STANDARD COMMERCIAL LEASE
(EXISTING BUILDING) EGIP #11
IL 1/80 Drafted: July 11, 1995
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between ELK GROVE
VILLAGE INDUSTRIAL PARK LTD., a Texas Limited Partnership d/b/a Elk Grove
Village Industrial Park Ltd. hereinafter referred to as "Landlord", and FACTORY
CARD OUTLET OF AMERICA hereinafter referred to as "Tenant":
W I T N E S S E T H :
See
P. 32
1. Premises and Term. In consideration of the obligation of Tenant to pay
rent as herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby accepts and leases from Landlord, all that portion (hereinafter referred
to as the "premises") of certain real property, buildings and improvements
situated within the County of DuPage, State of Illinois, legally described in
Exhibit "A", said premises being as outlined on the site plan contained in
Exhibit "B", and including any parking areas and truck loading areas
specifically marked in red on said Exhibit B for the exclusive use of tenant,
said Exhibits being attached hereto and incorporated herein by reference, and
all rights, privileges, easements, appurtenances and immunities belonging to or
in any way pertaining to the premises.
TO HAVE AND TO HOLD the same for a term commencing on August 1, 1995 and
ending July 31, 1998 thirty-six (36) months thereafter, unless terminated
pursuant to any provision hereof. Tenant acknowledges that it has inspected the
premises, knows the condition thereof, and accepts such premises, and
specifically the buildings and improvements are in good and satisfactory
condition as of when possession was taken, except for latent defects and
punchlist items identified within thirty (30) days after possession. Tenant
further acknowledges that no representations as to the repair of the premises,
nor promises to alter, remodel or improve the premises have been made by
Landlord, unless such are expressly set forth in this lease. After the
commencement date, Tenant shall, upon demand, execute and deliver to Landlord a
letter of acceptance of delivery of the premises.
2. Base Rent and Security Deposit.
A. Tenant agrees to pay to Landlord for the premises in lawful money of the
United States rent for the entire term hereof at the rate of Forty Nine Thousand
One Hundred Seventy Two and 40/100 Dollars ($49,172.40) per month, in advance,
except that the monthly installment which otherwise shall be due on the
commencement date recited above, shall be due and payable on the date hereof.
Thereafter, one such monthly installment shall be due and payable without demand
on or before the first day of each calendar month succeeding the commencement
date recited above during the demised term; further provided, that the rental
payment for any fractional calendar month at the commencement or end of the
lease term shall be prorated.
B. In addition, Tenant agrees to deposit with Landlord on the date hereof
the sum of Forty Nine Thousand One Hundred Seventy Two and 40/100 Dollars
($49,172.40), which sum shall be held by Landlord, without obligation for
interest, as security for the full, timely and faithful performance of Tenant's
covenants and obligations under this lease, it being expressly understood and
agreed that such deposit is not an advance rental deposit or a measure of
Landlord's damages in case of Tenant's default. Upon the occurrence of any event
of default by Tenant, Landlord may, from time to time, without prejudice to any
other remedy provided herein or provided by law, use such fund to the extent
necessary to make good any arrears of rent or other payments due Landlord
hereunder, and any other damage, injury, expense or liability caused by any
event of Tenant's default; and Tenant shall pay to Landlord on demand the amount
so applied in order to restore the security deposit to its original amount.
Although the security deposit shall be deemed the property of Landlord, any
remaining balance of such deposit shall be returned by Landlord to Tenant within
thirty (30) days after termination of this lease when Landlord shall have
determined that all Tenant's obligations under this lease have been fulfilled.
Subject to the other terms and conditions contained in this lease, if the
premises are conveyed by Landlord, said deposit may be turned over to
Landlord's, or its successor's grantee, and if so, Tenant hereby releases
Landlord, or its successor, as the case may be, as long as Tenant is notified of
said conveyance and so long as the successor or grantee has assumed said
responsibility for said deposit, from any and all liability with respect to said
deposit and its application or return.
3. Use. The demised premises shall be continuously used by Tenant, but only
for the purpose of receiving, storing, shipping and selling (other than at
retail) products, materials and merchandise made and/or distributed by Tenant
and for such other lawful purposes as may be incidental thereto. Tenant shall at
its own cost and expense obtain any and all licenses and permits necessary for
any such use. The parking of automobiles, trucks or other vehicles in the areas
not specifically designated on Exhibit B (unless such other areas are designated
by Landlord to be common parking areas) and the outside storage of any property
are prohibited without Landlord's prior written consent, Tenant shall comply
with all governmental laws, ordinances and regulations applicable to the use of
the premises and its occupancy thereof, and shall promptly comply with all
governmental orders and directives for the correction, prevention and abatement
of any violations or nuisances in or upon, or connected with, the premises, all
at Tenant's sole expense. If, as a result of any change in the governmental
laws, ordinances and regulations, the premises must be altered to lawfully
accommodate Tenant's use and occupancy thereof, such alterations shall be made
only with the consent of Landlord, but the entire cost thereof shall be borne by
Tenant; provided, that, the necessity of Landlord's consent shall in no way
create any liability against Landlord for failure of Tenant to comply, or alter
the premises to comply, with such laws, ordinances and regulations. Tenant shall
not permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the premises, nor take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of the
building in which the premises are situated or unreasonably interfere with such
tenants' use of their respective premises or permit any use which would
adversely affect the reputation of the building in which the premises are
situated. Without Landlord's prior written consent, Tenant shall not receive,
store or otherwise handle any product, material or merchandise which is
explosive or highly flammable. Tenant will not permit the premises to be used
for any purpose (including, without limitation, the storage of merchandise) in
any manner which would render the insurance thereon void or increase the
insurance rate thereof, and Tenant shall immediately cease and desist from such
use, paying all costs and expense resulting from such improper use.
4. Taxes.
A. Landlord agrees to pay all general and special taxes, assessments and
governmental charges of any kind and nature whatsoever (hereinafter collectively
referred to as "taxes") lawfully levied against the real property described in
Exhibit A, the building situated thereon and the grounds, parking areas,
driveways and alleys around the building. If for any real estate tax year
applicable to the term hereof (or any renewal or extension of such term),
Tenant's proportionate share of such taxes levied for such tax year shall exceed
the sum of Seventy Five Thousand Seven Hundred Seventy Seven and 25/100 Dollars
($75,777.25) ("Landlord's share"), Tenant shall pay to Landlord as additional
rent within fifteen (15) days after Landlord's billing which will include a copy
of the tax xxxx for such tax year issues, the amount of such excess applicable
to each installment less any monthly payments paid by Tenant as provided below
for such tax year. Upon the issuance of the actual bills (as distinguished from
any estimated xxxx) for taxes to be paid in the calendar year in which the
commencement date falls and upon the issuance of such actual bills in each
succeeding calendar year
during the term hereof. Tenant shall, upon Landlord's request, commencing with
the first day of the month next succeeding the date on which the taxes covered
by such bills are due without penalty and on the first day of each of the next
eleven months, pay as additional rent and not as a deposit, one-twelfth (1/12th)
of the amount by which the taxes paid in such calendar year exceeded Landlord's
share. In addition, Tenant shall pay within fifteen (15) days after Landlord's
billing for same with a copy of the tax xxxx its proportionate share of any
reasonable fees, expenses and costs incurred by Landlord in protesting any
assessments, levies or the tax rate pertaining to the lease term only.
B. If at any time during the term of this lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments or governmental charges levied, assessed or imposed on real estate
and the improvements thereon, there shall be levied, assessed or imposed on
Landlord's capital levy or other tax directly on the rents received therefrom
and/or a franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rents for the present or any future building or
buildings on the premises, then all such taxes, assessments, levies or charges
(not including Landlord's income taxes), or the part thereof so measured or
based, shall be deemed to be included within the term "taxes" for the purposes
hereof.
C. Any payment to be made pursuant to this Paragraph 4 with respect to the
real estate tax year in which this lease commences or terminates shall be
prorated.
See P. 29
5. Landlord's Repairs. Landlord shall at its expense maintain in good
repair, reasonable wear and tear excepted, only the footings and foundation,
roof and the structural soundness of the exterior walls of the building. Tenant
shall immediately give Landlord written notice of any defect (latent or
otherwise) or need for repairs in the foundation, structural elements and
exterior walls of the building, after which Landlord shall have thirty (30) days
or such commercially feasible period of time, so long as Landlord is proceeding
diligently to repair same or cure such defect, Landlord's liability with respect
to any defects, repairs or maintenance for which Landlord is responsible under
any of the provisions of this lease shall be limited to the cost of such repairs
or maintenance or the curing of such defect. The term "walls" as used herein
shall not include windows, glass or plate glass, doors, special store fronts or
office entries.
See P. 33
6. Tenant's Repairs.
A. Tenant shall at its own cost and expense keep and maintain all parts of
the premises, in good condition, promptly making all necessary repairs and
replacements, whether ordinary or extraordinary, or structural or nonstructural,
with materials and workmanship of the same character, kind and quality as the
original, including but not limited to, windows, glass and plate glass, doors,
skylights, any special office entries, interior walls and finish work, floors
and floor coverings, interior roof drains, heating and air conditioning systems,
electrical systems and fixtures, sprinkler systems, dock boards, truck doors,
dock bumpers, paving, plumbing work and fixtures, termite and pest
extermination, regular removal of trash and debris. Tenant as part of its
obligations hereunder shall (i) keep the parking areas, driveways, alleys and
the whole of the premises in a clean and sanitary condition, and (ii) without
injury to the roof, other horizontal surfaces of the building, parking areas,
driveways and sidewalks, remove all snow and ice from same. Tenant will, as far
as possible, keep all such parts of the premises from deterioration due to
ordinary wear and from falling temporarily out of repair, and upon termination
of this lease in any way Tenant will yield up the premises to Landlord in good
condition and repair, loss by fire or other casualty covered by insurance to be
maintained by Landlord pursuant to paragraph 12A hereof except (but not
excepting any damage to glass). In the event of any insurance claims, Tenant
shall be liable for payment of any deductible under any of Landlord's insurance
policies with respect to the premises. Said deductible not to exceed $5,000.
B. Tenant shall not damage any demising wall or disturb the integrity and
support provided by any demising wall and shall, at its sole cost and expense,
promptly repair any damage or injury to any demising wall caused by Tenant or
its employees, agents or invitees.
C. Tenant and its employees, customers and licensees shall have the
nonexclusive right to use, in common with the other parties occupying said
building, common parking areas, if any, (exclusive of any parking or work load
areas designated or to be designated by Landlord, for the exclusive use of
Tenant or other tenants occupying or to be occupying other portions of the
building), driveways and alleys adjacent to said building, subject to such
reasonable rules and regulations as Landlord may from time to time prescribe.
Further, pursuant to Xxxxxxxxx 00, Xxxxxxxx shall perform the landscape
maintenance for the grounds around the building, including, but not limited to,
the mowing of grass, care of shrubs, general landscaping.
E. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Landlord, for servicing all heating and air conditioning systems and
equipment within the premises. The service contract must include all services
outlined on Exhibit D and must become effective within thirty (30) days of the
date Tenant takes possession of the premises.
F. Tenant shall, at its own cost and expense, repair any damage to the
premises resulting from and/or caused in whole or in part by the negligence or
misconduct of Tenant, its agents, servants, employees, patrons, customers, or
any other person entering upon the premises as a result of Tenant's business
activities or caused by Tenant's default hereunder.
7. Alterations. Tenant shall not make any alterations, additions or
improvements to the premises (including, without limitation, the roof and wall
penetrations) without the prior written consent of Landlord, which consent shall
not be unreasonably withheld for interior, non-structural alterations. Tenant
may, without the consent of Landlord, but at its own cost and expense and in a
good workmanlike manner erect such shelves, bins, machinery and other trade
fixtures as it may deem advisable, without altering the basic character of the
building or improvements and without overloading or damaging such building or
improvements, and in each case after complying with all applicable governmental
laws, ordinances, regulations and other requirements. All alterations,
additions, improvements and partitions erected by Tenant shall be and remain the
property of Tenant during the term of this lease and Tenant shall, unless
Landlord otherwise elects as hereinafter provided, remove all alterations,
additions, improvements and partitions erected by Tenant and restore the
premises to their original condition by the date of termination of this lease or
upon earlier vacating of the premises; provided, however, that if at such time
Landlord so elects such alterations, additions, improvements and partitions but
not Tenant's trade fixtures, shall become the property of Landlord as of the
date of termination of this lease or upon earlier vacating of the premises and
title shall pass to Landlord under this lease as by a xxxx of sale. All shelves,
bins, machinery and trade fixtures installed by Tenant may be removed by Tenant
prior to the termination of this lease if Tenant so elects, and shall be removed
by the date of termination of this lease or upon earlier vacating of the
premises if required by Landlord; upon such removal Tenant shall restore the
premises to their original condition. All such removals and restoration shall be
accomplished in a good workmanlike manner so as not to damage the primary
structure or structural qualities of the buildings and other improvements within
which the premises are situated. If Landlord shall consent to any alterations,
additions or improvements proposed by Tenant, Tenant shall construct the same in
accordance with all governmental laws, ordinances, rules and regulations and
shall, prior to construction, provide such assurances to Landlord, (including,
but not limited to, waivers of lien, surety company performance bonds and
personal guaranties of individuals of substance) as Landlord shall require to
protect Landlord against any loss from any mechanics', laborers' or
materialmen's liens, or other liens.
8. Signs. Tenant shall not install any signs upon the premises, except that
Landlord will provide, at Tenant's request and cost, Landlord's standard
identification sign, which sign shall be removed by Tenant upon termination of
this lease.
9. Inspections. Landlord and Landlord's agents and representatives shall
have the right to enter and inspect the premises at any reasonable time with
prior oral notice except in case of emergency, during business hours, for the
following purposes: (i) to ascertain the condition of the premises; (ii) to
determine whether Tenant is diligently fulfilling Tenant's responsibilities
under this lease; (iii) to make such repairs as may be required or permitted to
be made by Landlord under the terms of this lease; or (iv) to do any other act
or thing which Landlord deems reasonable to preserve the premises and the
building and improvements of which the premises are a part. During the period
that is six (6) months prior to the end of the term hereof and at any time
Tenant is in material default hereunder and such default has remained uncured
for at least thirty (30) days, Landlord and Landlord's agents and
representatives shall have the right to enter the premises at any reasonable
time with prior oral notice except in case of emergency, during business hours
for the purpose of showing the premises and shall have the right to erect on the
premises suitable signs in-
dicating that the premises are available for leases. Tenant shall give written
notice to Landlord at least thirty (30) days prior to vacating the premises and
shall arrange to meet with Landlord for a joint inspection of the premises prior
to vacating. In the event of Tenant's failure to give such notice or arrange
such joint inspection, Landlord's inspection at or after Tenant's vacating the
premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
10. Utilities. Landlord agrees to provide, at its cost, water, electricity
and telephone service connections into the premises; but Tenant shall pay for
all water, gas, heat, light, power, telephone, sewer, sprinkler system charges
and other utilities and services used on or from the premises, including without
limitation, Tenant's proportionate share of any central station signaling system
installed in the premises or the building of which the premises are a part,
together with any taxes, penalties, and surcharges or the like pertaining
thereto and any maintenance charges for utilities. Tenant shall furnish all
electric light bulbs, tubes and ballasts. If any such services are not
separately metered to Tenant, Tenant shall pay such pay such proportion of all
charges jointly metered with other premises as determined by Landlord, in its
sole discretion, to be reasonable. Any such charges paid by Landlord and
assessed against Tenant shall be immediately payable to Landlord on demand
within fifteen (15) days after Landlord's billing with copies of Landlord's
bills and shall be additional rent hereunder. Landlord shall in no event be
liable for any interruption or failure of utility services on or to the
premises.
11. Assignment and Subletting.
A. Tenant shall not have the right to assign or pledge this lease or to
sublet the whole or any part of the premises, whether voluntary or by operation
of law, or permit the use or occupancy of the premises by anyone other than
Tenant, without the prior written consent of Landlord which shall not be
unreasonably withheld or delayed and such restrictions shall be binding upon any
assignee or subtenant to which Landlord has consented. In the event Tenant
desires to sublet the premises, or any portion thereof, or assign this lease,
Tenant shall give written notice thereof to Landlord within a reasonable amount
of time prior to the proposed commencement date of such subletting or
assignment, which notice shall set forth the name of the proposed subtenant or
assignee, the relevant terms of any sublease and copies of financial reports and
other relevant financial information of the proposed subtenant or assignee.
Notwithstanding any permitted assignment or subletting, Tenant shall at all
times remain directly, primarily and fully responsible and liable for the
payment of the rent herein specified and for compliance with all of its other
obligations under the terms, provisions and covenants of this lease. Upon the
occurrence of an "event of default" (as hereinafter defined), if the premises or
any part thereof are then assigned or sublet, Landlord, in addition to any other
remedies herein provided, or provided by law, may, at its option collect
directly from such assignee or subtenant all rents due and becoming due to
Tenant under such assignment or sublease and apply such rent against any sums
due to Landlord from Tenant hereunder, and no such collection shall be construed
to constitute a novation or a release of Tenant from the further performance of
Tenant's obligations hereunder.
B. In addition to, but not in limitation of, Landlord's right to approve of
any subtenant or assignee, Landlord shall have the option, in its sole
discretion, in the event of any proposed subletting or assignment, to terminate
this lease, or in the case of a proposed subletting of less than the entire
premises, to recapture the portion of the premises to be sublet, as of the date
the subletting or assignment is to be effective. The option shall be exercised,
if at all, by Landlord giving Tenant written notice thereof within ten (10)
business days following Landlord's receipt of Tenant's written notice as
required above. If this lease shall be terminated with respect to the entire
demised premises pursuant to this paragraph, the term of this lease shall end on
the date stated in Tenant's notice as the effective date of the sublease or
assignment as if that date had been originally fixed in this lease for the
expiration of the term hereof; provided, however, that effective on such date
Tenant shall pay Landlord all amounts, as estimated by Landlord, payable by
Tenant to such date, with respect to taxes, insurance, repairs, maintenance,
restoration and other obligations, costs or charges which are the responsibility
to Tenant hereunder. Further, upon any such cancellation Landlord and Tenant
shall have no further obligations or liabilities to each other under this lease,
except with respect to obligations or liabilities which accrued hereunder as of
such cancellation date (in the same manner as if such cancellation date were the
date originally fixed in this lease for the expiration of the term hereof). If
Landlord recaptures under this paragraph only a portion of the demised premises,
the rent during the unexpired term hereof shall xxxxx proportionately based on
the rent per square foot contained in this lease as of the date immediately
prior to such recapture. Tenant shall, at Tenant's own cost and expense,
discharge in full any commissions which may be due and owing as a result of any
proposed assignment or subletting, whether or not the premises are recaptured
pursuant hereto and rented by Landlord to the proposed tenant or any other
tenant.
C. Notwithstanding the provisions of the foregoing paragraphs, Tenant may,
without Landlord's consent, assign this lease to any corporation succeeding to
substantially all the business and assets of Tenant by merger, consolidation,
purchase of assets or otherwise or to any corporation or entity which is a
subsidiary or division of Tenant, provided that the following conditions are
satisfied: (i) the total assets and net worth of such assignee shall be equal to
or more than that of Tenant immediately prior to such transaction; (ii) Tenant
is not then in default hereunder; and (iii) such successor shall execute and
deliver to Landlord an instrument in writing fully assuming all obligations and
liabilities imposed on Tenant hereunder. Upon satisfaction of the foregoing,
Landlord agrees to discharge Tenant from any further liability hereunder.
12. Fire and Casualty Damage.
A. Landlord agrees to maintain standard fire and extended coverage
insurance covering the building of which the premises are a part in an amount
not less than ninety percent (90%) (or such greater percentage as may be
necessary to comply with the provisions of any co-insurance clauses of the
policy) of the "replacement cost" thereof as such term is defined in the
Replacement Cost Endorsement to be attached thereto, insuring against the perils
of fire and lightning and included extended coverage, or at Landlord's option
all risk coverage, such coverages and endorsements to be as defined, provided
and limited in the standard bureau forms prescribed by the insurance regulatory
authority for the state in which the premises are situated for use by insurance
companies admitted in such state for the writing of such insurance on risks
located within such state. Subject to the provisions of subparagraphs 12C, 12D
and 12F below, such insurance shall be for the sole benefit of Landlord and
under its sole control. If during the second full lease year after the
commencement date of this lease, or during any subsequent year of the primary
term or any renewal or extension, Landlord's cost of maintaining such insurance
shall exceed Landlord's cost of maintaining such insurance for the first full
lease year of the term hereof. Tenant agrees to pay to Landlord, as additional
rent, Tenant's full proportionate share (as defined in subparagraph 24) with
copies of the insurance xxxx of such excess. Said payments shall be made to
Landlord within fifteen (15) days after presentation to Tenant of Landlord's
statement setting forth the amount due, and the failure to pay such excess shall
be treated in the same manner as a default in the payment of rent hereunder when
due. Any payment to be made pursuant to this subparagraph 12A with respect to
the year in which this lease commences or terminates shall bear the same ratio
to the payment which would be required to be made for the full year as the part
of such year covered by the term of this lease bears to a full year. Tenant
shall not take out separate insurance concurrent in form or contributing in the
event of loss with that required to be maintained by Landlord hereunder unless
Landlord is included as an additional insured thereon. Tenant shall immediately
notify Landlord whenever any such separate insurance is taken out and shall
promptly deliver to Landlord the policy of such insurance.
B. If the buildings situated upon the premises should be damaged or
destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
C. If the buildings situated upon the premises should be damaged by any
peril covered by the insurance to be provided by Landlord under subparagraph 12A
above, but only to such extent that rebuilding or repairs can in Landlord's
estimation be completed within one hundred fifty (150) days after the date upon
which Landlord is notified by Tenant of such damage, (except that Landlord will
not rebuild if such damage occurs during the last year of the term hereof), this
lease shall not terminate, and Landlord shall at its sole cost and expense
thereupon proceed with reasonable diligence to rebuild and repair such buildings
to substantially the condition in which they existed prior to such damage,
except Landlord shall not be required to rebuild, repair or replace any part of
the partitions, fixtures, additions and other improvements which may have been
placed in, on or about the premises by Tenant. If the premises are untenantable
in whole or in part following such damage, the rent payable hereunder during the
period in which the premises are untenantable shall be reduced on a pro rata
basis. In the event that Landlord should fail to complete such repairs and
rebuilding within one hundred fifty (150) days after the date upon which
Landlord is notified by Tenant of such damage, Tenant may at its option
terminate this lease by delivering written notice of termination to Landlord as
Tenant's exclusive remedy, whereupon all rights and obligations hereunder shall
cease and terminate; provided, however, that if construction is delayed because
of changes, deletions, or additions in construction requested by Tenant,
strikes, lockouts, casualties, acts of God, war, material or labor shortages,
Governmental regulation or control or other causes beyond the reasonable control
of Landlord, the period for restoration, repair or rebuilding shall be extended
for the amount of time Landlord is so delayed. If such delays beyond Landlord's
control exceed a total of 250 days from Tenant's notice, this lease shall
terminate at Tenant's election, by giving Landlord written notice of such intent
ten (10) days after the two hundred fiftieth (250th) day (as of the 250th to
260th day) of Tenant's original written notice of such casualty.
D. If the buildings situated upon the premises should be damaged or
destroyed by fire, tornado or other casualty and Landlord is not required to
rebuild pursuant to the provisions of subparagraph 12C hereof, this lease shall
at the option of Landlord, upon notice to Tenant, given within thirty (30) days
after Landlord is notified by Tenant of such damage, terminate and the rent
shall be abated during the unexpired portion of this lease, effective upon the
date of the occurrence of such damage.
E. Tenant covenants and agrees to maintain insurance on all alterations,
additions, partitions and improvements erected by or on behalf of Tenant in, on
or about the premises in an amount not less than ninety percent (90%) (or such
greater percentage as may be necessary to comply with the provisions of any
co-insurance clause of the policy) of the "replacement cost" thereof, as such
term is defined in the Replacement Cost Endorsement to be attached thereto. Such
insurance shall insure against the perils and be in form, including stipulated
endorsements, as provided in Subparagraph 12A hereof. Such insurance shall be
for the sole benefit of Tenant and under its sole control provided that Tenant
shall be obligated to commence the rebuilding of the improvements erected by
Tenant, upon Landlord's determination to rebuild or repair and to apply such
proceeds in payment of the cost thereof. In the event Landlord decides not to
rebuild or repair, Tenant will not be obligated to repair such alterations. All
such policies shall be procured by Tenant from responsible insurance companies
satisfactory to Landlord. Certificate of such insurance, together with receipt
evidencing payment of the premiums therefor, shall be delivered to Landlord
prior to the commencement date of this lease. Not less than fifteen (15) days
prior to the expiration date of any such policies, certified copies of renewals
thereof (bearing notations evidencing the payment of renewal premiums) shall be
delivered to Landlord. Such policies shall further provide that not less than
thirty (30) days written notice shall be given to Landlord before such policy
may be cancelled or charged to reduce insurance provided thereby.
F. Notwithstanding anything herein to the contrary, in the event the holder
of any indebtedness secured by a mortgage or deed of trust covering the premises
of the building of which the premises are a part requires that the insurance
proceeds be applied to such indebtedness, then Landlord shall have the right to
terminate this lease by delivering written notice of termination to Tenant
within fifteen (15) days after such requirement is made by any such holder,
whereupon all rights and obligations hereunder shall cease and terminate.
G. Each of Landlord and Tenant hereby release the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured in policies of insurance covering
such property even if such loss or damage shall have been caused by the fault or
negligence of the other party or anyone for whom such party may be responsible,
including any other tenants or occupants of the remainder of the building in
which the premises are located; provided, however, that this release shall be
applicable and in force and effect only to the extent that such release shall be
lawful at that time and in any event only with respect to loss or damage
occurring during such times as the releasor's policies shall contain a clause or
endorsement to the effect that any such release shall not adversely affect or
impair said policies or prejudice the right of the releasor to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. Each of Landlord and Tenant agrees that it will request its
insurance carriers to include in its policies such a clause or endorsement. If
extra cost shall be charged therefor, each party shall advise the other thereof
and of the amount of the extra cost, and the other party, at its election, may
pay the same, but shall not be obligated to do so. If such other party fails to
pay such extra cost, the release provisions of this paragraph shall be
inoperative against such other party to the extent necessary to avoid
invalidation of such releasor's insurance.
H. In the event of any damage or destruction to the premises by any peril
covered by the provisions of this Paragraph 12, Tenant shall, upon notice from
Landlord, forthwith remove, at its sole cost and expense, such portion or all of
Tenant's shelves, bins, machinery and other trade fixtures and all other
property belonging to Tenant or his licensees from such portion or all of the
premises as Landlord shall request and Tenant hereby indemnifies and holds
harmless the property Landlord (including without limitation the trustee and
beneficiaries if Landlord is a trust), Landlord's agents and employees from any
loss, liability, claims, suits, costs, expenses, including attorney's fees and
damages, both real and alleged, arising out of any damage or injury as a result
of the failure to properly secure the premises prior to such removal and/or as a
result of such removal.
13. Liability. Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the premises, to the
extent caused by the negligence or misconduct of Tenant, its agents, servants or
employees, or of any other person entering upon the premises, or caused by the
improvements located on the premises which Tenant is responsible for
maintaining, becoming out of repair or caused by leakage of gas, oil, water or
steam or by electricity emanating from the premises, or due to any cause
whatsoever and Tenant hereby covenants and agrees that it will at all times
indemnify and hold safe and hold harmless the property, the Landlord (including
without limitation the trustee and beneficiaries if Landlord is a trust),
Landlord's agents and employees from any loss, liability, claims, suits, costs,
expenses, including attorney's fees and damages, both real and alleged, arising
out of such damage or injury; except injury to persons or damage to property to
the extent the cause of which is the negligence of Landlord or the failure of
Landlord to repair any part of the premises which Landlord is obligated to
repair and maintain hereunder within a reasonable time after the receipt of
written notice from Tenant of needed repairs. Tenant shall procure and maintain
throughout the term of this lease a policy or policies of insurance, in form and
substance satisfactory to Landlord, at Tenant's sole cost and expense, insuring
both Landlord (and if Landlord is a trust, the trustee, beneficiaries and their
agents) and Tenant against all claims, demands or actions arising out or in
connection with (i) the premises; (ii) the condition of the premises; (iii)
Tenant's operations in and maintenance and use of the premises; and (iv)
Tenant's liability assumed under this lease; the limits of such policy or
policies to be in the amount of not less than $2,000,000 per occurrence in
respect of injury to persons (including death), and in the amount of not less
than $250,000 per occurrence in respect of injury to persons (including death),
and in the amount of not less than $250,000 per occurrence in respect of
property damage or destruction, including loss of use thereof. All such policies
shall be procured by Tenant from responsible insurance companies satisfactory to
Landlord. Certificates of Insurance of such policies, together with receipt
evidencing payment of premiums therefor, shall be delivered to Landlord prior to
the commencement date of this lease. Not less than (15) days prior to the
expiration date of any such policies, Certificates of Insurance of the renewals
thereof (bearing notations evidencing the payment of renewal premiums) shall be
delivered to Landlord. Such policies shall further provide that not less than
thirty (30) days written notice shall be given to Landlord before such policy
may be canceled or changed to reduce the insurance coverage provided thereby.
14. Condemnation.
A. If the whole or any substantial part of the premises should be taken for
any public or quasi-public use under governmental law, ordnance or regulation,
or by right of eminent domain, or by private purchase in lieu thereof and the
taking would prevent or materially interfere with the use of the premises for
the purpose for which they are then being used, this lease shall terminate and
the rent shall be abated during the unexpired portion of this lease, effective
when the physical taking of said premises shall occur.
B. If part of the premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and this lease is not terminated
as provided in the subparagraph above, this lease shall not terminate but the
rent payable hereunder during the unexpired portion of this lease shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances and Landlord shall undertake to restore the premises to a
condition suitable for Tenant's use, as near to the condition thereof
immediately prior to such taking as is reasonably feasible under all the
circumstances.
C. In the event of any such taking or private purchase in lieu thereof,
Landlord and Tenant shall each be entitled to receive and retain such separate
awards and/or portion of lump sum awards as may be allocated to their respective
interests in any condmenation proceedings; provided that Tenant shall not be
entitled to receive any award for Tenant's loss of its leasehold interest, the
right to such award being hereby assigned by Tenant to Landlord.
15. Holding Over. Tenant will, at the termination of this lease by lapse of
time or otherwise, yield up immediate possession to Landlord. If Tenant retains
possession of the premises or any part thereof after such termination, then
Landlord may, at its option, serve written notice upon Tenant that such holding
over constitutes any one of (ii) creation of a month to month tenancy, upon the
terms and conditions set forth in this lease, or (iii) creation of a tenancy at
sufferance, in any case upon the terms and conditions set forth in this lease;
provided, however, that the monthly rental (or daily rental under (iii)) shall,
in addition to all other sums which are to be paid by Tenant hereunder, whether
or not as additional rent, be equal to double the rental being paid monthly to
Landlord under this lease immediately prior to such termination (prorated in the
case of (iii) on the basis of a 365 day year for each day Tenant remains in
possession. If no such notice is served, then a tenancy at sufferance shall be
deed to be created at the rent in the preceding sentence. Tenant shall also pay
to Landlord all damages sustained by Landlord resulting from retention of
possession by Tenant, including the loss of any proposed subsequent tenant for
any portion of the premises. The provisions of this paragraph shall not
constitute a waiver by Landlord of any right of re-entry as herein set forth;
nor shall receipt of any rent or any other act in apparent affirmance of the
tenancy operate as a waiver of the right to terminate this lease for a breach of
any of the terms, covenants, or obligations herein on Tenant's part to be
performed.
16. Quiet Enjoyment. Landlord covenants that it now has, or will acquire
before Tenant takes possession of the premises, good title to the premises, free
and clear of all liens and encumbrances, excepting only the lien for current
taxes not yet due, such mortgage or mortgages as are permitted by the terms of
this lease, zoning ordinances and other building and fire ordinances and
governmental regulations relating to the use of such property, and easements,
restrictions and other conditions of record. In the event this lease is a
sublease, then Tenant agrees to take the premises subject to the provisions of
the prior leases. Landlord represents and warrants that it has full right and
authority to enter into this lease and that Tenant, upon paying the rental
herein set forth and performing its other covenants and agreements herein set
forth, shall peaceably and quietly have, hold and enjoy the premises for the
term hereof without hindrance or molestation from Landlord, subject to the terms
and provisions of this lease. Landlord agrees to make reasonable efforts to
protect Tenant from interference or disturbance by other tenants or third
persons; however, Landlord shall not be liable for any such interference or
disturbance by other tenants or other persons; however, Landlord shall not be
liable for any such interference or disturbance, nor shall Tenant be released
from any of the obligations of this lease because of such interference or
disturbance.
17. Events of Default. The following events shall be deemed to be events of
default by Tenant under this lease:
(a) Tenant shall fail to pay when or before due any some of money
becoming due to be paid to Landlord hereunder, whether such sum be any
installment of the rent herein reserved, any other amount treated as
additional rent hereunder, or any other payment or reimbursement to
Landlord required herein, whether or not treated as additional rent
hereunder, and such failure shall continue for a period of five (5) days
from the date such payment was due; or Landlord shall give Tenant written
notice of default twice during a calendar year. Tenant shall have five (5)
days from the date of Landlord's notice to cure such default.
(b) Tenant shall fail to comply with any term, provision or covenant
of this lease other than by failing to pay when or before due any sum of
money becoming due to be paid to Landlord hereunder, and shall not cure or
commence to cure and diligently proceed to cure such default within twenty
(20) days (forthwith, if the default involves a hazardous condition) after
written notice thereof to Tenant; or
(c) Tenant shall abandon any substantial portion of the premises; or
(d) Tenant shall fail to immediately vacate the premises upon
termination of this lease, by lapse of time or otherwise, or upon
termination of Tenant's right to possession only; or
(e) The leasehold interest of Tenant shall be levied upon under
execution or be attached by process of law or Tenant shall fail to contest
diligently the validity of any lien or claimed lien and give sufficient
security to Landlord to insure payment thereof or shall fail to satisfy any
judgment rendered thereon and have the same released, and such default
shall continue for ten (10) days after written notice thereof to Tenant; or
(f) Tenant shall admit in writing its inability to pay its debts
generally as they become due, file a petition in bankruptcy or a petition
to take advantage of any insolvency statute, make an assignment for the
benefit of creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof; or
(g) A court of competent jurisdiction shall enter an order, its
judgment or decree adjudicating Tenant a bankrupt, or appointing a receiver
of Tenant, or of the whole or any substantial part of its property, without
the consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement from Tenant under the bankruptcy laws of the
United States, as now in effect or hereafter amended, or any state thereof,
and such order, judgment or decree shall not be vacated or set aside or
stayed within thirty (30) days from the date of entry thereof.
18. Remedies. Upon the occurrence of any of such events of default
described in Paragraph 17 hereof or elsewhere in this lease, Landlord shall have
the option to pursue any one or more of the following remedies without any
notice or demand whatsoever:
(a) Landlord may, at its election, terminate this lease or terminate
Tenant's right to possession only, without terminating the lease;
(b) Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the lease, Tenant shall surrender possession and vacate the
premises immediately, and deliver possession thereof to Landlord, and
Tenant hereby grants to Landlord full and free license to enter into and
upon the premises in such event with process of law and to repossess
Landlord of the premises as of Landlord's former estate and to expel or
remove Tenant and any others who may be occupying or within the premises
and to remove any and all property therefrom, without being deemed in any
manner guilty of trespass, eviction or forcible entry or detainer, and
without incurring any liability for any damage resulting therefrom, Tenant
hereby waiving any right to claim damage for such re-entry and expulsion,
and without relinquishing Landlord's right to rent or any other rent given
to Landlord hereunder or by operation of law;
(c) Upon any termination of this lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all rent,
including any amounts treated as additional rent hereunder, and other sums
due and payable by Tenant on the date of termination, plus the sum of (i)
an amount equal to the then present value of the rent, including any
amounts treated as additional rent hereunder, and other sums provided
herein to be paid by Tenant for the residue of the stated term hereof, less
the fair rental value of the premises for such residue (taking into account
the time and expense necessary to obtain a replacement tenant or tenants,
including expenses hereinafter described in subparagraph (d) relating to
recovery of the premises, preparation for reletting and for reletting
itself), and (ii) the cost of performing any other covenants which would
have otherwise been performed by Tenant;
(d) (i) Upon any termination of Tenant's right to possession only
without termination of the lease, Landlord may, at Landlord's option, enter
into the premises, remove Tenant's signs and other evidences of tenancy,
and take and hold possession thereof as provided in subparagraph (b) above,
without such entry and possession terminating the lease or releasing
Tenant, in whole or in part, from any obligation, including Tenant's
obligation to pay the rent, including any amounts treated as additional
rent, hereunder for the full term. In any case Tenant shall pay forthwith
to Landlord, if Landlord so elects, a sum equal to the entire amount of the
rent, including any amounts treated as additional rent hereunder, for the
residue of the stated term hereof plus any other sums provided herein to be
paid by Tenant for the remainder of the lease term.
See P. 28
(e) Landlord may, at Landlord's option, enter into and upon the
premises, with process of law, if Landlord determines in its reasonable
commercial judgment that Tenant is not acting within a commercially
reasonable time to maintain, repair or replace anything for which Tenant is
responsible hereunder and correct the same, without being deemed in any
manner guilty of trespass, eviction or forcible entry and detainer and
without incurring any liability for any damage resulting therefrom and
Tenant agrees to reimburse Landlord, on demand, as additional rent, for any
expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this lease;
(f) Any and all property which may be removed from the premises by
Landlord pursuant to the authority of the lease or of law, to which Tenant
is or may be entitled, may be handled, removed and stored, as the case may
be, by or at the direction of Landlord at the risk, cost and expense of
Tenant, and Landlord shall in no event be responsible for the value,
preservation and safekeeping thereof. Tenant shall pay to Landlord, upon
demand, any and all expenses incurred in such removal and all storage
charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Any such property of Tenant not
retaken by Tenant from storage within thirty (30) days after removal from
the premises shall conclusively be presumed to have been conveyed by Tenant
to Landlord under this lease as a xxxx of sale without further payment or
credit by Landlord to Tenant.
In the event Tenant fails to pay any installment of rent, including any
amount treated as additional rent hereunder, or other sums hereunder as and when
such installment or other charge is due, Tenant shall pay to Landlord on demand
a late charge in an amount equal to five percent (5%) of such installment or
other charge overdue in any month and five percent (5%) each month thereafter
until paid in full to help defray the additional cost to Landlord for processing
such late payments, and such late charge shall be additional rent hereunder and
the failure to pay such late charge within ten (10) days after demand therefor
shall be an additional event of default hereunder. The provision for such late
charge shall be in addition to all Landlord's other rights and remedies
hereunder or at law and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law (all
such remedies being cumulative), nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent due to Landlord hereunder or of
any damages accruing to Landlord by reason of the violation of any of the terms,
provisions and covenants herein contained. No act or thing done by Landlord or
its agents during the term hereby granted shall be deemed a termination of this
lease or an acceptance of the surrender of the premises, and no agreement to
terminate this lease or accept a surrender of said premises shall be valid
unless in writing signed by Landlord. No waiver by Landlord of any violation or
breach violation or breach of any of the terms, provisions and covenants herein
contained. Landlord's acceptance of the payment of rental or other payments
hereunder after the occurrence of an event of default shall not be construed as
a waiver of such default, unless Landlord so notifies Tenant in writing.
Forbearance by Landlord to enforce one or more of the remedies herein provided
upon an event of default shall not be deemed or construed to constitute a waiver
of such default or of Landlord's right to enforce any such remedies
with respect to such default or any subsequent default.
20. Mortgages. Tenant accepts this lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a
lien or charge upon the premises or the improvements situated thereon, provided,
however, that if the mortgagee, trustee or holder of any such mortgage or deed
of trust elects to have Tenant's interest in this lease superior to such lien,
whether this lease was executed before or after said mortgage or deed of trust.
Tenant shall at any time hereafter upon ten (10) days after request from
landlord and Landlord will use its best efforts to obtain a Non-disturbance
Agreement, execute any instruments, releases or other documents which may be
required by any mortgagee for the purpose of subjecting and subordinating this
lease to the lien of any such mortgage or for the purpose of evidencing the
superiority of this lease to the lien of any such mortgage, as may be the case.
22. Mechanic's and Other Liens. Tenant shall have no authority, express or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of Landlord in the
premises or to charge the rentals payable hereunder for any claim in favor of
any person dealing with Tenant, including those who may furnish materials or
perform labor for any construction or repairs, and each such claim shall affect
and each such lien shall attach to, if at all, only the leasehold interest
granted to Tenant by this instrument. Tenant covenants and agrees that it will
pay or case to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work performed on
the premises on which any lien is or can be validly and legally asserted against
its leasehold interest in the premises or the improvements thereon and that it
will save and hold Landlord harmless from any and all loss, cost or expense
based on or arising out of asserted claims o liens against the leasehold estate
or against the right, title and interest of the Landlord in the premises or
under the terms of this lease. Tenant will not permit any mechanic's lien or
liens or any other liens which may be imposed by law affecting Landlord's or its
mortgagee's interest in the premises or any building or other improvement of
which the premises are a part to be placed upon the premises or any building or
improvement thereon during the term hereof, and in case of the filing of any
such lien Tenant will promptly pay same. If any such lien shall remain in force
and effect for twenty (20) days after written notice thereof from Landlord to
Tenant, Landlord shall have the right and privilege at Landlord's option of
paying and discharging the same or any portion thereof without inquiry as to the
validity thereof, and any amounts so paid, including expenses and interest,
shall be so much additional indebtedness hereunder due from Tenant to Landlord
and shall be repaid to Landlord immediately on rendition of a xxxx therefor.
Notwithstanding the foregoing, Tenant shall have the right to contest any such
lien in good faith and with all due diligence so long as any such contest, or
action taken in connection therewith, protects the interest of Landlord and
Landlord's mortgagee in the premises and Landlord and any such mortgagee are, by
the expiration of said twenty (20) day period, furnished such protection, and
indemnification against any loss, cost or expense related to any such lien and
the contest thereof as are satisfactory to Landlord and any such mortgagee.
23. Notices. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivery of any notice or the making of any payment
by landlord to Tenant or with reference to the sending, mailing or delivery of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Elk Grove Village Industrial Park
Ltd. or to such other entity at such other address as Landlord may specify
from time to time by written notice delivered in accordance herewith.
(b) All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address hereinbelow set forth, or at such
other address within the continental United States as Tenant may specify
from time to time by written notice delivered in accordance herewith.
(c) Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered, whether actually received or
not, when deposited in the United States Mail, postage prepaid, Certified
or Registered Mail, addressed to the parties hereto at the respective
addresses set out below, or at such other address as they have theretofore
specified by written notice delivered in accordance herewith:
LANDLORD: TENANT:
Elk Grove Village Industrial Park Ltd. Factory Card Outlet of America**
c/o Hamilton Partners Attn: Xxxxxxx Xxxxxxx, President/CEO
000 Xxxx Xxxx. 000 Xxxxxxxx Xxxxx
Xxxxxx, XX.00000 Xxxxxxxxxxx, XX. 60106
If and when included within the term "Landlord", as used in this instrument,
there are more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord; if and when included with the term "Tenant", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively, shall be bound
by notices given in accordance with the provisions of this paragraph to the same
effect as if each had received such notice.
24. Miscellaneous.
A. Words of any gender used in this lease shall be held and construed to
include any other gender, and words in the singular number shall by held to
include the plural, unless the context otherwise requires.
** cc: Xxxxx X. Xxxxxxxxxxx, Esq.
Xxxxxx, Xxxxxx & Xxxxxx
00 X. XxXxxxx Xx., Xxx. 0000
Xxxxxxx, XX 00000-0000
B. The terms, provisions and covenants and conditions contained in this
lease shall apply to, inure to the benefit of, and be binding upon, the parties
hereto and upon their respective heirs, legal representatives, successors and
permitted assigns, except as otherwise herein expressly provided. Landlord shall
have the right to assign any of its rights and obligations under this lease and
Landlord's grantee or Landlord's successor, as the case may be, shall upon such
assignment, become Landlord hereunder, thereby freeing and relieving the grantor
or assignor, as the case may be, of all covenants and obligations of Landlord
hereunder. Each party agrees to furnish to the other, promptly upon demand, a
corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of such party to
enter into this lease. Nothing herein contained shall give any other tenant in
the building of which the premises are a part any enforceable rights either
against Landlord or Tenant as a result of the covenants and obligations of
either party set forth herein.
C. The captions inserted in this lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this lease, or
any provision hereof, or in any way affect the interpretation of this lease.
D. Tenant shall at any time and from time to time within ten (10) days
after written request from Landlord execute and deliver to the Landlord or any
prospective Landlord or mortgagee or prospective mortgagee a sworn and
acknowledged estoppel certificate, in form reasonably satisfactory to Landlord
and/or Landlord's mortgagee or prospective mortgagee certifying and stating as
follows: (i) this lease has not been modified or amended (or if modified or
amended, setting forth such modifications or amendments); (ii) this lease as so
modified or amended is in full force and effect (or if not in full force and
effect, the reasons therefor); (iii) the Tenant has no offsets or defenses to
its performance of the terms and provisions of this lease, including the payment
of rent, or if there are any such defenses or offsets, specifying the same; (iv)
Tenant is in possession of the premises, if such be the case; (v) if an
assignment of rents or leases has been served upon Tenant by a mortgagee or
prospective mortgagee, Tenant has received such assignment and agrees to be
bound by the provisions thereof; and (vi) any other accurate statements
reasonably required by Landlord or its mortgagee or prospective mortgagee. It is
intended that any such statement delivered pursuant to this subsection may be
relied upon by any prospective purchaser or mortgagee and their respective
successors and assigns and Tenant shall be liable for all loss, cost or expense
resulting from the failure of any sale or funding of any loan caused by any
misstatement contained in such estoppel certificate. In addition to any other
remedy Landlord may have hereunder, Landlord may, at its option, if Tenant does
not deliver to Landlord an estoppel certificate as set forth above within
fifteen (15) business days after Tenant is requested to do so, cancel this lease
effective the last day of the then current months, without incurring any
liability on account thereof, and the term hereby granted is expressly limited
accordingly.
E. This lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this lease shall survive the
expiration or earlier termination of the term hereof, including, without
limitation, all payment obligations with respect to taxes and insurance and all
obligations concerning the condition of the premises. Upon the expiration or
earlier termination of the term hereof, and prior to Tenant vacating the
premises, Landlord and Tenant shall jointly inspect the premises and Tenant
shall pay to Landlord any reasonable amount estimated by Landlord as necessary
to put the premises, including without limitatation heating and air
conditioning systems and equipment therein, in good condition and repair. Any
work required to be done by Tenant prior to its vacation of the premises which
has not been completed upon such vacation, shall be completed by Landlord and
billed to Tenant. Tenant shall also, prior to vacating the premises, pay to
Landlord the amount, as reasonably estimated by Landlord, of Tenant's obligation
hereunder for unpaid real estate taxes for the years during the term of this
lease for which such taxes are a lien against the premises, and insurance
premiums for the year in which the lease expires or terminates. All such
amounts shall be used and held by Landlord for payment of such obligations of
Tenant hereunder, with Tenant being liable for any additional costs therefor
upon demand by Landlord, or with any excess to be returned to Tenant after all
such obligations have been determined and satisfied, as the case may be with
work orders attached for said work contemplated. Any security deposit held by
Landlord shall be credited against the amount payable by Tenant under this
subparagraph 24F.
G. If any clause, phrase, provision or portion of this lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not affect, impair or
render invalid or unenforceable the remainder of this lease nor any other
clause, phrase, provision or portion hereof, nor shall it affect the application
of any clause, phrase, provision or portion hereof to other persons or
circumstances, and it is also the intention of the parties to this lease that
in lieu of each such clause, phrase, provisions or portion of this lease that
is invalid or unenforceable, there be added as a part of this lease contract a
clause, phrase, provision or portion as similar in terms to such invalid or
unenforceable clause, phrase, provision or portion as may be possible and be
valid and enforceable.
H. Submission of this lease shall not be deemed to be a reservation of the
premises. Landlord shall not be bound hereby until its delivery to Tenant of an
executed copy hereof signed by Landlord, already having been signed by Tenant,
and until such delivery Landlord reserves the right to exhibit and lease the
premises from Tenant until such time as Tenant has paid to Landlord the security
deposit required by subparagraph 2B hereof and the first month's rent as set
forth in subparapraph 2A hereof.
I. All references in this lease to "the date hereof" or similar references
shall be deemed to refer to the last date in point of time, on which all parties
hereto have executed this lease.
J. Tenant's "proportionate share" as used in this lease shall mean a
fraction, the numerator of which is the rentable area (other than any designated
parking or loading areas) contained in the premises and the denominator of which
is the rentable area contained in the building, in each case as determined by
Landlord. For purposes hereof the numerator is 124,225 and the denominator is
164,225 and Tenant's proportionate share is seventy-five and 64/100 percent
(75.64%).
27. Special Provisions. Paragraphs 28 through 36 and Exhibits A through D
are attached hereto and made a part hereof.
EXECUTED the 17th day of July, 1995
ATTEST/WITNESS LANDLORD
ELK GROVE VILLAGE INDUSTRIAL PARK LTD.
------------------------------------- ----------------------------------------
Title
-------------------------------- ----------------------------------------
By: /s/ [illegible]
ATTEST/WITNESS -------------------------------------
Title: Managing General Partner
/s/ Xxxx X. Xxxxxxx ----------------------------------
-------------------------------------
Title Executive Vice President and TENANT
--------------------------------
Chief Administrative Officer FACTORY CARD OUTLET OF AMERICA
-------------------------------- ----------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: President and Chief Operating
----------------------------------
Officer
----------------------------------
28. As to Landlord's remedies, pursuant to paragraph 18, should Tenant be in
default, Landlord may, but need not, relet the premises or any part thereof for
such rent and upon such terms as Landlord, in its sole discretion, shall
determine (including the right to relet the premises for a greater or lesser
term than that remaining under this Lease, the right to relet the premises as a
part of a larger area, and the right to change the character or use made of the
premises). If Landlord decides to relet the premises or a duty to relet is
imposed upon Landlord by law, Landlord and Tenant agree that Landlord shall only
be required to use the same efforts Landlord then uses to lease other properties
Landlord owns or manages (or if the premises is then managed for Landlord, then
Landlord will instruct such manager to use the same efforts such manager then
uses to lease other space or properties which it owns or manages); provided,
however, that Landlord (or its manager) shall not be required to give any
preference or priority to the showing or leasing of the premises over any other
space that Landlord (or its manager) may be leasing or have available and may
place a suitable prospective tenant in any such available space regardless of
when alternative space becomes available; provided, further, that Landlord shall
not be required to observe any instruction given by Tenant about such reletting
or accept any tenant offered by Tenant unless such offered tenant has a
creditworthiness acceptable to Landlord; leases the entire premises, agrees to
use the premises in a manner consistent with the Lease and leases the premises
at the same rent, for no more than the current term and on the same other terms
and conditions as in this Lease without the expenditures by Landlord for tenant
improvements or broker's commissions. In any such case, Landlord may, but shall
not be required to, make repairs, alterations and additions in or to the
premises and redecorate the same to the extent Landlord deems necessary or
desirable, and Tenant shall, upon demand, pay the cost thereof, together with
Landlord's expenses of reletting, including, without limitation, any broker's
commission incurred by Landlord. If the consideration collected by Landlord upon
any such reletting plus any sums previously collected from Tenant are not
sufficient to pay the full amount of all rent, including any amounts treated as
additional rent hereunder and other sums reserved in this Lease for the
remaining term hereof, together with the cost of repairs, alterations,
additions, redecorating, and Lessor's expenses of reletting and the cost of
collection of the rent accruing therefrom (including reasonable attorneys' fees
and reasonable broker's commissions), Tenant shall pay to Landlord the amount of
such deficiency upon demand and Tenant agrees that Landlord may file suit to
recover any sums falling due under this section from time to time.
29. Landlord shall be responsible for landscape maintenance under the terms of
this lease except for the watering of the grass and other planted materials
which shall specifically be the responsibility of Tenant. If during the second
full lease year after the commencement date of this lease, or during any
subsequent year of the primary term or any renewal or extension, the cost to
Landlord of said landscape maintenance service shall exceed the cost for such
service during the first full lease year hereof, Tenant shall pay to Landlord
within fifteen (15) days after Landlord's billing which shall include invoices
for said maintenance work for Tenant's proportionate share of the amount of such
excess and failure to pay such excess shall be treated in the same manner as a
default in the payment of rent hereunder when due.
30. Tenant covenants not to introduce any hazardous or toxic materials onto the
Property without a) first obtaining Landlord's written consent and b) complying
with all applicable federal, state and local laws or ordinances pertaining to
the transportation, storage, use or disposal of such materials, including not
limited to obtaining proper permits.
If Tenant's transportation, storage, use or disposal of hazardous or toxic
materials on the Property results in 1) contamination of the soil or surface or
ground water or 2) loss or damage to person(s) or property, then Tenant agrees
to respond in accordance with the following paragraph.
Tenant agrees (i) to notify Landlord immediately of any contamination,
claim of contamination, loss or damage, (ii) after consultation and approval by
Landlord to clean up the contamination in full compliance with all applicable
statutes, regulations and
standards, and (iii) to indemnify, defend and hold Landlord harmless from and
against any claims, suits, causes of action, costs and fees, including
attorney's fees, arising from or connected with any such contamination, claim of
contamination, loss or damage. This provision shall survive termination of this
lease.
Landlord represents, that to the best of its knowledge that there are no
hazardous or toxic materials on or in the Premises, building or any land around
or under the same. Landlord agrees to indemnify, defend and hold Tenant harmless
from any pre-existing conditions.
31. It is expressly understood and agreed that nothing in this Lease contained
shall be construed as creating any liability whatsoever against the Landlord, or
its successors and assigns, personally, and in particular without limiting the
generality of the foregoing, there shall be no personal liability to pay any
indebtedness accruing hereunder or to perform any covenant, either express or
implied, herein contained, and that all personal liability of Landlord, or its
successors and assigns, of every sort, if any, is hereby expressly waived by
Tenant, and every person now or hereafter claiming any right or security
hereunder, and that so far as Landlord, or its successors and assigns, is
concerned the owner of any indebtedness or liability accruing hereunder shall
look solely to the property hereby leased for the payment thereof.
32. The Tenant may assume occupancy of the warehouse portion of the premises
prior to the commencement of the term hereof provided that upon such occupancy
all of the terms and provisions of this Lease (other than the terms and
provisions relating to the payment of rent) shall become effective as of the
date of such occupancy. If Tenant assumes occupancy prior to the commencement of
the term, any rent abated because of such early occupancy shall become
immediately due and payable upon the occurrence of any event of default by
Tenant under this Lease.
33. In the event that Tenant makes any roof penetrations during the term of
this Lease the obligation of the Landlord to perform the roof maintenance shall
terminate and in lieu thereof, Tenant shall be required to make such repairs.
34. Landlord hereby agrees to provide Tenant with the right to lease Additional
space in the building commonly known as 0000 Xxxxxx Xxxxxxxxx, Xxx Xxxxx
Xxxxxxx, Xxxxxxxx, when and if such Additional space should become available
during the term of this Lease. In the event this right to lease is exercised by
Tenant, Tenant shall have the right to lease the entire Additional space
consisting of 40,000 square feet, but shall specifically not have the right to
lease only part of said Additional space under the provisions of this paragraph.
In the event Tenant desires to exercise the right to lease said Additional
space, Tenant shall so notify Landlord in writing. Landlord shall respond to
Tenant in writing as to when the Additional space is available. The rental for
any such Additional space shall be based on rental rates prevailing in the open
market for similar properties at the time of notice by Tenant of Tenant's desire
to exercise the right granted under this paragraph. Tenant shall return an
executed lease containing the same terms and conditions as does this Lease for
any such Additional space within thirty (30) days after Landlord submits said
Lease to Tenant.
Landlord specifically shall not be obligated to notify Tenant of the
availability of said Additional space unless Tenant has advised Landlord of
Tenant's intention to lease said Additional space as provided for hereinabove.
In no event shall this right to lease Additional space be in effect if the
premises are subleased or available for sublease under any of the provisions of
this Lease Agreement.
35. Landlord will cause to construct at its own expense improvements shown on
Exhibit "C", attached hereto and made a part hereof.
36. Landlord shall at any time and from time to time within ten (10) days after
written request from Tenant execute and deliver to Tenant or any prospective
Lender or Financier a sworn and acknowledged estoppel certificate, in form
reasonably satisfactory certifying and stating as follows: (i) this lease has
not been modified or amended (or if modified or amended, setting forth such
modifications or amendments); (ii) this lease as so modified or amended is in
full force and effect (or if not in full force and effect, the reason therefor);
(iii) any other accurate statements reasonably required by such party.
LEGAL DESCRIPTION
That part of Xxx 00 xx Xxx Xxxxx Xxxxxxxxxx Xxxx Unit 3, being a
Subdivision in Section 0, Xxxxxxxx 00 Xxxxx, Xxxxxxx, Xxxx of the Third
Principal Meridian in DuPage County, Illinois described as follows:
Beginning at the Northeast Corner of said Lot 11; thence South along the East
Line of Lot 11 a distance of 414.09 Feet; thence East along a line parallel to
the North Line of said Lot 11 a distance of 98.61 Feet to a point; thence South
along a line parallel to the East Line of Lot 11 a distance of 47.51 Feet to a
point; thence west along a line parallel to the South Line of Lot 11 a distance
of 261.44 Feet to a point on the West Line of Lot 11; thence North along the
West Line of Lot 11 a distance of 471.57 Feet to the Northwest Corner of Lot 11;
thence East along the North Line of Lot 11 a distance of 377.00 Feet to the
point of beginning, said area contains a 164,225 square foot building commonly
known as 2800-2900 Lively Boulevard, Elk Grove Village, Illinois, DuPage
County, consisting of the square footage as indicated in Paragraph 24.J and as
outlined in red on Exhibit B.
EXHIBIT "A"
[Blueprint diagram of property.]
EGIP # II
2800-2900 LIVELY BLVD.
164,225 SQ. FT.
EXHIBIT "B"
EXHIBIT "C"
Landlord will cause to construct at its own expense the following improvements
on behalf of Tenant.
* The demolition work in the warehouse area as shown on Exhibit B will be
completed.
* The walls in the office and washroom areas will be painted and broken
ceiling tiles will be replaced as necessary.
* The floors in the office and washroom areas will be re-surfaced with either
carpet or vinyl composite floor tile.
* Four (4) each edge of dock levelers, Xxxxxx or equal, will be installed at
the south interior truck docks.
* The warehouse floor will be power scrubbed clean.
* The lighting fixtures will be placed in good working condition.
* The plumbing, heating, ventilating and air-conditioning systems will be
placed in working condition.
* The dock doors and levelers will be placed in good working condition.
* The concrete masonry wall which encloses the north interior truck dock will
be cleaned and painted (white) on the warehouse side of the wall.
* An Allowance of $10,000 will be provided Tenant for improvements in the
building (office or warehouse area) in addition to those outlined above.
Landlord's contractor will perform said work.
* Install locks on the Tenant's side of the rolling fire doors in the south
demising wall to secure Tenant's space.
EXHIBIT "D"
The following work will be required in accordance with the maintenance contract
required in Paragraph 6.E. of the Lease:
1. Check performance of all major components.
2. Lubricate moving parts as required.
3. Check refrigerant charges (during cooling season).
4. Inspect for oil and refrigerant leaks.
5. Check operating and safety controls.
6. Check pressures and temperatures.
7. Inspect condensers.
8. Inspect fans, motors and starters.
9. Tighten electrical connections at equipment.
10. Test amperages and voltages.
11. Check belts and drives.
12. Change oil and filters, or dryers, as required.
13. Check temperature on control system.
14. Thoroughly inspect heat exchanger.
