Exhibit 10.8
THIS Lease, made and entered into this 29th day of May, 1985, by and
between Chicago Title and Trust Company, not individually, but as Trustee under
Trust Agreement dated February 1, 1977, and known as Trust Number 1069185,
hereinafter called "Lessor", and AGI Incorporated, an Illinois Corporation,
hereinafter called "Lessee";
WITNESSETH:
----------
1. Premises
--------
For and in consideration of the covenants herein contained, Lessor hereby
leases to Lessee, and Lessee hereby takes from Lessor, on the terms hereinafter
set forth, the land and building, containing 256,629 square feet, situated in
the County of Xxxx, State of Illinois, legally described on Exhibit "A" attached
hereto and made a part hereof, together with (a) the exclusive use by Lessee,
its agents, employees, customers and assigns (in common with others) of the
parking facilities provided, (b) all rights, privileges, easements and
appurtenances belonging to or in any pertaining to the said premises or the
building and other improvements of which the premises are a part, and (c) all
fixtures, appliances, furnaces, boilers, machinery, engines, motors,
compressors, dynamos, elevators, fittings, piping, connections, conduits, ducts,
partitions, and equipment and apparatus of every kind and description hereafter
affixed or attached to any such building, structure or improvement, all
machinery and equipment used or procured for use in connection with, or for the
heating, cooling, lighting, plumbing, ventilation, air-conditioning,
refrigeration, cleaning or general operation of any such building, structure or
improvement.
Said land, property and interests described in the paragraph immediately
above, are hereinafter called the "premises" or "Demised Premises".
2. Base Term
---------
The original terms of this Lease shall be for a period of seven (7) years,
commencing on June 1, 1985 (hereinafter referred to as the "Commencement Date"),
and ending at 11:59 p.m. on May 31, 1992 (unless this Lease shall sooner
terminate as provided herein) upon and subject to the written covenants,
agreements, terms, provisions and limitations hereinafter set forth, all of
which Lessee covenants and agree to perform and observe.
3. Rent
----
(a) In consideration of the leasing aforesaid, Lessee covenants and agrees
to pay to Lessor rental (hereinafter referred to as "Net Rent") for said Demised
Premises in the amount of FIVE HUNDRED SIX THOUSAND and 00/100 DOLLARS
($506,000.00) per year, payable in monthly installments in advance in the amount
of FORTY TWO THOUSAND ONE HUNDRED SIXTY-SIX and 67/100 DOLLARS ($42,166.67) on
the first day of each and every month thereafter, to and including May 1, 1992.
(b) The aforesaid Net Rent shall be in addition to and over and above all
other payments and reimbursements to be made by Lessee as hereinafter provided.
The Net Rent shall be paid to Lessor without notice or demand and without
abatement, deduction or set-off. It is the purpose and intent of Lessor and
Lessee that the Net Rent shall be absolutely net to Lessor, so that this Lease
shall yield, net, to be absolutely net to Lessor, so that this Lease shall
yield, net, to Lessor, the Net Rent specified herein and that all taxes, costs,
fees, interest, charges, expenses, reimbursements and obligations of every kind
and nature whatsoever relating to the Demised Premises
mortgage obligation against the Demised Premises) which may arise or become due
during or out of the term of this Lease shall be paid or discharged by Lessee
and Lessor shall be indemnified and saved harmless by Lessee from and against
such taxes, costs, fees, interest, charges, expenses (including, without
limitation all utility expenses), reimbursements and obligations; and in the
event of non-payment thereof, Lessor shall have, in addition to all other rights
and remedies, all the rights and remedies provided for herein or by law in the
case of non-payment of the Net Rent.
(c) All rents shall be paid in such lawful money of the United States of
America as Lessor may designate in writing at the time or from time to time
during the demised term. Lessee shall pay the Net Rent herby reserved at such
place as Lessor may from time to time previously designate in writing, and in
the absence of such designation, to Ruby North Partnership c/o Xxxxxx X.
Xxxxxxxx, 0000 Xxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000.
4. Taxes and Assessments
---------------------
(a) Lessee shall pay all taxes and assessments, general and special, water
rates, and all other governmental impositions, ordinary and extraordinary, of
every kind and nature whatsoever, unforeseen, as well as foreseen, levied or
assessed upon the said Demised Premises, or any part thereof, or upon any
buildings or improvements at any time situated thereon, or levied or assessed
upon the interest of Lessor in or under this Lease during the term of this
Lease, all of which said taxes, assessments and other impositions shall paid by
Lessee before the same shall become delinquent. Lessee shall pay all of the
general taxes levied upon said premises and the buildings or improvements
thereon for each and every year thereafter during the term hereby demised,
including the general taxes for the year 1992. If it shall appear that the
general taxes levied upon said premises and the buildings and improvements
thereon for the year 1992 shall not become due and payable during the term
hereby demised, then Lessee shall not later than the last day of the term
deposit with Lessor an amount sufficient to pay the general taxes for the year
1992, if the amount of such taxes can be determined or, if not, an amount
sufficient to pay such taxes can be determined or, if not, amount sufficient to
pay such taxes as estimated by Lessor in good faith, which amount shall be
applied to the payment of such taxes when the same become payable and any excess
refunded to, or deficiency paid by, Lessee.
(b) Nothing herein contained shall be construed to require Lessee to pay
any so-called income taxes assessed upon or in respect of the income of Lessor,
or any income taxes chargeable to, or required to be paid by, Lessor, nor shall
anything in this Lease contained be construed to require Lessee to pay any
franchise tax or any so-called inheritance, estate or transfer tax growing out
of any inheritance, devise, gift, transfer or conveyance of Lessor's estate, or
of any interest in the reversion of said real estate.
(c) Lessee shall deliver to Lessor from time to time the original receipts
(or photostatic copies thereof) showing the payment of all said taxes,
assessments and other impositions within thirty (30) days after the respective
payments evidenced thereby, but not later than thirty (30) days after the date
upon which such taxes would become delinquent; provided that, if the issuance of
tax bills or the penalty date for the payment of any taxes shall be delayed, so
that the first installment of such taxes for any year becomes payable after June
1st of the next succeeding year, or the second installment becomes payable after
October 1st, of the next succeeding year, then on any such June 1st or October
1st, as the case may be, Lessee shall deposit with Lessor the amount of such
taxes if then computable, or if not, an amount to cover such taxes estimated by
Lessor in good faith, which amount shall be applied to the payment of such taxes
when the same become payable and any excess refunded to, or deficiency supplied
by, Lessee, or all to be refunded to Lessee if Lessee shall pay such taxes.
-2-
(d) Lessor shall at its option have the right at all times during the said
demised term to pay any taxes, assessments, and interest and penalties on said
taxes and assessments after rates or other charges or impositions upon said
premises, the building and improvements at any time situated thereon, or any
interest thereon remaining unpaid after the same shall have become delinquent,
and to pay, cancel and clear off all taxes, sales, liens, charges and claims
upon or against said Demised Premises, buildings and improvements from the same,
or any of them, from time to time, and the amount so paid, including reasonable
expenses, shall be so much additional rent due from Leasee to Lessor payable
forthwith with interest as hereinafter specified from the date of such payment
thereof by Lessor until the repayment thereof to Lessor by Lessee; it being
expressly agreed, however, (all other provisions of this Lease to the contrary
notwithstanding) that Lessee shall not be required to pay, discharge nor remove
any tax, assessment, tax lien, or other imposition or charge upon or against the
Demised Premises, or any part thereof, or the building and improvements at any
time situated thereon, so long as Lessee shall in good faith proceed to contest
the same, or the validity thereof, by appropriate legal proceedings, which shall
operate to prevent the collection of the tax, assessment, lien or imposition so
contested, or the sale of the Premises or any part thereof to satisfy the same;
provided, however, that Lessee, not less than five (5) days before any tax
assessment, lien or other imposition upon the Demised Premises or the
improvements situated thereon, shall become delinquent, shall give notice in
writing to Lessor or its intention to contest the validity of the same; and
providing further that Lessee shall deposit at the time of giving such notice
and from time to time thereafter as may be necessary, an amount in the aggregate
sufficient to pay such contested tax, assessment, tax lien, or other imposition
or charge, together with all interest and penalties in connection therewith as
the same may accrue until final disposition of each contest (which amount
deposited shall be held by Lessor without interest); in lieu of a cash deposit,
Lessee may substitute Government Bonds, Treasury Bills, or other forms of
security in an amount which would be sufficient to satisfy Lessee's obligation
in such instances. It is agreed that until such legal proceedings are determined
by a non-appealable order, and provided Lessee has made a deposit as required
hereunder, Lessor shall not have the right to pay, remove or discharge the tax,
assessment, lien or other imposition so contested.
(e) It is mutually covenanted and agreed that notwithstanding the other
provisions of this Lease, Lessee shall not be under obligation to pay
installments of special assessments which are levied or assessed upon the
Demised Premises during the term hereby demised, and which installments shall
become due and payable after the expiration by lapse of time of the term hereby
demised.
(f) If under applicable law any tax charge or charges may at the option of
the taxpayer be paid in installments, Lessee may elect to pay such tax charge or
charges in installments as the same from time to time become due under
applicable law, together with such interest as may accrue thereon as the result
of such installment payment. Nevertheless if any such installments become due
and are payable after the expiration of the term of this Lease, Lessee shall
either pay all such installments accrued interest becoming due after the
expiration of this Lease not later than the date for the payment of the last
installment of the Net Rent, or shall then deposit with Lessor such cash or
securities satisfactory to Lessor sufficient to pay such installments and
interest then or thereafter accruing thereon) as and when the same become due.
(g) Monthly deposits shall not be required hereunder unless deposits are
required by the terms and conditions of a first mortgage on the Demised Premises
or the Leasehold Estate.
-3-
(a) Lessee, at its sole cost and expense, shall [****] the Demised
Premises insured for the mutual benefit of Lessor and Lessee, during the term of
this Lease, against loss or damage by fire and against loss or damage by other
risks now or hereafter embraced by "Extended Coverage", including, without
limitation, vandalism, malicious mischief, pressure vessel insurance, boiler
insurance and sprinkler insurance (if applicable), in the amount of at least
$3,616,500. The amount of said insurance shall at all times be sufficient to
prevent Lessor or Lessee from becoming a co-insurer under the terms of the
applicable policies, but in any event in an amount not less than eight percent
(80%) of the then full replacement cost. Said policy shall contain (i) an Agreed
Amount Endorsement, (ii) a Replacement Cost Endorsement, (iii) a Standard
Mortgagee Clause, and (iv) an Inflation Guard Endorsement. If a dispute arises
as to replacement cost, Lessee agrees to provide Lessor, at Lessee's expense,
with an insurance appraisal prepared by an insurance appraiser approved by
Lessor establishing full replacement cost in a manner satisfactory to the
insurance carrier.
(b) Lessee, at its sole cost and expense, but for the mutual benefit of
Lessor and Lessee, shall maintain or cause to be maintained:
(i) bodily injury and property damage liability insurance
against claims for bodily injury, death or property damage, occurring in, on, or
about the Demised Premises or any building which may be constructed by Lessee
thereon and the elevators or escalators therein and on, in or about the
adjoining alleys, streets, avenues, property and passageways, naming Lessor and
Lessee as the insureds, such insurance to afford minimum protection, during the
term of this Lease, of not less than One Million Dollars ($1,000,000.00) in
respect to bodily injury or death to any one person, and of not less than One
Million Dollars ($1,000,000.00) in respect of any one accident, and of not less
than Fifty Thousand Dollars ($50,000.00) for property damage with not more than
One Thousand Dollars ($1,000.00) deductible;
(ii) boiler and pressure vessel insurance, provided any building
upon and after its construction, contains a boiler or other pressure vessel;
(iii) war risk insurance if and when a state of war or national or
public emergency exists, and if and when such insurance is obtainable at
standard rates, in an amount not less than the full insurable value thereof, or
in the maximum amount of insurance obtainable;
(iv) rent loss or business interruption insurance in the amount
of at least $269,460 or equal to the rental income generated from the Demised
Premises for six consecutive months, whichever is greater.
(v) Comprehensive General Public Liability and Public Damage
Insurance for an amount not less than $1,000,000 combined single limit for
claims arising from any accident or occurrence in or upon the Demised Premises;
(vi) Flood Insurance whenever in the opinion of Lessor such
protection is necessary; and
(vii) such other insurance policies as may be reasonably required
from time to time by Lessor, upon written notice from Lessor to Lessee.
(c) All policies of insurance shall provide that the proceeds thereof
shall be payable to Lessee and Lessor as their respective interest may appear,
and if and so long as there shall be a mortgage
-4-
[**************************] shall also be payable to the holders of such
mortgage, as their interest may appear.
(d) All policies of insurance shall be written [****] companies and
amounts in each company satisfactory to Lessor and the holder of any mortgage on
the Premises and shall be written in such form as shall be acceptable to such
mortgages and Lessor. Such policies shall be delivered to Lessor accompanied by
evidence satisfactory to Lessor and the holder of said mortgage that the
premiums thereon have been paid, not less than thirty (30) days prior to the
expiration of any then current policy, except that during such period of time as
Premises are encumbered by the lien of any mortgage, then a duplicate original
of such policies shall be delivered to the holder thereof (if obtainable or else
a certificate evidencing said coverage) and in such event Lessee covenants to
deliver or cause to be delivered to Lessor a certificate or certificates of the
existence of such policies accompanied by evidence satisfactory to Lessor that
the premiums thereof have been paid, not less than thirty (30) days prior to the
expiration of any then current policy, together with the endorsement on such
certificate or certificates whereby the insurance company or companies agree to
give Lessor and such mortgagee notice of at least thirty (30) days or more, of
any cancellations thereof, or any change therein.
(e) Subject to the rights of any mortgagee of the Premises, the loss, if
any, under such policies, except those for public liability, shall be adjusted
with the insurance company or companies (a) by Lessee if the loss is less than
$25,000.00, or (b) by Lessee and Lessor if the loss equals or exceeds
$25,000.00. The loss so adjusted shall, provided the Premises are not then
encumbered by a mortgage, be paid to Lessee if the same is less than 25,000.00
and to Lessor if the same equals or exceeds $25,000.00. If paid to a mortgagee,
such proceeds must be held by such mortgagee subject to the obligation of Lessor
to have the property repaired or rebuilt, and in such event the provisions of
Paragraph 10 shall apply to the application of such proceeds in the same manner
as though such mortgagee were Lessor hereunder. In any event the insurance
monies so received by Lessor or Lessee shall be used as provided in Paragraph 10
this Lease. All such policies shall provide that the loss, if any, thereunder
shall be adjusted and paid as hereinabove provided, subject, however, to the
rights of any mortgagee whose interest may be included in any such policy or
policies. Losses under public liability policies shall be adjusted by Lessee.
In case Lessee shall at any time neglect to secure the insurance, as herein
provided, then Lessor may after five (5) days's written notice to Lessee, at its
election (and in addition to any other remedies of Lessor hereunder) procure or
renew such insurance and add the amount paid therefor to the rent next
thereafter falling due under this Lease, together with interest thereon as
hereinafter specified from the date of payment thereof by Lessor until the same
shall be repaid by Lessee.
6. Compliance with Laws and Regulations
------------------------------------
Lessee agrees that it will comply with and conform to all laws and
ordinance (Municipal, States and Federal) and any and all lawful requirements
and orders of any properly constituted Municipal, State or Federal Board of
Authority, or other Board exercising similar functions, present or future, in
any way relating to the use or occupancy of the Demised Premises throughout the
entire term of this Lease. Lessee also agrees to comply with recommendations of
any insurance company, inspection bureau (such as the Illinois Inspection and
Rating Bureau) or similar agency with respect to the premises. Lessee's
compliance with the above laws, ordinances, and recommendations shall not,
however, apply to any structural changes.
Lessee agree not to; (a) permit any unlawful or immoral practice to be
carried on or committed on the Demised Premises; (b) make any use of or allow
the Demised Premises to be used in any
-5-
of insurance thereof (c) keep or use or permit to [***] kept or used on said
premises any inflammable fluids or [***] without in each instance obtaining
the prior written approval [***] Lessor; (d) use the premises for any purpose
whatsoever which might create a nuisance; (e) deface or injure the building or
premises; (f) overload the floors; or (g) commit or suffer any waste.
Lessee agrees not to install any electrical equipment that overloads lines
servicing the Demised Premises. In connection with the installation or use of
any electrical equipment Lessee shall, at Lessee's own expense, make form time
to time whatever changes are necessary to comply with the requirements of the
insurance underwriters, governmental authorities, the Illinois Inspection Bureau
or of insurance inspectors designated by Lessor.
7. Repairs
-------
(a) With the exception of Lessor's responsibilities under Paragraph 10
herein, Lessee shall, at its own cost and expense, make all necessary repairs to
and replacements of the Demised Premises, interior and exterior, structural and
nonstructural, ordinary and extraordinary all in accordance with good standards
for operation and maintenance. Lessee shall keep the Demised Premises in good
condition and repair and in clean and neat order during the entire term of this
Lease.
(b) Lessee, at Lessee's sole cost and expense, shall maintain and repair
the structural portions of the foundation, roof, exterior walls, structural
members and columns, and any defects or damage to imbedded plumbing and
electrical circuitry caused by structural defects in the roof, exterior walls,
structural members and columns of the premises.
(c) When used in this paragraph the term "repairs" shall include all
necessary replacements, renewals, alterations, additions and betterments. All
repairs made by Lessee shall be at least equal in quality and class to the
original work.
(d) With the exception of Lessor's responsibilities under Paragraph 10
herein, Lessor shall not be required to make any repairs or alterations in or
to the Demised Premises. Lessee assumes the full and sole responsibility for the
condition, operation, repair, replacement and maintenance of the Demised
Premises.
(e) By execution of this Lease, Lessee acknowledges that the Demised
Premises and the improvements thereon have been received by Lessee in good and
first class condition.
8. Indemnification
---------------
Except for negligence of Lessor, Lessor's beneficiaries and their agents
and employees, Lessee waives all claims against Lessor and Lessor's
beneficiaries and their agents and employees for injury to persons or damage to
property sustained by Lessee or any person claiming through Lessee resulting
from any occurrence in or upon the Demised Premises or building of which they
shall be a part, including, but not limited to, such claims for damages
resulting from: (a) any equipment or appurtenances becoming out of repair; (b)
the Demised Premises or the building being out of repair; (c) injury or damage
done or occasioned by wind, water, flooding, freezing, fire, explosion,
earthquake, excessive heat or cold, vandalism, riot, or disorder or other
casualty; (d) any defect in or failure of plumbing, heating or air-conditioning
equipment, electric wiring or installation thereof, gas, water, steam pipes,
walks; (e) broken glass, (f) the backing up of any sewer pipe or downspout; (g)
the bursting, leaking or running of any tank, tub, washstand, water closet,
waste pipe, drain, cooling coil or any
-6-
Premises; (h) the escape of steam or hot water; (i) water, snow or ice being
upon or coming through the roof, walks, or [****] other place upon or near such
building or premises or otherwise; [***] the falling of any fixture, plaster or
stucco; and (k) any act, omission, or negligence of co-tenants or of other
persons or occupants of said building or of adjoining or contiguous buildings or
of owners of adjacent or contiguous property.
Except for those injuries or damages arising out of the negligence of
Lessor, Lessor's beneficiaries or their agents or employees, Lessee agrees to
indemnify, defend and hold harmless Lessor and Lessor's beneficiaries and their
agents and employees, from and against all claims, liabilities, losses, damages
and expenses for injury to or death of any person or loss of or damage to
property in or upon said Demised Premises and including the person and property
of Lessee, its employees, agents, invitees, licensees or others, it being
understood and agreed that all property kept, stored or maintained in or upon
said premises shall be at the risk of Lessee. The foregoing indemnity shall be
in addition to Lessee's obligation to supply the insurance as required by
Paragraph 5, and not in discharge of or substitution for same.
If any damage to the Demised Premises or other property of Lessor results
from any act or neglect of Lessee, its agents or employees, not covered by
insurance, Lessor may, at its option, repair such damage, and Lessee shall
promptly on demand reimburse Lessor for the cost thereof.
9. Liens
-----
Lessee agrees to keep the Demised Premises, and every part thereof, at all
times during the term of this Lease, free and clear of mechanics' liens and
other liens for labor, service, supplies, equipment or material, funished to the
Demised Premises, and that it will at all times fully and promptly pay and
discharge and wholly protect and save harmless Lessor against any and all
demands or claims which may or could ripen into such liens or claims therefor.
10. Damage or Destruction
---------------------
In the event the Demised Premises are damaged by fire, explosion, or other
casualty or occurrence, Lessor shall repair or rebuild the Demised Premises.
Lessor agrees that as soon as it is reasonably able, but not later than three
months after receipt of insurance proceeds, it will commence to repair or
rebuild, and that it must have the Demised Premises properly repaired or rebuilt
for Lessee within 180 days from the date of damage.
The proceeds of insurance policies covering fire and other hazards shall be
applied to fully restore the premises as nearly as possible to their original
condition or to restore the premises so that it will be equal in value to its
original condition. Provided however, that if said damage occurs during the 11th
through 15th year of the original term of this Lease, or during any renewal
periods, Lessor may elect to rebuild or terminate this Lease upon giving written
notice of such election in writing to Lessee within 45 days of the happening of
the event causing the damage. Should Lessor decide to rebuild, Lessor agrees
that it must have the Demised Premises properly repaired for Lessee within 180
days from the date of damage.
Except as provided in Paragraph 16, no damage to or destruction of any
improvement or building either by fire or other casualty or hazards, or in any
other manner, or any condition rendering the Demised Premises untenantable or
any permanant or temporary revocation or modification of any license, permit,
privilege or right to occupy, use or maintain any street or sidewalk or any
permanant or temporary deprivation of any right, privilege or
-7-
easement appurtenence of any [****] operate as or be deemed an eviction partial
or entire, of Lessee or in any way terminate, diminish, suspend, xxxxx or impair
the obligation of Lessee to pay the full rental herein provided or the
obligation of Lessee to fully observe and perform all covenants on the part of
Lessee herein contained or any other obligation of Lessee herein reserved for
the benefit of Lessor. Lessee agrees that there shall be no abatement of rent
during the period of time in which the Demised Premises are being repaired or
rebuilt, even though the Demised Premises may be untenantable in whole or in
part during said period of time. Lessee shall have no claim against Lessor for
any damage suffered by reason of any such damage, destruction, repair or
restoration.
If Lessor is required or elects to rebuild the Demised Premises as herein
provided, Lessee shall repair or replace its leasehold improvements including
its fixtures, furniture, furnishings, floor coverings and equipment, and stock
in trade, and if Lessee has closed, Lessee shall promptly reopen for business.
Notwithstanding the foregoing, the rights and obligations of Lessor and
Lessee under this paragraph 10 shall be subject to the terms and conditions of
any mortgage of the Demised Premises by Lessor.
11. Alterations
-----------
Lessee shall not attach any fixtures or articles to any portion of the
Demised Premises nor shall Lessee make any alterations, additions, improvements,
changes or perform other work whatever in and to the Demised Premises which
affect the structural components of the building or the general exterior
appearance of the Demised Premises without in each instance obtaining the prior
written approval of Lessor. Any alterations, additions, improvements changes or
other work necessary or required to maintain the Demised Premises in a suitable
condition for Lessee's business purposes under the provisions of this Lease
shall be made by Lessee at Lessee's sole cost and expense.
Lessee agrees, at Lessee's expense, to install all trade fixtures and such
fixtures shall remain the property of Lessee, but same shall not be installed
without the prior written approval of Lessor in instances where the general
exterior appearance of the Demised Premises is altered. It is further agreed
that all trade fixtures belonging to Lessee which are, or may be, put into the
Demised Premises during the term hereof, whether exempt or not from sale under
execution and attachment under the laws of the State of Illinois, shall at all
times be subject to a first lien in favor of Lessor, for all rent or other sums
which may become due to Lessor from Lessee under this Lease.
12. Utilities
---------
Lessee shall apply to the applicable utility company or municipality for
water electricity, gas, telephone and all other utility services required by
Lessee for use in the Demised Premises.
13. Surrender of Premises and Holdover
----------------------------------
Lessee, upon expiration or termination of this Lease, either by lapse of
time or otherwise, agrees peaceably to surrender to Lessor the Demised Premises,
including the alterations, additions, improvements, changes and fixtures other
than Lessee's movable trade fixtures, in broom-clean condition and in good
repair, except for damage caused by acts of God, ordinary use and wear and
damage by fire or casualty. Lessee agrees to remove Lessee's trade fixtures upon
any such expiration or termination and to repair all damage to the Demised
Premises caused by such removal. Lessee's failure to remove all or part of
Lessee's trade fixtures upon such expiration
-8-
trade fixture and, it Lessor elects to remove all or any part of said fixtures,
the cost of such removal, including [***] and damage to the Demised Premises
caused by such [***] be paid by Lessee. In the event that Lessee shall
fail to surrender the Demised Premises as provided above, Lessee agrees to pay
Lessor, as liquidated damages a sum equal to twice the rental as provided for in
this Lease to be paid by Lessee to Lessor for all the time Lessee shall so
retain possession of the Demised Premises or any part thereof plus any
additional rental payments provided for in this Lease; provided, however, that
exercise of Lessor's rights under this clause shall not be interpreted as a
grant of permission to Lessee to continue in possession.
If Lessor shall at any time be entitled to rental or liquidated damages
pursuant to any of the covenants, conditions or agreements of this Lease either
(1) after termination of Lessee's right to possession without termination of
this Lease or (2) after the termination of this Lease, Lessor shall recover and
Lessee agrees to pay all sums due under the provisions of this Lease.
14. Assignment and Subletting
-------------------------
Lessee shall not sell, assign, mortgage, pledge or in any manner
transfer this Lease or any interest therein without in each case the consent in
writing of Lessor first had and obtained; nor permit any transfer of Lessee's
interest created hereby or allow any lien upon Lessee's interest by operation of
law. Lessee shall be permitted to sublet portions of the Demised Premises to
credit worthy subtenants without the consent of Lessor. In the event of any
assignment or subletting, Lessee shall remain liable for the performance of all
of its obligations hereunder.
15. Default of Tenant
-----------------
It is agreed that (i) if Lessee vacates or abandons the Demised Premises or
permits the same to remain vacant or unoccupied for a period of ten (10) days,
or (ii) if the rent, or any part thereof shall be unpaid for five (5) days after
written notice thereof to Lessee, or (iii) if default shall be made in the
prompt and full performance of any covenant, condition or agreement or breach of
performance shall continue for more than a reasonable time (in no event to
exceed thirty (30) days after written notice to Lessee, specifying such default,
or breach of performance), or (iv) if any proceedings shall be commenced to
declare Lessee bankrupt or insolvent or to obtain relief under any chapter or
provision of any bankruptcy or debtor relief law or act or to reduce or modify
Lessee's debts or obligations or to delay or extend the payment thereof, or if
any assignment of Lessee's property be made for benefit of creditors, or if a
receiver or trustee be appointed for Lessee or Lessee's property or business,
then Lessor may treat the occurrence of any one or more of the foregoing events
as a breach of this Lease and thereupon at its option, without further notice or
demand of any kind to Lessee or any other person, may have, in addition to all
other legal or equitable remedies, the following described remedies:
(a) Lessor may elect to terminate this Lease and the term created hereby
in which event Lessor forthwith may repossess the Demised Premises and Lessee
shall pay at once to Lessor as liquidated damages a sum of money equal to the
rental provided in Paragraph 3 of this Lease to be paid by Lessee to Lessor for
the balance of the stated term of this Lease less the fair rental value of the
Demised Premises for said period.
(b) Lessor may elect to terminate Lessee's right of possession without
termination of this Lease in which event Lessee agrees to surrender possession
and vacate the Demised Premises immediately and deliver possession thereof to
Lessor and Lessee hereby grants to
-9-
Premises, in whole or in part, with or without process of law to dispossess
Lessee of the Demised Premises or any [****] hereof and to expel or remove
Lessee and any other person, firm [****] corporation who may be occupying or
within the Demised Premises or any part thereof and remove any and all property
therefrom without terminating the Lease or releasing Lessee in whole or in part
from Lessee's obligation to pay rent and perform the covenants, conditions and
agreements to be performed by Lessee as provided in this Lease; without being
deemed in any manner quilty of trespass, eviction or forcible entry or detainer;
and without relinquishing Lessor's right to rental or any other right of Lessor
under this Lease or by operation of law.
Upon and after entry into possession without terminating the Lease, Lessor
may, but shall not be obligated to relet all or any part to the Demised Premises
for the account of Lessee for such rent and upon such terms and to such person,
firm or corporation and for such period or periods as Lessor in Lessor's sole
discretion shall determine, and Lessor shall not be required to accept any
tenant offered by Lessee, to observe any instruction given by Lessee about such
reletting or to do any act or exercise any care or diligence with respect to
such reletting or to the mitigation of damages of Lessee. For the purpose of
such reletting, Lessor may decorate or make repairs, changes, alterations or
additions in or to the Demised Premises to the extent deemed by Lessor desirable
or convenient. All such consideration so received shall be the sole property of
Lessor; provided, however, if the consideration collected by Lessor upon any
such reletting for Lessee's account is not sufficient to pay the rental reserved
in this Lease together with an amount equal to five percent (5%) of the rent
provided for in any new Lease as liquidated damages and the cost of repairs,
alternations, additions redecorating and Lessor's other expenses, Lessee agrees
to pay to Lessor the deficiency upon demand.
The service of five-day notice, demand for possession, a notice that the
tenancy hereby created will be terminated on the date therein named, institution
of an action of forcible detainer or ejectment or the entering of a judgement
for possession in such action, or any other act or acts resulting, in the
termination of Lessee's right to possession of the Demised Premises shall not
relieve Lessee from Lessee's obligation to pay the rent hereunder during the
balance of the term or any extension thereof, except as herein expressly
provided. Lessor may collect and receive any rent due from Lessee; and the
payment thereof shall not constitute a waiver of or affect any notice or demand
given, suit instituted or judgement obtained by Lessor, or be held to waive,
affect, change, modify or alter the rights or remedies which Lessor has in
equity or at law or by virtue of the Lease.
The acceptance of liquidated damages by Lessor under any of the provisions
of this Lease shall not preclude Lessor from the enforcement of any of the
covenants or agreements of this Lease, nor shall any other act which infers
recognition of the tenancy operate as a waiver of Lessor's right to terminate
this Lease or operate as an extension of this Lease.
16. Eminent Domain
--------------
In the event of condemnation by eminent domain (or similar law authorizing
the involuntary taking of private property, which shall include a sale in lien
thereof to a public body) of all or a portion of the Demised Premises by any
public, quasi-public or other authority or entity legally endowed with said
power, the respective rights and obligations of the parties hereto shall be as
follows:
(a) If the entire Demised Premises is taken under the power of eminent
domain, or sold under the threat of the exercise of said power (all of which are
herein call "condemnation"), this lease
-10-
possession, and rent payable hereunder shall be apportioned as of such
termination date.
(b) If more than 50% of the floor area of the improvements in the Demised
Premises is taken by condemnation, Lessee may, at Lessee's option, to be
exercised in writing within thirty (30) days after Lessor has given Lessee
written notice of such taking (or in the absence of such notice, within ten (10)
days after the condemning authority shall have taken possession) terminate this
Lease as of the date the condemning authority takes such possession. In the
event Lessee does not terminate this Lease or in the event the option to
terminate does not arise because the area condemned does not meet the maximum
percentage indicated, this Lease shall remain in full force and effect as to the
portion of the premises remaining, except that the rent shall be reduced in the
proportion that the floor area taken bears to total floor area of the Demised
Premises prior to taking.
In any event, Lessee shall have no claim against Lessor by reason of such
taking or termination and shall not have any claim or right to any portion of
the amount that any may be awarded or paid to Lessor as a result of any such
taking. The entire compensation awarded in or by reason of said eminent domain
proceedings shall belong to Lessor without any deduction therefrom for any
present or future estate or interest of Lessee and Lessee hereby assigns to
Lessor all of Lessee's right, title and interest in and to any and all such
compensation together with any and all rights, estate and interest of Lessee now
existing or hereafter arising in and to the same or any part thereof.
17. Subordination of Lease
----------------------
Lessor reserves the right to subordinate this Lease at all times to the
lien of any mortgage, mortgages, trust deed or trust deeds now or hereafter in
existence. Lessee agrees to execute, upon demand, such further instruments
subordinating this Lease to the lien of any such mortgage, mortgages, trust deed
or trust deeds as shall be desired by Lessor, or any mortgagees or proposed
mortgagees or trustees under trust deeds, upon condition that Lessee shall have
the right to remain in possession of the Demised Premises under the terms of
this Lease, notwithstanding any default in any such mortgage, mortgages, trust
deed or trust deeds, or after foreclosure thereof, so long as Lessee is not in
default under any of the covenants, conditions and agreements contained in this
Lease. As herein used, the term "foreclosure" shall include both judicial
proceedings and the exercise of a power of sale under any mortgage or deed of
trust without recourse to judicial proceedings.
If any mortgagee or trustee elects to have this Lease and the interest of
Lessee hereunder superior to any such interest or right and evidences such
election by written notice given to Lessee, then this Lease and the interest of
Lessee hereunder shall be deemed superior to any such mortgage or trust deed,
whether this Lease was executed before or after such mortgage or trust deed, and
in this event such mortgagee or trustee shall have the same rights with respect
to this Lease as if it had been executed and delivered prior to the execution
and delivery of the mortgage or trust deed and had been assigned to such
mortgagee or trustee.
Lessee shall execute and deliver whatever instruments may be required for
such purposes, and in the event Lessee fails so to do within ten (10) days after
demand in writing, Lessee does hereby make, constitute and irrevocable appoint
Lessor's agent as its attorney in fact and in its name, place and stead so to
do.
18. Estoppel Certificate
--------------------
At any time, and from time to time, Lessee agrees, upon request in writing
from Lessor, to execute, acknowledge and deliver to Lessor, a statement in
writing certifying that this Lease is
-11-
[****] [****] [****] [****] [****] [****] [****] [****] [****] [****]
modifications, that the same is in full force and [****] as modified and stating
the modifications) and the dates to [****] rent and other charges have been
paid.
19. Remedies
--------
All rights and remedies of Lessor herein created or otherwise existing at
law or equity are cumulative and the exercise of one or more rights or remedies
shall not be taken to exclude or waive the right to the exercise of any other.
All such rights and remedies may be exercised and enforced concurrently and
whenever and as often as Lessor shall deem desirable.
The failure of Lessor to insist upon strict performance by Lessee of any of
the covenants, conditions and agreements of this Lease shall not be deemed a
waiver of any of Lessor's rights or remedies concerning any subsequent or
continuing breach or default by Lessee of any of the covenants, conditions, and
agreements of this Lease. No surrender of the Demised Premises shall be effected
by Lessor's acceptance of rental or by any other means whatsoever unless the
same be evidenced by Lessor's written acceptance of such as a surrender.
20. Quiet Enjoyment
---------------
Lessor represents that at the time of the execution of this Lease the
Demised Premises may lawfully be used for Lessee's intended purposes and further
agrees that so long as Lessee is not in default hereunder and so long as Lessee
is not in violation of any "Rules and Regulations" as shown in Xxxxxxxxx 00,
Xxxxxx shall have the quiet enjoyment of the Demised Premises without let or
hindrance on the part of Lessor, and Lessor will defend Lessee in the peaceful
and quiet enjoyment of the Demised Premises against the claims of all persons
claiming by, through or under Lessor.
21. Security Deposit
----------------
Lessee has deposited with Lessor a Security Deposit of THREE HUNDRED THIRTY
NINE THOUSAND FIVE HUNDRED EIGHT and 80/100 DOLLARS ($39,508.80) for the
faithful performance of each and every covenant, condition and agreement of
this Lease. Lessor shall have the right, but not the obligation, to apply the
Security Deposit, in whole or in part, in payment of any unpaid rent or other
amount due because of an unperformed covenant or agreement by Lessee. Lessee's
right to possession of the premises for non-payment of rent or for any other
reason, shall not be affected by the fact that Lessor holds security. Lessee's
liability is not limited to the amount of the Security Deposit. On termination
of the Lease and full payment of all amounts due and performance of all Lessee's
covenants and agreements (including surrender of the Demised Premises in
accordance with Paragraph 13), the Security Deposit or any portion thereof
remaining unapplied shall be returned to Lessee without interest.
Lessee hereby agrees not to look to the mortgagee of the Premises, as
mortgagee, mortgagee in possession, or successor in title to the Premises, for
accountability for any security deposit required by Lessor hereunder, unless
said sums have actually been received by said mortgagee as security for Lessee's
performance or this Lease.
22. Interest Upon Arrears
---------------------
(a) It is further covenanted and agreed that each and every installment of
rent accruing under the covenants of this Lease, which shall not be paid when
due, shall bear interest at the rate of thirteen percent (13%) per annum from
the date when the same is payable under the terms of this Lease until the same
shall be paid to Lessor, and that all other sums becoming due or payable to
Lessor under this Lease, including all monies expended by Lessor pursuant to the
provisions of this Lease, or on account of any default by
-12-
this Lease (which monies shall be and become additional rental due hereunder and
shall be payable forthwith when [****] [****] Lessor), shall in like manner bear
interest from the [****] [****] when the same shall become due and payable to
Lessor at such [****] of thirteen per cent (13%) per annum until the same shall
be paid by Lessee to Lessor. Any such monies expended by Lessor shall be
considered a business loan within the purview of Chapter 74, Section 4 (c) of
the Illinois Revised Statutes (1975).
(b) If by the terms and conditions of this Lease, Lessor shall exercise
its option to make payment of any sums due and owning by Lessee, or which by the
terms of this lease shall be paid by Lessee, the sums so paid by Lessor shall
bear interest at the rate of thirteen percent (13%) per annum. Such advances
shall be considered a business loan made by Lessor to Lessee and shall be deemed
to be within the purview of Chapter 74, Section 4 (c) of the Illinois Revised
Statutes, 1975, and if not paid on demand shall be considered a default by
Lessee in the payment of rent and Lessor may, in addition to any other remedy
available to it, exercise the remedy set forth in this Lease for the non-payment
of rent.
23. Lessee's Option to Purchase
---------------------------
(a) Provided that Lessee is not in default, Lessee shall have the
following option to purchase the Premises during the final sixty (60) days of
the term of this Lease:
(i) Lessee shall have the right to purchase all but not less than
all of the Premises then leased hereunder during the Lease term, or any
extension thereof, at a price equal to the "fair market value" (as defined).
Lessee shall give Lessor written notice of its election to exercise the purchase
option provided for in this Paragraph and of the desired closing date for the
purchase. Said notice shall be given at least 180 days prior to the desired
closing date. Payment of the option price shall be made on the closing date, in
funds there current, against delivery of a good and sufficient Trustee's Deed
transferring and conveying to Lessee all right, title and interest of Lessor in
and to the Premises. Lessor shall not be required to make any representation or
warranty as to the condition of the Premises or any other matters.
(ii) The "fair market value" shall be an amount mutually agreed upon
by Lessor and Lessee; provided that if Lessor and Lessee are unable to agree
upon the fair market value of the Premises within 30 days after receipt by
Lessor of the notice of Lessee's election to exercise the purchase option, the
fair market value shall be determined by an appraiser selected by mutual
agreement of Lessor and Lessee. If Lessor and Lessee are not able to agree upon
an appraiser, or if the fair market value is not so determined within 30 days
after receipt by Lessor of Lessee's election to purchase, each party shall
select an appraiser and the two appraisers so selected shall choose a third
appraiser. The three appraisers so selected shall then determine the fair market
value of the Premises.
(iii) Unless Lessee has given Lessor notice as required in connection
with exercise of the foregoing option, at least 180 days prior to the end of the
term of this Lease, then all of the Premises leased hereunder shall be returned
to Lessor in accordance with Paragraph 13 hereof at the end of the Lease term.
(b) Notwithstanding any election of Lessee to purchase, the provisions of
this Lease shall continue in full force and effect until the date of purchase
and the passage of ownership of the premises to Lessee.
(c) With its notice of election to purchase, Lessee shall include a
cashier's or certified check, payable to the order of Lessor, in the amount of
ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00) as a deposit and to apply on
account of the payment of
-13-
receipt of such notice, deliver to Lessee a preliminarly Commitment for Title
Insurance issued by a Title Insurance Company reasonably acceptable to Lessee
covering the date of such [****] in the amount of the purchase price, subject
only to matters and things to which this Lease is made subject, current real
estate taxes and other liens which under the provisions of this Lease Lessee is
obligated to pay or discharge, a first mortgage to Mutual Benefit Life in the
original principal amount of THREE MILLION and 00/100 DOLLARS ($3,000,000.00)
and any other liens which have been established by Lessee, the general
exceptions or so-called "stock exceptions" at the time generally contained in
Owner's Policies issued by such Title Insurance Company and this Lease and the
rights of Lessee and other persons claiming under Lessee. Upon consummation of
the said sale, Lessee may take title subject to the existing first mortgage
should the mortgage consent, and if so, it shall receive credit for the then
outstanding balance due thereunder. There shall be no further prorations between
the parties, other than advanced rents and Lessor agrees to assign its interest
to Lessee in this Lease and in all policies of insurance for which premiums
have been paid by Lessee.
25. Arbitration
-----------
In each case specified in this Lease in which it shall become necessary to
resort to arbitration, such arbitration shall be determined as provided in this
paragraph 24. The party desiring such arbitration shall give written notice to
that effect to the other party, specifying in said notice the name and address
of the person designated to act as arbitrator on its behalf. Within fifteen (15)
days after the service of such notice, the other party shall give written notice
to the first party specifying the name and address of the person designated to
act as arbitrator on its behalf. If the second party fails to notify the first
party of the appointment of its arbitrator, as aforesaid, within or by the time
above specified, then the appointment of the second arbitrator shall be made in
the same manner as hereinafter provided for the appointment of a third
arbitrator in a case where the two arbitrators appointed hereunder and the
parties are unable to agree upon such an appointment. The arbitrators so chosen
shall meet within ten (10) days after the second arbitrator is appointed and if,
within thirty (30) days after the second arbitrator is appointed, the said two
arbitrators shall not agree upon the question in dispute, they shall themselves
appoint a third arbitrator who shall be a competent and impartial person; and in
the event of their being unable to agree upon such appointment within ten (10)
days after the time aforesaid, the third arbitrator shall be selected by the
parties themselves if they can agree thereon within a further period of fifteen
(15) days. If the parties do not so agree, then either party on behalf of both,
may apply to the then Chief Judge of the United States District Court for the
Northern District of Illinois, Eastern Division, for the appointment of such
third arbitrator and the other party shall not raise any question as to the
Court's full power and jurisdiction to entertain the application and make the
appointment. The decision of the arbitrators so chosen shall be given within a
period of thirty (30) days after the appointment of such third arbitrator. Each
party shall pay the fees and expenses of the one of the two original arbitrators
appointed by such party, or in whose stead as above provided, such arbitrator
was appointed, and the fees and expenses of the third arbitrator, if any, shall
be borne equally by both parties. All arbitration as provided herein shall take
place in the City of Chicago, County of Xxxx, State of Illinois.
In the event a panel of three arbitrators cannot reach a unanimous
decision, then a binding and conclusive determination shall be made as follows:
the decision which any two so appointed and acting shall concur.
-14-
Lessor and Lessee agree to execute, acknowledge, [****] duplicate
originals, and deliver to each other, a Memorandum of Lease in the form of
Exhibit "B" attached hereto in order that it may be recorded in the Recorder's
Office of Xxxx County, Illinois, as evidence and notice of the existence of this
Lease and of the rights, titles and interests of Lessor and Lessee hereunder.
26. Rules and Regulations
---------------------
(a) All loading and unloading of goods shall be done only in the areas and
through the entrances designated for such purpose by Lessor;
(b) All garbage and refuse shall be kept in the kind of container
specified by Lessor, shall be placed in the areas specified by Lessor and
prepared for collection in the manner and at the times and places specified by
Lessor;
(c) Lessee shall keep the Demised Premises at a temperature sufficiently
high to prevent freezing of water in pipes and fixtures;
(d) Lessee shall not make or permit any objectionable noise or odor to
emanate from the Demised Premises and no person shall use the Demised Premises
as sleeping quarters, sleeping apartments or lodging rooms;
(e) Lessee shall obtain all permits or licenses necessary to conduct its
business;
In the event of any breach of any rules and regulations herein set forth or
any amendments or additions, thereto, Lessor shall have all remedies in this
Lease provided for default of Lessee.
27. Signs
-----
Lessee may install, maintain and replace on the exterior walls of the
Demised Premises a sign or signs, provided that the erection of said sign(s) by
Lessee shall first be approved by appropriate governmental authorities and
Lessor prior to being erected. Lessee shall make all repairs required by reason
of the installation and maintenance of its sign(s), except damage caused by the
acts or omissions of Lessor, its agents, servants or employees.
28. Service of Notice
-----------------
Any notice or demand or statement of interest which either party hereto may
desire to serve upon the other in furtherance of any provision of this Lease
shall be sufficiently served if the same be enclosed in a sealed envelope, which
envelope shall be deposited in the United States Post Office, postage prepaid
and certified or registered, return receipt requested and addressed in the
instance of Lessor to Chicago Title and Trust Company, Attention: Trust
Department, 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx and to Xxxxxx X.
Xxxxxxxx, 000 Xxxxx Xxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, or any other
address which Lessee may be notified in writing by Lessor, and in instance of
Lessee to AGI Incorporated, 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx
00000, or such other address as Lessee shall designate by notice. Such notice
shall be deemed to have been served at the time of receipt thereof.
29. Access To Premises
------------------
Lessee agrees that Lessor, Lessor's beneficiaries and their agents,
employees or servants or any person authorized by Lessor may enter the Demised
Premises during normal business hours, except that Lessor shall be permitted to
enter the Demised Premises at any time when Lessor believes there is an
emergency situation which warrants
-15-
additions, improvements, changes or alterations to the Demised Premises, as
Lessor may elect to make, and to [****] same to prospective purchasers of the
Demised Premises or to respective tenants and to place upon the Demised Premises
at such places as may be determined by Lessor "for rent" signs or notices during
the last one hundred eighty (180) days of the term hereof and Lessee undertakes
and agrees that neither Lessee nor any person within Lessee's control will
interfere with such signs or notices. Such entry, inspection and repairs,
additions, improvements, changes or alterations as Lessor may make on the
Demised Premises shall not constitute eviction of Lessee in whole or in part and
the rent reserved shall in no way xxxxx while such work is being done by reason
of loss or interruption of business of Lessee or otherwise.
If Lessee or Lessee's agents or employees shall not be present to permit
entry into the Demised Premises at any time and for any reason when entry
therein shall be necessary or permissible under this Lease, Lessee or Lessor's
beneficiaries or their agents or employees may enter same by reasonable means.
30. Successors and Assigns
----------------------
This Lease shall inure to the benefit of and be binding upon the heirs,
executors, administrators, successors and assigns of Lessor, and each of them,
and the successors and assigns of Lessee.
31. Entire Agreement
----------------
This instrument contains the entire and only agreement between the parties,
and no oral statements or representations or prior written matter not contained
in this instrument shall have any force or effect. This Lease shall not be
modified in any way or terminated, except by a writing executed by both parties.
32. Partial Invalidity
------------------
If any term, covenant, condition or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease shall not be affected
thereby and each term, covenant, condition and provision of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
33. Force Majeure
-------------
Whenever Lessee or Lessor shall be required hereunder or by law to perform
any provisions of this Lease other than the payment of money or to perform or
comply with any law, order, ordinance, or building, zoning or other regulation,
requirement or rule of any governmental authority having jurisdiction, or to
discharge any lien against the Demised Premises or to perform any covenant
hereunder, neither Lessee nor Lessor shall be deemed in default therein and
neither Lessor nor Lessee shall enforce or exercise any of its rights hereunder
if and so long as:
(a) Non-performance or default therein shall be caused by strikes,
lockouts, non-availability of labor or materials, war or national defense
pre-emptions, governmental restrictions, acts of God or other causes beyond the
control of either Lessee or Lessor; or
(b) Lessor or Lessee shall contest the matter involved with the diligence
and in good faith in a proper forum or court with the person or governmental
authority requiring such Payment, act, work, labor or services or contract or
lien; provided, however, that Lessee or Lessor shall indemnify the other party
against any loss or expense arising out of the failure of Lessee or Lessor so to
pay or perform during the pendency of such contest.
-16-
During the term hereof Lessee shall pay prior to [****] all taxes assessed
against and levied upon fixtures, furnishings, equipment and all other personal
property of Lessee contained in the Demised Premises, and Lessee shall cause
said fixtures, furnishings, equipment and other personal property to be assessed
and billed separately from the real property of Lessor.
35. Interpretation
--------------
The time of the performance of all of the covenants, conditions and
agreements of this Lease is of the essence of this agreement.
The necessary grammatical changes required to make the provisions of this
Lease apply in the plural sense where there is more than one tenant and to
either corporations, associations, partnerships or individuals, males or
females, shall in all instances be assumed as though in each case fully
expressed. Lessor's beneficiaries shall have the right to enforce the
obligations of Lessee in this Lease set forth in their own names or through an
agent. The laws of the State of Illinois shall govern the validity, performance
and enforcement of this Lease. The captions of the several articles contained
herein are for convenience only and do not define, limit, describe or construe
the contents of such articles.
36. Attorneys' Fees
---------------
In case Lessor, Lessor's beneficiaries or their agents or employees or
any of them shall be made a party to any litigation commenced by or against
Lessee, and Lessor, Lessor's beneficiaries of their agents or employees is not
found to be at fault, then lessee shall pay all costs, expenses and reasonable
attorneys' fees incurred or paid by Lessor, Lessor's beneficiaries or their
agents or employees in connection with such litigation. Lessee shall also pay
all costs, expenses and reasonable attorney's fees that may be incurred or paid
by Lessor, Lessor's beneficiaries and either's agents in enforcing the covenants
and agreements of this Lease.
37. Lessor's Consent
----------------
Wherever Lessor's consent is required, it shall not be unreasonably
withheld or delayed.
38. Termination of Previous Lease
-----------------------------
Lessor and Lessee hereby terminate as of 11:59 p.m., May 31, 1985 that
certain lease dated February 2, 1977 between Lessor and Lessee whereby Lessor
leased the Demised Premises to Lessee.
39. Trust
-----
It is expressly understood and agreed that this Lease is executed by
the undersigned Trustee, not personally but solely as Trustee under the terms of
that certain agreement dated the 1st day of February, 1977, creating Trust No.
1069185; the covenants, undertakings, representations and agreements herein made
are made and intended not as personal covenants, undertakings, representations
and agreements of the Trustee or its beneficiaries, individually, or for the
purpose of binding them personally, but this instrument is executed and
delivered by Chicago Title and Trust Company as trustee, solely in the exercise
of the powers conferred upon it as such Trustee under said agreement and no
personal liability or personal responsibility is assumed by, nor shall at any
time be asserted or enforced against the Chicago Title and Trust Company as
trustee or its beneficiaries, on account hereof, or on account of any covenant,
undertaking, representation, warranty or agreement herein contained, either
expressed or implied, all such
-17-
personal liability, if any, being hereby expressly waived and released by the
parties hereto or holder hereof, and [****] persons claiming by or through
or under said parties or hold [****].
IN WITNESS WHEREOF, said Chicago Title and Trust Company has caused its
name to be signed to these presents by a ASST. VICE PRESIDENT ________ and its
corporate seal to be hereunto affixed and attested by its Assistant Secretary,
the day and year first above written.
LESSOR: CHICAGO TITLE AND TRUST COMPANY, not
individually, but as Trustee under
Trust Agreement dates February 1, 1977,
and known as Trust No. 1069185
By [SIGNATURE ILLEGIBLE]
--------------------------------
ATTEST: Its ASST. VICE PRESIDENT
-------------------------------
[SIGNATURE ILLEGIBLE]
-------------------------
Its Assistant Secretary
---------------------
LESSEE: AGI INCORPORATED, an Illinois
corporation
By [SIGNATURE ILLEGIBLE]
--------------------------------
ATTEST: Its President
[SIGNATURE ILLEGIBLE]
-------------------------
Its Assistant Secretary
---------------------
-18-
COUNTY OF XXXX ) SS.
)
I, OLINTHA XXXXX, a Notary Public, in and for said County in the State
aforesaid, DO HEREBY CERTIFY that XXXXXXX XXXXXXXX, personally known to me to be
the ASST, VICE PRESIDENT of CHICAGO TITLE AND TRUST COMPANY, a corporation of
the State of Illinois, and XXXX XX XXXX, personally known to be the ASST.
Secretary of said corporation, and personally known to me to be the same persons
whose names are subscribed to the foregoing instrument appeared before me this
day in person and severally acknowledged that they signed and delivered the said
instrument as their own free and voluntary acts and as the free and voluntary
act of said corporation for the uses and purposes therein set forth, and the
said ASST. Secretary did also then and there acknowledge that he as custodian of
the corporate seal of said corporation, did affix the said corporate seal of the
said corporation to said instrument as his own free and voluntary act and as the
free and voluntary act of said corporation for the uses and purposes therein set
forth.
GIVEN under my hand a notarial xxx this 29th day of May, 1985.
/s/ Olintha Xxxxx
----------------------------------
Notary Public
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I, [SIGNATURE ILLEGIBLE] Notary Public, in and for said County in the State
aforesaid, DO HEREBY CERTIFY that Xxxxxx X. Xxxxxxxx, personally known to me to
be the President of AGI INCORPORATED, a corporation of the State of Illinois,
and Xxxxx K Henesan, personally known to to be the Assistant Secretary of said
corporation, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument appeared before me this day in person and
severally acknowledged that they signed and delivered the said instrument as
their own free and voluntary acts and as the free and voluntary act of said
corporation for the uses and purposes therein set forth, and the said Assistant
Secretary did also then and there acknowledge that he as custodian of the
corporate seal of said corporation, did affix the said corporate seal of the
said corporation to said instrument as his own free and voluntary act and as the
free and voluntary act of said corporation for the uses and purposes therein set
forth.
GIVEN under my hand a notarial seal this 29th day of May, 1985.
[SIGNATURE ILLEGIBLE]
----------------------------------
Notary Public
My Commission Expires 10/1/85
-19-
COUNTY OF XXXX )
I, ________________________, a Notary Public, in and for said County in the
State aforesaid, DO HEREBY CERTIFY that __________________________________,
Personally known to be the ______________________of CHICAGO TITLE AND TRUST
COMPANY, a corporation of the State of Illinois, and __________________________,
personally known to me to be the _______________ Secretary of said corporation,
and personally known to me to be the same persons whose names are subscribed to
the foregoing instrument appeared before me this day in person and severally
acknowledged that they signed and delivered the said instrument as their own
free and voluntary acts and as the free and voluntary act of said corporation
for the uses and purposes therein set forth, and the said _____________________
Secretary did also then and there acknowledge that he as custodian of the
corporate seal of said corporation to said instrument as his own free and
voluntary act and as the free and voluntary act of said corporation for the uses
and purposes therein set forth.
GIVEN under my hand and notarial seal this ___ day of May, 1985.
_____________________________
Notary Public
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I, ________________________, a Notary Public, in and for said County in the
State aforesaid, DO HEREBY CERTIFY that __________________________________,
personally known to be the ______________________ of AGI Incorporated, a
corporation of the State of Illinois, and __________________________, personally
known to me to be the _______________ Secretary of said corporation, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument appeared before me this day in person and severally
acknowledged that they signed and delivered the said instrument as their own
free and voluntary acts and as the free and voluntary act of said corporation
for the uses and purposes therein set forth, and the said _____________________
Secretary did also then and there acknowledge that he as custodian of the
corporate seal of said corporation to said instrument as his own free and
voluntary act and as the free and voluntary act of said corporation for the uses
and purposes therein set forth.
GIVEN under my hand and notarial seal this ___ day of May, 1985.
_____________________________
Notary Public
MEMORANDUM OF LEASE
-------------------
This Memorandum of Lease made as of this ____ day of May, 1985, by and
between Chicago Title and Trust Company, not individually, but as Trustee under
Trust Agreement dated February 1, 1977 and known as Trust Number 1069185,
("Lessor") and AGI Incorporated f/k/a Album Graphics, Inc., an Illinois
corporation ("Lessee").
WITNESSETH:
----------
Xxxxxx xxxxx demises and leases to Lessee that certain real estate situated
in the County of Xxxx and State of Illinois, more particularly described on
Exhibit "A" attached hereto and made a part hereof (the "Demised Premises").
To have and to hold unto the said Lessee for a term commencing on the 1st
day of June, 1985 and ending on the 31st day of May, 1992.
Lessor and Lessee hereby terminate as of 11:59 p.m., May 31, 1985 that
certain Lease dated February 2, 1977 between Lessor and Lessee whereby Lessor
leased the Demised Premises to Lessee, a memorandum of which was recorded with
the Recorder of Deeds of Xxxx County, Illinois on February 28, 1997 as Document
Number 23833423.
The rental for the Demised Premises and the covenants, agreements, terms,
provisions, conditions and limitations of the Lease, including an option to
purchase the entire Demised Premises, are set forth in that certain Lease
between the parties hereto, of even date herewith, and this Memorandum of Lease
is subject to all of the covenants, conditions, and terms set forth in said
Lease.
Lessor's address is 000 Xxxx Xxxxxxxxxx, Xxxxxxx, Xxxxxxxx and Lessee's
address is 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx.
IN WITNESS WHEREOF, the parties hereto have duly executed these presents
and affixed their respective seals as of the day and year first above written.
CHICAGO TITLE AND TRUST COMPANY,
not personally, but as Trustee
under Trust Agreement dated the
"Lessor" 1st day of February, 1977, and
known as Trust Number 1069185
ATTEST: By__________________________________
Its ____________________ President
________________________________
Its________________ Secretary
AGI INCORPORATED, f/k/a
Album Graphics, Inc.
"Lessee"
By__________________________________
ATTEST: Its President
________________________________
Its________________ Secretary
Prepared by and when recorded Address of Property:
mail to:
Xxxxx X. Xxxxxxx 0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx & Xxxxx Xxxxxxx Xxxx, Xxxxxxxx 00000
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
LEGAL DESCRIPTION
-----------------
PARCEL 1 A:
----------
That part of the East 356.50 feet of the West 1235.10 feet of the Southeast
fraction quarter, North of the Indian Boundary Line, of Section 33, Township 40
North, [****] East of the Third Principal Meridian, lying between two lines
drawn at right angles through points which are respectively 738 feet North of
the North line of North Avenue as dedicated and 1551.64 feet South of the North
line of the aforesaid quarter Section of said Section 33, excepting therefrom a
parcel of land described by beginning at the Southwest corner of the above
described tract of land; thence North along the West [****] thereof, 200 feet;
thence Southerly 170.95 feet to a point 30 feet North of the South line and 18
feet East of the West line of the above described tract of land; thence South 30
feet; thence West 18 feet to the point of beginning, in Xxxx County, Illinois.
PARCEL 1 B:
----------
A parcel of land in the aforesaid Southeast fractional quarter of said Section
33, described as beginning at the Northwest corner of the above described tract
of land; thence North 155 feet along the West line of the above described tract
of land extend North; thence Southeasterly 121.34 feet to a point 18 feet East
of the extended West line and 35 feet North of the North line of the above
described tract of land; thence South 35 feet; thence West 18 feet to the place
of beginning, in Xxxx County, Illinois.
PARCEL 2 A:
----------
That part of the East 381 feet of the West 1235.10 feet of the Southeast
fractional quarter, North of the Indian Boundary Line, of Xxxxxxx 00, Xxxxxxxx
00 Xxxxx, Xxxxx Xxxx of the Third Principal Meridian, lying South of a line
drawn through a point [****] the East line of the aforesaid West 1235.10 feet
which is 618 feet North of the North line of North Avenue as dedicated;
excepting therefrom a strip of land 60 feet wide Northwesterly of and adjoining
the Indian Boundary Line; and also excepting the West feet of the North 213.02
feet of the tract described; also excepting: That part of the East 7 feet of the
West 861.1 feet of the Southeast fractional quarter, North of the Indian
Boundary Line, of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00, Xxxx of the Third
Principal Meridian, described as follows: Beginning at the intersection of the
North line of North Avenue as dedicated, with East line of the West 854.1 feet
of said quarter Section; thence North along said line, 402.49 feet; thence East
at right angles, 7 feet; thence South along the East line of the West 861.1 feet
aforesaid, 402.54 feet to the North line of North Avenue; thence West along the
North line of North Avenue, 7 feet to the point of beginning, in Xxxx County,
Illinois.
PARCEL 2 B:
----------
A triangular parcel of land immediately North of and adjoining the above
described tract of land, described by beginning at a point on the North line of
said tract, is 29.54 feet East of the Northwest corner thereof, as first
described; thence West 5.04 feet; thence North on the East line of West 878.60
feet of the Southeast fractional quarter of said Section 33, a distance of 100
feet; thence Southerly, 100.07 feet to the place of beginning, in Xxxx County,
Illinois.
PARCEL 3:
--------
That part of the East 356.50 feet of the West 1235.10 feet of the Southeast
fraction quarter, North of the Indian Boundary Line, of Xxxxxxx 00, Xxxxxxxx 00
Xxxxx, Xxxxx [****] East of the Third Principal Meridian, described by beginning
at a point on the East *** of described tract, which is 618 feet North of the
North line of North Avenue as dedicated; thence West at right angles to said
East line, 351.46 feet; thence North [****] 100.07 feet to a point on the East
line of West 878.60 feet of aforesaid quarter Section which is 100 feet North of
first above described line extended West; thence North **** described line, 220
feet; thence Southeasterly on a line forming an angle of 6 degrees 02'40'
measured from South to Southeast with the East line of aforesaid West 878.60
feet, a distance of 170.95 feet to a point on the East line of West 896.60 feet
of said quarter Section; thence South along said line, 30 feet; thence East
along a line 120 feet North of and parallel with the first above described line,
338.50 feet to the East line of West 1235.10 feet of the Southeast fractional
quarter of Section 33, aforesaid; thence South along said line 120 feet to the
place of beginning, all in the Village of Melrose Park, in Xxxx County,
Illinois.
LEGAL DESCRIPTION
-----------------
PARCEL 1 A:
----------
That part of the East 356.50 feet of the West 1235.10 feet of the Southeast
fraction quarter, North of the Indian Boundary Line, of Xxxxxxx 00, Xxxxxxxx 00
Xxxxx, Xxxxx Xxxx of the Third Principal Meridian, lying between two lines drawn
at right angles through points which are respectively 738 feet North of the
North line of North Avenue as dedicated and 1551.64 feet South of the North line
of the aforesaid quarter Section of said Section 33, excepting therefrom a
parcel of land described by beginning at the Southwest corner of the above
described tract of land; thence North along the West [****] thereof, 200 feet;
thence Southeasterly 170.95 feet to a point 30 feet North of the South line and
18 feet East of the West line of the above described tract of land; thence South
30 feet; thence West 18 feet to the point of beginning, in Xxxx County,
Illinois.
PARCEL 1 B:
----------
A parcel of land in the aforesaid Southeast fractional quarter of said Section
33, described as beginning at the Northwest corner of the above described tract
of land; thence North 155 feet along the West line of the above described tract
of land extend North; thence Southeasterly 121.34 feet to a point 18 feet East
of the extended West line and 35 feet North of the North line of the above
described tract of land; thence South 35 feet; thence West 18 feet to the place
of beginning, in Xxxx County, Illinois.
PARCEL 2 A:
----------
That part of the East 381 feet of the West 1235.10 feet of the Southeast
fractional quarter, North of the Indian Boundary Line, of Xxxxxxx 00, Xxxxxxxx
00 Xxxxx, Xxxxx Xxxx of the Third Principal Meridian, lying South of a line
drawn through a point on the East line of the aforesaid West 1235.10 feet which
is 618 feet North of the North line of North Avenue as dedicated; excepting
therefrom a strip of land 60 feet wide Northwesterly of and adjoining the Indian
Boundary Line; and also excepting the West feet of the North 213.02 feet of the
tract described; also excepting: That part of the East 7 feet of the West 861.1
feet of the Southeast fractional quarter, North of the Indian Boundary Line, of
Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00, Xxxx of the Third Principal Meridian,
described as follows: Beginning at the intersection of the North line of North
Avenue as dedicated, with the East line of the West 854.1 feet of said quarter
Section; thence North along said line, 402.49 feet; thence East at right
angles, 7 feet; thence South along the East line of the West 861.1 feet
aforesaid, 402.54 feet to the North line of North Avenue; thence West along the
North line of North Avenue, 7 feet to the point of beginning, in Xxxx County,
Illinois.
PARCEL 2 B:
----------
A triangular parcel of land immediately North of and adjoining the above
described tract of land, described by beginning at a point on the North line of
said tract, which is 29.54 feet East of the Northwest corner thereof, as first
described; thence West 5.04 feet; thence North on the East line of West 878.60
feet of the Southeast fractional quarter of said Section 33, a distance of 100
feet; thence Southerly, 100.07 feet to the place of beginning, in Xxxx County,
Illinois.
PARCEL 3:
--------
That part of the East 356.50 feet of the West 1235.10 feet of the Southeast
fraction quarter, North of the Indian Boundary Line, of Xxxxxxx 00, Xxxxxxxx 00
Xxxxx, Xxxxx *** East of the Third Principal Meridian, described by beginning at
a point on the East *** of described tract, which is 618 feet North of the North
line of North Avenue as dedicated; thence West at right angles to said East
line, 351.46 feet; thence North [****] 100.07 feet to a point on the East line
of West 878.60 feet of aforesaid quarter [****] which is 100 feet North of first
above described line extended West; thence North **** described line, 220 feet;
thence Southeasterly on a line forming an angle of 6 degrees 02'40' measured
from South to Southeast with the East line of aforesaid West 878.60 feet, a
distance of 170.95 feet to a point on the East line of West 896.60 feet of said
quarter Section; thence South along said line, 30 feet; thence East along a line
120 feet North of and parallel with the first above described line, 338.50 feet
to the East line of West 1235.10 feet of the Southeast fractional quarter of
Section 33, aforesaid; thence South along said line 120 feet to the place of
beginning, all in the Village of Melrose Park, in Xxxx County, Illinois.