Exhibit 10.43
BUSINESS LEASE
THIS LEASE (“Lease”),
dated effective as of the 1st day of March, 2007, is by and between
as Trustee of Chicago Title Land Trust #1083191, an Illinois land
trust and Landfill Trust (“Landlord”) and MRC, L.P., a
Illinois limited partnership (“Tenant”).
1. DEFINITIONS
. Unless otherwise
indicated, capitalized terms used in this Lease shall have the
meanings set forth below:
(a) “Additional
Rent” shall mean all charges payable by Tenant under this
Lease other than Minimum Rent.
(b) “Building”
shall mean the building located on the Demised Premises.
(c) “Operating
Costs” shall mean all costs incurred to insure, maintain,
operate, repair and replace all elements of the Premises. Operating
Costs include, but are not limited to, costs and expenses for the
following: maintenance, repair and replacement (as necessary) of
all structural, plumbing, electrical and mechanical components of
the Building including, but not limited to, exterior and interior
walls, the roof , foundation and all components of the parking
lots, driveways and sidewalks surrounding the Building and located
on the Premises; gardening and landscaping; utilities, water and
storm sewer charges; maintenance of signs; fire alarm monitoring
service; premiums for liability, property damage, fire, dram shop,
business interruption and other types of insurance on the Premises
and worker’s compensation insurance; all property taxes and
assessments levied on or attributable to the Premises; all real and
personal property taxes levied on or attributable to such property
used in connection with the maintenance and operation of the
Premises; fees for required licenses and permits; repairing,
resurfacing, painting, lighting, cleaning, refuse removal,
security, if any, and similar items. Operating Costs shall also
include any parking charges, utilities surcharges, or other costs
levied, assessed or imposed on the Premises by or at the direction
of any governmental authority in connection with the use or
occupancy of the Premises or the parking facilities included in the
Premises, or pursuant to any covenants, conditions or restrictions
to which the Premises are subject.
(d) “Effective
Date” shall mean the date set forth in the initial
paragraph of this Lease.
(e) “Guarantors: shall
mean both of VCG Holding Corp. a Colorado corporation, the sole
owner of Tenant; and Troy Lowrie, CEO of VCG Hold Corp., jointly
and severally.
(f) “ Hazardous
Material” shall mean any hazardous, radioactive or toxic
substance, material or waste, including, but not limited to, those
substances, materials and wastes (whether or not mixed, commingled
or otherwise combined with other substances, materials or wastes)
listed in the United States Department Transportation Hazardous
Material Table (49 CFR 172.101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302) and amendments
thereto, or such substances, materials and wastes which are or
become regulated under any applicable local, state or federal law
including, without limitation, any material, waste or substance
which is (i) a petroleum product, crude oil or any fraction
thereof, (ii) asbestos, (iii) polychlorinated biphenyls,
(iv) designated as a “hazardous substance”
pursuant to Section 311 of the Clean Water Act, 33 U.S.C.
Section 1251, et seq. (33 U.S.C. Section 1321) or listed
pursuant to Section 307 of the Clean Water Act (33 U.S.C
Section 1317), (v) defined as
a “hazardous waste” pursuant to
Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903) or
(vi) defined as a “hazardous substance” pursuant
to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601, et
seq. (42 U.S.C. Section 9601).
(h) “Demised
Premises” or “Premises” shall mean the real
property located at 200 Monsanto Avenue, Sauget, Illinois 62206 and
all buildings and improvements located thereon.
(i) “ Lease Term”
shall mean a period of 10 years and 0 months beginning on the Rent
Commencement Date, plus any extended term granted by Landlord and
timely and properly elected by Tenant pursuant to subparagraph 3(b)
below.
(j) “Lease Year”
shall mean a period of twelve consecutive months during the Lease
Term which begins on the first day of the first calendar month
after the Rent Commencement Date or any anniversary
thereof.
(k) “Minimum
Rent” shall mean the base rental for the Demised Premises
set forth in subparagraph 4(a) below.
(l) “Permitted
Use” shall mean operation of a restaurant and adult
cabaret and no other uses.
(m) “Property”
shall mean that certain real property owned by Landlord upon which
the Premises are is located.
(n) “Real Property
Taxes” shall mean (i) any fee, license fee, license
tax, business license fee, commercial rental tax, levy, charge,
assessment, penalty or tax imposed by any taxing authority against
the land and buildings comprising the Premises, (ii) any tax
or charge for fire protection, streets, sidewalks, road
maintenance, refuse or other services provided to the Property by
any governmental agency, (iii) any tax imposed upon this
transaction or based upon a re-assessment of the Property due to a
transfer of all or part of Landlord’s interest in the
Property. In the event that it shall not be lawful for Tenant and
Landlord to apportion such future taxes, if any, then in that
event, the minimum rent payable to Landlord under this Lease shall
be revised to net to Landlord the same rental after imposition of
any such future tax upon Landlord as would have been payable to
Landlord prior to the impositions of any such tax. “Real
Property Tax” does not, however, include Landlord’s
federal or state income, franchise, inheritance or estate
taxes.
(o) “Rent” shall
mean Minimum Rent and any Additional Rent.
(p) “Rent Commencement
Date” shall mean that date that Tenant’s obligation
to pay rent, which shall commence on March 1, 2007.
2. LEASE OF DEMISED
PREMISES. Landlord hereby
leases the Demised Premises to Tenant, and Tenant hereby leases the
Demised Premises from Landlord, subject to the terms, covenants and
conditions herein set forth, and Tenant covenants as a material
part of the consideration for this Lease to keep and perform each
and all of such terms, covenants and conditions by Tenant to be
kept and performed.
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3. LEASE TERM/OPTION TO
RENEW.
(a) The Lease Term shall begin at
twelve o’clock noon on the Rent Commencement Date and shall
end at twelve o’clock noon on the last day of the Tenth Lease
Year. Promptly after the Rent Commencement Date, Landlord and
Tenant shall execute a Certificate of Commencement setting forth
the Rent Commencement Date and the expiration date of the Lease
Term.
(b) Upon the condition that Tenant
(a) is not in default at the time of the exercise of any
option contained in this subparagraph, and (b) has, during the
Lease Term and Option Periods, fulfilled all of Tenant’s
obligations completely and in a timely manner, Landlord hereby
grants to Tenant two (2) separate Options to Renew the Lease
Term for two (2) separate, consecutive additional five
(5) year periods upon the same and terms and conditions as set
forth in this Lease (each an “Option”), except that the
Rent payable during each Option Period will be as described in
Section 4 below. The Option to Renew as provided in this
paragraph, will be deemed to have been exercised by Tenant and this
Lease shall automatically renew, unless, within 180 days prior to
the expiration of the Lease Term, Tenant provides Landlord written
notice of Tenant’s intention not to exercise the Option to
Renew, in which event the Lease will expire either at the end of
the Lease Term or at the end of any applicable properly executed
Extended Term. The terms and conditions of this Option to Renew are
personal to the Tenant, and may not be exercised by any assignee or
subtenant of Tenant.
4. RENT.
(a) Minimum Rent. During the Lease
Term hereof, Tenant agrees to pay the Landlord at the address as
shown herein, or at such other place as the Landlord may from time
to time designate in writing, “Minimum Rent” for the
Demised Premises. Said rent shall be payable in advance on the
first of each month, without deduction or set-off, without notice
or demand, as follows:
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Lease
Years
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Per Annum
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Monthly
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1-10
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$
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240,000
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$
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20,000
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11-15 (Option Period 1)
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$
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240,000
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$
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20,000
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16-20 (Option Period 2)
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$
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240,000
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$
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20,000
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In the event the
Rent Commencement Date is other than the first day of a month,
Tenant will pay Rent for said partial month on a pro-rata basis;
provided, however, the end of the initial Lease Term shall be on
the last day of the one hundred twentieth (120
th
) month of the
Lease Term of this Lease.
(b) Additional Rent. During the
Lease Term hereof, Tenant agrees to pay the Landlord at the address
as shown herein, or at such other place as the Landlord may from
time to time designate in writing, as part of Tenant’s
Additional Rent, the amount by which the applicable percentage of
“Gross Sales” (as defined Section 29) exceeds the
Minimum Rent described above, as more fully described in this
subsection. For Lease Years 1 through and including Lease 3,
Tenant
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shall pay to Landlord, as part of Tenant’s
Additional Rent, the amount by which twenty-four percent
(24%) of Gross Sales exceeds the Minimum Rent for Lease Years
1 through 3 described above. Commencing with Lease Year 4, and
continuing throughout the Lease Term, Landlord shall have the
right, at Landlord’s discretion, (and no more often than once
every three Lease Years) to increase the percentage of Gross Sales
used for the calculation to determine such Additional Rent which
Tenant shall pay to Landlord by two percent (2%) in addition
to the percentage of Gross Sales then in effect. If Landlord elects
to increase the percent of Gross Sales for a three year period,
Landlord shall notify Tenant of such increased percentage, which
increased percentage of Gross Sales shall be effective 30 days
after notice of the same is delivered to Tenant by Landlord. As an
example only (without limiting the foregoing rights), if Landlord
does not elect to increase the percent of Gross Sales in Lease
Years 4 or 5, but elects to increase the same in Lease Year 6, then
commencing with the first day of Lease Year 6, Tenant shall pay to
Landlord the amount by which 26% of Gross Sales exceeds the Minimum
Rent described above. Under such example, Landlord has the right to
further increase the percentage of Gross Sales to 28% commencing no
earlier than on the first day of Lease Year 9, with further
increases as provided in this section. In no event, however, may
the percentage of Gross Sales used for calculating Tenant’s
percentage Additional Rent be greater than 28%.
During the Lease Term hereof, Tenant
agrees to pay the Landlord at the address as shown herein, or at
such other place as the Landlord may from time to time designate in
writing, as part of Tenant’s Additional Rent, the amount by
which the applicable percentage of “Gross Sales” (as
defined hereinafter) exceeds the Minimum Rent described above, as
follows:
Such Additional Rent based on Gross
Sales for each month of the Lease Term hereof shall be paid on the
fifteenth day of the month following the calculation, for example,
the Additional Rent based on Gross Sales for March shall be paid on
April 15. The Additional Rent to be paid by Tenant under this
Section 4(b) may be increased by Landlord every three years of
the Lease Term, as set forth above and subject to the maximum
percentage described above.
Tenant shall keep or cause to be
kept, full, complete, and proper books, records and accounts of the
Gross Sales and credits of each separate department and concession
at any time operated in the Demised Premises; said books, records
and accounts, including any sales tax reports that Tenant may be
required to furnish to any governmental agency, shall at all
reasonable times be open to the inspection and audit of Landlord,
Landlord’s auditor or other authorized representative or
agent.
At Landlord’s expense,
Landlord may cause at any reasonable time upon fifteen
(15) days prior notice to Tenant a complete audit to be made
of Tenant’s records relating to Gross Sales for the period
covered by any statement issued by Tenant pursuant to this Lease;
provided, however, that if such records are found to be incorrect
to the extent of three-percent (3%) or more over the Gross
Sales figure submitted by Tenant, Tenant shall pay for such audit.
Tenant shall promptly pay to Landlord any deficiency, or Landlord
shall promptly credit to Tenant’s account any overpayment, as
the case may be, which is established by such audit. Landlord shall
have the right to audit Tenant’s books and records with
respect to Gross Sales twice during any Lease Year and any time
within 3 years after the date of such statement.
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Within thirty (30) days after
the close of each Lease Year, a final adjustment and accounting for
each Lease Year shall be had to determine the Gross Sales of the
preceding Lease Year, and the amount of rent paid by Tenant during
such preceding Lease Year, including the rent based upon the
percentage of Gross Sales. In the event the amounts of rent for
said Lease Year actually paid by Tenant exceed seven percent
(7%) of Gross Sales as so computed on a twelve month basis,
then such excess rental payments shall be promptly credited by
Landlord to Tenant’s account; provided, however, that Tenant
shall never pay for any Lease Year less than the Minimum Rent
provided for above. In the event the amount of rent paid by Tenant
is less than seven percent (7%) of Gross Sales, Tenant shall
pay the difference to Landlord. All debits and credits arising
under the terms of this paragraph shall be paid in any event within
thirty (30) days of the completion of the final adjustment and
accounting.
Tenant shall continuously during the
entire Lease Term of this Lease, occupy and operate said business
on the Premises with due diligence and efficiency as to reasonably
produce the maximum return and Additional Rent to
Landlord.
5. SECURITY
DEPOSIT.
Tenant will not be required to make
a security deposit with the Lease.
6. OPERATING
COSTS.
(a) This Lease is totally net to the
Landlord. Tenant shall keep in repair and maintain the Premises at
all times in first-class condition at Tenant’s sole cost and
expense. Landlord may inspect the Premises and, if Landlord
reasonably determines that Tenant is not operating, repairing and
maintaining the Premises in a first-class condition, Landlord may
provide Tenant with written notice of any such maintenance concern,
and Tenant shall promptly make such repairs and needed
replacements. If Tenant fails to complete such maintenance, repairs
and replacements within thirty (30) days of receipt of such
notice, Landlord, in addition to all other remedies available to
Landlord for such failure, may undertake such repairs and Tenant
shall be obligated to reimburse Landlord for Landlord’s costs
within ten (10) days of receipt of an invoice therefore. The
foregoing shall not require or impose any obligation on Landlord to
undertake such repairs.
(b) Tenant shall pay all Operating
Costs during the Lease Term and shall not permit the placement of
any lien upon the Premises by any material/men, laborer or other
provider of goods and services to the Premises.
7. TAXES.
(a) Tenant shall pay all Real
Property Taxes on the land, buildings and other improvements
constituting the Property and the Premises (including any fees,
taxes or assessments against, or as a result of, any tenant
improvements installed in the Demised Premises by or for the
benefit of Tenant) attributable to the Lease Term. Tenant shall pay
such taxes to Landlord within twenty (20) days after Landlord
delivers notice and an invoice to Tenant for such Real Property
Taxes. After receipt of Tenant’s payment of the Real Property
Taxes, Landlord shall forward such payment to the applicable taxing
authority. If Tenant has committed an event of default under
this
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Lease, and at Landlord’s option, Tenant
shall pay Landlord in advance a sum equal to one-twelfth
(1/12) of the annual Real Property Taxes payable by Tenant
under this Lease, together with each payment of Minimum Rent.
Landlord shall hold such payments in a non-interest bearing impound
account. If unknown, Landlord shall reasonably estimate the amount
of Real Property Taxes when installments are due. Tenant shall pay
any deficiency of funds in the impound account to Landlord upon
written request. If Tenant defaults under this Lease, Landlord may
apply any funds in the impound account to any obligation then due
under this Lease.
(b) Tenant shall pay before
delinquency all taxes charged against trade fixtures, furnishings,
equipment or any other personal property belonging to Tenant which
become payable during the Lease Term. In the event any or all of
Tenant’s leasehold improvements, equipment, furniture,
fixtures and other personal property shall be assessed and taxed
with the Property, Tenant shall pay to Landlord its equitable share
of such taxes within ten (10) days after delivery to Tenant by
Landlord of a statement in writing setting forth the amount of such
taxes determined by Landlord to be applicable to Tenant’s
property.
8. USE OF DEMISED
PREMISES/MAINTENANCE OF LIQUOR LICENSES.
(a) Tenant shall use the Demised
Premises for the Permitted Use only, and not for any other purpose,
without the prior written consent of Landlord, which may be
withheld in Landlord’s sole and absolute discretion. At all
times during the Lease Term, Tenant shall occupy and use the
Demised Premises in strict compliance with all laws, rules,
regulations, ordinances, codes and any other governmental
restrictions or requirements of all federal, state and local
government authorities (collectively,
“Laws”).
(b) Tenant shall not do or permit
anything to be done in or about the Demised Premises nor bring or
keep anything therein which is not within the Permitted Use of the
Demised Premises or which will in any way increase the existing
rate of or affect any fire or other insurance upon the Building or
any of its contents, or cause a cancellation of any insurance
policy covering the Building or any of its contents. Tenant shall
not use or allow the Demised Premises to be used for any illegal,
improper, immoral, unlawful or objectionable purpose; nor shall
Tenant cause, maintain or permit any nuisance in, on or about the
Demised Premises. Tenant shall not commit any waste or permit any
nuisance upon the Demised Premises or overload the floors
thereof.
(c) Tenant shall not cause or permit
any Hazardous Material (as herein after defined) to be brought
upon, transported through, stored, kept, used, discharged or
disposed in or about the Property by Tenant, its agents, employees,
invitees, contractors or any other person or entity. Any such
Hazardous Material brought upon, transported, used, kept or stored
in or about the Property which is necessary for Tenant to operate
its business for the Permitted Use will be brought upon
transported, used, kept and sorted in only such quantities as are
necessary for the usual and customary operation of Tenant’s
business and the Permitted Use in a manner that complies with
(i) all Laws having jurisdiction thereof regulating such
Hazardous Material, (ii) any permits issued for any such
Hazardous Material (copies of which must be delivered to Landlord
before any Hazardous Material is brought in, on or about the
Property), and (iii) all products and manufacturers’
instructions and recommendations, to the extent they are stricter
than laws, rules, regulations, ordinances, codes or permits. If
Tenant, its agents, employees or contractors, in any way breach the
obligations stated in this paragraph, or if the presence
of
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Hazardous Materials on the Property occurs on
the Premises during the Lease Term which results in a release or
threatened release of such Hazardous Material, on from or under the
Property, or if the presence on, from or under the Property of
Hazardous Materials otherwise arises out of the operation of
Tenant’s business, then without limitation of any other
rights or remedies available to Landlord hereunder or at law or in
equity, Tenant shall indemnify, defend, protect and hold harmless
Landlord (and Landlord’s directors, shareholders, officers,
employees, partners, agents, mortgagees or successors to
Landlord’s interest in the Demised Premises) (collectively,
herein “Indemnity”) from any and all claims, sums paid
in settlement of claims, judgments, damages, clean-up costs,
penalties, fines, liabilities, losses or expenses (including
without limitation attorney, consultant and expert fees and any
fees incurred by Landlord to enforce the Indemnity) which arise
during or after the Lease Term as a result of Tenant’s breach
of such obligations or such presence, release or contamination of
the Property, including, without limitation, diminution in value of
the Property, damages for the loss of, or the restriction on the
use of, rentable or usable space or any amenity of the Property,
damages arising from any adverse impact on the sale or lease of the
Property, and damage and diminution in value to the Property or
other properties, whether owned by Landlord or by third parties.
The Indemnity includes, without limitation, costs incurred in
connection with any investigation of site conditions or any
clean-up, remedial, removal or restoration work required by any
federal, state, or local governmental agency or political
subdivision because of Hazardous Material present in the soil or
groundwater on, under or originating from the Property. Without
limiting the foregoing, if the presence of any Hazardous Material
on the Property caused or permitted by Tenant results in any
contamination, release or threatened release of Hazardous Material
on, from or under the Property or other properties, Tenant shall
promptly take all actions at its sole cost and expense which are
necessary to return the Property and any other affected property to
the condition existing prior to the introduction of such Hazardous
Material; provided that Landlord’s approval of such actions
shall first be obtained (which approval shall not be unreasonably
withheld) and so long as such actions do not have or would not
potentially have any material adverse effect on Landlord, on the
Property or on other property. The Indemnity contained in this
section shall survive the expiration or earlier termination of this
Lease and shall survive any transfer of Landlord’s interest
in the Property.
(d) In conjunction with the
operation of the Premises for its Permitted Use, Tenant has
obtained and shall maintain a hotel and restaurant class liquor
license and adult cabaret liquor license from the State of Illinois
and the Village of Sauget and County of St. Clair (the
“Liquor Licenses”), copies of which shall be available
for Landlord to verify Tenant’s possession of such Liquor
Licenses. At all times during the terms of this Lease, Tenant shall
maintain the Liquor Licenses in full force and effect. Tenant shall
be solely responsible for and Tenant shall pay any and all fees,
assessments, charges, levies or other monetary obligations imposed
in connection with the Liquor Licenses to assure that it is
maintained in good standing throughout the Lease Term of this
Lease. In the event Tenant receives any notice of violation,
citation, written or oral warning, or any complaint, objection, or
challenge to the Liquor Licenses, Tenant shall notify Landlord in
writing of such information within one (1) business day of
receipt of such written or oral notice and, if such notice was
written, Tenant shall include in said notice a copy of any notice,
citation, correspondence or other written information provided to
Tenant. Tenant shall take all action required to maintain the
Liquor Licenses in good standing and in full compliance with the
rules, regulations, ordinances and statutes of the Village of
Sauget, County of St. Clair, and the State of Illinois and shall
take no action, which may place the Liquor Licenses in jeopardy in
any way. Tenant agrees that it shall utilize the benefits of
the
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Liquor Licenses only in connection with the
operation of the Demised Premises for a restaurant and adult
cabaret and shall file no application to (i) amend the status
of the Liquor Licenses, (ii) amend the composition of the
Tenant, (iii) transfer the Liquor Licenses or (iv) amend
the location of the Premises served by the Liquor Licenses without
the advance written approval of the Landlord which may be withheld
in the Landlord’s sole discretion.
(e) The Demised Premises will be
operated under the name “PT’s Sports Cabaret”.
Landlord hereby consents to Tenant’s use of such name and
agrees that the name “ PT’s Sports Cabaret “
shall be utilized at the Demised Premises only and shall not be
utilized at any other location owned or operated by Tenant, its
affiliates, subsidiaries, shareholders, directors or officers,
except with the express written permission of Landlord, which may
be withheld in Landlord’s sole discretion. In the event of a
default whereby Tenant’s rights in this Lease are terminated,
Tenant shall forever relinquish any and all rights it may have to
the name “ PT’s Sports Cabaret “ and Landlord
shall be fully entitled to use such name at its sole
discretion.
9. COMPLIANCE WITH
LAWS. Tenant shall not
use the Demised Premises or permit anything to be done in or about
the Demised Premises which will in any way violate or conflict with
any Law now in force or which may hereafter be enacted or
promulgated including, without limitation, the Americans With
Disabilities Act. Tenant shall, at its sole cost and expense,
promptly comply with all Laws now in force or which may hereafter
be in force and with the requirements of any board of fire
underwriters or other similar bodies now or hereafter constituted
relating to or affecting the condition, use or occupancy of the
Demised Premises, excluding structural changes not related to or
affected by Tenant’s improvements or acts. The judgment of
any court of competent jurisdiction or the admission of Tenant in
any action against Tenant, whether Landlord be a party thereto or
not, that Tenant has violated any law, statute, ordinance or
governmental rule, regulation or requirement, shall be conclusive
of that fact as between Landlord and Tenant.
10. ALTERATIONS AND
ADDITIONS. Tenant shall
not make or allow to be made any alterations, additions or
improvements to or of the Demised Premises or any part thereof
without first obtaining the prior written consent of Landlord and
any alterations, additions or improvements to or of the Demised
Premises, including, but not limited to, wall covering, paneling
and built in cabinet work, but excepting movable furniture and
trade fixtures, shall at once become a part of the realty and
belong to Landlord and shall be surrendered with the Demised
Premises. In the event Landlord consents to the making of any
alterations, additions or improvements to the Demised Premises by
Tenant, the same shall be made by Tenant at Tenant’s sole
cost and expense and shall be completed in a good and workmanlike
manner, free of any liens, and in compliance with all Laws. Upon
the expiration or sooner termination of the Lease Term, Tenant
shall, upon written demand by Landlord, at Tenant’s sole cost
and expense, forthwith and with all due diligence, remove any
alterations, additions or improvements made by Tenant which are
designated by Landlord to be removed, and Tenant shall, forthwith
and with all due diligence, at its sole cost and expense, repair
any damage to the Demised Premises caused by such
removal.
11. MAINTENANCE AND
REPAIR.
(a) By its entry into the Demised
Premises, Tenant shall be deemed to have accepted the Demised
Premises in its AS IS condition and as being in good order,
condition and
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repair. Tenant shall, at Tenant’s sole
cost and expense, keep the Demised Premises and every part thereof
in first class condition and repair, including without limitation,
the maintenance, replacement and repair of any storefront, doors,
window casements, glazing, plumbing, pipes, electrical wiring and
conduits, and the heating and air conditioning (“HVAC”)
system. Tenant shall obtain a service contract for repairs and
maintenance of the HVAC system and shall provide to Landlord a copy
of the service contract along with written details of any and all
scheduled and other repairs and maintenance performed on the HVAC
system within ten (10) days of the date of such performance.
Tenant shall, upon the expiration or sooner termination of this
Lease, surrender the Demised Premises to Landlord in first class
condition, in working order, broom clean, ordinary wear and tear
excepted. Any damage caused by Tenant’s use of the Demised
Premises or otherwise occurring during the Lease Term shall be
repaired at the sole cost and expense of Tenant.
(b) Tenant shall repair and maintain
the structural portions of the Building, including the exterior
walls, roof, parking areas, and exterior portions of the Property.
Landlord shall not be liable for Tenant’s failure to make any
repairs or to perform any maintenance. There shall be no abatement
of Rent and no liability of Landlord by reason of any injury to or
interference with Tenant’s business arising from the making
of any repairs, alterations or improvements in or to any portion of
the Building or the Demised Premises or in or to fixtures,
appurtenances and equipment therein. Tenant waives any right to
make repairs at Landlord’s expense under any law, statute or
ordinance now or hereafter in effect.
(c) If Tenant refuses or neglects to
repair or maintain or make any required replacements to the
Premises, as required herein, to the reasonable satisfaction of
Landlord, Landlord shall provide Tenant with written notice of any
such refusal or neglect and Tenant shall repair any item mentioned
in said notice within thirty (30) days thereafter. If Tenant
has not made such repairs within the 30-day period, Landlord, in
addition to all other rights and remedies available to Landlord,
may make such repairs without liability to the Tenant for any loss
or damage it may accrue to Tenant’s merchandise, fixtures or
other property or to Tenant’s business by reason thereof and,
upon completion thereof, Tenant shall pay Landlord’s costs
for making such repairs upon presentation of a bill thereof. In the
event Tenant does not pay such bill within ten (10) days of
its receipt, such failure shall be an event of default hereunder,
Landlord shall be entitled to utilize all of its remedies herein
and such amount shall bear interest at the rate of eighteen percent
(18%) per annum.
12.
LIENS. Tenant shall keep the Property
free from any and all liens arising out of any work performed,
materials furnished or obligations incurred by or on behalf of
Tenant. Landlord may require, at Landlord’s sole option, that
Tenant provide to Landlord, at Tenant’s sole cost and
expense, a lien and completion bond in an amount equal to one and
one-half (1 1
/
2 ) times the
estimated cost of any improvements, additions or alterations in the
Demised Premises which Tenant desires to make, to insure Landlord
against any liability for mechanics and materialmen’s liens
and to insure completion of the work. Landlord shall have the right
to post notices on the Demised Premises, that the Demised Premises
are not subject to liens of those providing labor and/or materials
to the Demised Premises at the request of the Tenant pursuant to
Illinois Statutes. Tenant shall provide Landlord with ten
(10) days prior written notice prior to commencing any
improvements at the Property, to allow Landlord adequate time to
post said notices.
9
Landlord’s Initial
JD
Tenant’s Initials
THL
13. ASSIGNMENT AND
SUBLETTING.
(a) Tenant shall not (voluntarily,
by operation of law or otherwise) assign, transfer, mortgage,
pledge, hypothecate or encumber this Lease or any interest therein,
and shall not sublet the Demised Premises or any part thereof, or
any right or privilege appurtenant thereto, or allow any other
person (the employees, agents, servants and invitees of Tenant
excepted) to occupy or use the Demised Premises, or any portion
thereof, without first obtaining the written consent of Landlord,
which consent may be withheld in the discretion of Landlord. The
transfer of more than five percent (5%) of the membership
interests of Tenant or the transfer of five percent (5%) or
more of the capital stock of the owner of Tenant or the corporate
Guarantor, however accomplished, and whether in a single
transaction or in a series of related or unrelated transactions,
will be deemed an assignment of this Lease or such sublease
requiring the Landlord’s consent in each instance. Any
transfer by Troy Lowrie of his interest in Tenant or if Troy Lowrie
ceases to be the control person of Tenant will be deemed a
prohibited assignment of this Lease. Any prohibited assignment or
subletting or any assignment or subletting without Landlord’s
consent shall be void, and shall, at the option of Landlord,
constitute a default under the terms of this Lease. Acceptance of
Rent by Landlord from anyone other than Tenant shall not be
construed as a consent or waiver by Landlord, nor as a release of
Tenant, but the same shall be taken to be a payment on account of
Tenant. A consent to one assignment, subletting, occupation or use
by any other person shall not be deemed to be a consent to any
subsequent assignment, subletting, occupation or use by another
person.
(b) Tenant shall provide Landlord
with a copy of any proposed sublease or assignment that contains
the name and address of the proposed subtenant or assignee, a copy
of any purchase and sale agreement for the assets of Tenant, the
anticipated effective date of the proposed sublease or assignment,
the duration of the term of any proposed sublease, and the amount
of space any proposed subtenant will occupy. In addition, Tenant
shall provide detailed information regarding the proposed
subtenant’s or assignee’s financial condition and
credit history, relevant business history and experience, together
with any other pertinent information which Landlord reasonably
requires. Landlord may require an opportunity to meet and interview
the proposed subtenant or assignee as well. For purposes of
Landlord’s consent to a proposed sublease or assignment, it
shall be considered reasonable for Landlord to consider
(i) the relati