Much Shelist Freed Denenber
Ament & Rubenstein,
PC.
ATTORNEYS AT LAW
Established 1970
August 31, 2001
BY MESSENGER
Illinois Pollution Control Board
Attn
: The Honorable Dorothy M . Gunn, Clerk
100 W . Randolph Street
James R . Thompson Center, Suite 11-500
Chicago, IL 60601-3218
Re: Cole Taylor Bank v
. Rowe Industries, Inc., et al., PCB-01-173 Citizen's
Enforcement
Dear Ms . Gunn :
Enclosed for filing in the above-referenced matter are an original and nine copies
of Respondent Chapco Carton Company's Motion For Leave Instanter To File An Addi-
tional Affirmative Defense . There is one extra copy
. Please file-stamp it for our files and
return it to the messenger.
If you have any questions, please do not hesitate to give me a call
. I thank you in
advance for your cooperation .
Very truly yours,
WAS/lao
Enclosures
cc: All Counsel of Record
a (~
ip
orth LaSalle Street, Suite 2100
, Illinois 60601-1095
312 346-3100 Telephone
312 621-1750 Fax
3121621-1753
g speary@muchlaw.co m
AUG?
;
?
001
pollutiorl
e.
Cor
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Board
MUCH SHELIST FREED DENENBERG
AMENT BELL & RUBENSTEIN, P.C.
200 North LaSalle, Suite 2100
Chicago, IL 60601
(312) 346-3100
Firm No . 80580
('!
K'
Opricp
AUG ;, 1
2001
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
,,. .
OF ILLINOIS
COLE TAYLOR BANK, not individually,
Pollution Control Board
)
But solely as trustee under a certain Illinois
)
Land trust known as trust 40323 ; as
)
Successor trustee to Michigan Avenue
)
National Bank of Chicago, under trust 1904,
)
Complainant,
)
PCB-01-173
Citizen's Enforcement
vs .
)
ROWE INDUSTRIES, INC ., a corporation,
)
successor to COLEMAN CABLE AND WIRE
)
COMPANY, a corporation, and CHAPCO
)
CARTON COMPANY, a corporation,
}
Respondents .
)
NOTICE OF FILING
To: Raymond T . Reott
Gerald B. Mullin
Joseph R . Podlewski
Christina M . Landgraf
Gerald B
. Mullin, P
.C.
Schwartz Cooper
Jenner & Block LLC
Suite 3030
Greenberger & Krauss Chtd .
One IBM Plaza
55 E
. Monroe Street
180 N. LaSalle, Suite 2700
Chicago, IL 60611
Chicago, IL 60603
Chicago, IL 60601
Please take notice that the undersigned caused to be filed on August 31, 2001 with the
Pollution Control Board, the Respondent Chapco Carton Company's Motion for Leave Instanter To
File An Additional Affirmative Defense, a copy of which is herewith served upon you .
/1
William A Speary, J
i. trirr
dobl
amd
L
William A. Speary, Jr .
MUCH SHELIST FREED DENENBERG
AMENT & RUBENSTEIN, P
.C
.
200 North LaSalle Street, Suite 2100
Chicago, Illinois 60601-1095
(312) 346-3100
#80580
f
FRTIFICATF OF SFRVICF
I, William A . Speary, Jr.,
one of the attorneys for Chapco Carton Company, certify that
on August 31, 2001, I caused copies of the Respondent Chapco Carton Company's Motion
for Leave Instanter To File An Additional Affirmative Defense and the notice thereof to be
sent by first class mail to the attached Service List
.
a
'%
Raymond T . Reott
Christina M . Landgraf
Jenner & Block LLC
One IBM Plaza
Chicago, IL 60601
Gerald B . Mullin
Gerald B . Mullin, P.C.
Suite 3030
55 E. Monroe Street
Chicago, IL 60603
Joseph R . Podlewski
Schwartz Cooper
Greenberger & Krauss Chtd
.
Suite 2700
180 N . LaSalle Street
Chicago, IL 60601
SFRViCF I ICT
C, £. I
CJ
.I'PK'S OUnCF
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG 3 1 2001
COLE TAYLOR BANK, not individually,
)
S tAtt OF iLLINUIS
But solely as trustee under a certain Illinois
)
Pollution Control Board
Land trust known as trust 40323 ; as
)
Successor trustee to Michigan Avenue
)
National Bank of Chicago, under trust 1904,
)
Complainant,
)
PCB-01-173
Citizen's
Enforcement
vs.
)
ROWE INDUSTRIES, INC ., a corporation,
)
successor to COLEMAN CABLE AND WIRE
)
COMPANY, a corporation, and CHAPCO
)
CARTON COMPANY, a corporation,
)
Respondents .
)
RESPONDENT CHAPCO CARTON COMPANY'S
MOTION FOR LEAVE INSTANTER TO FILE
AN ADDITIONAL AFFIRMATIVE DEFENSE
Pursuant to Section 101 .516 of the Board's Procedural Rules and for the
following reasons, Respondent Chapco Carton Company, a Delaware
corporation, ("Chapco"), by its attorneys, hereby moves the Board for leave
instanter to file an additional affirmative defense :
1 .
On June 26, 2001, Complainant Cole Taylor Bank not individually
but solely as trustee under a certain Illinois Land trust known as trust 40323, as
successor trustee to Michigan Avenue National Bank of Chicago, under trust
1904, ("Cole Taylor"), filed a "citizen's suit" against,
inter alia, Respondent
Chapco Carton Company ("Chapco")
. This action was brought under Section 31
(c) of the Illinois Environmental Protection Act ("the Act") and the Board's newly
1
revised Procedural Rules . [415 ILCS 31 (c) & 35 III . Admin . Code Parts 101 &
103.]
2.
Under the Board's old Procedural Rules, answers and affirmative
defenses did not need to be filed in enforcement cases and citizen's suits . Under
Section 103 .204 (d) of the Board's new Procedural Rules, such pleadings must
now be filed within 60 days "after receipt of the complaint" . [35 III. Admin . Code §
103 .204 (d) .]
3.
Under Section 103 .204 (a) of the Board's new Procedural Rules,
proceedings in enforcement actions and citizen's suits must be commenced
through service of a notice and complaint via certified mail return receipt
requested, messenger service or personal service "upon all respondents" . [35
III . Admin. Code § 103 .204 (a).] Under Section 101 .304 (c) of those rules proof of
service of complaints in those cases "must be filed with the Board upon
completion of service"
.
[35 III
. Admin . Code § 101 .304
(c) .]
4 .
Cole Taylor apparently sought to obtain service of its Complaint
upon Chapco and its co-respondent, Rowe Industries, Inc ., ("Rowe Industries"),
via certified mail return receipt requested
. Chapco was served with the Complaint
some time after it was filed with the Board .
5 .
However, upon review of the Board's file in this case, Chapco's
attorneys could find nothing showing the date that service of Cole Taylor's
Complaint had been completed --
upon either it or Rowe Industries . Hence
Chapco's attorneys could not determine the actual date when either respondent
had received the Complaint so as to calculate the running of the 60-day period .
2
Nor could they ascertain whether Rowe Industries had ever been served so as to
classify this case as actually having been commenced
.
6 .
Chapco's attorneys subsequently learned that Cole Taylor did not
complete service of the Complaint on Rowe Industries until July 17, 2001
-
making that the date this proceeding was commenced and making Rowe
Industries answer and affirmative defenses due on September 17, 2001
.
7 .
Chapco's attorneys then obtained Cole Taylor's attorney's
agreement to an extension of time to file Chapco's Answer and Affirmative
Defenses until September 17, 2001 -the date Rowe Industries' answer, etc
.,
was due.
8.
However, Chapco's attorneys decided that there was insufficient
time to file any motion for an extension of time and have it ruled upon by the
Board before the most conservative date for filing an answer-- i .e ., 60 days from
June 26, 2001 or August 27, 2001 -
would have elapsed.' To be safe, Chapco's
attorneys chose to file Chapco's Answer and Affirmative Defenses on that date
.
9.
So, on August 27, 2001, Chapco filed its original Answer and
Affirmative Defenses to Cole Taylor's Complaint
. Upon reviewing a copy of this
document after it was filed with the Board, Chapco's attorneys discovered that
collateral estoppel had been inadvertently omitted as the ninth affirmative
defense.
10 .
Chapco now seeks leave instanter to file this additional affirmative
defense. (An copy of Chapco's proposed pleading that raises the additional
' The 60th day fell on Saturday, August 25, 2001
. Under Board Rule 101 .300 (a) the date is
extended to Monday August 27, 2001 . 135 III . Admin . Code § 101 .300 (a) .]
3
defense of collateral estoppel is attached hereto as Exhibit "A" and it is
incorporated herein by reference
.)
11 .
Allowing Chapco to file this additional affirmative defense would
serve justice, prevent any unjust hardship to Chapco and would not prejudice any
of Cole Taylor's rights.
12 .
This motion was filed immediately after Chapco's attorneys
discovered the oversight
. It is being filed just four (4) days after the earliest date
for filing such defenses has elapsed
. It also is being filed over two (2) weeks
before Chapco's co-respondent is required to file its answer and affirmative
defenses -
and it is likely this co-respondent will raise the same affirmative
defense Chapco seeks to raise herein at that time
.
13 .
Unlike Supreme Court Rule 182, the Board's new Procedural Rules
make no reference to responses to affirmative defenses
. However, even if the
Board chooses to incorporate Rule 182 and allow them in this case, under Rule
182 the deadline for filing any response to affirmative defenses is "21 days after
the last day for the filing of the answer
."
14 .
Thus, if the Board grants this motion, Chapco would not object to
the Board's allowing Cole Taylor 21 days from the date of the order granting
Chapco's motion to file a response
.
Wherefore, Chapco asks that its motion be granted and that the Board
enter an order granting it leave instanter to file an additional affirmative defense
as set forth herein and that Cole Taylor be granted leave to file any reply within
4
21 days following the date of the entry of the Board's order granting said motion
and such other and further relief to which Chapco is entitled under the law .
Respectively submitted :
Chapco Carton Company,
A Delaware Corporation,
Respondent
5
William A. Speary, Jr .
Much Shelist Freed Denenberg Ament & Rubenstein
200 North La Salle St .
Suite 2100
Chicago, IL 60601-109(312) 621-1753
ID # 80580
ARDC # 6189961
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
COLE TAYLOR BANK, not individually,
AUG 3 12001
)
But solely as trustee under a certain Illinois
)
STATE OF ILLINOIS
Land trust known as trust 40323
; as
)
Poliutort G.mtrol
Board
Successor trustee to Michigan Avenue
)
National Bank of Chicago, under trust 1904,
)
Complainant,
) PCB-01-173
Citizen's Enforcement
vs.
)
ROWE INDUSTRIES, INC
., a corporation,
)
successor to COLEMAN CABLE AND WIRE
)
COMPANY, a corporation, and CHAPCO
)
CARTON COMPANY, a corporation,
)
Respondents .
)
RESPONDENT CHAPCO CARTON COMPANY'S
ADDITIONAL AFFIRMATIVE DEFENSE
Respondent Chapco Carton Company, a Delaware corporation,
("Chapco"), by its attorneys, submits its additional affirmative defense to
Complainant, Cole Taylor Bank's ("Cole Taylor") Complaint as follows
:
NINTH AFFIRMATIVE DEFENSE
: COLLATERAL ESTOPPEL
In the alternative, without admitting any of the Complaint's allegations that
it has denied or otherwise contradicting its answers and solely by way of
affirmative and/or additional defense, Chapco alleges as follows
:
1 .
Section 741
.205 (b) (2) of the Board's Proportionate Share Liability
Regulations provides that :
"Liability to perform or pay for the response that results from the
release or substantial threat of a release of [hazardous substances]
on, in, under or from a site is subject to all defenses allowed by law,
including the defenses set forth in Section 22
.2 0) of the Act, and
the limitations set forth in Section 58
.9 (a) (2) of the Act
. The
respondent raising a defense set forth in Section 22
.2 0) or a
limitation set forth in Section 58 .9 (a) (2) of the Act must prove the
defense or limitation by a preponderance of the evidence ."
[35 III . Admin . Code 741 .205 (b) (2) .]
2 .
In the "citizen's suit" brought herein, Cole Taylor seeks to have
Chapco perform a response that allegedly results from the alleged release or
substantial threat of a release of hazardous substances on, in, under or from a
site, as those terms are used in Section Section 741 .205 (b) (2) of the Board's
Proportionate Share Liability Regulations . [35 III . Admin . Code 741 .205 (b) (2) .]
Therefore, this "citizen's suit" is subject to all defenses allowed by law, including
the common law doctrine of collateral estoppel .
3 .
Under the common law doctrine of collateral estoppel, a final
judgment on the merits rendered in any prior litigation bars any party to that
litigation from re-litigating any issue of law or fact that is identical to those
previously raised .
4.
Prior to the filing of its Complaint herein, Cole Taylor filed a lawsuit
against Chapco in the Cook County Circuit Court, Cole Taylor Bank v.Rowe
Industries, Inc.,, et al., 97 L 004984 ("the Circuit Court Case") . (A copy of the
complaint in the Circuit Court Case is attached hereto as Exhibit "A" and it is
incorporated herein by reference.)
5 .
In Paragraphs 6 throughl6 of its Complaint filed herein and in
Paragraphs 7 and 11 throughl3 of its complaint filed in the Circuit Court Case,
Cole Taylor has alleged the same issues of law and fact - i.e., that Chapco
violated Section 21 (e) of the Act, by "causing or allowing the contamination of
the soil at the Property with hazardous substances" . [415 ILCS 5/21 (e).]
2
6 .
As it has done herein, in the Circuit Court Case, Chapco filed an
answer denying those allegations
. (A copy of Chapco's answer in the Circuit
Case is attached hereto as Exhibit "B" and it is incorporated herein by reference
.)
7 .
For its relief herein, Cole Taylor seeks an order from the Board that
Chapco remediate the Property through the removal of the contamination that is
allegedly on the Property and that allegedly resulted from the disposal of
hazardous substances Cole Taylor claims occurred on the Property
. For its relief
in the Circuit Court Case, Cole Taylor sought a monetary sum ($250,000
.00)
against Chapco that allegedly equaled the cost to remediate the Property through
the removal of the contamination that was allegedly on the Property and that
allegedly resulted from the disposal of hazardous substances Cole Taylor
claimed occurred on the Property
.
8.
By order dated July 16, 1999, the Cook County Circuit Court
ordered the Complaint in the Circuit Court Case dismissed, "with prejudice"
. (A
copy of the Circuit Court's July 16 th order is attached hereto As Exhibit "C" and it
is incorporated herein by reference
.)
9.
The dismissal of Chapco in the Circuit Court Case is a final
adjudication in Chapco's favor on the identical issues of fact and law Cole Taylor
seeks to litigate herein - i .e., whether Chapco violated Section 21 (e) of the Act
by "causing or allowing the contamination of the soil at the Property with
hazardous substances"
. [415 ILCS 5/21 (e).]
10 .
Under the common law doctrine of collateral estoppel, as
incorporated by Section 741
.205 (b) (2) of the Board's Proportionate Share
3
Liability Regulations, this "citizen's suit" is barred
. [35 Ill . Admin . Code § 741 .205
(b)
(2) .l
Wherefore, Chapco asks that the Board render a judgment in its favor and
against Cole Taylor
; and that the Board enter an order that Cole Taylor be
awarded nothing as against Chapco and denying Cole Taylor any and all of the
relief it seeks herein against Chapco ; and such other and further relief to which
Chapco is entitled under the law .
Chapco Carton Company,
A Delaware Corporation,
Respondent
William A. Speary, Jr .
Much Shelist Freed Denenberg Ament & Rubenstein
200 North La Salle St .
Suite 2100
Chicago, IL 60601-109(312) 621-1753
ID # 80580
ARDC # 6189961
4
EXHIBIT A
Attorney No . 90700
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINO
COUNTY DEPARTMENT - LAW DIVISION
COLE TAYLOR BANK, not individually,
but solely as trustee under a certain Illinois
land trust known as trust 40323 ; as
successor trustee to Michigan Avenue
National Bank of Chicago, under trust 1904,
Plaintiff,
vs.
ROWE INDUSTRIES, INC ., a corporation,
successor to COLEMAN CABLE AND WIRE
COMPANY, a corporation, and CHAPCO
CARTON COMPANY, a corporation,
Defendants .
)
oN
NO .
971 04984
t f L
t-j
1-14'D':
4
s_:RLEI
-1 DN
E'.
SF
L.l
:~tl-~
Tfr;t
t
BREAD- H
COMPLAINT AT LAW
Plaintiff, Cole Taylor Bank, not individually, but solely as trustee under a certain Illinois
land trust known as trust 40323 ; as successor trustee to Michigan Avenue National Bank of
Chicago, -under trust 1904 ; complains against the defendants Rowe Industries, Inc ., a
corporation, successor to Coleman Cable and Wire Company, a corporation, and Chapco Carton
Company, a corporation, and in support of its complaint states :
1 .
Plaintiff, Cole Taylor Bank, not individually, but solely as trustee tinder a certain
Illinois land trust known as trust 40323, as successor trustee to Michigan Avenue National Bank
of Chicago, under trust 1904 (hereafter "Michigan Avenue") is an Illinois land trust holding
legal title to certain real property located in Cook County, IIlinois, commonly known as 1810
North Fifth Avenue, River Grove, Illinois
.
2.
Defendant, Rowe Industries, Inc ., (hereafter "Rowe") successor to Coleman Cable
and Wire Company (hereafter "Coleman") is a corporation organized under the laws of
Delaware. Plaintiff is informed and believes, and upon such information and belief alleges that
Rowe has its principal place of business in Phoenix, Arizona .
3 .
Defendant, Chapco Carton Company (hereafter "Chapco") is a corporation
organized under the laws of Delaware, having its principal place of business in River Grove,
Cook County, Illinois .
ALLEGATIONS COMMON TO ALL COUNTS
4 .
On May 21, 1971 Coleman, as lessee, entered into a written lease with Michigan
Avenue as lessor, for the rental of certain property commonly known as 1810 North Fifth
Avenue, River Grove, Illinois, (hereafter the "real estate") which lease terminated on December
31, 1996
. A copy of that lease is attached hereto as Exhibit 1 .
5.
Plaintiff is informed and believes, and upon such information and belief alleges
that in 1984 Coleman, as sublessor, entered into a sub-lease agreement with Chapco as sub-
lessee. Chapco remained in possession of the aforesaid rental real estate from 1984 as
Coleman's sub-lessee until December 31, 1996, the date of expiration of Coleman's lease .
6.
At no time during the term of its lease with plaintiff was Coleman released by
plaintiff from any of Coleman's obligations under the lease aforesaid
.
7 .
At various times between 1971 and the date of the filing of this Complaint, the
exact dates of which are at present unknown to plaintiff, and during the time that the real estate
was in the possession and control of Coleman and/or Chapco, either or both of Coleman and/or
Chapco, knowingly caused or negligently permitted and allowed certain hazardous materials
2
containing, among other hazardous substances, significant concentrations of cadmium,
ethylbenzene, toluene, xylene chromium and lead, to become deposited in the soil at the real
estate.
8 .
As a direct and proximate result of the actions of Coleman and Chapco, the real
estate has been significantly damaged, and plaintiff will be forced to spend large amounts of
money to remediate the real estate
.
COUNT I
BREACH OF CONTRACT
9 .
Section 601 of the lease between Coleman and plaintiff provides :
"USE.
Section 601
. The demised premises shall be used for any
business or purpose permitted by present zoning classifications, or
as the said demised premises may be rezoned from time to time
hereafter. Lessee shall not use or occupy the demised premises or
permit the demised premises to be used or occupied contrary to
any statute,
rule, order, ordinance, requirement or regulation
applicable thereto, or in any manner which would violate any
Certificate of Occupancy affecting the same, or which would cause
structural iniury to the improvements or cause the value or
usefulness of the demised premises or any part thereof to diminish
or which would constitute a public or private nuisance or waste,
and Lessee agrees that it will promptly upon discovery of any such
use, take all necessary steps to compel the discontinuance of such
use and to oust the subtenants or occupants guilty of such use ."
(underlining supplied)
10 .
Section 701 of the lease between Coleman and plaintiff provides :
Section 701 . After the completion of the building by
Lessor, Lessee agrees, at its expense, to keep the demised
premises in good repair and in a clean and wholesome condition
and to at all times fully comply with the health and police
regulations in force and also that it will keep the improvements at
any time situated upon the demised premises and all sidewalks and
3
areas and adjacent thereto as well as in the area thereof, safe and
secure and conformable to the lawful and valid requirements of
any municipality in which said demised premises may be situated
and of all other public authorities, and will make at its own
expense, all additions, improvements, alterations and repairs on the
demised premises and on and to the appurtenances and equipment
thereof required by any lawful authorities or which may be made
necessary by the act or neglect of any other person or corporation
(public or private), including supporting the streets and alleys
adjoining the demised premises,
and will keep Lessor harmless and
indemnified at all times against any loss, damage, cost or expense
by reason of the failure so to do in any respect or by reason of any
accident, loss or damage resultinv to persons or property from any
use which may be made of said premises
or of any improvements
at any time situated thereon or by reason of
or growing out of any
act or thing done or omitted
to be done upon said premises or in
any building at any time situated thereon
; and Lessee agrees that
it will save, hold and keep Lessor and the demised premises free
and clear of and from any and all claims, demands, penalties,
liabilities, judgments, costs and expense, including reasonable
attorneys' fees, arising out of any damage which may be sustained
by adjoining property or adjoining owners or other persons or
property in connection with any remodeling, altering or repairing
of any building or buildings on the demised premises or the
erection of any new building or buildings thereon, unless such
action is underaken by Lessor pursuant to its obligations under this
Lease
." (underlining supplied)
11 .
At all relevant times there were in full force and effect a statute of the State of
Illinois known as the Environmental Protection Act 415 ILCS 5/1
et. seq . (the "Act")
prohibiting the disposal of waste except as specifically permitted therein, a relevant portion
thereof which in words and figures is as follows :
No person shall . .
. [d]ispose, treat, store or abandon any waste, or
transport any waste into this State for disposal treatment, storage
or abandonment, except as a site or facility which meets the
requirements of this Act and of regulations and standards
thereunder.
415 ILCS 5/21(e) .
4
12 .
The real estate does not meet the requirements of a waste disposal site or facility
under the Act and applicable Illinois Pollution Control Board regulations
.
13 .
By causing or allowing the contamination of soil at the real estate with
hazardous
substances, the defendants have engaged in the disposal of waste at the real estate in violation
of Section 21(e) of the Act
.
14.
The acts complained of herein that were done, suffered or permitted to be done
by defendant constitute a violation and breach of the terms of Sections 601 and 701 of the lease
attached as Exhibit 1
.
15 .
As a result of the breaches of the lease aforesaid, plaintiff has been injured and
the value of its property diminished by the sum of Two Hundred Fifty Thousand Dollars
($250,000 .00).
WHEREFORE, plaintiff prays for judgment against defendant Rowe Industries, Inc
.,
individually and as successor to Coleman Cable and Wire Company, in the sum of Two Hundred
Fifty Thousand Dollars ($250,000 .00) .
COUNT H
NEGLIGENCE AGAINST COLEMAN AND CHAPCO
16-23
. Plaintiff repeats and realleges the allegations contained in paragraph 1 through
8 inclusive as and for its allegations in paragraphs 16 to 23 inclusive in this Count II
.
24.
Plaintiff repeats and realleges the allegations contained in paragraph 12 as and for
its allegations in paragraph 24 of this Count II
.
25 .
At all relevant times plaintiff was in the exercise of due care and caution for itself
and for others .
5
26 .
The acts of defendant Coleman and Chapco were in violation of the statute
aforesaid, negligent and in disregard of the rights of plaintiff and of the general public and
caused harm to plaintiff and its real property .
WHEREFORE, plaintiff prays for judgment for compensatory damages against
defendants Rowe Industries, Inc
., individually and as successor to Coleman Cable and Wire
Company, and Chapco Carton Company, jointly and severally in the sum of Two Hundred Fifty
Thousand Dollars ($250,000 .00).
COLE TAYLOR BANK, not individually, but solely
as trustee under a certain Illinois land trust known
as trust 40323
; and as successor trustee to Michigan
Avenue National Bank of Chicago, under trust 1904
Dated : April 29, 1997
GERALD B . MULLIN
JOSEPH R . PODLEWSKI, JR .
Rosenthal and Schanfield
55 East Monroe Street
46th Floor
Chicago, Illinois 60603
(312) 236=5622
6
One of its Attorneys
'
.
EXHIBIT A
LEASE
THIS INDENTURE,
made May 21, 1971,
between Michigan
Avenue National Bank of Chicago, as Trustee under Trust
-;1904,
dated May 1, 1971 (hereinafter sometimes referred to as Les-
sor) , and Coleman Cable & Wire Company, a Delaware corporation
(hereinafter sometimes referred to as Lessee)
; wherein the
parties covenant and agree as follows :
CONSIDERATION AND PROPERTY .
Section 101
. Lessor, for and in consideration of
the rents herein reserved and of the covenants and agreements
herein contained on the part of the Lessee to be kept, ob-
served and performed, does by these presents, demise and lease
to Lessee and Lessee hereby hires and lets from Lessor the
real estate and all improvements now located thereon or pro-
vided to be constructed thereon, as particularly described
and set forth in SCHEDULE A attached hereto
. Said real es-
tate and improvements are sometimes hereinafter referred to
as "demised premises .
TERM OFLEASE
.
Section 201 . The term of this Lease shall commence
upon the dates and under the circumstances provided for in the
attached SCHEDULE B and the term as so fixed is sometimes here-
inafter referred to as "original term
."
CONSTRUCTIONOFI:PROVEMENTS .
Section 301 . Lessor agrees to construct on the de-
mised premises a structure and improvements in accordance with
the provisions contained in SCHEDULE A attached
.
C
Section 302 .
Lessor shall
obtain all
necessary
per-
mits
at its expense,
shall diligently
proceed with such con-
struction and shall complete the sane and shall deliver pos-
session thereof to Lessee in accordance with the provisions
set forth in said SCHEDULE A
.
RENTAL .
Section 401
. In consideration of the leasing, Les-
see aforesaid agrees to pay Lessor rent as specified and pro-
vided in SCHEDULE C attached hereto
.
TAXES AND ASSESSMENTS .
Section 501
. Lessee further agrees to pay as addi-
tional rent for the demised premises, all taxes and assess-
ments, general and special, water rates, utilities and all
other impositions, ordinary and extraordinary, of every kind
and nature whatsoever, which may be levied, assessed or
-;--
posed upon the demised premises or any part thereof or upon
any building or improvements at any time situated thereon, ac-
cruing or becoming due and payable during the term of this
Lease and any extension thereof (such matters being sometimes
referred to herein as "impositions") ,
provided, however, that
the general taxes levied against the demised premises shall
be prorated between Lessor and Lessee as of the date of com-
mencement of the term hereof for the first year of the term
for the last year of the term hereof and any extensions there-
of, all on the basis of the then last available tax bills .
Benefit may be taken by Lessee of the provisions of any stat-
ute or ordinance permitting
any
assessment to be paid over a
period of years .
-2-
I
Section 502 . Nothing herein contained shall
be con-
strued to require Lessee to pay any capital
levy, excise,
franchise, inheritance, estate, succession or transfer
tax
of Lessor or any income or ex:cess profits tax
assessed upon
or
in
respect
of any income
of
Lessor or chargeable to or re-
quired to be paid by Lessor unless such tax shall be specifi-
cally levied against the income of Lessor derived from the
rent by this Lease reserved, expressly and as and for a speci-
fic substitute for the real estate taxes, in whole or in part,
upon the demised premises or the improvements situated thereon
in which event said rent shall be considered as though it were
the sole income of Lessor .
Section 503 . Lessee further agrees to deliver to
Lessor, duplicate receipts or photostatic copies thereof show-
ing the payment of all said taxes, assessments, and other im-
positions, within thirty (30) days after the respective pay-
ments evidenced thereby .
Section 504
. Lessor shall, at its option, have the
right at all times during the term hereof to pay any imposi-
tions not paid by Lessee, and the amounts so paid, including
reasonable expenses, shall be so much additional rent due at
the next rent date after any such payments, with interest at
the rate of ten per cent (10%) per annum from the date of pay-
ment thereof .
Section 505
. Lessee may contest the amount or va-
lidity of any imposition by appropriate proceedings at
:.c .-
see's cost and expenso and, notiithstanding the provi-eio-
. :
-3-
of section
501, the
Lessee
may postpone
or defer payment of
any such imposition if the Lessee shall have deposited with
Lessor or such bank or trust company as Lessor may in writ-
ing direct, the amount so contested and unpaid, plus inter-
est and penalties thereon and all charges that may or might
be assessed against or become a charge on the demised premi-
ses in said proceedings, unless the demised premises or any
part thereof be, by reason of such deferment, in imminent
danger of being forfeited or lost
. Upon the termination of
such proceedings, Lessee shall pay the amount of such imposi-
tion, or part thereof as finally determined, together with
any costs, fees, interest, penalties or other liability in
connection therewith, and upon such payment Lessor shall re-
turn or cause to be returned to the Lessee the amount depos-
ited as aforesaid, without interest
. It at any time during
the continuance of such proceedings the amount deposited as
aforesaid shall be less than such unpaid imposition plus pen-
alties, costs and interest, Lessee shall, upon demand, depos-
it an additional sum equal to such deficiency, and upon fail-
ure of Lessee so to do, the amount theretofore deposited nay
be applied by Lessor to the payment of such imposition, and
interest and penalties in connection therewith, and any costs,
fees or other liability accruing in any such proceedings
. Les-
sor shall not be required to join in any such proceedings, un-
less law shall
require
that such proceedings be brought by or
in the name of the owner of the demised premises, in which
event Lessor shall join in such proceedings or permit the
C
sac,e
to be brought in Lessor's name, but shall
not be
sub-
ject to
any
liability in connection with any
such proceedings,
and Lessee shall indemnify and save harmless
Lessor from
such
liability . Lessee shall be entitled promptly
to all refunds
with respect to any imposition paid by it .
USE .
Section
601 . The demised premises shall be used
for any business or purpose permitted by present zoning clas-
sifications, or as the said demised premises may be rezoned
from time to time hereafter . Lessee shall not use or occupy
the demised premises or permit the demised premises to be
used or occupied contrary to any statute, rule, order, ordi-
nance, requirement or regulation applicable thereto, or in
any manner which would violate any Certificate of Occupancy
affecting the same, or which would cause structural injury
to the improvements or cause the value or usefulness of the
demised premises or any part thereof to diminish br which
would constitute a public or private nuisance or waste, and
Lessee agrees that it will promptly upon discovery of any
such use, take all necessary steps to compel the discontinu-
ance of such use and to oust the subtenants or occupants
guilty of such use .
MAINTENANCE OF PREMISES .
Section 701 . After the completion of the building
by Lessor, Lessee agrees, at its expense, to keep the demised
premises in good repair and in a clean and wholosoma con<'.i-
tion and to at all times fully comply with all health and no-
-5-
C
lice
regulations
in force and
also that
it will keep the im-
provements at any time situated upon the demised premises and
all sidewalks and areas adjacent thereto, as well as in the
area thereof, safe and secure and conformable to the lawful
and valid requirements of any municipality in
which said de-
mised premises may be situated and of all other public auth-
orities, and will make, at its own expense, all additions,
improvements, alterations and repairs on the demised premises
and on and to the appurtenances and equipment thereof required
by any lawful authorities or which may be made necessary by
the act or neglect of any other person or corporation (public
or private) ,
including supporting the streets and alleys ad-
joining the demised premises, and will keep Lessor harmless
and indemnified at all times against any loss, damage, cost
or expense by reason of the failure so to do in any respect
or by reason of any accident, loss or damage resulting to per-
sons or property from any use which may be made of said prem-
ises or of any improvements at any time situated thereon or
by reason of or growing out of any act or thing done or omit-
ted to be done upon said premises or inany building at any
time situated thereon ; and Lessee agrees that it will save,
hold and keep Lessor and the demised premises free and clear
of and from any and all claims, demands, penalties, liabili-
ties, judgments, costs and expenses, including reasonable
torneys' fees, arising out of any damage which may be sus-
tained by adjoining property or adjoining owners or other
persons or property in connection with any remodeling, alter-
ing
or repairing of
any building
or buildings
on the demised
premises or the
erection of any
new building
or buildings
thereon,
unless such
action is
underta'.:en
by Lessor pursuant
to its
obligations
under this Lease .
Section 702 . Section 701 shall not apply
to
any
obligation or liability arising in connection with Lessor's
duty to construct, repair, or reconstruct the building
and
improvements pursuant to the terms of this Lease .
INSURANCECOVERAGE .
Section 801 . Lessee further agrees that it will at
all tines during the term hereof, at its own cost and expense,
carry and maintain, for the mutual benefit of Lessor and Les-
see, such policy or policies of insurance with companies rea-
sonably satisfactory to Lessor and in such amounts as are set
forth and provided in SCHEDULE D attached hereto
. All such
policies shall provide that the same may not be cancelled or
altered except upon ten (10) days' prior written notice to
Lessor .
Section 802
. In case any action or proceeding shall
be commenced against Lessor growing out of any casualty loss,
cost, damage or expense (other than matters arising in connec-
tion with Lessor's construction or restoration of the building
and improvements as provided herein)
, Lessor may give written
notice of the same to Lessee and thereafter Lessee shall as-
suna and discharge all obligations to defend the same and save
and keep Lessor harmless from all expenses, counsel fees,
costs, liabilities, judgments and executions in any manner
growing out of, perLaining to or connected therewith
.
-7-
I
as insureds thereunder,
and shall provide that losses
shall
be paid to said insureds
as their respective interest
may
appear . At the request
of Lessor, a mortgage
clause may
be
includad in said
policies covering
Lessor's mortgagee .
Said policies
shall
contain a waiver by the insurance company
of recourse against Lessee and its agents because of any act
or negligence of Lessee and shall further provide that the
same shall not be cancelled or altered except upon ten (10)
days' prior written notice to Lessor and to mortgagee
. The
original of such policies shall be deposited with the mort-
gagee and a duplicate shall be deposited with Lessor
.
Section 806
. Not less frequently than once in each
five (5) years after the commencement of the tern hereof, Les-
see shall furnish, at its expense, to Lessor, insurance ap-
praisals such as are regularly and ordinarily made by insur-
ance companies, if procurable for such purpose, in order to
determine the then insurable value of the building or build-
ings and improvements on the demised premises .
Section 807 . It is further agreed that, in the
event of loss under any such policy or policies, Lessee may
elect to have the insurance proceeds paid to a corporate trus-
tee selected by Lessor from among the five largest Chicago
banks, to be held for the benefit of Lessor and Lessee, and
to be paid to the Lessor by said trustee upon presentment of
architects' or engineers' certificates for the expense of re-
pairing or rebuilding the buildings or improvements which have
been dumaged or destroyed
. Upon the completion of said re-
-9-
pairs
or rebuilding, free
from all
liens of
mechanics
and
materialnen
and
others, any surplus of
insurance money shall be
paid to Lessor
. The fees and expenses of the corporate trus-
tee shall be paid by Lessee .
Section 608 . Lessee further agrees that, at Les-
sor's written request, and provided such insurance is obtain-
able from an agency of the United States Government, if and
when obtainable, it will procure and maintain so-called war
risk and war damage insurance on the improvements located
upon the demised premises for not less than ninety per cent
(90%) of their full insurance value above foundation
. Such
insurance shall provide for payment of loss thereunder to
Lessor and Lessee, as their interests may appear, and shall
at Lessor's request, contain a mortgage clause in favor of
Lessor's
mortgagee,
and the policies or certificates evi-
dencing such insurance shall be delivered to Lessor within
sixty (60) days after demand, and renewals thereof shall be
delivered to Lessor at least ten (10) days prior to the ex-
piration date of the respective policies . The provisions of
Section 807 of this Lease shall apply with respect to any
loss payable under any such policy or policies of insurance .
DAMAGE OR DESTRUCTION .
Section 901
. Lessor further agrees that in case
of damage to or destruction of any building or improvements
on the demised premises or of the fixtures and equipment there-
in, by fire or other casualty, it will promptly, at its ex-
pense, rcpair, restore, or rebuild the same to the extent
-10-
that
shall deem
. necessary or desirable in connection with
the recuirements of Lessee's business, provided that, upon
the completion of such repairs, restoration or rebuilding,
the value and rental value of the buildings and improvements
upon the demised premises shall be substantially equal to the
value and rental value of the buildings and improvements
thereon immediately prior to the happening of such fire or
other casualty
. Rent shall not abate during the period of
such repair, restoration or rebuilding irrespective of whether
the improvements are not tenantable because of such damage or
destruction .
Section 902
. Lessee may make such alterations to
the building as it may desire during the term of this Lease
.
Before commencing alterations involving an estimated cost of
more than $25,000, (a) plans and specifications therefor,
prepared by a reputable licensed architect or engineer,
shall have been submitted to and approved by Lessor, (b) Les-
see shall have furnished to Lessor, an estimate of the cost
of the proposed work, certified to by the architect or en-
gineer by whom such plans and specifications shall have been
prepared
; and (c) Lessee shall either have furnished to Les-
sor a bond on which Lessee shall be principal, and a surety
company, authorized to do business in the state where the de-
mised premises are located, satisfactory to Lessor, shall be
surety, and which bond shall be in form satisfactory to Les-
sor, conditioned upon the completion of and payment in full
for such work within a reasonable time,
subject,
however,
to
delays occasioned by strikes, lockouts,
acts of
God,
govern-
mental restrictions or
similar causes beyond the
control of
Lessee, or other
security satisfactory to Lessor
to insure
payment for the completion
of all work free and
clear of
liens .
Section 903 .
If, during the last two
years of
the
original term, or during the renewal term, the building on
the demised premises is so damaged by fire or other casualty
as to render it untenantable in its entirety, Lessee may elect
to terminate this Lease upon notice to the Lessor given not
later than sixty days following the occurrence of such casu-
alty
. This Lease shall terminate upon the giving of such
notice, and all payments due the Lessor shall be prorated to
that date
. If this Lease is so terminated, Lessor shall have
no obligation to rebuild the buildings, and shall be entitled
to the full amount of the insurance proceeds, if any .
LIENS .
Section 1001 . Lessee shall not do any act which
shall in any way encumber the title of Lessor in and to said
demised premises, nor shall the interest or estate of Lessor
in said demised premises be in any way subject to any claim
by way of lien or encumbrance, whether by operation of law
or by virtue of any express or implied contract by Lessee,
and any claim to or lien upon said demised premises arising
from any act or omission of Lessee shall accrue only against
the leasehold estate of Lessee and shall in all respects be
subject and subordinate to the paramount title and rights
Lessor in and to
said premises
and
the buildings
and imorove-
ments
thereon . Lessee
will not permit the demised premises
to become subject to any mechanics', laborers' or material-
men's lien of record on account of labor or material furnished
to Lessee or claimed to have been furnished to Lessee in con-
nection with work of any character performed or claimed to
have been performed on the demised premises by or at the di-
rection or sufferance of Lessee . Lessee may contest the va-
lidity of any such lien or claimed lien at Lessee's cost, and
thereby defer payment thereof, if Lessee shall have deposited
with Lessor or such bank or trust company as Lessor may di-
rect, the amount so contested and unpaid
. Upon the termina-
tion of such proceedings, Lessee shall pay the amount of any
judgment rendered, with all proper costs and charges, and
will, at its expense, have the lien released and any judg-
ment satisfied, whereupon Lessor shall return or cause to be
returned to Lessee the amount deposited as aforesaid, without
interest .
Section 1002 . In case Lessee shall fail to contest
the validity of any such lien or claimed lien referred to in
section 1001 hereof and give security to Lessor to insure pay-
ment thereof, or having commenced to contest the same and hav-
ing given such security, shall fail to prosecute such contest
with diligence, or shall fail to have the same released
anal
satisfy any judgment rendered thereon, then Lessor may,
its election (hut shall not be required so to do), ro
.:,
-13-
discharge
such lien
or claim _cc lien (with the right,
in
its
discretion, to settle
or compromise
the
same), and any -
.amounts
advanced by Lessor for such purposes shall be so much addi-
tional rental due from Lessee to Lessor at the next rent date
after any such payment, with interest at the rate of ten per
cent (10%) per annum from the date of payment thereof .
CONDEMNATION .
Section 1101 . If, during the term of this Lease,
the entire demised premises shall be taken as a result of the
exercise of the power of eminent domain or a conveyance in lieu
thereof, this Lease shall terminate on the date of delivery of
possession to condemnor under such eminent domain proceedings
or conveyance in lieu thereof, and all rental and other sums
payable by Lessee hereunder shall be prorated to the date of
such delivery
. Notwithstanding any judicial allocation of
any award, the award is to be divided between Lessor and Les-
see in accordance with the value of their respective estates
in the demised premises, which shall be valued as of the date
of delivery to condemnor as if this Lease had not been ter-
minated
. For this purpose the value of Lessor's estate in
the demised premises shall be deemed to be an amount equal
to the sun of the commuted value of the rent for the remainder
of the term of this Lease and the co.muted
value of Lessor's
reversionary interest in the demised premises (but not less
than the then unpaid balance of Lessor's mortgage)
, and the
value of Lessee's estate in the demised premises shall be
deemed to be an amount equal to the balance of the award
.
C
Section 1102 . If thirty
percent (30,)
or more of
the usable floor area of the building on the demised premises
shall be taken as a result of the exercise of the power of
eminent domain or a conveyance in lieu thereof, but less than
the entire demised premises, or if a part of the demised prem-
ises is taken which results in a physical separation of the
demised premises from the property contiguous thereto which
is owned by Lessee so as to prevent Lessee from gaining access
to the demised premises by travelling directly from its own
property, and either of these two stated contingencies occurs
within the last two years of the original term or during any
extension thereof, Lessee may terminate this Lease by notice
in writing given not more than sixty (60) days after delivery
of possession in such proceeding, and shall specify a date
not more than sixty (60) days after the giving of such notice
as the date for such termination
. Upon the date specified in
such notice, this Lease shall terminate, and all rent and
other sums payable by Lessee shall be prorated to the date
of such termination
. Notwithstanding any judicial allocation
of the award, the award is to be allocated in the manner pro-
vided in section 1101 for a taking of the entire demised premise
Section 1103
. If less than thirty percent (30%) of
the usable floor area of the building on the demised premises
shall be taken as a result of the exercise of the power of
eminent domain, or if thirty percent (30%) or more of the
usable floor area of the building is taken but Lessee does
not terminate this Lease as provided in section 1102, this
-15-
Lease shall not terni ::ate but shall continue
in full
force
and effect for the re-.ainder
of
the
term of this Lease and
extensions (if any) , subject to the provisions hereof_ Not-
withstanding any judicial allocation of the award, the award
is to be divided between Lessor and Lessee in accordance with
the damage to the value of their respective estates in the
demised premises, which shall be determined as of the date
of delivery of possession to condemnor . Rent shall abate
equitably . For the purpose of this section 1103 the damage
to Lessor's estate in the demised premises shall be deemed to
be an amount equal to the sum of the commuted value of the
rent abated for the remainder of the stated term of this Lease
and the commuted value of Lessor's reversionary interest in
the demised premises, and the value of Lessee's estate in the
demised premises shall be deemed to be an amount equal to the
balance of the award . Lessor shall promptly restore (except
for unavoidable delays) that portion of the building not so
taken to an economically useful and architecturally complete
unit of the same general character and condition (as nearly as
may be possible) as the building existing before such taking .
Section 1104 . If all or any portion of the demised
premises shall be taken by the exercise of the right of emi-
nent domain for governmental occupancy for a limited period,
this Lease shall not terminate and Lessee shall continue to
perform and observe all of its obligations hereund=_r as though
such taking had not occurred except only to the extent that it
may be prevcntcnd fcon so doing by reason of such taking
. Les-
see,
however, shall
in no
event
be excused from the payment
of
rent and all other suns and charges
required to be
paid by Les-
see
under this Lease
. In the event of such taking as
in this
section referred to, Lessee shall be entitled to
receive the
entire
amount of any award
made for such taking (whether
paid
by
way
of damages,
rent or otherwise, provided, however,
where
the award is not to be paid as rent in
substantially equal in-
stallments over the period of governmental occupancy,
Lessor
may require Lessee to deposit all or a portion of
the award
with Lessor which shall hold it in a separate bank account as
a trust fund for Lessee's benefit to be applied against rent
as it accrues hereunder) and Lessor hereby assigns such award
to Lessee, unless the period of governmental occupancy extends
beyond the termination of the term of this lease, in which
case the award shall bo apportioned between Lessor and Les-
see at the time of such award and, in such apportionment, Les-
sor shall receive the full amount, if any, of any portion of
said award which represents the cost of restoration at the
termination of any such governmental occupancy . Lessee, at
the termination of any such governmental occupancy, shall at
its sole cost and expense restore the building as nearly as
may be reasonably possible to the condition in which the same
was prior to such taking, ordinary wear excepted, but Lessee
shall not be required to do such restoration work if on or
prior to the date of such termination of governmental occu-
pancy, the term of
this Lease shall have terminated or if
such date of termination of governmental occupancy shall cc-
-17-
cur
less than , _years
prior to the termination of
the term of
this Lease, in which event Lessee shall be entitled to
'the
proceeds of the award, except for any part thereof represent-
ing the cost of restoration .
Section 1105
. In applying the foregoing sections
1101-1104, the following provisions shall govern
:
(a) In any proceeding Lessor shall be entitled to
collect the entire award from the condemnor, without deduc-
tion for any estate or interest of Lessee under this lease
.
Lessor shall hold the award when collected in a separate bank
account as a trust fund and shall turn over to Lessee its
share of the award in accordance with said sections if no
default then exists under this Lease .
(b) Whenever a determination is to be made as to
the fair market value of the demised premises and the build-
ing at any future time (as in determining the commuted value
of Lessor's reversionary interest in the demised premises and
the building) ,
such value shall be conclusively assumed to be
the same as the value at the time the determination is being
made
.
(c) The discount rate to be used in determining
the commuted value at any time of future money payments or
of a reversionary interest in the demised premises or the
building shall be the average of the prime rates then to
:n,'
charged by the two largest banks in Chicago, Illinois for
nicety (90) day unsecured loans to borrowers of the h"
;:'
credit sta :r_'ing, plus one percent
(1%) .
-18-
(d) Disputes
arising
under sections
1101-1105
shall
be determined
by arbitration pursuant to section
3101 hereof .
PS:.T :,3S0~J25 .
Section 1201 . Except as otherwise specifically
pro-
vided herein, damage to or destruction of any portion or all
of the buildings, structures
and
fixtures
upon
the demised
premises,
by fire, the elements or any other cause whatso-
ever,
whether with or without fault on the part of Lessee,
shall not terminate this Lease or entitle Lessee to surrender
the demised premises or entitle Lessee to any abatement of or
reduction in the rent payable, or otherwise affect the respec-
tive obligations of the parties hereto, any present or future
law to the contrary notwithstanding . If the then-existing use
of the demised premises should, at' any time during the tern
of this Lease, be prohibited by law or ordinance or other gov-
ernmental regulation, or prevented by injunction, or if there
be any eviction by title paramount, this Lease shall not, ex-
cept as otherwise specifically provided herein, be thereby ter-
minated, nor shall Lessee be entitled by reason thereof to sur-
render the demised premises or to any abatement or reduction
in rent, nor shall the respective obligations of the parties
hereto be otherwise affected unless such eviction is due to
the act of Lessor or any person or persons claiming any inter-
est in the demised premises by or under Lessor
.
ASSIGNEENT BY LESSEE
.
Section 1301
. Lessee shall not assign this Lease,
.without the written consent of Lesser, which consent shall not
-19-
be
c.^.reasornbl
withheld .
In
event of an assignment un-
der the provisions hereof, Lessee shall require the written7
acceptance of
this Lease by such assignee and the assignee's
agreement to be bound under the terms thereof
. In such event,
Lessee shall thereafter be secondarily liable hereunder .
Lessee shall have the unrestricted right to sublet, subject,
however, to Lessee's obligations under this Lease, but no such
subletting shall relieve Lessee of said obligations
.
Section 1302 . Lessee may, without Lessor's consent,
assign this Lease to any corporation in connection with a mer-
ger or consolidation, provided that the total assets and net
worth of such assignee after such transaction shall be more
than that of Lessee immediately prior to such transaction,
and provided that Lessee is not at such time in default here-
under, and provided further that such successor shall execute
an instrument in writing fully assuming all of the obligations
and liabilities imposed upon Lessee hereunder and deliver the
same to Lessor
; whereupon Lessee shall b e dis-charged from any
further liability hereunder
.
Section 1303
. Lessee shall not allow or permit any
transfer of this Lease, or any interest hereunder, by operation
of law, or convey, mortgage, pledge, or encumber this Lease or
any interest hereunder, except as provided herein
.
ANNUAL sTATE ;I- ::"S .
Section 1401
. Lessee further agrees to furnish Les-
sor annually within ninety (90) days of the end of each fiscal
year, with a copy of its annual audited statement, and agrees
that Lessor may deliver such statements to its mortgagee
.
-20-
IN7:->eiITY
FOR LITIGATION .
Section
1501 . Lessee
further
agrees to pay all costs
and e>:perses,
including
attorneys'
fees,
which may be incurred
b,, or imposed or. Lessor in any litigation relating to
Lessee's
use or occupancy of the demised premises to which Lessor, with-
out fault on its
Dart, may be made a party, and if paid by
Lessor, shall be so much additional rent due on the next rent
date after such payment together with interest at ten per cent
(105) per annum from the date of payment .
ESTOPPEL CERTIFICATE BY LESSEE .
Section 1601
. Lessee further agrees at any time
and from time to time, upon not less than twenty (20) days'
prior written request by Lessor, to execute, acknowledge and
deliver to Lessor 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
date to which the rental and other charges have been paid in
advance, if any, it being intended that any such statement de-
livered pursuant to this Section 1601, may be relied upon by
any prospective purchaser of the fee, or mortgagee or assignee
of any mortgage upon the fee, of the demised premises
.
INSPECTION OF PREMISES .
Section 1701
. Lessee agrees to permit Lessor and
the authorized representatives of Lessor, to enter the demised
premises at all reasonable tines during business hours for the
purpose of inspecting the sain.e_
.
-21-
rl TUzCs .
Section 1301 . All buildings and
improvements
and
all
plumbing,
heating, lighting, electrical and
air
condition-
ing fixtures and equipment and other articles
of personal
prooerty used in the operation of such buildings as such (as
distinguished from operations incident to the business of Les-
see) now or hereafter located upon said land, together with
all duct electrical lines, whether or not attached or affixed
to said land or any buildings thereon, sometimes herein re-
ferred to as "building fixtures," shall be and remain a part
of the real estate and shall constitute the property of
Lessor
.
Section 1802 . All of Lessee's trade fixtures and
all personal property, fixtures, apparatus, machinery and
equipment nor or hereafter located upon said land, other than
building fixtures as defined in Section 1801 hereof, and owned
by Lessee or any other occupants of the-demised premises and
whether or not the same are affixed thereto, shall be and
remainn the personal property of Lessee or such other occu-
pants, and the same are herein sometimes referred to as "Les-
see's equipment
."
Section 1803
. Lessee's equipment may be removed
from time to time by Lessee or other occupants of the demised
premises, provided, however, that if such removal shall in-
jure or damage the premises, Lessee shall reasonably repair
the damage and place the premises in the same condition as it
would have been if such equipment had not been installed .
-2?-
C
F_EC ;TRYup0 :J D-?AULS .
Section
1901 . Lessee
further
agrees that any one
or more of the following events shall be considered events
of default as said term is used herein, that is to say, if
(a) Lessee shall be adjudged a bankrupt,
or a decree or order approved, as properly
filed, a petition or answer asking reorganiza-
tion of Lessee under the Federal bankruptcy
laws as now or hereafter amended, or under the
laws of any State, shall be entered, and by
any such decree or judgment or order shall
not have been vacated or stayed or set aside
within sixty (60) days from the date of the
entry or granting thereof ; or
(b) Lessee shall file or admit the
jurisdiction of the court and the material
allegations contained in, any petition in
bankruptcy, or any petition pursuant or pur-
porting to be pursuant to the Federal bank-
ruptcy laws as now or hereafter amended,
or Lessee shall institute any proceedings
or shall give its consent to the institu-
tion of any proceedings for any relief of
Lessee under any bankruptcy or
insolvency
laws or any laws relating to the relief of
debtors, readjustment of indebtedness, re-
organization, arrangements, composition or
extensi .on ; or
(c) Lessee shall
make any
assignment
for the benefit of creditors or shall apply
for or consent to the appointment of a re-
ceiver for Lessee or any of the property of
Lessee ; or
(d)
A decree or order appointing a
receiver of the property of Lessee shall be
made and such decree or order shall not have
been vacated, stayed or set aside within
sixty (60) days from the date of entry or
granting thereof ; or
(e) Lessee shall vacate and abandon
the leased premises during the term hereof
;
or
(f) Loss ee shall make default in any
monthly payments of basic rent required to
be made by Lessee hereunder when due as
herein provided and such default shall :con-
tinue for twenty (20) days after notice
thereof in writing to Lessee
; or
(g) Lessee shall make default in any
of the other covenants and agreements here-
in contained to he kept, observed and per-
formed by Lessee, and such default shall
continue for sixty (60) days after notice
thereof
in writing to Lessee .
-24-
Upon the occurrence of any one or more
cf_ such
events of d=efault, it shall be lawful for Lessor, at its elec-
tion, to declare the said term ended, and the said demised
premises and' the buildings and improvements then situated
thereon or any part thereof, either with or without process
of law, to re-enter and to expel, remove and put out, Lessee
and all persons occupying said premises under Lessee, using
such force as may be necessary in so doing, and the said
premises and the buildings and improvements then situated
thereon, again to repossess and enjoy as in their first and
former estate, without such re-entry and repossession working
a forfeiture of the rents to be paid and the covenants to be
performed by Lessee during the full term of this Lease_ If
default shall be made in any covenant, agreement, condition
or undertaking herein contained to be kept, observed and per-
formed by Lessee, other than the payment of rent as herein
provided, which cannot with due diligence be cured within a
period of sixty (60) days, and if notice thereof in writing
shall have been given to Lessee, and if Lessee, prior to the
expiration of sixty (60) days from and after the giving of
such notice, commences to eliminate the cause of such default
and proceeds diligently and with reasonable dispatch to take
all steps and do all work required to cure such default and
does so cure such default, then Lessor shall not have the right
to declare the said term ended by reason of such default ; pro-
-25-
vided,
however, that
the curing of any default
in
such manner
shall not
be construed
to linit or restrict the
right
of Les-
sor to declare
the
said term ended and enforce
all of
its
right
and remedies hereunder for
any other default not
so
cured .
Section 1902 . The foregoing provisions for
the ter-
mination of this Lease for any default
in
any of
its covenants,
shall not operate
to
exclude or suspend any other remedy of
Lessor for breach of any of said covenants or for the recovery
of said rent or any advance of Lessor made thereon, and in the
event of the termination of this Lease as aforesaid, Lessee
agrees to indemnify and save harmless Lessor from any loss
arising from such termination and re-entry in pursuance thereof
and to that end Lessee agrees to pay Lessor, after such ter-
mination and re-entry and upon demand, all reasonable expenses
of re-letting, including, without limiting the generality of
the foregoing, the reasonable costs of decorating and restor-
ing the premises, brokers' commissions and Lessor's reasonable
attorneys' fees, plus, at the end of each month of the demised
term, the difference between the net income actually received
by Lessor from said demised premises during such month and
the rent agreed to be paid by the terms of this Lease during
such month .
Lr-
.
SSOR'S PEnFOP,;**-nNCE
OF LESSEE'S COVENANTS .
Section 2001
. Should Lessee at any tire fail to do
any of the things required to be done by it under the provi-
-2G-
C
sic ;:s o`_ this
Lease,
Lessor,
at its option and
pursuant to
the
provisions
relating to notice
contained in Section
1901, may
(but
shall
not be required to) do the same or cause the same
to be done,
and the amounts
paid by Lessor in connection there-
with
shall be so
much additional rent due on the next rent date
after such
payment
together with interest at ten per cent (109)
per annum from the date of payment
.
SUBORDINATION TO MORTGAGES
.
Section 2101
. At the option of Lessor's mortgagee,
this Lease shall be subject and subordinate to any first mort-
gage or deed of trust now upon the demised premises and any
mortgage or deed of trust hereafter placed upon the demised
premises, provided that the mortgagee or the trustee and bene-
ficiary under such deed of trust agrees in writing with Lessee
or adequate provision is made in such mortgage or deed of
trust, that, regardless of any default or breach under such
mortgage or deed of trust or of any possession or sale of the
whole or any part of the premises under or through such mort-
gage or deed of trust, that this Lease and Lessee's possession
shall not be disturbed by mortgagee or beneficiary or any oth-
er party claiming under or through such mortgage or deed of
trust, provided, however, that Lessee shall continue to ob-
serve and perform Lessee's obligations under this Lease and
pay rent to whorsoever may be lawfully entitled to same from
tide to time
. Lessee hereby agrees to execute, if same is re-
quired, any and all instrum:=nts
in writing which may be re-
-27-
quo¢ied
by Lessor to
subordinate
Lessee's
rights acquired
by
this Lease
to the
lien of any such mortgage or deed
of trust,
all as
aforesaid
. Irrespective of whether or not this
Lease
is subordinated
to any
such mortgage or deed of trust, the
mortgagee or beneficiary under such mortgage or deed of trust,
shall agree in writing that proceeds of insurance, or awards,
payable to Lessee in the event of partial condemnation as
provided in Section 1103 shall be made available to Lessor
for the purpose of repairing, restoring and rebuilding, as
provided in this Lease, or adequate provisions relative there-
to shall be made in such mortgage or deed of trust .
REZEDIES TO BE CUMULATIVE
.
Section 2201
. No remedy herein or otherwise con-
ferred upon or reserved to Lessor, shall be considered ex-
clusive of any other remedy, but the same shall be cumula-
tive and shall be in addition to every other remedy given
hereunder now or hereafter existing at law or in equity or
by statute, and every power and remedy given by this Lease
to Lessor may be exercised from time to time and as often as
occasion may arise or as may be deemed expedient
. No delay
or omission of Lessor to exercise any right or power arising
from any default, shall impair any such right or poorer or
shall be construed to be a waiver of any such default or an
acquiescence therein .
Section 2202
. No waiver of any breach of any o'
the covenants of this Lease shall he construed, ta'
.:er.,
held to he a
of any other breach
waiver, ac
C
cenco
in or consent to any furrher or succeeding breach of the
Sae covenant
.
Section 2203 . Neither the rights herein given to
receive, collect, sue for or distrain for any rent or rents,
moneys or payments, or to enforce the terms, provisions and
conditions of this Lease, or to prevent the breach or non-
observance thereof, or the exercise of any such right or of
any other right or remedy hereunder or otherwise granted or
arising, shall in
any way affect or impair or toll the right
or power of Lessor to declare the term hereby granted ended,
and to terminate this Lease as provided for in this Lease,
because of any default in or breach of the covenants, provi-
sions or conditions of this Lease
.
SURRENDER OF POSSESSION .
Section 2301
. Whenever the said term herein doniscd
shall be terminated, whether by lapse of time
; forfeiture or
in any other way, Lessee agrees that it will at once surrender
and deliver up said premises, including the buildings and im-
provements thereon and the fixtures and equipment belonging
to Lessor therein contained, peaceably to Lessor and if
Lessee shall thereafter remain in possession thereof, it
shall be deemed guilty of forcible detainer of the premises
uncrer the statute and shall be subject to all the conditions
and provisions above named and to ejection and removal, for-
cibly and otherwise, with or without process of law as above
stated .
Section 2302
. In connection with said surrender of
possession, Lessor agrees to Permit Lessee to come onto the
C
demised premises at reasonable tines for the
purpose of
re-
moving connections,
such as breezeways and water mains,'
; be-
tween the building and the property contiguous to the demised
premises owned by Lessee . Such disconnections shall be made
at Lessee's cost and expense .
COVENANT OF QUIET ENJOYMENT .
Section 2401 . Lessor further agrees that at all
times when Lessee is not in default under the terms of and
during the term of this Lease, Lessee's quiet and peaceable
enjoyment of the demised premises shall not be disturbed or
interfered with by Lessor or by any person claiming by,
through or under Lessor .
SHORT FORM LEASE .
Section 2501 . This Lease shall not be recorded,
but the parties agree, at the request of either of them, to
execute a Short Form Lease for recording, containing the name
of the parties, the legal description and the term of the
Lease .
LESSEE'S OPTION TO EXTEND .
Section 2601
. Lessee shall have no option to extend
the term of this Lease except to the extent that such option
of extension is given in the attached SCHEDULE B
.
NOTICES OR DEMANDS
.
Section 2701
. All notices to or demands ucon Lessor
or Lessee desired or required to be oiven under any of the
provisions hereof, shall be in writing
. Any notices or de-
-30-
nd ; from Lessor to
Lessee shall be deemed
to have
been duly
and sufficiently given
if
a cop_
,
thoreof
has
been mailed by
United States registered or certified mail in an envelope
properly stamped and addressed to the Lessee at the demised
premises, or at such other address as Lessee may theretofore
have furnished by written notice to Lessor
. Any notices or
demands from Lessee to Lessor shall be deemed to have been
duly and sufficiently given if mailed by United States regis-
tered mail or certified mail in an envelope properly stamped
and addressed to Lessor, c/o Theodore G
. Gaines, 221 North
LaSalle Street, Chicago, Illinois 60601, or at such other ad-
dress as Lessor may theretofore have furnished by written no-
tice to the Lessee
. The effective date of such notice shall
be three (3) days after delivery of Lhe same to the United
States Post Office for mailing .
COVENANTS RUN WITH LAND
.
Section 2801 . All of the covenants, agreements, con-
ditions and undertakings in this Lease contained shall extend
and inure to and be binding upon the heirs, executors, admnin-
istrators, successors and assigns of the respective parties
hereto, the same as if they were in every case 'specifically
named, and shall be construed as covenants running with the
land, and wherever in this Lease reference is made to either
of the parties hereto, it shall be held to include and apply
to, wherever applicable, the heirs, executors, administra-
tors, successors and assigns of such party . Nothing herein
-31-
contained
shall
he
construed
to grant or confer
upon
any
person other
than the
parties hereto, their
heirs,
executors,
administrators,
successors
and assigns, any
right, claim
or
privilege by virtue
of any covenant,
agreement,
condition
or
undertaking in this Lease contained .
Section 2^002 .
The term "Lessor" as
used in
this
Lease, so far as
covenants or obligations
on the part
of Les-
sor are concerned,
shall be limited to mean and include only
the owner or owners at the time in question of the fee of
the demised premises, and in the event of any transfer or
transfers of the title to such fee, Lessor herein named (and
in case of any subsequent transfers or conveyances, the then
grantor) shall be automatically freed and relieved, from and
after the date of such transfer or conveyance, of all per-
sonal liability as respects the performance of any covenants
or obligations on the part of Lessor contained in this Lease
thereafter to be performed
; provided that any funds in the
hands of such Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest, shall be turned
over to the grantee, and any amount then due and payable to
Lessee by Lessor or the then grantor under any provisions of
this Lease, shall be paid to Lessee ; provided, further, that
Lessee may elect to have such funds paid to a corporate trus-
tee selected by Lessor from among the five largest Chicago
bar.l:s,
to be held in trust for the benefit of Lessor and Les-
see, as their respective interests may appear, and dealt with
_z7_
in
accordance ~.ith the
section of
this 1-ease under
which
tae
ft:ncs
become payable
. The fees and expenses of the
corporate
trustee shall be paid
by Lessee .
S=CU2r^_SDEPOSIT .
Section 2901 . As security for the faithful
perfor-
mance of the terms, covenants, conditions and .
provisions of
this Lease as well as indemnification to Lessor from any
dam-
ages, costs, expenses, fees or other burdens to
which Lessor
may
be
put by reason of any default by Lessee hereunder, of
the terms of this Lease, Lessee hereby agrees to deposit with
Lessor the sum of $141,000 as a security deposit . One-half
of the security deposit shall be paid to Lessor upon execution
hereof
; the other half shall be paid upon commencement of the
term of this Lease .
V/
In the event Lessee shall be in default hereof and
should such default not be remedied by Lessee in accordance
with the provisions herein, then Lessor may apply all or any
portion of the security deposit in payment of Les'sor's costs,
expenses, damages, fees and burdens suffered or accrued in
enforcing the terms, covenants, conditions and provisions of
this Lease . Nothing herein contained shall be construed to
mean that the recovery of damages by Lessor against Lessee
term hereof, then the Lessee shall upon request of the '
.,
-33-
shall be limited to the amount of the security deposit .
I n
the event any portion or all of the security deposit is
plied by Lessor in accordance with the foregoing, durinc
a;-.-
deposit with Lessor
additional
sums so that the
amount of
the
security deposit in tile hands of
the Lessor shall
at all
times
be
not less than the sic.: total or
security
deposit as
pro-
vided for hereunder .
Interest at the rate
of seven percent (7%) per
an-
num
shall be paid to Lessee
on the balance of the security
de-
posit on hand
from time to tine during the first four years
of the term of this Lease
and interest at six percent (6%)
shall be paid during the remainder of said term, payable on
the anniversary date of this Lease during the term hereof and
all extensions and provided that no defaults have occurred
hereunder which have not been cured as provided herein .
Lessor shall return to the Lessee a portion of the
security deposit in the principal amount of $100,000, payable
in 83 equal monthly installments of $1,200 and one final northl
installment of $400, the first installment being payable thir-
teen months after commencement of the term
.
Lessor shall have the free and unrestricted right
to treat such security deposit in any manner or mode which
suits its convenience and necessity
. The security deposit
not theretofore returned to Lessee shall be returned to Les-
see upon the expiration of the term of this Lease and upon
compliance by Lessee with all the provisions and terms here-
of
. In the event the term of this Lease shall not commence
without fault of the Lessee, then Lessor shall return the
entire security deposit upon demand of the Lessee
.
-34-
TI:'E OF Ess:XCE .
Section 3001 . Tire is of the essence of
this Lease,
and all
pr=risions
herein relating thereto shall
be strictly
construed .
AR.3ITR TIDY
Section 3101
. F.'henever a dispute arises which un-
der the terms of this Lease is to be determined by arbitra-
tion, either party may demand arbitration by written notice
to the other party setting forth the point or points in dis-
pute . The rules of the American Arbitration Association shall
govern . Costs incurred as a result of such arbitration shall
be borne equally by Lessor and Lessee .
MISCELLANEOUS
.
Section 3201 . The captions of this Lease are for
convenience only and are not to be construed as part of this
Lease and shall not be construed as defining or limiting in
any way the scope or intent of the provisions hereof .
Section 3202 . If any term or provisions of this
Lease shall to any extent be held invalid or unenforceable,
the remaining terms and provisions of this Lease shall not
be affected thereby, but each term and provision of this
Lease shall be valid and be enforced to the fullest extent
permitted by law .
Section 3203 . This Lease shall be construed and
enforced in accordance with the laws of the state where the
demised premises are located
.
Section 3204 . In the event Lessor proposes to
sell the fee to the demised premises to a prospective pur-
-35-
chaser thereof,
it
;hall
_ Lessee
written notice of said
p_ouosal, s`_atirg c .
._ terms and conditions of sale submitted
b said prospective purchaser and tentatively agreed to by
Lessor . Lessee shall have a prior right to purchase said
fee upon said terms and conditions, exercisable upon written
notice to Lessor within twenty (20) days following receipt
of notice from Lessor as aforesaid
. If notice of exercise
of said right is not given within said period by Lessee,
Lessee's right shall thereupon terminate as to the proposed
sale in question .
Section 3205
. In the event Lessee is obligated to
make sinking fund deposits for real estate taxes with any
mortgagee on primary mortgage financing covering the demised
premises hereafter, then Lessee agrees that it will make sink-
ing fund deposits deire_`ly to tho ...crtgage- for such purpose
in partial satisfaction of its obligations under section 501
.
Section 3206 . Lessor agrees that it will obtain
primary mortgage financing covering the demised premises from
an institutional investor .
EXECUTION CLAUSE
.
Section 3301 . This Lease is executed by Michigan
Avenue National Bank of Chicago, a national banking associa-
tion, not personally, but as Trustee under Trust No . 1904, as
aforesaid, in the exercise of the power and authority con-
ferred upon and vested in said Trustee as such, which
ority it possesses, and it is expressly understood an-,
that nothing in said Lease contained shall be con ;tr •- i. •' :
creating any liability on said Trustee
personally
to
-3G-
accrui_nc
there_ .-.der,
or to p
erform
.. anv
coy=_cants,
either express or implied in said Lease (all
such liability,
if any, being e: :pressly
waived
by the said
Lessee and by
every person now or hereafter claiming any right or
security
hereunder)
and the Lessee and anyone claiming thereunder
shall
look solely to the trust property and
the premises described
therein
for tae payment
or enforcement thereof, it being un-
derstood that the said Trustee merely holds legal title to
the premises therein described and has no control over the
management thereof or the income therefrom, and has no knot-
.l-
edge respecting rentals, leases or other factual matters with
respect to said premises, except as represented to it by the
beneficiary or beneficiaries of the said Trust .
IN WITNESS IiKEREO?, the parties hereto set their
hands and seals the day and year first above written
.
MICHIGAN
A.VEi
:UE NATIONAL BANK AND
TRUST CO`LPA[IY, a National Banking
Assoc' tion, not personally but as
Trust
nder Trust No . 1904 .
Its Assistant See .retary
Elsie C .
Ca+>inski,
By
COLBNAN CABLE &
E C029ANY,
a D
are cor
i n
SCHEDULE A
.
PROPERTY
Schedule
annexed to Lease dated
May 21, 1971,
for property known
as 1610 Fifth Avenue, River
Grove, Illinois
The demised premises, commonly known as
1810 Fifth
Avenue, Village of River Grove,
State of Illinois, will be
improved by the Lessor, at Lessor's sole cost, with a build-
ing and other improvements to be constructed in accordance
with Plans and Specifications attached hereto and identified
as Exhibit E, on real estate having the following legal des-
cription :
The South 260 .0 feet of that part of the
North West Quarter of the South West Quar-
ter which lies Northeasterly of the Minne-
apolis, St . Paul and Sault Ste . Marie Rail-
road right of way of Section 35, Township
40 North, Range 12 East of the Third Prin-
cipal Meridian, in Cook County, Illinois
.
Lessor shall commence construction of the improve-
ments in accordance with Plans and Specifications and Working
Drawings on or before July 1, 1971, and after obtaining neces-
sary building permits so to do . It is estimated that the im-
provements shall be substantially completed and ready for
occupancy by the Lessee on or before December 1, 1971
. Les-
sor shall diligently proceed with such construction but if
such construction is delayed because of delay in securing a
building permit, failure of Lessee to approve the Plans and
Specifications, changes in construction required by Lessee,
strikes, lockouts, acts of God or the public enemy, covern-
mental
restrictions, unavailability
of materials,
or
other
matters beyond
the
control
of Lessor, then
the ti.:te
of com-
pletion of such construction shall
be
extended for an
addi-
tional time caused by such delay
.
SCIiLDUL1 B
TEELi
Schedule anne
: :ed to
Lease dated
May 21, 1971, for property known
as 1010 Fifth Avenue, River Grove,
Illinois .
The original term of this Lease shall be for twenty-
five (25) years, said tern to cock nn necember 1, 1971 (or
the date that the improvements to . be made to the real estate
described in SCFEDULE A are substantially completed and ready
for occupancy by Lessee, if later than the stated date) . Les-
sor shall notify Lessee in writing at least fifteen (15) days
in advance of the completion date, and Lessee shall thereafter
accept the premises in accordance with the completion date
specified by Lessor (estimated to be on or about December 1,
1971)
. Determination of the building's availability for use
and occupancy by the Lessee shall be made by the Certificate
of the Architect or by a Certificate of Occupancy issued by
the governmental agency having jurisdiction or control
. If
the issuance of a Certificate of Occupancy is a legal prere-
quisite to occupancy of the demised premises, Lessor shall
procure said Certificate at its expense .
Lessee shall have the option to extend the term of
this Lease for one period of five years (the "renewal tern"),
which shall be on the term and conditions of the Lease to
which this schedule is attached, except as others'isc orovicad
in Sc:cdulc
C
. If Lessee desires to extend the original t__ .
of this Lease b_v
the
period oF the renewal term, it shall
Lessor written notice to that effect not later than
one
year prior
to the expiration
o`
the original term .
t
SCHEDULE C
RIL 2TAL
Schedule annexed to Lease dated
hay 21, 1971, for property known
as 1810 Fifth Avenue, River
Grove, Illinois
During the original term of this Lease, Lessee agrees
to pay Lessor, without prior demand, in coin or currency which
at the time or times of payment is legal tender for public or
private debts in the United States of America, monthly rent of
$12,833 .33, payable in advance, commencing on the first day of
the term and continuing on the first day of each month there-
after for the next succeeding 299 months
. Any installment of
rent accrued under the provisions of this Lease which shall not
be paid when due shall bear interest at the rate of 10€ per an-
num from the date when the sum is due hereunder until the same
shall be paid .
In the event that the commencement date of the term
of this Lease is not on the first day of a calendar month,
then for that period from the commencement date of the Lease
to the end of the calendar month rent shall be prorated so
that all other rentals due hereunder shall fall due on the
first day of each calendar month of the term hereof ; and, in
addition, the tern of this Lease shall be extended to the last
day of the calendar month in the final year of the Lease
. Rent
SCt :
:DUL
: D
I :'SU?ai CE
Schedule annexed to Lease dated
flay 21, 1971, for property known
1810 Fifth Avenue, River
Grove, Illinois
The casualty insurance coverages which Lessee shall
provide to Lessor under the provisions of this Lease are as
follows :
1 . Insurance against loss or damage by fire,
the risks covered by what is commonly known as "ex-
tended coverage," and malicious mischief and vandal-
ism in an amount equal to $1,300,000
.
2 . General public liability insurance for the
mutual benefit of Lessor and Lessee against claims
for personal injury, sickness or disease, including
death and property damage, in, on or about the de-
mised premises, or in, on or about the streest,
sidewalks or premises adjacent to the demised prem-
ises, such insurance to provide protection to the
limit of not less than $300,000, in respect to
each person, and to the limit of Pot less than
$1,000,000, in respect to any one occurrence
causing bodily injury or death, and to the limit of
not less than
. $50,000, in respect to precerty
damage
. All such policies shall provide that the
same r
. .a" not be cancelled or altered except upon
ton (10) days' prior written notice to Lessor
.
3 .
Steam boiler insurance, for the mutual
benefit o`_ Lessor and Lessee, on all steam boilers,
pressure vessels, and other such apparatus, includ-
ing pining, in such amounts as Lessor may from time
to time reasonably request
. All such policies shall
require that they may not be cancelled or altered
except upon ten (10) days' prior written notice to
Lessor .
for each i
.
. or.th of
the period of the renewal term shall
be
that
agreed
upon. by
Lessor
and
Lessee ; provided, however,
that
if Lessor
and
Lessee have not agreed upon said rent
within thirty
(30)
days from the date of the notice to ex-
tend given by Lessee pursuant to Schedule B, monthly rent
shall be determined by appraisal . Lessor and Lessee shall
each select an appraiser who is a member of the M
.A.I . Said
appraisers shall each determine what they consider an appro-
priate rent
. If the difference between the two appraisals
is less than ten percent (10%), rent shall be the average
of the two appraisals
. If the difference between the two
appraisals is ten percent (10%) or greater, the two appraisers
shall jointly select a third appraiser who shall also make an
appraisal, and rent shall be the average of the three ap-
praisals
. Lessor and Lessee shall each pay the fee charged
by the appraiser selected by it, and shall each pay one-half
of the fee charged by the third appraiser .
EXHIBIT B
Id. No. 80580
IN
THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
COLE TAYLOR BANK, not individually, but
)
solely as trustee under a certain Illinois land trust
)
known as trust 40323
; as successor trustee to
)
Michigan Avenue National Bank of Chicago,
)
under trust 1904,
)
Plaintiff,
)
vs.
)
No. 97 L 04984
ROWE INDUSTRIES, INC
. a corporation,
)
successor to COLEMAN CABLE AND WIRE
)
COMPANY, a corporation, and CHAPCO
)
CARTON COMPANY, a corporation,
)
Defendants . )
ANSWER
Defendant Rowe Industries, Inc
., successor to Coleman Cable and Wire Company
("Coleman"), and Chapco Carton Company ("Chapco") (at times, collectively "Defendants"), by
their attorneys, respond as follows to Plaintiff's Complaint at Law
:
1.
COMPLAINT :
Plaintiff, Cole Taylor Bank, not individually, but solely as trustee
under a certain Illinois land trust known as trust 40323, as successor trustee to Michigan Avenue
National Bank of Chicago, under trust 1904 (hereafter "Michigan Avenue") is an Illinois land trust
holding legal title to certain real property located in Cook County, Illinois, commonly known as 1810
North Fifth Avenue, River Grove, Illinois
.
ANSWER:
Defendants lack sufficient information upon which to form a belief as
to the truth of the allegations of Paragraph I and therefore deny the same
.
2.
COMPLAINT:
Defendant, Rowe Industries, Inc
., (hereafter "Rowe") successor to
Coleman Cable and Wire Company (hereafter "Coleman") is a corporation organized under the laws
of Delaware
. Plaintiff is informed and believes, and upon such information and belief alleges that
Rowe has its principal place of business in Phoenix, Arizona
.
ANSWER:
Defendants deny that Coleman's principal place of business is in
Phoenix, Arizona
. Defendants admit the remaining allegations of Paragraph 2
.
3.
COMPLAINT :
Defendant, Chapco Carton Company (hereafter "Chapco") is a
corporation organized under the laws of Delaware, having its principal place of business in River
Grove, Cook County, Illinois .
ANSWER:
Chapco admits Paragraph 3 . Coleman lacks sufficient information
upon which to form a belief as to the truth of the allegations of Paragraph 3 and therefore denies the
same.
ALLEGATIONS COMMON TO ALL COUNTS
4.
COMPLAINT :
On May 21, 1971, Coleman, as lessee, entered into a written lease
with Michigan Avenue as lessor, for the rental of certain property commonly known as 1810 North
Fifth Avenue, River Grove, Illinois, (hereafter the "real estate") which lease terminated on December
31, 1996 . A copy of that lease is attached hereto as Exhibit 1 .
ANSWER
:
Defendants deny that the Lease terminated on December 31, 1996
.
Defendants admit the remaining allegations of Paragraph 4
.
5.
COMPLAINT
:
Plaintiff is informed and believes, and upon such information and belief
alleges that in 1984 Coleman, as sublessor, entered into a sublease agreement with Chapco as sub-
lessee. Chapco remained in possession of the aforesaid rental real estate from 1984 as Coleman's
sublessee until December 31, 1996, the date of expiration of Coleman's lease .
ANSWER:
Defendants deny that the Lease and Sublease terminated on December
31, 1996 . Defendants admit the remaining allegations of Paragraph 5
.
6.
COMPLAINT :
At no time during the term of its lease with plaintiff was Coleman
released by plaintiff from any of Coleman'ss obligations under .
the lease aforesaid .
ANSWER:
Defendants neither admit nor deny Paragraph 6 on the ground that it
calls for a legal conclusion .
7.
COMPLAINT :
At various times between 1971 and the date of the filing of this
Complaint, the exact dates of which are at present unknown to plaintiff, and during the time that the
real estate was in the possession and control of Coleman and/or Chapco, either or both of Coleman
and/or Chapco, knowingly caused or negligently permitted and allowed certain hazardous materials
2
containing, among other hazardous substances, significant concentrations of cadmium, ethylbenzene,
toluene, xylene chromium and lead, to become deposited in the soil at the real estate
.
ANSWER
:
Chapco denies the allegations of Paragraph 7 directed to it
. Coleman
denies the allegations of Paragraph 7 directed to it
. Defendants lack sufficient information upon
which to form a belief as to the truth of the remaining allegations of Paragraph 7 and therefore deny
the same .
8.
COMPLAINT : .
As a direct and proximate result of the actions of Coleman and
Chapco, the real estate has been significantly damaged, and plaintiff will be forced to spend large
amounts of money to remediate the real estate .
ANSWER:
Chapco denies the allegations of Paragraph 8 directed to it
. Coleman
denies the allegations of Paragraph 8 directed to it
. Defendants lack sufficient information upon
which to form a belief as to the truth of the remaining allegations of Paragraph 8 and therefore deny
the same .
COUNT I
BREACH OF CONTRACT
9.
COMPLAINT :
Section 601 of the lease between Coleman and plaintiff provides
:
"USE.
Section 601
. The demised premises shall be used for any business or purpose
permitted by present zoning classifications, or as the said demised premises may be rezoned
from time to time hereafter .
Lessee shall not use or occupy the demised premises or permit
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requirement or regulation applicable thereto, or in any manner which would violate any
Certificate of Occupancy affecting the same, or which would cause structural injury to the
improvements or cause the value or usefulness of the demised premises or any part thereof to
diminish or which would constitute a public or private nuisance or waste, and Lessee agrees
that it will promptly upon discovery of any such use, take all necessary steps to compel the
discontinuance of such use and to oust the subtenants or occupants guilty of such use
."
(underlining supplied)
ANSWER:
Defendants deny the allegations of Paragraph 9 and state that the lease
is the best evidence of its terms and effect .
3
10.
COMPLAINT:
Section 701 of the lease between Coleman and plaintiff provides
:
Section 701
. After the completion of the building by Lessor, Lessee agrees, at its
expense, to keep the demised premises in good repair and in a clean and wholesome
condition and to
at all times fully comply with the health and police regulations in force and
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II
sidewalks and areas and adjacent thereto as well as in the area thereof, safe and secure and
conformable to the lawful and valid requirements of any municipality in which said demised
,premises may be situated and of all other public authorities,
and will make at its own expense,
all additions, improvements, alterations and repairs on the demised premises and on and to
the appurtenances and equipment thereof required by any lawful authorities
or which may be
made necessary, by the act or neglect
: of any other person
or corporation (public or private),
including supporting the streets and alleys adjoining the demised premises,
and will keep
Lessor harmless and indemnified at all times against any loss damage cost or expense by
reason of the failure so to do in any respect or by reason of any accident, loss or damage
resultin too- nn or,
. . e f man
e
hi ma . -mad
said
m
or of any
improvements at any time situated thereon or by reason of or
growing out of any act or thing
done or omitted to he done upon said premises or in any building at any time Situated
thereon- and Lessee agrees that it will save, hold and keep Lessor and the demised premises
free and clear of and-from any and all claims, demands, penalties, liabilities, judgments, costs
and expense, including reasonable attorneys' fees, arising out of any damage which may be
sustained by adjoining property or adjoining owners or other persons or property in
connection with any remodeling, altering or repairing of any building or buildings on the
demised premises or the erection of any new building or buildings thereon, unless such action
is undertaken by Lessor pursuant to its obligations under this Lease
." (underlining supplied)
ANSWER
:
Defendants deny the allegations of Paragraph 10 and state that the
lease is the best evidence of its terms and effect
.
11.
COMPLAINT:
At all relevant times there were in full force and effect a statute of the
State of Illinois known as "the Environmental Protection Act 415 ILCS 5/1
et. seq. (the "Act")
prohibiting the disposal of waste except as specifically permitted therein, a relevant portion thereof
which in words and figures is as follows :
No person shall
. .
.[d]ispose, treat, store or abandon any waste, or transport any waste into
this State for disposal treatment, storage or abandonment, except as a site or facility which
meets the requirements of this Act and of regulations and standards thereunder
.
415 ILCS 5/211(e)
ANSWER:
Defendants lack sufficient information upon which to form a belief
as
to the truth of the allegations of Paragraph 11 and therefore deny the same
.
4
12.
COMPLAINT:
The real estate does not meet the requirements of a waste disposal site
or facility under the Act and applicable Illinois Pollution Control Board regulations
.
ANSWER
:
Defendants neither admit nor deny the allegations of Paragraph 12 on
the ground that they call for a legal conclusion,
13.
COMPLAINT:
By causing or allowing the contamination of soil at the real estate with
hazardous substances, the defendants have engaged in the disposal of waste at the real estate in
violation of Section 21 (e) of the Act
.
ANSWER:
Defendants deny the allegations of Paragraph 13
.
14
.
COMPLAINT:
The acts complained of herein that were done, suffered or permitted to
be done by defendant constitute a violation and breach of the terms of Sections 601 and 701 of the
lease attached as Exhibit 1 .
ANSWER
:
Defendants deny the allegations of Paragraph 14
.
15.
COMPLAINT
:
As a result of the breaches of the lease aforesaid, plaintiff has been
injured and the value of its property diminished by the sum of Two Hundred Fifty Thousand Dollars
($250,000 .00.
ANSWER:
Defendants deny the allegations of Paragraph 15
WHEREFORE, Defendants Rowe Industries, Inc
., successor to Coleman Cable and Wire
Company, and Chapco Carton Company request that judgment be entered in their favor and against
Plaintiff
COUNT II
NEGLIGENCE AGAINST COLEMAN AND CHAPCO
16-23. COMPLAINT :
Plaintiff repeats and realleges the allegations contained in paragraph I
through 8 inclusive as and for its allegations in paragraphs 16 to 23 inclusive in this Count II
.
ANSWER:
Defendants incorporate their answers to Paragraphs 1-8 as their
answers to Paragraphs 16-23 .
24.
COMPLAINT :
Plaintiff repeats and realleges the allegations contained in paragraph 12
as and for its allegations in paragraph 24 of this Count II .
5
ANSWER
:
Defendants incorporate their answers to Paragraphs 16-23 as their
answers to Paragraphs 24 .
25.
COMPLAINT:
At all relevant times plaintiff was in the exercise of due care and
caution for itself and for others
.
ANSWER:
Defendants lack sufficient information upon which to form a belief as
to the truth of the allegations of Paragraph 25 and therefore deny the same
.
26. COMPLAINT:
The acts of defendant Coleman and Chapco were in violation of the
statute aforesaid, negligent and in disregard of the rights Of plaintiff and of the general public and
caused harm to plaintiff and its real property .
ANSWER:
Defendants deny the allegations of Paragraph 26 .
WHEREFORE, Defendants Rowe Industries, Inc., successor to Coleman Cable and Wire
Company, and Chapco Carton Company request that judgment be entered in their favor and against
Plaintiff.
ROWE INDUSTRIES, INC . a corporation,
successor to COLEMAN CABLE AND WIRE
COMPANY, a corporation, and CHAPCO
CARTON COMPANY, a corporation,
Defendants,
By:
#51213v01 :Aer 0612619711 :20 AM
One of Their Attorneys
Arthur E . Rosenson
Much Shelist Freed Denenberg
Ament Bell & Rubenstein, P.C.
200 N . LaSalle, Ste . 2100
Chicago, IL 60601
(312) 346-3100
Id
. No. 80580
6
EXHIBIT C
.j "'. C
.
A
IN THE CIRCUIT COURT OF COOKCOUNTY,
ILLINOIS
7A'/
v
No
.
Order Setting Hearing Date
This cause coming on to be heard on the Clerk's Status Call, the fully briefed
motion having been tendered to the Court,
IT IS HEREBY ORDEREDI-,
:
That the motion/of i$
set for hearing on to 1999
at
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-746
Aurelia Pucinski, Clerk of
the Circuit
Court of
Cook County, Illinois
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Judge - Q~No.
CIRCUIT COURV- 006
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Attorney for:
Address:
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