numerator of which is the rentable area (other than any designated
parking or loading areas) contained in the premises and the denominator of which
is the rentable area contained in the building, in each case, as determined by
Landlord. For purposes hereof the numerator is 81,225 and the denominator is
-------
121,225 and Tenant's proportionate share is sixty seven and 00/100 percent ( %)
------- ----------------------
(67.0%).
20
25. Land Trustee's Exculpation. If the Landlord executing this lease is a
trust, the following paragraph is hereby made a part hereof:
This lease is executed by LaSalle National Bank not personally but as
---------------------
Trustee as aforesaid, in the exercise of the power and authority conferred upon
and vested in it as such Trustee, and under the express direction of the
beneficiaries of a certain Trust Agreement dated March 2, 1977 and known as
-------------
Trust No. 52157, at to all provisions of which Trust
----- ---------------------------
Agreement this lease is expressly made subject. It is expressly understood and
agreed that nothing in the Trust Agreement or in this lease contained shall be
construed as creating any liability whatsoever against said Trustee personally.
and in particular without limiting the generality of the foregoing, there shall
be no personal liability to pay any indebtedness accruing hereunder or to
perform any covenant, either express or implied, herein contained, or to keep,
preserve or sequester any property of said Trust, or to manage or control such
property or to be responsible for the upkeep, inspection, maintenance or repair
of such property or for the collection of rents or rental of property or for the
conduct of any business which is carried on upon such premises, and that all
personal liability of said Trustee of every sort, if any, is hereby expressly
waived by Tenant, and by every person now or hereafter claiming any right or
security hereunder; and that so far as said Trustee is concerned the owner of
any indebtedness or liability accruing hereunder shall look solely to the
premises hereby leased for the payment thereof.
26. Special Provisions. See Paragraph 27 through 34.
EXECUTED the day of , 19
------------------ --------------------------- --
ATTEST/WITNESS LANDLORD
---------------------------------- LASALLE NATIONAL BANK, Not Personally
But as Trustee as Aforesaid
----------------------------------
Title
By:
--------------------------------
ATTEST/WITNESS Title
------------------------------
---------------------------------- TENANT
Title MODERN WHOLESALE DRUG MIDWEST, INC.
----------------------------- -----------------------------------
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Title
------------------------------
21
27. Monthly rental payments for the first nine months of this Lease shall
be Fifteen Thousand Three Hundred Forty Five and 31/100 Dollars ($15,345.31).
Monthly rental payments for the next twenty-seven (27) months of this Lease
shall be Twenty Five Thousand Three Hundred Eighty-Two and 81/100 Dollars
($25,382.81). Monthly rental payments for the final twenty-four (24) months of
this Lease shall be Twenty Nine Thousand One Hundred Seventy Three and 31/100
Dollars ($29,173.31).
28. Provided this Lease is in full force and effect and the Tenant shall
not be in default hereunder, Tenant may renew and extend this Lease for three
(3) years from the fifth (5th) anniversary date of the commencement date of the
original term of this Lease by notice in writing delivered to Landlord not less
than one hundred eighty (180) days prior to the expiration date of the then
current term of the Lease. All of the covenants, conditions and provisions of
this Lease shall thereupon be applicable during said additional three (3) year
term except that the amount of rental to be paid by the Tenant to Landlord shall
be Thirty Two Thousand Eighty-Three and 88/100 Dollars ($32,083.88) per month.
29. In the event that during the Lease term Tenant shall require a larger
warehouse space which shall be at least one hundred fifty percent (150%) larger
than the current leased space and Landlord is successful in negotiating a new
lease for this larger warehouse space with Tenant, Landlord would cancel this
lease and allow Tenant a period in which to move into the new warehouse space.
During the move-in period, Tenant would not be obligated to pay rent on the old
space, but would only pay rent on the new area which is leased. Such a period
shall not exceed one month and such period shall be negotiated at the time a new
lease is prepared.
30. [intentionally omitted]
31. Both Landlord and Tenant warrant that Xxxxxx Xxxxxxx and Co. has acted
as the procuring real estate broker and that no other broker is entitled to a
real estate commission as a result of this lease agreement entered into by
Landlord and Tenant.
32. Landlord hereby agrees to provide Tenant with the right of first offer
of 40,000 square feet of space immediately adjacent to Tenant's existing
facility. Landlord shall make Tenant aware of the availability of said space.
The obligation of response, after notification by Landlord to Tenant, shall then
rest with the Tenant, Landlord having fulfilled its obligation under this
paragraph.
33. In each case where the Lease provides that the consent or approval of
Landlord is required, Landlord agrees that it shall not unreasonable withhold or
delay such consent or approval.
34. Notwithstanding the provisions of Paragraph 18 and provided this Lease
is otherwise in full force and effect, Tenant shall have a ten (10) day period
of grace after written notice given by Landlord before being in default for
failure to pay rent, but such period of grace can not be utilized by Tenant more
than twice in any successive twelve (12) month period.
22
LEGAL DESCRIPTION
That part of PARCEL 1
A tract of land consisting of a part of each of lots 1 and 2 in the subdivision
of the east half of the northwest quarter and the northeast quarter of the
southwest quarter, of section 28, township 42 north, range 12 east of the third
principal meridian. (except railroad); said tract of land being bounded and
described as follows:
Beginning at the point of intersection of the southeasterly line of the right of
way, 100 feet wide, of the Chicago & Northwestern railway, with the south line
of said lot 2, (said south lot line also being the south line of the northwest
quarter of said section 28), and running thence east along the south line of
said lot 2, a distance of 592.85 feet; Thence north along a line which is
parallel with the east line of said lot 1, a distance of 269.49 feet; Thence
northeastwardly along the arc of a circle, convex to the northwest and having a
radius of 169.40 feet, a distance of 103.70 feet to a point which is 300 feet,
measured perpendicularly, southeasterly from said southeasterly line of the
right of way of the Chicago and Northwestern railway; Thence northeastwardly
along a line which is 300 feet, measured perpendicularly, southeasterly from and
parallel with said southeasterly right of way line, a distance of 448.47 feet;
Thence northwesterly along a line perpendicular to said-parallel line said
distance of 300 feet to its intersection with said southeasterly right of way
line, and Thence southwestwardly along said southeasterly right of way line, a
distance of 1106.43 feet to the point of beginning, all in Xxxx County,
Illinois, and as outlined in red on Exhibit "B".
Containing 337,299 square feet of land, more or less.
EXHIBIT "A"
23
3400 W. Lake
Drafted: February 28 1994
LEASE AMENDMENT AGREEMENT
This Lease Amendment Agreement dated 7 March 1994 executed by and between
MERIDIAN POINT REALTY TRUST VI CO., a Missouri corporation d/b/a: Meridian Point
Realty VI Co., as successor in interest to Sierra Capital Realty VI d/b/a Sierra
Capital Realty VI Co., as Landlord, and MODERN WHOLESALE DRUG MIDWEST, INC.
d/b/a Rugby Laboratories, as Tenant, is hereby amended as follows:
Whereas Landlord and Tenant have previously entered into a Lease drafted January
4, 1984, as amended May 11, 1989 ("hereafter called the "Lease") covering 81,225
square feet of space in the building commonly known as 0000 X. Xxxx xx Xxxxxxxx,
Xxxxxxxx, and
Whereas, Landlord and Tenant hereby desire to amend that lease agreement as
follows:
35. The lease term in Paragraph 1. shall terminate on June 30, 1999.
36. Effective July 1, 1994, the following shall be amended:
A. The rental in Paragraphs 2.A and 27 shall be:
July 1, 1994 through June 30, 1997 - $36,216.31 per month
July 1, 1997 through June 30, 1999 - $37,998.77 per month
B. The real estate taxes in Paragraph 4.A. shall be $83,613.50.
C. The numerator in Paragraph 23.J. shall be amended to 97,225 and the
proportionate share percent shall be 80.20%.
3. Landlord shall provide Tenant with a rent credit of (7/l/94 - 10/2/94) One
Hundred Eleven Thousand Nine Hundred Twenty-Two and 98/100 Dollars
($111,922.98). This credit shall be applied by Tenant to the cost of
remodeling their office area. Tenant shall utilize a contractor reasonably
approved by Landlord and shall also submit final alteration plans to
Landlord for reasonable approval prior to commencement of construction.
4. Landlord shall be amended to Meridian Point Realty Trust VI Co., a Missouri
corporation d/b/a: Meridian Pointy Realty VI Co.
5. HAZARDOUS SUBSTANCES
--------------------
(a) Tenant shall not use, store, dispose, handle, transport, release,
discharge or generate any Hazardous Substances (as defined in subparagraph
(f) below), in, on, to, under, from or about the Premises or Building without
Landlord's prior written consent, which consent may be granted on conditions
or withheld in Landlord's sole and absolute discretion. Tenant warrants and
agrees that if Landlord grants its consent to Tenant's use, storage,
disposal, handling, release, discharge, generation or transport shall be
conducted in strict accordance with all Environmental Laws (as defined in
subparagraph (f) below). Any consent or approval by Landlord of Tenant's
use, storage, disposal, transport, handling, discharge, release or generation
of Hazardous Substances shall not constitute an assumption of risk respecting
the same nor a warranty or certification by Landlord that Tenant's proposed
use, storage, disposal, handling, release, discharge, generation or transport
of any such Hazardous Substances is safe or reasonable or in compliance with
Environmental Laws. Tenant shall maintain current all permits required for
its operations, including, without limitation, those for the use, storage,
handling, transport, discharge, release, generation and/or disposal of
Hazardous Substances.
(b) Release or discharge of Hazardous Substances into the soil or into
ground water shall constitute a material default under this Lease. Tenant
acknowledges that a Tenant of nonresidential property who knows
24
or has reason to know that a material amount of a hazardous substance has
been released on or beneath its premises is to promptly notify the
Landlord. Failure to provide such notice to Landlord shall constitute a
material default under this Lease. In the event of such default, Landlord
shall have the right to (i) terminate this Lease and collect damages,
inclusive of the cost of cleanup of any Hazardous Substances released into
the soil or groundwater; or (ii) require the cleanup of contamination while
still enforcing the remaining terms of this Lease.
(c) Tenant expressly agrees that Landlord shall have the right to
enter the Premises to inspect the Premises and/or perform an environmental
investigation and assessment of the Premises (the "Environmental
Assessment") upon reasonable notice to Tenant (not less than 72 hours), and
that this right of entry shall include the right to test for soil and
groundwater contamination. If Landlord so reasonably requires, Tenant shall
comply, at its sole cost and expense, with all recommendations contained in
any Environmental Assessment, including, without limitation, any
recommendation with respect to the precautions that should be taken with
respect to activities on the Premises or Building or any recommendations
for additional testing and studies to detect the presence of Hazardous
Substances.
(d) Tenant shall indemnify, defend, (by counsel reasonably acceptable
to Landlord), protect and hold Landlord, and each of Landlord's officers,
directors, shareholders, employees, agents, attorneys, successors and
assigns, free and harmless from and against any and all claims,
liabilities, penalties, forfeitures, losses or expenses (including, without
limitation, attorney's fees and costs and court costs) or death of or
injury to any person or damage to any property whatsoever, arising from or
caused in whole or in part, directly or indirectly, by Tenant's use,
storage, handling, transportation, disposal, release, threatened release,
discharge or generation of Hazardous Substances to, in, on, under, about or
from the Premises or Building or Tenant's failure to comply with any
Environmental Law. For purposes of the indemnity provisions hereof any acts
or omissions of Tenant, or by employees, agents, assignees, contractors or
subcontractors of Tenant or others acting for or on behalf of Tenant
(whether or not they are negligent, intentional, willful or unlawful) shall
be strictly attributable to Tenant. This indemnification shall include
without limitation (a) personal injury claims, (b) the payment of liens,
(c) diminution in the value of the Premises or Building or the property on
which they are located, (d) damages for the loss or restriction on use of
the Premises or Building, (e) sums paid in settlement of claims, (f)
reasonable attorneys' fees and costs, consulting fees and costs and expert
fees and costs, (g) the cost of any investigation of site conditions, and
(h) the cost of any repair, clean-up health or other Environmental
Assessments, remedial, closure, removal, or restoration work,
decontamination or detoxification if required by any governmental or quasi-
governmental agency or body having jurisdiction or deemed necessary in
Landlord's reasonable judgment. The indemnification contained herein shall
survive the expiration of earlier termination of this Lease. This
indemnification is intended to constitute an indemnity agreement within the
meaning of Section 9607 (e) (1) of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 USC 9607 (e) (1).
(e) Upon expiration or earlier termination of this Lease, Tenant shall
remove from the Premises any trade fixtures, furnishings and/or equipment,
including those associated with the use, storage, handling, transport,
discharge, release, generation or disposal of Hazardous Substances and
perform any closure work, investigation and environmental remedial work
required by any Environmental Laws or by any other applicable laws,
ordinances, regulations, or permits by any governmental authority having
jurisdiction. Removal and disposal of any and all such equipment or
fixtures shall be performed in strict accordance with all Environmental
Laws and all other applicable laws, regulations and government orders.
(f) As used in this Lease, the term "Hazardous Substances" shall mean
hazardous wastes, hazardous chemicals, flammable or explosive materials,
radioactive materials, toxic materials or related materials (whether
potentially injurious to persons or property and whether potentially
injurious by themselves or in combination with other materials), including,
but not limited to, any waste, chemical, substance or material now or
hereafter determined by any federal, state or local governmental agency of
authority having jurisdiction to be hazardous to human health or the
environment or that is or becomes regulated by such agency or authority
(including, but not limited to, those materials listed in the United States
Department of Transportation Hazardous Materials Table [49 CFR 172.101] as
amended from time to time), that were released to the environment,
including, without limitation, the soil, groundwater and/or air, at the
Premises or Building. As used in this Lease, the term "Environmental Laws"
shall mean any and all present and future
25
federal, state and local laws (whether under common law, statute, rule,
regulation or otherwise), requirements under permits issued with respect
thereto, and other requirements of governmental authorities relating to the
environment or to any Hazardous Substance (including, without limitation,
to the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (42 U.S.C. 9601, et seq.) as heretofore or hereafter amended
------
from time to time.
(g) Tenant shall immediately advise Landlord in writing of, and
provide Landlord with a copy of: (i) any notices of violation or potential
or alleged violation of any Environmental Law that are received by Tenant
from any governmental agency; (ii) any and all inquiry, investigation,
enforcement, clean-up, removal or other governmental or regulatory actions
instituted or threatened relating to Tenant or the Premises or Building;
and (iii) all claims made or threatened by any third-party against Tenant
or the Premises or Building relating to any Hazardous Substances.
(h) With reference to Paragraph 11 of this Lease, if the proposed
assignee's or subtenant's activities in, on, or about the Premises or
Building involve the use, handling, storage, transport, discharge, release,
generation or disposal of any Hazardous Substances other than those used by
Tenant or in quantities and processes different from Tenant's uses
permitted hereunder, it shall be reasonable for Landlord to withhold its
consent to such assignment or sublease in light of the risk of
contamination posed by such activities unless Tenant established beyond a
reasonable doubt that such assignee's or subtenant's activities pose no
greater risk of contamination to the Premises and Building than Tenant's
permitted activities and use of the Premises and Building in view of the
(a) quantities, toxicity and other properties of the Hazardous Substances
to be used by such assignee or subtenant, (b) the precautions against a
release of Hazardous Substances such assignee or subtenant agrees to
implement, (c) such assignee's or subtenant's financial condition as it
relates to its ability to pay for the cost to clean up a major release of
Hazardous Substances, and (d) such assignee's or subtenant's policy and
historical record respecting its willingness to respond to and clean up a
release of Hazardous Substances.
6. Paragraphs 27., 31., and 32. are deleted.
7. Landlord at its sole cost and expense shall provide the following
improvements to the new space as shown on Exhibit "B":
a. Demolish the existing office area
b. Cap existing plumbing within the space
c. Obtain necessary permits for completing the work
d. Demolish the wall block that divides the space in half
e. Provide two 12'x 14' knock-out openings in the wall between existing
facility and additional storage facility
f. Demolish the electrical conduit and switches in the new warehouse and
connect the warehouse lighting to Rugby Laboratories' power panel
g. Clean and re-seal the warehouse floor in the new area with two coats of
polyurethane floor sealant or equivalent floor sealant
8. Exhibit "B" is attached hereto and made a part hereof.
9. Provided this Lease is in full force and effect and the Tenant shall not be
in default hereunder, Tenant may renew and extend this Lease for three (3) years
from the fifth (5th) anniversary of the commencement date of the original term
of this Lease Amendment, by notice in writing delivered to Landlord not less
than one hundred eighty (180) days prior to the expiration date of the then
current term of this Lease. All of the covenants, conditions and
26
provisions of this Lease shall thereupon be applicable during each such
additional three (3) year term, except that the amount of the monthly rental to
be paid by Tenant to Landlord shall be adjusted by multiplying the monthly
rental during the Lease Amendment term by the Consumer Price Index--United
States, All Items for all Urban Consumers, published by the Bureau of Labor
Statistics of the Department of Labor, for the month of April 1999 (third month
prior to the last month of the then current term), and dividing the product by
such Consumer Price Index for the month of April 1994 (third month prior to
commencement of Lease Amendment term), adjusted, however, to reflect any change
in the base year of such Index which may have been made by said Bureau of Labor
Statistics between said monthly periods. For purposes of this provision, this
Lease Amendment shall be deemed to commence on July 1, 1994, and the first five
(5) year term of this Lease Amendment shall terminate on June 30, 1999. In no
event shall the amount of the rental during the option (renewal) term be less
than during the Lease Amendment term. In no event shall this renewal be in
effect if the premises are subleased or available for sublease under any of the
provisions of this lease agreement.
This renewal is personal to the Tenant named in the Lease or any Tenant's
Affiliate as defined in Paragraph 11C. If Tenant subleases any portion of the
property or assigns or otherwise transfers any interest under the Lease to any
entity other than a Tenant Affiliate prior to the exercise of the renewal
(whether with or without Landlord's consent), such renewal and any succeeding
renewal shall lapse. If Tenant subleases any portion of the property or assigns
or otherwise transfers any interest of Tenant under the Lease to any entity
other than a Tenant Affiliate after the exercise of renewal but prior to the
commencement of the respective extension (whether with or without Landlord's
consent), such renewal and any succeeding renewals shall lapse and the lease
term shall expire as if such renewal was not exercised.
10. Landlord hereby agrees to provide Tenant with the right to lease additional
space in the building commonly known as 0000 X. Xxxx, Xxxxxxxx, Xxxxxxxx, when
and if such additional space should become available during the term of this
Lease. Said right to lease shall be junior to any options for extensions held
by adjacent tenants, but shall be superior to any leases not in effect or
proposed. In the event this right to lease is exercised by Tenant, Tenant shall
have the right to lease the entire additional space consisting of 24,000 square
feet, but shall specifically not have the right to lease only part of said
additional space under the provisions of this paragraph.
In the event Tenant desires to exercise the right to lease said additional
space, Tenant shall so notify Landlord in writing not less than two hundred
seventy (270) days prior to the availability of such additional space, and shall
return an executed lease containing the same terms and conditions as does this
Lease for any such additional space within thirty (30) days after Landlord
submits said Lease to Tenant. The rental for any such additional space shall be
based on rental rates prevailing in the open market for similar properties at
the time of notice by Tenant of Tenant's desire to exercise the right granted
under this paragraph.
Landlord specifically shall not be obligated to notify Tenant of the
availability of said additional space unless Tenant has advised Landlord of
Tenant's intention to lease said additional space as provided for hereinabove.
In no event shall this right to lease additional space be in effect if the
premises are subleased or available for sublease under any of the provisions of
this Lease Agreement.
All the terms and provisions of the Lease not modified expressly or by necessary
implication herein shall be and remain in full force and effect.
Meridian Point Realty Trust VI Co. MODERN WHOLESALE DRUG
a Missouri Corporation MIDWEST, INC. d/b/a Rugby
d/b/a: Meridian Point Realty VI Co. Laboratories
By: Meridian Point Properties, Inc.,
as agent
By: /s/ Xx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------- -----------------------------
Title: XX X. XXXXXXX, XX. Title: Senior Vice President
--------------------------- -----------------------------
Senior Vice President
Meridian Point Properties, Inc.
27
LEGAL DESCRIPTION
That part of
PARCEL 1
A tract of land consisting of a part of each of lots 1 and 2 in the subdivision
of the east half of the northwest quarter and the northeast quarter of the
southwest quarter, of section 28, township 42 north, range 12 east of the third
principal meridian, (except railroad); said tract of land being bounded and
described as follow:
Beginning at the point of intersection of the southeasterly line of the right of
way, 100 feet wide, of the Chicago & Northwestern railway, with the south line
of said lot 2, (said south lot line also being the south line of the northwest
quarter of said section 28), and running thence east along the south line of
said lot 2, a distance of 592.85 feet; Thence north along a line which is
parallel with the east line of said lot 1, a distance of 269.49 feet; Thence
northeastwardly along the arc of a circle, convex to the northwest and having a
radius of 169.40 feet, a distance of 103.70 feet to a point which is 300 feet,
measured perpendicularly, southeasterly from said southeasterly line of the
right of way of the Chicago and Northwestern railway; Thence northeastwardly
along a line which is 300 feet, measured perpendicularly, southeasterly from and
parallel with said southeasterly right of way line, a distance of 448.47 feet;
Thence northwesterly along a line perpendicular to said parallel line said
distance of 300 feet to its intersection with said southeasterly right of way
line, and Thence southwestwardly along said southeasterly right of way line, a
distance of 1106.43 feet to the point of beginning, all in Xxxx County,
Illinois, and as outlined in red on Exhibit "B".
Containing 337,299 square feet of land, more or less.
EXHIBIT "A"
28
