Exhibit 10.1
0000 XXXX XXXXXX XXXXXX
XXXXX, XXXXXXXX
LEASE DATED AS OF AUGUST 20, 1997
AMONG XXXX FAMILY LIMITED PARTNERSHIP,
AN ILLINOIS LIMITED PARTNERSHIP AND
FIRST BANK NATIONAL ASSOCIATION,
F/K/A NATIONAL BOULEVARD BANK OF CHICAGO,
AS TRUSTEE UNDER TRUST AGREEMENT DATED
DECEMBER 24, 1969 AND KNOWN AS TRUST NO. 2960, AS LANDLORD
AND STIMSONITE CORPORATION, AS TENANT
INDEX
Page
DEMISED PREMISES.......................................................1
TERM...................................................................2
CONDITION OF DEMISED PREMISES..........................................3
RENT...................................................................3
PAYMENT OF IMPOSITIONS.................................................5
DEPOSITS FOR IMPOSITIONS...............................................7
USE AND OPERATION OF PROPERTY..........................................8
SURRENDER OF THE DEMISED PREMISES......................................8
REPAIRS AND MAINTENANCE................................................9
COMPLIANCE AND CONTEST OF LAWS.........................................9
INSURANCE.............................................................12
DAMAGE OR DESTRUCTION.................................................14
RESTORATION OF DAMAGE OR DESTRUCTION EXCEEDING $50,000.00.............16
DAMAGE AND DESTRUCTION NO EFFECT ON LEASE.............................17
REQUIREMENTS FOR TENANT'S ALTERATIONS.................................17
DISCHARGE OF LIENS0...................................................19
SECURITY AGREEMENT....................................................20
ENTRY ON DEMISED PREMISES BY LANDLORD, ETC............................20
INDEMNIFICATION.......................................................21
CONDEMNATION..........................................................21
MORTGAGES, ASSIGNMENTS AND TRANSFERS OF THE DEMISED PREMISES..........23
OPTIONS TO PURCHASE AND RIGHT OF FIRST REFUSAL........................24
ESTOPPEL CERTIFICATES.................................................26
REPRESENTATION AND WARRANTIES.........................................26
DEFAULT PROVISIONS....................................................27
LANDLORD'S DEFAULT....................................................30
NOTICES...............................................................30
SUBORDINATION TO MORTGAGE.............................................31
QUIET ENJOYMENT.......................................................31
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS........................31
NO WASTE..............................................................32
CAPTIONS; CONSTRUCTION; GENDER AND NUMBER.............................32
ENTIRE AGREEMENT; AMENDMENTS..........................................32
SUCCESSORS AND ASSIGNS................................................32
APPLICABLE LAW........................................................32
COUNTERPARTS..........................................................33
NO RENT ABATEMENT.....................................................33
LEGAL FEES............................................................33
BROKERS...............................................................33
SECURITY DEPOSIT......................................................33
EXCULPATION...........................................................34
LIMITATION OF LIABILITY...............................................35
EXHIBITS
A. Legal Description
B. Permitted Exceptions
LEASE
THIS INDENTURE OF LEASE ("Lease") is made as of this 20th day of
August, 1997, by and among First Bank National Association, f/k/a National
Boulevard Bank of Chicago, not personally but a Trustee under Trust Agreement
dated December 24, 1969 and known at Trust No. 2960 (the "Trust") and Xxxx
Family Limited Partnership, an Illinois limited partnership (the "Beneficiary")
(the Trust and the Beneficiary are sometimes hereinafter referred to
collectively as "Landlord") and Stimsonite Corporation, a Delaware corporation
("Tenant").
RECITALS
A. The Trust owns certain real property located at 0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx, Xxxxxxxx, which is improved with an office/industrial building
(the "Building") and a parking lot.
B. Beneficiary is the sole beneficiary of the Trust.
C. Landlord desires to lease to Tenant and Tenant desires to lease
from Landlord, the land and the improvements thereon as more fully described
herein for the term and upon the terms and conditions set forth herein.
In consideration of the foregoing recitals each of which is made a
contractual part hereof, and the mutual agreements contained herein, the parties
hereby agree as follows:
1. Demised Premises.
Subject to the terms and conditions hereinafter set forth, Landlord,
for and in consideration of the Rents hereinafter reserved by Landlord and the
terms, covenants, conditions, and agreements herein contained on the part of
Tenant to be paid, kept and performed, hereby agrees to and effective upon the
Commencement Date (as hereinafter defined) shall lease, rent, let and demise to
Tenant, and Tenant does hereby agree to and effective upon the Commencement Date
shall take and hire from Landlord, all those certain lots, parcels, or pieces of
land situate, lying and being in the State of Illinois, as the same are more
particularly described in Exhibit "A" annexed hereto and hereby made a part
hereof (the "Land") together with the Building, the buildings, structures and
improvements now or hereafter erected on, over or under the Land, including all
walkway, road and parking area improvements and facilities, landscaping
improvements of whatever nature, utility and sewage lines (to the extent of
Landlord's interest therein) and all appurtenances, fixtures and other
facilities used in connection with the operation or occupancy of the Demised
Premises (as herein defined), and all alterations and additions thereto and
restorations and replacements thereof, (collectively the "Improvements") and
apparatus, appliances, appurtenances, devices, equipment, fixtures, furniture,
furnishings, machinery and other articles of personal property of every kind and
nature whatsoever now or hereafter owned by Landlord and located on or at the
Demised Premises and necessary or useful for or used in connection with the
operation and maintenance of the Demised Premises or any part thereof, together
with all additions thereto, replacements thereof and substitutions therefor made
by Tenant during the Term, and any and all personal property and other tangible
property owned by Landlord and now or hereafter located on the Demised Premises
and/or used in connection with the operation or maintenance thereof
(collectively the "Equipment"). The Land, the Improvements and the Equipment
shall be collectively referred to herein as the "Demised Premises" or
"Property." In no event shall the Demised Premises be deemed to include the
business or those fixtures, equipment or furnishings owned and heretofore or
hereafter installed by Parker Hannifin Corporation, the tenant in occupancy of
the Property on the date hereof ("PHC"). The foregoing notwithstanding, upon
Tenant's written request made not later than November 1, 1997, Landlord shall
direct PHC to cause those alterations made by PHC to the Demised Premises, which
are described in Tenant's request (the "PHC Alterations") to remain in the
Demised Premises upon the termination of its lease. Tenant agrees that prior to
the expiration of the Lease Term, it shall remove the PHC Alterations and
restore the Demised Premises to its original condition at its sole cost and
expense.
2. Term.
(a) Lease Term. The term of this Lease shall be a period (the "Term")
commencing on May 1, 1998 (the "Commencement Date") and ending on April 30, 2008
(the "Termination Date") , unless sooner terminated as herein provided. Tenant
may elect to terminate this Lease effective upon the expiration of the sixth
Lease Year of the Term , being April 30, 2004 (the "Early Termination Date") by
giving notice thereof to Landlord not later than 15 months prior to the Early
Termination Date (the "Termination Notice"). Tenant shall not be entitled to
exercise its option to terminate this Lease on the Early Termination Date unless
on both the date of the Termination Notice and the Early Termination Date no
uncured Event of Default shall exist hereunder. On or before the Early
Termination Date and as a condition to such early termination, Tenant shall have
paid to Landlord all Rent and other sums and charges due and/or accrued
hereunder through the Early Termination Date. In the event Tenant does not
deliver the Termination Notice within the time period set forth herein, Tenant's
right to terminate this Lease upon the Early Termination Date shall be null and
void and of no further force and effect
(b) Delivery of Possession. If Landlord is unable to deliver the
Demised Premises to Tenant on the Commencement Date for any reason, Landlord
shall not be subject to any liability for the failure to deliver possession on
such date and such failure to deliver possession on such date shall not affect
the validity of this Lease or the obligations of Tenant hereunder; provided,
however, that if Landlord is unable to deliver possession of the Demised
Premises to Tenant on or before June 1, 1998, Landlord shall pay Tenant Nine
Hundred Dollars ($900.00) per day for each day from and after June 1, 1998,
until such date as Landlord delivers possession of the Demised Premises to
Tenant as liquidated damages for Landlord's failure to deliver possession. In
addition to such liquidated damages, if Landlord fails to deliver possession of
the Demised Premises to Tenant on or before August 1, 1998, Tenant shall have
the right to terminate this Lease by written notice to Landlord after August 1,
1998 (unless Landlord delivers possession of the Demised Premises on or before
five (5) days after the date of such notice, in which event Tenant's notice and
right of termination shall be ineffective). This Lease shall continue in full
force and effect if not terminated as herein set forth. Anything contained in
subparagraph (a) above to the contrary notwithstanding, in the event that
delivery of possession of the Demised Premises is delayed as set forth herein,
then the Commencement Date shall be deemed the date that possession of the
Demised Premises is tendered to Tenant.
3. Condition of Demised Premises.
Except as otherwise provided herein, Tenant agrees that no
representations respecting the condition of the Demised Premises and that no
promises to decorate, alter, repair or improve the Demised Premises, either
before or after the execution hereof, have been made by Landlord, its
beneficiaries or its agents to Tenant. Except as may be otherwise expressly
agreed herein, Tenant agrees that it shall accept the Demised Premises in
substantially the same condition as exists on the date hereof, subject to
ordinary wear and tear and the removal of the fixtures, equipment and
furnishings owned by the tenant in occupancy of the Property on the date hereof.
4. Rent.
(a) Basic Rent. Tenant covenants and agrees that from and after the
Commencement Date and continuing during the Term hereof it shall pay to Landlord
as basic rent ("Basic Rent") the amounts as set forth below:
(i) As used herein the term "Lease Year" shall mean a period of
12 consecutive calendar months, commencing on the Commencement Date. If for any
reason the Commencement Date shall not fall on the first day of a calendar
month, then the Basic Rent for such month shall be prorated and the first Lease
Year shall be deemed to commence on the first day of the next succeeding
calendar month. For the first Lease Year, the Annual Basic Rent shall be
$331,500.00 payable in monthly installments of $27,625.00.
(ii) The Annual Basic Rent for the second and each succeeding
Lease Year of the Term shall be increased annually and shall be the greater of
(x) 103% of the Annual Basic Rent for the immediately preceding Lease Year (the
"Prior Lease Year"), and (y) the Annual Basic Rent for the Prior Lease Year
adjusted by the increase in the Consumer Price Index, which shall be determined
as follows:
If the Consumer Price Index-Chicago-Gary-Lake County,
IL-IN-WI for all Urban Consumers (1982-84=100) ("CPI-U") published by
the Bureau of Labor Statistics of the Department of Labor (the "BLS")
for the last month of the Prior Lease Year (the "Extension Index")
exceeds the CPI-U for the month preceding the month in which the Prior
Lease Year commenced (the "Base Index"), then the Annual Basic Rent for
the Prior Lease Year will be multiplied by a fraction, the numerator of
which is the Extension Index and the denominator of which is the Base
Index. If the CPI-U is changed so that the base year differs from
1982-84 = 100, the CPI-U shall be converted in accordance with the
conversion factor published by the BLS. If the CPI-U is discontinued or
revised during the Term, such other government index or computation
with which it is replaced shall be used in order to obtain
substantially the same result as would be obtained if the CPI-U had not
been discontinued or revised.
(iii) Landlord shall advise Tenant of the amount of the Annual
Basic Rent for each Lease Year following the first Lease Year, calculated as set
forth above. If for any reason, Landlord is delayed in making such calculation,
then Tenant shall on the first day of such succeeding Lease Year commence paying
monthly installments of Basic Rent calculated on the basis of subparagraph
(a)(ii)(x) above, unless and until it receives a different calculation of Annual
Basic Rent from Landlord as provided herein ("Landlord's Statement"). Upon
receipt of Landlord's Statement reflecting an adjustment to Annual Basic Rent
based upon subparagraph (a)(ii)(y) above, then in addition to paying the then
current monthly installment of Annual Basic Rent calculated as provided herein,
Tenant shall also pay to Landlord within 30 days of receipt of Landlord's
Statement, the amount by which the amount of the monthly installments of Basic
Rent previously paid for such Lease Year was less than the total amount due when
calculated in accordance with Landlord's Statement.
(b) Payment of Basic Rent. Basic Rent shall be payable on the first
day of each calendar month during the Lease Term, in equal monthly installments
each in the amount calculated as set forth herein and then payable hereunder in
respect of the then current Lease Year, except that the first installment of
Basic Rent shall be paid on or before April 1, 1998.
(c) Rent. All sums, charges and other payments to be made by Tenant
under any of the provisions of this Lease other than Basic Rent shall be deemed
to be supplemental rent ("Supplemental Rent"). Basic Rent and Supplemental Rent
shall be collectively referred to herein as "Rent" hereunder and Landlord shall
have all of the rights and remedies for the collection of Supplemental Rent
which it has hereunder or by law for the collection of Basic Rent.
(d) Place of Payment. All Rent payable to Landlord shall be paid by
Tenant to Landlord at Landlord's address specified herein, or to such other
person and/or at such other address as Landlord may direct by notice to Tenant
by check of Tenant (subject to collection). Except as otherwise provided herein,
Rent shall be paid without notice or demand.
(e) Net Rent. It is the purpose and intent of Landlord and Tenant that
the Rent payable hereunder shall be absolutely net to Landlord and that Tenant
shall pay, without notice or demand (except as otherwise provided herein) and
without abatement, deduction or set-off, and save Landlord harmless from and
against, all costs, Impositions (as defined in paragraph 5 below), insurance
premiums, all water rents, gas and electric light and power bills, and other
utilities, taxed, levied or charged upon the Property for and during the term
hereof, and all other expenses and obligations of every kind and nature
whatsoever relating to the Demised Premises, or any part thereof, which may
arise or become due during the Term. In the event of any non-payment of any of
the foregoing, Landlord shall have, in addition to all of the rights and
remedies provided for herein or at law or in equity in the case of nonpayment of
the same, all of the rights and remedies provided for herein or at law or in
equity in the case of non-payment of Basic Rent. Tenant shall reimburse Landlord
for all reasonable expenditures and all reasonable costs and expenses, including
reasonable attorney's fees, made or incurred by Landlord in curing any Default
by Tenant, as permitted by this Lease, which amounts shall become due upon the
making of any such expenditures by Landlord, and Tenant shall also pay the
Landlord all amounts due it as reimbursements or indemnities pursuant to the
provisions hereof.
5. Payment of Impositions.
(a) Tenant shall pay, as Supplemental Rent, all Impositions, or cause
the same to be paid, prior to delinquency and before any fine, penalty, interest
or cost may be added thereto for the nonpayment thereof. As used herein, the
term "Impositions" shall mean all taxes, duties, assessments (including, without
limitation, all assessments for public improvement or benefit), occupancy and or
lease tax, water and sewer rents, rates and charges, charges for public
utilities, excises, levies, license and permit fees, parking surcharges and
other charges of governmental authorities, general and special, ordinary and
extraordinary, foreseen and unforeseen, of any kind and nature whatsoever, which
at any time during the Term may have been or may be laid, assessed, levied,
confirmed, imposed upon, or arise or become due or payable out of or in respect
of, or become a lien on, the Demised Premises or any part thereof or any
appurtenance thereto, any other property or rights included in the Property or
any part thereof or appurtenance thereto, and on any personal property owned by
Tenant, or levied or assessed upon or becoming payable with respect to the
leasehold estate created hereunder, or levied or assessed upon or becoming
payable with respect to the interest of Landlord or Tenant under this Lease,
during the Term hereof or for any fiscal period any part of which is within the
Term of this Lease and any tax on the rent payable by Tenant under this Lease
(as distinguished from any income tax on the general income of Landlord)
provided, however, that:
(i) If, by law, any Imposition relating to a fiscal
period of a taxing authority, all of which period is included within
the Term, may, at the option of the taxpayer, be and customarily is
paid in installments, whether or not interest shall accrue on the
unpaid balance of such Imposition, Tenant may, so long as no Event of
Default shall then exist under this Lease, exercise the option to pay
the same in installments and, in such event, shall pay such
installments, together with any interest thereon, prior to delinquency
and before any fine, penalty, additional interest or cost may be added
thereto; and
(ii) Any Imposition relating to a fiscal period of a
taxing authority, a part of which is included within the Term and a
part of which is included in a period of time prior to the commencement
of or after the expiration of this Lease, shall (whether or not such
Imposition shall be assessed, levied, confirmed, imposed upon or in
respect of or become a lien upon the Property, or any part thereof, or
shall become due and payable during the Term) be prorated between
Landlord and Tenant.
(b) Copies of Bills. Upon the reasonable request of Landlord, Tenant
shall deliver to the Landlord, within 15 days following the date of such
request, copies of all bills for such Impositions, showing such Imposition paid
in accordance with the terms hereof. Tenant shall not be required to pay income
taxes assessed against Landlord, or any capital levy, corporation franchise,
excess profits, estate, succession, inheritance or transfer taxes of Landlord.
(c) Contest of Impositions. Tenant shall have the right at its own
expense to contest the amount or validity, in whole or in part, of any
Imposition by appropriate proceedings diligently conducted in good faith but
only after payment of such Imposition unless such payment would operate as a bar
to such contest or interfere materially with the prosecution thereof, in which
event, notwithstanding the provisions of paragraph 5(a) hereof, payment of such
Imposition shall be postponed if and only so long as:
(i) Neither the Demised Premises nor any part hereof
would by reason of such postponement or deferment be, in the reasonable
judgment of the Landlord, in danger of being forfeited or lost, and
(ii) No Mortgage (as hereinafter defined) would by
reason of such postponement or deferment be, in the reasonable judgment
of Landlord, in danger of being put in default or foreclosed, and
(iii) Tenant shall have deposited with Landlord cash
or other security in form and substance reasonably acceptable to
Landlord, in an amount (against which amount Tenant shall receive a
credit equal to the amount previously deposited by Tenant and held by
Landlord pursuant to the terms of paragraph 6 hereof pertaining to the
period when such Imposition is being contested) equal to one hundred
percent (100%) of the amount so contested and unpaid, together with all
interest and penalties in connection therewith and all charges that may
or might be assessed against or become a charge on the Demised Premises
or any part thereof in such proceedings. Upon the termination of any
such proceedings, it shall be the obligation of Tenant to pay the
amount of such Imposition or part thereof as finally determined in such
proceedings, the payment of which may have been deferred during the
prosecution of such proceedings, together with any costs, fees
(including counsel fees), interest, penalties or other liabilities in
connection therewith, and, upon such payment, Landlord shall return,
without interest, any amount or other security deposited with it with
respect to such Imposition as aforesaid, provided, however, that
Landlord shall, if requested by Tenant, disburse said moneys on deposit
with it direct to the imposing authority to whom such Imposition is
payable. Nothing contained in this paragraph 5(c) hereof or elsewhere
in this Lease shall be deemed to limit Tenant's obligation to make the
deposits provided for in paragraph 6 hereof.
(d) Reduction of Valuation. Tenant agrees to use reasonable efforts to
minimize the general real estate taxes payable with respect to the Demised
Premises. Tenant shall have the right to seek a reduction in the valuation of
the Demised Premises assessed for real estate tax purposes and to prosecute any
action or proceeding in connection therewith. Provided that no Event of Default
is then in effect hereunder, Tenant shall be authorized to collect any tax
refund obtained by reason thereof and to retain the same. In the event Tenant
shall be in monetary and/or material default and Landlord should, by reason
thereof, collect any tax refund, then Landlord shall retain same and apply same
to Rent then due or to be payable hereunder.
(e) Joinder by Landlord. Landlord shall not be required to join in any
proceedings referred to in paragraph 5(c) or (d) hereof unless the provisions of
such law at the time in effect shall require that such proceedings be brought by
or in the name of Landlord, in which event Landlord shall join in such
proceedings. Landlord shall not be subject to any liability for the payment of
any costs or expenses in connection with any such proceedings, and Tenant will
indemnify, defend and save harmless Landlord from any such costs and expenses.
Landlord agrees that whenever Landlord's cooperation is required in any of the
proceedings brought by Tenant as aforesaid, Landlord will reasonably cooperate
therein, provided same shall not entail any out-of-pocket cost or expense to
Landlord.
(f) Evidence of Payments. Any certificate, advice or xxxx of
nonpayment of any Imposition (when made or issued by the appropriate official
designated by law to make or issue same or to receive payment of such
Imposition) shall be prima facie evidence that such Imposition is due and unpaid
at the time or date stated therein.
6. Deposits for Impositions.
(a) Deposits for Impositions. In order to insure the payment of
certain Impositions, Tenant agrees to deposit with Landlord, on the first day of
each and every month during the Lease Term an amount equal to one-twelfth (1/12)
of Impositions for general real estate taxes and special assessments due and
payable during the next succeeding 12 month period as estimated by Landlord
based on the most recent bills or ascertainable amounts thereof. Tenant shall
deposit, at least 30 days prior to the due date of such Imposition, such
additional amounts as may be necessary to provide Landlord with sufficient funds
in such deposit account to pay each such charge in advance of the due date
thereof. Landlord shall hold the money so deposited for the purpose of paying
the charges for which such amounts have been deposited. Landlord shall apply
such deposits for the purpose held not later than the last day on which any such
charges may be paid without penalty or interest. It is understood and agreed
that deposits provided for hereunder shall be held by Landlord in a segregated
insured account as designated by Tenant, which shall be kept separate and apart
from other funds of Landlord. All interest earned on such deposits shall be held
for the benefit of Tenant and shall be applied to any amounts due from Tenant
pursuant to this paragraph 6. In the event this Lease or Tenant's right to
possession of the Demised Premises shall be terminated after an Event of
Default, all deposits then held by Landlord shall be applied on account of any
and all sums due to Landlord under this Lease and Tenant shall forthwith pay the
resulting deficiency.
(b) Assignment of Deposits. In the event of a sale or transfer of the
Demised Premises subject to this Lease, Landlord shall transfer to the grantee
or transferee of the fee, the above deposits, subject, however, to the
provisions hereof (written evidence of which shall be furnished to Tenant). Upon
such transfer, the seller or transferor shall be deemed to be released from all
liability with respect to all said deposits, and Tenant agrees to look solely to
the transferee or grantee with respect thereto. The provisions hereof shall
apply to every further transfer or assignment of the said deposits to a new
Landlord.
(c) Post Termination Impositions. Tenant's obligation for Impositions
for the year in which the Termination Date occurs shall be equal to the total
Impositions for such year times the proportion that the number of days from and
including the first day of the year in which the Termination Date occurs to and
including the Termination Date bears to 365. Tenant shall be obligated for the
full amount of Impositions for the year prior to the year in which the
Termination Date occurs, which amount may not be ascertainable by the
Termination Date. Pending determination of the amount of Impositions for the
year prior to the year in which the Termination Date occurs and/or for such
partial year in which the Termination Date occurs, not more than 90 days prior
to the Termination Date, Landlord may furnish Tenant a statement of reasonably
estimated Impositions. Within 15 days after receipt of such statement, Tenant
shall remit to Landlord, as Supplemental Rent, the estimated Impositions. After
Landlord finally determines such Impositions, if Tenant underpaid such
Impositions, then Tenant shall remit the amount of such underpayment to Landlord
within 15 days after receipt of such statement, and if Tenant overpaid such
Impositions, then Landlord shall remit the amount of such overpayment to Tenant
within 15 days after the issuance of such statement.
7. Use and Operation of Property.
Tenant shall use and occupy the Demised Premises and cause the Demised
Premises to be used for general office, assembly and manufacturing, provided
however, Tenant shall not use or occupy or allow the Demised Premises or any
part thereof to be used or occupied for any unlawful purpose or in material
violation of any certificate of occupancy, certificate of compliance, permit or
law covering or affecting the use or occupancy of the Demised Premises or any
part thereof.
Tenant shall not suffer any act to be done or any condition to exist
at the Demised Premises or any part thereof which may, in law, constitute a
nuisance, public or private, or which may make void or voidable any insurance
with respect thereto or which may violate the provisions of this Lease.
8. Surrender of the Demised Premises.
(a) Tenant shall and will on the expiration of this Lease, or upon any
re-entry by Landlord upon the Demised Premises pursuant to the terms of this
Lease, (i) surrender and deliver up the Demised Premises into the possession and
use of Landlord without delay, broom clean and in good order, condition and
repair, ordinary wear and tear excepted, free and clear of all lettings and
occupancies, and free and clear of all liens, charges and encumbrances except
(i) Impositions not yet due and payable and for which Tenant shall have
deposited the estimated amount thereof with Landlord pursuant to paragraph 6(c)
thereof, (ii) any Mortgage which Landlord may have caused to become a lien
during the term hereof, and (iii) all those exceptions to title which Landlord
causes, permits or allows or which result from Landlord's actions and/or
omissions to act (to the extent they are not the obligation of Tenant under this
Lease to prevent or remove) or to which Landlord consents in writing.
(b) On the expiration of this Lease, upon the request of Landlord
title to and ownership of the Improvements and the Equipment shall automatically
vest in Landlord without the necessity of Tenant's executing any further
instrument particularly granting, conveying and/or releasing the same and
without the necessity of any payment therefor by Landlord. Tenant shall, on
demand, execute, acknowledge and deliver to Landlord or its designee a written
instrument, in recordable form, confirming such expiration of this Lease, as
well as any further assurances of title to the Improvements and the Equipment as
Landlord or its designee may reasonably request.
9. Repairs and Maintenance.
Throughout the term hereof, Tenant, at its own sole cost and expense,
shall (a) keep the Demised Premises in good condition and repair, reasonable
wear and tear excepted; (b) keep the Demised Premises in good order and in a
neat and presentable condition free from rubbish and obstructions; and (c) make
all necessary or appropriate repairs, replacements and renewals, and, all
necessary or appropriate alterations and restorations thereto, interior and
exterior, structural and nonstructural, ordinary and extraordinary and foreseen
and unforeseen, as may be required hereunder (collectively, "Repairs"). Except
as otherwise specifically provided herein, Landlord shall not be required to
furnish any services or facilities or to make do any maintenance or to make any
repairs or replacements in or about the Demised Premises or any part thereof,
Tenant hereby assuming the full and sole responsibility for all repairs to, and
for the condition, operation, maintenance and management of, the Demised
Premises as of the Commencement Date and during the Term hereof.
10. Compliance and Contest of Laws.
(a) Compliance with Laws. Tenant, at its own sole cost and expense,
shall promptly comply in all material respects with all applicable statutes,
codes, laws, acts, ordinances, administrative and judicial orders, judgments,
decrees, injunctions and decisions, rules, resolutions, restrictions,
regulations and requirements (collectively, "Laws") of all federal, state,
county, municipal and local governments, and all courts, departments,
commissions, boards, bureaus, agencies, authorities, offices, officials and
officers thereof, having jurisdiction over all or any part of the Property or
the use, operation or occupancy thereof, (collectively "Governmental
Authorities"), and all applicable orders, rules and regulations (collectively
"Orders") of the national and local boards of fire underwriters or any other
body or bodies exercising similar functions (collectively "Insurance Boards"),
foreseen or unforeseen, ordinary as well as extraordinary, which now or at any
time hereafter may be applicable to the Property or any part thereof or any
appurtenances thereto, to the sidewalks, passageways, planters, shrubbery, curbs
and vaults adjoining the Demised Premises, to the use, manner of use, condition
or operation of the Property or any part thereof, or to the owners, tenants or
occupants thereof, whether or not any such Laws or Orders shall necessitate
structural changes or improvements or interfere with the use or enjoyment of the
Property. Tenant shall also procure, pay for and maintain all permits, licenses,
approvals and other authorizations required by applicable laws (collectively,
"Permits") necessary for the use and/or operation of its business at the Demised
Premises and the lawful use, occupancy and/or operation of the Demised Premises
or any part thereof by Tenant in connection therewith.
Notwithstanding anything to the contrary in the foregoing
paragraph, prior to Tenant's exercise of its option to purchase the Demised
Premises as set forth in paragraph 22 below, in no event shall Tenant be
required to undertake any structural changes or capital improvements to the
Demised Premises in order to comply with any change in existing Laws or Orders
unless such structural changes and/or capital improvements are required as a
result of Tenant's particular use of the Demised Premises. Any such structural
changes and/or capital improvements required to be made to the Demised Premises
in order to comply with any such change in existing Laws or Orders which are not
required as a result of Tenant's particular use of the Demised Premises shall be
performed by Landlord and the provisions of this paragraph 10(a) shall apply to
Landlord, mutatis mutandis.
There shall not be kept or used on the Property any inflammable or
explosive materials or liquids in violation of any Laws or Orders. Tenant shall
not cause or permit to occur any violation of Laws, now or hereafter enacted,
related to environmental conditions on, under or about the Property, or arising
from Tenant's use or occupancy of the Property, or cause or permit to occur the
use, generation, release, manufacture, refining, production, processing, storage
or disposal of any Hazardous Substance or Hazardous Material on, under or about
the Property or the transportation to or from the Property of any Hazardous
Substance or Hazardous Material, except in strict accordance with and as may be
allowed by applicable Laws, including without limitation, the provisions of the
Federal Water Pollution Control Act, the Federal Resource Conservation and
Recovery Act, the Comprehensive Environmental Response Compensation and
Liability Act, and the Occupational Safety and Health Act. The terms "Hazardous
Substance" and "Hazardous Material" as used in this Lease shall include, without
limitation, flammables, explosives, radioactive materials, asbestos, PCB's,
carcinogens, pollutants, contaminants, hazardous wastes, toxic substances or
related materials, petroleum or petroleum products, and substances declared to
be hazardous or toxic under any Laws now or hereafter enacted or promulgated by
any Governmental Authorities, including, without limitation, the provisions of
the laws and regulations set forth above.
(b) Tenant acknowledges that the current tenant of the Demised
Premises, Xxxxxx-Xxxxxxxx Corporation ("PHC"), is remediating certain
environmental conditions at the Demised Premises relating to PHC's release of
hydraulic fluid. Landlord agrees to use its best efforts to cause PHC to obtain,
prior to the Commencement Date, a letter from the Illinois Environmental
Protection Agency ("IEPA") indicating that no further action is required at the
Demised Premises in response to PHC's release of hydraulic fluid. Tenant agrees
that PHC's inability to obtain the IEPA letter prior to the Commencement Date
shall not affect the terms hereof or the parties obligations hereunder, and
Tenant agrees to cooperate with the continued remediation activities of PHC as
may be necessary in order to obtain the IEPA letter, provided that such
cooperation shall be at no cost to Tenant. Landlord shall require PHC to give
Tenant at least 48 hours prior written notice before entering the Demised
Premises and shall require PHC to cooperate with Tenant to ensure that PHC's
continued remediation activities do not unreasonably interfere with Tenant's
business operation. Landlord shall also deliver to Tenant on the Commencement
Date, a copy of the then most current environmental assessment of the Demised
Premises in its possession or control (the "Environmental Report").
(c) Tenant agrees that it shall timely perform, or cause to be
performed, any investigation, testing, monitoring, repair, clean-up,
detoxification, preparation of any closure or other required plans, or other
removal, response, or remedial action to the extent required by applicable Laws
relating to (i) the presence, management, disposal, release or threatened
release, escape, seepage, or leakage of any Hazardous Substance or Hazardous
Material at, on, in, from, or under all or a portion of the Demised Premises
caused by Tenant's activities at the Demised Premises; or (ii) the migration of
Hazardous Substance or Hazardous Material from the Demised Premises to any other
property caused by Tenant's activities at the Demised Premises; or (iii) the
generation, transportation, storage, or disposal of a Hazardous Substance or
Hazardous Material onto or from the Demised Premises caused by Tenant's
activities at the Demised Premises; or (iv) the future incorporation of any
Hazardous Substance or Hazardous Material into the Demised Premises caused by
Tenant's activities at the Demised Premises. The foregoing notwithstanding,
Tenant's obligations with respect to the foregoing shall not include remediation
for environmental conditions disclosed on the Environmental Report or caused by
anyone other than Tenant. If the presence, release, threat of release, placement
on or in the Demised Premises, or the generation, transportation, storage,
treatment, or disposal at the Demised Premises or removal from the Demised
Premises, of any Hazardous Substance or Hazardous Material caused by Tenant's
activities at the Demised Premises: (i) give rise to liability under any
applicable Laws caused by Tenant's activities at the Demised Premises
(including, but not limited to, response action, remedial action, or removal
action under any Laws); (ii) causes a significant public health effect; or (iii)
pollutes or threatens to pollute the environment, Tenant shall promptly notify
Landlord in writing of such event and after consultation with Landlord with
respect to the manner of such removal, take any and all remedial and removal
action, at its own expense, necessary to clean up the Demised Premises and
mitigate exposure to liability arising from the Hazardous Substance or Hazardous
Material to the extent required by any applicable Laws. For purposes of this
subparagraph (c), the phrase "any applicable Laws" shall include any Laws
enacted and/or amended at any time within five (5) years following the
termination of this Lease, whether by lapse of time or otherwise. The covenants
of and Tenant's obligations under this subparagraph (c) shall survive the
termination of this Lease by lapse of time or otherwise.
(d) Contest of Laws. Tenant shall have the right, after prior notice
to Landlord, to contest by appropriate legal proceedings conducted in the name
of Tenant or Landlord or both, the validity or application of any Laws or Orders
of the nature referred to in subparagraph (a) above, and Landlord, on written
request, shall execute and deliver any appropriate papers which may be necessary
or proper to permit Tenant so to contest the validity or application of any such
Law. Tenant shall indemnify, defend and hold Landlord harmless from any cost,
expense, liability or damage, including reasonable attorney's fees, relating to
such contest.
11. Insurance.
(a) During the term of this Lease, Tenant shall maintain, or cause to
be maintained, policies of insurance as follows:
(i) Insurance against loss or damage to the Demised Premises by
fire and those risks now or hereafter normally covered by the term
"extended coverage" and from such other hazards as may be covered by
the form of all risk insurance then in effect, all in an amount
sufficient to cover full replacement cost (without depreciation) of
the Demised Premises and with a deductible not to exceed $10,000.00.
(ii) Boiler and machinery insurance inclusive of coverage for
pressure vessels with such limits as from time to time may be
reasonably required by Landlord but not to exceed actual replacement
cost thereof.
(iii) Comprehensive general liability insurance against claims
for bodily injury, death and property damage occurring in or about the
Demised Premises, including but not limited to, any streets, sidewalks
or parking areas, vaults, passageways or common areas adjoining or
appurtenant to the Demised Premises; such insurance shall afford
minimum protection of $3,000,000 with respect to the personal injury
or death occurring or resulting from one occurrence, and $1,000,000
with respect to property damage; provided, however, that if by reason
of monetary inflation or changed economic conditions the aforesaid
amounts become inadequate, such amounts shall be increased to amounts
reasonably satisfactory to Landlord.
(iv) If products of Tenant or any party under Tenant are stored,
manufactured, or processed in the Demised Premises, regardless of the
place intended for their sale or consumption, comprehensive product
liability insurance to afford protection to the same amounts as
specified in item (iii) above.
(v) Worker's compensation insurance, in the usual form, insuring
against loss or damage resulting from any incident or casualty within
the purview of the Illinois Workers' Compensation Law or similar
thereto.
(vi) Contractual liability covering Tenant's obligations
hereunder with respect to any occurrence.
(vii) Such other insurance against loss or damage to the Demised
Premises, which is available and customarily obtained with respect to
improvements similar in character, size, general location, use and
occupancy to the Demised Premises in such amounts as specified by
Landlord.
All policies of insurance carried pursuant to this paragraph shall name as
insureds Landlord, its beneficiary and Tenant, and if required, the Mortgagee
(as hereinafter defined), as their respective interests may appear.
(b) Business Interruption Insurance. During the term of this Lease,
Tenant shall obtain and maintain, business interruption insurance in an amount
sufficient to cover:
(i) The aggregate cost of all Impositions due during the period
of the next succeeding 12 months following the occurrence of
the business interruption;
(ii) The cost of all insurance premiums for insurance to be
carried by Tenant for such 12 month period; and
(iii)The aggregate of the amount of Basic Rental for such 12
month period.
All proceeds, if any, of any business interruption insurance shall be
paid to Landlord and held by Landlord as follows:
(i) During the period of restoration, as more fully set forth in
paragraph 12 hereof, Landlord shall hold the proceeds of
such business interruption insurance as security for the
payment by Tenant of Rent, Impositions, and other sums
required to be paid by Tenant hereunder; and
(ii) Landlord shall apply any such proceeds pro tanto against any
amount of Rent, Impositions or other sums required to be
paid by Tenant hereunder, as the same shall become due and
owing until such proceeds are extinguished.
(c) Payment of Premiums. All premiums on policies referred to in this
Lease shall be paid by Tenant. Certified copies of each policy of insurance
shall be delivered to Landlord on or before the Commencement Date and, within 15
days following the request of Landlord, to any Mortgagee. Renewal policies shall
be delivered to Landlord and any Mortgagee designated by Tenant not less than 30
days prior to the expiration of the original policies, or succeeding renewals,
as the case may be. Premiums on policies shall not be financed in any manner
whereby the lender, on default or otherwise, shall have the right or privilege
of surrendering or canceling the policies. Each policy of insurance required
under this paragraph 11 shall not be canceled or modified without at least 30
days' prior written notice to the Landlord, and, if required, to any Mortgagee.
Each such policy shall also contain a provision that no act or omission of
Tenant shall affect or limit the obligation of the insurance company to pay the
amount of any loss sustained.
(d) Compliance with Underwriting Requirements. Tenant shall so perform
and satisfy the requirements of the companies writing any insurance policies
referred to in this Lease so that at all times companies of good standing
reasonably satisfactory to Landlord shall be willing to write or continue such
insurance.
(e) Separate Insurance. Neither Landlord nor Tenant shall carry
separate insurance (other than personal liability insurance) concurrent in form
or contributing in the event of loss with that required by this Lease to be
furnished by Tenant, unless both parties are included therein as insureds with
loss payable as in this Lease provided.
(f) Approved Insurers. All insurance provided for in this paragraph
shall be effected under valid and enforceable policies issued by insurers of
recognized responsibility which are licensed to do business in the State of
Illinois and which have been reasonably approved by Landlord.
(g) Blanket Insurance and Waiver of Subrogation. Any insurance
provided for in this paragraph may be effected by a policy or policies of
blanket insurance, provided, however, that the amount of the total insurance
allocated to the Demised Premises shall be such as to furnish in protection the
equivalent of separate policies in the amounts herein required, and provided
further that in all other respects, any such policy or policies shall comply
with the other provisions of this Lease, except that no such policy shall be
submitted to Landlord less than 30 days prior to expiration of an existing
policy. Each policy of insurance provided for in this paragraph shall contain
the standard form of waiver of subrogation.
12. Damage or Destruction
(a) Repair of Damage. If the Demised Premises shall be destroyed or
damaged in whole or in part by fire or other casualty (including any casualty
for which insurance was not obtained or obtainable) of any kind or nature,
ordinary or extraordinary, foreseen or unforeseen, Tenant shall give to Landlord
immediate notice thereof, and Tenant, at its own cost and expense, whether or
not such damage or destruction shall have been insured, and whether or not
insurance proceeds, if any, shall be sufficient for the purpose, shall promptly
repair, alter, restore, replace and rebuild the same, at least to the extent of
the value and as nearly as possible to the character of the Demised Premises
existing immediately prior to such occurrence (the "Restoration"); and Landlord
shall in no event be called upon to repair, alter, replace, restore or rebuild
such Demised Premises, or any portion thereof, nor to pay any of the costs or
expenses thereof. The foregoing notwithstanding, in the event (i) the cost of
the Restoration exceeds $3,000,000, and (ii) there are Insurance Proceeds (as
defined in subparagraph (b) below) sufficient to complete the Restoration; then
either party hereto may terminate this Lease by giving notice thereof to the
other not later than sixty (60) days following the date on which the Insurance
Proceeds are received by Landlord. In the event either party elects to terminate
the Lease as provided in the preceding sentence, the Insurance Proceeds shall be
retained by Landlord and Tenant shall have no right or interest therein. If
neither party elects to terminate this Lease within said sixty (60) day period,
then each party's right to terminate this Lease as provided in this paragraph 12
shall become null and void.
(b) Payment of Insurance Proceeds. All insurance proceeds paid with
respect to any damage or destruction of the Property shall be paid to Landlord.
Subject to the provisions of paragraph 13 hereof and the terms and provisions of
the Mortgage, Landlord agrees to pay over (or caused to be paid over) to Tenant,
from time to time, for disbursement through a customary construction escrow with
a national title insurance company reasonably acceptable to Landlord and upon
submission to such title insurance company of documentation, including, without
limitation, sworn statements and partial and final lien waivers, as such company
deems necessary to issue its interim endorsements to Landlord's title policy,
insuring against mechanic's lien claims arising from such repair and/or
restoration, and upon the following terms, any moneys which may be received by
Landlord from insurance provided by Tenant; but in no event to any extent or in
any sum exceeding the amount actually collected by Landlord upon the loss;
provided, however, that Landlord before paying such monies over to Tenant shall
be entitled to reimburse itself therefrom to the extent, if any, of the
necessary and proper expenses paid or incurred by Landlord in the collection of
such moneys (such net amount being hereafter referred to as the "Insurance
Proceeds"). Landlord shall pay to Tenant, as hereinafter provided, the aforesaid
Insurance Proceeds, for the purpose of repairs or restoration to be made by
Tenant to restore the Demised Premises to a value which shall be not less than
its value prior to such fire or other casualty. Prior to the making of any
repair Tenant shall furnish Landlord with an estimate of the cost of such
repairs, prepared by a licensed architect, reasonably approved by Landlord, and
such Insurance Proceeds shall be paid to the Tenant from time to time thereafter
in installments as the making of such repairs or restorations progresses upon
application to be submitted by Tenant to Landlord showing the cost of labor and
material incorporated in such repairs or restorations, or incorporated therein
since the last previous application, and paid for by Tenant. If any mechanic's
lien is filed against the Demised Premises, Tenant shall not be entitled to
receive any further installment until such lien is satisfied or otherwise
discharged, unless such lien is to be satisfied out of such further installment
and should not have been satisfied out of a previous installment. The amount of
any installment to be paid to Tenant shall be such proportion of the total
Insurance Proceeds received by Landlord as the cost of labor and materials
theretofore incorporated by Tenant in such repairs or restorations, or
incorporated therein since the payment of the last previous installment, bears
to the total estimated cost of such repairs or restorations, less ten percent
(10%) of the installment to be paid. Upon the completion of and payment for such
repairs or restorations by the Tenant, the balance of any and all Insurance
Proceeds held by the Landlord shall be paid over to the Tenant. In the event
that the moneys received from all Insurance Proceeds are insufficient for the
purpose of paying for all repairs and restorations, the Tenant shall
nevertheless be required to make such repairs and restorations at its own cost
and expense.
(c) Conditions Precedent to Payment. The following shall be conditions
precedent to each payment made by Landlord to Tenant as provided in subparagraph
(b) above:
(i) There shall be submitted to Landlord the
certificate of Tenant's architect setting forth that the sum then
requested to be withdrawn either has been paid by Tenant or is justly
due to contractors, subcontractors, materialmen, engineers, architects
or other persons (whose names and addresses shall be stated), who have
rendered or furnished certain services or materials for the work and
giving a brief description of such services and materials and the
principal subdivisions or categories thereof and the several amounts so
paid or due to each of said persons in respect thereof, and stating the
progress of the work up to the date of said certificate; that no part
of such expenditures has been or is being made the basis, in any
previous or then pending request, for the withdrawal of Insurance
Proceeds or has been made out of the proceeds of insurance received by
Tenant; and that the sum then requested does not exceed the value of
the services and materials described in the certificate;
(ii) There shall be furnished to Landlord an
endorsement to Landlord's title policy from a title company
satisfactory to Landlord, or other evidence showing that there has not
been filed and insuring Landlord against any vendor's, mechanic's,
laborer's or materialman's statutory or other similar lien affecting
the Demised Premises which has not been discharged of record, except
such as will be discharged upon payment of the amount then requested to
be withdrawn; and
(iii) At the time of making such payment Tenant is
not in default in the payment of Rent and there is no existing and
unremedied Event of Default on the part of Tenant under any of the
other agreements, terms, covenants and conditions of this Lease on the
part of Tenant to be performed.
13. Restoration of Damage or Destruction Exceeding $50,000.00.
In the event of any loss, damage or destruction, if the cost of
restoration and repairs exceeds $50,000.00 in the aggregate, the Insurance
Proceeds shall be held by Landlord and disbursed by the title insurance company
in accordance with the of paragraph 12 above, and Tenant agrees to furnish the
following to Landlord at least ten (10) days before the commencement of any work
of demolition upon the Demised Premises or before the commencement of any work
necessary to repair, alter or renew the Demised Premises, or any part thereof:
(a) Complete plans and specifications for the demolition,
construction, repair, replacing, renewing or altering of the Demised Premises,
prepared by an architect whose qualifications shall meet with the reasonable
satisfaction of Landlord and which plans and specifications shall meet with the
reasonable approval of the Landlord, together with the approval thereof by any
Governmental Authorities then exercising jurisdiction with regard to such work,
plans and specifications, which plans and specifications shall be and become the
sole and absolute property of Landlord in the event that for any reason this
Lease shall be for any reason terminated;
(b) A fixed sum contract in assignable form made with a reputable and
responsible builder, providing for the erection, completion and terms of payment
for all work, labor and materials necessary to repair and restore the Demised
Premises as depicted in said plans and specifications or, in the alternative, a
cost-plus contract in assignable form made with a reputable and responsible
builder, providing for the erection, completion and terms of payment for all
work, labor and materials necessary to construct and complete the repair and
restoration depicted in said plans and specifications, within a fixed period,
together with the certificate of an architect who shall meet with the reasonable
satisfaction of Landlord, estimating in reasonable detail the cost of repair and
restoration as depicted in said plans and specifications within the fixed period
in said contract provided;
(c) An assignment of the contract so furnished, duly executed and
acknowledged by Tenant, by its terms to be effective upon any termination of
this Lease, or upon Landlord's re-entry upon the Demised Premises following an
Event of Default hereunder by Tenant prior to the complete performance of such
contract. Such assignment shall also include the benefit of all payments made on
account of said contract including payments made prior to the effective date of
such assignment; and
(d) In the event the estimated cost of repair and restoration is in
excess of the Insurance Proceeds, Tenant shall, before proceeding with the
repair and restoration, deliver to the Landlord the amount of such excess, which
shall be disbursed by Landlord as provided herein.
14. Damage and Destruction No Effect on Lease.
Except as otherwise provided in this Lease, this Lease shall not
terminate or be forfeited or be affected in any manner by reasons of damage to
or total, substantial or partial destruction of the Demised Premises or any part
thereof, for or due to any reason or cause whatsoever, and Tenant,
notwithstanding any Laws, waives any and all rights to quit or surrender the
Demised Premises or any part thereof. Except as otherwise expressly provided
herein, Tenant expressly agrees that, its obligations hereunder, including the
payment of Rent, Impositions, and other sums or sums of money and other charges
hereunder, shall continue the same as though said Demised Premises or any part
thereof had not been destroyed or injured, and without abatement, suspensions,
diminution or reduction of any kind.
15. Requirements for Tenant's Alterations.
(a) Tenant's Alterations. Subject to the provisions of this paragraph
and to all other applicable provisions of this Lease, Tenant shall not make any
Tenant's Alterations (as defined below) without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Any Tenant's
Alterations shall be made at Tenant's sole cost and expense. As used herein, the
term "Tenant's Alterations" shall mean each and every (a) demolition of the
whole or any part of any Improvements now or hereafter erected upon the Demised
Premises; (b) excavation at any time made or to be made in, on or about the
Demised Premises; (c) repair, addition, betterment, change, improvement and
rebuilding made of, to, in, on or about the Demised Premises or any part
thereof; and (d) construction of any additional or replacement Improvements upon
the Demised Premises, the cost of any or all of which matters described in
causes (a) through (d) above in any calendar year exceeds $50,000.00 in the
aggregate. Landlord's written consent which shall not be deemed unreasonably
withheld, if the proposed Tenant's Alterations (i) would change the type or
character of the Improvements, (ii) materially reduce the size of the
Improvements or diminish the net rentable area thereof, or (iii) would adversely
affect any structural component of the Improvements. Provided that Tenant shall
comply with the provisions of paragraphs 15(b) and 15(c) hereof, Landlord agrees
that Tenant shall be permitted to construct an enclosed walkway connecting the
Demised Premises to the adjacent building leased by Tenant located at 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx (the "Walkway"). Prior to the expiration of the
Lease Term, Tenant agrees to remove the Walkway and to restore the Demised
Premises to its original condition at its sole cost and expense.
(b) Conditions to Landlord's Consent. It shall be a condition
precedent to Landlord's consent that Tenant furnish the following to Landlord at
least 20 days prior to the commencement of any Tenant's Alterations:
(i) Complete plans and specifications for the
Tenant's Alterations, prepared by an architect and/or engineer licensed
by the State of Illinois and whose qualifications shall meet with the
reasonable satisfaction of Landlord and which plans and specifications
shall meet with the reasonable approval of the Landlord, which plans
and specifications shall be and become the sole and absolute property
of Landlord in the event that for any reason this Lease shall be for
any reason terminated; and
(ii) An assignment of any contract entered into for
the performance of such Tenant's Alternations, duly executed and
acknowledged by Tenant, by its terms to be effective at Landlord's
option upon any termination of this Lease, or upon Landlord's re-entry
upon the Demised Premises following a default by Tenant prior to the
complete performance of such contract. Such assignment shall also
include the benefit of all payments made on account of said contract.
(c) Permits. Before any Tenant's Alterations are begun, Tenant shall
procure, at its own sole cost and expense, all building and other required
permits from all Governmental Authorities (collectively, the "Permits") and
shall deliver photocopies thereof to Landlord. Upon Tenant's request, Landlord
shall join in the application for such permits whenever such action is
necessary, and Tenant covenants that Landlord will not suffer, sustain or incur
any cost, expense or liability by reason thereof. All Tenant's Alterations shall
be made in compliance with conformity with all applicable (i) Laws of all
Governmental Authorities (including all building, environmental and zoning
laws); (ii) Permits; and (iii) Orders of Insurance Boards. In making any
Tenant's Alterations, Tenant shall not violate in any material respect the terms
or conditions of any insurance policy obtained or required pursuant to the
provisions of this Lease affecting or relating to the Property or any part
thereof, or the terms of any covenants, restrictions or easements affecting the
Property. In addition, Tenant shall obtain and maintain throughout the time of
construction, "all risk completed value non-reporting builder's risk" insurance,
naming Tenant, Landlord and its beneficiary as named insured, as their
respective interests may appear.
(d) Cost of Construction. Tenant shall pay all costs, expenses and
liabilities arising out of, in connection with, or by reason of, any Tenant's
Alterations, and shall keep the Demised Premises free and clear of all liens,
claims and encumbrances in any way arising out of, in connection with, or by
reason of, any Tenant's Alterations. No Tenant's Alterations shall create any
encroachment upon any easement, street or adjacent property. No Tenant's
Alterations shall be made which would tie in or connect any Improvement with any
other building or structure located outside the boundary lines of , the Demised
Premises (other than the Walkway), or which would violate any of the terms,
conditions and covenants of any easement affecting the Demised Premises.
(e) Title to Alterations. Landlord shall not be required to make any
contribution to the cost of any Tenant's Alterations or any part thereof, and
Tenant covenants that Landlord shall not be required to pay any cost, expense or
liability arising out of or in connection with or by reason of any Tenant's
Alterations and shall indemnify, defend and hold Landlord harmless from and
against, and shall reimburse Landlord for, all such costs, expenses and
liabilities, including reasonable attorney's fees incurred by Landlord in
connection therewith. All Tenant's Alterations, as well as all repairs to the
Demised Premises made pursuant to any provision hereof shall at the option of
Landlord, become the property of Landlord at the expiration of the Lease and
title thereto and possession thereof shall automatically vest in Landlord
without the necessity of Tenant executing any further instrument particularly
granting, conveying and/or releasing the same and without the necessity of any
payment therefor by Landlord. If Landlord does not elect to take title to all or
any part of such alterations and modifications, such alterations and
modifications shall be removed by Tenant and the Demised Premises returned to
the condition existing on the Commencement Date.
16. Discharge of Liens.
(a) Prohibition Against Liens. Except as may otherwise be expressly
permitted under any other provision of this Lease, Tenant shall not create or
permit to be created or to remain, and shall discharge, any lien, encumbrance or
charge levied on account of any Imposition or any mechanic's, laborer's, or
materialmen's lien, or mortgage, deed or trust or otherwise, arising hereafter,
which might or does constitute a lien, encumbrance or charge upon the Demised
Premises, or any part thereof, or the income therefrom, and Tenant will not
suffer any other matter or thing whereby the estate, rights and interests of
Landlord in the Demised Premises or any part thereof might be impaired;
provided, however, that any Imposition may, after the same becomes a lien on the
Demised Premises, be paid or contested in accordance with paragraph 5(c) hereof,
and any mechanic's, laborer's and materialmen's lien shall be discharged in
accordance with subparagraph 16(b) below.
(b) Discharge of Mechanic's Liens. If any mechanic's, laborer's or
materialmen's lien shall at any time be filed against the Demised Premises or
any part thereof, Tenant, within 30 days after notice of the filing thereof,
shall cause the same to be discharged of record or otherwise stayed by payment,
deposit, bond, order of a court of competent jurisdiction or otherwise. If
Tenant shall fail to cause such lien to be discharged within such period then,
in addition to any other right or remedy, Landlord may, but shall not be
obligated to, discharge the same either by paying the amount claimed to be due
or by procuring the discharge of such lien by deposit or by bonding proceedings,
and in any such event Landlord shall be entitled if Landlord so elects, to
compel the prosecution of an action for the foreclosure of such lien by the
lienor and to pay the amount of the judgment in favor of the lienor, with
interest, costs and allowances. In any event, if any suit, action or proceedings
shall be brought to foreclose or enforce any such lien (whether or not the
prosecution thereof was so compelled by Landlord), Tenant shall, at its own sole
cost and expense, promptly pay, satisfy and discharge any final judgment entered
therein, in default of which Landlord, at its option, may do so. Any and all
amounts so paid by Landlord as in this paragraph provided, and all costs and
expenses paid or incurred by Landlord in connection with any or all of the
foregoing matters, including, without limitation, reasonable attorneys' fees and
disbursements shall become immediately due and payable, without notice, and such
amounts of charges, costs or expenses, fees and sums, together with interest
thereon at the rate of three (3%) percent per annum over the prime rate of
interest announced by LaSalle National Bank as its prime rate of interest from
time to time, from the respective dates of Landlord's making of such payments,
shall be deemed to be Supplemental Rent hereunder.
(c) Landlord not Liable. Nothing contained in this Lease shall be
deemed or construed in any way as constituting the consent or request of
Landlord, express or implied by inference or otherwise, to any contractor,
subcontractor, laborer, materialmen, architect or engineer for the performance
of any labor or the furnishing of any materials or services for or in connection
with the Demised Premises or any part thereof. Notice is hereby given that
Landlord shall not be liable for any labor or materials or services furnished or
to be furnished to Tenant upon credit, and that no mechanic's or other lien for
any such labor, materials or services shall attach to or affect Landlord's
Interest in the Demised Premises or the rights or interests of Landlord in this
Lease.
17. Security Agreement.
Landlord shall have a first lien, superior to all others on every
right and interest of Tenant in and to this Lease, together with all funds of
Tenant from time to time held by Landlord, including but not limited to the
funds in the Imposition account, and with respect to any and all furnishings,
equipment, fixtures or other personal property of any kind belonging to Tenant
and located on or useful in connection with the operation of the Property. Such
lien is hereby granted for the purpose of securing the payments of Rent, and for
the purpose of securing the performance of all of Tenant's obligations under
this Lease. Such lien shall be in addition to all rights to Landlord given and
provided by law. Tenant hereby agrees that this Lease shall constitute a
security agreement under the Illinois Uniform Commercial Code, which may be
recorded by Landlord, and Tenant further agrees to execute such other security
agreements, financing statements and other instruments as Landlord may
reasonably request to evidence and perfect the lien hereby granted under this
paragraph.
18. Entry on Demised Premises by Landlord, etc.
Tenant shall permit Landlord and its beneficiary and their respective
authorized representatives and designees, upon reasonable prior notice to
Tenant, which notice need not be written, to enter the Demised Premises at all
reasonable times during business hours for the purpose of (i) inspecting the
same, (ii) exhibiting same to prospective mortgagees and/or purchasers and (iii)
making any repairs thereto and performing any work therein that may be necessary
by reason of Tenant's failure to make or commence any such Repairs or perform or
commence any such work within ten (10) days after notice thereof by Landlord.
The foregoing notwithstanding, Landlord shall not be obligated to give notice of
entry to Tenant in the event an emergency condition exists on the Demised
Premises. Nothing herein contained shall be construed as imposing any duty upon
Landlord to do any such work, and the performance thereof by Landlord shall not
constitute a waiver of Tenant's default in failing to perform the same. Landlord
may also enter the Demised Premises during the last six (6) months of the Term
for the purpose of posting For Sale or For Lease signs and exhibiting same to
prospective tenants.
19. Indemnification.
(a) By Tenant. Tenant shall indemnify and save Landlord harmless from
and against, and shall reimburse Landlord for, all liabilities, obligations,
damages, fines, penalties, claims, demands, costs, charges, judgments and
expenses, whether founded in tort or in contract, which may be imposed upon or
incurred or paid by or asserted against Landlord, its beneficiary or either
their respective interests in the Demised Premises occurring during the Term
arising from or relating to: (i) any Tenant's Alteration and anything done in,
on or about the Demised Premises or any part thereof in connection therewith;
(ii) the use, non-use, possession, occupation, condition, operation, maintenance
or management of the Demised Premises; (iii) acts or omissions on the part of
Tenant or any of its agents, contractors, servants, employees, licensees or
invitees; (iv) any accident, injury, death or damage to any person or any part
of the Demised Premises; (v) any failure on the part of Tenant to perform or
comply with any of the provisions contained in this Lease on its part to be
performed or complied with, including, without limitation, as set forth in
paragraph 10 hereof.
(b) By Landlord. Landlord shall indemnify and save Tenant harmless
from and against, and shall reimburse Tenant for, all liabilities, obligations,
damages, fines, penalties, claims, demands, costs, charges, judgments and
expenses, whether found in tort or in contract, which may be imposed upon or
incurred or paid by or asserted against Tenant or Tenant's interest in the
Demised Premises occurring during the Term arising from or relating to: (i) any
negligent or willful or deliberate acts on the part of Landlord or any of its
agents, contractors, servants, employees, licensees or invitees; or (ii) any
failure on the part of Landlord to perform or comply with any of the provisions
contained in this Lease on its part to be performed or complied with.
20. Condemnation.
(a) Material Taking. If at any time during the term of this Lease, the
whole or materially all of the Demised Premises shall be taken for any public or
quasi-public purpose by any lawful power or authority by the exercise of the
right of condemnation or eminent domain or by agreement between Landlord and
those authorized to exercise such right, this Lease and the Term hereby granted
shall terminate and expire on the date of such taking and the Rent, and other
sum or sums of money and other charges herein reserved and provided to be paid
by the Tenant shall be apportioned and paid to the date of such taking. The term
"materially all of the Demised Premises" shall be deemed to mean such portion of
the Demised Premises, as when so taken, would leave remaining a balance of the
Demised Premises which, due either to the area so taken or the location of the
part so taken in relation to the part not so taken, (i) would not under economic
conditions, zoning laws or building regulations then existing readily
accommodate a new building of a nature similar to the Building existing upon the
Land at the date of such taking sufficient for Tenant to conduct its operations;
or (ii) would render the remainder of the Demised Premises unsuitable for the
purpose that Tenant is then using the Demised Premises in accordance with the
terms hereof. In the event of the taking of the whole or materially all of the
Demised Premises, the amount of any award for the taking or damage to the
Demised Premises shall belong to and be the property of the Landlord (except
that Tenant shall receive the amount of any allowance for the cost of removal of
stock and fixtures) and Tenant shall have no rights or interest therein. If the
whole or materially all of the Demised Premises shall be taken or condemned as
provided in this paragraph, Tenant waives all claims for any value for its
leasehold or its interest in this Lease and all claims for its interest in the
Demised Premises, except for all claims for loss of business or depreciation to,
damage to, or cost of removal of, or for the value of stock, trade fixtures,
furniture and other personal property belonging to Tenant.
(b) Time of Taking. For the purpose of this paragraph, the Demised
Premises or a part thereof, as the case may be, shall be deemed to have been
taken or condemned on the date on which actual possession of the Demised
Premises or a part thereof, as the case may be, is acquired by any lawful power
or authority or the date on which title vest therein, whichever is earlier.
(c) Less Than Material Taking. If less than materially all of the
Demised Premises be so taken or condemned, this Lease and the Term hereof shall
continue, but the Basic Rent due and payable pursuant to the terms hereof shall
be reduced by a sum equal to the Basic Rent then applicable multiplied by a
fraction, the numerator of which is the number of square feet of the Building
taken and the denominator of which is the total square footage in the Building.
Such reduction in Basic Rent shall take effect on and as of the date on which
actual possession of the Demised Premises or a portion thereof is taken. Tenant,
at its own cost and expense, whether or not the award or awards, if any, shall
be sufficient for the purpose, and provided that Landlord contributes any
shortfall between the cost of repair and restoration and the amount of such
award, shall proceed diligently to repair and restore any remaining part of the
Demised Premises not so taken in accordance with the terms of paragraph 12
hereof so that the latter shall be a complete rentable and self-contained
architectural unit in substantially the same condition as existed immediately
prior to such taking. Subject to the provisions and limitations in this
paragraph, Landlord agrees to make available so much of that portion of the
award actually received and held by Landlord, if any, less all necessary and
proper expenses paid or incurred by Landlord in the condemnation proceedings, as
may be necessary for the cost of repairing and restoring for use and occupancy
the part of the Building and Improvements not so taken. Such repairs and
restoration shall be done in accordance with and subject to the provisions of
paragraph 12 hereof. Any balance of the award thereafter remaining shall be the
sole property of Landlord, without any claim on the part of Tenant. If the
portion of the award made available by Landlord, as aforesaid, is insufficient
for the purpose of paying for the repair and restoration, and Landlord fails to
contribute any shortfall as provided above, Tenant shall not be required to
repair and restore as aforesaid and Tenant may elect within sixty (60) days
thereafter, upon not less than thirty (30) days prior written notice to
Landlord, to terminate this Lease.
(d) If the temporary use (30 days or less) of the whole or any part of
the Demised Premises shall be taken at any time during the term of this Lease
for any public or quasi-public purpose by any lawful power of authority, by the
exercise of the right of condemnation or eminent domain, or by agreement between
Tenant and those authorized to exercise such right, Tenant shall give prompt
notice thereof to Landlord. In such event, the term of this Lease shall not be
reduced or affected in any way.
21. Mortgages, Assignments and Transfers of the Demised Premises.
(a) Prohibition on Transfers. Neither this Lease nor the interest of
Tenant in this Lease, shall be sold, mortgaged, encumbered, or otherwise
transferred by Tenant whether by operation of law or otherwise, nor shall Tenant
assign, sublet or sublease the Demised Premises in whole or in part except that
Tenant may assign its interest in this Lease or sublet the Demised Premises in
whole or in part, subject to, in each case, the prior written consent of
Landlord first had and received, which consent, subject to the provisions of
this paragraph 21, shall not be unreasonably withheld or delayed.
(b) Validity of Assignment. No assignment of this Lease except upon
the consent of Landlord shall have any validity. No assignment of this Lease
shall relieve or release Tenant of and from any obligations of Tenant under this
Lease. Any consent by Landlord under paragraph 21(a) above shall apply only to
the specific transaction thereby authorized and shall not relieve Tenant from
the requirement of obtaining the prior written consent of Landlord to any
further mortgage, sale or assignment of this Lease. If all or any part of the
Demised Premises be sublet or occupied by anyone other than Tenant, Landlord
may, after default by Tenant, collect subrent from any and all subtenants or
occupants and apply the net amount collected to the net annual rent reserved
herein, but no such collection shall be, or be deemed to be, a waiver of any
agreement, term, covenant or condition of this Lease or the acceptance by
Landlord of any subtenant or occupant as Tenant, or a release of Tenant from
performance by Tenant of its obligations under this Lease.
(c) Condition to Landlord's Approval. Tenant agrees and acknowledges
that Landlord has agreed to lease the Premises to Tenant pursuant to the terms
of this Lease based upon the financial net worth and creditworthiness of Tenant
and that certain provisions of this Lease may not adequately protect Landlord
and its interest in the Demised Premises in the event of an assignment or
sublease. Accordingly, Tenant acknowledges and agrees that Landlord's consent to
any such assignment or sublease may be conditioned upon the financial net worth
and creditworthiness of such assignee or sublessee and the agreement of such
assignee or sublessee to certain revisions to this Lease, as may be reasonably
required by Landlord, including, without limitation, revision to paragraph 6 to
provide for the monthly deposit of insurance premiums.
22. Options to Purchase and Right of First Refusal.
(a) First Option. Commencing on April 30, 2004 and continuing
thereafter through and including July 30, 2004 (the "First Option Period")
Tenant shall have an option (the "First Option") (which may not be severed from
this Lease or separately sold, assigned or otherwise transferred), to purchase
the Demised Premises. The option may be exercised by Tenant, if at all, by
written notice delivered to Landlord (the "First Option Notice") on or before
October 31, 2003 stating Tenant's intent to exercise its option and said notice
shall only be effective if it is accompanied by an xxxxxxx money check made
payable to the order of Chicago Title Insurance Company (the "Title Company") in
the amount of $100,000.00. The option price (the "Option Price") payable with
respect to the First Option shall be $3,500,000.00.
(b) Second Option. Provided that Tenant has not exercised its option
to purchase set forth in subparagraphs 2(a) above, Tenant shall have an option
(the "Second Option") (which may not be severed from this Lease or separately
sold, assigned or otherwise transferred), to purchase the Demised Premises on
April 30, 2008 (the "Second Option Date"). The option may be exercised by
Tenant, if at all, by written notice delivered to Landlord (the "Second Option
Notice") on or before October 31, 2006 stating Tenant's intent to exercise its
option and said notice shall only be effective if it is accompanied by an
xxxxxxx money check made payable to the Title Company in the amount of
$100,000.00. The Option Price payable with respect to the Second Option shall be
$3,500,000.00.
(c) Additional Conditions to Exercise. Notwithstanding anything to the
contrary contained in this paragraph 22, (i) Tenant shall not be entitled to
exercise any such option to purchase unless at the time of the exercise thereof
this Lease shall be in full force and effect and no uncured Event of Default
shall exist hereunder; and (ii) Landlord shall not be obligated to convey the
Demised Premises to Tenant unless on the date fixed for the delivery of the deed
(a) this Lease shall be in full force and effect and no uncured Event of Default
shall exist hereunder; and (b) Tenant shall have paid to Landlord all Rent and
other sums and charges due and/or accrued hereunder through such delivery date.
(d) Xxxxxxx Money. The xxxxxxx money to be paid to the Title Company
in a strict joint order escrow account as provided in subparagraphs (a) and (b)
set forth above shall be held by the Title Company in a strict joint order
escrow account to secure performance of Tenant's obligation to close the
purchase of the Demised Premises and in the event that Tenant fails to close as
provided in subparagraph (e) below for any reason other than Landlord's failure
to perform its obligations hereunder, the xxxxxxx money shall be disbursed to
Landlord and Landlord may pursue such other remedies for Tenant's failure to
close, which are available to it at law or in equity. In the event that Landlord
fails to comply with its obligations as set forth in subparagraph (e) below,
then in such event, the xxxxxxx money shall be immediately returned to Tenant
and Tenant shall have the right to pursue such other remedies available to it at
law or in equity. The xxxxxxx money shall bear interest for the benefit of
Tenant.
(e) Closing. The deed shall be delivered on the day fixed in the
Option Notice (which day shall be within the First Option Period or on the
Second Option Date, as the case may be) at the downtown office of Chicago Title
and Trust Company (the "Escrowee"). The deed shall be in the form of a trustee's
deed, in form proper for recording, and shall be sufficient to convey title to
the Demised Premises, free and clear of all mortgages liens, encumbrances,
restrictions, easements and other defects in title created by Landlord, but
subject to the exceptions described on Exhibit B and to all Impositions and
other charges payable by Tenant hereunder (collectively the "Permitted
Exceptions"). Landlord shall furnish, not less than 30 days prior to the
Closing, a commitment for an ALTA Form B Owner's Title Insurance Policy, issued
by Chicago Title Insurance Company (the "Title Insurer") in the amount of
$3,500,000, showing title to the Demised Premises to be in Landlord, subject
only to: (i) title exceptions pertaining to liens or encumbrances of a definite
or ascertainable amount caused by or through the action of Landlord and not
payable by Tenant hereunder, which may be removed by the payment of money or
otherwise at closing and which Landlord shall remove at closing; and (ii) the
Permitted Exceptions. At closing, Landlord shall cause such Title Insurer to
issue and deliver to Tenant an ALTA Form B Owner's Title Insurance Policy or
equivalent policy (or a marked commitment therefor), insuring Tenant's title to
the Demised Premises in the amount of $3,500,000, subject only to the standard
exceptions contained in such policy and the Permitted Exceptions. Rent shall be
prorated as of the closing date and Tenant shall receive a credit equal to the
amount held by Landlord in the Imposition account. State and County transfer
taxes shall be paid by Landlord. Applicable local transfer taxes, if any, shall
be paid by the party designated in the ordinance creating such tax. There shall
be no other prorations. The transaction shall close through an escrow, the cost
of which (including "New York Style" and other similar closing/escrow fees
except any costs associated with Tenant's financing of its acquisition
hereunder) shall be divided equally between them. Payment of the Option Price
must be paid by wire transfer on the closing date.
(f) Exchange. At Landlord's election, by notice given to Tenant not
later than 15 days prior to Closing, in lieu of Landlord receiving the Option
Price, Landlord shall exchange the Demised Premises for other property of
like-kind and qualifying use within the meaning of Section 1031 of the Internal
Revenue Code (the "IRC") and the regulations promulgated thereunder (as the same
may be amended from time to time) or pursuant to any other provisions of the IRC
hereinafter enacted, which provide for nonrecognition treatment for the exchange
of property. Tenant shall take such actions as may be necessary or desirable to
effectuate such exchange, provided that in no event shall Tenant be obligated to
expend funds in connection with the acquisition of the exchange parcel nor incur
any personal liability with respect to such acquisition.
(g) Right of First Refusal. During the Term of this Lease, Tenant
shall have a right of first refusal to purchase the Demised Premises in
accordance with this subparagraph (g). In the event that Landlord receives a
bona fide offer from a third party to purchase the Demised Premises, which
Landlord elects to accept, Landlord shall promptly give to Tenant notice
("Landlord's Notice") thereof, which notice shall include a copy of the contract
entered into between Landlord and such third party purchaser (the "Offer") and,
provided that there is not then an existing Event of Default hereunder, then
Tenant may elect to purchase the Demised Premises in accordance with the terms
of the Offer, by notifying Landlord of such election not later than ten (10)
days following Tenant's receipt of Landlord's Notice. In the event Tenant elects
to acquire the Demised Premises in accordance with the terms set forth in the
Offer, it shall execute a form contract therefor in the form tendered by
Landlord, which shall be identical to the Offer except with respect to the name
of the purchaser. In the event Tenant does not so notify Landlord within the ten
(10) day period, Landlord may within 120 days thereafter, sell the Demised
Premises (subject to this Lease and the provisions of this paragraph 22 with
respect to the First Option and the Second Option) in accordance with the Offer
and Tenant's right of first refusal hereunder shall be null and void and of no
force and effect. If Landlord does not sell the Demised Premises within the 120
day period, then the terms and conditions of this right of first refusal shall
again apply to a subsequent proposed sale of the Demised Premises.
23. Estoppel Certificates.
(a) Tenant Estoppel Certificates. Tenant agrees at any time from time
to time, upon not less than ten (10) days' prior notice by Landlord, to execute,
acknowledge and deliver, without charge, to Landlord or to any person designated
by Landlord, a statement in writing certifying that: (a) this Lease is
unmodified (or modified, setting forth the modification); (b) that Tenant has
not received any notice of default or notice of termination of this Lease; (c)
that no Event of Default exists hereunder; (d) that Tenant, to its knowledge,
has no claims or offsets against Landlord hereunder; and (e) the dates to which
Basic Rent and Supplemental Rent payable by Tenant hereunder have been paid.
(b) Landlord's Estoppel Certificate. Landlord agrees at any time and
from time to time, upon not less than ten (10) days' prior notice by Tenant, to
execute, acknowledge and deliver, without charge, to Tenant, or to any person
designated by Tenant, a statement in writing certifying that: (a) this Lease is
unmodified (or, if modified, setting forth the modifications); (b) that no
notice of default or notice of termination of this Lease has been sent by
Landlord; (c) that to Landlord's knowledge no Event of Default exists under this
Lease; and (d) the date to which Basic Rent and Supplemental Rent payable by
Tenant hereunder have been paid by Tenant.
24. Representation and Warranties.
(a) Of Tenant. The Tenant warrants and represents as follows:
(i) This Lease constitutes a valid, binding obligation of
the Tenant, enforceable in accordance with its terms and subject to
the limitations set forth herein;
(ii) There are no actions, suits or proceedings pending or,
to the Tenant's knowledge, threatened against or affecting the Tenant,
at law or in equity, or before or by any governmental agency, which,
if adversely determined, would impair the ability of the Tenant to
perform its obligations hereunder;
(iii) Tenant is a corporation, duly organized and validly
existing under the laws of the State of Delaware, and has all
approvals necessary to authorize this transaction and the person
executing this Lease on behalf of Tenant is duly authorized to bind
Tenant.
(b) Of Landlord. The Landlord represents as follows:
(i) This Lease constitutes a valid, binding obligation of
Landlord, enforceable in accordance with its terms and subject to the
limitations set forth herein;
(ii) There are no actions, suits or proceedings pending or,
to the Landlord's knowledge, threatened against or affecting the Trust
or the Beneficiary, at law or in equity, or before or by any
governmental agency, which, if adversely determined, would impair the
ability of either of them to perform their obligations hereunder; and
(iii) The Trust is an Illinois land trust, validly existing
under the laws of the State of Illinois, and has all approvals
necessary to authorize this transaction and the person executing this
Lease on behalf of Landlord is duly authorized to bind Landlord.
(iv) Beneficiary is the sole beneficiary of the Trust with
full power of direction with respect thereto.
25. Default Provisions.
(a) Events of Default. Each of the following shall constitute an event
of default ("Event of Default") hereunder:
(i) if Tenant fails to pay any installment of Rent payable
under this Lease or any part thereof within five (5) days following
written notice from Landlord that the same shall have become due and
payable (Landlord need not give more than two (2) such notices in any
Lease Year. If Landlord gives two notices in any Lease Year, it shall
be an Event of Default without notice if Tenant fails to pay any
subsequent installment of Rent due during such Lease Year within ten
(10) days following its due date); or
(ii) if Tenant fails to perform, observe or comply with any
of the provisions contained in this Lease other than the payment of
Rent and such failure shall continue for a period of thirty (30) days
after notice thereof from Landlord to Tenant, or, in the case of a
default or a contingency which is susceptible of being cured which
cannot with due diligence be cured within such period of thirty (30)
days, Tenant fails to proceed with all due diligence (it being
intended that in connection with a default susceptible of being cured
but which cannot with due diligence be cured within such period of
thirty (30) days that the time of Tenant within which to cure the same
shall be extended for such period (not to exceed thirty (30) days) as
may be necessary to complete the curing thereof with all due
diligence); or
(iii) if any representation or warranty of Tenant contained
herein is untrue as of the date hereof; or
(iv) if Tenant or any person succeeding to the right, title
and interest of Tenant hereunder, shall file a voluntary petition in
bankruptcy or shall be adjudicated a bankrupt or insolvent or shall
file any petition or answer seeking any reorganization, arrangement,
recapitalization, readjustment, liquidation, dissolution or similar
relief under any present or future Federal Bankruptcy Code or any
other present or future applicable Law ("Bankruptcy Law"), or shall
seek or consent to or acquiesce in the appointment of or any
substantial part of its properties or of Tenant's interest in the
Property, or any portion thereof or interest therein, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as the same due (collectively,
"Acts of Bankruptcy"); or, if within 90 days after the commencement of
any proceeding against Tenant seeking any reorganization, arrangement,
recapitalization, readjustment, liquidation, dissolution or similar
relief under any Bankruptcy Law, such proceedings shall not have been
dismissed, or if, within 60 days after the appointment, without the
consent or acquiescence of Tenant, of any trustee, receiver or
liquidator of Tenant, or of all or any substantial part of its
properties or of Tenant's interest in the Property, or any portion
thereof or interest therein, such appointment shall not have been
vacated or stayed on appeal or otherwise, or within 60 days after the
expiration of any such stay such appointment shall not have been
vacated, or if within 60 days after the levying or fixing of any order
or writ of execution, warrant, attachment or garnishment against
Tenant's interest in the Property, or any portion thereof or interest
therein, or against any Debtor, such order or writ shall not have been
discharged, vacated or stayed on appeal, or within 60 days after the
expiration of any such stay, such order or writ shall not have been
discharged.
(b) Notice of Termination. Upon the occurrence of any Event or Events
of Default, Landlord at any time thereafter (but prior to the curing of all such
Events of Default) may give notice to Tenant specifying such Event or Events of
Default and stating that this Lease and the Term shall expire and terminate on
the date specified in such Notice, and on the date specified in such Notice this
Lease and the Term hereof shall expire and terminate with the same force and
effect as though the date so specified were the date herein originally fixed as
the Termination Date, and all rights of Tenant under this Lease shall expire and
terminate but Tenant shall remain liable as hereinafter provided.
(c) Rights Upon Default. Notwithstanding the occurrence of any Event
of Default, Landlord may, by written notice to Tenant, terminate Tenant's right
to possession only, in which event this Lease shall continue in full force and
effect. Upon such notice, Landlord may enter the Demised Premises and re-let the
Demised Premises or any part thereof, for Tenant's account, in the name of
Landlord or otherwise, for such term or terms (which may be greater or less than
the period which would otherwise have constituted the balance of the Term
hereof) and on such conditions (which may include concessions or free rent) as
Landlord, in its reasonable discretion, may determine, and may collect and
receive the rent therefor. Landlord shall use reasonable efforts to, but in no
way be responsible or liable for any failure to re-let the Demised Premises or
any part thereof, or for any failure to collect any rent due upon any such
re-letting. Tenant shall be immediately liable to Landlord for, and shall pay
Landlord upon demand, an amount equal to all of reasonable Landlord's expenses
in connection with such re-letting, including all repossession costs, brokerage
and management commissions, operating expenses, legal expenses, attorney's fees,
reasonable alteration costs and expenses of preparation for such re-letting.
Tenant shall also pay to Landlord monthly on the days on which Basic Rent is
payable under this Lease the amount of Basic Rent, and Supplemental Rent
otherwise payable under this Lease, less the proceeds, if any, of re-letting
effected pursuant to the provisions hereof ("Deficiency" or collectively, the
"Deficiencies"). Landlord shall be entitled to recover from Tenant each monthly
Deficiency as the same shall arise or shall have the right to accumulate monthly
Deficiencies and xxx to recover the same from time to time as Landlord may
determine. No act by Landlord allowed by this paragraph shall terminate this
Lease unless Landlord notifies Tenant that Landlord elects to terminate this
Lease.
(d) Surrender of Demised Premises. Upon any expiration of this Lease
pursuant to the terms hereof, or by or resulting from summary proceedings,
re-entry or otherwise, or if Landlord elects to terminate Tenant's right to
possession only without a termination of this Lease, Tenant shall quit and
peaceably surrender the Demised Premises to Landlord without any payment
therefor by Landlord. Landlord, in addition to all other remedies herein
reserved to it, upon or at any time after such expiration may, without further
notice, enter upon and re-enter the Demised Premises, and possess and repossess
itself thereof by summary proceedings, ejectment or otherwise (except by force),
and may dispossess and remove Tenant and all other persons and property from the
Property, and may have, hold and enjoy the Property and the right to receive all
income of and from the same.
(e) Tenant's Liability. No termination of this Lease pursuant to the
terms hereof, or by or resulting from summary proceedings or otherwise, or
termination of Tenant's right to possession only, shall relieve Tenant of its
liability and obligations under this Lease, and such liability and obligations
shall survive any such termination.
(f) No Waiver. No failure by Landlord and/or Tenant to insist upon the
strict performance by the other of any provision of this Lease or to exercise
any right or remedy consequent upon a breach thereof, and no acceptance of full
or partial rent during the continuance of any breach, shall constitute a waiver
of any such breach or such provision. No provision of this Lease to be performed
or complied with by either party, and no breach thereof, shall be waived,
altered or modified except by a written instrument executed by the other party.
No waiver of any breach shall affect or alter this Lease, but each and every
provision of this Lease shall continue in full force and effect with respect to
any other then existing or subsequent breach thereof. Each right and remedy of
either party provided for in this Lease shall be cumulative and shall be in
addition to every other right or remedy provided for in this Lease or now or
hereafter existing at Law, in equity or otherwise, and the exercise or beginning
of the exercise by either party of any one or more of the rights or remedies
provided for in this Lease or now or hereafter existing at Law, in equity or
otherwise shall not preclude the simultaneous or later exercise by such party of
any or all other rights or remedies provided for in this Lease or now or
hereafter existing at Law, in equity or otherwise.
26. Landlord's Default.
Landlord shall not be deemed to be in default under this Lease unless
(a) Tenant has given notice to Landlord specifying the default claimed, and (b)
Landlord has failed for five (5) days to cure any such monetary default and/or
failed for 30 days (or for such longer period as may be required with the
exercise of due diligence) to cure any such non-monetary default, if curable, or
to institute and diligently pursue reasonable corrective or ameliorative efforts
towards a non-curable default.
27. Notices.
All notices, requests, demands, consents, approvals and other
communications which may or are required to be served or given hereunder shall
be in writing and shall be sent by personal delivery, certified mail, return
receipt requested, postage prepaid, or by Federal Express or similar overnight
courier service, with a copy sent by certified mail as above, in either case
addressed to the party to receive such notice at such party's address set forth
below:
If to Landlord: Feldco Patio Room, Inc.
0000 X. Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxx
with a copy to: Xxxxxxxx & Xxxxxx, Ltd.
00 X. Xxxxxx Xxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxx, Esq.
If to Tenant: Stimsonite Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attn.: President
with a copy to: Xxxxx Day Xxxxxx & Xxxxx
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxxx
Either party may, by notice, change its address for all subsequent
notices.
Notices shall be deemed given (i) upon personal delivery, (ii) the
third business day following the date when the same is mailed in accordance with
the other provisions hereof, or (iii) the first business day following the date
when the same is sent by Federal Express or other similar overnight courier
service.
28. Subordination to Mortgage.
Provided that Tenant has received a reasonably acceptable
non-disturbance agreement from each Mortgagee (as hereinafter defined), Tenant
covenants that the rights and interest of Tenant under this Lease are and will
remain subject and subordinate to each and every mortgage that may now or
hereafter encumber the Property or any part thereof, and to any advances made
thereunder, and to the interest thereon, and all increases, renewals,
modifications, extensions, and replacements thereof (collectively referred to as
the "Mortgage" which are used herein also includes a deed of trust and the
holder of which is referred to as "Mortgagee"). The rights and interest of
Tenant under this Lease shall be deemed to be subordinate to the lien of any
Mortgage dated prior to the date of this Lease. The foregoing is self-operative
and no further instrument of subordination or attornment is necessary. If
Landlord at any time after the date hereof decides to place a Mortgage against
the Premises, Tenant, within ten (10) days following Landlord's request
therefor, shall execute and deliver a subordination, nondisturbance and
attornment agreement with such Mortgagee in the form delivered by such
Mortgagee. If Mortgagee or any purchaser of a foreclosure sale acquires title to
the Property, at such party's election, Tenant will be bound to such Mortgagee
or purchaser under all the terms and conditions of this Lease, and Tenant shall
attorn to such Mortgagee or purchaser as Landlord's successor in interest.
Notwithstanding the foregoing, should Mortgagee or any purchaser at a
foreclosure sale request that this Lease and Tenant's rights hereunder be made
superior, rather than subordinate, to the Mortgage, then Tenant, within ten (10)
days after written request, will execute and deliver without charge an agreement
acknowledging the superiority of such Lease, on such form as may be acceptable
to Mortgagee or such purchaser.
29. Quiet Enjoyment.
Landlord covenants that Tenant, upon paying all Rent as herein
provided for and upon observing and keeping all provisions of this Lease on its
part to be observed and kept, shall quietly have and enjoy the Demised Premises,
during the Term of this Lease, without hindrance or molestation by anyone
claiming by, through or under Landlord, subject, however, to the provisions of
this Lease.
30. Landlord's Right to Perform Tenant's Covenants.
If Tenant at any time fails to pay any Imposition in accordance with
the provisions hereof, or to take out, pay for, maintain or deliver any of the
insurance policies provided for herein, or shall fail to make any other payment
or perform any other act on its part to be made or performed hereunder, then
Landlord, after 15 day's notice to Tenant, except when other notice is expressly
provided for in this Lease, in which event notice shall be the shortest time
provided for herein (or without notice in case of an emergency, including in the
case of failure to maintain insurance), and without waiving or releasing Tenant
from any obligation of Tenant contained in this Lease, may (but shall be under
no obligation to): pay any Imposition payable by Tenant pursuant to the
provisions hereof; or take out, pay for and maintain any of the insurance
policies provided for herein; or make any other payments or perform any act on
Tenant's part to be made or performed as provided in this Lease; and may enter
upon the Property for any such purpose and take all such action thereon as may
be necessary therefor.
31. No Waste.
Tenant shall not do or suffer any waste or damage, disfigurement or
injury to the Property or any part thereof.
32. Captions; Construction; Gender and Number.
(a) Captions. The captions and table of contents in this Lease are
inserted only as a matter of convenience and for reference, and are not and
shall not be deemed to be part of this Lease; nor do the same in any way define,
limit, enlarge or describe the scope or intent of this Lease or affect this
Lease or the interpretation or construction of any provision hereof.
(b) Gender. This Lease shall be so construed that whenever applicable
with reference to any of the parties hereto, the use of the singular number
shall include the plural number, the use of the plural number shall include the
singular number, and the use of the feminine, masculine or neuter gender shall
include the other genders.
33. Entire Agreement; Amendments.
This Lease and the documents, instruments, certificates and agreements
referred to herein embody the entire agreement and understanding between the
parties hereto pertaining to the subject matter hereof, and any executory
agreement hereafter made shall be ineffective to change, modify or discharge it
in whole or in part unless such executory agreement is in writing and signed by
the party against which enforcement of such change, modification or discharge is
sought. This Lease cannot be changed or terminated orally.
34. Successors and Assigns.
The Provisions of this Lease shall bind and inure to the benefit of
Landlord and Tenant and, except as otherwise provided in this Lease, their
respective legal representatives, successors and assigns.
35. Applicable Law.
This Lease and the Provisions contained herein shall be construed and
enforced in accordance with, and governed by, the laws of the State of Illinois.
36. Counterparts.
This Lease may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument.
37. No Rent Abatement.
Except as otherwise expressly provided herein, there shall be no
abatement, diminution or reduction of rent, charges or other compensation
claimed by or allowed to Tenant, or any person claiming under it, nor shall
there be abatement or diminution or reduction of the performance of the other
obligations by Tenant hereunder under any circumstances.
38. Legal Fees.
In the event that either party retains an attorney to enforce the
provisions of this Lease or in the event of any litigation arising pursuant to
the terms hereof, the prevailing party shall be entitled to recover from the
other party reasonable attorney's fees and costs of such enforcement and/or
litigation incurred by the prevailing party.
39. Brokers.
Each party hereby each represents to the other that it has not dealt
with any broker or finder with respect to the transactions contemplated hereby
and each party hereby agrees to indemnify and hold the other harmless from and
against any claim for brokerage commissions or finder's fees or other similar
fees asserted on any person, firm or corporation with respect to this Lease
transaction claiming by, through or under such party.
40. Security Deposit.
To secure the prompt and faithful performance by Tenant of each and
every term, covenant and condition to be performed or observed by Tenant
hereunder, including, but without limitation, such terms, covenants and
conditions in this Lease which become applicable upon the termination of this
Lease or Tenant's right to possession of the Demised Premises, Tenant shall
deposit on or before April 1, 1998, a security deposit in the amount of
$55,250.00 (the "Security Deposit"). This Security Deposit shall be subject to
the following terms and conditions:
(a) that such Security Deposit or any part or portion thereof not
previously applied, or, from time to time, such one or more parts or portions
thereof, may be applied to the curing of any default that may then exist,
without prejudice to any other remedy or remedies which Landlord may have on
account thereof, and upon such application, Tenant shall pay Landlord on demand
the amount so applied which shall be added to the Security Deposit so the same
may be restored to its original amount;
(b) that should the Demised Premises be conveyed by Landlord, the
deposit or any portion thereof not previously applied shall be turned over or
credited to Landlord's grantee, and if the same be turned over or credited to
Landlord's grantee, Tenant hereby releases Landlord from any and all liability
with respect to the Security Deposit and/or its application or return, and
Tenant agrees to look to such grantee for such application or return;
(c) provided Landlord has delivered or credited the Security Deposit
to the grantee as provided in subsection (b), that neither Landlord, the Trust,
Beneficiary or any partners of Beneficiary shall have any responsibilities with
respect to the Security Deposit and Tenant shall look exclusively to such
grantee, or its successors pursuant to subsection (b) hereof for return of the
Security Deposit upon the expiration of this Lease;
(d) that no interest shall accrue on the Security Deposit; and
(e) that if Tenant shall faithfully fulfill, keep, perform and observe
all of Tenant's obligations, covenants, conditions and agreements hereunder, the
Security Deposit or the part or portion thereof not previously applied, shall be
returned by Landlord to Tenant without interest no later than thirty (30) days
after the later of (i) the expiration of the Term, or any renewal or extension
thereof, or (ii) the final adjustment of all Supplemental Rent and other charges
and expenses which Tenant is obligated to pay pursuant to the terms of this
Lease, provided Tenant has vacated the Demised Premises and surrendered
possession thereof to Landlord at the expiration of the Term or any extension or
renewal thereof as provided herein.
41. Exculpation.
This Lease is executed by First Bank National Association, f/k/a
National Boulevard Bank of Chicago, not personally but as trustee as aforesaid,
in the exercise of the power and authority conferred upon and vested in it as
such trustee. It is expressly understood and agreed that nothing in this Lease
contained shall be construed as creating any liability whatsoever against said
trustee, 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, 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 the parties hereto are concerned the owner of any
indebtedness or liability accruing hereunder shall look solely to the Trust
Estate from time to time subject to the provisions of the Trust Agreement for
payment thereof. Tenant shall have no right of set-off and/or recoupment
hereunder unless and until Tenant obtains a final judgment against Landlord, and
such judgment is either, due to the court rendering such judgment, or the terms
of applicable law, unappealable by Landlord and/or Landlord fails to appeal such
judgment within the applicable time for such appeal, in which event Tenant shall
be entitled to offset, dollar for dollar, against the Rent due and payable
hereunder, the amount of such judgment.
42. Limitation of Liability.
Anything contained herein to the contrary notwithstanding, there shall
be no personal liability on persons, firms or entities who constitute
Beneficiary with respect to any of the terms, covenants, conditions and
provisions of this Lease and Tenant shall look solely to the interest of the
parties comprising Landlord, and their respective successors and assigns, in the
Trust and the Demised Premises for the satisfaction of each and every remedy of
Tenant in the event of default by Landlord hereunder; such exculpation of
personal liability is absolute and without any exception whatsoever.
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the date and year first above written.
TENANT: LANDLORD:
Stimsonite Corporation, a First Bank National Association, f/k/a National
Delaware corporation Boulevard Bank of Chicago, not individually,
but as Trustee under Trust Agreement dated
December 24, 1969 and known as Trust No. 2960
By:___________________________ By:______________________________
Title:________________________ Title: __________________________
Attest:_______________________ Attest:__________________________
Title:________________________ Title:___________________________
Xxxx Family Limited Partnership, an Illinois
limited partnership
By:______________________________
Xxxxxxx Xxxx, its general partner
Schedule of Exhibits
Exhibit "A" Legal Description
Exhibit "B" Permitted Exceptions
EXHIBIT A
LEGAL DESCRIPTION
Parcel 1:
The North 391.455 feet (measured perpendicularly) of that part of the North 30
Acres of the East Half of the Southeast Fractional Quarter of Xxxxxxx 00,
Xxxxxxxx 00 Xxxxx, Xxxxx 00, Xxxx of the Third Principal Meridian, lying East of
the line 125 feet (measured perpendicularly) West of and parallel with the East
Line of the West 10 Acres of said North 30 Acres and lying West of a line 316
Feet (measured perpendicularly) West of and parallel with the East Line of said
Southeast Fractional Quarter; and
Parcel 2:
Easement for the benefit of Parcel I as created by the Deed from J. Xxxx
Xxxxxxxx & Son, Inc. to Xxxxxxx X. Xxxx, dated September 16, 1963, and recorded
September 18, 1963, as Document Number 1816758, for ingress and egress over the
North 358.628 Feet of the following described tract: The West 66 Feet of the
East 316 Feet (both measured perpendicularly to the East Line thereof) of the
East 20 Acres of the North 30 Acres of the East Half of the Southeast Fractional
Quarter of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00, Xxxx of the Third Principal
Meridian (excepting from the above-described premises the North 33 Feet and the
South 10 Feet thereof) all in Xxxx County, Illinois.
Common Address: 0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxx
No.: 10-30-401-018
EXHIBIT B
PERMITTED EXCEPTIONS
1. ACTS DONE OR SUFFERED BY, THROUGH OR UNDER TENANT.
2. GRANT MADE BY J. XXXX XXXXXXXX AND SON, INC. TO THE COMMONWEALTH EDISON
COMPANY AND THE ILLINOIS XXXX TELEPHONE COMPANY RECORDED OCTOBER 26, 1962
AS DOCUMENT 18628874 GRANTING THE RIGHT TO INSTALL AND MAINTAIN ALL
EQUIPMENT FOR THE PURPOSE OF SERVING THE LAND AND OTHER PROPERTY WITH
TELEPHONE AND ELECTRIC SERVICE, WITH RIGHT OF ACCESS THERETO IN, UPON,
UNDER AND ALONG THE WEST 5 FEET OF THE LAND (EXCEPT THE SOUTH 200 FEET
THEREOF).
3. COVENANTS AND RESTRICTIONS CONTAINED IN DEED FROM J. XXXX XXXXXXXX AND SON,
INC. TO XXXXXXX X. XXXX DATED SEPTEMBER 16, 1963 AND RECORDED SEPTEMBER 18,
1963 AS DOCUMENT 18916758 RELATING TO LOCATION OF PARKING AREAS AND
LOCATION AND CONSTRUCTION OF BUILDINGS TO BE ERECTED ON THE LAND. NOTE:
SAID INSTRUMENT CONTAINS NO PROVISION FOR A FORFEITURE OF OR REVERSION OF
TITLE IN CASE OF BREACH OF CONDITION.
4. EASEMENT RESERVED IN DEED FROM J. XXXX XXXXXXXX AND SON INC. TO XXXXXXX X.
XXXX DATED SEPTEMBER 16, 1963 AND RECORDED SEPTEMBER 18, 1963 AS DOCUMENT
18916758 TO ERECT, REPLACE, CONSTRUCT, ALTER, MAINTAIN CONDUITS, MAINS,
PIPES, WIRES OR OTHER CONDUCTORS FOR CARRYING OR CONVEYING ELECTRICITY,
GAS, WATER OR OTHER UTILITIES ON, OVER, UNDER AND ALONG THE SOUTH 15 FEET
OF THE NORTH 48 FEET, THE EAST 15 FEET, THE WEST 5 FEET AND THE SOUTH 5
FEET OF THE LAND.
5. VIOLATION OF BUILDING SET BACK LINE SET FORTH IN INSTRUMENT RECORDED AS
DOCUMENT 18916758, AND NOTED AT EXCEPTION NUMBER 3 ABOVE AT THE SOUTH EAST
CORNER OF THE ONE STORY BRICK BUILDING, OVER THE SOUTH SET BACK LINE BY
0.09 FEET.
