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EXHIBIT 10.7
AGREEMENT OF PURCHASE AND SALE
FROM
ARGO FEDERAL SAVINGS BANK, FSB
(SELLER)
TO
STUART WHITMAN, INC.
(PURCHASER)
FOR THE PURCHASE OF
FIVE ARGO FEDERAL SAVINGS BANK FACILITIES:
7600 WEST 63RD STREET, SUMMIT, ILLINOIS
8267 SOUTH ROBERTS RD, BRIDGEVIEW ILLINOIS
2154 WEST MADISON CHICAGO, ILLINOIS
5818 SOUTH ARCHER ROAD, SUMMIT ILLINOIS
14076 LINCOLN AVENUE, DOLTON ILLINOIS
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AGREEMENT OF REPURCHASE AND SALE
THIS AGREEMENT, made and entered into this - day of May 1999 by and between
Argo Federal Savings Bank, FSB, having its principal office at 7600 West 63rd
Street, Summit, Illinois 60501 (the "Seller"); and Stuart Whitman, Inc., having
its principal office at 9220 Sunset Boulevard, Suite 206, Los Angeles,
California 90069 (the "Purchaser").
RECITALS
A. Seller is the owner of those certain parcels of land set forth on
Exhibit A attached hereto, together with all Improvements located on the Land.
B. Seller desires to sell to Purchaser and Purchaser desires to purchase
from Seller the Land and Improvements on the terms and conditions set forth
herein, inclusive of Seller's leasing of the Project from Purchaser at Closing.
NOW, THEREFORE, in consideration of the above Recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by all parties, the parties hereto agree as follows:
1 Definitions
(a) Agreement. This Agreement of Purchase and Sale.
(b) Approval Date. June 30, 1999.
(c) Closing. The closing of the sale of the Project by Seller to Purchaser
in accordance with the terms and requirements hereof.
(d) Closing Date. Closing shall occur on or before August 15, 1999.
(e) Conditions Precedent. The meaning stated in Section 4.
(f) Contract Date. The date of acceptance of this Agreement by Seller.
(g) Defects. The meaning stated in Section 5(d).
(h) Improvements. All improvements and structures located on the Land.
(i) Intangible Property. All warranties and guarantees to which Seller is a
party or as to which it has the benefit, relating to the Land, Improvements or
Personal Property, all of which are owned by Seller.
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(j) Investigation Period. A period of time commencing on the Contract Date
and ending 5: 00 p.m. Chicago, Illinois day. light savings time on the Approval
Date.
(k) land. The land described on Exhibit A plus all attachments,
appurtenances, easements, mineral rights and right of ways incident thereto.
(l) Leases. The lease for each location of the Land and the Improvements, a
form of which is attached hereto as Exhibit F, bearing a rent schedule for all
Locations on an aggregate basis.
(m) Location. Any of the specific parcels of property comprising the Land,
and the respective Improvements thereof.
(n) Permitted Exceptions. The meaning stated in Section 5(a).
(o) Personal Property. All personal property and other tangible property
located on the Land or in the Improvements and/or used in connection with the
operation of the Improvements, and all other personal property used in such
operation, which is being sold to Purchaser pursuant hereto.
(P) Project. The Land, Improvements, Personal Property and Intangible
Property.
(q) Purchase Price. Five Million Eight Hundred Fifty Thousand Dollars
($5,850,000.00) (to be allocated among the Locations by Purchaser).
(r) Purchaser. Stuart Whitman, Inc., or its assignee.
(s) Records. All leases, contracts, records, title commitments or reports,
surveys, environmental reports,, financial data and other documents, public or,
private relating to the ownership, use or operation of the Project.
(t) Seller. Argo Federal Savings Bank, FSB.
(u) Service Contracts. The meaning stated in Section 7(i).
(v) State. The State of Illinois.
(w) Subleases. Those current leases existing on any of the Locations and
listed oil Exhibit E hereto.
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(x) Survey. An as built survey of the Project prepared by a registered
land surveyor licensed in the State certified to Purchaser, Title Company and
any lender of Purchaser, dated after the Contract Date and, if desired by
Purchaser, in fall ALTA form.
(y) Tenant. Any Tenant pursuant to a Sublease.
(z) Title Company. Chicago Title Insurance Company or such other title
company as is acceptable to Purchaser, so long as Seller is advised in writing
of any such change.
(aa) Title Evidence. The Title Policy and Survey.
(bb) Title Policy. An ALTA - 1992 - owners title insurance policy in the
amount of the Purchase Price with all standard and general exceptions deleted or
endorsed over so as to afford full "extended form coverage", subject only to the
Permitted Exceptions and containing endorsements of (i) zoning (3.1 Endorsement
with parking); (ii) access; (iii) contiguity; (iv) restrictions (where
appropriate).
2. Sale.
The Seller agrees to sell and convey to Purchaser and the Purchaser agrees
to purchase from Seller, for the Purchase Price, the Project and all easements-,
rights of way, mineral rights, privileges, appurtenances and other rights
pertaining to the Project.
3. Purchase Price.
The Purchase Price plus or minus prorations and adjustments and less any
amount allocated to a Location that is not purchased by Purchaser, all as set
forth in this Agreement, shall be paid by Purchaser to Seller at the Closing in
the form of certified or bank cashier's check or wire transfer of federal funds.
The Purchase Price should be allocated among the Locations by Purchaser based on
the percentage that their respective appraised values bear to the total
appraised value of all Locations taken together, or upon such other allocation
as Purchaser shall reasonably indicate, and same shall be attached hereto as
Exhibit B by Purchaser.
4. Conditions Precedent to Purchase.
The obligations of Purchaser to make the payments described in Section 3
and to close the transaction contemplated herein are subject to the following
express conditions (the "Conditions Precedent"), each of which is for the sole
benefit of Purchaser and may be waived at any time by Purchaser, as herein
provided:
(a) Purchaser's Investigation of the Project - During the Investigation
Period, Seller shall permit and, to the extent reasonably required by
Purchaser, shall assist Purchaser in the making of: (i) a complete
physical investigation of the Project,
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including but not limited to, investigations of matters relating to
Hazardous Materials (as defined below); and (ii) an investigation of
all Records pertaining to Seller's ownership and operation of the
Project. Seller shall cooperate with and use its best efforts to cause
its managerial personnel and others to make their Records available to
Purchaser. Seller shall keep its Records available to Purchaser after
the Closing. After such investigation, Purchaser shall determine
whether the physical, financial and general condition of the Project,
or any Location comprising the Project, is, in Purchaser's sole
estimation, satisfactory for operation and ownership in the manner and
on the basis contemplated by Purchaser. If Purchaser, in its sole
discretion, determines that the condition of the Project, or any
Location comprising the Project, is not satisfactory, then Purchaser
shall so notify Seller in writing or by telephone call (followed as
soon as reasonably possible by writing) on or before the Approval
Date. Upon such notice, Purchaser -shall indicate either (i) those
matters which Purchaser requires to be corrected as a condition to
Purchaser's proceeding with the acquisition of the Project or Location
("Correction") or ii) this Agreement shall become null and void as to
such rejected Location(s) and neither party shall have any further
rights against the other hereunder as to such rejected Location(s).
Should Purchaser's -notification be a Correction, either pursuant to
the foregoing or at any other time when Purchaser is permitted to
issue a Correction under the terms of this Agreement, Seller will use
good faith efforts to satisfy the matters raised on -the Correction
within ten (10) days from the date of receipt of the Correction, or
such additional time, not to exceed a total of thirty (30) days, as
may be necessary if satisfaction is not possible within ten (10) days.
Should Seller fail to satisfy the matters set forth in the Correction,
Purchaser may either terminate the Agreement as to such Location(s),
or elect to enforce the terms hereof by action for specific
performance. If Purchaser elects to terminate this Agreement as to
such Location(s), the Purchase Price shall be amended to reduce it by
the amount allocated to such rejected Location(s). If Purchaser fails
to deliver such notice to Seller on or before the Approval Date,
Purchaser shall be deemed to have waived its right to issue a
Correction or terminate this Agreement under this Section 4(a). Seller
covenants that at the Closing the Project shall be delivered to
Purchaser in substantially the same condition as it was on the
Approval Date, reasonable wear and tear and Damage (as defined in
Section excepted. In the event that there is an adverse change in the
quality or condition of the Project, or any Location comprising the
Project, which occurs between the Approval Date and the Closing Date,
then, and in that event, Purchaser shall have the right to either
issue a Correction or rescind this Agreement as to such Location(s)
and upon any such rescission, Purchaser's obligations hereunder shall
be terminated and be of no further force or effect as to such
Location(s). The Purchase Price shall be amended to reduce it by the
amount allocated to such rejected Location(s). Purchaser's
investigation and inspection of the Project shall in no manner
abrogate, diminish or affect the warranties and/ or representations
made by Seller in this Agreement.
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(b) Access - At all times from the Contract Date through the Closing, or
other termination of this Agreement, Purchaser shall have full access
to the Project during normal business hours, to perform such
inspections and tests as Purchaser may deem necessary.
(c) Truth and Accuracy of Warranties - All of the warranties and
representations of Seller shall be true and accurate as of the Closing
Date, and the same shall survive the Closing. In the event that any
one or more of the warranties or representations of Seller shall be
discovered by Purchaser prior to Closing to be untrue or inaccurate so
as to affect the Project or any Location comprising the Project in an
adverse way, Purchaser, at its sole option may terminate this
Agreement as to such Location(s) by notice thereof in writing to
Seller (and the Purchase Price shall be amended to reduce it by the
amount allocated to such rejected Location(s)) or may proceed to
Closing in accordance with the terms hereof in each case retaining all
rights and remedies Purchaser may have against Seller as a result of a
breach of this Agreement.
(d) Financing - Purchaser obtaining financing for 75 percent of the
Purchase Price, including no less than 1.35 to 1.0 debt coverage, and
an initial interest-rate not to exceed eight and one-eighth (8.125%)
percent fully amortized over thirty (30) years, no more than one (1)
point lender's fee, maturing no sooner than ten (10) years. Seller
shall credit Purchaser the sum of $70,000 at closing for Purchaser's
loan fees and closing costs. Should Purchaser fail to procure
financing upon the aforesaid terms, or otherwise acceptable to
Purchaser, on or before Closing, Purchaser may terminate this
Agreement upon written notice delivered to Seller and same shall
become null and void and neither party shall have any further
liability hereunder.
(e) Environmental and Engineering - Receipt by Purchaser of a satisfactory
EPA Phase I (or Phase II if necessary) Report and Engineering Report
reasonably acceptable to Purchaser. Should any such report not be
acceptable to Purchaser as to any Location(s) Purchaser may, upon
written notice to Seller, either issue a Correction (and same shall
result in the procedure triggered by issuance of a Correction, as set
forth in paragraph 4(a) hereof) or terminate this Agreement as to such
Location(s) or as to the entire Project, and same shall become null
and void and neither party shall have any further liability hereunder
with respect to such Location(s). The Purchase Price shall be amended
to reduce it by the amount, allocated to such rejected Location(s).
5. Title and Survey Matters.
(a) Conveyance of Title - Seller agrees to convey to Purchaser hereunder
good and marketable fee title to the Project, free and clear of all
claims, liens and
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encumbrances, except for the following items (the "Permitted
Exceptions"):
(1) Ad valorem taxes (for the Project) not yet due and payable; and
(2) Rights of Seller as lessee under the Leases, and rights of Tenants
under the Subleases as scheduled for Purchaser; and
(3) Such other matters as are acceptable to Purchaser in its sole
discretion.
(b) Title Commitment - Within twenty. (20) days after the date hereof,
Seller, at its own expense, shall obtain a commitment showing title to
the Project in Seller, dated after the Contract Date, and issued by
the Title Company wherein the Title Company shall commit to issue to
Purchaser the Title Policy, with full extended coverage, and with a
3.1 zoning, access, contiguity,, and PIN endorsements, and such other
endorsements as Purchaser's lender shall require. As a condition of
the Closing, the commitment shall be later dated to cover the Closing
and the recording of the Act of Sale and the Title Company shall
deliver the Title Policy to the Purchaser, concurrently with the
Closing.
(c) Survey - Seller, at its sole cost and expense, shall, within twenty
(20) days after the date hereof, obtain a separate survey for each of
the Locations' Land and Improvements. The Surveys shall depict and
include, without limiting the foregoing: the present location of all
improvements or structures on the Land, including all encroachments of
any part thereof onto adjoining land and all encroachments of any part
of adjoining improvements onto the Land; building lines and all
easements whether recorded or visible (and, if recorded, by specific
reference to recorded document numbers); access to public roads or
ways; and identification of each Permitted Exception capable of being
geographically located, by spotting same on the Survey, and by legal
description and reference to recording information. The Survey must be
sufficient to cause the Title Company to delete the standard printed
survey exception and to issue the Title Policy free from any survey
objections or exceptions whatsoever.
(d) Defects and Cure - If the Title Evidence discloses, with respect to
the Survey for any Location(s), conditions which might adversely
affect Purchaser or, with respect to the commitment of title for any
Location(s), deficiencies in endorsements or matters other than the
Permitted Exceptions (hereinafter collectively "Defects"), said
Defects shall, as a condition of the Closing, be cured and removed by
Seller from the Title Evidence disclosing the Defect(s) and the
Closing shall thereafter take place either on the Closing. Date
hereinafter specified, or ten (10) days after the Defect is cured,
whichever is later. If Seller fails to cure and remove all Defect(s),
Purchaser may issue a Correction or this Agreement may be terminated
as to such rejected Location(s), or all of them, at Purchaser's
election, by written
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notice given to the Seller and the Purchase Price shall be amended to
reduce it by the amount allocated to such rejected Location(s).
Alternatively, Purchaser may, at its sole election, proceed to close
this transaction by deducting from the Purchase Price and escrowing
with the Title Company the amount necessary to cause the Title Company
to insure and/or endorse over such Defect(s).
6. Prorations and Adjustments.
The following items shall be prorated and adjusted between the Seller
and the Purchaser as of 12:01 a.m. on the Closing Date:
(a) Real estate, personal property, ad valorem and related taxes, levies
and charges and those (and only those) assessments accepted by
Purchaser ("Taxes"), applicable to the Project for 1998 and thereafter
not yet due and payable shall be prorated at closing.
(b) All charges for utilities relative to the Project shall be paid by
Seller to - and including the Closing Date and thereafter by Seller as
tenant under the applicable leases.
(c) Seller hereby holds Purchaser harmless from, and Purchaser has no
obligation with respect to, and there shall be no proration for:
wages, vacation pay, fringe benefits, withholding taxes or any related
items pertaining to persons or entities employed or otherwise engaged
in connection with Seller's ownership, operation, maintenance or
leasing of the Project, prior to the Closing or otherwise.
(d) Purchaser and Seller shall divide the cost of any escrows hereunder
equally between them.
(e) Any and all assessments, general or special, shall be paid by Seller
prior to or at Closing, and Purchaser shall be under no obligation to
pay such assessments.
(f) Seller to credit Purchaser at Closing in the amount of $70,000, as set
forth in Paragraph 4(d) above.
(g) Seller will pay The Bicek Group the sum of $280,000 at Closing for
consulting fees and costs incurred in connection with the Closing of
the transactions contemplated in this Agreement.
7. Representations, Warranties and Covenants of Seller.
All representations and warranties of Seller set forth in this Section 7
and elsewhere in this Agreement shall survive the Closing and the delivery of
the Act of Sale and shall not merge
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into the Deed. Seller hereby represents, warrants, covenants and agrees with
Purchaser as to the following matters, each of which is so warranted to be true
and correct as of the date hereof, and also to be true and correct as of the
Closing Date:
(a) No Violations of Zoning and Other Laws - To the best of Seller's
knowledge, the existing use and condition of the Project does not
violate any zoning, building, health, fire or similar statute,
ordinance, regulation or code, nor has Seller received any notice,
written or otherwise, from any governmental agency alleging violations
of building codes, building or use restrictions, zoning ordinances,
rules and regulations, or any other such matters.
(b) Pending and Threatened Litigation - There are no pending or, to the
best of Seller's knowledge, threatened matters of litigation,
administrative action or examination, claim or demand whatsoever
relating to the Project.
(c) Eminent Domain, etc. - There is no pending or, to the best of Seller's
knowledge, contemplated eminent domain, condemnation or other
governmental taking of the Project or any part thereof.
(d) Access to Project, Utilities - To the best of Seller's knowledge, no
fact or condition exists which would result in the termination or
impairment of access to the Project from adjoining public or private
streets or ways or which could result in discontinuation of presently
available or otherwise necessary sewer, water, electric, gas,
telephone or other utilities or services.
(e) New Leases. During the period between the Contract Date and the
Closing, Seller will neither execute any new lease nor renew or modify
any existing Lease without Purchaser's prior written consent.
(f) Assessments - To the best of Seller's knowledge, there are no public
improvements in the nature of off-site improvements, or otherwise,
which have been ordered to be made and/or which have not heretofore
been assessed, and there are no special or general assessments pending
against or affecting the Project.
(g) Accuracy of Information - The Records and all other documents being
delivered by Seller are true, accurate and complete. Such Records and
other documents fairly present the information purportedly set forth
therein in a manner which is not misleading in any material way, and
the Records do not fail to present any information or data which would
be necessary in order to prevent the information contained therein
from being misleading.
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(h) Authority of Seller, No Breach of Other Agreements: etc. Seller's
execution, delivery of and performance under this Agreement is
pursuant to authority validly and duly conferred upon Seller and the
signatories hereto. The corporate resolutions delivered pursuant to
Section WO-M are true. accurate and correct. The consummation of the
transaction herein contemplated and the compliance by Seller with the
terms of this Agreement do not and will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default
under, any agreement, arrangement, understanding, accord, document or
instrument by which Seller or the Project are bound; and will not and
does not constitute a violation of any applicable law, rule,
regulation, judgment, order or decree of any governmental
instrumentality or court, domestic or foreign, to which Seller or the
Project are subject or bound.
(i) Executory Agreements. Seller is not party to, and the Project is not
subject to, any contract or agreement of any kind whatsoever, written
or oral, formal or informal, with respect to the Project, other than
those set forth and described in detail in Exhibit D attached hereto
(all of which are currently in full force and effect and are referred
to as the "Service Contracts") and other than the Subleases described
in Exhibit E and the Leases described in Exhibit F. Exhibit D, Exhibit
E and Exhibit F shall be delivered to Purchaser within seven (7) days
after the date of this Agreement and shall not thereafter be modified
without Purchaser's prior written consent. Purchaser shall not, by
reason of entering into or closing under this Agreement, become
subject to or bound by any agreement, contract, lease, license,
invoice, bill, undertaking or understanding, including those listed on
Exhibit D, which it shall not have previously agreed in writing to
accept. Seller shall remain liable for all Service Contracts after
Closing, and the Service Contracts will not affect the Purchaser as
owner of the Project.
(j) Insurability of Project - Except as specifically hereafter brought to
Purchaser's attention and approved in writing by Purchaser, neither
Seller nor its agents have received any formal or informal notice from
any insurance company of any defect or inadequacies in the Project or
of any part thereof which would adversely affect the insurability of
the Improvements, or which would increase the cost of insurance beyond
that which would ordinarily and customarily be charged for comparable
properties in the vicinity of the Project. Between the date hereof and
the Closing, Seller will keep the Project fully insured in accordance
with prudent and customary practice.
(k) All Required Action Taken - All action required pursuant to this
Agreement necessary to effectuate the transaction contemplated herein
has been, or will be, taken promptly and in good faith by Seller and
its representatives and agents.
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(l) Operations Pending Closing - Between the date hereof and the Closing,
Seller shall operate the Project in accordance with prudent management
and operating standards and practices. Seller shall continue to make
or cause to be made in and about the Project all repairs, replacements
and maintenance between the date hereof and the Closing Date which may
be necessary to maintain the Project in as good a condition as exist
or should exist as of the Approval Date at a first-class financial
institution. Seller shall deliver the Project at Closing in good
working order and repair, reasonable wear and tear and Damage (as
defined in Section 9) excepted.
(m) Lease Obligations, Mechanic's Liens - At Closing, no party will have
any right to occupy or possess any portion of the Project other than
pursuant to the Leases and Subleases. Any and all alterations,
installations, decorations and other work required to be performed by
the Seller (or others) as lessor prior to the Closing Date under the
provisions of any Subleases or other agreements affecting the Project,
including without limitation any outstanding concessions, renewal or
incentive programs, have been or will by the Closing Date be completed
and paid for in full. No brokerage, finders or referral fees or
similar commissions are or will become due and payable in connection
with any Leases or Subleases or renewals thereof. Seller has paid in
full all bills and invoices for labor and materials of any kind
relating to the Project and the Seller, and there are no mechanic's
liens or other claims outstanding or available to any party in
connection with the Project.
(n) Government Obligations - To the best of Seller's knowledge, there are
no unperformed obligations relative to the Project outstanding to any
governmental or quasi-governmental body or authority.
(o) Schedule of Subleases -
(i) Attached hereto as Exhibit E is a list of each Sublease for
space in the Project as of the date hereof showing for each
such Sublease, the identification of each space leased, the
name of the Tenant, the date of each Sublease, the term of the
Sublease including details on any options (whether to extend
the term or otherwise), the rent and other amounts payable,
including any escalators, pass-throughs, and like provisions,
the existence and amount of any concessions or rebates to each
Tenant (due and payable or not yet due and payable), the
unapplied amount of any security deposit held, whether Tenant
is entitled to interest thereon and, if so, the rate of such
interest, and all delinquencies in rent. Said list is complete
and all information therein is materially accurate as of
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its date, and there are no leases or tenancies with respect to
the Project or any part thereof except as therein set forth.
No Sublease contains any right of first refusal or renewal
option which may be exercised by a Tenant, or option to
purchase;
(ii) Each of the Subleases, including, without limitation, any
guarantees thereof, is, to Seller's reasonable belief, an
enforceable lease, and, to Seller's reasonable belief, is in
full force and effect strictly according to the terms set
forth therein. None of the Subleases has been modified,
amended or altered, in writing or otherwise; each Tenant is
legally required to pay all sums and perform all obligations
set forth in its respective Sublease, without concessions,
abatements, offsets or other basis for relief or adjustment;
(iii) All obligations of the lessor under the Subleases which accrue
on or before the Closing Date have been, or prior to the
Closing Date, shall have been performed. To Seller's
reasonable belief, no event of default exists under any
Sublease and no event or condition exists that, upon the
giving of notice or lapse of time, or both, would constitute a
default under any Sublease. No Tenant has given specific
written notice of any offsets, defenses or claims available
against rent or other charges payable by it or other
performance or obligations otherwise due from it under any
Sublease. Each of the Tenants has accepted possession of its
respective demised premises without reservation, and has
commenced payment of rent in accordance with the terms of its
respective Sublease;
(iv) No Tenant or any other party has or has given specific written
notice of any claim (other than for customary refund at the
expiration of a Sublease) to all or any part of any security
deposit;
(V) At Closing, all of the Subleases will be subordinated to the
Leases. The written consent of all Tenants should be delivered
to Purchaser prior to the Approval Date.
(p) Condition of Personal Property and Improvements - Within seven (7)
days of the Contract Date, Seller shall deliver to Purchaser an
inventory of Personal Property, by Location. The inventory of Personal
Property shall accurately set forth all assets; including vehicles,
presently used in connection with the operation of the, Project. All
of the Personal Property being sold hereunder and all Improvements,
including, but not limited to, all machinery, structural components,
roofs,
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mechanical systems, electrical systems, air conditioners, furnaces and
heaters, partitions, furniture, fixtures and equipment, vaults, teller
stations, security systems, automatic teller machines, deposit boxes,
drive-thru stations, pneumatic tubes, and all other personal property
used in the operation of the Project are free and clear of any
encumbrances, liens or mortgages, and are in good working order and
repair and not in need of repair or replacement, subject to ordinary
wear and tear between the date hereof and the Closing and, further,
subject to repairs and replacements which are proper and valid
obligations of Tenants accruing between the date hereof and the
Closing. The Improvements are free from termite or other insect or
animal infestation.
(q) Utility Services - To the best of Seller's knowledge, the sewage,
sanitation, plumbing, water retention and detention, refuse disposal
and similar facilities in and on and/or servicing the Project are
fully adequate to service the Project and are in fall compliance with
all governmental and environmental protection authorities' laws,
rules, regulations, and requirements.
(r) Rights in the Project - Between the date hereof and the Closing, no
part of the Project will be alienated, encumbered or transferred in
favor of or to any party whatsoever. There are no purchase contracts,
options or any other agreements of any kind, written or oral, formal
or informal, choate or inchoate, recorded or unrecorded, whereby any
person or entity other than the Seller will have acquired or will have
any basis to assert any right, title or interest in, or right to
possession, use, enjoyment or proceeds of all or any portion of the
Project.
(s) Soil Conditions - To the best of Seller's knowledge, the soil
condition is such that it will support all of the Improvements for the
foreseeable depreciable life of the Improvements, without the need for
unusual sub-surface excavations, fill, footings, caissons or other
installations. The Improvements, as built, were constructed in a
manner compatible with the soil conditions at the time of construction
and all necessary excavations, fill, footings, caissons or other
installations were then or have since been provided.
(t) Easements - The Project is adjacent to and has full and free access on
all perimeter areas to and from public roads and ways, such that no
private easements or agreements are necessary to afford access to or
from the Project.
(u) Environmental Matters - During and to the best of Seller's knowledge,
prior to Seller's ownership of the Project (i) no Hazardous Materials
(as defined below) have been located on the Project or have been
released into the environment, or discharged, placed or disposed of
at, on or under the Project; (ii) no underground storage tanks have
been located on the Project; (iii) the Project has never been used as
a dump site for waste material; and (iv) the Project and its prior
uses comply
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with, and at all times have complied with, any applicable governmental
law, regulation or requirement relating to environmental and
occupational health and safety matters and Hazardous Materials.
The term "Hazardous Materials" shall mean any substance, material,,
waste, gas or particulate matter which is regulated by any local
governmental authority, the State of Illinois, or the United States
Government, including, but not limited to, any material or substance
which is (i) defined as a "hazardous waste", "hazardous material",
"hazardous substance", "extremely hazardous waste", or "restricted
hazardous waste" under any provision of Illinois law; (ii) petroleum;
(iii) asbestos; (iv) designated chlorinated biphenyl; (v) radioactive
material; (vi) designated as a "hazardous substance" pursuant to
Section 311 of the Clean Water Act, 33 U.S.C. ss.1251 et seq. (33
U.S.C. ss.1317); (vii) defined as a "hazardous waste" pursuant to
Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C.
ss.6901 et seq. (42 U.S.C. ss.6903); or (viii) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. ss.9601 et seq.
(42 U.S.C. ss.9601). The term "Environmental Laws" shall mean all
statutes specifically described in the foregoing sentence and all
federal, state and local environmental health and safety statutes,
ordinances, codes, rules, regulations, orders and decrees regulating,
relating to or imposing liability or standards concerning or in
connection with Hazardous Materials.
Additionally, but not in lieu of Seller's affirmative warranties,
representations and undertakings set forth herein, Seller agrees to
indemnify, defend and hold harmless Purchaser and its grantees from
and against any and all debts, liens, claims, causes of action,
administrative orders and notices, costs (including, without
limitation, response and/or remedial costs), personal injuries,
losses, damages, liabilities, demands, interest, fines, penalties and
expenses, including reasonable attorneys' fees and expenses,
consultants' fees and expenses, court costs and all other out-of
pocket expenses, suffered or incurred by Purchaser and its grantees as
a result of (i) the inaccuracy or breach of any such representation or
warranty, or (ii) any matter, condition or act involving Environmental
Laws or Hazardous Materials which existed on or arose prior to the
Closing Date, and while Seller was the owner of the Project and which
failed to comply with the Environmental Laws in effect as of the
Closing Date or any existing common or civil law theory based on
nuisance or strict liability in existence as of the Closing Date,
whether or not Seller has knowledge of same as of the Closing Date.
(v) Compliance with Bulk Sales Acts - This transaction is exempt from any
filing with any governmental agency to report the sale of all or
substantially all of the assets of any entity. In the event this
transaction is not exempt from all such laws, Seller has complied with
such laws on a timely basis.
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In the event Agreement by Seller, Seller shall be liable for and shall indemnify
of the breach of any representation or warranty made in this Section 7 or
elsewhere in this and hold Purchaser harmless from and against all losses,
damages, liabilities, costs, expenses (including reasonable attorneys' fees) and
charges which Purchaser may incur or to which Purchaser may become subject as a
direct or indirect consequence of such breach, including all incidental and
consequential damages. In addition, in the event of the breach of any
representation or warranty made in this Section 7 or elsewhere in this Agreement
by Seller, Purchaser shall have the right to issue a Correction or terminate
this Agreement as to the specific Location(s) affected by the breach, or the
entire Project, at Purchaser's option, and the Purchase Price shall be amended
to reduce it by the amount allocated to such rejected Location(s). Purchaser's
right to terminate this Agreement shall be in addition to, and not in lieu of,
the above or any other remedies Purchaser may have as a consequence thereof.
Upon Purchaser's termination of this Agreement pursuant to this Section 7,
Seller shall reimburse Purchaser for all Purchaser's costs and expenses in
connection with the acquisition of the Location(s) being eliminated, including,
but not limited to costs and expenses for title searches, survey, environmental
consultants, engineers, architects and reasonable attorney's fees.
8. Closing and Related Matters.
(a) The Closing Date and Conditions - The Closing shall take place on the
Closing Date at the office of the Title Company.
(b) Closing - This transaction shall be closed by means of a so-called New
York Style Closing, with the concurrent delivery of the documents of
title, transfer of interests, delivery of the Title Policy and the
payment of the Purchase Price. Seller shall provide, if required by
the Title Company, any undertaking (the "Gap Undertaking") to the
Title Company necessary for the New York Style Closing. Seller and
Purchaser shall each pay 50% of the charges of the Title Company for
such New York Style Closing.
(c) Seller's Duties at Closing. At the Closing and on the Closing Date,
Seller shall do or perform the following (unless otherwise notified,
all documents to be delivered by Seller shall be deposited in an
escrow established with the Title Company (the "Escrow"):
(1) Execute, acknowledge and deliver to Purchaser a General Warranty
Deed(s), with all legal warranties and with full rights of
substitution and subrogation, in recordable form dated as of the
Closing Date ("Deed") whereby the said Land and Improvements are
conveyed by Seller to Purchaser, or its nominee, subject only to
the Permitted Exceptions. All transfer taxes shall be divided
equally between Seller and Purchaser.
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(2) Execute and deliver to Purchaser a warranty Bill of Sale
transferring title to the Personal Property to Purchaser, free
and clear of all liens, claims and encumbrances, except the
Permitted Exceptions.
(3) Execute, acknowledge and deliver to Purchaser a ' counterpart of
a subordination agreement between Purchaser, Seller and each
Tenant whereby the interests of Tenant are subordinated to the
Leases.
(4) Execute and deliver the originals of all Leases and copies of all
Subleases directly to Purchaser, and a certified rent roll for
each Location.
(5) Deliver possession of the Project to Purchaser, subject only to
the rights of Seller under the Leases and Tenant under the
Subleases, as scheduled by Seller for Purchaser hereunder, and
the Permitted Exceptions.
(6) Deliver to Purchaser certified corporate resolutions evidencing
the authority of Seller to enter into this transaction and
execute the documents described herein.
(7) Deliver directly to Purchaser copies of building plans and
specifications for the Project, if available.
(8) Deliver directly to Purchaser copies of all certificates of
occupancy, licenses, permits, authorizations and approvals
required by law and issued by all governmental authorities having
jurisdiction over the Project, together with copies of all
certificates issued by any local board of fire underwriters (or
other body exercising similar functions), if available, and the
original of each bill for current real estate and personal
property taxes, together with proof of payment thereof (if any of
the same have been paid).
(9) Deliver to Purchaser an assignment of all rights, title and
interest of Seller in and to the Intangible Property in form
acceptable to Purchaser.
(10) Deliver to Purchaser an assignment of all warranties and
guaranties presently in effect with respect to the Project (if
any cost is incurred as a result of such assignment the cost will
be borne by the Seller).
(11) Deliver to Purchaser Seller's certification that all
representations and. warranties made herein are correct as of the
Closing Date.
(12) Deliver to Title Company a closing statement.
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(13) An affidavit from Seller stating that Seller is not a "foreign
person" within the meaning of Internal Revenue Code Section 1445.
(14) Deliver to Purchaser an executed IRPTA Disclosure for each
Location, or a certification that said Location(s) is exempt from
the requirement for filing such a disclosure.
(15) An Illinois Department of Revenue Bulk Sales Stop Order (pursuant
to Section 35 ILCS 120/5j and Section 35 ILCS 5/902), and any
similar local revenue bulk sales compliance requirements; (if the
stop order is not available at Closing, Seller will provide a
full indemnity by separate agreement and procure the stop order
as soon as possible after Closing).
(16) Pay its own attorneys' fees, all costs and fees for certificates
and researches, all costs and fees for cancellation of existing
inscriptions, one half of all documentary transfer taxes (if
any), and all costs of the Title Policy and Survey.
(17) Execute and deliver to Purchaser such other documents or
instruments as in the reasonable opinion of counsel for Purchaser
may be necessary to effectuate the Closing.
(d) Purchaser's Duties at Closing - At the Closing and on the Closing
Date, Purchaser shall do or perform the following (unless otherwise
noted, all documents to be delivered and all monies to be paid shall
be deposited in the Escrow): Deliver to the Title Company cashier's or
certified checks (or wired funds) in the aggregate amount of the cash
payable at Closing, less prorations and adjustments as herein
provided; and pay its own attorneys fees, costs of recordation of the
Deed, and one-half of all documentary transfer taxes.
9. Destruction, Loss or Diminution of Project.
If, between the date hereof and the Closing Date, all or any portion of the
Project is damaged by fire or natural elements, or other causes beyond Seller's
control (collectively "Damage"), or is taken or made subject to condemnation,
eminent domain or other governmental acquisition proceedings, or, if any
Location comprising the Project shall not have been operated in the ordinary
course or Seller shall not have done maintenance, repairs and other work
required hereunder, or if any Location comprising the Project is materially
diminished in value after the Approval Date, then the following procedures shall
apply:
(a) If the cost of required repair or replacement or diminution is
$100,000.00 or less, Purchaser shall proceed to close and take the
Project as diminished by such events, subject to a reduction in the
Purchase Price applied against the cash payment
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otherwise due at Closing, which reduction shall be equal to the full
repair and/or replacement cost or diminution in value of the Project,
but which shall not exceed $100,000.00.
(b) If the cost of repair or replacement or diminution is greater than $
100, 000. 00, then Purchaser, at its sole option, may elect either to:
(i) terminate this Agreement as to the entire Project, or as to any
Location whose allocated cost of repair replacement or diminution
exceeds $50,000, by written notice to Seller given at or prior to the
Closing, and receive an immediate refund of all sums theretofore paid
in connection with this Agreement, including interest thereon (or if
as to a select Location(s) then in addition to said cost
reimbursement, the Purchase Price shall be amended to reduce it by the
amount allocated to the rejected Location(s)), without any further
obligation to Seller; or (ii) proceed to close the transaction
contemplated herein with the right to control any adjustment or
settlement and to receive all proceeds from such adjustment or
settlement, and in that case Seller shall assign to Purchaser the
interest of Seller in any such settlement or proceeds. Seller will
also credit against the Purchase Price the amount of any deductible
which may be payable under any such transaction.
The replacement cost of the Damage or diminution or taking shall be determined
by Seller and Purchaser, or, if they are unable to agree, by: (i) the
independent or in-house appraiser or adjuster retained by the insurance company
insuring against said Damage; or (ii) the appraiser for the governmental body
taking the condemned portion of the Project; or (iii) if the parties do not
agree .to allow the individuals specified in (i) or (ii) to make the
determination, an independent engineer selected by two other engineers, each of
which shall be selected by one of the parties hereto.
10. Default.
In the event of a misrepresentation, failure to perform, failure of any
representation or warranty or any other default by Seller hereunder, Purchaser
may, at its option: (a) elect to enforce the terms hereof by action for specific
performance; and/or (b) exercise any other right or remedy available to it at
law or in equity, inclusive of a damage claim against Seller for Purchaser's
inability to timely complete a 1031 IRC like-kind exchange of properties and any
damages incurred by Purchaser as a result thereof, and/or (c) terminate this
Agreement as to the entire Project, or only as to the affected Location(s), and
if the later, the Purchase Price shall be amended to reduce it by the amount
allocated to such rejected Location(s). In addition Purchaser shall be entitled
to the indemnities set forth in Section 7 hereof. In all events Seller shall
reimburse Purchaser for all Purchaser's costs and expenses in connection with
the acquisition of the Project or the terminated Location(s), including, but not
limited to title searches, survey, environmental consultants, engineers,
architects and reasonable attorney's fees. In all events,
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Purchaser's rights and remedies under this Agreement shall always be
non-exclusive and cumulative and the exercise of one remedy shall not be
exclusive of or constitute a waiver of any other. In the event of a default by
Purchaser, Seller's sole and exclusive right and remedy shall be to declare a
forfeiture and terminate this Agreement, and receive reimbursement for any
actual out-of-pocket expenses reasonably incurred by Seller in connection with
the transaction contemplated herein, provided same does not exceed $25,000 in
the aggregate.
11. Binding Effect.
This Agreement shall inure to the benefit of, and shall be binding upon,
the successors and assigns of the parties hereto.
12. Care and Maintenance of Project .
From the date of this Agreement until the Closing Date the Seller shall
make or cause to be made all reasonable and ordinary and extraordinary repairs,
replacements and maintenance with respect to the Project, and will not delay or
defer repair, replacement or maintenance items required in the ordinary course
during or subsequent to the Investigation Period. If Seller delays or defers
such items, Seller shall be liable for the entire cost of repair, replacement or
maintenance of such items, and Purchaser shall have the right to terminate this
Agreement as to the Project or the affected Location(s), and if Purchaser
chooses the later, the Purchase. Price shall be amended to reduce it by the
amount allocated to such rejected Location(s). Seller shall pay on a prompt and
timely basis all bills and discharge all obligations arising from ownership,
operation, management, repair, maintenance and leasing of the Project, as
payments become due. Between the Approval Date and the Closing, Purchaser shall
have the continuing right from time to time to periodically inspect the Project
to verify Seller's compliance with the foregoing undertakings, but no such
inspections shall relieve Seller of its obligations hereunder or constitute any
waiver by Purchaser hereunder.
13. No Broker.
Other than Charles Everhardt/Coldwell Banker (the "Broker") no broker or
finder has been engaged or consulted by Seller or Purchaser or is in any way
connected with or otherwise entitled to compensation as a consequence of this
transaction. The entire fee of the Broker, in the amount of $70,000, shall be
paid by Seller. Seller hereby defends, indemnifies and holds Purchaser harmless
against any and all claims of brokers, finders or the like, and against the
claims of all other parties claiming any right to commission or compensation by
or through acts of Seller or Seller's partners, agents or affiliates in
connection with this Agreement. Seller's indemnity obligations shall include
all damages, losses, costs, liabilities and expenses, including reasonable
attorneys' fees, which may be incurred by Purchaser in connection with all
matters
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against which Purchaser is being indemnified hereunder. Purchaser covenants that
no real estate brokerage commission is payable to any real estate broker
contractually engaged by Purchaser, and Purchaser agrees to hold Seller harmless
against any claim against Seller made by any broker claiming to have a valid
contractual brokerage relationship with Purchaser.
14. Notices.
Any and all notices required to be delivered hereunder shall be deemed
properly delivered when and if (a) personally delivered, (b) mailed by
registered or certified mail, return receipt requested, postage prepaid, (c)
delivered by recognized overnight courier, or (d) delivered by telecopy with
confirmation of receipt to the parties as set forth below:
If to Purchaser: Stuart Whitman, Inc.
749 San Ysidro Road
Montecito, CA 93108
Attn: Mr. Stuart Whitman, President
Telephone: 805/969-7843
Telecopy: 805/969-1350
With a copy to: The Bicek Group
1413 Sherman Road
Suite 40
Romeoville, Illinois 60446
Attn: Mr. Robert Bicek
Telephone: (630) 783-9910
Telecopy: (630) 783-9905
And to: Jeffrey J. Stahl, Esq.
Stahl Brashler LLC
20 East Jackson Blvd.
Suite 1600
Chicago, Illinois 60604
Telephone: (312) 957-1200
Telecopy: (312) 697-1100
And if to Seller: Argo Federal Savings Bank, FSB
7600 West 63rd Street
Summit, Illinois 60501
Attn: Mr. John G. Yedinak, Chairman
Telephone: (708) 496-7176
Telecopy: (708) 496-6490
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With a copy to: Mr. James Kemp, Esq.
Kemp & Grzelakowski, Ltd.
1900 Spring St., Suite 500
Oak Brook, IL 60523
(630) 571-7711
(630) 571-7755
Either party hereto may change the names and addresses of the designee to whom
notice shall be sent by giving written notice of such change to the other party
hereto in the same manner as all other notices are required to be delivered
hereunder.
15. Right of Waiver.
Each and every condition of the Closing other than the tender of the
payments by Purchaser is intended for and is for the sole and exclusive benefit
of Purchaser. Accordingly, Purchaser may at any time and from time to time waive
each and any condition of Closing, without waiver of any other condition or
other prejudice of its rights hereunder. Such waiver by Purchaser shall, unless
otherwise herein provided, be in a writing signed by Purchaser and delivered to
Seller.
16. Confidentiality.
All information contained in this Agreement, including without limitation,
the Purchase Price and payment terms is for the information of the parties
hereto only and it would be to the detriment of the parties to have such
information disclosed to third parties. The information contained herein shall
be kept by the parties in strict confidence and not disclosed to any party other
than for purposes of compliance with federal, state or local laws, regulatory
requirements, financing of the purchase of Project or as is necessary to allow
adequate inspections of the Project. Any disclosure of information prohibited by
this Section shall be deemed a default hereunder by the disclosing party.
17. Miscellaneous.
(a) Time is of the essence of this Agreement.
(b) Wherever under the terms and provisions of this Agreement the time for
performance falls upon a Saturday, Sunday or legal holiday, such time
for performance shall be extended to the next business day.
(c) This Agreement may be executed in counterparts, each of which shall
constitute an original, but all together shall constitute one and the
same Agreement.
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(d) This Agreement provides for the purchase and sale of real and personal
property located in State of Illinois, and is to be performed within
the County of Cook, State of Illinois. Accordingly, this Agreement,
and all questions of interpretation, construction and enforcement
hereof, and all controversies hereunder, shall be governed by the
applicable statutory and common and civil law of the State of Illinois
and venue shall properly lie and Purchaser and Seller hereby consent
to such jurisdiction and venue in Cook County, Illinois.
(e) Purchaser shall, prior to the Closing, have the right to designate a
limited partnership or any other legal entity to act as its assignee,
and such entity shall thereafter be the party to which the Project
shall be conveyed. Seller agrees to look to and accept performance
from such assignee, and all references to "Purchaser" in this
Agreement shall mean said assignee, and the entity. shown herein as
Purchaser shall be fully released and discharged.
(f) The terms, provisions, representations, warranties, indemnities and
covenants made herein, shall survive the Closing and delivery of the
Deed and other instruments of conveyance, and this Agreement shall not
be merged therein, but shall remain binding upon and for the parties
hereto until fully observed, kept or performed.
(g) The captions at the beginning of the several paragraphs, respectively,
are for convenience in locating the context, but are not part of the
context.
(h) In the event any term or provision of this Agreement shall be held
illegal, invalid, unenforceable or inoperative as a matter of law, the
remaining terms and provisions of this Agreement shall not be affected
thereby, but each such term and provision shall be valid and shall
remain in fall force and effect.
(i) This Agreement embodies the entire agreement between the parties
hereto with respect to the Project and supersedes any and all prior
agreements and understandings, written or oral, formal or informal. No
extensions, changes, modifications or amendments to or of this
Agreement, of any kind whatsoever, shall be made or claims by Seller
or Purchaser, and no notices of any extension, change, modification or
amendment made of claimed by Seller or Purchaser (except with respect
to permitted unilateral waivers of Conditions Precedent by Purchaser)
shall have any force or effect whatsoever unless the same shall be
agreed in writing and fully signed by Seller and Purchaser.
(j) The parties hereto agree that this Agreement shall not be recorded,
but that a Memorandum of Agreement of Purchase and Sale
("Memorandum"), as set forth in Exhibit G, shall be executed and
caused to be recorded by the party requesting that such Memorandum be
executed and recorded within ten (10) days following the full
execution hereof in the Office of the Recorder of Deeds of each county
in
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which a Location is located. All costs of preparation and recordation
shall be borne by the party requesting that such Memorandum be
executed and recorded.
(k) Seller understands that Purchaser may desire to Purchase the Property
in completion of a transaction structured to qualify for
non-recognition treatment pursuant to Section 1031 of the Internal
Revenue Code of 1986. Seller agrees to cooperate with respect to any
reasonable requests of Purchaser designed to achieve the aforesaid
result provided same is at no cost, expense, or liability to Seller.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PURCHASER: SELLER:
STUART WHITMAN, INC. ARGO FEDERAL. SAVINGS BANK, FSB
By: /s/ Robert G. Bicek By: /s/ John G. Yedinak
------------------------ --------------------------
Name: ROBERT G. BICEK Name: JOHN G. YEDINAK
----------------------- -----------------------
Tittle: Authorized Agent Title: Chairman & CEO
--------------------- -----------------------
ACCEPTED BY SELLER ON
JUNE 10 , 1999
------------------------
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EXHIBIT A
LEGAL DESCRIPTION
Either party to this Agreement may insert legal descriptions for the Land.
25
EXHIBIT B
ALLOCATION OF PURCHASE PRICE
600 West 63rd Street, Summit, Illinois $
----------------
8267 South Roberts Road, Bridgeview, Illinois $
----------------
2154 West Madison, Chicago, Illinois $
----------------
5818 South Archer Road, Summit, Illinois $
----------------
14076 Lincoln Avenue, Dolton, Illinois $
----------------
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EXHIBIT C
PERMITTED TITLE AND SURVEY EXCEPTIONS
1. Real Property Taxes for 199 .
--
2. Necessary Utility Easements.
NO OTHERS.
27
EXHIBIT D
SCHEDULE OF SERVICE CONTRACTS
28
EXHIBIT E
SCHEDULE OF SUBLEASES
29
EXHIBIT F
FORM OF LEASE
30
EXHIBIT G
MEMORANDUM OF AGREEMENT OF PURCHASE AND SALE
BE IT KNOWN TO ALL THAT:
Argo Federal Savings Bank ("Seller"), being the fee owner of the real
property legally described on Exhibit A, attached hereto and by this reference
made a part hereof, and known as _______________ located ____________ in the
City of in the State of Illinois ("Property") has entered into an Agreement of
Purchase and Sale (the "Agreement") with Stuart Whitman, Inc., a California
corporation ("Purchaser"), whereby Seller has agreed to sell and Purchaser has
agreed to purchase the Property pursuant to the terms of said Agreement.
IN WITNESS WHEREOF, the parties have caused this Memorandum of Agreement of
Purchase and Sale to be duly executed this ____ day of ___________, 1999.
SELLER:
Argo Federal Savings Bank
By:
----------------------------------
Name:
------------------------------
Title:
-----------------------------
PURCHASER:
Stuart Whitman, Inc.
By:
----------------------------------
Name:
------------------------------
Title:
-----------------------------
31
STATE OF
-------- )
) SS.
- ------------- )
On the ___________ day of ________________ 1999, personally appeared before
me __________________, who by me being duly sworn did say, that he is the
________________ of Argo Federal Savings Bank, and that the foregoing instrument
has been duly authorized by the and was signed on behalf of the ____________ by
____________ as his and its free and voluntary act for the uses and purposes
therein stated.
-----------------------------
Notary Public
STATE OF
-------- )
) SS.
- ------------- )
On the ______________ day of _________________ 1999, personally appeared
before me _____________, who by me being duly sworn did say, that he, the said
____________, is the ____________ of Stuart Whitman, Inc., and that the
foregoing instrument has been duly authorized by the Board of Directors of said
corporation and was signed on behalf of said corporation by said _____________
as his and its free and voluntary act for the uses and purposes therein stated.
-----------------------------
Notary Public
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ABSOLUTE NET LEASE
THIS LEASE made as of June 29, 1999, by and between Stuart Whitman, Inc.,
or its assigns ("Lessor"), whose address is 9220 Sunset Boulevard, Suite 206,
Los Angeles, CA 90069, and Argo Savings and Loan Association, all subsidiaries,
parents, and affiliates ("Lessee"), whose address is 7600 West 63rd Street,
Summit, Illinois 60501.
WITNESSETH:
WHEREAS, pursuant to that certain Agreement of Purchase and Sale dated June
10, 1999 (the "Agreement") Lessee as Seller, sold to Lessor, as Purchaser, the
Premises, as that term is hereinafter defined; and
WHEREAS, Lessee acknowledges that, prior to the date hereof, it has been in
full and complete possession of the Premises and is fully aware of the condition
of the Premises and all portions thereof, and that this demise is on a strictly
"AS IS" basis with no representations, warranties, covenants or agreements as to
the condition or state of said Premises or any portion thereof being made by the
Lessor.
NOW, THEREFORE, Lessor and Lessee hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the following meanings for all purposes of
this Lease:
"Additional Rental" means all Payment obligations of Lessee hereunder other
than Base Rental.
"Base Annual Rental" means $203,000.00, as adjusted pursuant to the terms
herein.
"Base Monthly Rental" means an amount equal to 1/12 of the Base Annual
Rental, subject to the Rent Adjustment as set forth below.
"Default Rate" means an amount of interest equal to the lesser of the
highest permitted annual interest rate Lessor may charge Lessee or 5 % per
month.
"Lease Term" means the period described in Article III.
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"Lease Year" shall be defined as a period of twelve (12) consecutive
calendar months; however, the first Lease Year shall commence on the date hereof
and expire December 31, 1999.
"Lessee" shall mean Lessee and its permitted successors and assigns.
"Premises" means the real property, together with all buildings, structures
and site improvements located thereon, at 5818 South Archer, Summit, Illinois,
and more particularly described in Exhibit A attached hereto and incorporated
herein and all rights, easements and interests appurtenant thereto, including,
but not limited to, any streets or public ways adjacent to the Premises and any
water and mineral rights, to the extent that the same have been conveyed to
Lessor by Lessee pursuant to the terms of the Agreement.
"Rent" means the aggregate of all sums becoming due and payable under this
Lease from the Lessee whether as Base Monthly Rental, Base Annual Rental,
Additional Rental, or otherwise.
ARTICLE II
DEMISE OF PREMISES
In consideration of the rentals and other sums to be paid by Lessee and of
the other terms, covenants and conditions on Lessee's part to be kept and
performed, Lessor hereby leases to Lessee, and Lessee hereby takes and hires,
from Lessor the Premises.
ARTICLE III
LEASE TERM
The Lease Term shall (i) be for one hundred seventy (170) months; (ii)
commence as of the first day of the calendar month following the date hereof
("Commencement Date"); and (iii) expire on the expiration of one hundred seventy
(170) months thereafter, unless sooner terminated or extended as provided in
this Lease.
ARTICLE IV
BASE RENTAL
Lessee agrees to pay to Lessor, or to such other person or entity as Lessor
may from time-to-time direct, without demand, deduction, set-off or abatement at
such place as Lessor, by notice in writing to Lessee from time to time may
direct, at the following rates and times:
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See Schedule I Attached Hereto
Base Annual Rental monthly in advance in equal monthly installments
(i.e. Base Monthly Rental) on the first day of each calendar month of the Lease
Term. One-thirtieth (1/30th) of each monthly payment shall be due and payable
for each day of any portion of a month less than a full month, and shall be
payable on the first day of such partial month. The monthly rental for the month
or portion thereof prior to the Commencement Date beginning from the date of the
full execution hereof shall be one-thirtieth (1/30th) of the Base Monthly Rental
times the number of days remaining in the month. The Base Monthly Rental for any
period less than a full Lease Year following the fourteenth annual anniversary
of the commencement date shall be the same as the Base Monthly Rental assessed
in the fourteenth Lease Year. If requested by Lessor, Lessee shall establish
arrangements whereby each payment of Base Monthly Rental is transferred by wire
or other means of transfer directly to Lessor's account as designated from
time-to-time by Lessor on or before the first business day of each month during
the Lease Term. At Landlord's request Tenant shall provide Landlord with a
single payment of Monthly Rental due hereunder aggregated with those due under
the Counterpart Leases, as hereinafter defined.
(b) The Base Annual Rental during the Lease Term, or during any Extension
Period, shall increase as set forth on Schedule 1 attached hereto and
incorporated herein by this reference.
ARTICLE V
RENTAL TO BE NET TO LESSOR
Lessee recognizes and acknowledges, without limiting the generality of any
other term or provision of this Lease, that it is the intent of the parties
hereto that the Base Annual Rental to be paid by Lessee to Lessor shall be
absolutely net to Lessor; and any and all charges, assessments, impositions and
expenses pertaining to or levied against the Premises and any and all portions
thereof, including, without limiting the generality of the foregoing, any and
all taxes, assessments, general or special, water rates, license fees, fuel
costs, steam costs, insurance premiums, utility bills, costs of repair,
maintenance (structural or otherwise), operation and restoration of the Premises
(including all improvements now or hereafter made thereon and any and every part
thereof), shall be included as Additional Rent hereunder, and be the sole and
absolute obligations of and paid by Lessee as Lessee's sole and exclusive cost
and expense, all as herein and elsewhere more particularly set forth.
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ARTICLE VI
TAXES AND ASSESSMENTS
A. Lessee shall pay, as the same become due and prior to delinquency, all
taxes and assessments which may be levied, assessed, imposed, or become liens on
the Premises or which arose out of the use or occupancy of the Premises,
including, without limitation, the following (the "Taxes"):
(a) All taxes and assessments upon the Premises or any part thereof or the
Rent therefrom, or any personal property, equipment, trade fixtures or
improvements located in or on the Premises, whether belonging to Lessor or
Lessee, which are owing at the commencement of this Lease or shall be assessed
or become due during the Lease Term or any tax or charge levied (whether in
whole or in part) in lieu of and/or in addition to such taxes and assessments;
(b) All taxes, charges, license fees or similar fees imposed by reason of
the tenancy, use or occupancy of the Premises by Lessee; and
(c) All excise, transaction, privilege, license, sales, use and other
taxes upon the rental or other payments hereunder, the leasehold estate of
either party hereto or the activities of either party pursuant to this Lease,
except for any tax upon or measured by the income and profits of Lessor.
B. Lessee shall have the right to contest, in good faith and with due
diligence, the validity or amount of any Taxes levied or assessed against the
Premises by appropriate legal proceedings which shall have the effect of
preventing the collection of the Taxes so contested; provided that:
(a) At least ten (10) days prior to the last day allowed by law for
payment of such Taxes, Lessee shall notify Lessor of Lessee's intention to
contest said Taxes;
(b) To the extent Lessee has not deposited amounts sufficient to assure
payment of Taxes, costs, interest and penalties, Lessee shall furnish to Lessor
such security as Lessor or its mortgagee may require to assure payment of all
Taxes and any costs, interest and penalties which may be or become payable in
the event and to the extent that such contest shall be unsuccessful;
(c) Such proceedings shall not endanger Lessor's interest in the Premises;
and
(d) Whether such proceedings are brought in the name of Lessee or Lessor,
Lessee shall indemnify and hold harmless the Lessor from any liability for the
payment of any costs or expenses in connection therewith.
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ARTICLE VII
UTILITIES
Lessee shall contract, in its own name, for and pay when due, all charges
in connection or use of water, gas, electricity, telephone, garbage collection,
sewer use and other utility services supplied to the Premises during the Lease
Term. Under no circumstances shall Lessor be responsible or liable for any
interruption, termination or the lack or quality of any utility service.
ARTICLE VIII
INSURANCE
Lessee shall maintain, at its sole cost and expense, the following types
and amounts of insurance insuring Lessee, and naming as additional insureds
Lessor, and the holder(s) of any mortgage or deed of trust encumbering the
Premises (which insurance may be included under a blanket insurance policy if
all the other terms hereof are satisfied), in addition to such other insurance
as Lessor may from time-to-time reasonably require:
(a) Insurance against loss, damage or destruction by fire and other
casualty, including theft, vandalism and malicious mischief, flood (if the
Premises are in a flood hazard area), earthquake (if the Premises are in an area
subject to destructive earthquake within recorded history), boiler explosion (if
there is any boiler upon the Premises), sprinkler damage (if the Premises have a
sprinkler system), all matters covered by a standard extended coverage
endorsement and such other risks as Lessor may reasonably require, insuring the
Premises, and all improvements thereon for not less than 100% of their full
replacement cost for the Premises and all other premises leased under the
Counterpart Leases. Any insurance policy or policies shall designate Lessor and
Lessee as the named insureds as their interest may appear and shall be payable
as set forth in Article XVII.
(b) Comprehensive public liability and property damage insurance,
including a products liability clause, against bodily injury liability, property
damage liability and automobile bodily injury and property damage liability,
including, without limitation, any liability arising out of the ownership,
maintenance, repair, condition or operation of the Premises or adjoining ways,
streets or sidewalks. Such insurance policy or policies shall contain a "waiver
of subrogation" clause or endorsement which precludes the insurer from denying
the claim of either Lessee or Lessor because of the negligence or other acts of
the other, shall be in amounts of not less than $2,500,000 per injury and
occurrence and not less than $5,000,000 in the aggregate, with respect to any
insured liability, whether for personal injury or property damage, or such
higher limits as Lessor may reasonably require from time to time, and shall be
of form and substance satisfactory to Lessor.
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(c) Worker's compensation, employer's liability and such other insurance
as may be necessary to comply with applicable laws.
(d) Loss of rents or business interruption insurance in the amount of at
least one and one-half times the Base Annual Rental.
The form of each policy of insurance shall:
(i) Provide for a waiver of subrogation by the insurer as to
claims against Lessor, its partners (limited and general) employees, directors,
officers and agents;
(ii) Provide that such insurance cannot be canceled, invalidated
or suspended on account of the conduct of Lessor, its officers, directors,
employees, agents and any other party acting by, through or under Lessor;
(iii) Contain a standard (i.e. without contribution) mortgage
clause endorsement in favor of the holder(s) of any mortgage or deed of trust
covering the Premises if designated by Lessor;
(iv) Provide that the policy of insurance shall not be terminated
without not less than 30 days' prior written notice to Lessor and to any lender
covered by any standard mortgage clause endorsement;
(v) Provide that the insurer shall not have the option to restore
the Premises if Lessor elects to terminate this Lease in accordance with the
terms hereof; and
(e) All of Lessee's insurance shall be issued by insurance companies
having a rating in Best's Insurance Guide of Class VI or better, and acceptable
to Lessor and its lender with a deductible of no more than $5,000 and acceptable
to Lessor's lender.
(f) Lessee shall provide to Lessor and any lender designated by
Lessor, certificates of insurance or copies of insurance policies evidencing
that insurance satisfying the requirements of this Lease is in effect at all
times.
In addition, Lessee shall carry insurance of a type and in amounts typical
of similarly sized savings and loan associations addressing operations of a
financial institution.
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ARTICLE IX
TAXES AND INSURANCE IMPOUND
For so long as Landlord's lender shall require a deposit of taxes,
assessments, or insurance premiums, or at any other time as Tenant shall fail to
timely pay any of the foregoing, in addition to Landlord's other rights and
remedies hereunder, Lessee shall pay to Lessor such sums as Lessor reasonably
determines which will provide an impound account (which shall not be deemed a
trust fund) for paying up to the next one year of taxes, assessments and
insurance premiums. Lessor will estimate the amounts needed for such purposes
and will notify Lessee to pay the same to Lessor in equal monthly installments,
as nearly as practicable, in addition to all other sums due under this Lease.
Should additional funds be required at any time, Lessee shall pay the same to
Lessor on demand. Interest or other gains from such funds, if any, shall remain
in the impound account and either applied to the amounts to be paid for taxes,
assessments, or insurance premiums or, if not needed for that purpose, will
reduce the monthly impound amount for the following year. In the event of any
Default (as that term is defined in Article XVIII), Lessor may apply all such
funds against any sums due from Lessee to Lessor. Lessor shall give to Lessee an
annual accounting showing all credits and debits to and from such impound funds
received from Lessee.
ARTICLE X
YEAR 2000 REPRESENTATION
Lessee represents to Lessor that it has reviewed the areas within its
business and operations which could be adversely affected by, and has developed
or is developing a program to address on a timely basis, the "Year 2000 Problem"
(that is, the risk that computer applications used by Lessee may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date on or after December 31, 1999), and has made related
appropriate inquiry of material suppliers and vendors. Based on such review and
program, Lessee believes that the "Year 2000 Problem" will not have a material
adverse effect on Lessee or its operation of the Premises. From time to time, at
the request of the Lessor, Lessee shall provide to the Lessor such updated
information or documentation is requested regarding the status of its efforts to
address the Year 2000 Problem.
ARTICLE XI
USE
Lessee shall use the Premises solely for the operation of a federally
insured financial institution, and the operations by wholly owned subsidiary
companies thereof of incidental uses
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traditionally attendant to financial institutions, savings and loan operating
under the trade name and business style of Argo Federal Savings and for no other
use without Lessor's prior written consent, which consent will not be
unreasonably withheld. Lessor may consider the following, in addition to and not
in limitations of other criteria, in determining whether to grant its consent to
a change in use without being deemed to be unreasonable: (a) whether the
proposed Rent to be paid to Lessor is reasonable considering the converted use
of the Premises and the customary rental prevailing in the community for such
use; (b) whether the converted use will be consistent with the highest and best
use of the Premises in the discretion of Lessor reasonably exercised; and (c)
whether the converted use will increase Lessor's risks or decrease the residual
value of the Premises.
ARTICLE XII
COMPLIANCE WITH LAWS
A. Lessee's use and occupation of the Premises shall not be in violation
of any governmental requirement, law, ordinance, statute, ruling or the like
applicable to the Lessee, the Premises or the use thereof, including without
limitation, the Americans with Disabilities Act and any local, state, or federal
environmental requirement, law, ordinance, statute or ruling related to
Hazardous Substances (as hereinafter defined). Lessee shall, at Lessee's sole
cost and expense, also comply with all applicable directions, rules and
regulations of the fire marshall, health officers, building inspector or other
proper officers of any governmental agency having jurisdiction.
B. Lessee shall not create, store or release or allow the creation,
storage or release of any Hazardous Substances on the Premises, and if the use
of the Premises shall be changed in accordance with the provisions of this
Lease, Lessee shall not create, store or release or allow the creation, storage
or release of any additional Hazardous Substances on the Premises without the
prior consent of Lessor, such consent not to be unreasonably withheld or
delayed. "Hazardous Substances " shall mean: Any substance or material on the
Premises defined or designated as hazardous or toxic waste, hazardous or toxic
materials, a hazardous or toxic substance, or other similar term by any federal,
state or local environmental statute, regulation or ordinance presently in
effect.
C. In addition to all other provisions of this Lease regarding
indemnification and holding Lessor harmless, Lessee agrees to indemnify and hold
Lessor and the holder(s) of any mortgage or deed of trust encumbering the
Premises harmless from and against any and all claims, demands, damages, losses,
liens, liabilities, penalties, fines, lawsuits and other proceedings, costs and
expenses (including, without limitation, reasonable attorneys' fees) arising
directly or indirectly from, out of, or in any way connected with (i) the
presence of any Hazardous Substances
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on or off the Premises or any portion thereof; (ii) any violation of any local,
state or federal environmental law, regulation, ordinance or administrative or
judicial order relating to Hazardous Substances, attributable to events
occurring before or after the Commencement Date.
ARTICLE XIII
MAINTENANCE
A. Lessee hereby accepts the Premises "AS IS," with no representation or
warranty of Lessor as to the condition thereof.
B. Lessee shall at all times, at its sole cost and expense, maintain,
repair and replace, as necessary, the Premises, including all portions of the
Premises, whether or not the Premises were in such condition upon the
commencement of this Lease.
C. Lessee shall maintain, the Premises as a first-class financial
institution and from time-to-time, do such renovation, restoration, refurbishing
and remodelling as shall be reasonably necessary to maintain the Premises in a
condition and style then current for similarly sized/located financial
institution. Lessee shall not permit maintenance obligations to be deferred.
D. Lessor shall have free access to the Premises from time to time to
confirm Lessee's compliance with the terms of this Article XIII and the balance
of the terms of this Lease.
ARTICLE XIV
ALTERATIONS
Lessee shall not commit actual or constructive waste upon the Premises, or
alter the exterior or structural elements or the interior of the Premises in any
manner without the prior written consent of Lessor. Any work at any time
commenced by Lessee on the Premises shall be prosecuted diligently to
completion, shall be of good workmanship and materials and shall comply fully
with all the terms of this Lease. Any addition to or alteration of the Premises
shall be deemed a part of the Premises and belong to Lessor at the expiration of
the Lease Term.
ARTICLE XV
INDEMNIFICATION
Lessee, shall indemnify and hold harmless Lessor and Lessor's general and
limited partners, officers, employees, lender(s) and agents, from and against
any and all claims, demands, causes
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of action, suits, proceedings, liabilities, damages, losses, costs and expenses,
including attorneys I fees, caused by, incurred or resulting from its operation
of or relating in any manner to the Premises, whether relating to their original
design or construction, latent defects, alteration, maintenance, use by Lessee
or any person thereon, supervision or otherwise, or from any breach of, default
under or failure to perform any term or provision of this agreement by Lessee,
its officers, employees, agents or other persons. It is expressly understood
that Lessee's obligations under this Article shall survive the expiration or
earlier termination of this Lease.
ARTICLE XVI
QUIET ENJOYMENT
So long as Lessee shall pay rental and other sums herein provided and shall
keep and perform all of the terms, covenants and conditions on its part therein
contained, Lessor covenants that Lessee, subject to Lessor's rights herein,
shall have the right to the peaceful and quiet use and occupancy of the
Premises.
ARTICLE XVII
CONDEMNATION OR DESTRUCTION
(a) In case of a taking of all or any part of the Premises or the
commencement of any proceedings or negotiations which might result in a taking,
for any public or quasi-public purpose by any lawful power or authority by
exercise of the right of condemnation or eminent domain or by agreement between
Lessor, Lessee and those authorized to exercise such right ("Taking"), Lessee
will promptly give written notice thereof to Lessor, generally describing the
nature and extent of such Taking. Lessee may prosecute, if permissible under the
appropriate law of the jurisdiction, any award, compensation or damages
resulting from a Total Taking, as that term is hereinafter defined, to which it
is entitled but shall not have the right to Lessor's award, compensation or
damages.
(b) In case of a Taking of a whole of the Premises, other than for
temporary use ("Total Taking"), this Lease shall terminate as of the date of
such Total Taking and all Rent and other charges shall be apportioned and paid
to the date of such Total Taking. Total Taking shall include a taking of
substantially all the Premises if in the reasonable judgment of Lessor the
remainder of the Premises is not useable and/or cannot be made useable for the
purposes provided herein. Lessor shall be entitled to the entire award,
compensation, or damages whether such award is made as compensation for
dimunition in the value of the fee or leasehold, and Lessee hereby assigns to
Lessor all of Lessee's right, title and interest in and to any such award.
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(c) In case of a temporary use of the whole or any part of the
Premises by a Taking, this Lease shall remain in full force and effect, without
any reduction of rent or any other sums payable hereunder. Lessee shall be
entitled to the entire award for such Taking, whether paid by damages, rent or
otherwise, unless the period of occupation and use by the condemning authorities
shall extend beyond the date of expiration of the Lease, in which case the award
made for such Taking shall be apportioned between Lessor and Lessee as of the
date of expiration. At the termination of any such use or occupation of the
Premises, Lessee will, at its own cost and expense, promptly commence and
complete the restoration of the Premises. Lessee shall not be required to make
the restoration if the term of this Lease shall expire prior to, or within one
year after, the date of termination of the temporary use so taken, and in such
event, Lessor shall be entitled to recover all damages and awards arising out of
the failure of the condemning authority to repair and restore the building at
the expiration of such temporary taking.
(d) In the event of (i) a Taking of less than all of the Premises
other than a temporary use ("Partial Taking"); or (ii) of damage or destruction
to all or any part of the Premises, all awards, compensation or damages shall be
paid to Lessor, and Lessor shall have the option to terminate this Lease by
notifying Lessee in writing within 60 days after Lessee gives Lessor notice of
such damage or destruction or that title has vested in the taking authority.
Lessee shall thereupon have a period of 60 days in which to elect in writing to
continue this Lease on the terms herein provided. If Lessee does not elect to
continue this Lease or shall fail during such 60day period to elect to continue
this Lease, then this Lease shall terminate as of the last day of the month
during which such period expired. Lessee shall then immediately vacate and
surrender the Premises, all obligations of either party hereunder shall cease as
of the date of termination and all such awards, compensation or damages shall be
paid to Lessor and Lessor shall be under no obligation make any payment
therefrom to Lessee. If Lessor does not elect to terminate this Lease, or if
Lessor so elects but Lessee elects to continue this Lease, then this Lease shall
continue on the following terms: Rental and other sums due under this Lease
shall continue unabated, and Lessee shall promptly commence and diligently
prosecute restoration of the Premises to the same condition, as nearly as
practicable, as prior to such partial condemnation, damage or destruction as
approved by Lessor in its sole discretion. Lessor shall promptly make available
in installments as restoration progresses an amount equal to any award,
compensation or damages received by Lessor, (or if stemming from an event prior
to the commencement of this Lease for which Lessor has an established
construction escrow, from the amount held in said escrow), upon written request
of Lessee accompanied by evidence reasonably satisfactory to Lessor that such
amount has been paid or is due and payable and is properly a part of such costs
and that there are no mechanics' or similar liens for labor and materials
theretofore supplied in connection with the restoration. Lessor shall be
entitled to keep any portion of such award, compensation or damages which may be
in excess of the cost of restoration, (unless the balance is from an existing
construction escrow, as set forth above), and Lessee shall bear all additional
costs, fees and expenses of such restoration in excess of the amount of any such
award, compensation or damages.
(e) Notwithstanding the foregoing, if at the time of any Taking or at
any time thereafter Lessee shall be in Default, such Default shall be
continuing, Lessor is hereby authorized
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and empowered, in its name or in Lessee's name, and on behalf of Lessee or
otherwise, to file and prosecute Lessee's claim, if any, for an award on account
of any Taking and to collect such award and apply the same, after deducting all
costs, fees and expenses incident to the collection thereof, to the curing of
such Default and any other then existing Default.
ARTICLE XVIII
DEFAULT AND REMEDIES
(a) Each of the following shall be deemed a breach of this Lease and
a default ("Default") by Lessee:
(i) If any material representation or warranty of Lessee herein
or the Seller in the Agreement was false when made, or in the event that any
such representation or warranty is continuing and becomes false at any time, or
if Lessee renders any false statement or account;
(ii) If any Rent due remains unpaid for five (5) days after the
due date thereof;
(iii) If Lessee becomes insolvent, makes a general assignment for
the benefit of creditors, seeks or consents to the appointment of a trustee or
liquidator, shall dissolve or liquidate all or a material portion of its assets,
performs any act of bankruptcy or is not generally paying its debts as the same
become due;
(iv) If Lessee fails to perform any of the covenants, conditions
or obligations of this Lease;
(v) If Lessee ceases to operate financial institution activities
at the Premises;
(vi) If there is a breach, default, termination or expiration
under any of those leases shown on Exhibit B attached hereto ("Counterpart
Leases").
(b) If any breach or default does not involve the payment of any
rental or other monetary sum, is not willful or intentional, does not place any
rights or property of Lessor in immediate jeopardy, is not known to Lessee
(unless Lessor has given Lessee notice thereof) and is within the reasonable
power of Lessee to cure within 20 days after notice thereof (all as determined
by Lessor in its reasonable discretion), then such event shall not constitute a
default hereunder, unless otherwise expressly provided herein, until Lessor
shall have given Lessee notice thereof and a period of twenty (20) days shall
have elapsed, during which period Lessee may correct or cure such event, upon
failure of which a Default shall be deemed to have occurred
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hereunder without further notice or demand of any kind. If any breach or default
cannot reasonably be cured with the 20-day period, as determined by Lessor in
its reasonable discretion, and Lessee is diligently pursuing a cure of such
breach or default, then Lessee shall, after receiving notice specified herein,
have a reasonable period as determined by the Lessor to cure such breach or
default.
(c) In the event of any breach or default, and without any notice,
except, if applicable, the notice required under certain circumstances by
paragraph (b) above or such other notice as may be required by law and cannot be
waived by Lessee (all other notices being hereby waived), Lessor shall be
entitled to exercise, at its option, concurrently, successively or in any
combination, all remedies available at law or in equity, including, without
limitation, any one or more of the following:
(i) To terminate this Lease;
(ii) To re-enter and take possession of the Premises or any part
thereof (which re-entry shall not operate to terminate this Lease unless Lessor
expressly so elects), of any or all personal property or fixtures of Lessee upon
the Premises, and of all franchises, licenses, permits and other rights or
privileges of Lessee pertaining to the use and operation of the Premises, if any
and if assignable;
(iii) To seize all personal property and fixtures upon the
Premises which Lessee owns or in which it has an interest, in which Lessor shall
have a landlord's lien and is hereby granted a security interest, and to dispose
thereof in accordance with laws prevailing at the time and place of such seizure
or to remove all or any portion of such property and cause the same to be stored
in a public warehouse or elsewhere at the cost of Lessee;
(iv) To relet the Premises or any part thereof for such term or
terms (including a term which extends beyond the original term of this Lease),
at such rentals and upon such other terms as Lessor, in its sole discretion, may
determine, with all proceeds received from such reletting being applied to the
rentals and other sums due from Lessee in such order as Lessor may, in its sole
discretion, determine, with Lessee remaining liable for any deficiency;
(v) To recover from Lessee an amount equal to the difference
between the rentals and such other sums (including all sums required to be paid
by Lessee, such as taxes and insurance) to be received from the date of such
Default to the expiration of the original term hereof and the reasonable long
term rental value of the Premises for the same period; and/or
(vi) To recover from Lessee all expenses, including attorneys'
fees, reasonably paid or incurred by Lessor as a result of such breach.
In addition, in the event of any Default by Lessee, Lessor may,
but shall not be obligated to, immediately or at any time thereafter, and
without notice, except as required herein,
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correct such Default for the account and at the expense of Lessee. Any sum or
sums so paid by Lessor, together with interest at the Default Rate and all costs
and damages, shall be deemed to be additional Rent hereunder and shall be
immediately due from Lessee to Lessor. If any Default or threatened Default by
Lessee of any of the agreements, terms, covenants, or conditions contained in
this Lease shall occur, Lessor shall be entitled to enjoin such Default or
threatened Default and shall have the right to invoke any right or remedy
allowed at law or in equity, or by statute or otherwise, as though re-entry
summary proceedings and other remedies were not provided for in this Lease.
ARTICLE XIX
MORTGAGE AND SUBORDINATION
A. Lessee shall keep the Premises free from any liens for work performed,
materials furnished or obligations incurred by Lessee. Lessee shall do all
things necessary to prevent the filing of any mechanic's or other liens against
the Premises or the interest of Lessor or any ground or underlying lessors
thereof, or the interest of any mortgagees or holders of any deeds of trust
covering any portion of the Premises by reason of any work, labor, services, or
materials performed or supplied or claimed to have been performed for or
supplied to Lessee or anyone holding the Premises, or any part thereof, by,
through or under Lessee. If any such lien shall at any time be filed, Lessee
shall either cause the same to be vacated and canceled of record within ten (10)
days after the date of filing thereof or, if Lessee in good faith determines
that such lien should be contested, Lessee shall furnish such security, by
surety bond or otherwise, as may be reasonably necessary or be prescribed by law
to release the same as a lien and to prevent any foreclosure of such lien during
the pendency of such contest. If Lessee shall fail to vacate or release such
lien in the manner and within the time period aforesaid, such failure shall be a
Default, and in addition to all other rights and remedies available to Lessor
resulting therefrom, Lessor may, but shall not be under any obligation to,
vacate or release said lien either by paying the amount claimed to be due, or by
procuring the release of such lien by giving security or in such other manner as
may be prescribed by law. Lessee shall reimburse Lessor, upon demand, all sums
disbursed or deposited by Lessor pursuant to the foregoing provisions of this
paragraph, including Lessor's costs and expenses and reasonable attorneys' fees
incurred in connection therewith, with interest thereon at the Default Rate.
However, nothing contained herein shall imply consent or be construed as an
agreement on the part of Lessor or any ground or underlying lessors, or
mortgagees, or holders of deeds of trust covering any portion of the Premises,
to subject their respective estates or interests to liability under any
mechanic's or other lien law, whether or not the performance or the furnishing
of such work, labor, services or materials to Lessee or anyone holding the
Premises, or any part thereof, through or under Lessee, shall have been
consented to by Lessor or any of such parties.
B. NOTICE IS HEREBY GIVEN THAT LESSEE IS NOT AUTHORIZED TO PLACE ANY
LIEN, MORTGAGE, DEED OF TRUST OR ENCUMBRANCE OF ANY KIND
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UPON ALL OR ANY PART OF THE PREMISES OR LESSEE'S LEASEHOLD INTEREST THEREIN, AND
ANY SUCH PURPORTED TRANSACTION SHALL BE VOID UNLESS LESSOR SHALL FIRST CONSENT
IN WRITING TO EACH SAID ENCUMBRANCE. As a condition precedent for Lessor
considering any such consent, which may be withheld by Lessor in its sole and
absolute discretion, Lessee shall submit to Lessor, not less than thirty (30)
days prior to the effective date of the proposed encumbrance (including a
hypothecation), all documents proposed to be used in connection therewith plus a
commitment for an endorsement to the Lessor's Owner's Title Policy,
affirmatively ensuring that if the proposed encumbrance is consented to by
Lessor and is subsequently an encumbrance on the Lessee's leasehold interest,
the interest of the Lessor in the Premises is not otherwise affected and
continues to be paramount to the interest of the Lessee and any party claiming
by, through or under Lessee. A further condition precedent is the obligation of
the Lessee to pay all fees, costs, charges and expenses incurred by Lessor in
connection with any proposed encumbrance (including reasonable attorneys' fees)
whether or not consent thereto is given.
C. This Lease at all time shall be subordinate to the lien of any ground
leases, mortgage, mortgages, trust deed or trust deeds now or hereafter placed
upon the Premises by Lessor, and Lessee covenants and agrees to execute and
deliver, upon demand, such further instruments subordinating this Lease to the
lien of any such ground lease, mortgage, mortgages or proposed mortgages, or
trustees under the trust deeds, upon the condition that Lessee shall have the
right to remain in possession of the Premises under the terms of this Lease,
notwithstanding any default in any such mortgage, mortgages, trust deed or trust
deeds, or after foreclosure thereof, so long as Lessee is not in default beyond
any applicable grace period under any of the covenants, conditions and
agreements contained in this Lease.
D. (i) If any mortgagee or trustee elects to have this Lease and the
interest of Lessee hereunder be superior to any such interest or right and
evidences of such election by notice given to Lessee, then this Lease and the
interest of Lessee hereunder shall be deemed superior to any such mortgage or
trust deed, whether this Lease was executed before or after such mortgage or
trust deed and in that event, such mortgagee or trustee shall have the same
rights with respect to this Lease as if it had been executed and delivered prior
to the execution and delivery of the mortgage or trust deed and has been
assigned to such mortgagee or trustee.
(ii) Lessee shall execute and deliver whatever instruments may be
required for such purposes, and in the event Lessee fails so to do within ten
(10) days after demand in writing, Lessee does hereby make, constitute and
irrevocably appoint Lessor as its attorney-in-fact and in its name, place and
stead so to do.
(iii) Lessee shall give written notice to any mortgage lender having a
recorded security instrument upon the Premises or any part thereof of any breach
or default by Lessor of any of its obligations under this Lease and to give such
mortgage lender at least 60 days beyond any notice period to which Lessor might
be entitled to cure such default before Lessee may exercise any remedy with
respect thereto. Lessee shall provide Lessee's most recent audited
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financial statements upon request to Lessor or any mortgage lender and to
certify the continuing accuracy of such financial statements in such manner as
Lessor or such mortgage lender may request.
ARTICLE XX
ESTOPPEL CERTIFICATE
At any time, and from time to time, Lessee and Lessor agree to promptly,
and in no event later than fifteen (15) days after a request in writing from the
other, to execute, acknowledge and deliver to the party so requesting a
statement in writing, certifying that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that the same is in full force
and effect as modified and stating the modifications) and the dates to which the
rental and other charges have been paid and such other information and/or
confirmation as Lessor or Lessee may reasonably request.
ARTICLE XXI
ASSIGNMENT AND SUBLETTING
A. Lessor shall have the right to sell or convey the Premises subject to
this Lease or to assign the right, title and interest as Lessor under this
Lease, in whole or in part. In the event of any such sale or assignment other
than a security assignment, Lessor shall be relieved, from and after the date of
such transfer or conveyance, of liability for the performance of any obligation
of Lessor contained herein, except for obligations or liabilities accrued prior
to such assignment or sale.
B. Lessee acknowledges that as an inducement to enter into this Lease,
Lessor has relied both on the business experience and creditworthiness of Lessee
and the particular purpose for which Lessee intends to use the Premises,
therefore, Lessee shall not assign, this Lease or any interest therein, or
sublet all or any part of the Premises, without the prior written consent of
Lessor. Lessor may withhold or condition such consent upon such matters as
Lessor may, in its sole discretion, determine, including, without limitation,
the following criteria: experience and creditworthiness of the assignee; the
assumption by the assignee of all of Lessee's obligations hereunder by
undertakings enforceable by Lessor; the transfer to such assignee of all
necessary licenses to continue operating the Premises for the purposes herein
provided; receipt of such representations and warranties from such assignee as
Lessor may request, including such matters as its organization, existence, good
standing and finances and other matters, whether or not similar in kind; whether
or not Lessee seeks to assign any or all Leases of the Counterpart Leases to the
same proposed Assignee, and the payment by the Lessee of all fees, costs,
charges and expenses
16
48
incurred by Lessor in connection with any proposed assignment or subletting,
including reasonably attorneys' fees, whether or not consent to such requested
assignment or subletting is given. If consent is given to an assignment (but not
a sublease), an amendment to the Lease shall be entered into whereby the Base
Annual Rental shall be increased, as of the date the assignment is to become
effective to an amount equal to 125% of the then-current Base Annual Rental, due
and payable from the assignee.
C. No such assignment or subletting shall relieve the original Lessee or
any prior assignee of their obligations under this Lease; provided, however, if
such proposed assignee has a net worth, business reputation, and operating
experience reasonably acceptable to Lessor, said successor properly assumes this
Lease, and Lessee is not in default hereunder, then Lessor shall release Lessee
hereunder upon proper documentation. Lessee shall be required to pay all costs
incurred by Lessor in considering such assignment and release prior to Lessor
consenting hereunder. Lessor's consent to an assignment, or to a release of
Lessee, shall not require Lessor to similarly consent for any future assignments
or requests for release of Lessee.
D. Lessor consents to those leases listed on Exhibit C ("Subleases")
which currently affect the Premises, subject to the effective subordination of
the Subleases to this Lease.
ARTICLE XXII
OPTION TO RENEW
A. Lessee (provided there is no Default at the time of exercise or at the
expiration of the Lease Term or, if applicable, the then-current extension of
the Lease Term) shall have the option to continue this Lease in effect for three
additional independent periods, the first for ten Lease Years and the final two
for five Lease Years each ("Extension Period").
B. In the event the option to renew is exercised, then during said
Extension Period, all terms, conditions, covenants, representations, warranties
and obligations herein contained shall remain in full force and effect,
provided, however, if Lessee shall have exercised its third Extension Period,
there shall be no further right to so renew, and provided that Base Annual
Rental shall adjust pursuant to Paragraph D below.
C. Lessee shall exercise such renewal option by giving written notice to
Lessor of such exercise not more than two hundred seventy (270) days nor less
than two hundred ten (210) days prior to the expiration of the Lease Term, or if
applicable, the then-current extension of the Lease Term.
D. Base Annual Rent for any extended term will be at the greater of
Market Rent or the scheduled rent shown for such Extension Period on Schedule 1
attached. For purposes of this Lease, Market Rental shall mean the rent agreed
upon by Lessor and Lessee, or if they are unable
17
49
to reach agreement within fifteen (15) days from the date Lessee elects the
Extension Period ("Agreement Period"), then the rent determined as fair rental
value by an MAI appraiser with at least five (5) years experience in appraising
commercial rental real estate of similar type in the general geographic area of
the Premises, which appraiser has been agreed upon by Lessor and Lessee, and who
has been instructed to determine a fair rental value for the Premises as used
for its highest and best use, and not necessarily that of a financial
institution. If Lessor and Lessee cannot jointly agree upon on an appraiser
within fifteen (15) days of the expiration of the Agreement Period ("Joint
Appointment Period"), then each of Lessee and Lessor shall select an independent
MAI appraiser meeting the aforesaid criteria within fifteen (15) days of the
expiration of the Joint Appointment Period ("Selection Period") and those two
appraiser shall select a third appraiser within fifteen (15) days of the
expiration of the Selection Period, and each of the three appraisers shall
render an appraisal of market rent for the Premises within thirty (30) days of
the Selection Period. The average rental of the two appraisers closest in amount
to each other shall be the Market Rent. Should Lessor or Lessee fail to timely
select an appraiser, the appraisal of the solely selected appraiser shall
control. Lessor and Lessee shall pay the costs of their selected appraiser, and
evenly divide any pay for the cost of any third appraiser or jointly approved
appraiser.
ARTICLE XXIII
HAZARDOUS MATERIALS SITE INVESTIGATION
Lessee shall, at its sole cost and expense, cause a party reasonably
acceptable to Lessor to conduct a Level I Hazardous Materials Site Investigation
(Level 1 Audit), as often as is required by the Environmental Protection Agency
or other governmental or regulatory body with authority to so request, or as
reasonably requested by Lessor, which Level 1 Audit shall complete at least the
following tasks at the Premises:
(i) Review available materials that could indicate potential
environmental impairment. Such materials should include topographic maps, air
photos, boring logs and other references.
(ii) Conduct a physical site examination to include an inspection for
unusual land colorations, odors, and physical irregularities as well as
underground or above-ground tanks, and an evaluation of current land use.
Neighboring land owners are to be contacted to determine actual historical site
use.
(iii) Contact local and state health and environmental agencies to
determine if any hazardous materials incidents have occurred in the area,
including recorded or known landfill sites, or the occurrence of any hazardous
material event (spill, storage, discharge, etc.).
18
50
(ix) Adjacent properties are to be surveyed for current land use
conditions that may adversely affect the subject property including, underground
or above-ground storage tanks, manufacturing sites, landfills, etc.
(v) A summary report will be prepared to the Lessor, indicating the
contacts made, data findings, photographs, and other pertinent information and
recommendations for a detailed (Level 2) site investigation if significant
evidence exists that hazardous substances may have been released at or in close
proximity to any of the Sites. If a Level 2 site investigation is recommended,
Lessee shall perform that investigation and shall perform all clean up
activities recommended therein as soon thereafter as reasonable.
ARTICLE XXIV
NOTICES
All notices, demands, requests, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this Lease shall
be in writing and shall be deemed to have been properly given if sent by either
(i) registered or certified mail, postage prepaid; (ii) by a recognized national
overnight courier service (e.g. Federal Express) with instructions and payment
for next business day delivery; (iii) by personal delivery; or (iv) confirmed
facsimile transmission to the parties at the addresses hereinafter set forth
and/or to such other address as either party may give notice pursuant to this
section from time-to-time. All notices shall be deemed received and effective on
the first to occur of the following: (i) delivery; (ii) refusal of deliver; or
(iii) the third business day after posting or delivery to the courier service;
or (iv) receipt of confirmed facsimile transmission.
If to Lessor: Stuart Whitman, Inc.
749 San Ysidro Rd.
Montecito, CA 93108
Attn: Stuart Whitman, President
With copy to: The Bicek Group
1413 Sherman Road
Suite 40
Romeoville, Illinois 60446
Attn: Robert Bicek
and to: Jeffrey J. Stahl, Esq.
Stahl Brashler LLC
20 East Jackson Blvd.
Suite 1600
Chicago, Illinois 60604
19
51
If to Lessee: Argo Bancorp, Inc.
7600 West 63rd Street
Summit, Illinois 60501
Attn: John G. Yedinak, Chairman
with copy to: James Kemp, Esq.
Kemp, Grzelakowski & Lorernzini, Ltd.
1900 Spring St.
Suite 500
Oak Brook, IL 60523
(630) 571-7711
(630) 571-7755
ARTICLE XXV
HOLDING OVER
If Lessee remains in possession of the Premises after the expiration of the
Lease Term, Lessee may be deemed a tenant on a month-to-month basis and shall
continue to pay rentals and other sums at the rate of 200 % of the amounts
herein provided and to comply with all of the terms of this Lease; provided that
nothing herein nor the acceptance of Rent by Lessor shall be deemed a consent to
such holding over.
ARTICLE XXVI
LESSOR'S LIEN
Lessor shall have a landlord's lien upon all furnishings, fixtures,
equipment, decorations, supplies, accessories and other personal property which
Lessee owns or in which it has an interest located on the Premises, to secure
the payment of all Rent and the performance of all other obligations of Lessee
under this Lease; provided however, Lessor, upon request of Lessee, shall
subordinate this interest upon and subject to such terms and conditions as
Lessor may, from time-to-time, reasonably determine.
ARTICLE XXVII
REMOVAL OF LESSEE'S PROPERTY
At the expiration or sooner termination of the Lease Term if Lessee is not
then in Default hereof, Lessee may and shall remove from the Premises all
personal property belonging to Lessee.
20
52
Lessee shall repair any damage caused by such removal and shall leave the
Premises (including all buildings thereon) broom clean and in good condition and
repair.
ARTICLE XXVIII
FINANCIAL STATEMENTS
Within ninety (90) days after the end of each fiscal year of Lessee, Lessee
shall deliver to Lessor (i) complete financial statements of Lessee including a
balance sheet, profit and loss statement, statement of changes in financial
condition and all other related schedules for the fiscal period then ended; and
(ii) income statements for the business at the Premises showing profits and
losses for the fiscal period then ended. All such financial statements shall be
prepared in accordance with generally accepted accounting principles,
consistently applied from period to period, and shall be audited by an
independent Certified Public Accountant reasonably acceptable to Lessor. In the
event that Lessee's property and business at the Premises is ordinarily
consolidated with other business for financial statement purposes, such
financial statements shall be prepared on a consolidated basis showing
separately the profits and losses, assets and liabilities pertaining to the
Premises with the basis for allocation of overhead of other charges being
clearly set forth.
ARTICLE XXIX
LESSOR'S LIABILITY
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed (such agreement being a primary consideration
for the execution of this Lease by Lessor) that there shall be absolutely no
personal liability on the part of Lessor or any partner, shareholder, officer,
director or employee of Lessor, or their successors or assigns with respect to
any of the terms, covenants and conditions of this Lease, and that Lessee shall
look solely to the interest of the Lessor for the satisfaction of each and every
remedy of the Lessee in the Premises and no other property, interest or assets
of the Lessor whatsoever in the event of any breach by Lessor of any of the
terms, covenants and conditions of this Lease to be performed by Lessor, such
exculpation of liability to be absolute and without any exception whatsoever.
21
53
ARTICLE XXX
CONSENT OF LESSOR
Lessor shall have no liability for damages resulting from Lessor's failure
to give any consent, approval or instruction reserved to Lessor, Lessee's sole
remedy in any such event being an action for injunctive relief.
ARTICLE XXXI
WAIVER AND AMENDMENT
No provision of this Lease shall be deemed waived or amended except by a
written instrument unambiguously setting forth the matter waived or amended and
signed by the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same or any
other matter on any future occasion.
ARTICLE XXXII
JOINT VENTURE
None of the agreements contained herein, is intended, nor shall the same be
deemed or construed, to create a partnership between Lessor and Lessee, to make
them joint venturers, nor to make Lessor in any way responsible for the debts or
losses or Lessee.
ARTICLE XXXIII
CAPTIONS
Captions are used throughout this Lease for convenience of reference only
and shall not be considered in any manner in the construction or interpretation
hereof.
ARTICLE XXXIV
SEVERABILITY
The provisions of this Lease shall be deemed severable. If any part of this
Lease shall be held unenforceable by any court of competent jurisdiction, the
remainder shall remain in full force
22
54
and effect, and such unenforceable provision shall be reformed by such court so
as to give maximum legal effect to the intention of the parties as expressed
herein.
ARTICLE XXXV
CONSTRUCTION GENERALLY
This is a long-term commercial lease between entrepreneurs which has been
entered into by both parties in reliance upon the economic and legal bargains
contained herein. This Lease shall be interpreted and construed in a fair and
impartial manner without regard to such factors as the party which prepared the
instrument, the relative bargaining powers of the parties or the domicile of any
party. Time is of the essence in the performance of obligations and exercise of
any options herein contained.
ARTICLE XXXVI
OTHER DOCUMENTS
Each of the parties agrees to sign such other and further documents as may
be appropriate to carry out the intentions expressed in this Lease.
ARTICLE XXXVII
ATTORNEYS' FEES
In the event of any judicial or other adversarial proceeding between the
parties concerning this Lease, to the extent permitted by law, the prevailing
party shall be entitled to recover all of its reasonable attorneys' fees and
other costs in addition to any other relief to which it may be entitled.
ARTICLE XXXVIII
ENTIRE AGREEMENT AND INCORPORATION
This Lease, and any other instruments or agreements referred to herein,
constitute the entire agreement between the parties with respect to the subject
matter hereof, and there are no other representations, warranties or agreements
except as herein provided. Each and every of the recitals set forth on Page 1
are hereby incorporated as if fully re-written.
23
55
ARTICLE XXXIX
COUNTERPARTS
This Lease may be executed in one or more counterparts, each of which shall
be deemed an original.
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease as of
the year and day first above written.
LESSOR:
STUART WHITMAN, INC.,
a California corporation
By: /s/ STUART WHITMAN
------------------------------------
Its: President
-------------------------------
LESSEE:
ARGO FEDERAL SAVINGS BANK, F.S.B.,
a federal savings bank
By: /s/ JOHN G. YEDINAK
------------------------------------
Its:
-------------------------------
56
EXHIBIT A
LEGAL DESCRIPTION
File No.: 99006242
PARCEL 1:
LOT 1 IN OCF RESUBDIVISION OF PART OF LOT 1 IN ROBERT BARTLETT'S INDUSTRIAL
SUBDIVISION NO. 1, BEING A SUBDIVISION OF PART OF THE WEST 1/2, LYING WEST OF
ARCHER AVE., IN SECTION 13, TOWNSHIP 38 NORTH, RANGE 12, EAST OF THE THIRD
PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS, ACCORDING TO THE PLAT OF
RESUBDIVISION THEREOF, RECORDED DECEMBER 7, 1988 AS DOCUMENT 88565122 IN COOK
COUNTY, ILLINOIS.
PARCEL 2:
EASEMENT FOR THE BENEFIT OF PARCEL 1 AFORESAID, AS CREATED BY QUICK CLAIM DEED
DATED NOVEMBER 30, 1988 AND RECORDED DECEMBER 28, 1988 AS DOCUMENT 88594693
MADE BY OWENS-CORNING FIBERGLAS CORPORATION, A DELAWARE CORPORATION, TO LAURA
L. KRACKE FOR INGRESS AND EGRESS OVER THAT PART OF LOT 1 IN ROBERT BARLETT'S
INDUSTRIAL SUBDIVISION NUMBER 1, A SUBDIVISION OF PART OF THE WEST 1/2 LYING
WEST OF ARCHER AVENUE, OF SECTION 13, TOWNSHIP 38 NORTH, RANGE 12, EAST OF THE
THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF, RECORDED SEPTEMBER 7,
1945 AS DOCUMENT 13592315, BOUNDED AND DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTH EAST CORNER OF SAID LOT 1; THENCE NORTH 15 DEGREES, 27
MINUTES, 00 SECONDS EAST, ALONG THE SOUTHEASTERLY LINE OF SAID LOT 1(BEING ALSO
THE NORTHWESTERLY LINE OF SOUTH ARCHER AVENUE) 115.11 FEET TO THE POINT OF
BEGINNING OF THE FOLLOWING DESCRIBED TRACT; THENCE NORTH 79 DEGREES, 08
MINUTES, 19 SECONDS WEST, 74.66 FEET; THENCE NORTH 88 DEGREES, 49 MINUTES, 12
SECONDS WEST, 202.05 FEET; THENCE NORTH 00 DEGREES, 43 MINUTES, 32 SECONDS
EAST, 19.59 FEET; THENCE NORTHEASTERLY 11.09 FEET ALONG THE ARC OF A CIRCLE
CONVEX TO THE SOUTH EAST HAVING A RADIUS OF 18.74 FEET AND WHOSE CHORD BEARS
NORTH 21 DEGREES, 14 MINUTES, 16 SECONDS EAST 10.92 FEET; THENCE NORTH 00,
TOWNSHIP 02 NORTH, RANGE 14 EAST, 30.18 FEET; THENCE NORTHEASTERLY 19.27 FEET
ALONG THE ARC OF A CIRCLE CONVEX TO THE NORTH WEST, HAVING A RADIUS OF 43.47
FEET AND WHOSE CHORD BEARS NORTH 10 DEGREES, 35 MINUTES, 03 SECONDS EAST 19.11
FEET; THENCE NORTH 21 DEGREES, 43 MINUTES, 57 SECONDS EAST, 28.96 FEET; THENCE
NORTH 42 DEGREES, 14 MINUTES, 14 SECONDS EAST, 62.43 FEET; THENCE NORTHEASTERLY
31.52 FEET, ALONG THE ARC OF A CIRCLE CONVEX TO THE NORTHWEST HAVING A RADIUS
OF 244.80 FEET AS DOCUMENT WHOSE CHORD BEARS NORTH 49 DEGREES, 33 MINUTES, 05
SECONDS EAST, 31.49 FEET; THENCE NORTHEASTERLY 31.50 FEET ALONG THE ARC OF A
CIRCLE CONVEX TO THE NORTHEAST, HAVING A RADIUS OF 50.00 FEET, AND WHOSE CHORD
BEARS NORTH 71 DEGREES, 22 MINUTES, 43 SECONDS EAST, 30.98 FEET, THENCE
SOUTHEASTERLY 29.66 FEET; THENCE SOUTH 15 DEGREES, 25 MINUTES, 29 SECONDS WEST,
14.14 FEET; THENCE NORTH 76 DEGREES, 19 MINUTES, 12 SECONDS WEST 9.09 FEET TO A
POINT OF CURVATURE; THENCE NORTHWESTERLY 16.23 FEET ALONG THE ARC OF A CIRCLE
TANGENT TO THE LAST DESCRIBED LINE CONVEX TO THE NORTHEAST AND HAVING A RADIUS
70.00 FEET AND WHOSE CHORD BEARS NORTH 82 DEGREES, 57 MINUTES, 43 SECONDS WEST,
16.19 FEET TO A POINT OF COMPOUND CURVATURE; THENCE SOUTHWESTERLY 19.79 FEET
ALONG THE ARC OF A CIRCLE CONVEX TO THE NORTHWEST, HAVING A RADIUS OF 34.00
FEET AND WHOSE CHORD BEARS SOUTH 73 DEGREES, 43 MINUTES, 10 SECONDS WEST 19.51
FEET; THENCE SOUTHWESTERLY 60.48 FEET; ALONG THE ARC OF A CIRCLE, CONVEX TO THE
NORTHWEST, HAVING A RADIUS OF 148.79 FEET AND WHOSE CHORD BEARS SOUTH 44
DEGREES, 35 MINUTES, 44 SECONDS WEST, 60.70 FEET, THENCE SOUTH 33 DEGREES, 34
MINUTES, 48 SECONDS WEST, 29.92 FEET; THENCE SOUTHWESTERLY 41.15 FEET, ALONG
THE ARC OF A CIRCLE, CONVEX TO THE NORTHWEST, HAVING A RADIUS OF 68.99 FEET AND
WHOSE CHORD BEARS SOUTH 18 DEGREES, 23
57
MINUTES, 39 SECONDS WEST, 40.54 FEET; THENCE SOUTH 00 DEGREES, 26 MINUTES, 20
SECONDS WEST, 30.18 FEET; THENCE SOUTHEASTERLY 8.81 FEET, ALONG THE ARC OF A
CIRCLE, CONVEX TO THE SOUTHWEST, HAVING A RADIUS OF 11.96 FEET AND WHOSE CHORD
BEARS SOUTH 34 DEGREES, 02 MINUTES, 18 SECONDS EAST, 8.61 FEET; THENCE SOUTH 89
DEGREES, 16 MINUTES, 28 SECONDS EAST, 233.00 FEET TO A POINT OF CURVATURE;
THENCE NORTHEASTERLY 39.41 FEET, ALONG THE ARC OF A CIRCLE, CONVEX TO THE
SOUTHEAST, HAVING A RADIUS OF 30.00 FEET AND WHOSE CHORD BEARS NORTH 53
DEGREES, 05 MINUTES, 16 SECONDS EAST, 36.64 FEET TO THE POINT OF INTERSECTION
WITH THE SOUTHEASTERLY LINE OF SAID LOT 1, (BEING ALSO THE NORTHWESTERLY LINE
OF SOUTH ARCHER AVENUE), SAID POINT BEING ALSO 173.75 FEET NORTHEASTERLY (AS
MEASURED ALONG SAID SOUTHEASTERLY LOT LINE) OF THE SOUTHEAST CORNER OF LOT 1
AFORESAID, THENCE SOUTH 15 DEGREES, 27 MINUTES, 00 SECONDS WEST, ALONG SAID
SOUTHEASTERLY LOT LINE 58.64 FEET TO THE HEREINABOVE DESIGNATED POINT OF
BEGINNING, IN COOK COUNTY, ILLINOIS.
58
SCHEDULE 1
- -------------------------------------------------------------------
BASE ANNUAL RENTAL
- -------------------------------------------------------------------
FOR 5818 S. ARCHER RD., SUMMIT, ILLINOIS
- -------------------------------------------------------------------
Assumes a June 1, 1999 Closing
- -------------------------------------------------------------------
- -------------------------------------------------------------------
ORIGINAL LEASE TERM 170 MONTHS
===================================================================
PERIODS MONTHLY
- -------------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN RENT
===================================================================
Closing thru 12/31/1999 $16,916.67
- -------------------------------------------------------------------
1/1/2000 thru 12/31/2000 $17,085.84
- -------------------------------------------------------------------
1/l/2001 thru 12/31/2001 $17,256.70
- -------------------------------------------------------------------
1/1/2002 thru 12/31/2002 $17,429.26
- -------------------------------------------------------------------
1/1/2003 thru 12/31/2003 $17,603.55
- -------------------------------------------------------------------
1/1/2004 thru 12/31/2004 $17,779.59
- -------------------------------------------------------------------
1/1/2005 thru 12/31/2005 $17,957.39
- -------------------------------------------------------------------
1/1/2006 thru 12/31/2006 $18,136.96
- -------------------------------------------------------------------
1/1/2007 thru 12/31/2007 $18,318.33
- -------------------------------------------------------------------
1/1/2008 thru 12/31/2008 $18,501.51
- -------------------------------------------------------------------
1/1/2009 thru 12131/2009 $18,686.53
- -------------------------------------------------------------------
1/1/2010 thru 12/31/2010 $18,873.39
- -------------------------------------------------------------------
1/1/2011 thru 12/31/2011 $19,062.13
- -------------------------------------------------------------------
1/1/2012 thru 12/31/2012 $19,252.75
- -------------------------------------------------------------------
1/1/2013 thru 07/31/2013 $19,445.28
- -------------------------------------------------------------------
- -------------------------------------------------------------------
1ST OPTION TO RENEW (10 YEARS)
===================================================================
PERIODS MONTHLY
- -------------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN RENT
===================================================================
8/1/2014 thru 7/31/2014 $25,587.98
- -------------------------------------------------------------------
8/1/2015 thru 7/31/2015 $26,355.62
- -------------------------------------------------------------------
8/1/2016 thru 7/31/2016 $27,146.29
- -------------------------------------------------------------------
8/1/2017 thru 7/31/2017 $27,960.68
- -------------------------------------------------------------------
8/1/2018 thru 7/31/2018 $28,799.50
- -------------------------------------------------------------------
8/1/2019 thru 7/31/2019 $29,663.48
- -------------------------------------------------------------------
8/1/2020 thru 7/31/2020 $30,553.39
- -------------------------------------------------------------------
8/1/2021 thru 7/31/2021 $31,469.99
- -------------------------------------------------------------------
8/1/2022 thru 7/31/2022 $32,414.09
- -------------------------------------------------------------------
8/1/2023 thru 7/31/2023 $33,386.51
- -------------------------------------------------------------------
- -------------------------------------------------------------------
2ND OPTION TO RENEW (5 YEARS)
===================================================================
PERIODS MONTHLY
- -------------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN RENT
===================================================================
8/1/2024 thru 7/31/2024 $34,388.11
- -------------------------------------------------------------------
8/1/2025 thru 7/31/2025 $35,419.75
- -------------------------------------------------------------------
8/1/2026 thru 7/31/2026 $36,482.34
- -------------------------------------------------------------------
8/1/2027 thru 7/31/2027 $37,576.81
- -------------------------------------------------------------------
8/1/2028 thru 7/31/2028 $38,704.12
- -------------------------------------------------------------------
- -------------------------------------------------------------------
3RD OPTION TO RENEW (5 YEARS)
===================================================================
PERIODS MONTHLY
- -------------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN RENT
===================================================================
8/1/2029 thru 7/31/2029 $39,865.24
- -------------------------------------------------------------------
8/1/2030 thru 7/31/2030 $41,061.20
- -------------------------------------------------------------------
8/1/2031 thru 7/31/2031 $42,293.03
- -------------------------------------------------------------------
8/1/2032 thru 7/31/2032 $43,561.83
- -------------------------------------------------------------------
8/1/2033 thru 7/31/2033 $44,868.68
- -------------------------------------------------------------------
59
EXHIBIT B
COUNTERPART LEASES
1. Lease between Lessor and Lessee of even date herewith for property located
at:
7600 West 63rd Street, Summit, Illinois
2154 West Madison, Chicago, Illinois
14076 Lincoln, Dolton, Illinois
8267 South Roberts Road, Bridgeview, Illinois
60
EXHIBIT C
SUBLEASES
=============================================================================================
DATE TERMINATION
SUBTENANT OF SPACE RENTAL DATE
LEASE
=============================================================================================
Community & Economic 2/1/93 8,400 sq. ft. $2,908.00* 3/31/00**
Development Assoc. of
Cook County, Inc.
- ---------------------------------------------------------------------------------------------
John & Roxanne Kozal 12/19/91 $1,368.81* 12/31/00
(Dental Office)
- ---------------------------------------------------------------------------------------------
Thomas J. Conway d/b/a 11/1/98 Bldg. #1 $ 837.90 11/01/00
Reliable Trim Products Basement Office #16
- ---------------------------------------------------------------------------------------------
Summit Construction & 7/31/98 Bldg. #2 $ 631.50 7/31/00
Development Corp. Ground Floor
- ---------------------------------------------------------------------------------------------
Margo Financial Services 1/1/99 First floor south, $4,000.00 12/31/99***
including training
facility, conference
room, kitchen and
private bath, office
#1, 2, 3, 4 and 5.
- ---------------------------------------------------------------------------------------------
* Includes real estate tax and utility charges
** Options to renew through March 2003
*** Options to renew through December 2019
61
ABSOLUTE NET LEASE
THIS LEASE made as of June 29, 1999, by and between Stuart Whitman, Inc.,
or its assigns ("Lessor"), whose address is 9220 Sunset Boulevard, Suite 206,
Los Angeles, CA 90069, and Argo Savings and Loan Association, all subsidiaries,
parents, and affiliates ("Lessee"), whose address is 7600 West 63rd Street,
Summit, Illinois 60501.
WITNESSETH:
WHEREAS, pursuant to that certain Agreement of Purchase and Sale dated June
10, 1999 (the "Agreement") Lessee as Seller, sold to Lessor, as Purchaser, the
Premises, as that term is hereinafter defined; and
WHEREAS, Lessee acknowledges that, prior to the date hereof, it has been in
full and complete possession of the Premises and is fully aware of the condition
of the Premises and all portions thereof, and that this demise is on a strictly
"AS IS" basis with no representations, warranties, covenants or agreements as to
the condition or state of said Premises or any portion thereof being made by the
Lessor.
NOW, THEREFORE, Lessor and Lessee hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the following meanings for all purposes of
this Lease:
"Additional Rental" means all Payment obligations of Lessee hereunder other
than Base Rental.
"Base Annual Rental" means $50,832.00, as adjusted pursuant to the terms
herein.
"Base Monthly Rental" means an amount equal to 1/12 of the Base Annual
Rental, subject to the Rent Adjustment as set forth below.
"Default Rate" means an amount of interest equal to the lesser of the
highest permitted annual interest rate Lessor may charge Lessee or 5 % per
month.
"Lease Term" means the period described in Article III.
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"Lease Year" shall be defined as a period of twelve (12) consecutive
calendar months; however, the first Lease Year shall commence on the date hereof
and expire December 31, 1999.
"Lessee" shall mean Lessee and its permitted successors and assigns.
"Premises" means the real property, together with all buildings, structures
and site improvements located thereon, at 2154 West Madison, Chicago, Illinois,
and more particularly described in Exhibit A attached hereto and incorporated
herein and all rights, easements and interests appurtenant thereto, including,
but not limited to, any streets or public ways adjacent to the Premises and any
water and mineral rights, to the extent that the same have been conveyed to
Lessor by Lessee pursuant to the terms of the Agreement.
"Rent" means the aggregate of all sums becoming due and payable under this
Lease from the Lessee whether as Base Monthly Rental, Base Annual Rental,
Additional Rental, or otherwise.
ARTICLE II
DEMISE OF PREMISES
In consideration of the rentals and other sums to be paid by Lessee and of
the other terms, covenants and conditions on Lessee's part to be kept and
performed, Lessor hereby leases to Lessee, and Lessee hereby takes and hires,
from Lessor the Premises.
ARTICLE III
LEASE TERM
The Lease Term shall (i) be for one hundred seventy (170) months; (ii)
commence as of the first day of the calendar month following the date hereof
("Commencement Date"); and (iii) expire on the expiration of one hundred seventy
(170) months thereafter, unless sooner, terminated or extended as provided in
this Lease.
ARTICLE IV
BASE RENTAL
Lessee agrees to pay to Lessor, or to such other person or entity as Lessor
may from time-to-time direct, without demand, deduction, set-off or abatement at
such place as Lessor, by notice in writing to Lessee from time to time may
direct, at the following rates and times:
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See Schedule I Attached Hereto
Base Annual Rental monthly in advance in equal monthly installments
(i.e. Base Monthly Rental) on the first day of each calendar month of the Lease
Term. One-thirtieth (1/30th) of each monthly payment shall be due and payable
for each day of any portion of a month less than a full month, and shall be
payable on the first day of such partial month. The monthly rental for the month
or portion thereof prior to the Commencement Date beginning from the date of the
full execution hereof shall be one-thirtieth (1/30th) of the Base Monthly Rental
times the number of days remaining in the month. The Base Monthly Rental for any
period less than a full Lease Year following the fourteenth annual anniversary
of the commencement date shall be the same as the Base Monthly Rental assessed
in the fourteenth Lease Year. If requested by Lessor, Lessee shall establish
arrangements whereby each payment of Base Monthly Rental is transferred by wire
or other means of transfer directly to Lessor's account as designated from
time-to-time by Lessor on or before the first business day of each month during
the Lease Term. At Landlord's request Tenant shall provide Landlord with a
single payment of Monthly Rental due hereunder aggregated with those due under
the Counterpart Leases, as hereinafter defined.
(b) The Base Annual Rental during the Lease Term, or during any Extension
Period, shall increase as set forth on Schedule 1 attached hereto and
incorporated herein by this reference.
ARTICLE V
RENTAL TO BE NET TO LESSOR
Lessee recognizes and acknowledges, without limiting the generality of any
other term or provision of this Lease, that it is the intent of the parties
hereto that the Base Annual Rental to be paid by Lessee to Lessor shall be
absolutely net to Lessor; and any and all charges, assessments, impositions and
expenses pertaining to or levied against the Premises and any and all portions
thereof, including, without limiting the generality of the foregoing, any and
all taxes, assessments, general or special, water rates, license fees, fuel
costs, steam costs, insurance premiums, utility bills, costs of repair,
maintenance (structural or otherwise), operation and restoration of the Premises
(including all improvements now or hereafter made thereon and any and every part
thereof), shall be included as Additional Rent hereunder, and be the sole and
absolute obligations of and paid by Lessee as Lessee's sole and exclusive cost
and expense, all as herein and elsewhere more particularly set forth.
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ARTICLE VI
TAXES AND ASSESSMENTS
A. Lessee shall pay, as the same become due and prior to delinquency,
all taxes and assessments which may be levied, assessed, imposed, or become
liens on the Premises or which arose out of the use or occupancy of the
Premises, including, without limitation, the following (the "Taxes"):
(a) All taxes and assessments upon the Premises or any part thereof or
the Rent therefrom, or any personal property, equipment, trade fixtures or
improvements located in or on the Premises, whether belonging to Lessor or
Lessee, which are owing at the commencement of this Lease or shall be assessed
or become due during the Lease Term or any tax or charge levied (whether in
whole or in part) in lieu of and/or in addition to such taxes and assessments;
(b) All taxes, charges, license fees or similar fees imposed by reason
of the tenancy, use or occupancy of the Premises by Lessee; and
(c) All excise, transaction, privilege, license, sales, use and other
taxes upon the rental or other payments hereunder, the leasehold estate of
either party hereto or the activities of either party pursuant to this Lease,
except for any tax upon or measured by the income and profits of Lessor.
B. Lessee shall have the right to contest, in good faith and with due
diligence, the validity or amount of any Taxes levied or assessed against the
Premises by appropriate legal proceedings which shall have the effect of
preventing the collection of the Taxes so contested; provided that:
(a) At least ten (10) days prior to the last day allowed by law for
payment of such Taxes, Lessee shall notify Lessor of Lessee's intention to
contest said Taxes;
(b) To the extent Lessee has not deposited amounts sufficient to assure
payment of Taxes, costs, interest and penalties, Lessee shall furnish to Lessor
such security as Lessor or its mortgagee may require to assure payment of all
Taxes and any costs, interest and penalties which may be or become payable in
the event and to the extent that such contest shall be unsuccessful;
(c) Such proceedings shall not endanger Lessor's interest in the
Premises; and
(d) Whether such proceedings are brought in the name of Lessee or
Lessor, Lessee shall indemnify and hold harmless the Lessor from any liability
for the payment of any costs or expenses in connection therewith.
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ARTICLE VII
UTILITIES
Lessee shall contract, in its own name, for and pay when due, all
charges in connection or use of water, gas, electricity, telephone, garbage
collection, sewer use and other utility services supplied to the Premises during
the Lease Term. Under no circumstances shall Lessor be responsible or liable for
any interruption, termination or the lack or quality of any utility service.
ARTICLE VIII
INSURANCE
Lessee shall maintain, at its sole cost and expense, the following
types and amounts of insurance insuring Lessee, and naming as additional
insureds Lessor, and the holder(s) of any mortgage or deed of trust encumbering
the Premises (which insurance may be included under a blanket insurance policy
if all the other terms hereof are satisfied), in addition to such other
insurance as Lessor may from time-to-time reasonably require:
(a) Insurance against loss, damage or destruction by fire and other
casualty, including theft, vandalism and malicious mischief, flood (if the
Premises are in a flood hazard area), earthquake (if the Premises are in an area
subject to destructive earthquake within recorded history), boiler explosion (if
there is any boiler upon the Premises), sprinkler damage (if the Premises have a
sprinkler system), all matters covered by a standard extended coverage
endorsement and such other risks as Lessor may reasonably require, insuring the
Premises, and all improvements thereon for not less than 100% of their full
replacement cost for the Premises and all other premises leased under the
Counterpart Leases. Any insurance policy or policies shall designate Lessor and
Lessee as the named insureds as their interest may appear and shall be payable
as set forth in Article XVII.
(b) Comprehensive public liability and property damage insurance,
including a products liability clause, against bodily injury liability,
property damage liability and automobile bodily injury and property damage
liability, including, without limitation, any liability arising out of the
ownership, maintenance, repair, condition or operation of the Premises or
adjoining ways, streets or sidewalks. Such insurance policy or policies shall
contain a "waiver of subrogation" clause or endorsement which precludes the
insurer from denying the claim of either Lessee or Lessor because of the
negligence or other acts of the other, shall be in amounts of not less than
$2,500,000 per injury and occurrence and not less than $5,000,000 in the
aggregate, with respect to any insured liability, whether for personal injury or
property damage, or such higher limits as Lessor may reasonably require from
time to time, and shall be of form and substance satisfactory to Lessor.
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(c) Worker's compensation, employer's liability and such other
insurance as may be necessary to comply with applicable laws.
(d) Loss of rents or business interruption insurance in the amount of
at least one and one-half times the Base Annual Rental.
The form of each policy of insurance shall:
(i) Provide for a waiver of subrogation by the insurer as to
claims against Lessor, its partners (limited and general) employees, directors,
officers and agents;
(ii) Provide that such insurance cannot be canceled,
invalidated or suspended on account of the conduct of Lessor, its officers,
directors, employees, agents and any other party acting by, through or under
Lessor;
(iii) Contain a standard (i.e. without contribution) mortgage
clause endorsement in favor of the holder(s) of any mortgage or deed of trust
covering the Premises if designated by Lessor;
(iv) Provide that the policy of insurance shall not be
terminated without not less than 30 days' prior written notice to Lessor and to
any lender covered by any standard mortgage clause endorsement;
(v) Provide that the insurer shall not have the option to
restore the Premises if Lessor elects to terminate this Lease in accordance with
the terms hereof; and
(e) All of Lessee's insurance shall be issued by insurance companies
having a rating in Best's Insurance Guide of Class VI or better, and acceptable
to Lessor and its lender with a deductible of no more than $5,000 and acceptable
to Lessor's lender.
(f) Lessee shall provide to Lessor and any lender designated by Lessor,
certificates of insurance or copies of insurance policies evidencing that
insurance satisfying the requirements of this Lease is in effect at all times.
In addition, Lessee shall carry insurance of a type and in amounts
typical of similarly sized savings and loan associations addressing operations
of a financial institution.
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ARTICLE IX
TAXES AND INSURANCE IMPOUND
For so long as Landlord's lender shall require a deposit of taxes,
assessments, or insurance premiums, or at any other time as Tenant shall fail to
timely pay any of the foregoing, in addition to Landlord's other rights and
remedies hereunder, Lessee shall pay to Lessor such sums as Lessor reasonably
determines which will provide an impound account (which shall not be deemed a
trust fund) for paying up to the next one year of taxes, assessments and
insurance premiums. Lessor will estimate the amounts needed for such purposes
and will notify Lessee to pay the same to Lessor in equal monthly installments,
as nearly as practicable, in addition to all other sums due under this Lease.
Should additional funds be required at any time, Lessee shall pay the same to
Lessor on demand. Interest or other gains from such funds, if any, shall remain
in the impound account and either applied to the amounts to be paid for taxes,
assessments, or insurance premiums or, if not needed for that purpose, will
reduce the monthly impound amount for the following year. In the event of any
Default (as that term is defined in Article XVIII), Lessor may apply all such
funds against any sums due from Lessee to Lessor. Lessor shall give to Lessee an
annual accounting showing all credits and debits to and from such impound funds
received from Lessee.
ARTICLE X
YEAR 2000 REPRESENTATION
Lessee represents to Lessor that it has reviewed the areas within its
business and operations which could be adversely affected by, and has developed
or is developing a program to address on a timely basis, the "Year 2000 Problem"
(that is, the risk that computer applications used by Lessee may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date on or after December 31, 1999), and has made related
appropriate inquiry of material suppliers and vendors. Based on such review and
program, Lessee believes that the "Year 2000 Problem" will not have a material
adverse effect on Lessee or its operation of the Premises. From time to time, at
the request of the Lessor, Lessee shall provide to the Lessor such updated
information or documentation is requested regarding the status of its efforts to
address the Year 2000 Problem.
ARTICLE XI
USE
Lessee shall use the Premises solely for the operation of a federally
insured financial institution and the operations by wholly owned subsidiary
companies thereof of incidental uses
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traditionally attendant to financial institutions, savings and loan operating
under the trade name and business style of Argo Federal Savings and for no other
use without Lessor's prior written consent, which consent will not be
unreasonably withheld. Lessor may consider the following, in addition to and not
in limitations of other criteria, in determining whether to grant its consent to
a change in use without being deemed to be unreasonable: (a) whether the
proposed Rent to be paid to Lessor is reasonable considering the converted use
of the Premises and the customary rental prevailing in the community for such
use; (b) whether the converted use will be consistent with the highest and best
use of the Premises in the discretion of Lessor reasonably exercised; and (c)
whether the converted use will increase Lessor's risks or decrease the residual
value of the Premises.
ARTICLE XII
COMPLIANCE WITH LAWS
A. Lessee's use and occupation of the Premises shall not be in
violation of any governmental requirement, law, ordinance, statute, ruling or
the like applicable to the Lessee, the Premises or the use thereof, including
without limitation, the Americans with Disabilities Act and any local, state, or
federal environmental requirement, law, ordinance, statute or ruling related to
Hazardous Substances (as hereinafter defined). Lessee shall, at Lessee's sole
cost and expense, also comply with all applicable directions, rules and
regulations of the fire marshall, health officers, building inspector or other
proper officers of any governmental agency having jurisdiction.
B. Lessee shall not create, store or release or allow the creation,
storage or release of any Hazardous Substances on the Premises, and if the use
of the Premises shall be changed in accordance with the provisions of this
Lease, Lessee shall not create, store or release or allow the creation, storage
or release of any additional Hazardous Substances on the Premises without the
prior consent of Lessor, such consent not to be unreasonably withheld or
delayed. "Hazardous Substances" shall mean: Any substance or material on the
Premises defined or designated as hazardous or toxic waste, hazardous or toxic
materials, a hazardous or toxic substance, or other similar term by any federal,
state or local environmental statute, regulation or ordinance presently in
effect.
C. In addition to all other provisions of this Lease regarding
indemnification and holding Lessor harmless, Lessee agrees to indemnify and hold
Lessor and the holder(s) of any mortgage or deed of trust encumbering the
Premises harmless from and against any and all claims, demands, damages, losses,
liens, liabilities, penalties, fines, lawsuits and other proceedings, costs and
expenses (including, without limitation, reasonable attorneys' fees) arising
directly or indirectly from, out of, or in any way connected with (i) the
presence of any Hazardous Substances
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on or off the Premises or any portion thereof; (ii) any violation of any local,
state or federal environmental law, regulation, ordinance or administrative or
judicial order relating to Hazardous Substances, attributable to events
occurring before or after the Commencement Date.
ARTICLE XIII
MAINTENANCE
A. Lessee hereby accepts the Premises "AS IS," with no representation
or warranty of Lessor as to the condition thereof.
B. Lessee shall at all times, at its sole cost and expense, maintain,
repair and replace, as necessary, the Premises, including all portions of the
Premises, whether or not the Premises were in such condition upon the
commencement of this Lease.
C. Lessee shall maintain, the Premises as a first-class financial
institution and from time-to-time, do such renovation, restoration, refurbishing
and remodelling as shall be reasonably necessary to maintain the Premises in a
condition and style then current for similarly sized/located financial
institution. Lessee shall not permit maintenance obligations to be deferred.
D. Lessor shall have free access to the Premises from time to time to
confirm Lessee's compliance with the terms of this Article XIII and the balance
of the terms of this Lease.
ARTICLE XIV
ALTERATIONS
Lessee shall not commit actual or constructive waste upon the Premises,
or alter the exterior or structural elements or the interior of the Premises in
any manner without the prior written consent of Lessor. Any work at any time
commenced by Lessee on the Premises shall be prosecuted diligently to
completion, shall be of good workmanship and materials and shall comply fully
with all the terms of this Lease. Any addition to or alteration of the Premises
shall be deemed a part of the Premises and belong to Lessor at the expiration of
the Lease Term.
ARTICLE XV
INDEMNIFICATION
Lessee shall indemnify and hold harmless Lessor and Lessor's general
and limited partners, officers, employees, lender(s) and agents, from and
against any and all claims, demands, causes
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of action, suits, proceedings, liabilities, damages, losses, costs and expenses,
including attorneys' fees, caused by, incurred or resulting from its operation
of or relating in any manner to the Premises, whether relating to their original
design or construction, latent defects, alteration, maintenance, use by Lessee
or any person thereon, supervision or otherwise, or from any breach of, default
under or failure to perform any term or provision of this agreement by Lessee,
its officers, employees, agents or other persons. It is expressly understood
that Lessee's obligations under this Article shall survive the expiration or
earlier termination of this Lease.
ARTICLE XVI
QUIET ENJOYMENT
So long as Lessee shall pay rental and other sums herein provided and
shall keep and perform all of the terms, covenants and conditions on its part
therein contained, Lessor covenants that Lessee, subject to Lessor's rights
herein, shall have the right to the peaceful and quiet use and occupancy of the
Premises.
ARTICLE XVII
CONDEMNATION OR DESTRUCTION
(a) In case of a taking of all or any part of the Premises or the
commencement of any proceedings or negotiations which might result in a taking,
for any public or quasi-public purpose by any lawful power or authority by
exercise of the right of condemnation or eminent domain or by agreement between
Lessor, Lessee and those authorized to exercise such right ("Taking"), Lessee
will promptly give written notice thereof to Lessor, generally describing the
nature and extent of such Taking. Lessee may prosecute, if permissible under the
appropriate law of the jurisdiction, any award, compensation or damages
resulting from a Total Taking, as that term is hereinafter defined, to which it
is entitled but shall not have the right to Lessor's award, compensation or
damages.
(b) In case of a Taking of a whole of the Premises, other than for
temporary use ("Total Taking"), this Lease shall terminate as of the date of
such Total Taking and all Rent and other charges shall be apportioned and paid
to the date of such Total Taking. Total Taking shall include a taking of
substantially all the Premises if in the reasonable judgment of Lessor the
remainder of the Premises is not useable and/or cannot be made useable for the
purposes provided herein. Lessor shall be entitled to the entire award,
compensation, or damages whether such award is made as compensation for
diminution in the value of the fee or leasehold, and Lessee hereby assigns to
Lessor all of Lessee's right, title and interest in and to any such award.
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(c) In case of a temporary use of the whole or any part of the Premises
by a Taking, this Lease shall remain in full force and effect, without any
reduction of rent or any other sums payable hereunder. Lessee shall be entitled
to the entire award for such Taking, whether paid by damages, rent or otherwise,
unless the period of occupation and use by the condemning authorities shall
extend beyond the date of expiration of the Lease, in which case the award made
for such taking shall be apportioned between Lessor and Lessee as of the date of
expiration. At the termination of any such use or occupation of the Premises,
Lessee will, at its own cost and expense, promptly commence and complete the
restoration of the Premises. Lessee shall not be required to make the
restoration if the term of this Lease shall expire prior to, or within one year
after, the date of termination of the temporary use so taken, and in such event,
Lessor shall be entitled to recover all damages and awards arising out of the
failure of the condemning authority to repair and restore the building at the
expiration of such temporary taking.
(d) In the event of (i) a Taking of less than all of the Premises other
than a temporary use ("Partial Taking"); or (ii) of damage or destruction to all
or any part of the Premises, all awards, compensation or damages shall be paid
to Lessor, and Lessor shall have the option to terminate this Lease by notifying
Lessee in writing within 60 days after Lessee gives Lessor notice of such damage
or destruction or that title has vested in the taking authority. Lessee shall
thereupon have a period of 60 days in which to elect in writing to continue this
Lease on the terms herein provided. If Lessee does not elect to continue this
Lease or shall fail during such 60-day period to elect to continue this Lease,
then this Lease shall terminate as of the last day of the month during which
such period expired. Lessee shall then immediately vacate and surrender the
Premises, all obligations of either party hereunder shall cease as of the date
of termination and all such awards, compensation or damages shall be paid to
Lessor and Lessor shall be under no obligation make any payment therefrom to
Lessee. If Lessor does not elect to terminate this Lease, or if Lessor so elects
but Lessee elects to continue this Lease, then this Lease shall continue on the
following terms: Rental and other sums due under this Lease shall continue
unabated, and Lessee shall promptly commence and diligently prosecute
restoration of the Premises to the same condition, as nearly as practicable, as
prior to such partial condemnation, damage or destruction as approved by Lessor
in its sole discretion. Lessor shall promptly make available in installments as
restoration progresses an amount equal to any award, compensation or damages
received by Lessor, (or if stemming from an event prior to the commencement of
this Lease for which Lessor has an established construction escrow, from the
amount held in said escrow), upon written request of Lessee accompanied by
evidence reasonably satisfactory to Lessor that such amount has been paid or is
due and payable and is properly a part of such costs and that there are no
mechanics' or similar liens for labor and materials theretofore supplied in
connection with the restoration. Lessor shall be entitled to keep any portion of
such award, compensation or damages which may be in excess of the cost of
restoration, (unless the balance is from an existing construction escrow, as set
forth above), and Lessee shall bear all additional costs, fees and expenses of
such restoration in excess of the amount of any such award, compensation or
damages.
(e) Notwithstanding the foregoing, if at the time of any Taking or at
any time thereafter Lessee shall be in Default, such Default shall be
continuing, Lessor is hereby authorized
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and empowered, in its name or in Lessee's name, and on behalf of Lessee or
otherwise, to file and prosecute Lessee's claim, if any, for an award on account
of any Taking and to collect such award and apply the same, after deducting all
costs, fees and expenses incident to the collection thereof, to the curing of
such Default and any other then existing Default.
ARTICLE XVIII
DEFAULT AND REMEDIES
(a) Each of the following shall be deemed a breach of this Lease and a
default ("Default") by Lessee:
(i) If any material representation or warranty of Lessee
herein or the Seller in the Agreement was false when made, or in the event that
any such representation or warranty is continuing and becomes false at any time,
or if Lessee renders any false statement or account;
(ii) If any Rent due remains unpaid for five (5) days after
the due date thereof;
(iii) If Lessee becomes insolvent, makes a general assignment
for the benefit of creditors, seeks or consents to the appointment of a trustee
or liquidator, shall dissolve or liquidate all or a material portion of its
assets, performs any act of bankruptcy or is not generally paying its debts as
the same become due;
(iv) If Lessee fails to perform any of the covenants,
conditions or obligations of this Lease;
(v) If Lessee ceases to operate financial institution
activities at the Premises;
(vi) If there is a breach, default, termination or expiration
under any of those leases shown on Exhibit B attached hereto ("Counterpart
Leases").
(b) If any breach or default does not involve the payment of any rental
or other monetary sum, is not willful or intentional, does not place any rights
or property of Lessor in immediate jeopardy, is not known to Lessee (unless
Lessor has given Lessee notice thereof) and is within the reasonable power of
Lessee to cure within 20 days after notice thereof (all as determined by Lessor
in its reasonable discretion), then such event shall not constitute a default
hereunder, unless otherwise expressly provided herein, until Lessor shall have
given Lessee notice thereof and a period of twenty (20) days shall have elapsed,
during which period Lessee may correct or cure such event, upon failure of which
a Default shall be deemed to have occurred
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hereunder without further notice or demand of any kind. If any breach or default
cannot reasonably be cured with the 20-day period, as determined by Lessor in
its reasonable discretion, and Lessee is diligently pursuing a cure of such
breach or default, then Lessee shall, after receiving notice specified herein,
have a reasonable period as determined by the Lessor to cure such breach or
default.
(c) In the event of any breach or default, and without any notice,
except, if applicable, the notice required under certain circumstances by
paragraph (b) above or such other notice as may be required by law and cannot be
waived by Lessee (all other notices being hereby waived), Lessor shall be
entitled to exercise, at its option, concurrently, successively or in any
combination, all remedies available at law or in equity, including, without
limitation, any one or more of the following:
(i) To terminate this Lease;
(ii) To re-enter and take possession of the Premises or any
part thereof (which re-entry shall not operate to terminate this Lease unless
Lessor expressly so elects), of any or all personal property or fixtures of
Lessee upon the Premises, and of all franchises, licenses, permits and other
rights or privileges of Lessee pertaining to the use and operation of the
Premises, if any and if assignable;
(iii) To seize all personal property and fixtures upon the
Premises which Lessee owns or in which it has an interest, in which Lessor shall
have a landlord's lien and is hereby granted a security interest, and to dispose
thereof in accordance with laws prevailing at the time and place of such seizure
or to remove all or any portion of such property and cause the same to be stored
in a public warehouse or elsewhere at the cost of Lessee;
(iv) To relet the Premises or any part thereof for such term
or terms (including a term which extends beyond the original term of this
Lease), at such rentals and upon such other terms as Lessor, in its sole
discretion, may determine, with all proceeds received from such reletting being
applied to the rentals and other sums due from Lessee in such order as Lessor
may, in its sole discretion, determine, with Lessee remaining liable for any
deficiency;
(v) To recover from Lessee an amount equal to the difference
between the rentals and such other sums (including all sums required to be paid
by Lessee, such as taxes and insurance) to be received from the date of such
Default to the expiration of the original term hereof and the reasonable long
term rental value of the Premises for the same period; and/or
(vi) To recover from Lessee all expenses, including
attorneys' fees, reasonably paid or incurred by Lessor as a result of such
breach.
In addition, in the event of any Default by Lessee, Lessor may, but
shall not be obligated to, immediately or at any time thereafter, and without
notice, except as required herein,
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correct such Default for the account and at the expense of Lessee. Any sum or
sums so paid by Lessor, together with interest at the Default Rate and all costs
and damages, shall be deemed to be additional Rent hereunder and shall be
immediately due from Lessee to Lessor. If any Default or threatened Default by
Lessee of any of the agreements, terms, covenants, or conditions contained in
this Lease shall occur, Lessor shall be entitled to enjoin such Default or
threatened Default and shall have the right to invoke any right or remedy
allowed at law or in equity, or by statute or otherwise, as though re-entry
summary proceedings and other remedies were not provided for in this Lease.
ARTICLE XIX
MORTGAGE AND SUBORDINATION
A. Lessee shall keep the Premises free from any liens for work
performed, materials furnished or obligations incurred by Lessee. Lessee shall
do all things necessary to prevent the filing of any mechanic's or other liens
against the Premises or the interest of Lessor or any ground or underlying
lessors thereof, or the interest of any mortgagees or holders of any deeds of
trust covering any portion of the Premises by reason of any work, labor,
services, or materials performed or supplied or claimed to have been performed
for or supplied to Lessee or anyone holding the Premises, or any part thereof,
by, through or under Lessee. If any such lien shall at any time be filed, Lessee
shall either cause the same to be vacated and canceled of record within ten (10)
days after the date of filing thereof or, if Lessee in good faith determines
that such lien should be contested, Lessee shall furnish such security, by
surety bond or otherwise, as may be reasonably necessary or be prescribed by law
to release the same as a lien and to prevent any foreclosure of such lien during
the pendency of such contest. If Lessee shall fail to vacate or release such
lien in the manner and within the time period aforesaid, such failure shall be a
Default, and in addition to all other rights and remedies available to Lessor
resulting therefrom, Lessor may, but shall not be under any obligation to,
vacate or release said lien either by paying the amount claimed to be due, or by
procuring the release of such lien by giving security or in such other manner as
may be prescribed by law. Lessee shall reimburse Lessor, upon demand, all sums
disbursed or deposited by Lessor pursuant to the foregoing provisions of this
paragraph, including Lessor's costs and expenses and reasonable attorneys' fees
incurred in connection therewith, with interest thereon at the Default Rate.
However, nothing contained herein shall imply consent or be construed as an
agreement on the part of Lessor or any ground or underlying lessors, or
mortgagees, or holders of deeds of trust covering any portion of the Premises,
to subject their respective estates or interests to liability under any
mechanic's or other lien law, whether or not the performance or the furnishing
of such work, labor, services or materials to Lessee or anyone holding the
Premises, or any part thereof, through or under Lessee, shall have been
consented to by Lessor or any of such parties.
B. NOTICE IS HEREBY GIVEN THAT LESSEE IS NOT AUTHORIZED TO PLACE ANY
LIEN, MORTGAGE, DEED OF TRUST OR ENCUMBRANCE OF ANY KIND
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75
UPON ALL OR ANY PART OF THE PREMISES OR LESSEE'S LEASEHOLD INTEREST THEREIN, AND
ANY SUCH PURPORTED TRANSACTION SHALL BE VOID UNLESS LESSOR SHALL FIRST CONSENT
IN WRITING TO EACH SAID ENCUMBRANCE. As a condition precedent for Lessor
considering any such consent, which may be withheld by Lessor in its sole and
absolute discretion, Lessee shall submit to Lessor, not less than thirty (30)
days prior to the effective date of the proposed encumbrance (including a
hypothecation), all documents proposed to be used in connection therewith plus a
commitment for an endorsement to the Lessor's Owner's Title Policy,
affirmatively ensuring that if the proposed encumbrance is consented to by
Lessor and is subsequently an encumbrance on the Lessee's leasehold interest,
the interest of the Lessor in the Premises is not otherwise affected and
continues to be paramount to the interest of the Lessee and any party claiming
by, through or under Lessee. A further condition precedent is the obligation of
the Lessee to pay all fees, costs, charges and expenses incurred by Lessor in
connection with any proposed encumbrance (including reasonable attorneys' fees)
whether or not consent thereto is given.
C. This Lease at all time shall be subordinate to the lien of any
ground leases, mortgage, mortgages, trust deed or trust deeds now or hereafter
placed upon the Premises by Lessor, and Lessee covenants and agrees to execute
and deliver, upon demand, such further instruments subordinating this Lease to
the lien of any such ground lease, mortgage, mortgages or proposed mortgages, or
trustees under the trust deeds, upon the condition that Lessee shall have the
right to remain in possession of the Premises under the terms of this Lease,
notwithstanding any default in any such mortgage, mortgages, trust deed or trust
deeds, or after foreclosure thereof, so long as Lessee is not in default beyond
any applicable grace period under any of the covenants, conditions and
agreements contained in this Lease.
D. (i) If any mortgagee or trustee elects to have this Lease and the
interest of Lessee hereunder be superior to any such interest or right and
evidences of such election by notice given to Lessee, then this Lease and the
interest of Lessee hereunder shall be deemed superior to any such mortgage or
trust deed, whether this Lease was executed before or after such mortgage or
trust deed and in that event, such mortgagee or trustee shall have the same
rights with respect to this Lease as if it had been executed and delivered prior
to the execution and delivery of the mortgage or trust deed and has been
assigned to such mortgagee or trustee.
(ii) Lessee shall execute and deliver whatever instruments may be
required for such purposes, and in the event Lessee fails so to do within ten
(10) days after demand in writing, Lessee does hereby make, constitute and
irrevocably appoint Lessor as its attorney-in-fact and in its name, place and
stead so to do.
(iii) Lessee shall give written notice to any mortgage lender
having a recorded security instrument upon the Premises or any part thereof of
any breach or default by Lessor of any of its obligations under this Lease and
to give such mortgage lender at least 60 days beyond any notice period to which
Lessor might be entitled to cure such default before Lessee may exercise any
remedy with respect thereto. Lessee shall provide Lessee's most recent audited
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financial statements upon request to Lessor or any mortgage lender and to
certify the continuing accuracy of such financial statements in such manner as
Lessor or such mortgage lender may request.
ARTICLE XX
ESTOPPEL CERTIFICATE
At any time, and from time to time, Lessee and Lessor agree to
promptly, and in no event later than fifteen (15) days after a request in
writing from the other, to execute, acknowledge and deliver to the party so
requesting a statement in writing, certifying that this Lease is unmodified and
in full force and effect (or, if there have been modifications, that the same
is in full force and effect as modified and stating the modifications) and the
dates to which the rental and other charges have been paid and such other
information and/or confirmation as Lessor or Lessee may reasonably request.
ARTICLE XXI
ASSIGNMENT AND SUBLETTING
A. Lessor shall have the right to sell or convey the Premises subject
to this Lease or to assign the right, title and interest as Lessor under this
Lease, in whole or in part. In the event of any such sale or assignment other
than a security assignment, Lessor shall be relieved, from and after the date of
such transfer or conveyance, of liability for the performance of any obligation
of Lessor contained herein, except for obligations or liabilities accrued prior
to such assignment or sale.
B. Lessee acknowledges that as an inducement to enter into this Lease,
Lessor has relied both on the business experience and creditworthiness of Lessee
and the particular purpose for which Lessee intends to use the Premises,
therefore, Lessee shall not assign, this Lease or any interest therein, or
sublet all or any part of the Premises, without the prior written consent of
Lessor. Lessor may withhold or condition such consent upon such matters as
Lessor may, in its sole discretion, determine, including, without limitation,
the following criteria: experience and creditworthiness of the assignee; the
assumption by the assignee of all of Lessee's obligations hereunder by
undertakings enforceable by Lessor; the transfer to such assignee of all
necessary licenses to continue operating the Premises for the purposes herein
provided; receipt of such representations and warranties from such assignee as
Lessor may request, including such matters as its organization, existence, good
standing and finances and other matters, whether or not similar in kind; whether
or not Lessee seeks to assign any or all Leases of the Counterpart Leases to the
same proposed Assignee, and the payment by the Lessee of all fees, costs,
charges and expenses
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incurred by Lessor in connection with any proposed assignment or subletting,
including reasonably attorneys' fees, whether or not consent to such requested
assignment or subletting is given. If consent is given to an assignment (but not
a sublease), an amendment to the Lease shall be entered into whereby the Base
Annual Rental shall be increased, as of the date the assignment is to become
effective to an amount equal to 125% of the then-current Base Annual Rental,
due and payable from the assignee.
C. No such assignment or subletting shall relieve the original Lessee
or any prior assignee of their obligations under this Lease; provided, however,
if such proposed assignee has a net worth, business reputation, and operating
experience reasonably acceptable to Lessor, said successor properly assumes this
Lease, and Lessee is not in default hereunder, then Lessor shall release Lessee
hereunder upon proper documentation. Lessee shall be required to pay all costs
incurred by Lessor in considering such assignment and release prior to Lessor
consenting hereunder. Lessor's consent to an assignment, or to a release of
Lessee, shall not require Lessor to similarly consent for any future assignments
or requests for release of Lessee.
D. Lessor consents to those leases listed on Exhibit C ("Subleases")
which currently affect the Premises, subject to the effective subordination of
the Subleases to this Lease.
ARTICLE XXII
OPTION TO RENEW
A. Lessee (provided there is no Default at the time of exercise or at
the expiration of the Lease Term or, if applicable, the then-current extension
of the Lease Term) shall have the option to continue this Lease in effect for
three additional independent periods, the first for ten Lease Years and the
final two for five Lease Years each ("Extension Period").
B. In the event the option to renew is exercised, then during said
Extension Period, all terms, conditions, covenants, representations, warranties
and obligations herein contained shall remain in full force and effect,
provided, however, if Lessee shall have exercised its third Extension Period,
there shall be no further right to so renew, and provided that Base Annual
Rental shall adjust pursuant to Paragraph D below.
C. Lessee shall exercise such renewal option by giving written notice
to Lessor of such exercise not more than two hundred seventy (270) days nor less
than two hundred ten (210) days prior to the expiration of the Lease Term, or if
applicable, the then-current extension of the Lease Term.
D. Base Annual Rent for any extended term will be at the greater of
Market Rent or the scheduled rent shown for such Extension Period on Schedule 1
attached. For purposes of this Lease, Market Rental shall mean the rent agreed
upon by Lessor and Lessee, or if they are unable
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to reach agreement within fifteen (15) days from the date Lessee elects the
Extension Period ("Agreement Period"), then the rent determined as fair rental
value by an MAI appraiser with at least five (5) years experience in appraising
commercial rental real estate of similar type in the general geographic area of
the Premises, which appraiser has been agreed upon by Lessor and Lessee, and who
has been instructed to determine a fair rental value for the Premises as used
for its highest and best use, and not necessarily that of a financial
institution. If Lessor and Lessee cannot jointly agree upon on an appraiser
within fifteen (15) days of the expiration of the Agreement Period ("Joint
Appointment Period"), then each of Lessee and Lessor shall select an independent
MAI appraiser meeting the aforesaid criteria within fifteen (15) days of the
expiration of the Joint Appointment Period ("Selection Period") and those two
appraiser shall select a third appraiser within fifteen (15) days of the
expiration of the Selection Period, and each of the three appraisers shall
render an appraisal of market rent for the Premises within thirty (30) days of
the Selection Period. The average rental of the two appraisers closest in amount
to each other shall be the Market Rent. Should Lessor or Lessee fail to timely
select an appraiser, the appraisal of the solely selected appraiser shall
control. Lessor and Lessee shall pay the costs of their selected appraiser, and
evenly divide any pay for the cost of any third appraiser or jointly approved
appraiser.
ARTICLE XXIII
HAZARDOUS MATERIALS SITE INVESTIGATION
Lessee shall, at its sole cost and expense, cause a party reasonably
acceptable to Lessor to conduct a Level 1 Hazardous Materials Site Investigation
(Level 1 Audit), as often as is required by the Environmental Protection Agency
or other governmental or regulatory body with authority to so request, or as
reasonably requested by Lessor, which Level 1 Audit shall complete at least the
following tasks at the Premises:
(i) Review available materials that could indicate potential
environmental impairment. Such materials should include topographic maps, air
photos, boring logs and other references.
(ii) Conduct a physical site examination to include an inspection
for unusual land colorations, odors, and physical irregularities as well as
underground or above-ground tanks, and an evaluation of current land use.
Neighboring land owners are to be contacted to determine actual historical site
use.
(iii) Contact local and state health and environmental agencies to
determine if any hazardous materials incidents have occurred in the area,
including recorded or known landfill sites, or the occurrence of any hazardous
material event (spill, storage, discharge, etc.).
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(ix) Adjacent properties are to be surveyed for current land use
conditions that may adversely affect the subject property including, underground
or above-ground storage tanks, manufacturing sites, landfills, etc.
(v) A summary report will be prepared to the Lessor, indicating the
contacts made, data findings, photographs, and other pertinent information and
recommendations for a detailed (Level 2) site investigation if significant
evidence exists that hazardous substances may have been released at or in close
proximity to any of the Sites. If a Level 2 site investigation is recommended,
Lessee shall perform that investigation and shall perform all clean up
activities recommended therein as soon thereafter as reasonable.
ARTICLE XXIV
NOTICES
All notices, demands, requests, consents, approvals or other
instruments required or permitted to be given by either party pursuant to this
Lease shall be in writing and shall be deemed to have been properly given if
sent by either (i) registered or certified mail, postage prepaid; (ii) by a
recognized national overnight courier service (e.g. Federal Express) with
instructions and payment for next business day delivery; (iii) by personal
delivery; or (iv) confirmed facsimile transmission to the parties at the
addresses hereinafter set forth and/or to such other address as either party may
give notice pursuant to this section from time-to-time. All notices shall be
deemed received and effective on the first to occur of the following: (i)
delivery; (ii) refusal of deliver; or (iii) the third business day after posting
or delivery to the courier service; or (iv) receipt of confirmed facsimile
transmission.
If to Lessor: Stuart Whitman, Inc.
749 San Ysidro Rd.
Montecito, CA 93108
Attn: Stuart Whitman, President
With copy to: The Bicek Group
1413 Sherman Road
Suite 40
Romeoville, Illinois 60446
Attn: Robert Bicek
and to: Jeffrey J. Stahl, Esq.
Stahl Brashler LLC
20 East Jackson Blvd.
Suite 1600
Chicago, Illinois 60604
19
80
If to Lessee: Argo Bancorp, Inc.
7600 West 63rd Street
Summit, Illinois 60501
Attn: John G. Yedinak, Chairman
with copy to: James Kemp, Esq.
Kemp, Grzelakowski & Loremzini, Ltd.
1900 Spring St.
Suite 500
Oak Brook, IL 60523
(630) 571-7711
(630) 571-7755
ARTICLE XXV
HOLDING OVER
If Lessee remains in possession of the Premises after the expiration of
the Lease Term, Lessee may be deemed a tenant on a month-to-month basis and
shall continue to pay rentals and other sums at the rate of 200% of the amounts
herein provided and to comply with all of the terms of this Lease; provided that
nothing herein nor the acceptance of Rent by Lessor shall be deemed a consent to
such holding over.
ARTICLE XXVI
LESSOR'S LIEN
Lessor shall have a landlord's lien upon all furnishings, fixtures,
equipment, decorations, supplies, accessories and other personal property which
Lessee owns or in which it has an interest located on the Premises, to secure
the payment of all Rent and the performance of all other obligations of Lessee
under this Lease; provided however, Lessor, upon request of Lessee, shall
subordinate this interest upon and subject to such terms and conditions as
Lessor may, from time-to-time, reasonably determine.
ARTICLE XXVII
REMOVAL OF LESSEE'S PROPERTY
At the expiration or sooner termination of the Lease Term if Lessee is
not then in Default hereof, Lessee may and shall remove from the Premises all
personal property belonging to Lessee.
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Lessee shall repair any damage caused by such removal and shall leave the
Premises (including all buildings thereon) broom clean and in good condition and
repair.
ARTICLE XXVIII
FINANCIAL STATEMENTS
Within ninety (90) days after the end of each fiscal year of Lessee,
Lessee shall deliver to Lessor (i) complete financial statements of Lessee
including a balance sheet, profit and loss statement, statement of changes in
financial condition and all other related schedules for the fiscal period then
ended; and (ii) income statements for the business at the Premises showing
profits and losses for the fiscal period then ended. All such financial
statements shall be prepared in accordance with generally accepted accounting
principles, consistently applied from period to period, and shall be audited by
an independent Certified Public Accountant reasonably acceptable to Lessor. In
the event that Lessee's property and business at the Premises is ordinarily
consolidated with other business for financial statement purposes, such
financial statements shall be prepared on a consolidated basis showing
separately the profits and losses, assets and liabilities pertaining to the
Premises with the basis for allocation of overhead of other charges being
clearly set forth.
ARTICLE XXIX
LESSOR'S LIABILITY
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed (such agreement being a primary consideration
for the execution of this Lease by Lessor) that there shall be absolutely no
personal liability on the part of Lessor or any partner, shareholder, officer,
director or employee of Lessor, or their successors or assigns with respect to
any of the terms, covenants and conditions of this Lease, and that Lessee shall
look solely to the interest of the Lessor for the satisfaction of each and every
remedy of the Lessee in the Premises and no other property, interest or assets
of the Lessor whatsoever in the event of any breach by Lessor of any of the
terms, covenants and conditions of this Lease to be performed by Lessor, such
exculpation of liability to be absolute and without any exception whatsoever.
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ARTICLE XXX
CONSENT OF LESSOR
Lessor shall have no liability for damages resulting from Lessor's
failure to give any consent, approval or instruction reserved to Lessor,
Lessee's sole remedy in any such event being an action for injunctive relief.
ARTICLE XXXI
WAIVER AND AMENDMENT
No provision of this Lease shall be deemed waived or amended except by
a written instrument unambiguously setting forth the matter waived or amended
and signed by the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same or any
other matter on any future occasion.
ARTICLE XXXII
JOINT VENTURE
None of the agreements contained herein, is intended, nor shall the
same be deemed or construed, to create a partnership between Lessor and Lessee,
to make them joint venturers, nor to make Lessor in any way responsible for the
debts or losses or Lessee.
ARTICLE XXXIII
CAPTIONS
Captions are used throughout this Lease for convenience of reference
only and shall not be considered in any manner in the construction or
interpretation hereof.
ARTICLE XXXIV
SEVERABILITY
The provisions of this Lease shall be deemed severable. If any part of
this Lease shall be held unenforceable by any court of competent jurisdiction,
the remainder shall remain in full force
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83
and effect, and such unenforceable provision shall be reformed by such court so
as to give maximum legal effect to the intention of the parties as expressed
herein.
ARTICLE XXXV
CONSTRUCTION GENERALLY
This is a long-term commercial lease between entrepreneurs, which has
been entered into by both parties in reliance upon the economic and legal
bargains contained herein. This Lease shall be interpreted and construed in a
fair and impartial manner without regard to such factors as the party which
prepared the instrument, the relative bargaining powers of the parties or the
domicile of any party. Time is of the essence in the performance of obligations
and exercise of any options herein contained.
ARTICLE XXXVI
OTHER DOCUMENTS
Each of the parties agrees to sign such other and further documents as
may be appropriate to carry out the intentions expressed in this Lease.
ARTICLE XXXVII
ATTORNEYS' FEES
In the event of any judicial or other adversarial proceeding between
the parties concerning this Lease, to the extent permitted by law, the
prevailing party shall be entitled to recover all of its reasonable attorneys'
fees and other costs in addition to any other relief to which it may be
entitled.
ARTICLE XXXVIII
ENTIRE AGREEMENT AND INCORPORATION
This Lease, and any other instruments or agreements referred to herein,
constitute the entire agreement between the parties with respect to the subject
matter hereof, and there are no other representations, warranties or agreements
except as herein provided. Each and every of the recitals set forth on Page 1
are hereby incorporated as if fully re-written.
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84
ARTICLE XXXIX
COUNTERPARTS
This Lease may be executed in one or more counterparts, each of which
shall be deemed an original.
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease as
of the year and day first above written.
LESSOR:
STUART WHITMAN, INC.,
a California corporation
By: /s/ STUART WHITMAN
-------------------------------
Its: President
---------------------------
LESSEE:
ARGO FEDERAL SAVINGS BANK, F.S.B.,
a federal savings bank
By: /s/ JOHN G. YEDINAK
-------------------------------
Its: Chairman
---------------------------
85
SCHEDULE I
- -----------------------------------------------------------------
BASE ANNUAL RENTAL
- -----------------------------------------------------------------
FOR 2154 W. MADISON ST., CHICAGO, ILLINOIS
- -----------------------------------------------------------------
Assumes a June 1, 1999 Closing
- -----------------------------------------------------------------
- -----------------------------------------------------------------
ORIGINAL LEASE TERM 170 MONTHS
=================================================================
PERIODS MONTHLY
- -----------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN RENT
=================================================================
Closing thru 12/31/1999 $4,236.00
- -----------------------------------------------------------------
1/1/2000 thru 12/31/2000 $4,278.36
- -----------------------------------------------------------------
1/1/2001 thru 12/31/2001 $4,321.14
- -----------------------------------------------------------------
1/1/2002 thru 12/31/2002 $4,364.36
- -----------------------------------------------------------------
1/l/2003 thru 12/31/2003 $4,408.00
- -----------------------------------------------------------------
1/1/2004 thru 12/31/2004 $4,452.08
- -----------------------------------------------------------------
1/l/2005 thru 12/31/2005 $4,496.60
- -----------------------------------------------------------------
1/1/2006 thru 12/31/2006 $4,541.57
- -----------------------------------------------------------------
1/1/2007 thru 12/31/2007 $4,586.98
- -----------------------------------------------------------------
l/l/2008 thru 12/31/2008 $4,632.85
- -----------------------------------------------------------------
1/l/2009 thru 12/31/2009 $4,679.18
- -----------------------------------------------------------------
l/l/2010 thru 12/31/2010 $4,725.97
- -----------------------------------------------------------------
1/1/2011 thru 12/31/2011 $4,773.23
- -----------------------------------------------------------------
1/l/2012 thru 12/31/2012 $4,820.96
- -----------------------------------------------------------------
1/l/2013 thru 07/31/2013 $4,869.17
- -----------------------------------------------------------------
- -----------------------------------------------------------------
1ST OPTION TO RENEW (10 YEARS)
=================================================================
PERIODS MONTHLY
- -----------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN RENT
=================================================================
8/1/2014 thru 7/31/2014 $6,407.33
- -----------------------------------------------------------------
8/1/2015 thru 7/31/2015 $6,599.55
- -----------------------------------------------------------------
8/l/2016 thru 7/31/2016 $6,797.54
- -----------------------------------------------------------------
8/1/2017 thru 7/31/2017 $7,001.46
- -----------------------------------------------------------------
8/l/2018 thru 7/31/2018 $7,211.51
- -----------------------------------------------------------------
8/1/2019 thru 7/31/2019 $7,427.85
- -----------------------------------------------------------------
8/1/2020 thru 7/31/2020 $7,650.69
- -----------------------------------------------------------------
8/1/2021 thru 7/31/2021 $7,880.21
- -----------------------------------------------------------------
8/1/2022 thru 7/31/2022 $8,116.61
- -----------------------------------------------------------------
8/1/2023 thru 7/31/2023 $8,360.11
- -----------------------------------------------------------------
- -----------------------------------------------------------------
2ND OPTION TO RENEW (5 YEARS)
=================================================================
PERIODS MONTHLY
- -----------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN RENT
=================================================================
8/1/2024 thru 7/31/2024 $8,610.92
- -----------------------------------------------------------------
8/1/2025 thru 7/31/2025 $8,869.24
- -----------------------------------------------------------------
8/1/2026 thru 7/31/2026 $9,135.32
- -----------------------------------------------------------------
8/1/2027 thru 7/31/2027 $9,409.38
- -----------------------------------------------------------------
8/l/2028 thru 7/31/2028 $9,691.66
- -----------------------------------------------------------------
3RD OPTION TO RENEW (5 YEARS)
=================================================================
PERIODS MONTHLY
- -----------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN RENT
=================================================================
8/l/2029 thru 7/31/2029 $ 9,982.41
- -----------------------------------------------------------------
8/l/2030 thru 7/31/2030 $10,281.88
- -----------------------------------------------------------------
8/1/2031 thru 7/31/2031 $10,590.34
- -----------------------------------------------------------------
8/1/2032 thru 7/31/2032 $10,908.05
- -----------------------------------------------------------------
8/1/2033 thru 7/31/2033 $11,235.29
- -----------------------------------------------------------------
86
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
PARCEL l:
THE SOUTH 1/2 OF THAT PART OF LOT 11 BETWEEN THE NORTH LINE OF MADISON
STREET AND THE SOUTH LINE OF WARREN AVENUE, NOW WIDENED IN GREENE'S
SUBDIVISION OF BLOCK 59 IN CANAL TRUSTEE'S SUBDIVISION OF SECTION 7,
TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN,
(EXCEPTING THAT PART TAKEN FOR ALLEY), IN COOK COUNTY, ILLINOIS.
PARCEL 2:
LOT 6 (EXCEPT THAT PART THEREOF TAKEN FOR ALLEY) IN THE SUBDIVISION OF
LOTS 12 AND 13 IN GREENE'S SUBDIVISION OF BLOCK 59 IN THE CANAL
TRUSTEE'S SUBDIVISION OF SECTION 7, TOWNSHIP 39 NORTH, RANGE 14, EAST
OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
PARCEL 3:
LOT 7 IN HIGGIN'S SUBDIVISION OF LOTS 12 AND 13 (EXCEPT THAT PART TAKEN
FOR ALLEY) IN SUBDIVISION OF BLOCK 59 IN CANAL TRUSTEE'S SUBDIVISION
OF SECTION 7, TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN COOK COUNTY, ILLINOIS.
87
EXHIBIT B
COUNTERPART LEASES
1. Lease between Lessor and Lessee of even date herewith for property located
at:
5818 South Archer, Summit, Illinois
7600 West 63rd Street, Summit, Illinois
14076 Lincoln, Dolton, Illinois
8267 South Roberts Road, Bridgeview, Illinois
88
EXHIBIT C
---------
SUBLEASES
NONE
89
ABSOLUTE NET LEASE
THIS LEASE made as of June 29, 1999, by and between Stuart Whitman,
Inc., or its assigns ("Lessor"), whose address is 9220 Sunset Boulevard, Suite
206, Los Angeles, CA 90069, and Argo Savings and Loan Association, all
subsidiaries, parents, and affiliates ("Lessee"), whose address is 7600 West
63rd Street, Summit, Illinois 60501.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Agreement of Purchase and Sale dated
June 10, 1999 (the "Agreement") Lessee as Seller, sold to Lessor, as Purchaser,
the Premises, as that term is hereinafter defined; and
WHEREAS, Lessee acknowledges that, prior to the date hereof, it has
been in full and complete possession of the Premises and is fully aware of the
condition of the Premises and all portions thereof, and that this demise is on a
strictly "AS IS" basis with no representations, warranties, covenants or
agreements as to the condition or state of said Premises or any portion thereof
being made by the Lessor.
NOW, THEREFORE, Lessor and Lessee hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the following meanings for all purposes
of this Lease:
"Additional Rental" means all Payment obligations of Lessee hereunder
other than Base Rental.
"Base Annual Rental" means $95,180.00, as adjusted pursuant to the
terms herein.
"Base Monthly Rental" means an amount equal to 1/12 of the Base Annual
Rental, subject to the Rent Adjustment as set forth below.
"Default Rate" means an amount of interest equal to the lesser of the
highest permitted annual interest rate Lessor may charge Lessee or 5% per
month.
"Lease Term" means the period described in Article III.
90
"Lease Year" shall be defined as a period of twelve (12) consecutive
calendar months; however, the first Lease Year shall commence on the date hereof
and expire December 31, 1999.
"Lessee" shall mean Lessee and it's permitted successors and assigns.
"Premises" means the real property, together with all buildings,
structures and site improvements located thereon, at 7600 West 63rd Street,
Summit, Illinois, and more particularly described in Exhibit A attached hereto
and incorporated herein and all rights, easements and interests appurtenant
thereto, including, but not limited to, any streets or public ways adjacent to
the Premises and any water and mineral rights, to the extent that the same have
been conveyed to Lessor by Lessee pursuant to the terms of the Agreement.
"Rent" means the aggregate of all sums becoming due and payable under
this Lease from the Lessee whether as Base Monthly Rental, Base Annual Rental,
Additional Rental, or otherwise.
ARTICLE II
DEMISE OF PREMISES
In consideration of the rentals and other sums to be paid by Lessee and
of the other terms, covenants and conditions on Lessee's part to be kept and
performed, Lessor hereby leases to Lessee, and Lessee hereby takes and hires,
from Lessor the Premises.
ARTICLE III
LEASE TERM
The Lease Term shall (i) be for one hundred seventy (170) months; (ii)
commence as of the first day of the calendar month following the date hereof
("Commencement Date"); and (iii) expire on the expiration of one hundred seventy
(170) months thereafter, unless sooner terminated or extended as provided in
this Lease.
ARTICLE IV
BASE RENTAL
Lessee agrees to pay to Lessor, or to such other person or entity as
Lessor may from time-to-time direct, without demand, deduction, set-off or
abatement at such place as Lessor, by notice in writing to Lessee from time to
time may direct, at the following rates and times:
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See Schedule I Attached Hereto
Base Annual Rental monthly in advance in equal monthly installments
(i.e. Base Monthly Rental) on the first day of each calendar month of the Lease
Term. One-thirtieth (1/30th) of each monthly payment shall be due and payable
for each day of any portion of a month less than a full month, and shall be
payable on the first day of such partial month. The monthly rental for the month
or portion thereof prior to the Commencement Date beginning from the date of
the full execution hereof shall be one-thirtieth (1/30th) of the Base Monthly
Rental times the number of days remaining in the month. The Base Monthly Rental
for any period less than a full Lease Year following the fourteenth annual
anniversary of the commencement date shall be the same as the Base Monthly
Rental assessed in the fourteenth Lease Year. If requested by Lessor, Lessee
shall establish arrangements whereby each payment of Base Monthly Rental is
transferred by wire or other means of transfer directly to Lessor's account as
designated from time-to-time by Lessor on or before the first business day of
each month during the Lease Term. At Landlord's request Tenant shall provide
Landlord with a single payment of Monthly Rental due hereunder aggregated with
those due under the Counterpart Leases, as hereinafter defined.
(b) The Base Annual Rental during the Lease Term, or during any
Extension Period, shall increase as set forth on Schedule 1 attached hereto and
incorporated herein by this reference.
ARTICLE V
RENTAL TO BE NET TO LESSOR
Lessee recognizes and acknowledges, without limiting the generality of
any other term or provision of this Lease, that it is the intent of the parties
hereto that the Base Annual Rental to be paid by Lessee to Lessor shall be
absolutely net to Lessor; and any and all charges, assessments, impositions and
expenses pertaining to or levied against the Premises and any and all portions
thereof, including, without limiting the generality of the foregoing, any and
all taxes, assessments, general or special, water rates, license fees, fuel
costs, steam costs, insurance premiums, utility bills, costs of repair,
maintenance (structural or otherwise), operation and restoration of the Premises
(including all improvements now or hereafter made thereon and any and every part
thereof), shall be included as Additional Rent hereunder, and be the sole and
absolute obligations of and paid by Lessee as Lessee's sole and exclusive cost
and expense, all as herein and elsewhere more particularly set forth.
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ARTICLE VI
TAXES AND ASSESSMENTS
A. Lessee shall pay, as the same become due and prior to delinquency,
all taxes and assessments which may be levied, assessed, imposed, or become
liens on the Premises or which arose out of the use or occupancy of the
Premises, including, without limitation, the following (the "Taxes"):
(a) All taxes and assessments upon the Premises or any part thereof or
the Rent therefrom, or any personal property, equipment, trade fixtures or
improvements located in or on the Premises, whether belonging to Lessor or
Lessee, which are owing at the commencement of this Lease or shall be assessed
or become due during the Lease Term or any tax or charge levied (whether in
whole or in part) in lieu of and/or in addition to such taxes and assessments;
(b) All taxes, charges, license fees or similar fees imposed by reason
of the tenancy, use or occupancy of the Premises by Lessee; and
(c) All excise, transaction, privilege, license, sales, use and other
taxes upon the rental or other payments hereunder, the leasehold estate of
either party hereto or the activities of either party pursuant to this Lease,
except for any tax upon or measured by the income and profits of Lessor.
B. Lessee shall have the right to contest, in good faith and with due
diligence, the validity or amount of any Taxes levied or assessed against the
Premises by appropriate legal proceedings which shall have the effect of
preventing the collection of the Taxes so contested; provided that:
(a) At least ten (10) days prior to the last day allowed by law for
payment of such Taxes, Lessee shall notify Lessor of Lessee's intention to
contest said Taxes;
(b) To the extent Lessee has not deposited amounts sufficient to assure
payment of Taxes, costs, interest and penalties, Lessee shall furnish to Lessor
such security as Lessor or its mortgagee may require to assure payment of all
Taxes and any costs, interest and penalties which may be or become payable in
the event and to the extent that such contest shall be unsuccessful;
(c) Such proceedings shall not endanger Lessor's interest in the
Premises; and
(d) Whether such proceedings are brought in the name of Lessee or
Lessor, Lessee shall indemnify and hold harmless the Lessor from any liability
for the payment of any costs or expenses in connection therewith.
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ARTICLE VII
UTILITIES
Lessee shall contract, in its own name, for and pay when due, all charges
in connection or use of water, gas, electricity, telephone, garbage collection,
sewer use and other utility services supplied to the Premises during the Lease
Term. Under no circumstances shall Lessor be responsible or liable for any
interruption, termination or the lack or quality of any utility service.
ARTICLE VIII
INSURANCE
Lessee shall maintain, at its sole cost and expense, the following types
and amounts of insurance insuring Lessee, and naming as additional insureds
Lessor, and the holder(s) of any mortgage or deed of trust encumbering the
Premises (which insurance may be included under a blanket insurance policy if
all the other terms hereof are satisfied), in addition to such other insurance
as Lessor may from time-to-time reasonably require:
(a) Insurance against loss, damage or destruction by fire and other
casualty, including theft, vandalism and malicious mischief, flood (if the
Premises are in a flood hazard area), earthquake (if the Premises are in an area
subject to destructive earthquake within recorded history), boiler explosion (if
there is any boiler upon the Premises), sprinkler damage (if the Premises have a
sprinkler system), all matters covered by a standard extended coverage
endorsement and such other risks as Lessor may reasonably require, insuring the
Premises, and all improvements thereon for not less than 100% of their full
replacement cost for the Premises and all other premises leased under the
Counterpart Leases. Any insurance policy or policies shall designate Lessor and
Lessee as the named insureds as their interest may appear and shall be payable
as set forth in Article XVII.
(b) Comprehensive public liability and property damage insurance, including
a products liability clause, against bodily injury liability, property damage
liability and automobile bodily injury and property damage liability, including,
without limitation, any liability arising out of the ownership, maintenance,
repair, condition or operation of the Premises or adjoining ways, streets or
sidewalks. Such insurance policy or policies shall contain a "waiver of
subrogation" clause or endorsement which precludes the insurer from denying the
claim of either Lessee or Lessor because of the negligence or other acts of the
other, shall be in amounts of not less than $2,500,000 per injury and occurrence
and not less than $5,000,000 in the aggregate, with respect to any insured
liability, whether for personal injury or property damage, or such higher limits
as Lessor may reasonably require from time to time, and shall be of form and
substance satisfactory to Lessor.
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(c) Worker's compensation, employer's liability and such other insurance as
may be necessary to comply with applicable laws.
(d) Loss of rents or business interruption insurance in the amount of at
least one and one-half times the Base Annual Rental.
The form of each policy of insurance shall:
(i) Provide for a waiver of subrogation by the insurer as to
claims against Lessor, its partners (limited and general) employees, directors,
officers and agents;
(ii) Provide that such insurance cannot be canceled,
invalidated or suspended on account of the conduct of Lessor, its officers,
directors, employees, agents and any other party acting by, through or under
Lessor;
(iii) Contain a standard (i.e. without contribution) mortgage
clause endorsement in favor of the holder(s) of any mortgage or deed of trust
covering the Premises if designated by Lessor;
(iv) Provide that the policy of insurance shall not be
terminated without not less than 30 days' prior written notice to Lessor and to
any lender covered by any standard mortgage clause endorsement;
(v) Provide that the insurer shall not have the option to
restore the Premises if Lessor elects to terminate this Lease in accordance
with the terms hereof; and
(e) All of Lessee's insurance shall be issued by insurance companies
having a rating in Best's Insurance Guide of Class VI or better, and acceptable
to Lessor and its lender with a deductible of no more than $5,000 and
acceptable to Lessor's lender.
(f) Lessee shall provide to Lessor and any lender designated by Lessor,
certificates of insurance or copies of insurance policies evidencing that
insurance satisfying the requirements of this Lease is in effect at all times.
In addition, Lessee shall carry insurance of a type and in amounts
typical of similarly sized savings and loan associations addressing operations
of a financial institution.
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ARTICLE IX
TAXES AND INSURANCE IMPOUND
For so long as Landlord's lender shall require a deposit of taxes,
assessments, or insurance premiums, or at any other time as Tenant shall fail to
timely pay any of the foregoing, in addition to Landlord's other rights and
remedies hereunder, Lessee shall pay to Lessor such sums as Lessor reasonably
determines which will provide an impound account (which shall not be deemed a
trust fund) for paying up to the next one year of taxes, assessments and
insurance premiums. Lessor will estimate the amounts needed for such purposes
and will notify Lessee to pay the same to Lessor in equal monthly installments,
as nearly as practicable, in addition to all other sums due under this Lease.
Should additional funds be required at any time, Lessee shall pay the same to
Lessor on demand. Interest or other gains from such funds, if any, shall remain
in the impound account and either applied to the amounts to be paid for taxes,
assessments, or insurance premiums or, if not needed for that purpose, will
reduce the monthly impound amount for the following year. In the event of any
Default (as that term is defined in Article XVIII), Lessor may apply all such
funds against any sums due from Lessee to Lessor. Lessor shall give to Lessee an
annual accounting showing all credits and debits to and from such impound funds
received from Lessee.
ARTICLE X
YEAR 2000 REPRESENTATION
Lessee represents to Lessor that it has reviewed the areas within its
business and operations which could be adversely affected by, and has developed
or is developing a program to address on a timely basis, the "Year 2000 Problem"
(that is, the risk that computer applications used by Lessee may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date on or after December 31, 1999), and has made related
appropriate inquiry of material suppliers and vendors. Based on such review and
program, Lessee believes that the "Year 2000 Problem" will not have a material
adverse effect on Lessee or its operation of the Premises. From time to time, at
the request of the Lessor, Lessee shall provide to the Lessor such updated
information or documentation is requested regarding the status of its efforts to
address the Year 2000 Problem.
ARTICLE XI
USE
Lessee shall use the Premises solely for the operation of a federally
insured financial institution and the operations by wholly owned subsidiary
companies thereof of incidental uses
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traditionally attendant to financial institutions, savings and loan operating
under the trade name and business style of Argo Federal Savings and for no other
use without Lessor's prior written consent, which consent will not be
unreasonably withheld. Lessor may consider the following, in addition to and not
in limitations of other criteria, in determining whether to grant its consent to
a change in use without being deemed to be unreasonable: (a) whether the
proposed Rent to be paid to Lessor is reasonable considering the converted use
of the Premises and the customary rental prevailing in the community for such
use; (b) whether the converted use will be consistent with the highest and best
use of the Premises in the discretion of Lessor reasonably exercised; and (c)
whether the converted use will increase Lessor's risks or decrease the residual
value of the Premises.
ARTICLE XII
COMPLIANCE WITH LAWS
A. Lessee's use and occupation of the Premises shall not be in
violation of any governmental requirement, law, ordinance, statute, ruling or
the like applicable to the Lessee, the Premises or the use thereof, including
without limitation, the Americans with Disabilities Act and any local, state, or
federal environmental requirement, law, ordinance, statute or ruling related to
Hazardous Substances (as hereinafter defined). Lessee shall, at Lessee's sole
cost and expense, also comply with all applicable directions, rules and
regulations of the fire marshall, health officers, building inspector or other
proper officers of any governmental agency having jurisdiction.
B. Lessee shall not create, store or release or allow the creation,
storage or release of any Hazardous Substances on the Premises, and if the use
of the Premises shall be changed in accordance with the provisions of this
Lease, Lessee shall not create, store or release or allow the creation, storage
or release of any additional Hazardous Substances on the Premises without the
prior consent of Lessor, such consent not to be unreasonably withheld or
delayed. "Hazardous Substances" shall mean: Any substance or material on the
Premises defined or designated as hazardous or toxic waste, hazardous or toxic
materials, a hazardous or toxic substance, or other similar term by any federal,
state or local environmental statute, regulation or ordinance presently in
effect.
C. In addition to all other provisions of this Lease regarding
indemnification and holding Lessor harmless, Lessee agrees to indemnify and hold
Lessor and the holder(s) of any mortgage or deed of trust encumbering the
Premises harmless from and against any and all claims, demands, damages, losses,
liens, liabilities, penalties, fines, lawsuits and other proceedings, costs and
expenses (including, without limitation, reasonable attorneys' fees) arising
directly or indirectly from, out of, or in any way connected with (i) the
presence of any Hazardous Substances
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on or off the Premises or any portion thereof; (ii) any violation of any local,
state or federal environmental law, regulation, ordinance or administrative or
judicial order relating to Hazardous Substances, attributable to events
occurring before or after the Commencement Date.
ARTICLE XIII
MAINTENANCE
A. Lessee hereby accepts the Premises "AS IS," with no representation
or warranty of Lessor as to the condition thereof.
B. Lessee shall at all times, at its sole cost and expense, maintain,
repair and replace, as necessary, the Premises, including all portions of the
Premises, whether or not the Premises were in such condition upon the
commencement of this Lease.
C. Lessee shall maintain, the Premises as a first-class financial
institution and from time-to-time, do such renovation, restoration, refurbishing
and remodelling as shall be reasonably necessary to maintain the Premises in a
condition and style then current for similarly sized/located financial
institution. Lessee shall not permit maintenance obligations to be deferred.
D. Lessor shall have free access to the Premises from time to time to
confirm Lessee's compliance with the terms of this Article XIII and the balance
of the terms of this Lease.
ARTICLE XIV
ALTERATIONS
Lessee shall not commit actual or constructive waste upon the Premises,
or alter the exterior or structural elements or the interior of the Premises in
any manner without the prior written consent of Lessor. Any work at any time
commenced by Lessee on the Premises shall be prosecuted diligently to
completion, shall be of good workmanship and materials and shall comply fully
with all the terms of this Lease. Any addition to or alteration of the Premises
shall be deemed a part of the Premises and belong to Lessor at the expiration of
the Lease Term.
ARTICLE XV
INDEMNIFICATION
Lessee shall indemnify and hold harmless Lessor and Lessor's general
and limited partners, officers, employees, lender(s) and agents, from and
against any and all claims, demands, causes
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of action, suits, proceedings, liabilities, damages, losses, costs and expenses,
including attorneys' fees, caused by, incurred or resulting from its operation
of or relating in any manner to the Premises, whether relating to their original
design or construction, latent defects, alteration, maintenance, use by Lessee
or any person thereon, supervision or otherwise, or from any breach of, default
under or failure to perform any term or provision of this agreement by Lessee,
its officers, employees, agents or other persons. It is expressly understood
that Lessee's obligations under this Article shall survive the expiration or
earlier termination of this Lease.
ARTICLE XVI
QUIET ENJOYMENT
So long as Lessee shall pay rental and other sums herein provided and
shall keep and perform all of the terms, covenants and conditions on its part
therein contained, Lessor covenants that Lessee, subject to Lessor's rights
herein, shall have the right to the peaceful and quiet use and occupancy of the
Premises.
ARTICLE XVII
CONDEMNATION OR DESTRUCTION
(a) In case of a taking of all or any part of the Premises or
the commencement of any proceedings or negotiations which might result in a
taking, for any public or quasi-public purpose by any lawful power or authority
by exercise of the right of condemnation or eminent domain or by agreement
between Lessor, Lessee, and those authorized to exercise such right ("Taking"),
Lessee will promptly give written notice thereof to Lessor, generally describing
the nature and extent of such Taking. Lessee may prosecute, if permissible under
the appropriate law of the jurisdiction, any award, compensation or damages
resulting from a Total Taking, as that term is hereinafter defined, to which it
is entitled but shall not have the right to Lessor's award, compensation or
damages.
(b) In case of a Taking of a whole of the Premises, other than
for temporary use ("Total Taking"), this Lease shall terminate as of the date of
such Total Taking and all Rent and other charges shall be apportioned and paid
to the date of such Total Taking. Total Taking shall include a taking of
substantially all the Premises if in the reasonable judgment of Lessor the
remainder of the Premises is not useable and/or cannot be made useable for the
purposes provided herein. Lessor shall be entitled to the entire award,
compensation, or damages whether such award is made as compensation for
dimunition in the value of the fee or leasehold, and Lessee hereby assigns to
Lessor all of Lessee's right, title and interest in and to any such award.
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(c) In case of a temporary use of the whole or any part of the
Premises by a Taking, this Lease shall remain in fall force and effect, without
any reduction of rent or any other sums payable hereunder. Lessee shall be
entitled to the entire award for such Taking, whether paid by damages, rent or
otherwise, unless the period of occupation and use by the condemning
authorities shall extend beyond the date of expiration of the Lease, in which
case the award made for such Taking shall be apportioned between Lessor and
Lessee as of the date of expiration. At the termination of any such use or
occupation of the Premises, Lessee will, at its own cost and expense, promptly
commence and complete the restoration of the Premises. Lessee shall not be
required to make the restoration if the term of this Lease shall expire prior
to, or within one year after, the date of termination of the temporary use so
taken, and in such event, Lessor shall be entitled to recover all damages and
awards arising out of the failure of the condemning authority to repair and
restore the building at the expiration of such temporary taking.
(d) In the event of (i) a Taking of less than all of the
Premises other than a temporary use ("Partial Taking"); or (ii) of damage or
destruction to all or any part of the Premises, all awards, compensation or
damages shall be paid to Lessor, and Lessor shall have the option to terminate
this Lease by notifying Lessee in writing within 60 days after Lessee gives
Lessor notice of such damage or destruction or that title has vested in the
taking authority. Lessee shall thereupon have a period of 60 days in which to
elect in writing to continue this Lease on the terms herein provided. If Lessee
does not elect to continue this Lease or shall fail during such 60-day period to
elect to continue this Lease, then this Lease shall terminate as of the last day
of the month during which such period expired. Lessee shall then immediately
vacate and surrender the Premises, all obligations of either party hereunder
shall cease as of the date of termination and all such awards, compensation or
damages shall be paid to Lessor and Lessor shall be under no obligation make any
payment therefrom to Lessee. If Lessor does not elect to terminate this Lease,
or if Lessor so elects but Lessee elects to continue this Lease, then this Lease
shall continue on the following terms: Rental and other sums due under this
Lease shall continue unabated, and Lessee shall promptly commence and diligently
prosecute restoration of the Premises to the same condition, as nearly as
practicable, as prior to such partial condemnation, damage or destruction as
approved by Lessor in its sole discretion. Lessor shall promptly make available
in installments as restoration progresses an amount equal to any award,
compensation or damages received by Lessor, (or if stemming from an event prior
to the commencement of this Lease for which Lessor has an established
construction escrow, from the amount held in said escrow), upon written request
of Lessee accompanied by evidence reasonably satisfactory to Lessor that such
amount has been paid or is due and payable and is properly a part of such costs
and that. there are no mechanics' or similar liens for labor and materials
theretofore supplied in connection with the restoration. Lessor shall be
entitled to keep any portion of such award, compensation or damages which may be
in excess of the cost of restoration, (unless the balance is from an existing
construction escrow, as set forth above), and Lessee shall bear all additional
costs, fees and expenses of such restoration in excess of the amount of any such
award, compensation or damages.
(e) Notwithstanding the foregoing, if at the time of any
Taking or at any time thereafter Lessee shall be in Default, such Default shall
be continuing, Lessor is hereby authorized
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and empowered, in its name or in Lessee's name, and on behalf of Lessee or
otherwise, to file and prosecute Lessee's claim, if any, for an award on account
of any Taking and to collect such award and apply the same, after deducting all
costs, fees and expenses incident to the collection thereof, to the curing of
such Default and any other then existing Default.
ARTICLE XVIII
DEFAULT AND REMEDIES
(a) Each of the following shall be deemed a breach of this
Lease and a default ("Default") by Lessee:
(i) If any material representation or warranty of
Lessee herein or the Seller in the Agreement was false when made, or in the
event that any such representation or warranty is continuing and becomes false
at any time, or if Lessee renders any false statement or account;
(ii) If any Rent due remains unpaid for five (5)
days after the due date thereof;
(iii) If Lessee becomes insolvent, makes a general
assignment for the benefit of creditors, seeks or consents to the appointment
of a trustee or liquidator, shall dissolve or liquidate all or a material
portion of its assets, performs any act of bankruptcy or is not generally
paying its debts as the same become due;
(iv) If Lessee fails to perform any of the
covenants, conditions or obligations of this Lease;
(v) If Lessee ceases to operate financial
institution activities at the Premises;
(vi) If there is a breach, default, termination or
expiration under any of those leases shown on Exhibit B attached hereto
("Counterpart Leases").
(b) If any breach or default does not involve the payment of
any rental or other monetary sum, is not willful or intentional, does not place
any rights or property of Lessor in immediate jeopardy, is not known to Lessee
(unless Lessor has given Lessee notice thereof) and is within the reasonable
power of Lessee to cure within 20 days after notice thereof (all as determined
by Lessor in its reasonable discretion), then such event shall not constitute a
default hereunder, unless otherwise expressly provided herein, until Lessor
shall have given Lessee notice thereof and a period of twenty (20) days shall
have elapsed, during which period Lessee may correct or cure such event, upon
failure of which a Default shall be deemed to have occurred
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hereunder without further notice or demand of any kind. If any breach or default
cannot reasonably be cured with the 20-day period, as determined by Lessor in
its reasonable discretion, and Lessee is diligently pursuing a cure of such
breach or default, then Lessee shall, after receiving notice specified herein,
have a reasonable period as determined by the Lessor to cure such breach or
default.
(c) In the event of any breach or default, and without any
notice, except, if applicable, the notice required under certain circumstances
by paragraph (b) above or such other notice as may be required by law and cannot
be waived by Lessee (all other notices being hereby waived), Lessor shall be
entitled to exercise, at its option, concurrently, successively or in any
combination, all remedies available at law or in equity, including, without
limitation, any one or more of the following:
(i) To terminate this Lease;
(ii) To re-enter and take possession of the
Premises or any part thereof (which re-entry shall not operate to terminate
this Lease unless Lessor expressly so elects), of any or all personal property
or fixtures of Lessee upon the Premises, and of all franchises, licenses,
permits and other rights or privileges of Lessee pertaining to the use and
operation of the Premises, if any and if assignable;
(iii) To seize all personal property and fixtures
upon the Premises which Lessee owns or in which it has an interest, in which
Lessor shall have a landlord's lien and is hereby granted a security interest,
and to dispose thereof in accordance with laws prevailing at the time and place
of such seizure or to remove all or any portion of such property and cause the
same to be stored in a public warehouse or elsewhere at the cost of Lessee;
(iv) To relet the Premises or any part thereof
for such term or terms (including a term which extends beyond the original term
of this Lease), at such rentals and upon such other terms as Lessor, in its
sole discretion, may determine, with all proceeds received from such reletting
being applied to the rentals and other sums due from Lessee in such order as
Lessor may, in its sole discretion, determine, with Lessee remaining liable for
any deficiency;
(v) To recover from Lessee an amount equal to
the difference between the rentals and such other sums (including all sums
required to be paid by Lessee, such as taxes and insurance) to be received from
the date of such Default to the expiration of the original term hereof and the
reasonable long term rental value of the Premises for the same period; and/or
(vi) To recover from Lessee all expenses,
including attorneys' fees, reasonably paid or incurred by Lessor as a result of
such breach.
In addition, in the event of any Default by Lessee,
Lessor may, but shall not be obligated to, immediately or at any time
thereafter, and without notice, except as required herein,
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correct such default for the account and at the expense of Lessee. Any sum or
sums so paid by Lessor, together with interest at the Default Rate and all costs
and damages, shall be deemed to be additional Rent hereunder and shall be
immediately due from Lessee to Lessor. If any Default or threatened Default by
Lessee of any of the agreements, terms, covenants, or conditions contained in
this Lease shall occur, Lessor shall be entitled to enjoin such Default or
threatened Default and shall have the right to invoke any right or remedy
allowed at law or in equity, or by statute or otherwise, as though re-entry
summary proceedings and other remedies were not provided for in this Lease.
ARTICLE XIX
MORTGAGE AND SUBORDINATION
A. Lessee shall keep the Premises free from any liens for work
performed, materials furnished or obligations incurred by Lessee. Lessee shall
do all things necessary to prevent the filing of any mechanic's or other liens
against the Premises or the interest of Lessor or any ground or underlying
lessors thereof, or the interest of any mortgagees or holders of any deeds of
trust covering any portion of the Premises by reason of any work, labor,
services, or materials performed or supplied or claimed to have been performed
for or supplied to Lessee or anyone holding the Premises, or any part thereof,
by, through or under Lessee. If any such lien shall at any time be filed, Lessee
shall either cause the same to be vacated and canceled of record within ten (10)
days after the date of filing thereof or, if Lessee in good faith determines
that such lien should be contested, Lessee shall furnish such security, by
surety bond or otherwise, as may be reasonably necessary or be prescribed by law
to release the same as a lien and to prevent any foreclosure of such lien during
the pendency of such contest. If Lessee shall fail to vacate or release such
lien in the manner and within the time period aforesaid, such failure shall be a
Default, and in addition to all other rights and remedies available to Lessor
resulting therefrom, Lessor may, but shall not be under any obligation to,
vacate or release said lien either by paying the amount claimed to be due, or
by, procuring the release of such lien by giving security or in such other
manner as may be prescribed by law. Lessee shall reimburse Lessor, upon demand,
all sums disbursed or deposited by Lessor pursuant to the foregoing provisions
of this paragraph, including Lessor's costs and expenses and reasonable
attorneys' fees incurred in connection therewith, with interest thereon at the
Default Rate. However, nothing contained herein shall imply consent or be
construed as an agreement on the part of Lessor or any ground or underlying
lessors, or mortgagees, or holders of deeds of trust covering any portion of the
Premises, to subject their respective estates or interests to liability under
any mechanic's or other lien law, whether or not the performance or the
furnishing of such work, labor, services or materials to Lessee or anyone
holding the Premises, or any part thereof, through or under Lessee, shall have
been consented to by Lessor or any of such parties.
B. NOTICE IS HEREBY GIVEN THAT LESSEE IS NOT AUTHORIZED TO PLACE ANY
LIEN, MORTGAGE, DEED OF TRUST OR ENCUMBRANCE OF ANY KIND
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UPON ALL OR ANY PART OF THE PREMISES OR LESSEE'S LEASEHOLD INTEREST THEREIN, AND
ANY SUCH PURPORTED TRANSACTION SHALL BE VOID UNLESS LESSOR SHALL FIRST CONSENT
IN WRITING TO EACH SAID ENCUMBRANCE. As a condition precedent for Lessor
considering any such consent, which may be withheld by Lessor in its sole and
absolute discretion, Lessee shall submit to Lessor, not less than thirty (30)
days prior to the effective date of the proposed encumbrance (including a
hypothecation), all documents proposed to be used in connection therewith plus a
commitment for an endorsement to the Lessor's Owner's Title Policy,
affirmatively ensuring that if the proposed encumbrance is consented to by
Lessor and is subsequently an encumbrance on the Lessee's leasehold interest,
the interest of the Lessor in the Premises is not otherwise affected and
continues to be paramount to the interest of the Lessee and any party claiming
by, through or under Lessee. A further condition precedent is the obligation of
the Lessee to pay all fees, costs, charges and expenses incurred by Lessor in
connection with any proposed encumbrance (including reasonable attorneys' fees)
whether or not consent thereto is given.
C. This Lease at all time shall be subordinate to the lien of any
ground leases, mortgage, mortgages, trust deed or trust deeds now or hereafter
placed upon the Premises by Lessor, and Lessee covenants and agrees to execute
and deliver, upon demand, such further instruments subordinating this Lease to
the lien of any such ground lease, mortgage, mortgages or proposed mortgages, or
trustees under the trust deeds, upon the condition that Lessee shall have the
right to remain in possession of the Premises under the terms of this Lease,
notwithstanding any default in any such mortgage, mortgages, trust deed or trust
deeds, or after foreclosure thereof, so long as Lessee is not in default beyond
any applicable grace period under any of the covenants, conditions and
agreements contained in this Lease.
D. (i) If any mortgagee or trustee elects to have this Lease and the
interest of Lessee hereunder be superior to any such interest or right and
evidences of such election by notice given to Lessee, then this Lease and the
interest of Lessee hereunder shall be deemed superior to any such mortgage or
trust deed, whether this Lease was executed before or after such mortgage or
trust deed and in that event, such mortgagee or trustee shall have the same
rights with respect to this Lease as if it had been executed and delivered prior
to the execution and delivery of the mortgage or trust deed and has been
assigned to such mortgagee or trustee.
(ii) Lessee shall execute and deliver whatever instruments may
be required for such purposes, and in the event Lessee fails so to do within ten
(10) days after demand in writing, Lessee does hereby make, constitute and
irrevocably appoint Lessor as its attorney-in-fact and in its name, place and
stead so to do.
(iii). Lessee shall give written notice to any mortgage lender
having a recorded security instrument upon the Premises or any part thereof of
any breach or default by Lessor of any of its obligations under this Lease and
to give such mortgage lender at least 60 days beyond any notice period to which
Lessor might be entitled to cure such default before Lessee may exercise any
remedy with respect thereto. Lessee shall provide Lessee's most recent audited
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financial statements upon request to Lessor or any mortgage lender and to
certify the continuing accuracy of such financial statements in such manner as
Lessor or such mortgage lender may request.
ARTICLE XX
ESTOPPEL CERTIFICATE
At any time, and from time to time, Lessee and Lessor agree to
promptly, and in no event later than fifteen (15) days after a request in
writing from the other, to execute, acknowledge and deliver to the party so
requesting a statement in writing, certifying that this Lease is unmodified and
in full force and effect (or, if there have been modifications, that the same is
in full force and effect as modified and stating the modifications) and the
dates to which the rental and other charges have been paid and such other
information and/or confirmation as Lessor or Lessee may reasonably request.
ARTICLE XXI
ASSIGNMENT AND SUBLETTING
A. Lessor shall have the right to sell or convey the Premises subject
to this Lease or to assign the right, title and interest as Lessor under this
Lease, in whole or in part. In the event of any such sale or assignment other
than a security assignment, Lessor shall be relieved, from and after the date of
such transfer or conveyance, of liability for the performance of any obligation
of Lessor contained herein, except for obligations or liabilities accrued prior
to such assignment or sale.
B. Lessee acknowledges that as an inducement to enter into this Lease,
Lessor has relied both on the business experience and creditworthiness of Lessee
and the particular purpose for which Lessee intends to use the Premises,
therefore, Lessee shall not assign, this Lease or any interest therein, or
sublet all or any part of the Premises, without the prior written consent of
Lessor. Lessor may withhold or condition such consent upon such matters as
Lessor may, in its sole discretion, determine, including, without limitation,
the following criteria: experience and creditworthiness of the assignee; the
assumption by the assignee of all of Lessee's obligations hereunder by
undertakings enforceable by Lessor; the transfer to such assignee of all
necessary licenses to continue operating the Premises for the purposes herein
provided; receipt of such representations and warranties from such assignee as
Lessor may request, including such matters as its organization, existence, good
standing and finances and other matters, whether or not similar in kind; whether
or not Lessee seeks to assign any or all Leases of the Counterpart Leases to the
same proposed Assignee, and the payment by the Lessee of all fees, costs,
charges and expenses
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incurred by Lessor in connection with any proposed assignment or subletting,
including reasonably attorneys' fees, whether or not consent to such requested
assignment or subletting is given. If consent is given to an assignment (but not
a sublease), an amendment to the Lease shall be entered into whereby the Base
Annual Rental shall be increased, as of the date the assignment is to become
effective to an amount equal to 125 % of the then-current Base Annual Rental,
due and payable from the assignee.
C. No such assignment or subletting shall relieve the original Lessee
or any prior assignee of their obligations under this Lease; provided, however,
if such proposed assignee has a net worth, business reputation, and operating
experience reasonably acceptable to Lessor, said successor properly assumes this
Lease, and Lessee is not in default hereunder, then Lessor shall release Lessee
hereunder upon proper documentation. Lessee shall be required to pay all costs
incurred by Lessor in considering such assignment and release prior to Lessor
consenting hereunder. Lessor's consent to an assignment, or to a release of
Lessee, shall not require Lessor to similarly consent for any future assignments
or requests for release of Lessee.
D. Lessor consents to those leases listed on Exhibit C ("Subleases")
which currently affect the Premises, subject to the effective subordination of
the Subleases to this Lease.
ARTICLE XXII
OPTION TO RENEW
A. Lessee (provided there is no Default at the time of exercise or at
the expiration of the Lease Term or, if applicable, the then-current extension
of the Lease Term) shall have the option to continue this Lease in effect for
three additional independent periods, the first for ten Lease Years and the
final two for five Lease Years each ("Extension Period").
B. In the event the option to renew is exercised, then during said
Extension Period, all terms, conditions, covenants, representations, warranties
and obligations herein contained shall remain in full force and effect,
provided, however, if Lessee shall have exercised its third Extension Period,
there shall be no further right to so renew, and provided that Base Annual
Rental shall adjust pursuant to Paragraph D below.
C. Lessee shall exercise such renewal option by giving written notice
to Lessor of such exercise not more than two hundred seventy (270) days nor less
than two hundred ten (210) days prior to the expiration of the Lease Term, or if
applicable, the then-current extension of the Lease Term.
D. Base Annual Rent for any extended term will be at the greater of
Market Rent or the scheduled rent shown for such Extension Period on Schedule 1
attached. For purposes of this Lease, Market Rental shall mean the rent agreed
upon by Lessor and Lessee, or if they are unable
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106
to reach agreement within fifteen (15) days from the date Lessee elects the
Extension Period ("Agreement Period"), then the rent determined as fair rental
value by an MAI appraiser with at least five (5) years experience in appraising
commercial rental real estate of similar type in the general geographic area of
the Premises, which appraiser has been agreed upon by Lessor and Lessee, and who
has been instructed to determine a fair rental value for the Premises as used
for its highest and best use, and not necessarily that of a financial
institution. If Lessor and Lessee cannot jointly agree upon on an appraiser
within fifteen (15) days of the expiration of the Agreement Period ("Joint
Appointment Period"), then each of Lessee and Lessor shall select an independent
MAI appraiser meeting the aforesaid criteria within fifteen (15) days of the
expiration of the Joint Appointment Period ("Selection Period") and those two
appraiser shall select a third appraiser within fifteen (15) days of the
expiration of the Selection Period, and each of the three appraisers shall
render an appraisal of market rent for the Premises within thirty (30) days of
the Selection Period. The average rental of the two appraisers closest in amount
to each other shall be the Market Rent. Should Lessor or Lessee fail to timely
select an appraiser, the appraisal of the solely selected appraiser shall
control. Lessor and Lessee shall pay the costs of their selected appraiser, and
evenly divide any pay for the cost of any third appraiser or jointly approved
appraiser.
ARTICLE XXIII
HAZARDOUS MATERIALS SITE INVESTIGATION
Lessee shall, at its sole cost and expense, cause a party reasonably
acceptable to Lessor to conduct a Level 1 Hazardous Materials Site Investigation
(Level 1 Audit), as often as is required by the Environmental Protection Agency
or other governmental or regulatory body with authority to so request, or as
reasonably requested by Lessor, which Level 1 Audit shall complete at least the
following tasks at the Premises:.
(i) Review available materials that could indicate potential
environmental impairment. Such materials should include topographic maps, air
photos, boring logs and other references.
(ii) Conduct a physical site examination to include an
inspection for unusual land colorations, odors, and physical irregularities as
well as underground or above-ground tanks, and an evaluation of current land
use. Neighboring land owners are to be contacted to determine actual historical
site use.
(iii) Contact local and state health and environmental
agencies to determine if any hazardous materials incidents have occurred in the
area, including recorded or known landfill sites, or the occurrence of any
hazardous material event (spill, storage, discharge, etc.).
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(iv) Adjacent properties are to be surveyed for current land
use conditions that may adversely affect the subject property including,
underground or above-ground storage tanks, manufacturing sites, landfills, etc.
(v) A summary report will be prepared to the Lessor,
indicating the contacts made, data findings, photographs, and other pertinent
information and recommendations for a detailed (Level 2) site investigation if
significant evidence exists that hazardous substances may have been released at
or in close proximity to any of the Sites. If a Level 2 site investigation is
recommended, Lessee shall perform that investigation and shall perform all clean
up activities recommended therein as soon thereafter as reasonable.
ARTICLE XXIV
NOTICES
All notices, demands, requests, consents, approvals or other
instruments required or permitted to be given by either party pursuant to this
Lease shall be in writing and shall be deemed to have been properly given if
sent by either (i) registered or certified mail, postage prepaid; (ii) by a
recognized national overnight courier service (e.g. Federal Express) with
instructions and payment for next business day delivery; (iii) by personal
delivery; or (iv) confirmed facsimile transmission to the parties at the
addresses hereinafter set forth and/or to such other address as either party may
give notice pursuant to this section from time-to-time. All notices shall be
deemed received and effective on the first to occur of the following: (i)
delivery; (ii) refusal of deliver; or (iii) the third business day after posting
or delivery to the courier service; or (iv) receipt of confirmed facsimile
transmission.
If to Lessor: Stuart Whitman, Inc.
749 San Ysidro Rd.
Montecito, CA 93108
Attn: Stuart Whitman, President
With copy to: The Bicek Group
1413 Sherman Road
Suite 40
Romeoville, Illinois 60446
Attn: Robert Bicek
and to: Jeffrey J. Stahl, Esq.
Stahl Brashler LLC
20 East Jackson Blvd.
Suite 1600
Chicago, Illinois 60604
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108
If to Lessee: Argo Bancorp, Inc.
7600 West 63rd Street
Summit, Illinois 60501
Attn: John G. Yedinak, Chairman
with copy to: James Kemp, Esq.
Kemp, Grzelakowski & Loremzini, Ltd.
1900 Spring St.
Suite 500
Oak Brook, IL 60523
(630) 571-7711
(630) 571-7755
ARTICLE XXV
HOLDING OVER
If Lessee remains in possession of the Premises after the expiration of
the Lease Term, Lessee may be deemed a tenant on a month-to-month basis and
shall continue to pay rentals and other sums at the rate of 200% of the amounts
herein provided and to comply with all of the terms of this Lease; provided that
nothing herein nor the acceptance of Rent by Lessor shall be deemed a consent to
such holding over.
ARTICLE XXVI
LESSOR'S LIEN
Lessor shall have a landlord's lien upon all furnishings, fixtures,
equipment, decorations, supplies, accessories and other personal property which
Lessee owns or in which it has an interest located on the Premises, to secure
the payment of all Rent and the performance of all other obligations of Lessee
under this Lease; provided however, Lessor, upon request of Lessee, shall
subordinate this interest upon and subject to such terms and conditions as
Lessor may, from time-to-time, reasonably determine.
ARTICLE XXVII
REMOVAL OF LESSEE'S PROPERTY
At the expiration or sooner termination of the Lease Term if Lessee is
not then in Default hereof, Lessee may and shall remove from the Premises all
personal property belonging to Lessee.
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109
Lessee shall repair any damage caused by such removal and shall leave the
premises (including all buildings thereon) broom clean and in good condition and
repair.
ARTICLE XXVIII
FINANCIAL STATEMENTS
Within ninety (90) days after the end of each fiscal year of Lessee,
Lessee shall deliver to Lessor (i) complete financial statements of Lessee
including a balance sheet, profit and loss statement, statement of changes in
financial condition and all other related schedules for the fiscal period then
ended; and (ii) income statements for the business at the Premises showing
profits and losses for the fiscal period then ended. All such financial
statements shall be prepared in accordance with generally accepted accounting
principles, consistently applied from period to period, and shall be audited by
an independent Certified Public Accountant reasonably acceptable to Lessor. In
the event that Lessee's property and business at the Premises is ordinarily
consolidated with other business for financial statement purposes, such
financial statements shall be prepared on a consolidated basis showing
separately the profits and losses, assets and liabilities pertaining to the
Premises with the basis for allocation of overhead of other charges being
clearly set forth.
ARTICLE XXIX
LESSOR'S LIABILITY
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed (such agreement being a primary consideration
for the execution of this Lease by Lessor) that there shall be absolutely no
personal liability on the part of Lessor or any partner, shareholder, officer,
director or employee of Lessor, or their successors or assigns with respect to
any of the terms, covenants and conditions of this Lease, and that Lessee shall
look solely to the interest of the Lessor for the satisfaction of each and every
remedy of the Lessee in the Premises and no other property, interest or assets
of the Lessor whatsoever in the event of any breach by Lessor of any of the
terms, covenants and conditions of this Lease to be performed by Lessor, such
exculpation of liability to be absolute and without any exception whatsoever.
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110
ARTICLE XXX
CONSENT OF LESSOR
Lessor shall have no liability for damages resulting from Lessor's
failure to give any consent, approval or instruction reserved to Lessor,
Lessee's sole remedy in any such event being an action for injunctive relief.
ARTICLE XXXI
WAIVER AND AMENDMENT
No provision of this Lease shall be deemed waived or amended except by
a written instrument unambiguously setting forth the matter waived or amended
and signed by the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same or any
other matter on any future occasion.
ARTICLE XXXII
JOINT VENTURE
None of the agreements contained herein, is intended, nor shall the
same be deemed or construed, to create a partnership between Lessor and Lessee,
to make them joint venturers, nor to make Lessor in any way responsible for the
debts or losses or Lessee.
ARTICLE XXXIII
CAPTIONS
Captions are used throughout this Lease for convenience of reference
only and shall not be considered in any manner in the construction or
interpretation hereof.
ARTICLE XXXIV
SEVERABILITY
The provisions of this Lease shall be deemed severable. If any part of
this Lease shall be held unenforceable by any court of competent jurisdiction,
the remainder shall remain in full force
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111
and effect, and such unenforceable provision shall be reformed by such court so
as to give maximum legal effect to the intention of the parties as expressed
herein.
ARTICLE XXXV
CONSTRUCTION GENERALLY
This is a long-term commercial lease between entrepreneurs which has
been entered into by both parties in reliance upon the economic and legal
bargains contained herein. This Lease shall be interpreted and construed in a
fair and impartial manner without regard to such factors as the party which
prepared the instrument, the relative bargaining powers of the parties or the
domicile of any party. Time is of the essence in the performance of obligations
and exercise of any options herein contained.
ARTICLE XXXVI
OTHER DOCUMENTS
Each of the parties agrees to sign such other and further documents as
may be appropriate to carry out the intentions expressed in this Lease.
ARTICLE XXXVII
ATTORNEYS' FEES
In the event of any judicial or other adversarial proceeding between
the parties concerning this Lease, to the extent permitted by law, the
prevailing party shall be entitled to recover all of its reasonable attorneys'
fees and other costs in addition to any other relief to which it may be
entitled.
ARTICLE XXXVIII
ENTIRE AGREEMENT AND INCORPORATION
This Lease, and any other instruments or agreements referred to herein,
constitute the entire agreement between the parties with respect to the subject
matter hereof, and there are no other representations, warranties or agreements
except as herein provided. Each and every of the recitals set forth on Page 1
are hereby incorporated as if fully re-written.
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112
ARTICLE XXXIX
COUNTERPARTS
This Lease may be executed in one or more counterparts, each of which
shall be deemed an original.
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease as
of the year and day first above written.
LESSOR:
STUART WHITMAN, INC.,
a California corporation
By: /s/ STUART WHITMAN
-----------------------------------
Its: President
LESSEE:
ARGO FEDERAL SAVINGS BANK, F.S.B.,
a federal savings bank
By: /s/ JOHN G. YEDINAK
-----------------------------------
Its:
113
- -----------------------------------------------------------------
SCHEDULE 1
- -----------------------------------------------------------------
BASE ANNUAL RENTAL
- -----------------------------------------------------------------
FOR 7600 W. 63RD ST, SUMMIT, ILLINOIS
- -----------------------------------------------------------------
Assumes a June 1, 1999 Closing
- -----------------------------------------------------------------
- -----------------------------------------------------------------
ORIGINAL LEASE TERM 170 MONTHS
=================================================================
PERIODS MONTHLY
- -----------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN RENT
=================================================================
Closing thru 12/31/1999 $7,931.67
- -----------------------------------------------------------------
1/1/2000 thru 12/31/2000 $8,010.99
- -----------------------------------------------------------------
1/l/2001 thru 12/31/2001 $8,091.10
- -----------------------------------------------------------------
l/l/2002 thru 12131/2002 $8,172.01
- -----------------------------------------------------------------
1/l/2003 thru 12/31/2003 $8,253.73
- -----------------------------------------------------------------
1/l/2004 thru 12/31/2004 $8,336.26
- -----------------------------------------------------------------
1/l/2005 thru 12/31/2005 $8,419.63
- -----------------------------------------------------------------
1/l/2006 thru 12/31/2006 $8,503.82
- -----------------------------------------------------------------
1/1/2007 thru 12/31/2007 $8,588.86
- -----------------------------------------------------------------
1/1/2008 thru 12/31/2008 $8,674.75
- -----------------------------------------------------------------
1/l/2009 thru 12/31/2009 $8,761.50
- -----------------------------------------------------------------
1/l/2010 thru 12/31/2010 $8,849.11
- -----------------------------------------------------------------
1/l/2011 thru 12/31/2011 $8,937.60
- -----------------------------------------------------------------
1/1/2012 thru 12/31/2012 $9,026.98
- -----------------------------------------------------------------
1/l/2013 thru 07/31/2013 $9,117.25
- -----------------------------------------------------------------
- -----------------------------------------------------------------
1ST OPTION TO RENEW (10 YEARS
=================================================================
PERIODS MONTHLY
- -----------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN RENT
=================================================================
8/l/2014 thru 7/31/2014 $11,997.36
- -----------------------------------------------------------------
8/1/2015 thru 7/31/2015 $12,357.28
- -----------------------------------------------------------------
8/l/2016 thru 7/31/2016 $12,728.00
- -----------------------------------------------------------------
8/1/2017 thru 7/31/2017 $13,109.84
- -----------------------------------------------------------------
8/1/2018 thru 7/31/2018 $13,503.14
- -----------------------------------------------------------------
8/l/2019 thru 7/31/2019 $13,908.23
- -----------------------------------------------------------------
8/l/2020 thru 7/31/2020 $14,325.48
- -----------------------------------------------------------------
8/1/2021 thru 7/31/2021 $14,755.24
- -----------------------------------------------------------------
8/l/2022 thru 7/31/2022 $15,197.90
- -----------------------------------------------------------------
8/l/2023 thru 7/31/2023 $15,653.84
- -----------------------------------------------------------------
- -----------------------------------------------------------------
2ND OPTION TO RENEW (5 YEARS)
=================================================================
PERIODS MONTHLY
- -----------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN RENT
=================================================================
8/1/2024 thru 7/31/2024 $16,123.45
- -----------------------------------------------------------------
8/1/2025 thru 7/31/2025 $16,607.16
- -----------------------------------------------------------------
8/l/2026 thru 7/31/2026 $17,105.37
- -----------------------------------------------------------------
8/1/2027 thru 7/31/2027 $17,618.53
- -----------------------------------------------------------------
8/l/2028 thru 7/31/2028 $18,147.09
- -----------------------------------------------------------------
- -----------------------------------------------------------------
3RD OPTION TO RENEW (5 YEARS)
=================================================================
PERIODS MONTHLY
- -----------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN RENT
=================================================================
8/1/2029 thru 7/31/2029 $18,691.50
- -----------------------------------------------------------------
8/1/2030 thru 7/31/2030 $19,252.24
- -----------------------------------------------------------------
8/1/2031 thru 7/31/2031 $19,829.81
- -----------------------------------------------------------------
8/1/2032 thru 7/31/2032 $20,424.71
- -----------------------------------------------------------------
8/1/2033 thru 7/31/2033 $21,037.45
- -----------------------------------------------------------------
114
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
PARCEL l:
LOTS 60 AND 61 IN BLOCK 22 IN ARGO FIRST ADDITION TO SUMMIT A
SUBDIVISION OF THAT PART LYING EAST OF THE CENTER LINE OF ARCHER AVENUE
OF THE SOUTH HALF OF THE SOUTH EAST QUARTER OF THE SOUTH WEST QUARTER
OF SECTION 13, TOWNSHIP 38 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN COOK COUNTY, ILLINOIS.
PARCEL 2:
LOTS 1, 2, 3, 4, 5 AND 6 AND THE EAST 1/2 OF LOT 7 IN BLOCK 22 IN ARGO
FIRST ADDITION TO SUMMIT, A SUBDIVISION OF THAT PART LYING EAST OF THE
CENTER LINE OF ARCHER AVENUE IN THE SOUTH HALF OF THE SOUTH EAST
QUARTER OF THE SOUTH WEST QUARTER OF SECTION 13, TOWNSHIP 38 NORTH,
RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY,
ILLINOIS.
115
EXHIBIT B
COUNTERPART LEASES
1. Lease between Lessor and Lessee of even date herewith for property located
at:
5818 South Archer, Summit, Illinois
2154 West Madison, Chicago, Illinois
14076 Lincoln, Dolton, Illinois
8267 South Roberts Road, Bridgeview, Illinois
116
EXHIBIT C
SUBLEASES
NONE
117
ABSOLUTE NET LEASE
THIS LEASE made as of June 29, 1999, by and between Stuart Whitman,
Inc., or its assigns ("Lessor"), whose address is 9220 Sunset Boulevard, Suite
206, Los Angeles, CA 90069, and Argo Savings and Loan Association, all
subsidiaries, parents, and affiliates ("Lessee"), whose address is 7600 West
63rd Street, Summit, Illinois 60501.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Agreement of Purchase and Sale
dated June 10, 1999 (the "Agreement") Lessee as Seller, sold to Lessor, as
Purchaser, the Premises, as that term is hereinafter defined; and
WHEREAS, Lessee acknowledges that, prior to the date hereof, it has
been in full and complete possession of the Premises and is fully aware of the
condition of the Premises and all portions thereof, and that this demise is on a
strictly "AS IS" basis with no representations, warranties, covenants or
agreements as to the condition or state of said Premises or any portion thereof
being made by the Lessor.
NOW, THEREFORE, Lessor and Lessee hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the following meanings for all purposes
of this Lease:
"Additional Rental" means all Payment obligations of Lessee hereunder
other than Base Rental.
"Base Annual Rental" means $105,260.00, as adjusted pursuant to the
terms herein.
"Base Monthly Rental" means an amount equal to l/12 of the Base Annual
Rental, subject to the Rent Adjustment as set forth below.
"Default Rate" means an amount of interest equal to the lesser of the
highest permitted annual interest rate Lessor may charge Lessee or 5% per
month.
"Lease Term" means the period described in Article III.
118
"Lease Year" shall be defined as a period of twelve (12) consecutive
calendar months; however, the first Lease Year shall commence on the date hereof
and expire December 31, 1999.
"Lessee" shall mean Lessee and its permitted successors and assigns.
"Premises" means the real property, together with all buildings,
structures and site improvements located thereon, at 8267 South Roberts Road,
Bridgeview, Illinois, and more particularly described in Exhibit A attached
hereto and incorporated herein and all rights, easements and interests
appurtenant thereto, including, but not limited to, any streets or public ways
adjacent to the Premises and any water and mineral rights, to the extent that
the same have been conveyed to Lessor by Lessee pursuant to the terms of the
Agreement.
"Rent" means the aggregate of all sums becoming due and payable under
this Lease from the Lessee whether as Base Monthly Rental, Base Annual Rental,
Additional Rental, or otherwise.
ARTICLE II
DEMISE OF PREMISES
In consideration of the rentals and other sums to be paid by Lessee
and of the other terms, covenants and conditions on Lessee's part to be kept and
performed, Lessor hereby leases to Lessee, and Lessee hereby takes and hires,
from Lessor the Premises.
ARTICLE III
LEASE TERM
The Lease Term shall (i) be for one hundred seventy (170) months; (ii)
commence as of the first day of the calendar month following the date hereof
("Commencement Date"); and (iii) expire on the expiration of one hundred seventy
(170) months thereafter, unless sooner terminated or extended as provided in
this Lease.
ARTICLE IV
BASE RENTAL
Lessee agrees to pay to Lessor, or to such other person or entity as
Lessor may from time-to-time direct, without demand, deduction, set-off or
abatement at such place as Lessor, by notice in writing to Lessee from time to
time may direct, at the following rates and times:
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119
See Schedule I Attached Hereto
Base Annual Rental monthly in advance in equal monthly installments
(i.e. Base Monthly Rental) on the first day of each calendar month of the Lease
Term. One-thirtieth (1/30th) of each monthly payment shall be due and payable
for each day of any portion of a month less than a full month, and shall be
payable on the first day of such partial month. The monthly rental for the month
or portion thereof prior to the Commencement Date beginning from the date of the
full execution hereof shall be one-thirtieth (1/30th) of the Base Monthly Rental
times the number of days remaining in the month. The Base Monthly Rental for any
period less than a full Lease Year following the fourteenth annual anniversary
of the commencement date shall be the same as the Base Monthly Rental assessed
in the fourteenth Lease Year. If requested by Lessor, Lessee shall establish
arrangements whereby each payment of Base Monthly Rental is transferred by wire
or other means of transfer directly to Lessor's account as designated from
time-to-time by Lessor on or before the first business day of each month during
the Lease Term. At Landlord's request Tenant shall provide Landlord with a
single payment of Monthly Rental due hereunder aggregated with those due under
the Counterpart Leases, as hereinafter defined.
(b) The Base Annual Rental during the Lease Term, or during any
Extension Period, shall increase as set forth on Schedule 1 attached hereto and
incorporated herein by this reference.
ARTICLE V
RENTAL TO BE NET TO LESSOR
Lessee recognizes and acknowledges, without limiting the generality of
any other term or provision of this Lease, that it is the intent of the parties
hereto that the Base Annual Rental to be paid by Lessee to Lessor shall be
absolutely net to Lessor; and any and all charges, assessments, impositions and
expenses pertaining to or levied against the Premises and any and all portions
thereof, including, without limiting the generality of the foregoing, any and
all taxes, assessments, general or special, water rates, license fees, fuel
costs, steam costs, insurance premiums, utility bills, costs of repair,
maintenance (structural or otherwise), operation and restoration of the Premises
(including all improvements now or hereafter made thereon and any and every part
thereof), shall be included as Additional Rent hereunder, and be the sole and
absolute obligations of and paid by Lessee as Lessee's sole and exclusive cost
and expense, all as herein and elsewhere more particularly set forth.
3
120
ARTICLE VI
TAXES AND ASSESSMENTS
A. Lessee shall pay, as the same become due and prior to delinquency,
all taxes and assessments which may be levied, assessed, imposed, or become
liens on the Premises or which arose out of the use or occupancy of the
Premises, including, without limitation, the following (the "Taxes"):
(a) All taxes and assessments upon the Premises or any part thereof or
the Rent therefrom, or any personal property, equipment, trade fixtures or
improvements located in or on the Premises, whether belonging to Lessor or
Lessee, which are owing at the commencement of this Lease or shall be assessed
or become due during the Lease Term or any tax or charge levied (whether in
whole or in part) in lieu of and/or in addition to such taxes and assessments;
(b) All taxes, charges, license fees or similar fees imposed by
reason of the tenancy, use or occupancy of the Premises by Lessee; and
(c) All excise, transaction, privilege, license, sales, use and other
taxes upon the rental or other payments hereunder, the leasehold estate of
either party hereto or the activities of either party pursuant to this Lease,
except for any tax upon or measured by the income and profits of Lessor.
B. Lessee shall have the right to contest, in good faith and with due
diligence, the validity or amount of any Taxes levied or assessed against the
Premises by appropriate legal proceedings which shall have the effect of
preventing the collection of the Taxes so contested; provided that:
(a) At least ten (10) days prior to the last day allowed by law for
payment of such Taxes, Lessee shall notify Lessor of Lessee's intention to
contest said Taxes;
(b) To the extent Lessee has not deposited amounts sufficient to
assure payment of Taxes, costs, interest and penalties, Lessee shall furnish to
Lessor such security as Lessor or its mortgagee may require to assure payment of
all Taxes and any costs, interest and penalties which may be or become payable
in the event and to the extent that such contest shall be unsuccessful;
(c) Such proceedings shall not endanger Lessor's interest in the
Premises; and
(d) Whether such proceedings are brought in the name of Lessee or
Lessor, Lessee shall indemnify and hold harmless the Lessor from any liability
for the payment of any costs or expenses in connection therewith.
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ARTICLE VII
UTILITIES
Lessee shall contract, in its own name, for and pay when due, all
charges in connection or use of water, gas, electricity, telephone, garbage
collection, sewer use and other utility services supplied to the Premises during
the Lease Term. Under no circumstances shall Lessor be responsible or liable for
any interruption, termination or the lack or quality of any utility service.
ARTICLE VIII
INSURANCE
Lessee shall maintain, at its sole cost and expense, the following
types and amounts of insurance insuring Lessee, and naming as additional
insureds Lessor, and the holder(s) of any mortgage or deed of trust encumbering
the Premises (which insurance may be included under a blanket insurance policy
if all the other terms hereof are satisfied), in addition to such other
insurance as Lessor may from time-to-time reasonably require:
(a) Insurance against loss, damage or destruction by fire and other
casualty, including theft, vandalism and malicious mischief, flood (if the
Premises are in a flood hazard area), earthquake (if the Premises are in an area
subject to destructive earthquake within recorded history), boiler explosion (if
there is any boiler upon the Premises), sprinkler damage (if the Premises have a
sprinkler system), all matters covered by a standard extended coverage
endorsement and such other risks as Lessor may reasonably require, insuring the
Premises, and all improvements thereon for not less than 100% of their fall
replacement cost for the Premises and all other premises leased under the
Counterpart Leases. Any insurance policy or policies shall designate Lessor and
Lessee as the named insureds as their interest may appear and shall be payable
as set forth in Article XVII.
(b) Comprehensive public liability and property damage insurance,
including a products liability clause, against bodily injury liability, property
damage liability and automobile bodily injury and property damage liability,
including, without limitation, any liability arising out of the ownership,
maintenance, repair, condition or operation of the Premises or adjoining ways,
streets or sidewalks. Such insurance policy or policies shall contain a "waiver
of subrogation" clause or endorsement which precludes the insurer from denying
the claim of either Lessee or Lessor because of the negligence or other acts of
the other, shall be in amounts of not less than $2,500,000 per injury and
occurrence and not less than $5,000,000 in the aggregate, with respect to any
insured liability, whether for personal injury or property damage, or such
higher limits as Lessor may reasonably require from time to time, and shall be
of form and substance satisfactory to Lessor.
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(c) Worker's compensation, employer's liability and such other
insurance as may be necessary to comply with applicable laws.
(d) Loss of rents or business interruption insurance in the amount of
at least one and one-half times the Base Annual Rental.
The form of each policy of insurance shall:
(i) Provide for a waiver of subrogation by the
insurer as to claims against Lessor, its partners (limited and general)
employees, directors, officers and agents;
(ii) Provide that such insurance cannot be
canceled, invalidated or suspended on account of the conduct of Lessor, its
officers, directors, employees, agents and any other party acting by, through
or under Lessor;
(iii) Contain a standard (i.e. without contribution)
mortgage clause endorsement in favor of the holder(s) of any mortgage or deed
of trust covering the Premises if designated by Lessor;
(iv) Provide that the policy of insurance shall not
be terminated without not less than 30 days' prior written notice to Lessor and
to any lender covered by any standard mortgage clause endorsement;
(v) Provide that the insurer shall not have the
option to restore the Premises if Lessor elects to terminate this Lease in
accordance with the terms hereof; and
(e) All of Lessee's insurance shall be issued by insurance
companies having rating in Best's Insurance Guide of Class VI or better, and
acceptable to Lessor and its lender with a deductible of no more than $5,000 and
acceptable to Lessor's lender.
(f) Lessee shall provide to Lessor and any lender designated
by Lessor, certificates of insurance or copies of insurance policies evidencing
that insurance satisfying the requirements of this Lease is in effect at all
times.
In addition, Lessee shall carry insurance of a type and in amounts
typical of similarly sized savings and loan associations addressing operations
of a financial institution.
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ARTICLE IX
TAXES AND INSURANCE IMPOUND
For so long as Landlord's lender shall require a deposit of taxes,
assessments, or insurance premiums, or at any other time as Tenant shall fail to
timely pay any of the foregoing, in addition to Landlord's other rights and
remedies hereunder, Lessee shall pay to Lessor such sums as Lessor reasonably
determines which will provide an impound account (which shall not be deemed a
trust fund) for paying up to the next one year of taxes, assessments and
insurance premiums. Lessor will estimate the amounts needed for such purposes
and will notify Lessee to pay the same to Lessor in equal monthly installments,
as nearly as practicable, in addition to all other sums due under this Lease.
Should additional funds be required at any time, Lessee shall pay the same to
Lessor on demand. Interest or other gains from such funds, if any, shall remain
in the impound account and either applied to the amounts to be paid for taxes,
assessments, or insurance premiums or, if not needed for that purpose, will
reduce the monthly impound amount for the following year. In the event of any
Default (as that term is defined in Article XVIII), Lessor may apply all such
funds against any sums due from Lessee to Lessor. Lessor shall give to Lessee an
annual accounting showing all credits and debits to and from such impound funds
received from Lessee.
ARTICLE X
YEAR 2000 REPRESENTATION
Lessee represents to Lessor that it has reviewed the areas within its
business and operations which could be adversely affected by, and has developed
or is developing a program to address on a timely basis, the "Year 2000 Problem"
(that is, the risk that computer applications used by Lessee may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date on or after December 31, 1999), and has made related
appropriate inquiry of material suppliers and vendors. Based on such review and
program, Lessee believes that the "Year 2000 Problem" will not have a material
adverse effect on Lessee or its operation of the Premises. From time to time, at
the request of the Lessor, Lessee shall provide to the Lessor such updated
information or documentation is requested regarding the status of its efforts to
address the Year 2000 Problem.
ARTICLE XI
USE
Lessee shall use the Premises solely for the operation of a federally
insured financial institution and the operations by wholly owned subsidiary
companies thereof of incidental uses
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traditionally attendant to financial institutions, savings and loan operating
under the trade name and business style of Argo Federal Savings and for no other
use without Lessor's prior written consent, which consent will not be
unreasonably withheld. Lessor may consider the following, in addition to and not
in limitations of other criteria, in determining whether to grant its consent to
a change in use without being deemed to be unreasonable: (a) whether the
proposed Rent to be paid to Lessor is reasonable considering the converted use
of the Premises and the customary rental prevailing in the community for such
use; (b) whether the converted use will be consistent with the highest and best
use of the Premises in the discretion of Lessor reasonably exercised; and (c)
whether the converted use will increase Lessor's risks or decrease the residual
value of the Premises.
ARTICLE XII
COMPLIANCE WITH LAWS
A. Lessee's use and occupation of the Premises shall not be in
violation of any governmental requirement, law, ordinance, statute, ruling or
the like applicable to the Lessee, the Premises or the use thereof, including
without limitation, the Americans with Disabilities Act and any local, state, or
federal environmental requirement, law, ordinance, statute or ruling related to
Hazardous Substances (as hereinafter defined). Lessee shall, at Lessee's sole
cost and expense, also comply with all applicable directions, rules and
regulations of the fire marshall, health officers, building inspector or other
proper officers of any governmental agency having jurisdiction.
B. Lessee shall not create, store or release or allow the creation,
storage or release of any Hazardous Substances on the Premises, and if the use
of the Premises shall be changed in accordance with the provisions of this
Lease, Lessee shall not create, store or release or allow the creation, storage
or release of any additional Hazardous Substances on the Premises without the
prior consent of Lessor, such consent not to be unreasonably withheld or
delayed. "Hazardous Substances" shall mean: Any substance or material on the
Premises defined or designated as hazardous or toxic waste, hazardous or toxic
materials, a hazardous or toxic substance, or other similar term by any federal,
state or local environmental statute, regulation or ordinance presently in
effect.
C. In addition to all other provisions of this Lease regarding
indemnification and holding Lessor harmless, Lessee agrees to indemnify and hold
Lessor and the holder(s) of any mortgage or deed of trust encumbering the
Premises harmless from and against any and all claims, demands, damages, losses,
liens, liabilities, penalties, fines, lawsuits and other proceedings, costs and
expenses (including, without limitation, reasonable attorneys' fees) arising
directly or indirectly from, out of, or in any way connected with (i) the
presence of any Hazardous Substances
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on or off the Premises or any portion thereof; (ii) any violation of any local,
state or federal environmental law, regulation, ordinance or administrative or
judicial order relating to Hazardous Substances, attributable to events
occurring before or after the Commencement Date.
ARTICLE XIII
MAINTENANCE
A. Lessee hereby accepts the Premises "AS IS," with no representation
or warranty of Lessor as to the condition thereof.
B. Lessee shall at all times, at its sole cost and expense, maintain,
repair and replace, as necessary, the Premises, including all portions of the
Premises, whether or not the Premises were in such condition upon the
commencement of this Lease.
C. Lessee shall maintain, the Premises as a first-class financial
institution and from time-to-time, do such renovation, restoration, refurbishing
and remodelling as shall be reasonably necessary to maintain the Premises in a
condition and style then current for similarly sized/located financial
institution. Lessee shall not permit maintenance obligations to be deferred.
D. Lessor shall have free access to the Premises from time to time to
confirm Lessee's compliance with the terms of this Article XIII and the balance
of the terms of this Lease.
ARTICLE XIV
ALTERATIONS
Lessee shall not commit actual or constructive waste upon the Premises,
or alter the exterior or structural elements or the interior of the Premises in
any manner without the prior written consent of Lessor. Any work at any time
commenced by Lessee on the Premises shall be prosecuted diligently to
completion, shall be of good workmanship and materials and shall comply fully
with all the terms of this Lease. Any addition to or alteration of the Premises
shall be deemed a part of the Premises and belong to Lessor at the expiration of
the Lease Term.
ARTICLE XV
INDEMNIFICATION
Lessee shall indemnify and hold harmless Lessor and Lessor's general
and limited partners, officers, employees, lender(s) and agents, from and
against any and all claims, demands, causes
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of action, suits, proceedings, liabilities, damages, losses, costs and expenses,
including attorneys' fees, caused by, incurred or resulting from its operation
of or relating in any manner to the Premises, whether relating to their original
design or construction, latent defects, alteration, maintenance, use by Lessee
or any person thereon, supervision or otherwise, or from any breach of, default
under or failure to perform any term or provision of this agreement by Lessee,
its officers, employees, agents or other persons. It is expressly understood
that Lessee's obligations under this Article shall survive the expiration or
earlier termination of this Lease.
ARTICLE XVI
QUIET ENJOYMENT
So long as Lessee shall pay rental and other sums herein provided and
shall keep and perform all of the terms, covenants and conditions on its part
therein contained, Lessor covenants that Lessee, subject to Lessor's rights
herein, shall have the right to the peaceful and quiet use and occupancy of the
Premises.
ARTICLE XVII
CONDEMNATION OR DESTRUCTION
(a) In case of a taking of all or any part of the Premises or
the commencement of any proceedings or negotiations which might result in a
taking, for any public or quasi-public purpose by any lawful power or authority
by exercise of the right of condemnation or eminent domain or by agreement
between Lessor, Lessee and those authorized to exercise such right ("Taking"),
Lessee will promptly give written notice thereof to Lessor, generally describing
the nature and extent of such Taking. Lessee may prosecute, if permissible under
the appropriate law of the jurisdiction, any award, compensation or damages
resulting from a Total Taking, as that term is hereinafter defined, to which it
is entitled but shall not have the right to Lessor's award, compensation or
damages.
(b) In case of a Taking of a whole of the Premises, other than
for temporary use ("Total Taking"), this Lease shall terminate as of the date of
such Total Taking and all Rent and other charges shall be apportioned and paid
to the date of such Total Taking. Total Taking shall include a taking of
substantially all the Premises if in the reasonable judgment of Lessor the
remainder of the Premises is not useable and/or cannot be made useable for the
purposes provided herein. Lessor shall be entitled to the entire award,
compensation, or damages whether such award is made as compensation for
dimunition in the value of the fee or leasehold, and Lessee hereby assigns to
Lessor all of Lessee's right, title and interest in and to any such award.
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and empowered, in its name or in Lessee's name, and on behalf of Lessee or
otherwise, to file and prosecute Lessee's claim, if any, for an award on account
of any Taking and to collect such award and apply the same, after deducting all
costs, fees and expenses incident to the collection thereof, to the curing of
such Default and any other then existing Default.
ARTICLE XVIII
DEFAULT AND REMEDIES
(a) Each of the following shall be deemed a breach of this
Lease and a default ("Default") by Lessee:
(i) If any material representation or warranty of
Lessee herein or the Seller in the Agreement was false when made, or in the
event that any such representation or warranty is continuing and becomes false
at any time, or if Lessee renders any false statement or account;
(ii) If any Rent due remains unpaid for five (5)
days after the due date thereof;
(iii) If Lessee becomes insolvent, makes a general
assignment for the benefit of creditors, seeks or consents to the appointment
of a trustee or liquidator, shall dissolve or liquidate all or a material
portion of its assets, performs any act of bankruptcy or is not generally
paying its debts as the same become due;
(iv) If Lessee fails to perform any of the
covenants, conditions or obligations of this Lease;
(v) If Lessee ceases to operate financial
institution activities at the Premises;
(vi) If there is a breach, default, termination or
expiration under any of those leases shown on Exhibit B attached hereto
("Counterpart Leases").
(b) If any breach or default does not involve the payment of
any rental or other monetary sum, is not willful or intentional, does not place
any rights or property of Lessor in immediate jeopardy, is not known to Lessee
(unless Lessor has given Lessee notice thereof) and is within the reasonable
power of Lessee to cure within 20 days after notice thereof (all as determined
by Lessor in its reasonable discretion), then such event shall not constitute a
default hereunder, unless otherwise expressly provided herein, until Lessor
shall have given Lessee notice thereof and a period of twenty (20) days shall
have elapsed, during which period Lessee may correct or cure such event, upon
failure of which a Default shall be deemed to have occurred
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(c) In case of a temporary use of the whole or any part of the
Premises by a Taking, this Lease shall remain in full force and effect, without
any reduction of rent or any other sums payable hereunder. Lessee shall be
entitled to the entire award for such Taking, whether paid by damages, rent or
otherwise, unless the period of occupation and use by the condemning authorities
shall extend beyond the date of expiration of the Lease, in which case the award
made for such Taking shall be apportioned between Lessor and Lessee as of the
date of expiration. At the termination of any such use or occupation of the
Premises, Lessee will, at its own cost and expense, promptly commence and
complete the restoration of the Premises. Lessee shall not be required to make
the restoration if the term of this Lease shall expire prior to, or within one
year after, the date of termination of the temporary use so taken, and in such
event, Lessor shall be entitled to recover all damages and awards arising out of
the failure of the condemning authority to repair and restore the building at
the expiration of such temporary taking.
(d) In the event of (i) a Taking of less than all of the
Premises other than a temporary use ("Partial Taking"); or (ii) of damage or
destruction to all or any part of the Premises, all awards, compensation or
damages shall be paid to Lessor, and Lessor shall have the option to terminate
this Lease by notifying Lessee in writing within 60 days after Lessee gives
Lessor notice of such damage or destruction or that title has vested in the
taking authority. Lessee shall thereupon have a period of 60 days in which to
elect in writing to continue this Lease on the terms herein provided. If Lessee
does not elect to continue this Lease or shall fail during such 60-day period to
elect to continue this Lease, then this Lease shall terminate as of the last day
of the month during which such period expired. Lessee shall then immediately
vacate and surrender the Premises, all obligations of either party hereunder
shall cease as of the date of termination and all such awards, compensation or
damages shall be paid to Lessor and Lessor shall be under no obligation make any
payment therefrom to Lessee. If Lessor does not elect to terminate this Lease,
or if Lessor so elects but Lessee elects to continue this Lease, then this Lease
shall continue on the following terms: Rental and other sums due under this
Lease shall continue unabated, and Lessee shall promptly commence and diligently
prosecute restoration of the Premises to the same condition, as nearly as
practicable, as prior to such partial condemnation, damage or destruction as
approved by Lessor in its sole discretion. Lessor shall promptly make available
in installments as restoration progresses an amount equal to any award,
compensation or damages received by Lessor, (or if stemming from an event prior
to the commencement of this Lease for which Lessor has an established
construction escrow, from the amount held in said escrow), upon written request
of Lessee accompanied by evidence reasonably satisfactory to Lessor that such
amount has been paid or is due and payable and is properly a part of such costs
and that there are no mechanics' or similar liens for labor and materials
theretofore supplied in connection with the restoration. Lessor shall be
entitled to keep any portion of such award, compensation or damages which may be
in excess of the cost of restoration, (unless the balance is from an existing
construction escrow, as set forth above), and Lessee shall bear all additional
costs, fees and expenses of such restoration in excess of the amount of any such
award, compensation or damages.
(e) Notwithstanding the foregoing, if at the time of any
Taking or at any time thereafter Lessee shall be in Default, such Default shall
be continuing, Lessor is hereby authorized
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hereunder without further notice or demand of any kind. If any breach or default
cannot reasonably be cured with the 20-day period, as determined by Lessor in
its reasonable discretion, and Lessee is diligently pursuing a cure of such
breach or default, then Lessee shall, after receiving notice specified herein,
have a reasonable period as determined by the Lessor to cure such breach or
default.
(c) In the event of any breach or default, and without any
notice, except, if applicable, the notice required under certain circumstances
by paragraph (b) above or such other notice as may be required by law and cannot
be waived by Lessee (all other notices being hereby waived), Lessor shall be
entitled to exercise, at its option, concurrently, successively or in any
combination, all remedies available at law or in equity, including, without
limitation, any one or more of the following:
(i) To terminate this Lease;
(ii) To re-enter and take possession of the
Premises or any part thereof (which re-entry shall not operate to terminate
this Lease unless Lessor expressly so elects), of any or all personal property
or fixtures of Lessee upon the Premises, and of all franchises, licenses,
permits and other rights or privileges of Lessee pertaining to the use and
operation of the Premises, if any and if assignable;
(iii) To seize all personal property and fixtures
upon the Premises which Lessee owns or in which it has an interest, in which
Lessor shall have a landlord's lien and is hereby granted a security interest,
and to dispose thereof in accordance with laws prevailing at the time and place
of such seizure or to remove all or any portion of such property and cause the
same to be stored in a public warehouse or elsewhere at the cost of Lessee;
(iv) To relet the Premises or any part thereof
for such term or terms (including a term which extends beyond the original term
of this Lease), at such rentals and upon such other terms as Lessor, in its
sole discretion, may determine, with all proceeds received from such reletting
being applied to the rentals and other sums due from Lessee in such order as
Lessor may, in its sole discretion, determine, with Lessee remaining liable for
any deficiency;
(v) To recover from Lessee an amount equal to the
difference between the rentals and such other sums (including all sums required
to be paid by Lessee, such as taxes and insurance) to be received from the date
of such Default to the expiration of the original term hereof and the
reasonable long term rental value of the Premises for the same period; and/or
(vi) To recover from Lessee all expenses,
including attorneys' fees, reasonably paid or incurred by Lessor as a result of
such breach.
In addition, in the event of any Default by Lessee,
Lessor may, but shall not be obligated to, immediately or at any time
thereafter, and without notice, except as required herein,
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correct such Default for the account and at the expense of Lessee. Any sum or
sums so paid by Lessor, together with interest at the Default Rate and all costs
and damages, shall be deemed to be additional Rent hereunder and shall be
immediately due from Lessee to Lessor. If any Default or threatened Default by
Lessee of any of the agreements, terms, covenants, or conditions contained in
this Lease shall occur, Lessor shall be entitled to enjoin such Default or
threatened Default and shall have the right to invoke any right or remedy
allowed at law or in equity, or by statute or otherwise, as though re-entry
summary proceedings and other remedies were not provided for in this Lease.
ARTICLE XIX
MORTGAGE AND SUBORDINATION
A. Lessee shall keep the Premises free from any liens for work
performed, materials furnished or obligations incurred by Lessee. Lessee shall
do all things necessary to prevent the filing of any mechanic's or other liens
against the Premises or the interest of Lessor or any ground or underlying
lessors thereof, or the interest of any mortgagees or holders of any deeds of
trust covering any portion of the Premises by reason of any work, labor,
services, or materials performed or supplied or claimed to have been performed
for or supplied to Lessee or anyone holding the Premises, or any part thereof,
by, through or under Lessee. If any such lien shall at any time be filed, Lessee
shall either cause the same to be vacated and canceled of record within ten (10)
days after the date of filing thereof or, if Lessee in good faith determines
that such lien should be contested, Lessee shall furnish such security, by
surety bond or otherwise, as may be reasonably necessary or be prescribed by law
to release the same as a lien and to prevent any foreclosure of such lien during
the pendency of such contest. If Lessee shall fail to vacate or release such
lien in the manner and within the time period aforesaid, such failure shall be a
Default, and in addition to all other rights and remedies available to Lessor
resulting therefrom, Lessor may, but shall not be under any obligation to,
vacate or release said lien either by paying the amount claimed to be due, or by
procuring the release of such lien by giving security or in such other manner as
may be prescribed by law. Lessee shall reimburse Lessor, upon demand, all sums
disbursed or deposited by Lessor pursuant to the foregoing provisions of this
paragraph, including Lessor's costs and expenses and reasonable attorneys' fees
incurred in connection therewith, with interest thereon at the Default Rate.
However, nothing contained herein shall imply consent or be construed as an
agreement on the part of Lessor or any ground or underlying lessors, or
mortgagees, or holders of deeds of trust covering any portion of the Premises,
to subject their respective estates or interests to liability under any
mechanic's or other lien law, whether or not the performance or the furnishing
of such work, labor, services or materials to Lessee or anyone holding the
Premises, or any part thereof, through or under Lessee, shall have been
consented to by Lessor or any of such parties.
B. NOTICE IS HEREBY GIVEN THAT LESSEE IS NOT AUTHORIZED TO PLACE ANY
LIEN, MORTGAGE, DEED OF TRUST OR ENCUMBRANCE OF ANY KIND
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UPON ALL OR ANY PART OF THE PREMISES OR LESSEE'S LEASEHOLD INTEREST THEREIN, AND
ANY SUCH PURPORTED TRANSACTION SHALL BE VOID UNLESS LESSOR SHALL FIRST CONSENT
IN WRITING TO EACH SAID ENCUMBRANCE. As a condition precedent for Lessor
considering any such consent, which may be withheld by Lessor in its sole and
absolute discretion, Lessee shall submit to Lessor, not less than thirty (30)
days prior to the effective date of the proposed encumbrance (including a
hypothecation), all documents proposed to be used in connection therewith plus a
commitment for an endorsement to the Lessor's Owner's Title Policy,
affirmatively ensuring that if the proposed encumbrance is consented to by
Lessor and is subsequently an encumbrance on the Lessee's leasehold interest,
the interest of the Lessor in the Premises is not otherwise affected and
continues to be paramount to the interest of the Lessee and any party claiming
by, through or under Lessee. A further condition precedent is the obligation of
the Lessee to pay all fees, costs, charges and expenses incurred by Lessor in
connection with any proposed encumbrance (including reasonable attorneys' fees)
whether or not consent thereto is given.
C. This Lease at all time shall be subordinate to the lien of any
ground leases, mortgage, mortgages, trust deed or trust deeds now or hereafter
placed upon the Premises by Lessor, and Lessee covenants and agrees to execute
and deliver, upon demand, such further instruments subordinating this Lease to
the lien of any such ground lease, mortgage, mortgages or proposed mortgages, or
trustees under the trust deeds, upon the condition that Lessee shall have the
right to remain in possession of the Premises under the terms of this Lease,
notwithstanding any default in any such mortgage, mortgages, trust deed or trust
deeds, or after foreclosure thereof, so long as Lessee is not in default beyond
any applicable grace period under any of the covenants, conditions and
agreements contained in this Lease.
D. (i) If any mortgagee or trustee elects to have this Lease and
the interest of Lessee hereunder be superior to any such interest or right and
evidences of such election by notice given to Lessee, then this Lease and the
interest of Lessee hereunder shall be deemed superior to any such mortgage or
trust deed, whether this Lease was executed before or after such mortgage or
trust deed and in that event, such mortgagee or trustee shall have the same
rights with respect to this Lease as if it had been executed and delivered prior
to the execution and delivery of the mortgage or trust deed and has been
assigned to such mortgagee or trustee.
(ii) Lessee shall execute and deliver whatever instruments
may be required for such purposes, and in the event Lessee fails so to do
within ten (10) days after demand in writing, Lessee does hereby make,
constitute and irrevocably appoint Lessor as its attorney-in-fact and in its
name, place and stead so to do.
(iii) Lessee shall give written notice to any mortgage lender
having a recorded security instrument upon the Premises or any part thereof of
any breach or default by Lessor of any of its obligations under this Lease and
to give such mortgage lender at least 60 days beyond any notice period to which
Lessor might be entitled to cure such default before Lessee may exercise any
remedy with respect thereto. Lessee shall provide Lessee's most recent audited
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financial statements upon request to Lessor or any mortgage lender and to
certify the continuing accuracy of such financial statements in such manner as
Lessor or such mortgage lender may request.
ARTICLE XX
ESTOPPEL CERTIFICATE
At any time, and from time to time, Lessee and Lessor agree to promptly,
and in no event later than fifteen (15) days after a request in writing from the
other, to execute, acknowledge and deliver to the party so requesting a
statement in writing, certifying that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that the same is in full force
and effect as modified and stating the modifications) and the dates to which the
rental and other charges have been paid and such other information and/or
confirmation as Lessor or Lessee may reasonably request.
ARTICLE XXI
ASSIGNMENT AND SUBLETTING
A. Lessor shall have the right to sell or convey the Premises subject to
this Lease or to assign the right, title and interest as Lessor under this
Lease, in whole or in part. In the event of any such sale or assignment other
than a security assignment, Lessor shall be relieved, from and after the date of
such transfer or conveyance, of liability for the performance of any obligation
of Lessor contained herein, except for obligations or liabilities accrued prior
to such assignment or sale.
B. Lessee acknowledges that as an inducement to enter into this Lease,
Lessor has relied both on the business experience and creditworthiness of Lessee
and the particular purpose for which Lessee intends to use the Premises,
therefore, Lessee shall not assign, this Lease or any interest therein, or
sublet all or any part of the Premises, without the prior written consent of
Lessor. Lessor may withhold or condition such consent upon such matters as
Lessor may, in its sole discretion, determine, including, without limitation,
the following criteria: experience and creditworthiness of the assignee; the
assumption by the assignee of all of Lessee's obligations hereunder by
undertakings enforceable by Lessor; the transfer to such assignee of all
necessary licenses to continue operating the Premises for the purposes herein
provided; receipt of such representations and warranties from such assignee as
Lessor may request, including such matters as its organization, existence, good
standing and finances and other matters, whether or not similar in kind; whether
or not Lessee seeks to assign any or all Leases of the Counterpart Leases to the
same proposed Assignee, and the payment by the Lessee of all fees, costs,
charges and expenses
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incurred by Lessor in connection with any proposed assignment or subletting,
including reasonably attorneys' fees, whether or not consent to such requested
assignment or subletting is given. If consent is given to an assignment (but not
a sublease), an amendment to the Lease shall be entered into whereby the Base
Annual Rental shall be increased, as of the date the assignment is to become
effective to an amount equal to 125% of the then-current Base Annual Rental,
due and payable from the assignee.
C. No such assignment or subletting shall relieve the original Lessee or
any prior assignee of their obligations under this Lease; provided, however, if
such proposed assignee has a net worth, business reputation, and operating
experience reasonably acceptable to Lessor, said successor properly assumes this
Lease, and Lessee is not in default hereunder, then Lessor shall release Lessee
hereunder upon proper documentation. Lessee shall be required to pay all costs
incurred by Lessor in considering such assignment and release prior to Lessor
consenting hereunder. Lessor's consent to an assignment, or to a release of
Lessee, shall not require Lessor to similarly consent for any future assignments
or requests for release of Lessee.
D. Lessor consents to those leases listed on Exhibit C ("Subleases") which
currently affect the Premises, subject to the effective subordination of the
Subleases to this Lease.
ARTICLE XXII
OPTION TO RENEW
A. Lessee (provided there is no Default at the time of exercise or at the
expiration of the Lease Term or, if applicable, the then-current extension of
the Lease Term) shall have the option to continue this Lease in effect for three
additional independent periods, the first for ten Lease Years and the final two
for five Lease Years each ("Extension Period").
B. In the event the option to renew is exercised, then during said
Extension Period, all terms, conditions, covenants, representations, warranties
and obligations herein contained shall remain in full force and effect,
provided, however, if Lessee shall have exercised its third Extension Period,
there shall be no further right to so renew, and provided that Base Annual
Rental shall adjust pursuant to Paragraph D below.
C. Lessee shall exercise such renewal option by giving written notice to
Lessor of such exercise not more than two hundred seventy (270) days nor less
than two hundred ten (210) days prior to the expiration of the Lease Term, or if
applicable, the then-current extension of the Lease Term.
D. Base Annual Rent for any extended term will be at the greater of Market
Rent or the scheduled rent shown for such Extension Period on Schedule 1
attached. For purposes of this Lease, Market Rental shall mean the rent agreed
upon by Lessor and Lessee, or if they are unable
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to reach agreement within fifteen (15) days from the date Lessee elects the
Extension Period ("Agreement Period"), then the rent determined as fair rental
value by an MAI appraiser with at least five (5) years experience in appraising
commercial rental real estate of similar type in the general geographic area of
the Premises, which appraiser has been agreed upon by Lessor and Lessee, and who
has been instructed to determine a fair rental value for the Premises as used
for its highest and best use, and not necessarily that of a financial
institution. If Lessor and Lessee cannot jointly agree upon on an appraiser
within fifteen (15) days of the expiration of the Agreement Period ("Joint
Appointment Period"), then each of Lessee and Lessor shall select an independent
MAI appraiser meeting the aforesaid criteria within fifteen (15) days of the
expiration of the Joint Appointment Period ("Selection Period") and those two
appraiser shall select a third appraiser within fifteen (15) days of the
expiration of the Selection Period, and each of the three appraisers shall
render an appraisal of market rent for the Premises within thirty (30) days of
the Selection Period. The average rental of the two appraisers closest in amount
to each other shall be the Market Rent. Should Lessor or Lessee fail to timely
select an appraiser, the appraisal of the solely selected appraiser shall
control. Lessor and Lessee shall pay the costs of their selected appraiser, and
evenly divide any pay for the cost of any third appraiser or jointly approved
appraiser.
ARTICLE XXIII
HAZARDOUS MATERIALS SITE INVESTIGATION
Lessee shall, at its sole cost and expense, cause a party reasonably
acceptable to Lessor to conduct a Level 1 Hazardous Materials Site Investigation
(Level 1 Audit), as often as is required by the Environmental Protection Agency
or other governmental or regulatory body with authority to so request, or as
reasonably requested by Lessor, which Level 1 Audit shall complete at least the
following tasks at the Premises:.
(i) Review available materials that could indicate potential
environmental impairment. Such materials should include topographic maps, air
photos, boring logs and other references.
(ii) Conduct a physical site examination to include an inspection for
unusual land colorations, odors, and physical irregularities as well as
underground or above-ground tanks, and an evaluation of current land use.
Neighboring land owners are to be contacted to determine actual historical site
use.
(iii) Contact local and state health and environmental agencies to
determine if any hazardous materials incidents have occurred in the area,
including recorded or known landfill sites, or the occurrence of any hazardous
material event (spill, storage, discharge, etc.).
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(ix) Adjacent properties are to be surveyed for current land use
conditions that may adversely affect the subject property including, underground
or above-ground storage tanks, manufacturing sites, landfills, etc.
(v) A summary report will be prepared to the Lessor, indicating the
contacts made, data findings, photographs, and other pertinent information and
recommendations for a detailed (Level 2) site investigation if significant
evidence exists that hazardous substances may have been released at or in close
proximity to any of the Sites. If a Level 2 site investigation is recommended,
Lessee shall perform that investigation and shall perform all clean up
activities recommended therein as soon thereafter as reasonable.
ARTICLE XXIV
NOTICES
All notices, demands, requests, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this Lease shall
be in writing and shall be deemed to have been properly given if sent by either
(i) registered or certified mail, postage prepaid; (ii) by a recognized national
overnight courier service (e.g. Federal Express) with instructions and payment
for next business day delivery; (iii) by personal delivery; or (iv) confirmed
facsimile transmission to the parties at the addresses hereinafter set forth
and/or to such other address as either party may give notice pursuant to this
section from time-to-time. All notices shall be deemed received and effective on
the first to occur of the following: (i) delivery; (ii) refusal of deliver; or
(iii) the third business day after posting or delivery to the courier service;
or (iv) receipt of confirmed facsimile transmission.
If to Lessor: Stuart Whitman, Inc.
749 San Ysidro Rd.
Montecito, CA 93108
Attn: Stuart Whitman, President
With copy to: The Bicek Group
1413 Sherman Road
Suite 40
Romeoville, Illinois 60446
Attn: Robert Bicek
and to: Jeffrey J. Stahl, Esq.
Stahl Brashler LLC
20 East Jackson Blvd.
Suite 1600
Chicago, Illinois 60604
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If to Lessee: Argo Bancorp, Inc.
7600 West 63rd Street
Summit, Illinois 60501
Attn: John G. Yedinak, Chairman
with copy to: James Kemp, Esq.
Kemp, Grzelakowski & Loremzini, Ltd.
1900 Spring St.
Suite 500
Oak Brook, IL 60523
(630) 571-7711
(630) 571-7755
ARTICLE XXV
HOLDING OVER
If Lessee remains in possession of the Premises after the expiration of the
Lease Term, Lessee may be deemed a tenant on a month-to-month basis and shall
continue to pay rentals and other sums at the rate of 200% of the amounts
herein provided and to comply with all of the terms of this Lease; provided that
nothing herein nor the acceptance of Rent by Lessor shall be deemed a consent to
such holding over.
ARTICLE XXVI
LESSOR'S LIEN
Lessor shall have a landlord's lien upon all furnishings, fixtures,
equipment, decorations, supplies, accessories and other personal property which
Lessee owns or in which it has an interest located on the Premises, to secure
the payment of all Rent and the performance of all other obligations of Lessee
under this Lease; provided however, Lessor, upon request of Lessee, shall
subordinate this interest upon and subject to such terms and conditions as
Lessor may, from time-to-time, reasonably determine.
ARTICLE XXVII
REMOVAL OF LESSEE'S PROPERTY
At the expiration or sooner termination of the Lease Term if Lessee is not
then in Default hereof, Lessee may and shall remove from the Premises all
personal property belonging to Lessee.
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Lessee shall repair any damage caused by such removal and shall leave the
Premises (including all buildings thereon) broom clean and in good condition and
repair.
ARTICLE XXVIII
FINANCIAL STATEMENTS
Within ninety (90) days after the end of each fiscal year of Lessee, Lessee
shall deliver to Lessor (i) complete financial statements of Lessee including a
balance sheet, profit and loss statement, statement of changes in financial
condition and all other related schedules for the fiscal period then ended; and
(ii) income statements for the business at the Premises showing profits and
losses for the fiscal period then ended. All such financial statements shall be
prepared in accordance with generally accepted accounting principles,
consistently applied from period to period, and shall be audited by an
independent Certified Public Accountant reasonably acceptable to Lessor. In the
event that Lessee's property and business at the Premises is ordinarily
consolidated with other business for financial statement purposes, such
financial statements shall be prepared on a consolidated basis showing
separately the profits and losses, assets and liabilities pertaining to the
Premises with the basis for allocation of overhead of other charges being
clearly set forth.
ARTICLE XXIX
LESSOR'S LIABILITY
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed (such agreement being a primary consideration
for the execution of this Lease by Lessor) that there shall be absolutely no
personal liability on the part of Lessor or any partner, shareholder, officer,
director or employee of Lessor, or their successors or assigns with respect to
any of the terms, covenants and conditions of this Lease, and that Lessee shall
look solely to the interest of the Lessor for the satisfaction of each and every
remedy of the Lessee in the Premises and no other property, interest or assets
of the Lessor whatsoever in the event of any breach by Lessor of any of the
terms, covenants and conditions of this Lease to be performed by Lessor, such
exculpation of liability to be absolute and without any exception whatsoever.
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ARTICLE XXX
CONSENT OF LESSOR
Lessor shall have no liability for damages resulting from Lessor's failure
to give any consent, approval or instruction reserved to Lessor, Lessee's sole
remedy in any such event being an action for injunctive relief.
ARTICLE XXXI
WAIVER AND AMENDMENT
No provision of this Lease shall be deemed waived or amended except by a
written instrument unambiguously setting forth the matter waived or amended and
signed by the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same or any
other matter on any future occasion.
ARTICLE XXXII
JOINT VENTURE
None of the agreements contained herein, is intended, nor shall the same be
deemed or construed, to create a partnership between Lessor and Lessee, to make
them joint venturers, nor to make Lessor in any way responsible for the debts or
losses or Lessee.
ARTICLE XXXIII
CAPTIONS
Captions are used throughout this Lease for convenience of reference only
and shall not be considered in any manner in the construction or interpretation
hereof.
ARTICLE XXXIV
SEVERABILITY
The provisions of this Lease shall be deemed severable. If any part of this
Lease shall be held unenforceable by any court of competent jurisdiction, the
remainder shall remain in full force
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and effect, and such unenforceable provision shall be reformed by such court so
as to give maximum legal effect to the intention of the parties as expressed
herein.
ARTICLE XXXV
CONSTRUCTION GENERALLY
This is a long-term commercial lease between entrepreneurs which has been
entered into by both parties in reliance upon the economic and legal bargains
contained herein. This Lease shall be interpreted and construed in a fair and
impartial manner without regard to such factors as the party which prepared the
instrument, the relative bargaining powers of the parties or the domicile of any
party. Time is of the essence in the performance of obligations and exercise of
any options herein contained.
ARTICLE XXXVI
OTHER DOCUMENTS
Each of the parties agrees to sign such other and further documents as may
be appropriate to carry out the intentions expressed in this Lease.
ARTICLE XXXVII
ATTORNEYS' FEES
In the event of any judicial or other adversarial proceeding between the
parties concerning this Lease, to the extent permitted by law, the prevailing
party shall be entitled to recover all of its reasonable attorneys' fees and
other costs in addition to any other relief to which it may be entitled.
ARTICLE XXXVIII
ENTIRE AGREEMENT AND INCORPORATION
This Lease, and any other instruments or agreements referred to herein,
constitute the entire agreement between the parties with respect to the subject
matter hereof, and there are no other representations, warranties or agreements
except as herein provided. Each and every of the recitals set forth on Page 1
are hereby incorporated as if fully re-written.
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ARTICLE XXXIX
COUNTERPARTS
This Lease may be executed in one or more counterparts, each of which shall
be deemed an original.
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease as of
the year and day first above written.
LESSOR:
STUART WHITMAN, INC.,
A CALIFORNIA CORPORATION
BY: /s/ Stuart Whitman
------------------------------------
Its: President
-------------------------------
LESSEE:
ARGO FEDERAL SAVINGS BANK, F.S.B.,
A FEDERAL SAVINGS BANK
BY: /s/ John G. Yedinak
------------------------------------
Its:
-------------------------------
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SCHEDULE 1
- --------------------------------------------------------------------------------
BASE ANNUAL RENTAL
- --------------------------------------------------------------------------------
FOR 8267 S. ROBERTS RD., BRIDGEVIEW, ILLINOIS
- --------------------------------------------------------------------------------
Assumes a June 1, 1999 Closing
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ORIGINAL LEASE TERM 170 MONTHS
================================================================================
PERIODS MONTHLY
- --------------------------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN Rent
================================================================================
Closing thru 12/31/1999 $ 8,771.66
- --------------------------------------------------------------------------------
1/1/2000 thru 12/31/2000 $ 8,859.38
- --------------------------------------------------------------------------------
1/1/2001 thru 12/31/2001 $ 8,947.97
- --------------------------------------------------------------------------------
1/1/2002 thru 12/31/2002 $ 9,037.45
- --------------------------------------------------------------------------------
1/1/2003 thru 12/31/2003 $ 9,127.82
- --------------------------------------------------------------------------------
1/1/2004 thru 12/31/2004 $ 9,219.10
- --------------------------------------------------------------------------------
1/1/2005 thru 12/31/2005 $ 9,311.29
- --------------------------------------------------------------------------------
1/1/2006 thru 12/31/2006 $ 9,404.41
- --------------------------------------------------------------------------------
1/1/2007 thru 12/31/2007 $ 9,498.45
- --------------------------------------------------------------------------------
1/1/2008 thru 12/31/2008 $ 9,593.44
- --------------------------------------------------------------------------------
1/1/2009 thru 12/31/2009 $ 9,689.37
- --------------------------------------------------------------------------------
1/1/2010 thru 12/31/2010 $ 9,786.26
- --------------------------------------------------------------------------------
1/1/2011 thru 12/31/2011 $ 9,884.13
- --------------------------------------------------------------------------------
1/1/2012 thru 12/31/2012 $ 9,982.97
- --------------------------------------------------------------------------------
1/1/2013 thru 07/31/2013 $10,082.80
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1ST OPTION TO RENEW (10 YEARS)
================================================================================
PERIODS MONTHLY
- --------------------------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN Rent
================================================================================
8/1/2014 thru 7/31/2014 $13,267.92
- --------------------------------------------------------------------------------
8/1/2015 thru 7/31/2015 $13,665.96
- --------------------------------------------------------------------------------
8/1/2016 thru 7/31/2016 $14,075.94
- --------------------------------------------------------------------------------
8/1/2017 thru 7/31/2017 $14,498.22
- --------------------------------------------------------------------------------
8/1/2018 thru 7/31/2018 $14,933.16
- --------------------------------------------------------------------------------
8/1/2019 thru 7/31/2019 $15,381.16
- --------------------------------------------------------------------------------
8/1/2020 thru 7/31/2020 $15,842.59
- --------------------------------------------------------------------------------
8/1/2021 thru 7/31/2021 $16,317.87
- --------------------------------------------------------------------------------
8/1/2022 thru 7/31/2022 $16,807.41
- --------------------------------------------------------------------------------
8/1/2023 thru 7/31/2023 $17,311.63
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2ND OPTION TO RENEW (6 YEARS)
================================================================================
PERIODS MONTHLY
- --------------------------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN Rent
================================================================================
8/1/2024 thru 7/31/2024 $17,830.98
- --------------------------------------------------------------------------------
8/1/2025 thru 7/31/2025 $18,365.91
- --------------------------------------------------------------------------------
8/1/2026 thru 7/31/2026 $18,916.89
- --------------------------------------------------------------------------------
8/1/2027 thru 7/31/2027 $19,484.39
- --------------------------------------------------------------------------------
8/1/2028 thru 7/31/2028 $20,068.92
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
3RD OPTION TO RENEW (5 YEARS)
================================================================================
PERIODS MONTHLY
- --------------------------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN Rent
================================================================================
8/1/2029 thru 7/31/2029 $20,670.99
- --------------------------------------------------------------------------------
8/1/2030 thru 7/31/2030 $21,291.12
- --------------------------------------------------------------------------------
8/1/2031 thru 7/31/2031 $21,929.85
- --------------------------------------------------------------------------------
8/1/2032 thru 7/31/2032 $22,587.75
- --------------------------------------------------------------------------------
8/1/2033 thru 7/31/2033 $23,265.38
- --------------------------------------------------------------------------------
142
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
LOT 2 IN INVESTOR'S RESUBDIVISION OF PART OF THE SOUTH 1/2 0F THE SOUTH 1/8 OF
THE SOUTHWEST 1/4 OF THE NORTHWEST 1/4 OF SECTION 36, TOWNSHIP 38, RANGE 12,
EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
143
EXHIBIT B
COUNTERPART LEASES
1. Lease between Lessor and Lessee of even date herewith for property located
at:
5818 South Archer, Summit, Illinois
7600 West 63rd Street, Summit, Illinois
2154 West Madison, Chicago, Illinois
14076 Lincoln, Dolton, Illinois
144
EXHIBIT C
SUBLEASES
NONE
145
ABSOLUTE NET LEASE
THIS LEASE made as of June 29, 1999, by and between Stuart Whitman, Inc.,
or its assigns ("Lessor"), whose address is 9220 Sunset Boulevard, Suite 206,
Los Angeles, CA 90069, and Argo Savings and Loan Association, all subsidiaries,
parents, and affiliates ("Lessee"), whose address is 7600 West 63rd Street,
Summit, Illinois 60501.
WITNESSETH:
WHEREAS, pursuant to that certain Agreement of Purchase and Sale dated June
10, 1999 (the "Agreement") Lessee as Seller, sold to Lessor, as Purchaser, the
Premises, as that term is hereinafter defined; and
WHEREAS, Lessee acknowledges that, prior to the date hereof, it has been in
full and complete possession of the Premises and is fully aware of the condition
of the Premises and all portions thereof, and that this demise is on a strictly
"AS IS" basis with no representations, warranties, covenants or agreements as to
the condition or state of said Premises or any portion thereof being made by the
Lessor.
NOW, THEREFORE, Lessor and Lessee hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the following meanings for all purposes of
this Lease:
"Additional Rental" means all Payment obligations of Lessee hereunder
other than Base Rental.
"Base Annual Rental" means $121,728.00, as adjusted pursuant to the terms
herein.
"Base Monthly Rental" means an amount equal to 1/12 of the Base Annual
Rental, subject to the Rent Adjustment as set forth below.
"Default Rate" means an amount of interest equal to the lesser of the
highest permitted annual interest rate Lessor may charge Lessee or 5% per month.
"Lease Term" means the period described in Article III.
146
"Lease Year" shall be defined as a period of twelve (12) consecutive
calendar months; however, the first Lease Year shall commence on the date hereof
and expire December 31, 1999.
"Lessee" shall mean Lessee and its permitted successors and assigns.
"Premises" means the real property, together with all buildings, structures
and site improvements located thereon, at 14076 Lincoln, Dolton, Illinois, and
more particularly described in Exhibit A attached hereto and incorporated herein
and all rights, easements and interests appurtenant thereto, including, but not
limited to, any streets or public ways adjacent to the Premises and any water
and mineral rights, to the extent that the same have been conveyed to Lessor by
Lessee pursuant to the terms of the Agreement.
"Rent" means the aggregate of all sums becoming due and payable under this
Lease from the Lessee whether as Base Monthly Rental, Base Annual Rental,
Additional Rental, or otherwise.
ARTICLE II
DEMISE OF PREMISES
In consideration of the rentals and other sums to be paid by Lessee and of
the other terms, covenants and conditions on Lessee's part to be kept and
performed, Lessor hereby leases to Lessee, and Lessee hereby takes and hires,
from Lessor the Premises.
ARTICLE III
LEASE TERM
The Lease Term shall (i) be for one hundred seventy (170) months; (ii)
commence as of the first day of the calendar month following the date hereof
("Commencement Date"); and (iii) expire on the expiration of one hundred seventy
(170) months thereafter, unless sooner terminated or extended as provided in
this Lease.
ARTICLE IV
BASE RENTAL
Lessee agrees to pay to Lessor, or to such other person or entity as Lessor
may from time-to-time direct, without demand, deduction, set-off or abatement at
such place as Lessor, by notice in writing to Lessee from time to time may
direct, at the following rates and times:
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147
See Schedule I Attached Hereto
Base Annual Rental monthly in advance in equal monthly installments
(i.e. Base Monthly Rental) on the first day of each calendar month of the Lease
Term. One-thirtieth (1/30th) of each monthly payment shall be due and payable
for each day of any portion of a month less than a fall month, and shall be
payable on the first day of such partial month. The monthly rental for the month
or portion thereof prior to the Commencement Date beginning from the date of the
fall execution hereof shall be one-thirtieth (1/30th) of the Base Monthly Rental
times the number of days remaining in the month. The Base Monthly Rental for any
period less than a full Lease Year following the fourteenth annual anniversary
of the commencement date shall be the same as the Base Monthly Rental assessed
in the fourteenth Lease Year. If requested by Lessor, Lessee shall establish
arrangements whereby each payment of Base Monthly Rental is transferred by wire
or other means of transfer directly to Lessor's account as designated from
time-to-time by Lessor on or before the first business day of each month during
the Lease Term. At Landlord's request Tenant shall provide Landlord with a
single payment of Monthly Rental due hereunder aggregated with those due under
the Counterpart Leases, as hereinafter defined.
(b) The Base Annual Rental during the Lease Term, or during any Extension
Period, shall increase as set forth on Schedule 1 attached hereto and
incorporated herein by this reference.
ARTICLE V
RENTAL TO BE NET TO LESSOR
Lessee recognizes and acknowledges, without limiting the generality of any
other term or provision of this Lease, that it is the intent of the parties
hereto that the Base Annual Rental to be paid by Lessee to Lessor shall be
absolutely net to Lessor; and any and all charges, assessments, impositions and
expenses pertaining to or levied against the Premises and any and all portions
thereof, including, without limiting the generality of the foregoing, any and
all taxes, assessments, general or special, water rates, license fees, fuel
costs, steam costs, insurance premiums, utility bills, costs of repair,
maintenance (structural or otherwise), operation and restoration of the Premises
(including all improvements now or hereafter made thereon and any and every part
thereof), shall be included as Additional Rent hereunder, and be the sole and
absolute obligations of and paid by Lessee as Lessee's sole and exclusive cost
and expense, all as herein and elsewhere more particularly set forth.
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148
ARTICLE VI
TAXES AND ASSESSMENTS
A. Lessee shall pay, as the same become due and prior to delinquency, all
taxes and assessments which may be levied, assessed, imposed, or become liens on
the Premises or which arose out of the use or occupancy of the Premises,
including, without limitation, the following (the "Taxes"):
(a) All taxes and assessments upon the Premises or any part thereof or the
Rent therefrom, or any personal property, equipment, trade fixtures or
improvements located in or on the Premises, whether belonging to Lessor or
Lessee, which are owing at the commencement of this Lease or shall be assessed
or become due during the Lease Term or any tax or charge levied (whether in
whole or in part) in lieu of and/or in addition to such taxes and assessments;
(b) All taxes, charges, license fees or similar fees imposed by reason of
the tenancy, use or occupancy of the Premises by Lessee; and
(c) All excise, transaction, privilege, license, sales, use and other taxes
upon the rental or other payments hereunder, the leasehold estate of either
party hereto or the activities of either party pursuant to this Lease, except
for any tax upon or measured by the income and profits of Lessor.
B. Lessee shall have the right to contest, in good faith and with due
diligence, the validity or amount of any Taxes levied or assessed against the
Premises by appropriate legal proceedings which shall have the effect of
preventing the collection of the Taxes so contested; provided that:
(a) At least ten (10) days prior to the last day allowed by law for payment
of such Taxes, Lessee shall notify Lessor of Lessee's intention to contest said
Taxes;
(b) To the extent Lessee has not deposited amounts sufficient to assure
payment of Taxes, costs, interest and penalties, Lessee shall furnish to Lessor
such security as Lessor or its mortgagee may require to assure payment of all
Taxes and any costs, interest and penalties which may be or become payable in
the event and to the extent that such contest shall be unsuccessful;
(c) Such proceedings shall not endanger Lessor's interest in the Premises;
and
(d) Whether such proceedings are brought in the name of Lessee or Lessor,
Lessee shall indemnify and hold harmless the Lessor from any liability for the
payment of any costs or expenses in connection therewith.
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149
ARTICLE VII
UTILITIES
Lessee shall contract, in its own name, for and pay when due, all charges
in connection or use of water, gas, electricity, telephone, garbage collection,
sewer use and other utility services supplied to the Premises during the Lease
Term. Under no circumstances shall Lessor be responsible or liable for any
interruption, termination or the lack or quality of any utility service.
ARTICLE VIII
INSURANCE
Lessee shall maintain, at its sole cost and expense, the following types
and amounts of insurance insuring Lessee, and naming as additional insureds
Lessor, and the holder(s) of any mortgage or deed of trust encumbering the
Premises (which insurance may be included under a blanket insurance policy if
all the other terms hereof are satisfied), in addition to such other insurance
as Lessor may from time-to-time reasonably require:
(a) Insurance against loss, damage or destruction by fire and other
casualty, including theft, vandalism and malicious mischief, flood (if the
Premises are in a flood hazard area), earthquake (if the Premises are in an area
subject to destructive earthquake within recorded history), boiler explosion (if
there is any boiler upon the Premises), sprinkler damage (if the Premises have a
sprinkler system), all matters covered by a standard extended coverage
endorsement and such other risks as Lessor may reasonably require, insuring the
Premises, and all improvements thereon for not less than 100% of their full
replacement cost for the Premises and all other premises leased under the
Counterpart Leases. Any insurance policy or policies shall designate Lessor and
Lessee as the named insureds as their interest may appear and shall be payable
as set forth in Article XVII.
(b) Comprehensive public liability and property damage insurance, including
a products liability clause, against bodily injury liability, property damage
liability and automobile bodily injury and property damage liability, including,
without limitation, any liability arising out of the ownership, maintenance,
repair, condition or operation of the Premises or adjoining ways, streets or
sidewalks. Such insurance policy or policies shall contain a "waiver of
subrogation" clause or endorsement which precludes the insurer from denying the
claim of either Lessee or Lessor because of the negligence or other acts of the
other, shall be in amounts of not less than $2,500,000 per injury and occurrence
and not less than $5,000,000 in the aggregate, with respect to any insured
liability, whether for personal injury or property damage, or such higher limits
as Lessor may reasonably require from time to time, and shall be of form and
substance satisfactory to Lessor.
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(c) Worker's compensation, employer's liability and such other insurance
as may be necessary to comply with applicable laws.
(d) Loss of rents or business interruption insurance in the amount of at
least one and one-half times the Base Annual Rental.
The form of each policy of insurance shall:
(i) Provide for a waiver of subrogation by the insurer as to
claims against Lessor, its partners (limited and general) employees, directors,
officers and agents;
(ii) Provide that such insurance cannot be canceled, invalidated
or suspended on account of the conduct of Lessor, its officers, directors,
employees, agents and any other party acting by, through or under Lessor;
(iii) Contain a standard (i.e. without contribution) mortgage
clause endorsement in favor of the holder(s) of any mortgage or deed of trust
covering the Premises if designated by Lessor;
(iv) Provide that the policy of insurance shall not be terminated
without not less than 30 days' prior written notice to Lessor and to any lender
covered by any standard mortgage clause endorsement;
(v) Provide that the insurer shall not have the option to restore
the Premises if Lessor elects to terminate this Lease in accordance with the
terms hereof; and
(e) All of Lessee's insurance shall be issued by insurance companies
having a rating in Best's Insurance Guide of Class VI or better, and acceptable
to Lessor and its lender with a deductible of no more than $5,000 and acceptable
to Lessor's lender.
(f) Lessee shall provide to Lessor and any lender designated by
Lessor, certificates of insurance or copies of insurance policies evidencing
that insurance satisfying the requirements of this Lease is in effect at all
times.
In addition, Lessee shall carry insurance of a type and in amounts typical
of similarly sized savings and loan associations addressing operations of a
financial institution.
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ARTICLE IX
TAXES AND INSURANCE IMPOUND
For so long as Landlord's lender shall require a deposit of taxes,
assessments, or insurance premiums, or at any other time as Tenant shall fail to
timely pay any of the foregoing, in addition to Landlord's other rights and
remedies hereunder, Lessee shall pay to Lessor such sums as Lessor reasonably
determines which will provide an impound account (which shall not be deemed a
trust fund) for paying up to the next one year of taxes, assessments and
insurance premiums. Lessor will estimate the amounts needed for such purposes
and will notify Lessee to pay the same to Lessor in equal monthly installments,
as nearly as practicable, in addition to all other sums due under this Lease.
Should additional funds be required at any time, Lessee shall pay the same to
Lessor on demand. Interest or other gains from such funds, if any, shall remain
in the impound account and either applied to the amounts to be paid for taxes,
assessments, or insurance premiums or, if not needed for that purpose, will
reduce the monthly impound amount for the following year. In the event of any
Default (as that term is defined in Article XVIII), Lessor may apply all such
funds against any sums due from Lessee to Lessor. Lessor shall give to Lessee an
annual accounting showing all credits and debits to and from such impound funds
received from Lessee.
ARTICLE X
YEAR 2000 REPRESENTATION
Lessee represents to Lessor that it has reviewed the areas within its
business and operations which could be adversely affected by, and has developed
or is developing a program to address on a timely basis, the "Year 2000 Problem"
(that is, the risk that computer applications used by Lessee may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date on or after December 31, 1999), and has made related
appropriate inquiry of material suppliers and vendors. Based on such review and
program, Lessee believes that the "Year 2000 Problem" will not have a material
adverse effect on Lessee or its operation of the Premises. From time to time, at
the request of the Lessor, Lessee shall provide to the Lessor such updated
information or documentation is requested regarding the status of its efforts to
address the Year 2000 Problem.
ARTICLE XI
USE
Lessee shall use the Premises solely for the operation of a federally
insured financial institution and the operations by wholly owned subsidiary
companies thereof of incidental uses
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traditionally attendant to financial institutions, savings and loan operating
under the trade name and business style of Argo Federal Savings and for no other
use without Lessor's prior written consent, which consent will not be
unreasonably withheld. Lessor may consider the following, in addition to and not
in limitations of other criteria, in determining whether to grant its consent to
a change in use without being deemed to be unreasonable: (a) whether the
proposed Rent to be paid to Lessor is reasonable considering the converted use
of the Premises and the customary rental prevailing in the community for such
use; (b) whether the converted use will be consistent with the highest and best
use of the Premises in the discretion of Lessor reasonably exercised; and (c)
whether the converted use will increase Lessor's risks or decrease the residual
value of the Premises.
ARTICLE XII
COMPLIANCE WITH LAWS
A. Lessee's use and occupation of the Premises shall not be in violation of
any governmental requirement, law, ordinance, statute, ruling or the like
applicable to the Lessee, the Premises or the use thereof, including without
limitation, the Americans with Disabilities Act and any local, state, or federal
environmental requirement, law, ordinance, statute or ruling related to
Hazardous Substances (as hereinafter defined). Lessee shall, at Lessee's sole
cost and expense, also comply with all applicable directions, rules and
regulations of the fire marshall, health officers, building inspector or other
proper officers of any governmental agency having jurisdiction.
B. Lessee shall not create, store or release or allow the creation, storage
or release of any Hazardous Substances on the Premises, and if the use of the
Premises shall be changed in accordance with the provisions of this Lease,
Lessee shall not create, store or release or allow the creation, storage or
release of any additional Hazardous Substances on the Premises without the prior
consent of Lessor, such consent not to be unreasonably withheld or delayed.
"Hazardous Substances" shall mean: Any substance or material on the Premises
defined or designated as hazardous or toxic waste, hazardous or toxic materials,
a hazardous or toxic substance, or other similar term by any federal, state or
local environmental statute, regulation or ordinance presently in effect.
C. In addition to all other provisions of this Lease regarding
indemnification and holding Lessor harmless, Lessee agrees to indemnify and hold
Lessor and the holder(s) of any mortgage or deed of trust encumbering the
Premises harmless from and against any and all claims, demands, damages, losses,
liens, liabilities, penalties, fines, lawsuits and other proceedings, costs and
expenses (including, without limitation, reasonable attorneys' fees) arising
directly or indirectly from, out of, or in any way connected with (i) the
presence of any Hazardous Substances
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on or off the Premises or any portion thereof; (ii) any violation of any local,
state or federal environmental law, regulation, ordinance or administrative or
judicial order relating to Hazardous Substances, attributable to events
occurring before or after the Commencement Date.
ARTICLE XIII
MAINTENANCE
A. Lessee hereby accepts the Premises "AS IS," with no representation or
warranty of Lessor as to the condition thereof.
B. Lessee shall at all times, at its sole cost and expense, maintain,
repair and replace, as necessary, the Premises, including all portions of the
Premises, whether or not the Premises were in such condition upon the
commencement of this Lease.
C. Lessee shall maintain, the Premises as a first-class financial
institution and from time-to-time, do such renovation, restoration, refurbishing
and remodelling as shall be reasonably necessary to maintain the Premises in a
condition and style then current for similarly sized/located financial
institution. Lessee shall not permit maintenance obligations to be deferred.
D. Lessor shall have free access to the Premises from time to time to
confirm Lessee's compliance with the terms of this Article XIII and the balance
of the terms of this Lease.
ARTICLE XIV
ALTERATIONS
Lessee shall not commit actual or constructive waste upon the Premises, or
alter the exterior or structural elements or the interior of the Premises in any
manner without the prior written consent of Lessor. Any work at any time
commenced by Lessee on the Premises shall be prosecuted diligently to
completion, shall be of good workmanship and materials and shall comply fully
with all the terms of this Lease. Any addition to or alteration of the Premises
shall be deemed a part of the Premises and belong to Lessor at the expiration of
the Lease Term.
ARTICLE XV
INDEMNIFICATION
Lessee shall indemnify and hold harmless Lessor and Lessor's general and
limited partners, officers, employees, lender(s) and agents, from and against
any and all claims, demands, causes
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of action, suits, proceedings, liabilities, damages, losses, costs and expenses,
including attorneys' fees, caused by, incurred or resulting from its operation
of or relating in any manner to the Premises, whether relating to their original
design or construction, latent defects, alteration, maintenance, use by Lessee
or any person thereon, supervision or otherwise, or from any breach of, default
under or failure to perform any term or provision of this agreement by Lessee,
its officers, employees, agents or other persons. It is expressly understood
that Lessee's obligations under this Article shall survive the expiration or
earlier termination of this Lease.
ARTICLE XVI
QUIET ENJOYMENT
So long as Lessee shall pay rental and other sums herein provided and shall
keep and perform all of the terms, covenants and conditions on its part therein
contained, Lessor covenants that Lessee, subject to Lessor's rights herein,
shall have the right to the peaceful and quiet use and occupancy of the
Premises.
ARTICLE XVII
CONDEMNATION OR DESTRUCTION
(a) In case of a taking of all or any part of the Premises or the
commencement of any proceedings or negotiations which might result in a taking,
for any public or quasi-public purpose by any lawful power or authority by
exercise of the right of condemnation or eminent domain or by agreement between
Lessor, Lessee and those authorized to exercise such right ("Taking"), Lessee
will promptly give written notice thereof to Lessor, generally describing the
nature and extent of such Taking. Lessee may prosecute, if permissible under the
appropriate law of the jurisdiction, any award, compensation or damages
resulting from a Total Taking, as that term is hereinafter defined, to which it
is entitled but shall not have the right to Lessor's award, compensation or
damages.
(b) In case of a Taking of a whole of the Premises, other than for
temporary use ("Total Taking"), this Lease shall terminate as of the date of
such Total Taking and all Rent and other charges shall be apportioned and paid
to the date of such Total Taking. Total Taking shall include a taking of
substantially all the Premises if in the reasonable judgment of Lessor the
remainder of the Premises is not useable and/or cannot be made useable for the
purposes provided herein. Lessor shall be entitled to the entire award,
compensation, or damages whether such award is made as compensation for
dimunition in the value of the fee or leasehold, and Lessee hereby assigns to
Lessor all of Lessee's right, title and interest in and to any such award.
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(c) In case of a temporary use of the whole or any part of the
Premises by a Taking, this Lease shall remain in full force and effect, without
any reduction of rent or any other sums payable hereunder. Lessee shall be
entitled to the entire award for such Taking, whether paid by damages, rent or
otherwise, unless the period of occupation and use by the condemning authorities
shall extend beyond the date of expiration of the Lease, in which case the award
made for such Taking shall be apportioned between Lessor and Lessee as of the
date of expiration. At the termination of any such use or occupation of the
Premises, Lessee will, at its own cost and expense, promptly commence and
complete the restoration of the Premises. Lessee shall not be required to make
the restoration if the term of this Lease shall expire prior to, or within one
year after, the date of termination of the temporary use so taken, and in such
event, Lessor shall be entitled to recover all damages and awards arising out of
the failure of the condemning authority to repair and restore the building at
the expiration of such temporary taking.
(d) In the event of (i) a Taking of less than all of the Premises
other than a temporary use ("Partial Taking"); or (ii) of damage or destruction
to all or any part of the Premises, all awards, compensation or damages shall be
paid to Lessor, and Lessor shall have the option to terminate this Lease by
notifying Lessee in writing within 60 days after Lessee gives Lessor notice of
such damage or destruction or that title has vested in the taking authority.
Lessee shall thereupon have a period of 60 days in which to elect in writing to
continue this Lease on the terms herein provided. If Lessee does not elect to
continue this Lease or shall fail during such 60-day period to elect to continue
this Lease, then this Lease shall terminate as of the last day of the month
during which such period expired. Lessee shall then immediately vacate and
surrender the Premises, all obligations of either party hereunder shall cease as
of the date of termination and all such awards, compensation or damages shall be
paid to Lessor and Lessor shall be under no obligation make any payment
therefrom to Lessee. If Lessor does not elect to terminate this Lease, or if
Lessor so elects but Lessee elects to continue this Lease, then this Lease shall
continue on the following terms: Rental and other sums due under this Lease
shall continue unabated, and Lessee shall promptly commence and diligently
prosecute restoration of the Premises to the same condition, as nearly as
practicable, as prior to such partial condemnation, damage or destruction as
approved by Lessor in its sole discretion. Lessor shall promptly make available
in installments as restoration progresses an amount equal to any award,
compensation or damages received by Lessor, (or if stemming from an event prior
to the commencement of this Lease for which Lessor has an established
construction escrow, from the amount held in said escrow), upon written request
of Lessee accompanied by evidence reasonably satisfactory to Lessor that such
amount has been paid or is due and payable and is properly a part of such costs
and that there are no mechanics' or similar liens for labor and materials
theretofore supplied in connection with the restoration. Lessor shall be
entitled to keep any portion of such award, compensation or damages which may be
in excess of the cost of restoration, (unless the balance is from an existing
construction escrow, as set forth above), and Lessee shall bear all additional
costs, fees and expenses of such restoration in excess of the amount of any such
award, compensation or damages.
(e) Notwithstanding the foregoing, if at the time of any Taking or at
any time thereafter Lessee shall be in Default, such Default shall be
continuing, Lessor is hereby authorized
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and empowered, in its name or in Lessee's name, and on behalf of Lessee or
otherwise, to file and prosecute Lessee's claim, if any, for an award on account
of any Taking and to collect such award and apply the same, after deducting all
costs, fees and expenses incident to the collection thereof, to the curing of
such Default and any other then existing Default.
ARTICLE XVIII
DEFAULT AND REMEDIES
(a) Each of the following shall be deemed a breach of this Lease and
a default ("Default") by Lessee:
(i) If any material representation or warranty of Lessee herein
or the Seller in the Agreement was false when made, or in the event that any
such representation or warranty is continuing and becomes false at any time, or
if Lessee renders any false statement or account;
(ii) If any Rent due remains unpaid for five (5) days after the
due date thereof;
(iii) If Lessee becomes insolvent, makes a general assignment for
the benefit of creditors, seeks or consents to the appointment of a trustee or
liquidator, shall dissolve or liquidate all or a material portion of its assets,
performs any act of bankruptcy or is not generally paying its debts as the same
become due;
(iv) If Lessee fails to perform any of the covenants, conditions
or obligations of this Lease;
(v) If Lessee ceases to operate financial institution activities
at the Premises;
(vi) If there is a breach, default, termination or expiration
under any of those leases shown on Exhibit B attached hereto ("Counterpart
Leases").
(b) If any breach or default does not involve the payment of any
rental or other monetary sum, is not willful or intentional, does not place any
rights or property of Lessor in immediate jeopardy, is not known to Lessee
(unless Lessor has given Lessee notice thereof) and is within the reasonable
power of Lessee to cure within 20 days after notice thereof (all as determined
by Lessor in its reasonable discretion), then such event shall not constitute a
default hereunder, unless otherwise expressly provided herein, until Lessor
shall have given Lessee notice thereof and a period of twenty (20) days shall
have elapsed, during which period Lessee may correct or cure such event, upon
failure of which a Default shall be deemed to have occurred
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hereunder without further notice or demand of any kind. If any breach or default
cannot reasonably be cured with the 20-day period, as determined by Lessor in
its reasonable discretion, and Lessee is diligently pursuing a cure of such
breach or default, then Lessee shall, after receiving notice specified herein,
have a reasonable period as determined by the Lessor to cure such breach or
default.
(e) In the event of any breach or default, and without any notice,
except, if applicable, the notice required under certain circumstances by
paragraph (b) above or such other notice as may be required by law and cannot be
waived by Lessee (all other notices being hereby waived), Lessor shall be
entitled to exercise, at its option, concurrently, successively or in any
combination, all remedies available at law or in equity, including, without
limitation, any one or more of the following:
(i) To terminate this Lease;
(ii) To re-enter and take possession of the Premises or any part
thereof (which re-entry shall not operate to terminate this Lease unless Lessor
expressly so elects), of any or all personal property or fixtures of Lessee upon
the Premises, and of all franchises, licenses, permits and other rights or
privileges of Lessee pertaining to the use and operation of the Premises, if any
and if assignable;
(iii) To seize all personal property and fixtures upon the
Premises which Lessee owns or in which it has an interest, in which Lessor shall
have a landlord's lien and is hereby granted a security interest, and to dispose
thereof in accordance with laws prevailing at the time and place of such seizure
or to remove all or any portion of such property and cause the same to be stored
in a public warehouse or elsewhere at the cost of Lessee;
(iv) To relet the Premises or any part thereof for such term or
terms (including a term which extends beyond the original term of this Lease),
at such rentals and upon such other terms as Lessor, in its sole discretion, may
determine, with all proceeds received from such reletting being applied to the
rentals and other sums due from Lessee in such order as Lessor may, in its sole
discretion, determine, with Lessee remaining liable for any deficiency;
(v) To recover from Lessee an amount equal to the difference
between the rentals and such other sums (including all sums required to be paid
by Lessee, such as taxes and insurance) to be received from the date of such
Default to the expiration of the original term hereof and the reasonable long
term rental value of the Premises for the same period; and/or
(vi) To recover from Lessee all expenses, including attorneys'
fees, reasonably paid or incurred by Lessor as a result of such breach.
In addition, in the event of any Default by Lessee, Lessor may, but
shall not be obligated to, immediately or at any time thereafter, and without
notice, except as required herein,
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correct such Default for the account and at the expense of Lessee. Any sum or
sums so paid by Lessor, together with interest at the Default Rate and all costs
and damages, shall be deemed to be additional Rent hereunder and shall be
immediately due from Lessee to Lessor. If any Default or threatened Default by
Lessee of any of the agreements, terms, covenants, or conditions contained in
this Lease shall occur, Lessor shall be entitled to enjoin such Default or
threatened Default and shall have the right to invoke any right or remedy
allowed at law or in equity, or by statute or otherwise, as though re-entry
summary proceedings and other remedies were not provided for in this Lease.
ARTICLE XIX
MORTGAGE AND SUBORDINATION
A. Lessee shall keep the Premises free from any liens for work performed,
materials furnished or obligations incurred by Lessee. Lessee shall do all
things necessary to prevent the filing of any mechanic's or other liens against
the Premises or the interest of Lessor or any ground or underlying lessors
thereof, or the interest of any mortgagees or holders of any deeds of trust
covering any portion of the Premises by reason of any work, labor, services, or
materials performed or supplied or claimed to have been performed for or
supplied to Lessee or anyone holding the Premises, or any part thereof, by,
through or under Lessee. If any such lien shall at any time be filed, Lessee
shall either cause the same to be vacated and canceled of record within ten (10)
days after the date of filing thereof or, if Lessee in good faith determines
that such lien should be contested, Lessee shall furnish such security, by
surety bond or otherwise, as may be reasonably necessary or be prescribed by law
to release the same as a lien and to prevent any foreclosure of such lien during
the pendency of such contest. If Lessee shall fail to vacate or release such
lien in the manner and within the time period aforesaid, such failure shall be a
Default, and in addition to all other rights and remedies available to Lessor
resulting therefrom, Lessor may, but shall not be under any obligation to,
vacate or release said lien either by paying the amount claimed to be due, or by
procuring the release of such lien by giving security or in such other manner as
may be prescribed by law. Lessee shall reimburse Lessor, upon demand, all sums
disbursed or deposited by Lessor pursuant to the foregoing provisions of this
paragraph, including Lessor's costs and expenses and reasonable attorneys' fees
incurred in connection therewith, with interest thereon at the Default Rate.
However, nothing contained herein shall imply consent or be construed as an
agreement on the part of Lessor or any ground or underlying lessors, or
mortgagees, or holders of deeds of trust covering any portion of the Premises,
to subject their respective estates or interests to liability under any
mechanic's or other lien law, whether or not the performance or the furnishing
of such work, labor, services or materials to Lessee or anyone holding the
Premises, or any part thereof, through or under Lessee, shall have been
consented to by Lessor or any of such parties.
B. NOTICE IS HEREBY GIVEN THAT LESSEE IS NOT AUTHORIZED TO PLACE ANY LIEN,
MORTGAGE, DEED OF TRUST OR ENCUMBRANCE OF ANY KIND
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UPON ALL OR ANY PART OF THE PREMISES OR LESSEE'S LEASEHOLD INTEREST THEREIN, AND
ANY SUCH PURPORTED TRANSACTION SHALL BE VOID UNLESS LESSOR SHALL FIRST CONSENT
IN WRITING TO EACH SAID ENCUMBRANCE. As a condition precedent for Lessor
considering any such consent, which may be withheld by Lessor in its sole and
absolute discretion, Lessee shall submit to Lessor, not less than thirty (30)
days prior to the effective date of the proposed encumbrance (including a
hypothecation), all documents proposed to be used in connection therewith plus a
commitment for an endorsement to the Lessor's Owner's Title Policy,
affirmatively ensuring that if the proposed encumbrance is consented to by
Lessor and is subsequently an encumbrance on the Lessee's leasehold interest,
the interest of the Lessor in the Premises is not otherwise affected and
continues to be paramount to the interest of the Lessee and any party claiming
by, through or under Lessee. A further condition precedent is the obligation of
the Lessee to pay all fees, costs, charges and expenses incurred by Lessor in
connection with any proposed encumbrance (including reasonable attorneys' fees)
whether or not consent thereto is given.
C. This Lease at all time shall be subordinate to the lien of any ground
leases, mortgage, mortgages, trust deed or trust deeds now or hereafter placed
upon the Premises by Lessor, and Lessee covenants and agrees to execute and
deliver, upon demand, such further instruments subordinating this Lease to the
lien of any such ground lease, mortgage, mortgages or proposed mortgages, or
trustees under the trust deeds, upon the condition that Lessee shall have the
right to remain in possession of the Premises under the terms of this Lease,
notwithstanding any default in any such mortgage, mortgages, trust deed or trust
deeds, or after foreclosure thereof, so long as Lessee is not in default beyond
any applicable grace period under any of the covenants, conditions and
agreements contained in this Lease.
D. (i) If any mortgagee or trustee elects to have this Lease and the
interest of Lessee hereunder be superior to any such interest or right and
evidences of such election by notice given to Lessee, then this Lease and the
interest of Lessee hereunder shall be deemed superior to any such mortgage or
trust deed, whether this Lease was executed before or after such mortgage or
trust deed and in that event, such mortgagee or trustee shall have the same
rights with respect to this Lease as if it had been executed and delivered prior
to the execution and delivery of the mortgage or trust deed and has been
assigned to such mortgagee or trustee.
(ii) Lessee shall execute and deliver whatever instruments may be
required for such purposes, and in the event Lessee fails so to do within ten
(10) days after demand in writing, Lessee does hereby make, constitute and
irrevocably appoint Lessor as its attorney-in-fact and in its name, place and
stead so to do.
(iii) Lessee shall give written notice to any mortgage lender having a
recorded security instrument upon the Premises or any part thereof of any breach
or default by Lessor of any of its obligations under this Lease and to give such
mortgage lender at least 60 days beyond any notice period to which Lessor might
be entitled to cure such default before Lessee may exercise any remedy with
respect thereto. Lessee shall provide Lessee's most recent audited
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financial statements upon request to Lessor or any mortgage lender and to
certify the continuing accuracy of such financial statements in such manner as
Lessor or such mortgage lender may request.
ARTICLE XX
ESTOPPEL CERTIFICATE
At any time, and from time to time, Lessee and Lessor agree to promptly,
and in no event later than fifteen (15) days after a request in writing from the
other, to execute, acknowledge and deliver to the party so requesting a
statement in writing, certifying that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that the same is in full force
and effect as modified and stating the modifications) and the dates to which the
rental and other charges have been paid and such other information and/or
confirmation as Lessor or Lessee may reasonably request.
ARTICLE XXI
ASSIGNMENT AND SUBLETTING
A. Lessor shall have the right to sell or convey the Premises subject to
this Lease or to assign the right, title and interest as Lessor under this
Lease, in whole or in part. In the event of any such sale or assignment other
than a security assignment, Lessor shall be relieved, from and after the date of
such transfer or conveyance, of liability for the performance of any obligation
of Lessor contained herein, except for obligations or liabilities accrued prior
to such assignment or sale.
B. Lessee acknowledges that as an inducement to enter into this Lease,
Lessor has relied both on the business experience and creditworthiness of Lessee
and the particular purpose for which Lessee intends to use the Premises,
therefore, Lessee shall not assign, this Lease or any interest therein, or
sublet all or any part of the Premises, without the prior written consent of
Lessor. Lessor may withhold or condition such consent upon such matters as
Lessor may, in its sole discretion, determine, including, without limitation,
the following criteria: experience and creditworthiness of the assignee; the
assumption by the assignee of all of Lessee's obligations hereunder by
undertakings enforceable by Lessor; the transfer to such assignee of all
necessary licenses to continue operating the Premises for the purposes herein
provided; receipt of such representations and warranties from such assignee as
Lessor may request, including such matters as its organization, existence, good
standing and finances and other matters, whether or not similar in kind; whether
or not Lessee seeks to assign any or all Leases of the Counterpart Leases to the
same proposed Assignee, and the payment by the Lessee of all fees, costs,
charges and expenses
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incurred by Lessor in connection with any proposed assignment or subletting,
including reasonably attorneys' fees, whether or not consent to such requested
assignment or subletting is given. If consent is given to an assignment (but not
a sublease), an amendment to the Lease shall be entered into whereby the Base
Annual Rental shall be increased, as of the date the assignment is to become
effective to an amount equal to 125% of the then-current Base Annual Rental,
due and payable from the assignee.
C. No such assignment or subletting shall relieve the original Lessee or
any prior assignee of their obligations under this Lease; provided, however, if
such proposed assignee has a net worth, business reputation, and operating
experience reasonably acceptable to Lessor, said successor properly assumes this
Lease, and Lessee is not in default hereunder, then Lessor shall release Lessee
hereunder upon proper documentation. Lessee shall be required to pay all costs
incurred by Lessor in considering such assignment and release prior to Lessor
consenting hereunder. Lessor's consent to an assignment, or to a release of
Lessee, shall not require Lessor to similarly consent for any future assignments
or requests for release of Lessee.
D . Lessor consents to those leases listed on Exhibit C ("Subleases") which
currently affect the Premises, subject to the effective subordination of the
Subleases to this Lease.
ARTICLE XXII
OPTION TO RENEW
A. Lessee (provided there is no Default at the time of exercise or at the
expiration of the Lease Term or, if applicable, the then-current extension of
the Lease Term) shall have the option to continue this Lease in effect for three
additional independent periods, the first for ten Lease Years and the final two
for five Lease Years each ("Extension Period").
B. In the event the option to renew is exercised, then during said
Extension Period, all terms, conditions, covenants, representations, warranties
and obligations herein contained shall remain in full force and effect,
provided, however, if Lessee shall have exercised its third Extension Period,
there shall be no further right to so renew, and provided that Base Annual
Rental shall adjust pursuant to Paragraph D below.
C . Lessee shall exercise such renewal option by giving written notice to
Lessor of such exercise not more than two hundred seventy (270) days nor less
than two hundred ten (210) days prior to the expiration of the Lease Term, or
if applicable, the then-current extension of the Lease Term.
D. Base Annual Rent for any extended term will be at the greater of Market
Rent or the scheduled rent shown for such Extension Period on Schedule 1
attached. For purposes of this Lease, Market Rental shall mean the rent agreed
upon by Lessor and Lessee, or if they are unable
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to reach agreement within fifteen (15) days from the date Lessee elects the
Extension Period ("Agreement Period"), then the rent determined as fair rental
value by an MAI appraiser with at least five (5) years experience in appraising
commercial rental real estate of similar type in the general geographic area of
the Premises, which appraiser has been agreed upon by Lessor and Lessee, and who
has been instructed to determine a fair rental value for the Premises as used
for its highest and best use, and not necessarily that of a financial
institution. If Lessor and Lessee cannot jointly agree upon on an appraiser
within fifteen (15) days of the expiration of the Agreement Period ("Joint
Appointment Period"), then each of Lessee and Lessor shall select an independent
MAI appraiser meeting the aforesaid criteria within fifteen (15) days of the
expiration of the Joint Appointment Period ("Selection Period") and those two
appraiser shall select a third appraiser within fifteen (15) days of the
expiration of the Selection Period, and each of the three appraisers shall
render an appraisal of market rent for the Premises within thirty (30) days of
the Selection Period. The average rental of the two appraisers closest in amount
to each other shall be the Market Rent. Should Lessor or Lessee fail to timely
select an appraiser, the appraisal of the solely selected appraiser shall
control. Lessor and Lessee shall pay the costs of their selected appraiser, and
evenly divide any pay for the cost of any third appraiser or jointly approved
appraiser.
ARTICLE XXIII
HAZARDOUS MATERIALS SITE INVESTIGATION
Lessee shall, at its sole cost and expense, cause a party reasonably
acceptable to Lessor to conduct a Level 1 Hazardous Materials Site Investigation
(Level 1 Audit), as often as is required by the Environmental Protection Agency
or other governmental or regulatory body with authority to so request, or as
reasonably requested by Lessor, which Level 1 Audit shall complete at least the
following tasks at the Premises:.
(i) Review available materials that could indicate potential
environmental impairment. Such materials should include topographic maps, air
photos, boring logs and other references.
(ii) Conduct a physical site examination to include an inspection for
unusual land colorations, odors, and physical irregularities as well as
underground or above-ground tanks, and an evaluation of current land use.
Neighboring land owners are to be contacted to determine actual historical site
use.
(iii) Contact local and state health and environmental agencies to
determine if any hazardous materials incidents have occurred in the area,
including recorded or known landfill sites, or the occurrence of any hazardous
material event (spill, storage, discharge, etc.).
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(iv) Adjacent properties are to be surveyed for current land use
conditions that may adversely affect the subject property including, underground
or above-ground storage tanks, manufacturing sites, landfills, etc.
(v) A summary report will be prepared to the Lessor, indicating the
contacts made, data findings, photographs, and other pertinent information and
recommendations for a detailed (Level 2) site investigation if significant
evidence exists that hazardous substances may have been released at or in close
proximity to any of the Sites. If a Level 2 site investigation is recommended,
Lessee shall perform that investigation and shall perform all clean up
activities recommended therein as soon thereafter as reasonable.
ARTICLE XXIV
NOTICES
All notices, demands, requests, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this Lease shall
be in writing and shall be deemed to have been properly given if sent by either
(i) registered or certified mail, postage prepaid; (ii) by a recognized national
overnight courier service (e.g. Federal Express) with instructions and payment
for next business day delivery; (iii) by personal delivery; or (iv) confirmed
facsimile transmission to the parties at the addresses hereinafter set forth
and/or to such other address as either party may give notice pursuant to this
section from time-to-time. All notices shall be deemed received and effective on
the first to occur of the following: (i) delivery; (ii) refusal of deliver; or
(iii) the third business day after posting or delivery to the courier service;
or (iv) receipt of confirmed facsimile transmission.
If to Lessor: Stuart Whitman, Inc.
749 San Ysidro Rd.
Montecito, CA 93108
Attn: Stuart Whitman, President
With copy to: The Bicek Group
1413 Sherman Road
Suite 40
Romeoville, Illinois 60446
Attn: Robert Bicek
and to: Jeffrey J. Stahl, Esq.
Stahl Brashler LLC
20 East Jackson Blvd.
Suite 1600
Chicago, Illinois 60604
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164
If to Lessee: Argo Bancorp, Inc.
7600 West 63rd Street
Summit, Illinois 60501
Attn: John G. Yedinak, Chairman
with copy to: James Kemp, Esq.
Kemp, Grzelakowski & Loremzini, Ltd.
1900 Spring St.
Suite 500
Oak Brook, IL 60523
(630) 571-7711
(630) 571-7755
ARTICLE XXV
HOLDING OVER
If Lessee remains in possession of the Premises after the expiration of the
Lease Term, Lessee may be deemed a tenant on a month-to-month basis and shall
continue to pay rentals and other sums at the rate of 200% of the amounts
herein provided and to comply with all of the terms of this Lease; provided that
nothing herein nor the acceptance of Rent by Lessor shall be deemed a consent to
such holding over.
ARTICLE XXVI
LESSOR'S LIEN
Lessor shall have a landlord's lien upon all furnishings, fixtures,
equipment, decorations, supplies, accessories and other personal property which
Lessee owns or in which it has an interest located on the Premises, to secure
the payment of all Rent and the performance of all other obligations of Lessee
under this Lease; provided however, Lessor, upon request of Lessee, shall
subordinate this interest upon and subject to such terms and conditions as
Lessor may, from time-to-time, reasonably determine.
ARTICLE XXVII
REMOVAL OF LESSEE'S PROPERTY
At the expiration or sooner termination of the Lease Term if Lessee is not
then in Default hereof, Lessee may and shall remove from the Premises all
personal property belonging to Lessee.
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Lessee shall repair any damage caused by such removal and shall leave the
Premises (including all buildings thereon) broom clean and in good condition and
repair.
ARTICLE XXVIII
FINANCIAL STATEMENTS
Within ninety (90) days after the end of each fiscal year of Lessee, Lessee
shall deliver to Lessor (i) complete financial statements of Lessee including a
balance sheet, profit and loss statement, statement of changes in financial
condition and all other related schedules for the fiscal period then ended; and
(ii) income statements for the business at the Premises showing profits and
losses for the fiscal period then ended. All such financial statements shall be
prepared in accordance with generally accepted accounting principles,
consistently applied from period to period, and shall be audited by an
independent Certified Public Accountant reasonably acceptable to Lessor. In the
event that Lessee's property and business at the Premises is ordinarily
consolidated with other business for financial statement purposes, such
financial statements shall be prepared on a consolidated basis showing
separately the profits and losses, assets and liabilities pertaining to the
Premises with the basis for allocation of overhead of other charges being
clearly set forth.
ARTICLE XXIX
LESSOR'S LIABILITY
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed (such agreement being a primary consideration
for the execution of this Lease by Lessor) that there shall be absolutely no
personal liability on the part of Lessor or any partner, shareholder, officer,
director or employee of Lessor, or their successors or assigns with respect to
any of the terms, covenants and conditions of this Lease, and that Lessee shall
look solely to the interest of the Lessor for the satisfaction of each and every
remedy of the Lessee in the Premises and no other property, interest or assets
of the Lessor whatsoever in the event of any breach by Lessor of any of the
terms, covenants and conditions of this Lease to be performed by Lessor, such
exculpation of liability to be absolute and without any exception whatsoever.
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ARTICLE XXX
CONSENT OF LESSOR
Lessor shall have no liability for damages resulting from Lessor's failure
to give any consent, approval or instruction reserved to Lessor, Lessee's sole
remedy in any such event being an action for injunctive relief.
ARTICLE XXXI
WAIVER AND AMENDMENT
No provision of this Lease shall be deemed waived or amended except by a
written instrument unambiguously setting forth the matter waived or amended and
signed by the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same or any
other matter on any future occasion.
ARTICLE XXXII
JOINT VENTURE
None of the agreements contained herein, is intended, nor shall the same be
deemed or construed, to create a partnership between Lessor and Lessee, to make
them joint venturers, nor to make Lessor in any way responsible for the debts or
losses or Lessee.
ARTICLE XXXIII
CAPTIONS
Captions are used throughout this Lease for convenience of reference only
and shall not be considered in any manner in the construction or interpretation
hereof.
ARTICLE XXXIV
SEVERABILITY
The provisions of this Lease shall be deemed severable. If any part of this
Lease shall be held unenforceable by any court of competent jurisdiction, the
remainder shall remain in fall force
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167
and effect, and such unenforceable provision shall be reformed by such court so
as to give maximum legal effect to the intention of the parties as expressed
herein.
ARTICLE XXXV
CONSTRUCTION GENERALLY
This is a long-term commercial lease between entrepreneurs which has been
entered into by both parties in reliance upon the economic and legal bargains
contained herein. This Lease shall be interpreted and construed in a fair and
impartial manner without regard to such factors as the party which prepared the
instrument, the relative bargaining powers of the parties or the domicile of any
party. Time is of the essence in the performance of obligations and exercise of
any options herein contained.
ARTICLE XXXVI
OTHER DOCUMENTS
Each of the parties agrees to sign such other and further documents as may
be appropriate to carry out the intentions expressed in this Lease.
ARTICLE XXXVII
ATTORNEYS' FEES
In the event of any judicial or other adversarial proceeding between the
parties concerning this Lease, to the extent permitted by law, the prevailing
party shall be entitled to recover all of its reasonable attorneys' fees and
other costs in addition to any other relief to which it may be entitled.
ARTICLE XXXVIII
ENTIRE AGREEMENT AND INCORPORATION
This Lease, and any other instruments or agreements referred to herein,
constitute the entire agreement between the parties with respect to the subject
matter hereof, and there are no other representations, warranties or agreements
except as herein provided. Each and every of the recitals set forth on Page 1
are hereby incorporated as if fully re-written.
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ARTICLE XXXIX
COUNTERPARTS
This Lease may be executed in one or more counterparts, each of which shall
be deemed an original.
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease as of
the year and day first above written.
LESSOR:
STUART WHITMAN, INC.,
a California corporation
BY: /s/ Stuart Whitman
--------------------------------
ITS: President
----------------------------
LESSEE:
ARGO FEDERAL SAVINGS BANK, F.S.B.,
a federal savings bank
BY: /s/ John Yedinak
--------------------------------
ITS:
----------------------------
169
SCHEDULE 1
- --------------------------------------------------------------------------------
BASE ANNUAL RENTAL
- --------------------------------------------------------------------------------
FOR 14076 LINCOLN AVE., DOLTON, ILLINOIS
- --------------------------------------------------------------------------------
Assumes A June 1, 1999 Closing
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ORIGINAL LEASE TERM 170 MONTHS
================================================================================
PERIODS MONTHLY
- --------------------------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN Rent
================================================================================
Closing thru 12/31/1999 $10,144.00
- --------------------------------------------------------------------------------
1/1/2000 thru 12/31/2000 $10,245.44
- --------------------------------------------------------------------------------
1/1/2001 thru 12/31/2001 $10,347.89
- --------------------------------------------------------------------------------
1/1/2002 thru 12/31/2002 $10,451.37
- --------------------------------------------------------------------------------
l/l/2003 thru 12/31/2003 $10,555.89
- --------------------------------------------------------------------------------
1/1/2004 thru 12/31/2004 $10,661.45
- --------------------------------------------------------------------------------
1/1/2005 thru 12/31/2005 $10,768.06
- --------------------------------------------------------------------------------
l/l/2006 thru 12/31/2006 $10,875.74
- --------------------------------------------------------------------------------
l/l/2007 thru 12/31/2007 $10,984.50
- --------------------------------------------------------------------------------
1/1/2008 thru 12/31/2008 $11,094.34
- --------------------------------------------------------------------------------
1/l/2009 thru 12/31/2009 $11,205.29
- --------------------------------------------------------------------------------
1/1/2010 thru 12/31/2010 $11,317.34
- --------------------------------------------------------------------------------
1/1/2011 thru 12/31/2011 $11,430.51
- --------------------------------------------------------------------------------
1/1/2012 thru 12/31/2012 $11,544.82
- --------------------------------------------------------------------------------
l/l/2013 thru 07/31/2013 $11,660.27
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1ST OPTION TO RENEW (10 YEARS)
================================================================================
PERIODS MONTHLY
- --------------------------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN Rent
================================================================================
8/l/2014 thru 7/31/2014 $15,343.71
- --------------------------------------------------------------------------------
8/1/2015 thru 7/31/2015 $15,804.02
- --------------------------------------------------------------------------------
8/1/2016 thru 7/31/2016 $16,278.14
- --------------------------------------------------------------------------------
8/l/2017 thru 7/31/2017 $16,766.49
- --------------------------------------------------------------------------------
8/l/2018 thru 7/31/2018 $17,269,48
- --------------------------------------------------------------------------------
8/1/2019 thru 7/31/2019 $17,787.57
- --------------------------------------------------------------------------------
8/1/2020 thru 7/31/2020 $18,321.19
- --------------------------------------------------------------------------------
8/1/2021 thru 7/31/2021 $18,870.83
- --------------------------------------------------------------------------------
8/1/2022 thru 7/31/2022 $19,436.95
- --------------------------------------------------------------------------------
8/l/2023 thru 7/31/2023 $20,020.06
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2ND OPTION TO RENEW (5 YEARS)
================================================================================
PERIODS MONTHLY
- --------------------------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN Rent
================================================================================
8/1/2024 thru 7/31/2024 $20,620.66
- --------------------------------------------------------------------------------
8/l/2025 thru 7/31/2025 $21,239.28
- --------------------------------------------------------------------------------
8/l/2026 thru 7/31/2026 $21,876.46
- --------------------------------------------------------------------------------
8/1/2027 thru 7/31/2027 $22,532.76
- --------------------------------------------------------------------------------
8/l/2028 thru 7/31/2028 $23,208.74
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
3RD OPTION TO RENEW (5 YEARS)
================================================================================
PERIODS MONTHLY
- --------------------------------------------------------------------------------
Assumes a June 1, 1999 Closing NNN Rent
================================================================================
8/1/2029 thru 7/31/2029 $23,905.00
- --------------------------------------------------------------------------------
8/1/2030 thru 7/31/2030 $24,622.15
- --------------------------------------------------------------------------------
8/1/2031 thru 7/31/2031 $25,360.82
- --------------------------------------------------------------------------------
8/l/2032 thru 7/31/2032 $26,121.64
- --------------------------------------------------------------------------------
8/l/2033 thru 7/31/2033 $26,905.29
- --------------------------------------------------------------------------------
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
PARCEL l:
LOTS 1, 2 AND 3 IN THE SUBDIVISION OF LOTS 1 AND 2 IN BLOCK 1 IN DOLTON IN
THE EAST 1/2 OF THE EAST 1/2 OF THE NORTH WEST 1/4 OF SECTION 3, TOWNSHIP
36 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE
PLAT THEREOF RECORDED SEPTEMBER 12,1907 AS DOCUMENT 4094668 IN BOOK 94 OF
PLATS PAGE 35 AND AS RE-RECORDED ON SEPTEMBER 3, 1915 AS DOCUMENT 5704413
IN COOK COUNTY, ILLINOIS.
PARCEL 2:
THE NORTH FOUR (4) FEET OF LOT NINE (9) AND ALL OF LOTS TEN (10) AND ELEVEN
(11), IN THE SUBDIVISION OF LOTS ONE (1) AND TWO (2), IN BLOCK ONE (1), IN
DOLTON, IN THE EAST HALF (1/2) OF THE EAST HALF (1/2) OF THE NORTH WEST
QUARTER (1/4) OF SECTION THREE (3), TOWNSHIP THIRTY-SIX (36) NORTH, RANGE
FOURTEEN (14), EAST OF THE THIRD (3RD) PRINCIPAL MERIDIAN, IN COOK COUNTY,
ILLINOIS.
171
EXHIBIT B
COUNTERPART LEASES
1. Lease between Lessor and Lessee of even date herewith for property located
at:
5818 South Archer, Summit, Illinois
7600 West 63rd Street, Summit, Illinois
2154 West Madison, Chicago, Illinois
8267 South Roberts Road, Bridgeview, Illinois
172
EXHIBIT C
SUBLEASES
NONE