2021-08-31 - Village Board Special Meeting - Agenda PacketFifty Raupp Blvd
Buffalo Grove, IL 60089-2100
Phone: 847-459-2500
A. Open Meetings Act Compliance
All persons physically attending the meeting will be required to don an appropriate face
covering during the duration of the meeting and before entering the Jeffrey S. Braiman
Council Chambers. The Village of Buffalo Grove reserves the right to deny entry to any
person displaying COVID-19 symptoms. All meeting participants shall observe CDC -
published guidelines for social distancing while attending the meeting.
B. Pledge of Allegiance
2. Approval of Minutes
3. Approval of Warrant
4. Village President's Report
5. Village Manager's Report
6. Special Business
7. Reports from Trustees
8. Consent Agenda
All items listed on the Consent Agenda, which are available in this room this evening, are
considered to be routine by the Village Board and will be enacted by one motion. There will be
no separate discussion of these items unless a Board member or citizen so requests, in which
event, the item will be removed from the General Order of Business and considered after all other
items of business on the Regular Agenda under New Business. (Attached).
9. Ordinances and Resolutions
A. 0-2021-61 Ordinance Authorizing the Village Manager to Enter into an Asset Purchase
and Lease Termination Agreement with Progressive Management Services LLC
(Trustee Stein) (Staff Contact: Chris Stilling)
B. 0-2021-62 Ordinance Authorizing the Village Manager to Execute a Lease Agreement
with WJ Golf LL at the Buffalo Grove Arboretum Club (Trustee Stein) (Staff Contact:
Chris Stilling)
10. Unfinished Business
11. New Business
12. Questions From the Audience
Questions from the audience are limited to items that are not on the regular agenda. In
accordance with Section 2.02.070 of the Municipal Code, discussion on questions from the
audience will be limited to 10 minutes and should be limited to concerns or comments regarding
issues that are relevant to Village business. All members of the public addressing the Village
Board shall maintain proper decorum and refrain from making disrespectful remarks or comments
relating to individuals. Speakers shall use every attempt to not be repetitive of points that have
been made by others. The Village Board may refer any matter of public comment to the Village
Manager, Village staff or an appropriate agency for review.
13. Executive Session
14. Adjournment
The Village Board will make every effort to accommodate all items on the agenda by 10:30 p.m.
The Board, does, however, reserve the right to defer consideration of matters to another meeting
should the discussion run past 10:30 p.m.
The Village of Buffalo Grove, in compliance with the Americans with Disabilities Act, requests that
persons with disabilities, who require certain accommodations to allow them to observe and/or
participate in this meeting or have questions about the accessibility of the meeting or facilities,
contact the ADA Coordinator at 459-2525 to allow the Village to make reasonable
accommodations for those persons.
9.A
Ordinance No. 0-2021-61 : Ordinance Authorizing the Village
Manager to Enter into an Asset Purchase and Lease Termination
Agreement with Progressive Management Services LLC
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Recommendation of Action
Staff recommends approval.
Staff recommends that the Village Board approve the attached Ordinance authorizing the Village
Manager to execute the Lease Termination Agreement with Progressive Management Services, LLC,
subject to the final approval by the Village Attorney.
ATTACHMENTS:
• BOT Memo for Progressive Termination 8.26.21 (DOCX)
• Arbo Term Lease Ord (DOCX)
• Final Progressive Lease Termination 8.26.21 (DOCX)
Trustee Liaison
Stein
Tuesday, August 31, 2021
Staff Contact
Chris Stilling, Community Development
Updated: 8/27/2021 1:23 PM
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V_,., ,R'E OF
R'LJFF,!kL0 GROVE
MEMORANDUM
DATE: August 27, 2021
TO: President Beverly Sussman and Trustees
FROM: Christopher Stilling, Director of Community Development
SUBJECT: Lease Termination Agreement with Progressive Management Services, LLC at the
Arboretum Club Golf Club
Background
On May 21, 2001, the Village entered into a 10-year lease with two (2) five-year extensions with
Progressive Management Services, LLC ("Progressive") for the restaurant and banquet facilities
located at the Arboretum Golf Club. The current lease is set to expire on December 31, 2022 at the
close of the final five-year extension term. Village staff and Progressive have come to terms on an
Early Termination Agreement ("Agreement") and are requesting approval by the Village Board.
Further details are outlined below.
Attached is the Agreement in which Progressive would vacate the existing restaurant and banquet
space at the Arboretum Club on November 15, 2021. The following is a summary of the proposed
Agreement:
Tenant Obligations:
• Pay all rent through May 2021.
• Vacate the premises no later than noon on November 15, 2021.
• Progressive shall provide all assets (kitchen equipment, coolers, refrigerators, grills,
tables/chairs, plats & silverware, etc.) free of liens and encumbrances to the Village.
• Progressive shall promptly cancel all events booked or reserved through the original lease
expiration date (December 31, 2022) and shall fully return all deposits.
• Progressive is required to provide the Village documentation showing that all deposits have
been returned.
• Progressive shall indemnify and hold the Village harmless from any future claims.
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Village Obligations
• The Village will release Progressive of all obligations of the original lease after November 15,
2021.
• The Village will acquire all of Progressive's assets (kitchen equipment, coolers, grills,
tables/chairs, plats & silverware, etc.) for $275,000 and provide an early termination fee of
$25,000 for a total amount of $300,000.
• The Village will pay Progressive in 2 installments:
o The first payment of $100,000 will be paid upon execution of the agreement; and
o The second payment of $200,000 will be paid on November 16, 2021, after
Progressive vacates the space.
• The Village will waive rent from June 1, 2021 through November 15, 2021. Staff estimates
this amount to be approximately $7,000 in total.
• The Village will waive all utility payments for 2021. Staff estimates this amount to be
$27,000.
Staffec a ai
Staff recommends that the Village Board approve the attached Ordinance authorizing the Village
Manager to execute the Lease Termination Agreement with Progressive Management Services, LLC,
subject to the final approval by the Village Attorney.
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Ordinance No. 2021 -
ORDINANCE AUTHORIZING THE VILLAGE MANAGER TO ENTER INTO AN
ASSET PURCHASE AND LEASE TERMINATION AGREEMENT WITH
PROGRESSIVE MANAGEMENT SERVICES LLC
WHEREAS, the Village of Buffalo Grove is a Home Rule Unit pursuant to the Illinois
Constitution of 1970; and,
WHEREAS, Landlord and Tenant entered into that certain Operating Lease dated May
21, 2001 ("Lease") for the restaurant and banquet facilities located at the Village of Buffalo
Grove Arboretum Club, as more specifically defined in said Lease as the "Premises"; and
WHEREAS, the Lease was effective an initial term of ten years ending December 31,
2012, which term was extended from time to time thereafter pursuant to the terms of the Lease;
and
WHEREAS, the current term of the Lease expires on December 31, 2022 ("Lease
Expiration Date"); and
WHEREAS, Tenant owns certain assets consisting of the fixtures, furnishings, and
equipment utilized in its restaurant and banquet operations, as itemized on Exhibit A attached
hereto and incorporated herein (the "Tenant Assets"); and
WHEREAS, Landlord has advised Tenant that it is desirous of acquiring the Tenant
Assets and of terminating the Lease prior to the Lease Expiration Date; and
WHEREAS, Landlord and Tenant have negotiated mutually agreeable terms, as more
fully set forth hereinbelow, for the sale and purchase of the Tenant Assets and the termination
of the Lease prior to the Lease Expiration Date.
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COUNTIES OF COOK AND LAKE,
STATE OF ILLINOIS, as follows:
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SECTION 1. The foregoing recitals are hereby incorporated and made a part of this
Ordinance.
SECTION 2. The Village Manager is hereby authorized and directed to execute the
attached Asset Purchase and Lease Termination Agreement pending final review and approval
by the Village Attorney.
SECTION 3. This Ordinance shall be in full force and effect from and after its passage
and approval.
YES:
NAYS:
ABSENT:
PASSED: 2021
APPROVED: 12021
ATTEST:
Village Clerk
APPROVED:
Village President
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ASSET PURCHASE AND LEASE TERMINATION AGREEMENT
THIS ASSET PURCHASE AND LEASE TERMINATION AGREEMENT (the
"Agreement"), by and between the Village of Buffalo Grove ("Landlord") and Progressive
Management Services, L.L.C. ("Tenant") is made and dated August , 2021 ("Effective
Date").
WHEREAS, Landlord and Tenant entered into that certain Operating Lease dated May
21, 2001 ("Lease") for the restaurant and banquet facilities located at the Village of Buffalo
Grove Arboretum Club Golf Club, as more specifically defined in said Lease as the "Premises",
and
WHEREAS, the Lease was effective an initial term of ten years ending December 31,
2012, which term was extended from time to time thereafter pursuant to the terms of the
Lease; and
WHEREAS, the current term of the Lease expires on December 31, 2022 ("Lease
Expiration Date"); and
WHEREAS, Tenant owns certain assets consisting of the fixtures, furnishings, and
equipment utilized in its restaurant and banquet operations, as itemized on Exhibit A
attached hereto and incorporated herein (the "Tenant Assets"); and
WHEREAS, Landlord has advised Tenant that it is desirous of acquiring the Tenant
Assets and of terminating the Lease prior to the Lease Expiration Date; and N
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WHEREAS, Landlord and Tenant have negotiated mutually agreeable terms, as more
fully set forth hereinbelow, for the sale and purchase of the Tenant Assets and the
termination of the Lease prior to the Lease Expiration Date. Ci
NOW THEREFORE, in consideration of the mutual promises and covenants herein
contained, and for other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged, it is agreed as follows:
1. DEFINED TERMS: Capitalized words and terms that are not specifically
defined herein shall have the same definitions as set forth in the Lease.
2. SURRENDER OF PREMISES AND WALK THRU INSPECTIONS.
a. Tenant shall vacate and surrender the Premises to Landlord on or before
12:00 noon on November 15, 2021 ("Surrender Date") in the condition
required by the Lease, provided, however, that Tenant shall not be obligated
to repair scuffs, stains, tears, cracks, scratches, nicks, and similar minor or
cosmetic defects in or damage to carpet, tile, paint, wallpaper (and other floor
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and wall surfaces), doors, frames, moldings, baseboards, or trim, all of which
shall be deemed "ordinary wear " under Section 20.1 of the Lease.
b. Tenant and Landlord shall conduct a "Preliminary Walk Thru" of the Premises
within five (5) business days after execution of this Agreement, and within
three (3) business days thereafter Landlord shall provide Tenant with a
written itemization of any conditions of the Premises that it considers to be
other than "ordinary wear" or otherwise unacceptable under the terms of the
Lease (the "Punch List"). The Landlord and Tenant agree that the purpose of
the Preliminary Walk Thru is to allow them sufficient time prior to the
Surrender Date to discuss and address any matters contained in the Punch List
and shall not preclude a Final Walk Thru as of the Surrender Date as provided
in Section 3.c. below.
c. Tenant and Landlord shall conduct a "Final Walk Thru" of the Premises on or
prior to the Surrender Date to ensure the Premises are being surrendered and
re -delivered back to Landlord as required under the foregoing paragraph 2.a
or in a manner reasonably acceptable to the Landlord, and for delivery of the
keys to the Premises back to Landlord.
Notwithstanding the foregoing, all Tenant Assets shall be delivered in as -is condition as
provided in paragraph 5 below. `O
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3. LEASE TERMINATION. The Lease shall terminate and shall be of no further
force and effect as of 12:00 noon on November 15, 2021 ("Lease Termination Date") subject
to: (i) full execution and delivery of this Agreement; (ii) full payment of the Early N
Termination Fee and Purchase Price as provided in Paragraph 6; and (iii) Tenant's vacation o
and surrender of the Premises, delivery of the keys to the Premises to Landlord, delivery of c
the Tenant Assets to Landlord in the condition required herein, and the successful c
completion of the Walk Thru as provided in Paragraph 3. E
4. TENANT'S REMAINING LEASE OBLIGATIONS: Between the date of
execution of this Agreement and the Lease Termination Date: (a) Landlord shall forbear from
claiming any Default under the Lease based upon Tenant's non-payment of rent or utilities,
and (b) Tenant shall remain liable for and shall perform all other covenants and obligations
under the Lease. Provided that Tenant does not default in the performance of such other
covenants and obligations prior to the Lease Termination Date, Landlord shall waive and
release tenant from all obligations for rent otherwise due from and after June 1, 2021, and
for all utility payments otherwise due for calendar year 2021.
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5. PURCHASE AND SALE OF THE TENANT ASSETS. On the Surrender Date,
Tenant shall sell, transfer, and deliver the Tenant Assets to Landlord, for good and valuable
consideration as provided herein, by an enforceable Bill of Sale in substantially the form
attached hereto and incorporated herein as Exhibit B. The Tenant Assets shall be so
conveyed in "as -is" condition and free and clear of any and all liens, security interests,
mortgages, chattel mortgages, encumbrances, and third -party claims.
6. LANDLORD PAYMENTS. The total of the compensation payable by Landlord
to Tenant for early termination of the Lease ("Early Termination Fee") and the purchase
price for the Tenant Assets ("Purchase Price") shall be $300,000.00, which shall be allocated
and paid as follows:
a. Purchase Price for Tenant Assets. The Purchase Price shall be $275,000.00
b. Early Termination Fee. The Early Termination Fee shall be $25,000.00.
c. Payment:
i. Upon full execution and delivery of this Agreement, Landlord shall pay M
Tenant One Hundred Thousand and No/100 Dollars ($100,000.00) 7
("Partial Payment") by certified check or wire transfer to be applied pro 0
rata to the Purchase Price and the Early Termination Fee; and o
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ii. on November 16, 2021, Landlord shall pay Tenant Two Hundred N
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Thousand and No/100 Dollars ($200,000.00) ("Final Payment") by
certified check or wire transfer to be applied pro rata to the remaining N
balance of the Purchase Price and the Early Termination Fee, 00
provided there are no defaults under this Agreement on each payment date,
all Tenant's covenants, conditions, and obligations of this Agreement are fully
satisfied by Tenant, and Tenant has successfully delivered the Premises back
to Landlord as of the date of the Final Payment.
7. CANCELLATION OF PENDING EVENTS. Upon full execution of this
Agreement, Tenant shall promptly cancel any and all events booked or reserved with Tenant
through the Lease Expiration Date (December 31, 2022) (the "Pending Events"), any shall
fully return all deposits made to the parties that booked the Pending Events. On or before
the Surrender Date, Tenant shall deliver a certified reconciliation of the cancellation of all
Pending Events and certified evidence of the return all deposits made for Pending Events,
including the name and contact information of all parties for whom a Pending Event was
cancelled ("Pending Event Reconciliation"). Tenant hereby warrants and represents that no
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events have been booked or reserved except as set forth in the Pending Event Reconciliation
delivered to Landlord. Tenant agrees to and shall indemnify, defend, and hold Landlord and
Landlord's agents, officers, directors, elected officials, and employees harmless against all
claims and liabilities, including, but not limited to any attorney's fees and court costs
incurred by Landlord, associated with: (i) any misrepresentation or false statement made in
the Pending Event Reconciliation; (ii) any and all Pending Events that were cancelled; (iii)
any and all Pending Events for which cancellation failed; and (iv) any and all Pending Events
not cancelled by Tenant. The terms and conditions of this Section 7 shall survive the
termination of the Lease and delivery of the Premises back to Landlord.
8. TENANT REPRESENTATIONS AND WARRANTIES. Tenant represents and
warrants that: (a) the Tenant Assets are free and clean of all liens, security interests,
mortgages, chattel mortgages, encumbrances and third -party claims; (b) no labor has been
performed, no materials have been provided, and no work has been done or is being done in,
to or about the Premises which has not been fully paid for by Tenant; (c) that, as of the
Effective Date, Tenant is a limited liability company duly formed and in good standing with
the Secretary of State of Illinois, and (d) that the person executing this Agreement on behalf
of Tenant is properly authorized to do so.
9. LANDLORD REPRESENTATIONS AND WARRANTIES. Landlord represents
and warrants that (a) that Landlord has acquired all necessary approvals and authority from
the Board of Trustees of Village of Buffalo Grove to enter into this Agreement and (b) that
the person executing this Agreement on behalf of Landlord is properly authorized to do so.
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10. RELEASE AND INDEMNIFICATION.
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a. Release of Claims Between the Parties: On the Lease Termination Date:
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i. Except for any claims arising out of this Agreement, Tenant (for itself
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and its current and former managers, members, employees, agents,
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heirs, executors, and assigns) shall waive, release, and forever
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discharge Landlord (and Landlord's agents, officers, directors, elected
officials, and employees) of from all claims Tenant had, has, or may then
have against Landlord in any way arising out of or related to the Lease,
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except for claims arising due to or caused by any terms, covenants,
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conditions or obligations that expressly survive the expiration or
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termination of the Lease.; and
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ii. Except for any claims arising out of this Agreement or the Pending
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Event Reconciliation, Landlord (for itself and its agents, officers,
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directors, elected officials, and employees) shall waive, release, and
forever discharge Tenant (and Tenant's current and former managers,
members, employees, agents, heirs, executors, and assigns) from all
claims Landlord had, has, or may then have against Tenant in any way
arising out of or related to the Lease, except for claims arising due to or
caused by any terms, covenants, conditions or obligations that
expressly survive the expiration or termination of the Lease.
b. Indemnification for Third -Party Claims: From and after the Lease
Termination Date:
i. Tenant agrees to and shall indemnify, defend, and hold Landlord 3
harmless against any third -party claims and liabilities, including but y
not limited to any fines, penalties, and attorneys' fees and court costs, w
arising out of, due to or caused by Tenant's default or non-compliance
under the Lease, Tenant's default or non-compliance under this a
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Agreement, Tenant's violation of applicable law, Tenant's negligent or a
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intentional acts or omissions and any third -party claims and liabilities
incurred by Landlord, associated with: (i) any misrepresentation or
false statement made in the Pending Event Reconciliation; (ii) any and
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all Pending Events that were cancelled; (iii) any and all Pending
Events for which cancellation failed; and (iv) any and all Pending
Events not cancelled by Tenant; and N
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ii. Landlord agrees to and shall indemnify, defend, and hold Tenant
harmless against any third -party claims and liabilities, including but
not limited to any fines, penalties, and attorneys' fees and court costs,
arising out of, due to or caused by Landlord's default or non-compliance
under the Lease, Landlord's default or non-compliance under this
Agreement, or Landlord's violation of applicable law, or Landlord's
negligent or intentional acts or omissions.
The terms and conditions of this Section 10 shall survive the termination of the Lease and
delivery of the Premises back to Landlord.
11. BROKERAGE. Landlord and Tenant represent to each other that no brokers
are involved in this transaction.
12. ESTOPPEL. Tenant represents, warrants, and agrees that: (i) there exists no
breach, default or event of default by Landlord under the Lease, or any event or condition
which, with the giving of notice or passage of time or both, would constitute a breach, default
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or event of default by Landlord under the Lease; and (ii) Tenant has no current offset or
defense to Tenant's performance or obligations under the Lease except as specifically
provided in Section 4 hereof.
13. ENFORCEMENT. This Agreement, and its application and interpretation, will
be governed exclusively by its terms and by the internal laws of the State of Illinois. All
disputes arising out of this Agreement must be submitted by appropriate petition to the
Circuit Court of the nineteenth Judicial Circuit in Lake County, Illinois, and the Parties
irrevocably consent to personal jurisdiction in said court and waive all objections thereto. If
any provision of this Agreement, or its application to any person or circumstance, will be
found invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and
its application will not be affected and will remain enforceable to the fullest extent permitted
by law. A court may modify any such provision to the fullest extent possible to cause such
provision to be enforceable.
14. MUTUAL DRAFTSMANSHIP. This Agreement is the product of negotiation
and preparation by and among each Party hereto and their respective attorneys.
Accordingly, all Parties hereto acknowledge and agree that this Agreement will not be
deemed prepared or drafted by one Party or another, or the attorneys for one Party or
another, and will be construed accordingly.
15. SURVIVAL: The provisions of Sections 7- 14 shall survive the termination
of the Lease and delivery of the Premises back to Landlord. c
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16. COUNTERPARTS AND SIGNATURES. This Agreement may be executed in 0
multiple counterparts, each of which will be deemed an original but all of which will N
constitute one and the same instrument. This Agreement may be executed and delivered Ci
using facsimile or electronic mail signatures. c
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(SIGNATURES APPEAR ON THE FOLLOWING PAGE) -J
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IN WITNESS WHEREOF, the Parties have executed this Asset Purchase and Lease
Termination Agreement as of the date set forth hereinabove.
THE VILLAGE OF BUFFALO GROVE
By:
Name:
Its:
PROGRESSIVE MANAGEMENT LLC
By:
Name:
Its:
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9.B
Ordinance No. 0-2021-62 : Ordinance Authorizing the Village
Manager to Execute a Lease Agreement with WJ Golf LL at the
Buffalo Grove Arboretum Club
........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................
Recommendation of Action
Staff recommends approval.
Attached for the Board's consideration is a Lease Agreement with WJ Golf, LLC ('WJ') to become the new
tenant at The Arboretum Club starting in early 2022. At this new location, WJ will offer indoor golf
activities including private lessons, golf simulators, full -service dining, and entertainment. WJ currently
has an existing facility at 1380 Busch Parkway, Buffalo Grove. WJ plans to keep this location.
ATTACHMENTS:
• BOT Memo for WJ Golf Lease 8.26.21 (DOCX)
• WJ Lease Ord (DOCX)
• Final WJ Lease 8.27.21 (DOCX)
• Arboretum (1) (PDF)
Trustee Liaison
Stein
Tuesday, August 31, 2021
Staff Contact
Chris Stilling, Community Development
Updated: 8/27/2021 3:35 PM
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9.B.a
11,1A5'E OF
R'LJFF,!kL0 GROVE
MEMORANDUM
DATE: August 27, 2021
TO: President Beverly Sussman and Trustees
FROM: Christopher Stilling, Director of Community Development
SUBJECT: Lease Agreement with WJ Golf LLC at the Arboretum Club
Staff recommends that the Village Board approve a lease agreement with WJ Golf for the following
reasons:
• The Village will receive significantly higher rental income. Based on the terms and escalator, over
the next 10 years, the Village would gross approximately $1,250,000 in rent. In contrast, the
Village's total capital expenses and reimbursements to accommodate the lease total $660,000
allowing for a payback period of 6 years.
• The lease will provide the Village a financially sound tenant that allows for a reinvestment of over
$900,000 into the golf course's cart paths, sand traps, greens and other building improvements.
• The increased revenue will allow for growth in the Arboretum's capital reserve.
• The proposed use retains core food and beverage service essential to the operation of the golf
course, while establishing a new concept in golf entertainment.
• The proposed use will increase the utilization of the Arboretum clubhouse facility over its present
use as a banquet facility.
Attached for the Board's consideration is a Lease Agreement ("Agreement") with WJ Golf, LLC ("WJ")
to become the new tenant at The Arboretum Club starting in early 2022. At this new location, WJ will
offer indoor golf activities including private lessons, golf simulators, full -service dining, and
entertainment. WJ currently has an existing facility at 1380 Busch Parkway, Buffalo Grove. WJ plans
to keep this location.
Attached is the Lease Agreement between the Village and WJ. The following is a summary of the
proposed Agreement:
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9.B.a
Key WJ Obligations:
• WJ will lease the property for $125,000/year. The lease terms are for 10 years with 2 five-year
options. The lease includes a 1.25% annual escalator after year 4
• WJ will reimburse the Village 60% of the utility costs (gas, water & electric).
• Beginning on or after November 16, 2021, WJ will demolish the existing banquet space and
construct eight golf simulators for training, recreational and entertainment purposes. WJ will also
make improvements to the existing bar and restaurant area. This would include expanding the
bar area to accommodate both WJ and Arboretum customers. Overall, WJ estimates that the total
investment into the space will be more than $700,000.
• WJ will also be responsible to operate a full -service restaurant that caters to their customers,
Arboretum golfers and the public.
• At lease execution, WJ will provide the Village a cost of work deposit of $300,000 to guarantee
their performance to complete the improvements. This deposit will also provide the Village
security in the event WJ were to default before they take possession of the space on November
15, 2021. The cost of work deposit will also be held during WJ's construction to ensure that work
is being performed in accordance with Village codes.
• The three partners of WJ will each provide a personal guarantee of $150,000 to ensure their
performance of the lease (combined total of $450,000) for the first 3 years. The guarantee would
be reduced over time, but the combined total obligation of all partners will not be less than
$150,000 during the term of the lease.
Key Village Obligations
• The Village will provide WJ all FF&E acquired from Progressive Management Services, LLC.
• The Village will provide WJ a 50% rent reduction for the first three months.
• The Village will be responsible for both the cost and work to the windows. As proposed, the
Village plans to remove all the windows along the south wall of the restaurant and replace them
with sliding doors/windows to open the restaurant and bar space to the outside patio.
• The Village will also be making improvements to the patio area to increase seating options for
both WJ customers, golfers and special events. The expanded patio improvements include
adding planters and a fireplace.
• Staff estimates that the overall costs of the window and patio area to be approximately
$200,000.
• The Village will agree to reimburse WJ for an amount not to exceed $460,000 for their tenant
improvements and improvements to the bar/restaurant space. Reimbursements will only be
made as work gets completed, passes inspections and WJ provides the necessary lien waivers
showing that WJ's contractors have been paid.
• In the event the Village were to permanently close the golf course, the Village would reduce the
monthly rent by 25%.
• In the event of a "Stay at Home Order" and the business must close, the Village will agree to
defer up to 3-months of rent. This rent would have to be paid back once business can reopen.
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9.B.a
Staff recommends that the Village Board approve the attached Ordinance authorizing the Village
Manager to execute the Lease Agreement with WJ Golf, LLC, subject to the final approval by the
Village Attorney.
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9.B.b
ORDINANCE No. 2021 -
ORDINANCE AUTHORIZING THE VILLAGE MANAGER TO EXECUTE A LEASE
AGREEMENT WITH WJ GOLF LLC AT THE BUFFALO GROVE ARBORETUM
CLUB
WHEREAS, the Village of Buffalo Grove is a Home Rule Unit pursuant to the Illinois
Constitution of 1970; and,
WHEREAS, the residents of the Village of Buffalo Grove and patrons of the Buffalo
Grove Arboretum Club find it advantageous to have a restaurant on the Clubhouse premises;
and,
WHEREAS, the Village Board has determined that it is in the best interests of the
Village to authorize the Village Manager to finalize and execute a lease agreement with the
WJ Golf LLC.
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COUNTIES OF COOK AND LAKE,
STATE OF ILLINOIS, as follows:
SECTION 1. The foregoing recitals are hereby incorporated and made a part of this
ORDNANCE.
SECTION 2. The Village Manager is hereby authorized and directed to execute the
attached lease agreement pending final review and approval by the Village Attorney.
SECTION 3. This ordinance shall be in full force and effect from and after its passage
and approval.
YES:
NAYS:
ABSENT:
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9.B.b
PASSED: 2021
APPROVED: 12021
ATTEST:
Village Clerk
APPROVED:
Village President
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9.B.c
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into as of this
day of , 2021 ("Effective Date") by and between the VILLAGE OF
BUFFALO GROVE, an Illinois home rule municipality ("Landlord"), and WJN GOLF LLC,
an Illinois limited liability company, d/b/a "WJ Golf' ("Tenant").
WITNESSETH:
That for and in consideration of the rentals hereinafter reserved and of the mutual
covenants and agreements hereinafter set forth, the parties hereto do hereby mutually
agree as follows:
/_1:-A0[a]4:8Wei :7_1Ll11r_101Ilk 114NLyiI
SECTION 1.01. PREMISES. The Landlord is the current legal title owner of
record of the real estate commonly known as the Village of Buffalo Grove Arboretum Golf
Course which contains approximately 119 acres (the "Property"). The Property is The
Property contains: (i) an 18 hole golf course, (ii) a maintenance building (iii) a golf course
club house building and (iv) and certain other structures. The club house facility is
hereinafter known as the "Club House".
The Landlord desires to lease certain land, building and facilities located on the
Property, including but not limited to the Club House, all legally described on Exhibit "A"
attached hereto and made a part hereof and is cross -hatched on the site plan attached
hereto as Exhibit "B" and made a part hereof, to Tenant so that Tenant may conduct on
such land, building and facilities a restaurant and banquet facilities, indoor golf with golf
simulators, entertainment and gaming facility that are all open to the general public, along
with cart service for golfers on the golf course and related specialty items for sale. The
land, building and facilities to be leased to Tenant and located and constructed on the
Property or to be constructed thereon by Tenant pursuant to the terms of this Lease are
collectively referred to herein as the "Premises" or the "Premises". The Premises consists
of approximately Thousand ( ) square feet of
rentable area located at 401 Half Day Road, Buffalo Grove, Illinois. Tenant shall operate
the restaurant and banquet facilities in a professional manner as further set forth in this
Lease.
SECTION 1.02. TERM. The term of this Lease ("Term") shall be for a period of
ten (10) years commencing on the Effective Date (hereinafter referred to as the
"Commencement Date"), and expiring midnight on the same month and day following the
expiration of the tenth (loth) full lease year after the Rent Commencement Date (as
hereinafter defined) unless extended either by the exercise of an option or by written
agreement of the parties or sooner terminated in accordance with the provisions hereof
(the "Expiration Date"). Upon execution of this Lease, Tenant shall promptly apply for
and diligently pursue the obtaining of all governmental approvals (including any and all
building permits) necessary for Tenant to construct Tenant's Work (as hereinafter
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9.B.c
defined) and for all permits, approvals and licenses, including, but not limited to all
applicable entertainment, gaming, food, retail and liquor licenses, to allow Tenant to
operate an indoor golf, entertainment and gaming facility with a restaurant, banquet
facilities and a bar for the sale of food and liquor for on and off premises consumption at
the Premises.
For all purposes of this Lease, a "lease year" shall be defined as the twelve (12)
consecutive calendar months commencing on the first day of the month following the Rent
Commencement Date, as hereinafter defined (unless the Rent Commencement Date is
the first day of the month in which case the lease year shall commence on the Rent
Commencement Date). Each subsequent lease year shall be for the twelve (12)
consecutive calendar months immediately following the expiration of the prior lease year.
Immediately following the determination of the Rent Commencement Date, Landlord shall
provide the Tenant with a Landlord executed copy of the Opening and Termination Date
Declaration in the form attached hereto as Exhibit "C", specifying the information called
for in said form, for Tenant's execution.
ARTICLE II. RENT
SECTION 2.01. MINIMUM RENT.
The "Rent Commencement Date" shall be the earlier of the following to
occur: (i) the date that all of the following are satisfied: (a) Landlord tenders the Premises
to Tenant, (b) Landlord and Tenant substantially completes Landlord's Work and Tenant's
Work to the Premises, (c) a Certificate of Occupancy is issued for the Premises and (d)
Tenant opens for business in the Premises; or (ii) March 1, 2022. Tenant covenants and
agrees to pay annual minimum rent ("Minimum Rent") to Landlord, in monthly
installments, in advance, according to the following schedule:
LEASE
ANNUAL MINIMUM
MONTHLY
YEARS
RENT
MINIMUM RENT
1st Month
N/A
$5,000.00
thru and
including the
3rd Month
4th Month
$125,000.00
$10,416.67
thru the 3rd
Lease Year
4
$126,562.50
$10,546.88
5
$128,144.53
$10,678.71
--T6 $129,746.34
$10,812.20
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9.B.c
7
$131,368.17
$10,947.35
8
$133,010.27
$11,084.19
9
$134,672.90
$11,222.74
10
$136,356.31
$11,363.03
Tenant's first installment of Minimum Rent shall be due and payable on the Rent
Commencement Date. If the Rent Commencement Date is not the first day of a calendar
month, then Tenant shall pay on the Rent Commencement Date, a sum equal to the
monthly installment of Minimum Rent for the first Lease Year divided by thirty (30) and
multiplied by the number of days from and including the Rent Commencement Date until
the first day of the first Lease Year.
SECTION 2.02. RECORDS. Tenant shall keep at the Premises or at Tenant's
executive offices a full and accurate set of books and records adequately showing the
amount of Tenant's Gross Sales (hereinafter defined) in each Lease Year. Such books
shall be kept in accordance with generally accepted accounting principles and shall be
retained by Tenant for a period of not less than three (3) years following the end of the
Lease Year to which they have reference. Tenant shall furnish Landlord semi-annual
sales reports within thirty (30) days after the end of each semi annual sales period. Tenant
shall furnish Landlord with a statement certified by an officer of Tenant setting forth the
amount of Tenant's Gross Sales during the preceding Lease Year. Whenever the term
"Gross Sales" is used in this Lease, it shall mean the gross sales of Tenant derived from
the Premises as determined by Tenant according to generally accepted accounting
principles, for the purpose of the preparation of its financial reports. Gross Sales shall
exclude the following: (i) interest, service or sales carrying charges or other charges
however denominated, paid by customers for extension of credit on sales but only if such
charges are not included in the merchandise sales price; (ii) fitting, alterations, repair or
delivery charges at no profit to Tenant; (iii) bad debts charged off by Tenant, not to exceed
1 % of Tenant's Gross Sales; (iv) proceeds from a bulk sale of all, or substantially all, of
Tenant's assets; (v) insurance proceeds and/or sums and credits received in the
settlement of claims for loss of or damage to merchandise or from casualty losses;
(vi) sales to employees from vending machines and (vii) catalog and internet sales
provided the orders from such catalog and/or internet are not received through a point of
purchase register at the Premises, and are for merchandise only available through such
catalog or the internet, and are not filled at the Premises.
SECTION 2.03. PAYMENTS BY TENANT. Tenant shall pay to Landlord, without
demand, deductions, set -offs or counterclaims, the rent, which is hereby defined as the
sum of the Minimum Rent and all Additional Rent, when and as the same shall be due
and payable hereunder. Unless otherwise stated, all other sums of money or charges
payable to Landlord from Tenant by this Lease are defined as "Additional Rent" and are
due twenty-one (21) days after the receipt by Tenant of an invoice therefor and failure to
pay such charges carries the same consequences as Tenant's failure to pay rent. All
payments and charges required to be made by Tenant to Landlord hereunder shall be
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9.B.c
payable in coin or currency of the United States of America, at the address indicated
herein. No payment to or receipt by Landlord of a lesser amount than the then amount
required to be paid hereunder shall be deemed to be other than on account of the earliest
amount of such obligation then due hereunder. No endorsement or statement on any
check or other communication accompanying a check for payment of any amounts
payable hereunder shall be deemed an accord and satisfaction, and Landlord may accept
such check in payment without prejudice to Landlord's right to recover the balance of any
sums owed by Tenant hereunder.
SECTION 2.04. COST OF WORK DEPOSIT, BAR AREA REIMBURSEMENT
AND SECURITY DEPOSIT.
Cost of Work Deposit
(a) Tenant, concurrently with the execution of this Lease, shall deposit with
Landlord the sum equal to Three Hundred Thousand and NO/100 Dollars ($300,000.00)
("Cost of Work Deposit"), in cash, which sum shall be held, subject to the terms of Section
2.04(b) hereinbelow, by Landlord as security for the full and prompt performance of each
and every applicable obligation, covenant and agreement of Tenant in this Lease,
including but not limited to Tenant's obligations to complete and fully pay for the cost of
Tenant's Work, all supplies, materials, the cost of permits, approvals and the cost of labor
used or consumed in Tenant's Work, the cost of Tenant's consultants, architects and
engineers who are retained to facilitate and assist in commencing and completing
Tenant's Work and the cost to obtain a final Certificate of Occupancy for the Premises.
Notwithstanding anything contained herein to the contrary, prior to the Delivery of
Possession Date, Landlord may draw on the Cost of Work Deposit and apply the Cost of
Work Deposit in whole or in part against any applicable Default by Tenant.
(b) Subject to Tenant's compliance with any and all terms, covenants, conditions
and obligations as contained in this Lease, and provided Tenant is not in default
hereunder beyond any applicable notice and cure period, if any, upon the Delivery of
Possession Date, the Cost of Work Deposit shall be held by Landlord only to secure
Tenant's obligations to complete and fully pay for the cost of Tenant's Work, all supplies,
materials, the cost of permits, approvals and the cost of labor used or consumed in
Tenant's Work, the cost of Tenant's consultants, architects and engineers who are
retained to facilitate and assist in commencing and completing Tenant's Work and the
cost to obtain a final Certificate of Occupancy for the Premises. Upon Tenant
successfully: (i) obtaining any and all Approvals and Permits, as hereinafter defined, for
Tenant's Work; (ii) Tenant and Landlord agreeing on Tenant's Budget, as hereinafter
defined; and (iii) Tenant successfully commencing all Tenant's Work, the Cost of Work
Deposit shall be pro rata released back to Tenant by Landlord in three (3) thirty (30) day
installments, and not more than once within each thirty (30) day increment. Within thirty
(30) days after completion of each one third (1/3) portion of Tenant's Work, Tenant shall
submit to Landlord (a) a copy of a certification of Tenant's architect that a one third (1/3)
portion of Tenant's Work has been completed pursuant to Tenant's Plans approved by
Landlord, and pursuant to any and all ordinances, laws, statutes and codes; (b) a sworn
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9.B.c
affidavit from Tenant and its general contractor (if Tenant is not acting as its own general
contractor) in form and substance reasonably acceptable to Landlord and Landlord's title
insurance company stating (1) in reasonable detail the actual costs paid by Tenant for
construction and completion of a one third (1/3) portion of the Tenant's Work, (2) the
names and addresses of all architects, contractors, subcontractors or suppliers in respect
of Tenant's Work, and (3) that all of the persons identified in the sworn affidavit required
pursuant to clause (b)(2) have been paid in full; (c) full and final mechanic's lien waivers,
in form and substance reasonably acceptable to Landlord and Landlord's title insurance
company, from each person identified in the sworn affidavit required pursuant to clause
(b)(2); and (d) an estoppel letter addressed to Landlord and Landlord's lender, if any, in
a form provided by Landlord. Within thirty (30) days after receipt of all such items,
Landlord shall pro rata release back to Tenant, a one third (1/3) portion of the Cost of
Work Deposit (or lesser amount if Tenant has not expended such amount on permissible
items) to Tenant, provided that at the time of payment Tenant is not in default under this
Lease, is occupying the Premises, and is diligently proceeding with Tenant's Work.
Landlord may deduct from any amount due to Tenant for the Cost of Work Deposit, any
amount due to Landlord for upgrade work performed by Landlord and not theretofore paid
by Tenant to Landlord. Notwithstanding anything contained herein to the contrary, on or
after the Delivery of Possession Date, Landlord may draw on the Cost of Work Deposit
and apply the Cost of Work Deposit in whole or in part against a Default by Tenant in
Tenant's obligations to complete and fully pay for the cost of Tenant's Work, all supplies,
materials, the cost of permits, approvals and the cost of labor used or consumed in
Tenant's Work, the cost of Tenant's consultants, architects and engineers who are
retained to facilitate and assist in commencing and completing Tenant's Work and the
cost to obtain a final Certificate of Occupancy for the Premises. Except as provided by
law, neither Landlord nor its respective successors or assigns shall be obligated to hold
the Cost of Work Deposit in a separate fund but may commingle the same with other
funds. The Cost of Work Deposit shall be held and released by Landlord pursuant to this
Section 2.04(b) to further secure and guaranty Tenant's ability to pay for costs of Tenant's
Work, including, but not limited to all supplies, materials, the cost of permits, approvals
and the cost of labor used or consumed in Tenant's Work and the cost of Tenant's
consultants, architects and engineers who are retained to facilitate and assist in
commencing and completing Tenant's Work as evidenced by the Tenant's Budget as set
forth in Section 4.06(b), hereunder. Provided Tenant is not in default hereunder as it
relates to Tenant's Work only beyond any applicable notice and cure period, if any, on
the date of the issuance of the final Certificate of Occupancy for the Premises, any excess
balance of the Cost of Work Deposit shall be released back to Tenant by Landlord. The
application of all or any portion of the balance Cost of Work Deposit may be used to cure
any Default (as hereinafter defined) by Tenant in Tenant's obligations to complete and
fully pay for the cost of Tenant's Work, all supplies, materials, the cost of permits,
approvals and the cost of labor used or consumed in Tenant's Work, the cost of Tenant's
consultants, architects and engineers who are retained to facilitate and assist in
commencing and completing Tenant's Work and the cost to obtain a final Certificate of
Occupancy for the Premises.
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9.B.c
Bar Area Reimbursement.
(c) Provided that Tenant complies with the terms and conditions of this
Section 2.04(c), Landlord shall reimburse Tenant an amount on account of all direct costs
paid by Tenant for construction and completion of the Bar portion of Tenant's Work,
including but not limited to demolition costs, electrical costs, plumbing, bar renovation,
bar equipment, painting, flooring, miscellaneous doors, hardware, carpentry, HVAC
modifications, plumbing supply, plumbing fixtures, electrical panels, power distribution,
lighting upgrades, low voltage, design, insurance, reasonable contractor fees, safety,
security and professional fees (but only including those portions of the Bar portion of
Tenant's Work which result in permanent, leasehold improvements and facilitate Tenant's
opening for business under the Permitted Use) in an amount not to exceed Three
Hundred Thousand and NO/100 Dollars ($300,000.00) ("Bar Area Reimbursement"). The
Bar Area Reimbursement shall be used by Tenant for Tenant's Work and improvements
to the bar area of the Premises, as approved by Landlord. The Bar portion of Tenant's
Work shall be set forth on Exhibit "E", attached hereto and incorporated herein. Subject
to Tenant's compliance with any and all terms, covenants, conditions and obligations as
contained in this Lease, the Bar Area Reimbursement shall be paid in three (3) thirty (30)
day installments, and not more than once within each thirty (30) day increment. Within
thirty (30) days after completion of each one third (1/3) portion of the Bar portion of
Tenant's Work, Tenant shall submit to Landlord (a) a copy of a certification of Tenant's
architect that a one third (1/3) portion of the Bar portion of Tenant's Work has been
completed pursuant to Tenant's Plans approved by Landlord, and pursuant to any and all
ordinances, laws, statutes and codes; (b) a sworn affidavit from Tenant and its general
contractor (if Tenant is not acting as its own general contractor) in form and substance
reasonably acceptable to Landlord and Landlord's title insurance company stating (1) in
reasonable detail the actual costs paid by Tenant for construction and completion of a
one third (1/3) portion of the Bar portion of Tenant's Work, (2) the names and addresses
of all architects, contractors, subcontractors or suppliers in respect of Tenant's Work, and
(3) that all of the persons identified in the sworn affidavit required pursuant to clause (b)(2)
have been paid in full; (c) full and final mechanic's lien waivers, in form and substance
reasonably acceptable to Landlord and Landlord's title insurance company, from each
person identified in the sworn affidavit required pursuant to clause (b)(2); and (d) an
estoppel letter addressed to Landlord and Landlord's lender, if any, in a form provided by
Landlord. Within thirty (30) days after receipt of all such items, Landlord shall pay a one
third (1/3) portion of the Bar portion of Bar Area Reimbursement (or lesser amount if
Tenant has not expended such amount on permissible items) to Tenant, provided that at
the time of payment Tenant is not in default under this Lease, is occupying the Premises,
and is diligently proceeding with Tenant's Work. Landlord may deduct from any amount
due to Tenant for the Bar Area Reimbursement, any amount due to Landlord for upgrade
work performed by Landlord and not theretofore paid by Tenant to Landlord.
Packet Pg. 26
9.B.c
Security Deposit.
(d) On the date of the issuance of the final Certificate of Occupancy for the
Premises, Tenant shall deposit with Landlord the sum equal to Twenty Thousand Eight
Hundred Thirty Three and 34/100 Dollars ($20,833.34) ("Security Deposit"), which is
equal to two (2) month's Minimum Rent, which sum shall be held by Landlord as security
for the full and prompt performance of each and every obligation, covenant and
agreement of Tenant in this Lease, including Tenant's obligations upon termination of this
Lease or termination of Tenant's right to possession. Notwithstanding anything herein to
the contrary, after two (2) years from the date of the issuance of the final Certificate of
Occupancy for the Premises, provided that Tenant is not in default under the Lease
beyond any applicable cure period, the amount of the Security Deposit required shall be
reduced to Twelve Thousand and 00/100 Dollars ($12,000.00) and Tenant, at Tenant's
option, shall receive the overage of the Security Deposit back either as rent credit or a
check. The Security Deposit (which shall not bear interest to Tenant) may, but need not,
be applied by Landlord in order to cure any Default (as hereinafter defined) by Tenant in
any of the terms, provisions, or conditions of this Lease. The Security Deposit shall be
returned to Tenant by the Landlord, after deducting therefrom any sums owed to Landlord
pursuant to provisions of this Lease, upon Tenant successfully performing each and every
obligation, covenant and agreement required by Tenant to be performed hereunder.
Should the Property or Premises be conveyed, or Landlord's interest be assigned, upon
written notice to Tenant, the Security Deposit (or any portion thereof not previously
applied) may be turned over or credited to Landlord's grantee or assignee as applicable,
and if the same be turned over or credited as aforesaid, such grantee or assignee shall
acknowledge receipt of the Security Deposit or a credit therefore, and Tenant hereby
releases Landlord from any and all liability with respect to the Security Deposit or its
application or return and Tenant agrees to look solely to such grantee or assignee for
such application or return. A mortgagee in possession of the Premises, or any interest
therein, through public or private foreclosure or the acceptance of a deed in lieu thereof,
shall have no liability to Tenant for return of all or any portion of the Security Deposit,
unless, and then only to the extent that, such mortgagee has acknowledged receipt of all
or any portion of Tenant's Security Deposit. In the event Landlord applies the Security
Deposit in whole or in part against a Default by Tenant, Tenant shall, upon written demand
by Landlord, deposit sufficient funds to maintain the deposit in the then required amount.
Failure of Tenant to deposit additional funds as security beyond the applicable cure period
shall constitute a Default hereunder and entitle the Landlord to avail itself of the remedies
provided in this Lease for non-payment of Minimum Rent by Tenant. Except as provided
by law, neither Landlord nor its respective successors or assigns shall be obligated to
hold the deposit in a separate fund but may commingle the same with other funds.
SECTION 2.05 PLEDGE OF FF&E FOR FURTHER SECURITY
(i) Obligations Secured. This Assignment is made by Tenant in favor of
Landlord to collaterally secure irrevocable and unconditional payment and performance
of the obligations, whether now existing or hereafter arising, by Tenant under this Lease
(collectively, the "Secured Obligations").
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9.B.c
(ii) Assignment/Grant of Security Interest. In order to collaterally secure the
unconditional and irrevocable payment and performance of the Secured Obligations, the
Tenant hereby unconditionally and irrevocably assigns, conveys, mortgages, pledges,
hypothecates, transfers and sets over to Landlord, and hereby grants to Landlord a
properly perfected, valid and enforceable, assignment of and continuing security interest
in Tenant's FF&E. Notwithstanding the above, for so long as an Event of Default pursuant
to the Lease has not occurred beyond applicable notice and cure periods as contained in
the Lease, Tenant shall have the license and right exercise any and all rights to use the
FF&E in the ordinary course of business at the Premises. The FF&E may not be sold,
transferred, conveyed, misused, or disposed except as disposed of and replaced in the
normal course of operating the business with new FF&E that is the same kind or
substantially similar in kind to the disposed FF&E upon notice to but without the prior
consent and approval of Landlord This Collateral Assignment is intended to be a security
agreement under the Uniform Commercial Code with respect to all or any portion of the
FF&E to the full extent that, under applicable law, the FF&E may be subject to a security
interest under the Code, whether acquired as of the date of this Assignment or in the
future. Upon Tenant successfully performing each and every obligation, covenant and
agreement required by Tenant to be performed hereunder, and provided Tenant is not in
default hereunder beyond any applicable notice and cure period, after three (3) years
from the Effective Date, this Assignment and this Assignment Pledge and Security
Agreement shall automatically be null and void and of no further force or effect and
Landlord shall reassign to Tenant, by quitclaim assignment and shall agree to a
recordable termination of any UCC filing perfecting this Assignment (all such documents
being collectively referred to herein as "Buffalo Grove Security Interest Termination
Documents"), and all of its rights to the FF&E.
(iii) Financing Statements. Tenant hereby authorizes Landlord to file
concurrently with the execution of this Assignment such UCC Financing Statements in
such locations as are necessary, and to take all such other actions and make such further
filings as Landlord may request, in order to perfect Landlord's continuing security interest
in the FF&E pursuant hereto. The Financing Statement shall be in form acceptable for
filing in each jurisdiction in which the same are to be filed, shall comply in all respects with
the Code and shall contain a description of "Collateral" that is substantially similar to the
description set forth on attached Exhibit A of the Pledge, defined hereunder.
(iv) Pledge Concurrently with Tenant's execution of the Lease, Tenant
hereby agrees to and shall execute the Assignment, Pledge and Security Agreement
("Pledge"), a copy of which is attached hereto and incorporated herein as Exhibit K. In the
event any of the terms and/or conditions of the Lease conflict with the terms and/or
conditions of the Pledge, Landlord and Tenant hereby understand and agree that the
terms and/or conditions of the Pledge shall control.
SECTION 2.06. LATE CHARGE. In the event any sums required hereunder to
be paid are not received on or before the tenth (10t") calendar day after the same are due
for the second (2nd) time in any calendar year, then, Tenant shall immediately pay, as
Additional Rent, a late payment service charge equal to five percent (5%) per month of
the amount required to be paid. Payment of the late payment service charge shall not in
Packet Pg. 28
9.B.c
and of itself abrogate a Default under this Lease. In addition, any amount due hereunder
shall bear interest from the date due until said past due amount shall be paid by Tenant
to Landlord at a rate equal to two percent (2%) above the prime rate in effect from time
to time as announced by JP Morgan Chase & Co. (or its successor), as its prime lending
rate from time to time, which rate shall change when and as said corporate base rate
changes but which rate shall not be in excess of any maximum interest rate permitted by
law (the "Default Rate"). If at any time during the Term, JP Morgan Chase & Co. or a
successor does not exist, then the parties shall use the corporate base rate announced
by the largest bank, measured by net worth, headquartered in the City of Chicago, Illinois.
ARTICLE III. OPTION TO EXTEND
SECTION 3.01. OPTION TO EXTEND. Provided Tenant is not then in default
under the terms of this Lease, Landlord grants Tenant the right, privilege, and option to
extend this Lease for two (2) periods of five (5) years each upon the same terms and
conditions contained in this Lease, upon notice in writing to Landlord of Tenant's intention
to exercise each such option, given at least one hundred eighty (180) days prior to the
end of the initial ten (10) year term or the immediate prior extension term.
SECTION 3.02. OPTION RENT.
(a) Option Minimum Rent. In the event Tenant exercises the first Option to
extend the Term provided for herein, Tenant covenants and agrees to pay to Landlord
annual Minimum Rent, in monthly installments on the first day of each month in advance,
according to the following schedule:
LEASE
YEARS
ANNUAL MINIMUM
RENT
MONTHLY
MINIMUM RENT
11
$138,060.76
$11,505.06
12
$139,786.52
$11,648.88
13
$141,533.85
$11,794.49
14
$143,303.02
$11,941.92
15
$145,095.11
$12,091.26
In the event that Tenant exercises its second (2nd) Option to extend the Term
provided for herein, Tenant covenants and agrees to pay to Landlord annual Minimum
Rent, in monthly installments on the first day of each month in advance, according to the
following schedule:
LEASE
ANNUAL MINIMUM
MONTHLY
YEARS
RENT
MINIMUM RENT
9
Packet Pg. 29
9.B.c
16
$146,908.80
$12,242.40
17
$148,745.16
$12,395.43
18
$150,604.47
$12,550.37
19
$152,487.02
$12,707.25
20
$154,393.11
$12,866.09
ARTICLE IV. PREPARATION OF PREMISES
SECTION 4.01. SITE PLAN. Exhibit "B" sets forth the general layout of the
Property, including the land and building containing the Premises, as marked, and the
Outdoor Seating Area. Landlord may change or alter any portion of the golf course or any
buildings, common areas (as hereafter defined) or any other aspect of the Property,
except for the Premises, or may sell or lease all, or any portions of the Property, except
for the Premises, all with prior written notice to, but without the consent of Tenant.
SECTION 4.02. LANDLORD'S WORK. Landlord, at its expense, has
constructed the building wherein the Premises are to be located and deliver the Premises
to Tenant substantially in accordance with the "Outline Specifications" attached hereto
and made a part hereof as Exhibit "E", including, but not limited to Landlord's Work
building the glass wall, work on the bar/patio area and the windows (hereinafter referred
to as "Landlord's Work). Except for Landlord's Work, all other work done by Landlord at
Tenant's request ("Upgrade Work") shall be at Tenant's expense and shall be paid by
Tenant within thirty (30) days after receipt by Tenant of a bill for such work and shall
constitute Additional Rent if not timely paid, unless otherwise specified in this Lease.
Tenant shall, on or before the date which is ten (10) days after Landlord's request
therefore, deliver to Landlord such information as may reasonably be requested by
Landlord (e.g., a fixture plan and base sheets relative to the Premises), so that Landlord
may be enabled to complete Landlord's Work in a manner that is consistent with Tenant's
specific requirements. It is understood and agreed that delay by Tenant in furnishing
requested information may result in a commensurate, permitted delay in the performance
of Landlord's Work.
SECTION 4.03. PERMIT CONTINGENCY PERIOD. This Lease shall be
contingent upon Tenant obtaining: (i) all necessary permits, licenses and approvals for
Tenant's Work and for Tenant's operations at the Premises which are issued by the
Village of Buffalo Grove, Illinois, (ii) Tenant's liquor license from the Village of Buffalo
Grove, Illinois for the on -premises sale and off -premises consumption of liquor, beer,
wine and other alcoholic beverages, (iii) the building permit from the Village of Buffalo
Grove, Illinois for Tenant's Work, (iv) Tenants food license for sale of food for on and off
Premises consumption from the Village of Buffalo Grove, Illinois, (v) any and all required
gaming licenses and permits from the Village of Buffalo Grove, Illinois, necessary to allow
for on site video gaming, as a licensed establishment licensed by the Illinois Gaming
Board pursuant to the Illinois Video Gaming Act, 230 ILCS 40/Article 5, et seq. (the "Video
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Gaming Act"), and (vi) any signage licenses and permits from the Village of Buffalo Grove,
Illinois (collectively, the "Approvals and Permits") within ( ) days after
the Effective Date (the "Permit Contingency Period"). Tenant hereby agrees to and shall
file all required applications and pay all applicable fees to begin the process to obtain the
Approvals and Permits on or before thirty (30) days after the Effective Date. Tenant shall
use best efforts to obtain the Approvals and Permits on or before the expiration of the
Permit Contingency Period. Landlord agrees to reasonably cooperate with Tenant in its
pursuit of the Approvals and Permits at no cost to Landlord. In the event, after using best
efforts, Tenant is unable to obtain the required Approvals and Permits, Tenant shall have
the right, during the Permit Contingency Period, to terminate this Lease by delivery of
written notice to Landlord, in which event except as provided below, and provided Tenant
is not in default hereunder beyond any applicable notice and cure period, Landlord shall
thereafter return the Three Hundred Thousand and 00/100 Dollars ($300,000.00) Cost of
Work Deposit and the Security Deposit to Tenant within thirty (30) days and the parties
shall have no further rights or obligations to the other hereunder. If Tenant does not
deliver written notice to Landlord of its election to terminate this Lease prior to the
expiration of the Permit Contingency Period, then the conditions of this Section shall be
deemed to have been fully satisfied, and Tenant shall have no further right to terminate
this Lease under this Section 4.03.
SECTION 4.04. CONSTRUCTION ALLOWANCE.
(a) Provided that Tenant complies with the terms and conditions of this
Section 4.04, Landlord shall pay to Tenant a one time allowance on account of all direct
costs paid by Tenant for construction and completion of Tenant's Work, including but not
limited to demolition costs, electrical costs, painting, flooring, design, miscellaneous
doors, hardware, carpentry, HVAC modifications, plumbing supply, plumbing fixtures,
electrical panels, power distribution, lighting upgrades, low voltage, design, insurance,
reasonable contractor fees, furnishing the Outdoor Seating Area, safety, security and
professional fees (but only including those portions of Tenant's Work which result in
permanent, leasehold improvements and facilitate Tenant's opening for business under
the Permitted Use) in an amount not to exceed One Hundred Sixty Thousand and
NO/100 Dollars ($160,000.00) (the "Construction Allowance").
Within sixty (60) days after completion of all of Tenant's Work, Tenant shall submit
to Landlord (a) a copy of the final, unqualified Certificate of Occupancy for the Premises;
(b) a sworn affidavit from Tenant and its general contractor (if Tenant is not acting as its
own general contractor) in form and substance reasonably acceptable to Landlord and
Landlord's title insurance company stating (1) in reasonable detail the actual costs paid
by Tenant for construction and completion of Tenant's Work, (2) the names and
addresses of all architects, contractors, subcontractors or suppliers in respect of Tenant's
Work, and (3) that all of the persons identified in the sworn affidavit required pursuant to
clause (b)(2) have been paid in full; (c) full and final mechanic's lien waivers, in form and
substance reasonably acceptable to Landlord and Landlord's title insurance company,
from each person identified in the sworn affidavit required pursuant to clause (b)(2); and
(d) an estoppel letter addressed to Landlord and Landlord's lender, if any, in a form
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provided by Landlord. Within fifteen (15) days after receipt of all such items, Landlord
shall pay the Construction Allowance (or lesser amount if Tenant has not expended such
amount on permissible items) to Tenant, provided that at the time of payment Tenant is
not in default under this Lease, is occupying the Premises, is then open for business and
has commenced paying Minimum and Additional Rent as contemplated by this Lease.
Landlord may deduct from any amount due to Tenant for the Construction Allowance, any
amount due to Landlord for upgrade work performed by Landlord and not theretofore paid
by Tenant to Landlord.
SECTION 4.05. POSSESSION CONTINGENCY/DELIVERY OF
POSSESSION DATE.
(a) Possession Contingency. Landlord and Tenant acknowledge and agree
that as of the Effective Date, a tenant is in possession of the Premises pursuant to a lease
with Landlord. Landlord and Tenant agree that this Lease is expressly conditioned upon
Landlord's obtaining exclusive possession of the Premises (hereinafter "Possession
Contingency"). Landlord shall use commercially reasonable efforts to obtain exclusive
possession of the Premises. In the event Landlord is unable to satisfy the Possession
Contingency and obtain exclusive possession of the Premises on or before November
16, 2021 ("Possession Termination Date"), Landlord and Tenant shall have the right to
terminate this Lease by giving written notice thereof to the other party within ten (10) days
after the Possession Termination Date and thereupon this Lease shall be null and void
ab initio. Landlord shall thereafter return the Three Hundred Thousand and 00/100 Dollars
($300,000.00) Cost of Work Deposit and the Security Deposit to Tenant within thirty (30)
days thereafter. In the event of termination pursuant to this Section 4.05(a), within thirty
(30) days after the Possession Termination Date Landlord shall also reimburse Tenant
for all reasonable costs expended by Tenant in relation to preparation of architectural and
engineer drawings and obtaining of the permits (collectively "A&E Costs"), provided
Tenant delivers the following to Landlord: (a) a sworn affidavit from Tenant in form and
substance reasonably acceptable to Landlord stating (1) in reasonable detail the actual
costs paid by Tenant for preparation of architectural and engineer drawings and obtaining
of the permits, (2) the names and addresses of all architects, engineers, consultants and
attorneys involved in the preparation of architectural and engineer drawings and obtaining
of the permits, and (3) that all of the persons identified in the sworn affidavit required
pursuant to clause (a)(2) have been paid in full; (b) full and final mechanic's lien waivers,
in form and substance reasonably acceptable to Landlord from each person identified in
the sworn affidavit required pursuant to clause (a)(2). Notwithstanding anything contained
herein to the contrary, the A&E Costs reimbursed by landlord to Tenant shall not exceed
Fifteen Thousand and 00/100 Dollars ($15,000.00) ("A&E Costs Reimbursement Cap").
In the alternative, Landlord and Tenant may mutually agree to extend the Possession
Termination Date, in which event the Rent Commencement Date shall be extended by
the number of days of such extension of Possession Termination Date. Landlord shall
give Tenant written notice within one (1) day after Landlord obtains exclusive possession
of the Premises. Once Landlord has tendered possession of the Premises to Tenant,
Landlord shall no longer have the right to cancel and terminate this Lease pursuant to this
Section 4.05(a).
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(b) Provided the Contingency set forth in Section 4.05(a) is satisfied, Landlord
and Tenant shall execute a Delivery of Possession Date Certificate substantially in the
form of Exhibit "D" attached hereto and made a part hereof. The date specified in such
Certificate as the date on which the Premises have been delivered to Tenant shall be the
"Delivery of Possession Date". Tenant agrees to take physical possession of the
Premises on the date Landlord tenders possession of the Premises to Tenant. From and
after the Delivery of Possession Date, Tenant agrees to diligently perform Tenant's Work.
The Delivery of Possession Date is estimated by Landlord to be on or about, provided,
however, Landlord and Tenant acknowledge, understand and agree that November 16,
2021 is simply an estimate and Landlord shall be under no contractual or lease
obligations, and Landlord shall not be liable to Tenant for any penalty, damages, claims,
liabilities, injuries fees or costs in excess of the A&E Costs Reimbursement Cap, in the
event this prospective date is not met and the Premises are delivered after November 16,
2021.
SECTION 4.06. TENANT'S WORK. (a) Tenant's Budget Tenant shall
prepare cost estimating and budgeting for Tenant's Work, including, without limitation,
obtaining permits and approvals, cost of Tenant's consultants, architects and engineers
who are retained to facilitate and assist in commencing and completing Tenant's Work,
cost of all supplies, materials and labor used or consumed in Tenant's Work consulting,
value engineering analysis, reviewing the Tenant's drawings, plans and specifications for
Tenant's Work, obtaining current prices and bids, preparing cost estimates and attending
meetings and otherwise as reasonably required to commence and complete Tenant's
Work (collectively "Tenant's Budget"). On or before October 1, 2021, Tenant shall deliver
a copy of Tenant's Budget to Landlord for review, comment and approval. Landlord shall
approve or disapprove the proposed Tenant's Budget within ten (10) days of receipt
thereof and if Landlord disapproves Landlord will specify the required changes in writing.
Tenant shall continue to revise Tenant's Budget for Tenant's Work and submit such
revised Tenant's Budget to Landlord for Landlord's approval until Landlord approves
Tenant's Budget, which approval shall not be unreasonably withheld or delayed.
(b) Tenant agrees to construct and alter the Premises into an entertainment,
gaming, food and retail center to allow Tenant to operate an indoor golf, entertainment
and gaming facility with a restaurant, banquet facilities and a bar for the sale of food and
liquor for on and off premises consumption at the Premises. Tenant shall be responsible
for any and all improvements on the interior of the Premises designated as the indoor
golf, entertainment and gaming facility portion of the Premises. Tenant shall install such
Furniture, fixtures, simulators, enclosures and related revenue generating equipment
necessary for the operation of a WJ Golf facility. All work that is to be performed by Tenant
to the Premises is to be done by Tenant at Tenant's expense (hereinafter referred to as
"Tenant's Work"), unless otherwise specified herein, in accordance with Exhibit "E"
attached hereto and made a part hereof and in accordance with the provisions of this
Section 4.06 and Section 4.08. All entry onto the Premises and work done by Tenant
shall be at Tenant's sole risk. All work performed by Tenant, including, without limitation,
building location, design, elevations, height and signage, shall be subject to Landlord's
prior written approval, including, but not limited to, written approval of Tenant's plans and
specifications as prepared by an independent professional architect. Tenant shall submit
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the plans for Tenant's Work to Landlord on a disc in AutoCAD format on or before thirty
(30) days after the Effective Date. Landlord shall approve or disapprove of said plans
within twenty-one (21) days of receipt thereof and if Landlord disapproves Landlord will
specify the required changes in writing. Tenant shall continue to revise the plans for
Tenant's Work and submit such plans to Landlord for Landlord's approval until Landlord
approves Tenant's plans which approval shall not be unreasonably withheld or delayed.
Tenant will obtain and give Landlord copies of all building permits from all governmental
authorities having jurisdiction thereof prior to performing Tenant's Work. Landlord shall
not have any liability or responsibility if Tenant's Work does not comply with applicable
laws, rules and ordinances and Tenant acknowledges that Tenant is responsible for such
compliance regardless of Landlord's approval of Tenant's plans. Tenant's Work shall be
performed in accordance with good construction practices, free and clear of liens, all
applicable laws and Landlord's insurance requirements as set forth in Section 4.08(b),
Section 9.02 and Exhibit "H", hereinbelow. Tenant will indemnify and hold Landlord
harmless from any liability, damages, liens, loss, costs, expenses, causes of action and
attorneys' fees arising from or resulting from or related to Tenant's Work. Further,
Landlord shall have no responsibility or liability for any loss or damage to any property
belonging to Tenant. Tenant agrees to pay for all utilities at the Premises, and to pay for
all utilities used or consumed in the Premises by Tenant from January 1, 2022. Tenant
shall obtain at Tenant's sole expense all certificates, approvals and permits which may
be necessary so that a certificate of occupancy for the Premises may be issued. Copies
of all such certificates shall be delivered to Landlord upon receipt by Tenant. Additionally,
Tenant shall deliver to Landlord, either before Tenant's Work commences or as it
progresses, as the case may be, true and accurate executed copies of the following: (i)
any and all construction contracts for all Tenant's Work; (ii) the Budget for Tenant's Work;
(iii) any and all Contractor's Sworn Statements for Tenant's Work; (iv) any and all change
orders for Tenant's Work,(iv) any and all partial and final lien waivers for Tenant's Work.
Upon completion of Tenant's Work Tenant shall have as -built construction drawings of
the interior space prepared in autocad and hard copies and deliver both to Landlord.
SECTION 4.07 TENANT'S FURTHER CONTRIBUTION. Immediately
following the expiration or waiver of the Possession Contingency Period and the Permit
Contingency Period, Tenant shall purchase from Landlord the current restaurant
equipment, and dining room furniture of the Arboretum Club (collectively "FF&E") in the
"As Is", "Where Is" condition with all faults as of June 1, 2021. Landlord agrees to sell,
transfer, assign, convey and deliver to Tenant the FF&E by executed Bill of Sale, for an
amount equal to One and No/100 Dollars ($1.00) ("FF&E Payment"), paid to Landlord by
immediately available federal funds by wire transfer. Landlord has and will have good and
valid title to the FF&E, free and clear of all liens, claims, security interests, mortgages and
encumbrances.
SECTION 4.08. SUBSEQUENT ALTERATIONS BY TENANT.
(a) After completion of Tenant's Work, Tenant shall not make any alterations to
the Premises the cost of which exceeds Five Thousand and No/100 Dollars ($5,000.00),
during Term without Landlord's consent. Tenant shall not make any alterations to the
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exterior of the Premises or which affect the structure of the Premises. Tenant may not
make any interior structural, mechanical, plumbing, electrical and/or non-structural
subsequent changes, modifications or alterations to the Premises, without the prior
written consent of Landlord in each instance, which consent shall not be unreasonably
withheld or delayed. Any and all alterations pre -approved by Landlord shall be performed
by Tenant in a first-class and workmanlike manner and in accordance with all applicable
legal and insurance requirements and the terms and provisions of this Lease.
(b) Prior to the commencement of any work by Tenant which has been pre -
approved by Landlord (including, without limitation, Tenant's Work), in addition to the
insurance maintained by Tenant under Section 9.02, Tenant shall (i) obtain all insurance
described in Exhibit "H" attached hereto, require all contractors and subcontractors
performing work at the Premises on behalf of or at the direction of Tenant to obtain the
insurance described in Section (b) of Exhibit "H" attached hereto, and shall deliver
duplicate originals of all certificates of such insurance to Landlord for written approval, (ii)
furnish Landlord with all necessary permits, licenses, approvals, certificates and
authorizations for prosecution and completion of the work, and (iii) furnish Landlord with
such other documents as may be reasonably requested by Landlord. Additionally, Tenant
shall deliver to Landlord, either before such additional work commences or as it
progresses, as the case may be, true and accurate executed copies of the following: (i)
any and all construction contracts for all such additional work; (ii) the budget for such
additional work; (iii) any and all Contractor's Sworn Statements for such additional work;
(iv) any and all change orders for such additional work and (iv) any and all partial and
final lien waivers for such additional work.
(c) No promise of Landlord to alter, remodel, improve, repair, decorate or clean
the Premises or the Exterior Areas, or any part thereof, and no representation respecting
the condition of the Premises or the building containing the Premises or the Exterior Areas
has been made to Tenant by Landlord, except as specifically set forth in this Lease.
Tenant hereby expressly acknowledges that Landlord has made no representations or
warranties, express or implied, as to the design or adequacy of (i) the building containing
the Premises for use as a restaurant, bar, banquet or entertainment or indoor golf facility
or (ii) the Premises for the use set forth in Section 5.01(a), and any such representation
or warranty, statutory or otherwise, is hereby waived by Tenant.
SECTION 4.09. LIEN CLAIMS. Tenant shall not permit any lien or claim for lien
for any mechanic, laborer or supplier or any other lien to be filed against the Building,
Land, the Premises, or any part thereof arising out of work performed, or alleged to have
been performed by, or at the direction of, or on behalf of Tenant. In the event that any
such lien or claim is filed against the Building, Land, the Premises, or any part thereof as
a result of any work or act of Tenant or anyone claiming by or through Tenant, Tenant, at
Tenant's expense, shall discharge or bond over the same within thirty (30) days after
receipt of notice by Tenant, or refusal of notice by Tenant. If Tenant fails to discharge or
bond over, with an appropriate bond reasonably acceptable to Landlord, said mechanic's
lien, Landlord may bond over or pay the same without inquiring into the validity or merits
of such lien. Said lien and all sums so advanced by Landlord, including Landlord's
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expenses and attorneys' fees, shall be paid on demand by Tenant as Additional Rent.
SECTION 4.10. AMERICANS WITH DISABILITIES ACT.
(a) Tenant shall construct Tenant's Work and operate its business in compliance
with the requirements of Title III (Public Accommodations) of the Americans with
Disabilities Act of 1990 ("ADA").
(b) Tenant represents and covenants that it shall conduct its occupancy and use
of the Premises in accordance with the ADA (including, but not limited to, modifying its
policies, practices and procedures and providing auxiliary aids and services to disabled
persons).
(c) Tenant agrees that all of Tenant's Work (and any other work performed in and
about the Premises by Tenant, Tenant's employees, agents or contractors) shall comply
with the ADA and, upon request of Landlord, Tenant shall provide Landlord with evidence
reasonably satisfactory to Landlord that Tenant's Work was performed in compliance with
the ADA. Furthermore, Tenant covenants and agrees that any and all future alterations
or improvements made by Tenant to the Premises shall comply with the ADA. Tenant
agrees to save, indemnify and hold Landlord, Landlord's managing agent, any and all
mortgagees and their respective agents, beneficiaries, partners, officers, servants and
employees harmless against all claims and liabilities, including but not limited to any fines,
penalties and attorneys' fees, arising from noncompliance of the Premises with the ADA.
(d) Landlord shall be required to cause the parking areas and common areas
associated with the Premises to comply with ADA.
ARTICLE V. CONDUCT OF BUSINESS
SECTION 5.01. USE AND TRADE NAME.
(a) Tenant shall use and occupy the Premises for the following purposes and
for no other use or purpose: the operation of an indoor golf, entertainment & gaming
facility, with a restaurant, bar and banquet facilities, along with related specialty items for
retail sale. In addition, the operation will provide food service and alcoholic beverages to
both indoor and outdoor golf patrons, including cart service providing food and beverage
cart delivery to golfers on the golf course, which is off Premises, as well as participants in
outdoor golf events held at the Arboretum Golf Course. The facility will have up to 6
gaming parlor machines and may offer to the public both dine -in and carry out food, as
well as delivery. Tenant shall make available the use of golf simulators during the hours
of operation of the Arboretum Golf Course. The demise to Tenant hereunder shall also
include, at no additional rent, the exclusive use of the outdoor seating area, the
approximate location of which is shown on Exhibit "B" attached hereto ("Outdoor Seating
Area"). Tenant shall be permitted to use the Outdoor Seating Area, provided (a) the tables
do not block or unreasonably impede the flow of pedestrian traffic, (b) the tables do not
block or unreasonably impede the business of the adjoining golf course, (c) Tenant meets
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all applicable laws, rules, regulations and ordinances pertaining to such outdoor seating
use, (d) Tenant provides Landlord with evidence that Tenant's liability insurance policy
required under this Lease provides coverage for the outside tables and the surrounding
sidewalk area, (e) the tables and the surrounding sidewalk area are maintained by Tenant
in a clean, neat and attractive condition and Tenant repairs any damage to the Outdoor
Seating Area caused by Tenant's use of the Outdoor Seating Area, and (f) Tenant does
not violate any other provisions of this Lease. Tenant shall be permitted to use the
Outdoor Seating Area solely as an outdoor cafe and to place in the Outdoor Seating Area
tables and chairs and an umbrella with each table (the style of which must be reasonably
approved by Landlord), in all cases without payment of any rent other than the Rent and
other charges payable under this Lease. Tenant shall provide, at its sole cost, the tables,
chair and umbrellas to be used in the Outdoor Seating Area. Tenant shall keep the
Outdoor Seating Area clean and free of trash and repair any damage caused by Tenant's
use of the Outdoor Seating Area. Tenant shall not store tables and chairs in the Outdoor
Seating Area when Tenant's store is not open for business or when Tenant is not using
the Outdoor Seating Area as an outdoor caf6. The foregoing Section 5.01(a) shall be
hereinafter referred to as Tenant's "Permitted Use".
Further, and in no way expanding the use clause set forth in the preceding section, Tenant
shall in no event allow the Premises to be utilized for any of the Prohibited Uses or in
violation of any exclusive set forth in Exhibit "G" attached hereto.
(b) Tenant shall operate its business from the Premises under the following
trade name only and under no other trade name: "WJ Golf" or any other name designated
for the restaurant/bar facility by the Tenant, as approved by Landlord, in its commercially
reasonable discretion.
(c) Tenant hereby acknowledges receipt of a Title Commitment from Chicago
Title Insurance Company, File No. CCH12105923LD for the Premises, for Tenant's
review. Tenant hereby agrees to be bound by all terms and conditions of the Recorded
Documents against the Premises recorded in the office of the Recorder of Deeds of Lake
County, Illinois (collectively "Recorded Documents"); that this Lease is subordinate and
subject to any Recorded Documents; that, in the event of a conflict between the terms
and conditions of the Recorded Documents and the terms and conditions of this Lease,
the terms and conditions of the Recorded Documents shall govern and control.
(d) EXCLUSIVE - Provided and only so long as Tenant is not in default under
this Lease, and so long as Tenant is operating its business for the Permitted Use, Landlord
shall not enter into a lease with another tenant on the Property owned by Landlord
wherein the primary use of such tenant is a store which specializes in and has as its
Primary Business and primary product line the Permitted Use ("Exclusive Use"). In the
event the Tenant does not use the Premises for the Exclusive Use for six (6) consecutive
months (subject to extension for six (6) additional months for a closing of the Premises
due to a casualty at the Premises or any events of Force Majeure Delay, hereinafter
defined) the restrictions under this Section 5.1(d) shall be null and void and of no further
force or effect.
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SECTION 5.02. OPENING; ESTOPPEL CERTIFICATE. Tenant agrees to be
fully stocked and shall open for business to the public on or before
( ) days after the Effective Date. From time to time and upon ten
(10) days written notice, Tenant agrees to execute and deliver a written
acceptance/estoppel certificate confirming that Tenant has accepted the Premises and
such other facts relative to this Lease as Landlord or any mortgagee of the Land may
request to be confirmed. If Tenant fails to timely execute such certificate, it shall be
conclusively determined that except as stated by Landlord in the acceptance/estoppel
certificate, that:
(a) this Lease has been duly authorized and executed by Tenant and is in full force
and effect and that the Lease has not been changed, altered, amended or modified;
(b) the rentable area of the Premises is as set forth in the Lease;
(c) the annual amount of Minimum Rent payable under the Lease is as set forth in
the Lease;
(d) Tenant has accepted possession of the Premises and is in actual, full and
complete possession thereof and that all improvements to have been provided by
Landlord pursuant to the Lease have been completed in accordance with the
requirements of the Lease and have been fully accepted by Tenant and that Tenant is not
entitled to any payment or credit on account of Tenant's Work or specify the amount due
Tenant;
(e) Except as may be permitted under this Lease, Tenant's interest under the
Lease has not been assigned by operation of law or otherwise and that no sublease
covering the Premises or any portion thereof has been entered into by Tenant;
(f) there are no defaults by either Landlord or Tenant under the Lease or events
which with the giving of notice or passage of time or both could become defaults or Tenant
shall specify such defaults or events.
SECTION 5.03. UTILITIES. (a) Tenant, at its expense, shall arrange for
and pay all costs for all utilities and services provided or used in or at the Premises,
including, but not limited to water, gas, heat, light, power, sewer charges, internet
/telephone service and all other services and utilities, commencing on January 1, 2022
and continuing through the end of the Term of this Lease. Tenant shall pay directly to the
public utility companies, the cost of any installation of any and all such additional utility
services. If any such services are not separately metered to Tenant, Tenant shall pay
sixty percent (60%) as reasonably determined by Landlord and Landlord providing to
Tenant actual invoices from the utility companies thereof which Landlord receives, upon
request, for all charges jointly metered within the Premises and the building containing
the Premises. The installation, maintenance of any utility separate from the shared utilities
and use of any such service shall be at Tenant's sole expense. Tenant agrees to
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indemnify and hold harmless Landlord from and against any and all claims arising from
the installation and maintenance of such separate utility and other services and from all
costs and charges for utilities consumed on, in or by the Premises. In the event of a utility
interruption caused by the gross negligence of Landlord, its agent, employees or
representatives that renders Tenant's business totally inoperable for two (2) consecutive
days, the Rent and Additional Rent shall be equitably abated for the number of days until
the date such utilities are restored..
(b) If Tenant desires telegraphic, burglar alarm, computer installations or signal
service, Landlord shall, upon request, direct the location and method of all connections
and wiring, if any, for such service. The installation, maintenance and use of any
such service shall be at Tenant's sole expense. Notwithstanding anything contained
herein to the contrary, Landlord shall provide access to Copper High Speed Internet, to
an access point in the building containing the Premises. If no current access for Copper
High Speed Internet exists today, Landlord will provide such access at its cost.
SECTION 5.04. SIGNS.
(a) Tenant shall be allowed to display "Coming Soon" or "Grand Opening" banners
on or near the Premises within thirty (30) days prior to Tenant opening for business. All
signs and banners of Tenant must be professionally made and comply with all applicable
governmental laws, ordinances, codes and Landlord's sign criteria.
(b) Tenant may install such signage as Tenant deems commercially reasonable,
including, but not limited to signage sufficient to advertise Tenant's location on Half Day
Road, provided, however, all of Tenant's signage shall comply with all existing ordinances
of the Village of Buffalo Grove, Illinois ("Village"). Tenant's signs shall be consistent with
the specifications and requirements contained in Exhibit "F" attached hereto. Tenant shall
pay for all costs in connection with its signs and shall be responsible for the cost of proper
installation and removal thereof and any damage caused to the Premises thereby.
SECTION 5.05. TENANT'S WARRANTIES AND OBLIGATIONS. Tenant
warrants, represents, covenants and agrees to and with Landlord, that throughout the
Term hereof Tenant shall: (i) keep the Premises and all components thereof, including
the interior, non-structural walls, floors, and the fixtures, displays, show windows,
entranceways, signs, and any platform or loading dock used by Tenant clean, neat,
sanitary and safe and in good order, repair and condition (including all necessary
replacements, painting and decorating), and shall keep all glass in doors and windows
(except Tenant shall not be responsible for the repair and replacement of the glass in the
Common Area, including front and back entrances and the vestibule area) clean and in
good condition and shall replace promptly all glass which may become damaged or
broken with glass of the same quality, ordinary wear and tear and damage by fire or other
casualty covered by collectible proceeds of Landlord's insurance excepted; (ii) pay,
before delinquent, any and all taxes, assessments and public charges imposed upon
Tenant's business or fixtures, and pay when due all fees of similar nature; (iii) observe all
restrictive covenants of record which are applicable to the Property, if any; (iv) not use
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the parking areas or sidewalks or any space outside the Premises for display, sale,
storage, or any other similar undertaking, (v) not use any advertising medium or sound
devices inside the Premises which may be heard outside the Premises, or permit any
objectionable odors to emanate from the Premises; (vi) keep the Premises sufficiently
heated to prevent freezing of water in pipes and fixtures in and about the Premises; (vii)
keep the temperature within the Premises at such levels as may be required by any
federal, state or local laws, ordinances, or regulations, (viii) comply and require all of
Tenant's employees, agents, concessionaires, licensees and invitees to comply with all
laws, ordinances, orders and governmental regulations, and with the directions of any
public officer authorized by law, with respect to the Premises and the use and occupancy
thereof; conduct its business at all times in a businesslike and reputable manner; (xi)
install and maintain such specialized fire protection devices, excluding the fire sprinkler
system which Landlord is responsible to maintain, as may be required by any
governmental body or insurance underwriter for the Premises due to or caused by
Tenant's Permitted Use; (xii) keep the Premises free from insects and vermin and contract
for regularly scheduled extermination service at such times and with such contractors as
Landlord shall approve in writing; (xiii) employ only such labor in the performance of any
work in and about the Premises as will not cause any conflict or controversy with any
labor organization representing trades performing work for Landlord, its contractors or
subcontractors; and (xiv) not dispose of, or use without the prior express written consent
of Landlord, any hazardous substance or material as defined by any federal or state law,
statute or ordinance, and any regulations promulgated thereunder, as exist as of the date
of this Lease and as may be enacted in the future.
SECTION 5.06. LEGAL REQUIREMENTS. Tenant shall, at its own expense,
comply with all laws, orders, ordinances and with directions of public officers thereunder,
with all applicable Board of Fire Insurance Underwriters regulations and other
requirements and with all notices from Landlord's mortgagee respecting all matters of
occupancy, condition or maintenance of the Premises, whether such orders or directions
shall be directed to Tenant or Landlord, and Tenant shall hold Landlord harmless from
any and all costs or expenses on account thereof. Tenant shall procure and maintain all
licenses and permits legally necessary for the operation of Tenant's business and allow
Landlord to inspect them on request.
SECTION 5.07. USE OF HAZARDOUS MATERIALS. (a) Tenant may not
cause or permit Hazardous Materials to be brought upon, kept and used in, on or about
the Premises without the prior written approval of Landlord which approval Landlord may
withhold in its sole discretion, except for such Hazardous Materials used as cleaning
supplies reasonably necessary or useful to Tenant's business and provided Tenant
complies with all Environmental Laws and other laws controlling or governing the
handling, manufacturing, treatment, storage, disposal, discharge, use and transportation
of those Hazardous Materials, except that Tenant shall be permitted to use commercial
cleaning solutions customarily used in the restaurant industry. In the event said approval
is granted by Landlord, Tenant must thereafter obtain the additional prior written approval
of the Landlord to store on or about the Premises more than a thirty (30) day supply of
any Hazardous Material (which approval may be withheld in the Landlord's sole
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discretion). No Hazardous Materials comprising hazardous waste as defined by the
Resource Conservation and Recovery Act, 42. U.S.C. 6901 et. seq.(42. U.S.C. 6903) or
other regulated waste material shall be stored on the Premises. Tenant agrees to
indemnify, defend and hold Landlord harmless from and against all injury, loss, damage
or costs (including all legal fees and court costs) arising out of or in connection with the
breach by Tenant of Tenant's obligations under this Section 5.07 and/or the use, storage,
disposal, or presence of any Hazardous Materials at the Premises caused to be there by
Tenant or Tenant's employees, agents, contractors, invitees, successors or assigns. The
term "Hazardous Substances or Materials" shall be as defined under federal
environmental law.
ARTICLE VI. EXTERIOR AREAS
SECTION 6.01. USE. During the Term of this Lease, Tenant is granted, subject
to rules and regulations promulgated by Landlord from time to time, the nonexclusive
license to permit its customers and invitees to use the sidewalks, customer parking areas
for the Premises, the entrance and exit ways designated by Landlord for access and
egress to and from the Premises from a public street or highway, all landscape areas
adjacent to the Premises, all loading dock and dumpster areas for the Premises, all site
lighting and all other outside areas adjacent to the Premises (collectively "Exterior
Areas"). All such Exterior Areas shall be subject to the control and management of
Landlord, and Landlord shall have the right, at any time and from time to time, to establish,
modify, amend and enforce reasonable rules and regulations with respect to the Exterior
Areas and the use thereof.
SECTION 6.02. MAINTENANCE, REPAIR AND REPLACEMENT OF EXTERIOR
AREAS (a) Landlord agrees to, at Landlord's sole cost and
expense, maintain, repair, replace and keep in good service (or cause to be maintained
and repaired) the Exterior Areas or cause the Exterior Areas, to be maintained, and
repaired in accordance with practices for similar restaurants in the same geographic area
as the Premises. Landlord agrees to pay for all costs and expenses incurred in, servicing,
insuring, cleaning, maintaining, repairing, patching, sealing, and re -striping of all parking
areas used for the Premises, dumpster areas, site lighting and (to the extent Landlord, in
its sole discretion, deems appropriate) policing and protecting all Exterior Areas,
including, without limitation, the following costs and expenses: (i) gas, electricity, water,
sewer, other utility charges (including surcharges) of whatever nature which are
necessary for the operation of the Exterior Areas, including all exterior site lighting,
removal of rubbish, dirt, debris, snow and ice; (ii) insurance premiums, including but not
limited to liability, property damage, fire, extended coverage, rent loss, workers'
compensation, employer's liability, and contractual liability insurance premiums which are
necessary to insure the Exterior Areas,; (iv) costs of service and maintenance contracts,
including windows for the Exterior Areas,; (vi) any other costs and expenses incurred by
Landlord in operating the Exterior Areas. Tenant acknowledges, understands and agrees
that except as set forth herein as Landlord's Work, Landlord has no liability or obligation
to construct or install, any Exterior Areas, as shown on the Site Plan attached hereto as
Exhibit "B".
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SECTION 6.04. PAYMENT OF EXTERIOR AREA EXPENSES. Landlord shall
pay all Exterior Area operational, maintenance, repair and replacement expenses, fees
and costs directly to any vendors.
ARTICLE VII. REPAIRS AND MAINTENANCE
SECTION 7.01. LANDLORD'S OBLIGATIONS. Landlord shall, at Landlord's
expense, keep in good repair the exterior walls, of the Premises. Landlord at Landlord's
expense shall keep the structural supports, roof, soffits, guttering, common area lighting,
landscaping, parking lot, ingress/ egress to the parking lot, exterior walls, subflooring,
foundations, the mechanical units, plumbing, electrical, underground pipes, utilities to the
building, dumpster enclosure, fire sprinkler system and building structure of the Premises
in a good state of repair. Except as otherwise set forth herein, Landlord shall have no
obligation to maintain, repair or replace the building containing the Premises or any
portion thereof or any part of the Premises. Landlord will agree to provide a grease trap
available for the Tenant to connect to and use in the Permitted Use.
SECTION 7.02. TENANT'S MAINTENANCE AND REPAIRS. Tenant shall
maintain, clean and keep the Premises including its ceiling, grease trap, entrances for the
Premises, service areas, and all improvements making up the Premises and all
appurtenances and facilities thereof in good order, condition and repair, making all
needed maintenance, repairs and replacements, including, without limitation:
(a) maintaining lighting, heating and plumbing fixtures in good order, condition
and repair making all needed maintenance, repairs and replacements, all of which
Landlord warrants that, to the best of Landlord's actual knowledge, at the time of
delivery of possession of the Premises are in good working order;
(b) making repairs and replacements as needed to all Tenant signs, frames,
doors, hardware, partitions, interior walls, interior ceilings, and fixtures;
(c) keeping all glass, including that in windows, doors, fixtures and skylights
(except Tenant shall not be responsible for the repair and replacement of the glass
in the Common Area, including front and back entrances and vestibule area), clean
and in good condition, and to replace glass which may be damaged or broken with
glass of the same quality;
(d) keeping all pipes, the grease trap and drains inside or outside the Premises
and servicing the Premises clean and free of blockage and accumulation of hair,
debris or waste of any kind emanating from the Premises, and removing all such
waste with proper traps approved by Landlord so as to prevent such waste from
accumulating in any drains or pipes or being discharged through any drains or
pipes into any system of pipes or sewers located outside the Premises, all of which
Landlord warrants that, to the best of Landlord's actual knowledge, at the time of
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delivery of possession of the Premises are in good working order;
(e) making all repairs, alterations, additions or replacements to the Premises
required by any law, ordinance or regulation of any public authority in existence on
the date of execution hereof or by fire underwriters or underwriters' fire prevention
engineers, keeping the Premises equipped with all safety appliances so required,
except that the fire sprinkler system shall be Landlord's responsibility; and
(f) repainting and redecorating the Premises and cleaning carpets at
reasonable intervals.
If replacement of the Premises equipment, fixtures, units and appurtenances thereto are
necessary, Tenant shall replace the same with equipment, fixtures, units and
appurtenances of the same quality when new and shall repair all damage resulting in or
by such replacement.
Tenant shall arrange for the regular pickup of all trash and garbage at Tenant's sole cost
and expense. Tenant shall not burn any trash or garbage at any time in or about the
Premises, and Tenant shall attend to the daily disposal of trash and garbage in the
manner designated by Landlord.
If Tenant refuses or neglects to make repairs and/or replacements and/or to maintain the
Premises or any part thereof as set forth in this Lease and in a manner reasonably
satisfactory to Landlord, Landlord shall have the right, but not the obligation, upon giving
Tenant written notice which shall include a fourteen (14) day cure period of its election to
do so, to make such repairs or perform such maintenance on behalf of and for the account
of Tenant. Such work shall be paid for by Tenant, as Additional Rent, promptly upon
receipt of a bill therefor with an eight percent (8%) administration charge added to the
total.
SECTION 7.03. MAINTENANCE OF HEATING, VENTILATING AND AIR
CONDITIONING SYSTEM. As part of Landlord's maintenance and repair obligations,
Landlord shall provide for and perform periodic service, maintenance, repair and
replacement of the heating, ventilating and air conditioning system serving the Premises
which shall provide for a scope of work and periodic services, at a minimum, in
accordance with manufacturer's specifications.
SECTION 7.04. FAILURE TO MAINTAIN OR REPAIR. If Tenant fails to
perform any obligation under Sections 7.02, and such failure continues for ten (10) days
after written notice from Landlord (except in the case of an emergency when no notice
shall be necessary), Landlord may, but shall not be obligated to, perform such obligation,
and Tenant shall pay to Landlord, upon demand, as additional Rent, the cost of such
performance plus eight percent (8%) of such cost for supervision and overhead.
SECTION 7.05. LABOR RELATIONS. (a) Labor. Tenant shall not knowingly
engage in or permit any activity which shall result in labor strife at the Premises or the
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building containing the Premises, including work slowdowns, pickets or boycotts in the
Exterior Areas. Tenant shall promptly respond to any complaint or notice received by
Landlord or Tenant from a union representative so as to prevent picketing or disruption
of work at the Premises or the building containing the Premises.
(b) Prevailing Wage Act Compliance. Landlord and Tenant agree that Tenant's
use of the Premises and any and all build out work and Tenant's Work shall comply with
any and all applicable Federal and State Laws, including but not limited to the Prevailing
Wage Act. Notwithstanding anything herein to the contrary, this Section 7.05 is applicable
to demolition work and any non -permanent improvement work only to the extent as
required under the Prevailing Wage Act (820 ILCS 130/, et seq.).
ARTICLE VIII. REAL ESTATE/LEASEHOLD TAXES
SECTION 8.01. LIABILITY. Starting with the Effective Date and throughout the
entire Term of this Lease, and provided Landlord owns the Premises, Tenant shall pay
all Taxes, as hereinafter defined, for each tax year. The term "Taxes" means the total of
all taxes and assessments, general and special, ordinary and extraordinary, foreseen and
unforeseen, including assessments for public improvements and betterments, assessed,
levied or imposed with respect to the land and improvements included within the
Premises, taxes on the leasehold, rents, leases or subleases or on the privilege of leasing
or subleasing. Tenant shall annually review the real estate taxes and seek legal advice
as to the prospective effectiveness of engaging in any tax reduction work, and, if the
advice evidences a reasonable possibility that tax reduction work would be effective and
yield a positive result, Tenant shall contest the real estate tax assessment with attorneys
of its choice at Tenants cost. If, at any time during the term of this Lease, the present
method of taxation shall be changed so that in lieu of the whole or any part of any Taxes
levied, assessed or imposed on real estate and the improvements thereon there shall be
levied, assessed or imposed on Landlord a capital levy or other tax directly on the rents
received therefrom and/or a franchise tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rents for the present or any future improvements on
the Land, then all such taxes, assessments, levies or charges, or the part thereof so
measured or based, shall be deemed to be included within the term "Taxes" for the
purposes hereof. Tenant shall be responsible for and shall pay the real estate and
leasehold taxes accruing for the Premises and/or the Lease from the Effective Date
through the end of the Term, including any Taxes on the Exterior Areas, and further
including any access roads. Notwithstanding the foregoing, if a portion of the land
underlying the Property is separately assessed so that the owner or occupant thereof
pays a portion of the Taxes the land underlying the Property directly to the taxing
authority, then Landlord may elect to exclude the Taxes for such separately assessed
parcel from Taxes hereunder. Landlord hereby represents and warrants that Landlord is
a tax-exempt governmental entity. As of the Effective Date, the real estate taxes,
assessments, general and special for the Property are exempt. Landlord makes no
representation or warranty whatsoever regarding the assessment or issuance of any
taxes based on the leasehold, rents, leases or subleases or on the privilege of leasing or
subleasing or on Tenant's or Landlord's interest in this Lease (collectively "Leasehold
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9.B.c
Taxes", which shall be included in the term "Taxes"). In the event of any assessment of
such Leasehold Taxes, Tenant shall be responsible for and shall timely pay 100% of all
such Leasehold Taxes.
SECTION 8.02. METHOD OF PAYMENT. (a) Tenant shall pay, prior to
the earlier of delinquency or the accrual of interest on the unpaid balance, or reimburse
Landlord to the extent paid by Landlord, all taxes and assessments of every type or nature
assessed against or imposed upon the Premises or the Leasehold of Tenant, Tenant or
Landlord during the Lease Term related to or arising out of this Lease and the activities
of the parties hereunder, including without limitation, (i) all taxes or assessments upon
the Premises or any part thereof and upon any personal property, trade fixtures and
improvements located on the Premises, whether belonging to Landlord or Tenant, or any
tax or charge levied in lieu of such taxes and assessments; (ii) all taxes, charges, license
fees and or similar fees imposed by reason of the use of the Premises by Tenant; (iii) all
excise, franchise, transaction, privilege, license, sales, use and other taxes upon the Rent
or other monetary obligations hereunder, the leasehold estate of either party or the
activities of either party pursuant to this Lease; and (iv) all Leasehold Taxes or any other
taxes on the Lease or leasehold of Landlord and Tenant. Notwithstanding anything in
clauses (i) through (iv) to the contrary, Tenant shall not be obligated to pay or reimburse
Landlord for any taxes based on the net income of Landlord.
Notwithstanding anything herein to the contrary, Landlord shall, within twelve (12)
months after the date the tax amount of any Taxes becomes available, to charge and bill
the Tenant the tax amount of any Taxes. Notwithstanding the end of the Term hereof,
until the issuance of any Tax bill for the last Lease Year of the Term , Tenant shall continue
to be liable to Landlord for all Taxes assessed, levied or imposed for the period of the
Term of this Lease, as extended, or any portion thereof, whether or not such Taxes shall
be due during such Term, and Tenant shall promptly remit to Landlord any amount due
to Landlord upon notice from Landlord to Tenant. Tenant shall also continue to be
responsible for and shall timely pay 100% of all Leasehold Taxes, notwithstanding the
expiration or termination of the Term.
(b) In the event the Landlord sells all or any portion of the Property to an entity
which causes the Property, or any portion thereof, to become not exempt, including the
Premises, from and after the Closing Date of such a sale, Tenant may deduct the amount
of the Tax bill applicable to the Premises, as determined by Landlord in its reasonable
discretion, up to but not in excess of twenty five percent (25%) of the Annual Minimum
Rent applicable to the Lease Year then in affect. Tenant shall continue to be obligated to
pay the Taxes and 100% of any Leasehold Taxes.
ARTICLE IX. INSURANCE, INDEMNITY AND LIABILITY
(a) SECTION 9.01. TENANT'S OBLIGATIONS.
Tenant shall obtain and maintain, during the Term of this Lease:
(i) Commercial General Liability insurance with coverage for premises/operations,
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products/completed operations, contractual liability (insuring Tenant's indemnity
hereunder) and personal/advertising injury naming Landlord, Landlord's managing agent,
any mortgagee, and master Landlord, if any, as additional insureds, which policy is to be
in the minimum amount of:
$1,000,000 each occurrence;
$2,000,000 annual aggregate;
$1,000,000 personal injury and advertising
(ii) Commercial Automobile Liability with coverage for owned, hired and non -owned
vehicles which policy is to be in the minimum amount of $1,000,000 each occurrence
combined single limit for bodily injury and property damage;
(iii) Umbrella Liability coverage which policy will be in the minimum amount of:
each occurrence; and
annual aggregate;
(iv) Intentionally Deleted
(v) Workers' Compensation insurance covering all costs, statutory benefits and liabilities
under state workers' compensation and similar laws with a waiver of subrogation in favor
of Landlord and Employer's Liability Insurance in the amount of $500,000.00 per accident
or disease;
(v) Business Income Insurance to include Rental Value coverage; and
(vi) Dram shop insurance with total limits of liability for bodily injury, loss of means of
support, and property damage because of each occurrence of not less than
$3,000,000.00, or such greater amounts as Landlord may require, indemnifying Landlord,
its directors, officers, agents and assigns, Tenant and such other persons as Landlord
may designate, against any and all liability relating to the use, sale or giving away of
alcoholic liquors; and (ii) product liability insurance with limits of liability of not less than
$1,000,000.00 per occurrence. Tenant shall, prior to the commencement of operations in
the restaurant and bar portion of the Premises, furnish to Landlord certificates evidencing
such coverage, which certificates shall state that such insurance coverage may not be
changed or canceled without at least 30 days' prior written notice to Landlord and Tenant.
(vi)The minimum limits hereinbefore set forth may, at Landlord's option, be increased by
not more than ten percent (10%), such increase to occur not more often than once during
each two (2) consecutive lease years during the Term hereof. Tenant shall deliver to
Landlord certificates of insurance or duplicate originals of each such policy on the
Commencement Date and at least thirty (30) days prior to the expiration date of each
such policy, and any endorsements requested by Landlord, within three (10) days after
request therefore. In the event that Tenant fails to provide Landlord with proof that any
policy required hereunder has been renewed or replaced at least thirty (30) days prior to
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expiration date for such policy and Tenant fails to provide such proof to Landlord within
ten (10) days after written notice from Landlord, then Landlord may purchase such
insurance on behalf of Tenant and Tenant shall pay to Landlord the cost of such policy
upon demand by Landlord;
(viii) Tenant, at Tenant's sole cost and expense, shall obtain and maintain, for the term
of this Lease, as extended, Property insurance providing coverage: for all Tenant's
furnishings, fixtures, equipment, personal property and other contents located at the
Premises, including, but not limited to, those perils generally covered on a Causes of Loss
— Special Form, including fire, extended coverage, windstorm, vandalism, malicious
mischief, flood and earthquake coverage in the amount of the full replacement cost of
said items, with a waiver of subrogation in favor of Landlord. Tenant shall provide Tenant
with proof of said coverages upon execution hereof. Landlord shall have no obligation or
liability to obtain any insurance coverage for Tenant's furnishings, fixtures, equipment,
personal property and other contents located at the Premises.
(b) The policies described in this Section 9.01 shall: (i) be acceptable to
Landlord in form and content, (ii) contain an express waiver of any right of subrogation by
the insurance company against Landlord, Landlord's agents and employees, and any
mortgagees and ground landlords, (iii) contain a provision that it shall not be cancelled
and that it shall continue in full force and effect unless Landlord has received at least thirty
(30) days prior written notice of such cancellation or termination, (iv) not be materially
changed without prior notice to Landlord, and (v) name Landlord as an additional insured
under said policies on a primary and non-contributory basis except for Workman's
Compensation.
(c) Tenant shall not permit to be done any act which will invalidate or be in
conflict with the fire insurance policies covering the Premises or any other insurance
referred to in this Lease. Tenant will promptly comply with all rules and regulations relating
to such policies. If the acts of Tenant or its employees or agents shall increase the rate
of insurance referred to in this Lease, such increases shall be immediately paid by Tenant
as Additional Rent.
SECTION 9.02. LANDLORD'S INSURANCE OBLIGATIONS.
Landlord, at Landlord's sole cost and expense, shall obtain and maintain, for the
term of this Lease, as extended, insurance policies providing the following coverage:
Property Insurance upon the building containing the Premises and building improvements
and betterments that become a part of the building, including, but not limited to, those
perils generally covered on a Causes of Loss — Special Form, including fire, extended
coverage, windstorm, vandalism, malicious mischief, flood and earthquake coverage in
the amount of the full replacement cost of said items.
SECTION 9.03. COVENANTS TO HOLD HARMLESS.
(a) Landlord and Tenant each hereby releases the other, its officers, directors,
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managers, employees, and agents from any and all liability or responsibility for any loss
or damage to property covered by, or which loss or damage is required pursuant to this
Lease to be insured by, valid and collectible fire insurance with standard and extended
coverage endorsement, to the extent of the proceeds collected under such insurance
policies, even if such fire or other casualty shall have been caused by the fault or
negligence of the other party, or any one for whom such party may be responsible.
(b) Tenant agrees to hold harmless and indemnify Landlord and any and all
mortgagees and their respective agents, beneficiaries, partners, officers, servants and
employees against claims and liabilities, including attorneys' fees, for injuries to all
persons and damage to, or theft or misappropriation or loss of property occurring in or
about, the Premises, arising from Tenant's occupancy of the Premises or the conduct of
its business or from activity, work, or anything done, permitted or suffered by Tenant in or
about the Premises, or from any breach or default on the part of Tenant in the
performance of any covenant or agreement on the part of Tenant to be performed
pursuant to the terms of this Lease or due to any other act or omission of Tenant, its
agents, employees, guests or invitees. In case of any action or proceeding brought
against Landlord, Landlord's managing agent, any mortgagee, master Landlord, or any
of their respective agents, beneficiaries, partners, officers, servants or employees by
reason of any such claims, upon notice from Landlord, Tenant covenants to defend such
action or proceeding at Tenant's expense with counsel reasonably satisfactory to
Landlord.
SECTION 9.04. LIABILITY OF LANDLORD TO TENANT. Except with respect
to any damages resulting from the willful misconduct or gross negligence of Landlord, its
agents or employees, Tenant releases Landlord and Landlord's managing agent and their
respective agents, beneficiaries, directors, officers, servants and employees, from and
waives all claims for damages to person or property sustained by Tenant or by any
occupant of the Premises or the building containing the Premises, or by any other person,
resulting directly or indirectly from fire or other casualty, cause or any existing or future
condition, defect, matter or thing in the Premises, the building containing the Premises or
any part thereof, or from any equipment or appurtenance therein, or from any accident in
or about the Premises, or from any act or neglect of any other person, including any agent,
managing agent, partner, officer, servant or employee of Landlord or of Landlord's
managing agent. This Section shall apply especially, but not exclusively, to damage
caused by water, snow, frost, steam, excessive heat or cold, sewerage, any gas, odors
or noise, or the bursting or leaking of pipes or plumbing fixtures, falling plaster, broken
glass, sprinkling, heating, ventilating or air conditioning systems, devices or equipment,
or flooding, and shall apply without distinction as to whether the damage was due to any
of the acts specifically enumerated above, or from any other thing or circumstance,
whether of a like nature or of a wholly different nature. All personal property belonging to
Tenant or any occupant of the Premises or to any other person that is in the Premises
shall be there at the risk of Tenant or such other person only, and Landlord and Landlord's
managing agent and their respective agents, managing agent, partners, officers, servants
and employees shall not be liable for damage thereto or theft or misappropriation thereof.
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ARTICLE X. DESTRUCTION OF PREMISES
SECTION 10.01. RECONSTRUCTION; LEASE CONTINUANCE AND RENT
ABATEMENT.
(a) If all or a substantial portion of the Premises shall be damaged by fire or
other casualty, this Lease shall not be terminated or otherwise affected; except that, if: (i)
any such fire or other casualty occurs within the last two (2) years of the Term of this
Lease and the cost of repairs exceeds One Hundred Thousand Dollars ($100,000.00) as
reasonably estimated by Landlord, or (ii) if the Premises and/or the building containing
the Premises are damaged or destroyed by fire or other casualty, so that fifty percent
(50%) or more of the floor area contained in the Building is untenable, and the Premises
cannot be rebuilt within two hundred forty (240) days from the date of such casualty, as
reasonably determined by Landlord's engineers, then, in any such event, Landlord or
Tenant, at each party's sole option, may terminate this Lease and the Term upon thirty
(30) days notice to the other party given within ninety (90) days after the date of such fire
or other casualty. Upon the giving of any such notice this Lease and the Term shall
terminate by limitation upon the giving of said notice as fully and effectively as if the date
said notice is given had been the date in this Lease specifically provided for the
termination of this Lease and the Term.
(b) If Landlord or Tenant does not so terminate this Lease, then Landlord shall
repair and/or rebuild the Premises including the building containing the Premises and
other improvements on the land to substantially the same condition as immediately prior
to the casualty and in compliance and subject to the terms of Article IV of this Lease and
all government requirements. The Term shall continue without interruption, and this
Lease shall remain in full force and effect. Landlord and Tenant waive the provisions of
any present or future law which may be contrary to the foregoing provisions of this
Section. Landlord shall, using the proceeds from the insurance provided for in Section
9.01, repair, restore, replace or rebuild the Premises, such that the Premises shall be
restored to its condition as of immediately prior to the occurrence of such casualty. All
of the aforesaid insurance proceeds shall be deposited in escrow by Tenant and shall be
disbursed as work on repair, replacement or restoration progresses upon the certification
of Landlord's architect that the balance in the escrow fund is sufficient to pay the
estimated costs of completing the repair and restoration. If the insurance proceeds shall
be less than required to complete Tenant's obligation hereunder, Tenant shall pay the
entire excess cost into said escrow upon demand by Landlord. Subject to Section
10.01(c), hereinbelow, if this Lease is terminated pursuant to this Article X, then Landlord
shall receive all proceeds from insurance policies insuring such damage and destruction
to the building containing the Premises and the Premises and Tenant shall receive all
proceeds from insurance policies Tenant obtains and maintains insuring any and all
Tenant's furnishings, fixtures, equipment, personal property and other contents located
at the Premises and provided for or installed and paid for by Tenant, pursuant to Section
9.01(ii), hereinabove. Tenant shall assign to Landlord the right to receive any insurance
proceeds from any policy maintained by Tenant or any affiliate of Tenant for such damage
and destruction to the building containing the Premises and Premises. The Minimum Rent
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which is payable hereunder during the existence of such damage and until such repair or
rebuilding is substantially completed shall be equitably abated. Equitable abatement shall
terminate upon the earlier of (i) the date upon which Tenant commences to use
substantially all of the Premises for business with the public and (ii) a reasonable period
of time for Tenant to fixture the Premises not to exceed one hundred twenty (120) days
after the date upon which Landlord substantially completes its repair or rebuilding work.
However, in no event shall Minimum Rent abate, in whole or in part, if such fire or casualty
was caused by the act or neglect of Tenant, its employees or agents.
ARTICLE XI. CONDEMNATION
SECTION 11.01. EMINENT DOMAIN. If twenty-five percent (25%) or more of the
floor area of the Premises shall be taken or condemned by any competent government
authority, then either party may elect to terminate this Lease by giving notice to the other
party not more than sixty (60) days after the date on which such title shall vest in the
authority; provided, that if Landlord elects, by giving Tenant written notice thereof within
thirty (30) days following the condemnation date, to make reasonably comparable space
available to Tenant under the same terms as herein provided, Tenant shall accept such
space and this Lease shall then apply to such space. Appropriate adjustments will be
made to reflect any difference between the rentable area of the replacement space and
the rentable area of the Premises. If the parking facilities are reduced below the minimum
parking requirements imposed by the applicable authorities, Tenant may elect to
terminate this Lease by giving Landlord notice within one hundred twenty (120) days after
such taking. In case of any taking or condemnation, whether or not the term of this Lease
shall cease and terminate, the entire award shall be the property of Landlord; provided,
however, Tenant shall be entitled to any award as may be allowed for fixtures and other
equipment which, under the terms of this Lease, would not have become the property of
Landlord; or any other award further provided, that any such award to Tenant shall not be
in diminution of any award to Landlord.
SECTION 11.02. RENT APPORTIONMENT. Tenant's obligation to pay
Minimum Rent shall be apportioned or ended, as the case may be, as of the date of
vesting of title or termination of this Lease. Any purchase of all or a portion of the Premises
in lieu of a taking or condemnation under powers of eminent domain shall be deemed a
taking or condemnation thereof.
ARTICLE XII. ASSIGNMENT, SUBLETTING AND ENCUMBERING LEASE
Except as provided in Article XII, Subsection (e) hereof, Tenant shall not, without the
express written consent of Landlord: which consent will not be unreasonably withheld or
delayed (i) assign or otherwise transfer, mortgage or encumber this Lease or any of its
rights hereunder, (ii) sublet the Premises or any part thereof or permit the use of the
Premises or any part thereof by any persons other than Tenant or its agents, or (iii) permit
the assignment or other transfer of this Lease or any of Tenant's rights hereunder by
operation of law. Any attempted or purported transfer, assignment, mortgaging or
encumbering of this Lease or any of Tenant's interest hereunder, and any attempted or
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purported subletting or grant of a right to use or occupy all or a portion of the Premises,
in violation of the foregoing sentence shall be null and void and shall not confer any rights
upon any purported transferee, assignee, mortgagee, sublessee, or occupant.
Notwithstanding anything to the contrary contained in this Article XII, Tenant shall have
the right to transfer all or part of its interest in this Lease or all or part of the Premises to:
(i) an Affiliate (as defined below) of Tenant or the principals of Tenant; or (ii) an entity
surviving a consolidation or merger with Tenant and/or an Affiliate of Tenant; or (iii) an
entity or person acquiring all or substantially all of Tenant's or an Affiliate of Tenant's
stock, other voting/membership interest or assets ((i) through (iii) collectively and
individually referred to herein as a "Permitted Transfer(s)") upon the prior consent of
Landlord, such consent not to be unreasonably withheld or delayed and such consent to
be based upon the Landlord's commercially reasonable determination that the net worth
of the assignee subject to Permitted Transfer shall be equal to or greater than the Tenant.
Notwithstanding anything herein to the contrary, the. Tenant shall continue to be fully
liable for the performance of all of the obligations of Tenant hereunder in connection with
a Permitted Transfer. The Guarantor shall be fully released and shall not be liable for the
performance of all of the obligations of Tenant hereunder in connection with a Permitted
Transfer only if a replacement guarantor, whose net worth is equal to or greater than the
Guarantor, as determined by landlord in its commercially reasonable discretion, is
provided and a comparable Guaranty is fully executed and delivered to Landlord. For
purposes of this Article XII, the term "Affiliate" means any person or entity controlling,
controlled by or under common control with Tenant; the term "Control" as applied to any
person or entity means the possession, directly or indirectly, of the power to direct or
cause the direction of the management, policies and decision -making of such person or
entity, through the ownership of voting interests. Any subsequent transfer by a Permitted
Transferee shall be subject to the terms of this Article.
Landlord's consent or refusal to consent to any such subletting or assignment
(including but not limited to a change of use which does not violate Exhibit G, does not
violate the Recorded Documents and which is a retail use customarily found in
restaurants/bars in the Chicago Metropolitan area, (which is not more parking intensive
than the Permitted Use) shall not be unreasonably withheld or delayed and may be based
upon, but shall not be limited to, factors pertaining to:
(i) The acceptability or compatibility of an proposed subtenant or assignee to
the Premises and to the whole Building or the entire development wherein said Premises
are located;
(i i) The financial statement, credit and ability of any proposed subtenant or
assignee to meet the obligations, terms and conditions of this Lease is sufficient to meet
the operation of the business; and
(iii) The business reputation and managerial experience of the proposed
subtenant or assignee must be in accordance with generally acceptable commercial
standards.
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The acceptance of any rental payments by Landlord from any alleged assignee or
subtenant shall not constitute approval of the assignment of this Lease by Landlord, and
the consent by Landlord to one assignment or sublease of the Premises shall not
constitute a waiver of Landlord's rights hereunder in regard to any other assignment or
sublease.
Notwithstanding anything contained herein to the contrary, Landlord acknowledges
Tenant's efforts to attract and sublet to a partner with an established food & beverage
partner ("Sublessee Food and Beverage Partner") acceptable to both Landlord and
Tenant; and Tenant may or may not own a majority interest in such Sublessee Food and
Beverage Partner.
Except for any Landlord approved sublease to the Sublessee Food and Beverage
Partner and Landlord approval of the Sublease Food and Beverage Partner, Tenant shall
pay to Landlord the sum of $1,000.00 as transfer fee for any such written consent. In the
event of any such assignment, subletting, licensing or granting of a concession made with
the written consent of Landlord aforesaid, including, but not limited to any Landlord
approved sublease to the Sublessee Food and Beverage Partner, Tenant will
nevertheless remain liable for the performance of all terms, conditions and covenants of
this Lease. Any permitted assignment or sublease, including, but not limited to any
Landlord approved sublease to the Sublessee Food and Beverage Partner, shall be by
agreement in form and substance acceptable to Landlord and shall specify and require
that such subtenant or assignee acquiring this Lease by acceptance of any sublease,
assignment or transfer shall be bound by, and be obligated to perform the terms and
conditions of its successor and assignor under this Lease. In the event of default of
Tenant, Landlord, at Landlord's sole option, may, at Landlord's election, but is not
obligated to, succeed to the position of Tenant as to any subtenant or licensee of Tenant.
(a) Any costs and expenses, including reasonable attorneys' fees (which shall
include the cost of any time expended by any in-house counsel of Landlord) not to exceed
$500.00 incurred by Landlord in connection with any proposed or purported assignment,
transfer or sublease shall be borne by Tenant and shall be payable to Landlord on
demand as Additional Rent. No such charges shall be born by Tenant for the initial sublet
to the Landlord approved sublease to the Sublessee Food and Beverage Partner and
Landlord approval of the Sublease Food and Beverage Partner.
(b) In the event Tenant, pursuant to a right to do so contained in this Lease,
transfers or sublets all or a portion of the Premises to a third party, any monthly rent or
other payment accruing to Tenant as the result of any such assignment, transfer or
sublease, including any lump sum or periodic payment in any manner relating to such
assignment, transfer or sublease, which is in excess of the net rent then payable by
Tenant under the Lease, said excess amount shall be paid by Tenant to Landlord monthly
as Additional Rent. Landlord may require a certificate from Tenant specifying the full
amount of any such payment of whatsoever nature.
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(c) In the event Landlord, in connection with the sale or transfer of all of the
building containing the Premises, Property and/or Premises, or a portion thereof which
includes the Premises, or the Premises, and/or Landlord transfers or assigns its interest
in this Lease, then Landlord shall thereupon be relieved of all liabilities and obligations as
Landlord under this Lease, and upon any such transfer the term "Landlord" shall be
deemed and construed to refer to such purchaser or transferee and Tenant hereby agrees
thereafter to look only to the assignee of Landlord's interest under this Lease for the
performance of all obligations of Landlord under the liability in this Lease.
(e) Notwithstanding anything contained herein to the contrary, upon Landlord's
prior approval, not to be unreasonably withheld or delayed, Tenant shall have the right,
upon thirty (30) days prior written notice to Landlord, which notice shall contain the
proposed sublease and the certified financial statements of the proposed Sublessee Food
and Beverage Partner, to sublet a portion of the Premises (not to exceed % of
the square footage floor area of the Premises) to the Landlord approved Sublessee Food
and Beverage Partner for the use as set forth in Section 5.01 herein, and for no other
use or purpose, without Landlords consent, provided, however, the certified financial
statements of the proposed subtenant and the form of the sublease shall be subject to
Landlord's prior written approval, which shall not be unreasonably withheld or delayed
and shall contain terms which obligates any sublessee to perform and comply with the
provisions of this Lease which shall be incorporated into any sublease with respect to the
subleased premises to be performed by "Tenant" (or like words of similar import)
thereunder. Landlord shall have the right to request any further information on any
proposed subtenant and Tenant shall use best efforts to satisfy Landlord's request. Any
sublessee shall assume and agree to perform all of the obligations of the "Tenant" under
this Lease accruing or arising during the term of the sublease in the manner and within
the time required under this Lease. The term of any sublease shall be for no greater term
than contained in this Lease. Any sublessee shall further covenant that it will neither
commit, nor permit to be committed by any third party, any act or omission which would
violate any material term or condition of this Lease by it or on its behalf to be performed
or be cause for termination of this Lease by Landlord. Nothing contained in the sublease
shall confer upon any sublessee any rights greater than those which Tenant has under
this Lease. In the event of any such subletting as set forth in this Article XII(e), Tenant will
nevertheless remain fully liable for the performance of all terms, conditions and covenants
of this Lease.
ARTICLE XIII. SUBORDINATION AND FINANCING
SECTION 13.01. SUBORDINATION. This Lease and Tenant's tenancy
hereunder shall be subject and subordinate at all times to the lien of any mortgage or
deed of trust now or hereafter placed upon the interest of the Landlord in the Premises.
Tenant agrees to execute and deliver such instruments as may be desired by Landlord
or by any mortgagee evidencing such subordination of this Lease to the lien of any
present or future mortgage or deed of trust within thirty (30) days after written request
therefor by Landlord. In the event Tenant fails timely to do so, it shall be conclusively
determined that Tenant has confirmed such subordination to the lien of any such present
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or future mortgage or trust deed for which the written instrument evidencing same was
requested.
SECTION 13.02. ATTORNMENT. If and so long as this Lease is in full force and
effect, then at the option of the mortgagee: (i) this Lease shall remain in full force
notwithstanding (A) a default under the mortgage by Landlord, (B) failure of Landlord to
comply with this Lease, (C) a defense to which Tenant might be entitled against Landlord
under this Lease, or (D) any bankruptcy or similar proceedings with respect to Landlord,
(ii) if any such mortgagee shall become possessed of the Premises, Tenant shall be
obligated to such mortgagee to pay to it the rentals and other charges due hereunder and
to thereafter comply with all the terms of this Lease; and (iii) if any mortgagee or purchaser
at a private or public sale shall become possessed of the Premises, Tenant shall, without
charge, attorn to such mortgagee or purchaser as its landlord under the Lease. Within
thirty (30) days after execution hereof Landlord shall provide Tenant with a non
disturbance agreement from all of Landlords mortgagees on such mortgagees standard
form, providing that so long as Tenant is not in default its Tenancy will not be disturbed.
ARTICLE XIV
DEFAULTS
SECTION 14.01. ELEMENTS OF DEFAULT. If any one or more of the following
events occur, said event or events shall hereby be a "Default" hereunder:
(a) if Tenant, or any guarantor of Tenant's obligations hereunder, shall make
an assignment for the benefit of creditors or file a petition in any court in bankruptcy,
reorganization, composition, or make an application in any such proceedings for the
appointment of a trustee or receiver for all or any portion of its property;
(b) if any petition shall be filed against Tenant, or any guarantor of Tenant's
obligations hereunder, in any bankruptcy, reorganization, or insolvency proceedings,
and said proceedings shall not be dismissed or vacated within sixty (60) days after
such petition is filed;
(c) if a receiver or trustee shall be appointed under state law for Tenant, or any
guarantor of Tenant's obligations hereunder, for all or any portion of the property of
either of them, and such receivership or trusteeship shall not be set aside within thirty
(30) days after such appointment;
(d) if Tenant refuses to take possession of the Premises at the Delivery of
Possession Date and fails to open and keep its doors open for business after all of the
Tenant's Work and Landlord's Work have been completed and the Certificate of
Occupancy has been issued as required herein;
(e) INTENTIONALLY DELETED;
(f) INTENTIONALLY DELETED;
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(g) if Tenant is a limited liability company, if the manager or operator is changed
and such change is not consented to in writing by Landlord; such consent not to be
unreasonable withheld;
(h) INTENTIONALLY DELETED; or
(i) if any execution, levy, attachment or other legal process of law shall occur
upon Tenant's goods, fixtures, or interest in the Premises;
0) if Tenant does, or permits to be done, any act which causes a mechanics'
lien claim to be filed against the Premises, Property or the building containing the
Premises and Tenant does not comply with the provisions of Section 4.09;
(k) if Tenant fails to cure beyond the applicable cure period any hazardous
condition that Tenant has created or permitted in violation of law or in breach of this
Lease unless such hazardous condition is of an emergency nature then such condition
shall be immediately cured;
(1) if Tenant fails to pay Minimum Rent, Taxes, Leasehold Taxes, Additional
Rent or any other charges required to be paid by Tenant when same shall become
due and payable and such failure continues for ten (10) days after written notice from
Landlord; and
(m) if Tenant shall fail to perform or observe any terms and conditions of this
Lease, and such failure shall continue for thirty (30) days after written notice from
Landlord (except that such fifteen (30) day period shall be automatically extended
for such additional period of time as is reasonably necessary in Landlord's opinion to
cure such Default, if such Default cannot be cured within such period, provided Tenant
commences the process of curing the same within said fifteen (30) day period and
diligently pursues such cure).
SECTION 14.02. LANDLORD'S REMEDIES. Should a Default occur under this
Lease, Landlord may pursue any or all of the following:
(i) Landlord may terminate this Lease, by giving written notice of such
termination as provided in Section 14.01(n) or (o) above, whichever is applicable,
or a written notice of termination if the Default is based upon Section 14.01(a)
through (m), to Tenant, whereupon this Lease shall automatically cease and
terminate and Tenant shall be immediately obligated to quit the Premises. If
Landlord elects to terminate this Lease, everything contained in this Lease on the
part of Landlord to be done and performed shall cease without prejudice, subject,
however, to the right of Landlord to recover from Tenant all rent and any other
sums accrued up to the time of termination or recovery of possession by Landlord,
whichever is later.
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(ii) Landlord may terminate the right of Tenant to possession of the
Premises without terminating this Lease by giving written notice to Tenant that
Tenant's right of possession shall end on the date stated in such notice,
whereupon the right of Tenant to possession of the Premises or any part thereof
shall cease on the date stated in such notice.
(iii) Upon termination of this Lease pursuant to Section 14.02(i), or upon
termination of the right of Tenant to possession of the Premises without terminating
this Lease, Landlord may proceed to recover possession of the Premises under
and by virtue of the provisions of the laws of the jurisdiction in which the Premises
is located, or by such other proceedings, including re-entry and possession, as
may be applicable.
(iv) Should this Lease be terminated before the expiration of the Term of
this Lease by reason of Tenant's Default as hereinabove provided, or upon
termination of the right of Tenant to possession of the Premises without terminating
this Lease, Landlord shall have the option to relet the Premises for such rent and
upon such terms as are not unreasonable under the circumstances and if the full
rental reserved under this Lease (and any of the costs, expenses or damages
indicated below) shall not be realized by Landlord, Tenant shall be liable for all
damages sustained by Landlord, including, without limitation, deficiency in rent,
reasonable attorneys' fees, brokerage fees and expenses of placing the Premises
in commercially reasonable rentable condition. Landlord, in putting the Premises
in good order or preparing the same for re -rental may, at Landlord's option, make
such alterations, repairs or replacements in the Premises, and the making of such
alterations, repairs, or replacements shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in
any way whatsoever for failure to relet the Premises, or in the event that the
Premises are relet, for failure to collect the rent under such re -letting, and in no
event shall Tenant be entitled to receive the excess, if any, of such net rent
collected over the sums payable to Tenant to Landlord hereunder.
(v) Any damage or loss of rent sustained by Landlord may be recovered
by Landlord, at Landlord's option, at the time of the re -letting, or in separate
actions, from time to time, as said damage shall have been made more easily
ascertainable by successive re -lettings, or at Landlord's option in a single
proceeding deferred until the expiration of the Term of this Lease (in which event
Tenant hereby agrees that the cause of action shall not be deemed to have
accrued until the date of expiration of said Term) or in a single proceeding prior to
either the time of re -letting or the expiration of the Term of this Lease.
(vi) Intentionally deleted.
SECTION 14.03. ADDITIONAL REMEDIES AND WAIVERS. The rights and
remedies of Landlord set forth herein shall be in addition to any other right and remedy
now or hereinafter provided by law, and all such rights and remedies shall be cumulative.
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No action or inaction by Landlord shall constitute a waiver of a Default and no waiver of
Default shall be effective unless it is in writing, signed by the Landlord.
SECTION 14.04. CURE OF DEFAULT. If Tenant shall be in Default hereunder,
Landlord shall have the option, upon fifteen (15) days written notice to Tenant, to cure
said Default for the account of and at the expense of the Tenant. No such notice shall be
required for emergency repairs. Tenant agrees to pay Landlord interest, at a rate equal
to the Default Rate but not in excess of the maximum legal rate, for all sums paid by
Landlord pursuant to the terms of this Section, and for all sums due and owing to Landlord
more than five (5) days after the date such sums are due.
SECTION 14.05. EXPENSES OF ENFORCEMENT. (a) Tenant shall pay all
costs, charges and expenses, including court costs and reasonable attorneys' fees,
incurred by Landlord, (i) if Landlord prevails in enforcing Tenant's obligations under this
Lease, (ii) if Landlord prevails in the exercise by Landlord of any of its remedies upon the
occurrence of a Default, (iii) in any litigation, negotiation or transactions in which Tenant
causes Landlord, without Landlord's fault, to become involved or concerned, or in which
Landlord becomes involved or concerned as a result of or in connection with this Lease,
or (iv) in consideration of any request or approval of or consent to any action by Tenant
which is prohibited by this Lease or which may be done only with Landlord's approval or
consent, whether or not such approval or consent is given.
(b) Notwithstanding anything contained herein to the contrary, in the event of any
action or proceeding brought by either party against the other for any matter arising out of
or in any way relating to this Lease or the Premises, the non -prevailing party in such action
or proceeding shall pay all costs, expenses and reasonable attorneys' fees incurred by the
prevailing party in connection with such action or proceeding.
ARTICLE XV. RIGHT OF ACCESS
Landlord may, upon reasonable prior notice to Tenant, enter upon the Premises
for the purpose of inspecting, making repairs, replacements, or alterations, and showing
the Premises to prospective purchasers, lenders or lessees. During the last year of the
Term, Landlord shall have the right to display one or more "For Rent" signs outside of
Premises on or about the Premises.
ARTICLE XVI. DELAYS
If either party shall be prevented or delayed from punctually performing any
obligations or satisfying any condition under this Lease by any strike, lockout, labor
dispute (whether legal or illegal and whether such dispute is with Landlord or Tenant or
some other person or entity; provided, however, if such labor dispute is caused by
Tenant's failure to abide by the labor compatibility requirements set forth elsewhere
herein, such failure and the resulting labor dispute shall not qualify Tenant for an
extension of time for performance under this Section), unavailability of labor or materials,
act of God, severe weather not typical of the season (snow and ice during the winter shall
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not be deed severe weather), unusual governmental restriction, regulation or control,
enemy or hostile governmental action, pandemic, civil commotion, insurrection, sabotage,
fire or other casualty, or any condition caused by the other party (individually and
collectively referred to herein as a "Force Majeure Delay"), then the time to perform such
obligation to satisfy such condition shall be extended on a day -for -day basis for the period
of the delay caused by such event; provided, however, that the party claiming the benefit
of this Article shall, as a condition thereto, give notice to the other party in writing within
fifteen (15) days of learning of the incident specifying with particularity the nature thereof,
the reason therefore, the date and time such incident occurred and a reasonable estimate
of the period that such incident has or will delay the fulfillment of obligations contained
herein. Failure to give such notice within the specified time shall render such delay invalid
in extending the time for performing the obligations hereunder. This provision shall not
apply to the inability to pay any sum of money due hereunder or the failure to perform any
other obligation due to the lack of money or inability to raise capital or borrow for any
purpose. Notwithstanding anything contained herein to the contrary, in the event of a
forced, complete closure due to or caused by any order, ordinance, statute, law of any
applicable governmental entity which forces or requires Tenant to totally shut its business
to the general public Landlord agrees to defer the monthly Minimum Rent and Additional
Rent due hereunder and performance of any provisions of the Lease during the time of
closure, for a period of time not to exceed the earlier of the following to occur: (i)
enactment of any order, ordinance, statute, law of any applicable governmental entity
which allows Tenant to re -open all or any portion of the Premises to do business under
the Permitted Use; or (ii) sixty (60) days. Tenant shall, thereafter, pay Landlord the
amount of deferred monthly Minimum Rent and Additional Rent within the next six (6)
months in addition to monthly Minimum Rent and Additional Rent payments due and
owing hereunder.
ARTICLE XVII. END OF TERM
SECTION 17.01. RETURN OF PREMISES. Upon the expiration or termination
of this Lease, Tenant shall quit and surrender the Premises to Landlord in good order,
broom clean, normal wear and tear and acts of God excepted. Subject to the other terms
of this Lease, Tenant shall, at its expense, remove all property of Tenant, and repair
damage cause d by such removal and return the Premises to the condition in which they
were prior to the installation of the articles so removed. Tenant shall not be obligated to
remove improvements that were part of Tenants initial work or other improvements that
were approved by Landlord during the Lease term, provided, that such improvements
have not been damaged or destroyed.
SECTION 17.02. HOLDING OVER. If Tenant shall hold possession of the
Premises after the expiration or termination of this Lease, at Landlord's option (i) Tenant
shall be deemed to be occupying the Premises as a tenant from month -to -month, at one
hundred fifty percent (150%) of the Minimum Rent in effect during the last lease year
immediately preceding such hold over and otherwise subject to all of the terms and
conditions of this Lease, or (ii) Landlord may exercise any other remedies it has under
this Lease or at law or in equity including an action for wrongfully holding over. No
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payment by Tenant, or receipt by Landlord, of a lesser amount than the correct rent shall
be deemed to be other than a payment on account, nor shall any endorsement or
statement on any check or letter accompanying any check for payment of rent or any
other amounts owed to Landlord be deemed to effect or evidence an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of the rent or other amount owed or to pursue any
other remedy provided in this Lease.
ARTICLE XVIII. COVENANT OF QUIET ENJOYMENT
Landlord covenants that if and so long as Tenant pays the rent and all other
charges provided for herein, and performs all of its obligations provided for herein, Tenant
shall at all times during the term hereof peaceably have, hold and enjoy the Premises,
without any interruption or disturbance from Landlord, or anyone claiming through or
under Landlord, subject to the terms hereof.
ARTICLE XIX. RIGHTS RESERVED TO LANDLORD
Landlord shall have the following rights exercisable without notice and without
liability to Tenant for damage or injury to property, person or business (all claims for
damage being hereby released) and without effecting an eviction or disturbance of
Tenant's use or possession or giving rise to any claim for setoffs or abatement of rent:
(a) To enter the Premises in an emergency, using such remedies as is
reasonably necessary;
(b) Provided that reasonable access to the Premises shall be
maintained during restaurant hours and the business of Tenant conducted on the
Premises shall not be interfered with unreasonably, and provided such additions,
alterations, or changes do not obstruct Tenant's use of the Premises or visibility,
to make inspections, repairs, decorations, alterations, additions or improvements
in or to the Premises or the Exterior Areas, including installations, repairs,
replacements, additions or alterations within the Premises or to wiring, conduit,
pipes, ducts and other mechanical, electrical or other facilities and systems serving
other premises or parcels, and to make repairs, additions or alterations in the
Building which may change Exterior Areas or the method of ingress to or egress
from the Premises, and to perform any acts related to the safety, protection,
preservation, reletting, sale or improvement of the Premises and for any of the
foregoing purposes may enter the Premises with such material as Landlord may
deem necessary, erect scaffolding and all other necessary structures in or adjacent
to the Premises and close or temporarily suspend operations of entrances, doors,
corridors, elevators, escalators or other facilities; and Tenant waives any claim for
damages including the loss of business resulting therefrom and agrees to pay
Landlord for overtime and other expenses incurred if such work is done other than
during ordinary business hours at Tenant's request;
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(c) To do or permit to be done any work on or about the exterior of the
Premises or any adjacent or nearby building, land, street or alley; scaffolding will
not be permitted to be erected without Tenant's consent such consent not to be
unreasonably withheld or delayed.
ARTICLE XX. RESTAURANT OPERATION
Tenant agrees to operate the Premises in a first-class and reputable manner. Without
limiting the generality of the foregoing, Tenant shall operate in accordance with the
following:
(a) Tenant shall use and occupy the Premises solely pursuant to the Permitted
Use. Tenant shall meet the standards of quality, service, cleanliness and decor of
a restaurant.
(b) With respect to the service of alcoholic beverages, Tenant agrees that:
(1) Tenant shall not sell or otherwise serve alcoholic beverages at the
Premises without first obtaining a valid liquor license and complying
with all terms and conditions of this Lease;
(2) No person who appears, in Tenant's reasonable judgment, to be
intoxicated or who is or appears to be under age shall be served or
continue to be served any alcoholic beverages;
(3) Tenant will comply with all applicable codes and ordinances from
time to time in effect in regard to the serving of alcoholic beverages,
including but not limited to: restrictions as to the serving of alcoholic
beverage to minors, the age of persons serving alcoholic beverages
and the hours and days during which such beverages may be
served; and
(4) Tenant will hold Landlord, Landlord's members, and their respective
employees, directors, officers and agents, and Landlord's lenders
harmless from and indemnify and defend them against any and all
liability, loss, cost, damage and/or expense (including reasonable
attorney's fees and expenses) of any kind or nature whatsoever,
including, but not limited to, that resulting from any injury to or death
of any persons or damage to or loss of property, by reason of or in
any way relating to Tenant's serving of alcoholic beverages in the
Premises including, but not limited to, liability under any dram shop
law, host liquor law or similar laws, statutes or ordinances, whether
now in effect or hereafter adopted by the State of Illinois, County of
Lake or any other governmental authority having jurisdiction or
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under common law.
(c) Tenant shall not make or permit any obnoxious noise or odor, in Landlord's
reasonable judgment, to emanate from the Premises.
(d) Without limiting Tenant's obligations elsewhere under this Lease, Tenant
shall provide the following services and maintenance:
(e) Tenant shall cause extermination services, including treatment for insects,
spiders, rats, mice, moles and other rodents, to be provided to the Premises by a
reputable exterminator on a monthly basis, or more often as Landlord, in Landlord's
reasonable discretion, may require, at Tenant's expense.
(f) The kitchen waste and exhaust systems, including all risers, piping and fans
used in connection with such waste and exhaust systems, whether located in or outside
of the Premises, including, the grease trap pipes and pans, and all other pipes or ducts
used by Tenant, shall be maintained by Tenant in good repair, and so as to meet the
highest standards of cleanliness and health, in a manner consistent with the operation of
a first-class restaurant and in accordance with all applicable laws, codes and regulations
of any governmental authority having jurisdiction, at Tenant's expense.
(g) Without limitation of any of the foregoing, Tenant shall do whatever is
necessary in order to maintain properly the grease trap pipes and pans. Tenant shall
cause the grease trap pipes and all plumbing pipes to be rooted and cleaned regularly
and as often as necessary to prevent clogging or discharge. In the event of any such
overflow or discharge, Tenant shall be responsible for all costs of cleanup of the overflow
or discharge, including all costs of repair, restoration or replacement of property damaged
by such overflow or discharge.
(h) Tenant shall clean the grease pans on a regular basis. Tenant shall cause
the exhaust fan, if any, to be maintained in a good state of condition and repair so as to
provide the air flow velocities required by applicable codes and regulations. Landlord shall
cause all fire sprinkler, fire detection and fire suppression systems and mechanisms to
be maintained in accordance with all applicable laws, codes and regulations and the
requirements of all applicable policies of insurance and insurance inspectors.
(i) Tenant shall store all trash and other waste in odor and vermin proof
containers, such containers to be kept in temperature controlled areas not visible to
members of the public. Tenant shall, at Tenant's expense, attend to the frequent disposal
of such materials. Trash removal must be done by Tenant using containers approved by
Landlord and at such times and in such manner as Landlord may reasonably direct and
subject to such rules and regulations in respect thereto as Landlord may, from time to
time, reasonably adopt.
Q) In the event Tenant sells alcoholic beverage in the Premises, in addition to
other insurance required under this Lease, Tenant shall obtain, pay for and maintain (i)
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9.B.c
dram shop insurance with total limits of liability for bodily injury, loss of means of support,
and property damage because of each occurrence of not less than $3,000,000.00, or
such greater amounts as Landlord may require, indemnifying Landlord, its members,
partners, agents and assigns, Tenant and such other persons as Landlord may designate,
against any and all liability relating to the use, sale or giving away of alcoholic liquors; and
(ii) product liability insurance with limits of liability of not less than $1,000,000.00 per
occurrence. Tenant shall, prior to the commencement of operations in the restaurant
portion of the Premises, furnish to Landlord certificates evidencing such coverage, which
certificates shall state that such insurance coverage may not be changed or canceled
without at least 30 days' prior written notice to Landlord and Tenant. In the event Tenant
shall fail to procure such insurance, Landlord may at its option procure the same for the
account of Tenant and the cost thereof shall be paid to Landlord as additional rent upon
receipt by Tenant of bills therefor.
Q) Tenant shall be responsible for obtaining, at Tenant's sole cost and
expense, all permits and licenses necessary for the operation of its business at the
Premises, including, without limitation, a special use permit to operate a restaurant from
the Village, if required.
(k) Tenant shall be responsible for installation and maintenance of fire
extinguishers and other fire or smoke equipment that may be required or recommended
by local building ordinances and fire codes, by Landlord's insurance company, and by
any other federal, state or local authority of competent jurisdiction.
ARTICLE XXI. MISCELLANEOUS
(a) This Lease contains the entire agreement between the parties hereto and
there are no promises, agreements, conditions, undertakings, warranties or
representations, oral or written, between them or other than as herein set forth.
(b) No notice or other communications given under this Lease shall be effective
unless the same is in writing, and is delivered in person, mailed by registered or certified
mail, return receipt requested, first class, postage prepaid or delivered by national
overnight courier service addressed:
(1) If to Landlord, to the Village of Buffalo Grove, 50 Raupp Boulevard , Buffalo
Grove, Illinois 60089, Attention: Mr. Dane Bragg, Village Manager, Office- (847) 459-
2500; Fax- (847) 777-6046; Email-dbragg(a)vbg.org; with a copy to: Schain, Banks,
Kenny, & Schwartz, Ltd., Three First National Plaza, 70 West Madison, Suite 2300,
Chicago, Illinois 60602, Attention: Patrick Brankin.
(2) If to Tenant, to WJN GOLF LLC, an Illinois limited liability company,
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9.B.c
The date of service of any notice given by mail shall be the date on which such notice is
deposited in the U.S. mails and the date of service of any notice given by national
overnight courier service shall be the date such notice is delivered by such courier service.
(c) It is the intent of the parties hereto that all questions with respect to the
construction of the Lease and the rights and the liabilities of the parties hereto shall be
determined in accordance with the laws of the State of Illinois; further, it being expressly
agreed that the parties hereto agree that the proper venue for any litigation shall be Lake
County, Illinois.
(d) This Lease shall bind and inure to the benefit of the parties hereto and
their respective legal representatives, heirs, successors and assigns.
(e) There shall be no personal liability on Landlord, Landlord's beneficiaries
or any successor in interest with respect to any provisions of this Lease. Tenant shall look
solely to the equity of the then owner of the Premises for the satisfaction of any remedies
of the Tenant in the event of a breach by Landlord of any of its obligations hereunder.
(f) Landlord and Tenant warrant and represent to each other that there was
no broker or agent instrumental in consummating this Lease. Tenant has not dealt with
any broker in connection with, and that no broker of Tenant was the procuring cause of the
transaction contemplated by this Lease. Each party agrees to indemnify and hold the other
harmless against any claims for brokerage or other commissions arising by reason of a
breach of this representation and warranty.
(g) Landlord may sell, convey, transfer or mortgage all or any portion of the
Property, including, but not limited to the Premises, all without notice to and without the
consent of Tenant. Landlord hereunder shall have the right to freely assign this Lease
upon notice to but without the consent of Tenant.
(h) The terms of this Lease shall not be interpreted to mean that Landlord and
Tenant are partners or joint venturers.
(i) Landlord and Tenant hereby waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other on or in respect of
any matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant hereunder, Tenant's use or occupancy of the
Premises and/or any claim of injury or damage.
0) If any provision of this Lease or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of this
Lease, or the application of such provision to persons or circumstances other than those
as to which it is invalid or unenforceable, shall not be affected thereby, and each provision
of this Lease shall be valid and be enforced to the fullest extent permitted by law.
(k) No failure by Landlord to insist upon the strict performance of any term,
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9.B.c
covenant, agreement, provision, condition or limitation of this Lease to be kept, observed
or performed by Tenant, and no failure by Landlord to exercise any right or remedy
consequent upon a breach of any such term, covenant, agreement, provision, condition
or limitation of this Lease, shall constitute a waiver of any such breach or of any such
term, covenant, agreement, provision, condition or limitation.
(1) This Lease shall not be recorded against the Property, Premises or any
portion thereof.
(m) No employee or agent of Landlord or Landlord's broker, if any, has authority
to make a lease or any other warranty, representation, agreement or undertaking. The
submission of this document for examination and negotiation does not constitute an offer
to lease or a reservation of or option for the Premises, and this document will become
effective and binding only upon execution and delivery by Landlord and Tenant.
(n) All Riders and all Exhibits referred to in and attached hereto are hereby
incorporated in this Lease.
(o) Tenant hereby represents and warrants to the Landlord that it has the
authority to enter into this Lease and the officers, general partner, manager or operator,
as the case may be, of the Tenant executing this Lease are authorized to execute this
Lease on behalf of the Tenant.
(p) Tenant hereby represents and warrants to the Landlord that the financial
statements of the Tenant delivered to the Landlord are true and correct in all respects.
(q) It is expressly understood and agreed by Tenant that none of Landlord's
covenants, undertakings, agreements, indemnities and warranties contained in this
Lease shall be construed as creating any liability whatsoever against Landlord, its
officers, directors or their respective successors and assigns personally, and in particular
without limiting the generality of the foregoing, there shall be no personal liability to pay
any indebtedness accruing hereunder or to perform any covenant, undertaking,
agreement, indemnity, or warranty, either express or implied, contained in this Lease, or
to keep, preserve or sequester any property of Landlord, and that all personal liability of
Landlord, its officers, directors of every sort, if any, is hereby expressly waived by Tenant,
and by every person now or hereafter claiming any right or security under this Lease; and
that so far as Landlord, its officers, directors or any successor or assign of the foregoing
are concerned, the owner of any indebtedness or liability accruing under this Lease shall
look solely to Landlord's interest in the Premises, as the same is from time to time
encumbered, for the payment thereof.
(s) Anti -Terrorism Representations. Tenant is not, and shall not during the
Term become, a person or entity with whom Landlord is restricted from doing business
under the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56
(commonly known as the "USA Patriot Act") and Executive Order Number 13224 on
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9.B.c
Terrorism Financing, effective September 24, 2001 and regulations promulgated
pursuant thereto (collectively, "Anti -Terrorism Laws"), including without limitation persons
and entities named on the Office of Foreign Asset Control Specially Designated Nationals
and Blocked Persons List (collectively, Prohibited Persons"). To the best of its
knowledge, Tenant is not currently engaged in any transactions or dealings, or otherwise
associated with, any Prohibited Persons in connection with the use or occupancy of the
Premises. Tenant will not in the future during the Term engage in any transactions or
dealings, or be otherwise associated with, any Prohibited Persons in connection with the
use or occupancy of the Premises. Breach of these representations constitutes a material
breach of this Lease and shall entitle Landlord to any and all remedies available
thereunder, or at law or in equity.
(t) Tenant hereby leases the land and any and all parking for the use of Tenant,
its invitees, employees and customers of Tenant, in the manner and location as shown
on Exhibit "B" attached hereto and incorporated herein.
(u) On the Effective Date, the Guaranty ("Guaranty"), a copy of which is
attached hereto as Exhibit "J", and the Pledge, a copy of which is attached hereto as
Exhibit "K", shall both be executed and delivered as set forth therein.
(v) Notwithstanding anything contained herein to the contrary, nothing
contained in this Lease shall be deemed or construed as a waiver of any tort immunity
rights in favor of or retained by Landlord, in its municipal capacity, under applicable
governmental laws, rules, regulations, and ordinances.
(w) The Village of Buffalo Grove, Illinois enters into this Lease solely in its
capacity as a landowner. No provision or term in this Lease shall be interpreted to be an
admission, approval, acquiescence, right or permit by or from the Village of Buffalo Grove,
Illinois regarding any matter relating to the Village's municipal power and authority except
for its authority to fulfill its obligations hereunder. The parties must comply in all respects
to the Village's regulatory and permitting ordinances and requirements. Any petition for
a special use, variation, liquor license, gaming license, signage or any other permit or
approval process will be subject to the regulatory, zoning and permitting ordinances,
requirements, hearings, meetings and the Village of Buffalo Grove, Illinois municipal
commission and board approval process.
[Signature Page Follows]
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9.B.c
IN WITNESS WHEREOF, and intending that this Lease be a sealed instrument,
Landlord and Tenant have executed this Lease under seal on the dates indicated below:
LANDLORD:
VILLAGE OF BUFFALO GROVE, ILLINOIS, an
Illinois municipal corporation
By: _
Name:
Title:
Date of Execution:
TENANT:
WJN GOLF LLC, an Illinois limited liability
company
Title:
Date of Execution:
Packet Pg. 66
9.B.c
EXHIBIT "A"
LEGAL DESCRIPTION OF PREMISES
THAT PART OF THE EAST HALF OF THE NORTHEAST QUARTER OF SECTION 20,
TOWNSHIP 43 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE WOODLANDS AT FIORE UNIT 13
SUBDIVISION, ACCORDING TO THE PLAT RECORDED FEBRUARY 24, 1989 AS
DOCUMENT 2768325, SAID POINT BEING 310.33 FEET SOUTH OF THE NORTHWEST
CORNER OF SAID EAST HALF AND 54.00 FEET EAST OF THE WEST LINE OF SAID
EAST HALF (AS MEASURED ALONG OR AT RIGHT ANGLES TO SAID WEST LINE),
SAID POINT ALSO BEING ON THE EAST RIGHT-OF-WAY LINE OF BUFFALO GROVE
ROAD AS DEDICATED PER DOCUMENT 2560832; THENCE NORTH 82°25'10" EAST A
DISTANCE OF 334.90 FEET; THENCE SOUTH 14°24'45" EAST A DISTANCE OF 80.52
FEET; THENCE SOUTH 47°35'03" EAST A DISTANCE OF 111.13 FEET; THENCE SOUTH
27029'38" WEST A DISTANCE OF 80.06 FEET; THENCE SOUTH 5728'52" EAST A
DISTANCE OF 111.52 FEET; THENCE S77°09'32" EAST A DISTANCE OF 506.07 FEET;
THENCE N14059'55" EAST A DISTANCE OF 141.98 FEET; THENCE NORTH 44°50'06"
EAST A DISTANCE OF 148.21 FEET; THENCE NORTHWEST ALONG A CURVE
CONCAVE NORTHERLY, HAVING A RADIUS OF 1100.00 FEET AND AN ARC
DISTANCE OF 161.09 FEET (CHORD BEARING NORTH 65°28'27" WEST); THENCE
NORTH 61016'43" WEST A DISTANCE OF 420.24 FEET; THENCE NORTHWEST ALONG
A CURVE CONCAVE SOUTHERLY, HAVING A RADIUS OF 766.00 FEET AND AN ARC
DISTANCE OF 387.29 FEET (CHORD BEARING NORTH 75°45'47" WEST); THENCE
SOUTH 89045'10" WEST A DISTANCE OF 239.55 FEET; THENCE SOUTH 00°01'52" EAST
A DISTANCE OF 252.00 FEET, TO THE POINT OF BEGINNING IN LAKE COUNTY,
ILLINOIS.
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9.B.c
EXHIBIT "B"
SITE PLAN
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9.B.c
EXHIBIT "C"
OPENING AND TERMINATION DATE DECLARATION
LANDLORD:
TENANT:
PROJECT:
LEASE DATE:
PREMISES NUMBER:
SQUARE FOOTAGE:
Landlord and Tenant acknowledge and agree that the Commencement Date of the
above referenced Lease is , the Rent
Commencement Date is and the Termination Date of the Lease is
LANDLORD:
By:
TENANT:
By:
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9.B.c
EXHIBIT "D"
DELIVERY OF POSSESSION DATE CERTIFICATE
LANDLORD:
PROJECT:
LEASE DATE: .202
SQUARE FOOTAGE OF BUILDING: Square feet
DELIVERY OF POSSESSION DATE:
PROJECTED OPENING DATE:
Landlord and Tenant acknowledge and agrees that the Premises described in the
above referenced lease has been delivered to Tenant for the performance of Tenant's
Work (as said term is defined in the Lease) on the Delivery of Possession Date noted
above.
LANDLORD:
By:
TENANT:
By:
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9.B.c
EXHIBIT "E"
TENANT'S WORK
Tenant shall design and construct the leasehold improvements pursuant to plans and
specifications prepared by Tenant and approved by Landlord pursuant to the terms of this
Lease.
Bar portion of Tenant's Work
(to come)
LANDLORD'S WORK
To come
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9.B.c
EXHIBIT "F"
SIGN CRITERIA
All of Tenant's signage shall comply with all existing ordinances of the Village of Buffalo
Grove, Illinois.
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9.B.c
EXHIBIT "G"
PROHIBITED USES/EXCLUSIVES
Adult Books
Adult Video
Animal raising, except for the raising and sale of domestic and imported pets
Bingo Parlor
Bowling Alley
Carnival
Dance Hall
Drug Rehabilitation
Dry Cleaning Plant
Dumping
Factory
Flea Market
Funeral Parlor
Government office
Halfway House
Head Shop
Junk Yard
Manufacturing
Pawn Shop
Poolroom/Billiards unless incidental to permitted restaurant or bar use
Rendering Plant
Sale of cars, trucks, boats, mobile homes or other vehicles
Sale of fire arms or ammunition
Salvage Shop
Service Stations
Sex Shop
Shooting Gallery
Skating Rink
Surplus Store
Topless or Nude Show
Warehouse
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9.B.c
EXHIBIT "H"
INSURANCE COVERAGES
(a) Liability Insurance. Tenant shall, at all times, at its sole cost and expense,
maintain, or cause to be maintained, Commercial General Liability
Insurance, which includes premises/operations, contractual liability,
personal/advertising injury, broad -form property damage, independent
contractors, underground explosion and collapse, and products/completed
operations coverages, against claims for personal injury or death and
property damage occasioned by an incident occurring upon, in or about the
Premises. Such insurance in each case shall be reasonable in Landlord's
discretion and have a minimum amount of:
$1,000,000 each occurrence
$2,000,000 annual aggregate
$2,000,000 products and completed operations annual
aggregate
$1,000,000 personal injury and advertising
and with umbrella coverage in the amount of at least $ each
occurrence and $ annual aggregate, in addition to any
further requirements as set forth in Section 9.01 hereunder, which limits may be
obtained through a combination of primary and umbrella or Excess Policies. The
insurance shall be issued by an insurer having an A.M. Best rating of not less than
"A-:VII".
(b) Insurance Requirement for Contractors and Subcontractors. Prior to
commencing construction, repair or replacement of any improvements on
the Premises, Tenant shall procure and maintain, or cause its contractor(s)
and subcontractor(s) to procure and maintain or cause to be maintained, in
full force and effect, at all times during the course of their work in, on or
about the Premises, the following insurance coverages:
(i) Workers' Compensation insurance as required by the Illinois Workers'
Compensation Act and Employers Liability insurance subject to the
following minimum limits: $500,000 each accident; $500,000 disease -
each employee; $500,000 disease -policy limit. A waiver of subrogation
will be provided, in favor of the additional insureds.
(ii) Commercial General Liability insurance, written on an ISO Form
published no earlier than 1998, including coverages for
premises/operations (to be maintained no less than two (2) years
following completion of the work), underground explosion, collapse
hazard, completed operations, contractual liability and "broad form"
property damage, in the amounts of:
H-1 Packet Pg. 74
9.B.c
$1,000,000 each occurrence
$2,000,000 annual aggregate
$2,000,000 products and completed operations annual
aggregate
$1,000,000 personal injury and advertising
for incidents of bodily injury, death and/or property damage, which shall
name Landlord and Landlord's lender as an additional insured on a primary
and non-contributory basis using Form CG2010 11 85 or its equivalent. A
waiver of subrogation will be provided, in favor of the additional insureds.
(iii) Commercial Automobile Liability insurance, including coverages for
owned, non -owned and hired vehicles, in the amount of One Million and
00/100 Dollars ($1,000,000.00) per occurrence.
(iv) Umbrella coverage in the amount of at least $5,000,000.00 each
occurrence and $5,000,000.00 annual aggregate.
(v) The insurance shall be issued by an insurer having an A.M. Best rating
of not less than "A-:VII".
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9.B.c
EXHIBIT "I"
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9.B.c
EXHIBIT "J"
GUARANTY
In consideration of, and as an inducement for the granting, execution and delivery
of the within Lease dated as of , 2021 (the "Lease"), by the
VILLAGE OF BUFFALO GROVE, ILLINOIS, an Illinois municipal corporation, the
Landlord therein named ("Landlord"), to WJN GOLF LLC, an Illinois limited liability
company, d/b/a "WJ Golf', the tenant therein named ("Tenant"), and in further
consideration of the sum of One Dollar ($1.00) and other good and valuable consideration
paid by Landlord to the undersigned, (hereinafter referred to as
"Guarantor"), Guarantor hereby guarantees to Landlord, its successors and assigns, the
full and prompt payment of Rent and additional rent (including, but not limited to, the
Minimum Rent, Exterior Expenses, Taxes, utility charges, and other costs or charges
payable by Tenant under the Lease) and any and all other sums and charges payable by
Tenant and its successors and assigns, under the Lease, and the full, faithful and prompt
performance and observance of all the covenants, terms, conditions and agreements
therein provided to be performed and observed by Tenant and Tenant's successors and
assigns. Guarantor does hereby become surety to Landlord, its successors and assigns
for and with respect to all of the aforesaid obligations of Tenant under the Lease.
Guarantor hereby covenants and agrees to and with Landlord, its successors and
assigns, that if default shall at any time be made by Tenant, Tenant's representatives,
successors and assigns, in the payment of any such rent or other sums or charges
payable by Tenant under the Lease or in the performance of any of the covenants, terms,
conditions or agreements contained in the Lease, Guarantor will forthwith pay such
Minimum Rent and other sums or charges to Landlord, its successors and assigns, and
any arrears thereof, and will forthwith faithfully perform and fulfill all of such covenants,
terms, conditions and agreements, and will forthwith pay to Landlord all damages and all
costs and expenses that may arise in consequence of any default by Tenant, Tenant's
representatives, successors and assigns, under the Lease (including, without limitation,
all attorneys' fees incurred by Landlord or caused by any such default and/or by the
enforcement of this Guaranty).
This Guaranty is an absolute and unconditional guaranty of payment and of
performance and is a surety agreement. Guarantor's liability hereunder is direct and may
be enforced without Landlord being required to resort to any other right, remedy, or
security and this Guaranty shall be enforceable against Guarantor, Guarantor's heirs,
executors, administrators, representatives, successors and assigns, without the
necessity for any suit or proceedings on Landlord's part of any kind or nature whatsoever
against Tenant, Tenant's heirs, executors, administrators, representatives, successors
and assigns, and without the necessity of any notice of non-payment, non-performance
or non -observance or the continuance of any such default or of any notice of acceptance
of this Guaranty or of Landlord's intention to act in reliance hereon or of any other notice
or demand to which Guarantor might otherwise be entitled, all of which Guarantor hereby
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9.B.c
expressly waives; and Guarantor hereby expressly agrees that the validity of this
Guaranty and the obligations of Guarantor hereunder shall in no way be terminated,
affected or impaired by reason of the assertion or the failure to assert by Landlord against
Tenant, or Tenant's heirs, executors, administrators, representatives, successors or
assigns, of any of the rights or remedies reserved to the Landlord pursuant to the
provisions of the Lease.
This Guaranty shall be a continuing guaranty, and (whether or not Guarantor shall
have notice or knowledge of any of the following) the liability and obligation of Guarantor
hereunder shall be absolute and unconditional and shall remain in full force and effect
without regard to, and shall not be released, discharged or in any way impaired by (a) any
amendment or modification of, or supplement to, or extension or renewal of, the Lease or
any assignment or transfer thereof; (b) any exercise or non -exercise of any right, power,
remedy or privilege under or in respect of the Lease or this Guaranty or any waiver,
consent or approval by Landlord with respect to any of the covenants, terms, conditions
or agreements contained in the Lease or any indulgences, forbearances or extensions of
time for performance or observance allowed to Tenant from time to time and for any length
of time; (c) any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or similar proceeding relating to Tenant, Tenant's,
representatives, successors and assigns or its properties or creditors; (d) any limitation
on the liability or obligation of Tenant under the Lease or its estate in bankruptcy or of any
remedy for the enforcement thereof; resulting from the operation of any present or future
provision of the National Bankruptcy Act, Bankruptcy Code or other statute or from the
decision of any court; (e) any transfer by Tenant or any assignment of its interest under
the Lease; or (f) the death or incapacity of Tenant or any Guarantor.
All of the Landlord's rights and remedies under the Lease and under this Guaranty
are intended to be distinct, separate and cumulative and no such right and remedy therein
or herein mentioned is intended to be in exclusion of or a waiver of any of the others. No
termination of the Lease or taking or recovering of the premises leased thereby shall
deprive Landlord of any of its rights and remedies against Guarantor under this Guaranty.
This Guaranty shall apply to Tenant's obligations pursuant to any extension, renewal,
amendment, modification and supplement of or to the Lease, including but not limited to
a lease termination agreement, as well as to Tenant's obligations thereunder during the
original term thereof in accordance with the original provisions thereof.
Guarantor represents and warrants to Landlord that (a) the execution and delivery
of this Guaranty has been duly authorized by the Board of Directors or Managers, if
applicable, of Guarantor and (b) the making of this Guaranty does not require any vote or
consent of the shareholders of Guarantor.
As a further inducement to the Landlord to make and enter into the Lease and in
consideration thereof; Guarantor covenants and agrees that in any action or proceeding
brought on, under or by virtue of this Guaranty, Guarantor shall and does hereby waive
trial by jury.
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9.B.c
This Guaranty shall be legally binding upon Guarantor and Guarantor's heirs,
executors, administrators, representatives, successors and assigns. If this Guaranty is
signed by more than one person, all obligations hereunder shall be joint and several.
The liability of Guarantor hereunder is irrevocable, continuing, absolute,
independent and unconditional and shall in no way be affected by any circumstance which
may constitute a defense or legal or equitable discharge, in whole or in part, including,
without limitation, (a) the release or discharge of Tenant or the impairment or modification
of its liability in any creditors', receivership, or bankruptcy proceeding or from any other
cause whatsoever; (b) any alteration of or amendment to the Lease regardless of whether
such alteration or amendment has been consented to by the Guarantor; (c) any sale,
assignment, sublease, pledge or mortgage of the rights of Tenant under the Lease; (d)
any application or release of any security or other guaranty given for the performance and
observance of the covenants and conditions in the Lease on Tenant's part to be
performed and observed; or (e) any defense to enforcement of this Guaranty that
Guarantor is entitled to assert and Guarantor hereby waives the right to assert any such
defense including, but not limited to, those based on (i) failure of Tenant to qualify to do
business in the jurisdiction where the property subject to the Lease is located, (ii) lack of
corporate authority by Tenant to enter into the Lease or to carry out the provisions of its
Lease, (iii) lack of Tenant's due authorization, execution and delivery of the Lease, (iv)
unenforceability of the Lease against Tenant in accordance with its terms, (v) any charter
or bylaw provision or agreement, statute, rule or regulation binding on Tenant which
conflicts with Tenant's Lease or the performance of any obligation of Tenant under Lease
or (vi) any stay or other impediment to the exercise of Landlord's rights hereunder
resulting from any bankruptcy or other insolvency proceeding and in this respect
Guarantor recognizes Landlord's right to receive interest on any obligations guaranteed
hereby after the commencement of any such bankruptcy or insolvency proceeding.
Notwithstanding anything contained herein to the contrary, the liability of Guarantor
under this Guaranty shall be limited to One Hundred and Fifty Thousand and No/100
Dollars ($150,000.00), plus costs, fees, attorney's fees and court costs of enforcement of
this Guaranty. Provided Tenant is not in Default at the expiration of the third (3rd) year of
the Lease Term, Guarantor liability hereunder shall be reduced to One Hundred
Thousand and No/100 Dollars ($100,000.00), plus costs, fees, attorney's fees and court
costs of enforcement of this Guaranty. Provided Tenant is not in Default at the expiration
of the fifth (5th) year of the Lease Term, Guarantor liability hereunder shall be reduced to
Fifty Thousand and No/100 Dollars ($50,000.00), plus costs, fees, attorney's fees and
court costs of enforcement of this Guaranty, for the remainder of the Lease Term, plus
any and all Option periods exercised by Tenant.
(SIGNATURE AND NOTARY APPEAR ON THE FOLLOWING PAGES)
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IN WITNESS WHEREOF, Guarantor, intending to be legally bound hereby, has
executed this Guaranty as of this day of , 2021.
NAME:
ADDRESS:
Social Security Number:
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EXHIBIT "K"
COLLATERAL PLEDGE AGREEMENT
THIS AGREEMENT ("Agreement"), is made and entered into this day of
, 2021 ("Effective Date") by and between VILLAGE OF BUFFALO
GROVE, an Illinois home rule municipality ("Landlord" or "Secured Party"), and WJN
GOLF LLC, an Illinois limited liability company, d/b/a "WJ Golf' ("Pledgor" or "Tenant")
(Landlord and Tenant shall each sometimes hereinafter be individually referred to as "Party"
or, collectively, "Parties")..
WITNESSETH:
WHEREAS, the Landlord and Pledgor, as Tenant, entered into that certain Lease
Agreement dated , 2021 ("Lease") wherein Landlord leased to Tenant and
Tenant accepted from Landlord certain land, building and facilities located within the
Village of Buffalo Grove Arboretum Golf Course, including but not limited to the Club
House, located at 401 Half Day Road, Buffalo Grove, Illinois 60089, so that Tenant may
conduct on such land, building and facilities a restaurant and banquet facilities, indoor
golf with golf simulators, entertainment and gaming facility that are all open to the general
public, along with cart service for golfers on the golf course and related specialty items
for sale, pursuant to the terms of the Lease;
WHEREAS, pursuant to the Lease, Tenant purchased from Landlord the current
restaurant equipment, and dining room furniture of the Arboretum Club (collectively
"FF&E");
WHEREAS, In order to collaterally secure the unconditional and irrevocable
payment and performance of the obligations, whether now existing or hereafter arising,
by Tenant under the Lease, the Tenant has agreed to and shall unconditionally and
irrevocably assign, convey, mortgage, pledge, hypothecate, transfer and set over to
Landlord, and hereby grants to Landlord a properly perfected, valid and enforceable,
assignment of and continuing security interest in Tenant's FF&E; and
WHEREAS, the Parties have agreed to enter into a formal Collateral Pledge
Agreement with respect to such pledge;
NOW, THEREFORE, in consideration of the premises, and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, it is hereby
agreed as follows:
Recitals; Definitions; Conflicts. The recitals set forth hereinabove are
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hereby incorporated into and made a part of this Agreement. All capitalized terms used
and not otherwise defined herein shall have the meanings ascribed to them in the Lease.
Wherever the terms and conditions of this Agreement conflict with the terms and
conditions of the Lease, the terms and conditions of this Agreement shall control and
govern.
2. Agreement and Pledge. This Agreement is made and given as a collateral
pledge to collaterally secure the unconditional and irrevocable payment and performance
of the obligations, whether now existing or hereafter arising, by Tenant under the Lease.
The Pledgor hereby unconditionally and irrevocably assigns, conveys, mortgages,
pledges, hypothecates, transfers and sets over to Landlord, and hereby grants to
Landlord a priority, properly perfected, valid and enforceable, agreement of and
continuing security interest in the Collateral, as hereinafter defined. This Agreement is
intended to be a security agreement under the Code with respect to all or any portion of
the Collateral to the full extent that, under applicable law, the Collateral may be subject
to a security interest under the Code, whether acquired as of the date of this Agreement
or in the future.
3. Financing Statements. Pledgor hereby authorizes Landlord to file
concurrently with the execution of this Agreement such UCC Financing Statements in
such locations as are necessary, and to take all such other actions and make such further
filings as Landlord may request, in order to perfect Landlord's priority, exclusive and
continuing security interest in the Collateral pursuant hereto. The Financing Statement
shall be in form acceptable for filing in each jurisdiction in which the same are to be filed,
shall comply in all respects with the Uniform Commercial Code and shall contain a
description of "Collateral", which is Tenant's FF&E, that is substantially similar to the
description set forth on attached Exhibit "A". Pledgor hereby agrees to pay all filing fees
and other costs incurred in connection with the filing of such Financing Statements.
4. Collateral and Title to Collateral. The Pledgor represents and warrants that
the Pledgor is the owner of all of the collateral pledged herein, which is Tenant's FF&E, (the
"Collateral") free from any liens, security interest, encumbrance or other right, title or interest
of any other person, firm or corporation. The Collateral is as set forth on Exhibit "A", attached
hereto and incorporated herein. The Pledgor shall defend the Collateral against all claims
and demands of all persons at any time, claiming the same or any interest therein adverse
to the Landlord.
5. No Assumption by Landlord. Notwithstanding any of the foregoing,
irrespective of whether there has occurred an Event of Default under the Lease and
whether or not Landlord shall have foreclosed or otherwise realized on the Collateral,
neither this Agreement nor any exercise by Landlord of any of its rights and remedies
hereunder shall in any way obligate Landlord to assume, or constitute or be deemed to
constitute an assumption of, any of Pledgor's obligations, duties, expenses or liabilities
with respect to the Collateral. Pledgor acknowledges and agrees that it shall at all times
remain liable for performance of all obligations, duties, expenses or liabilities with respect
to the Collateral and the Lease, regardless of whether there has occurred an Event of
Default under the Lease and whether or not Landlord shall have foreclosed or otherwise
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realized on the Collateral, and that Landlord shall in no event be liable therefor or deemed
to have assumed the same.
6.. REPRESENTATIONS AND WARRANTIES
Pledgor hereby makes the following representations and warranties for the benefit
of Landlord, all of which shall be deemed to be continuing and continually remade until
the full, unconditional and irrevocable payment and performance of all indebtedness and
obligations due under the Lease:
6.1 Organizational Status. Pledgor is a an Illinois limited liability company,
duly organized, validly existing and in good standing under the laws of the State of
Illinois and in good standing and qualified to conduct its business in the State of
Illinois and each other jurisdiction in which it does business.
6.2 Power and Authority. Pledgor has full power and authority to enter into
and perform this Agreement, each and all of the documents and certificates
executed or to be executed and delivered by the Pledgor in connection herewith,
each of the other pledge documents and each and all of the transactions
contemplated hereby and thereby in accordance with the terms hereof and thereof.
Further, Pledgor has by all necessary action, validly authorized the execution,
delivery and performance of this Agreement, each and all of the documents and
certificates executed or to be executed and delivered by the Pledgor in connection
herewith, each of the other pledge documents and the transactions contemplated
hereby and thereby in accordance with the terms hereof and thereof. Each
individual executing this Agreement, each of the documents and certificates
executed or to be executed and delivered by Pledgor in connection herewith and
each of the other pledge Documents on behalf of Pledgor, is the competent, duly
appointed and authorized signatory on behalf of the Pledgor represented, with full
legal capacity, power and authority, acting alone, to act on behalf of and bind the
Pledgor represented in all respects.
6.3 Agreement Binding. This Agreement, each of the documents and
certificates executed and delivered, or to be executed and delivered, by Pledgor
are, or will be when executed and delivered, the legal, valid and binding obligations
of Pledgor, enforceable against them in accordance with the terms hereof and
thereof.
6.4 Actions Against Pledgor. Pledgor has no knowledge of any material
action, material proceeding or bankruptcy proceeding pending or threatened against
Pledgor and/or the Collateral.
6.5 Approvals. Neither the execution and delivery of this Agreement, the
documents and certificates to be executed and delivered in connection herewith,
the other pledge Documents nor the consummation or performance of the
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transactions contemplated hereby or thereby require the consent or approval of
any governmental authority or any other person.
6.6 No Duress. This Agreement is made voluntarily without any duress or
undue influence of any kind.
6.7 No Violation of Laws, etc. Neither this Agreement, any of the other
documents or certificates to be executed in connection herewith or any of the other pledge
documents or transactions contemplated thereby violate or are in contravention of any
legal requirements applicable to the Collateral, or, to the knowledge of Pledgor, any other
mortgage, pledge, indenture, lease, security agreement or other agreement to which
Pledgor is a party.
6.8 Solvency; No Fraudulent Conveyance. Pledgor represents and warrants
that this Agreement is not being made by it with any intent to hinder, delay or defraud any
creditors to which it is or may hereafter become indebted; that it does not intend to incur
or believe that it will incur, debts that would be beyond its ability to pay as such debts
matured. Pledgor acknowledges that it is receiving new, fair, reasonably equivalent value
in exchange for this Agreement and the transactions contemplated hereby, and
affirmatively represents that neither its entry into this Agreement nor the consummation
of the transactions contemplated hereby constitutes a fraudulent conveyance or
preferential transfer under the Bankruptcy Code or any other federal, state or local laws
affecting the rights of creditors generally.
6.7 Ownership of Collateral. Pledgor is the legal, record and beneficial owner
of, and have good and marketable title to, the Collateral. Except for the Agreement to
Landlord pursuant hereto, there has been no prior Transfer (as defined in Section 7.1,
hereunder) of any of the Collateral.
6.9 Books and Records. Pledgor hereby represent that Pledgor maintains
books and records for purposes of registering the ownership of Collateral, and that written
notations have been made concurrently with the execution of this Agreement sufficient to
notify all Persons of this Agreement and each of the other pledge documents.
6.10 Security Interest/Place of Business. Upon the execution and delivery
hereof and the filing of the Financing Statements with the Secretary of State of the State
of Illinois, this Agreement will create in favor of Landlord valid and enforceable, properly
perfected, first lien on all of the Collateral. Further, the first lien and security interest
granted to Landlord pursuant hereto shall at all times be and remain a properly perfected,
valid and enforceable lien on the Collateral. The addresses for Pledgor's principal place
of business and chief executive offices or primary residences is indicated herein.
7. COVENANTS
Until such time as the indebtedness and obligations under the Lease are fully,
unconditionally and irrevocably paid and performed in full, Pledgor hereby covenants and
agrees as follows:
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7.1 No Transfer. There shall be no conveyance, sale, agreement, transfer,
pledge, mortgage, security interest or other encumbrance, charge or alienation (or any
agreement to do any of the foregoing) of, in or to any of the Collateral, whether directly,
indirectly, voluntarily or involuntarily, by operation of law or otherwise ("Transfer"), without
the prior written consent of Landlord, which may be granted, conditioned or withheld in
Landlord's sole discretion. Pledgor hereby acknowledges and agrees that no Transfer of
any of the Collateral, whether or not consented to by Landlord (no consent to any such
sale, agreement, pledge, hypothecation, conveyance or other transfer being implied
hereby) shall be effective unless and until such transferee or successor executes,
delivers, files and records, as applicable, an assumption agreement, in the form and
content satisfactory to Landlord in its sole discretion, agreeing to assign the Collateral to
be transferred in accordance with the provisions of this Agreement and assume, be bound
by and to comply with and join in the terms and conditions of this Agreement, the
Financing Statements, and the Lease, and further takes such other actions and delivers
such other documents, instruments and certificates as Landlord may request for purposes
of preserving, maintaining, continuing and perfecting the valid and enforceable lien and
security interest created hereby in such Collateral. Pledgor hereby covenants and agrees
that any attempted Transfer of any ownership interest in the Collateral not in accordance
with the foregoing shall be ineffective and deemed null and void, ab initio.
7.2 Company Books and Records. Pledgor shall take, or cause to be taken,
all such actions as are necessary to cause Pledgor to mark its respective books
and records with a notation that Pledgor has assigned and pledged the Collateral
to Landlord pursuant hereto and to keep as a part of such books and records a
fully signed copy of this Agreement and each of the other pledge documents.
7.3 Compliance with Securities Laws. Pledgor shall take all such actions as
are necessary, and shall cause Pledge to comply in all respects with all applicable
Securities Laws.
7.4 Protection of Collateral. Pledgor will protect and defend Landlord's right,
title, claim of possession, lien and security interest in and to the Collateral against
the claims and demands of all persons whomsoever. Further, Pledgor shall pay
and discharge as and when due all liens, claims, charges, taxes, other
governmental charges and contractual obligations that may affect its Collateral or
any portion thereof
7.5 Notice of Default. Pledgor shall notify Landlord of the existence of any
Event of Default under the Lease, or any event or condition which with the giving
of notice, the passages of time or both could reasonably constitute an Event of
Default under the Lease, promptly upon obtaining knowledge of the existence
thereof.
7.6 Change of Address. No later than thirty (30) days prior to any change in
address or principal place of business, as applicable, by Pledgor from the address
or principal place of business set forth herein, that Pledgor shall notify Landlord in
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writing of such change in address or principal place of business, as applicable, and
include in such notice the full and complete new address and principal place of
business for that Pledgor.
7.7 Further Cooperation. Pledgor hereby agrees: (a) to deliver to Landlord,
immediately upon receipt thereof, any and all instruments, certificates or other
documents, whether now or hereafter existing, evidencing any of the Collateral;
and (b) to execute and deliver a notice of Landlord's priority, perfected, exclusive
and continuing security interest in the Collateral (which notice shall be in form and
substance satisfactory to Landlord and may require an acknowledgement from the
addressee), to any third party which now has or may have the ability under
applicable law or the terms of any agreement to record transfers of, or to transfer,
any of the Collateral (whether at the discretion of the Pledgor or otherwise).
7.8 Waiver of Rights by Pledgor. Pledgor, on behalf of itself and any persons
claiming by, through or under it, hereby knowingly, intentionally and voluntarily
waives:
(a) presentment, demand, protest or any notice of any kind in connection with this
Agreement;
(b) all rights, if any, of redemption, appraisement, valuation, marshalling, stay,
execution or moratorium now or hereafter in force under applicable law in order to prevent
or delay the enforcement of this Agreement or any of the other pledge documents or the
absolute sale of the Collateral or any portion thereof.
(c) All statutes of limitations as a defense to any action or proceeding brought
against Pledgor by Secured Party, to the fullest extent permitted by law;
(d) Any right they may have to require Secured Party to proceed against any
other party, proceed against or exhaust any security held from or any other party, or
pursue any other remedy in Secured Party's power to pursue;
(e) Any defense based on: (i) any legal disability of Pledgor, and (ii) any
rejection, disallowance or disaffirmance of the Tenant's obligations under the Lease, or
any part of it, or any security held for it, in any insolvency proceeding;
(f) Any defense based on any action taken or omitted by Secured Party in any
insolvency proceeding involving Pledgor, including, without limitation, filing, defending,
settling or obtaining a judgment or order on any proof of claim or any adversary
proceeding, making any election to have Secured Party's claim allowed as being secured,
partially secured or unsecured, including any election under 11 U.S.C. Section 1111(b),
seeking relief from the automatic stay or adequate protection, including submitting an
appraisal of any security, voting to reject or accept or failing to vote on any reorganization
plan, making any extension of credit by Secured Party to Pledgor in any insolvency
proceeding, and the taking and holding by Secured Party of any security for any such
extension of credit, whether or not such security is also security for the Indebtedness;
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(g) All claims, demands, liabilities and damages occasioned by any
lawful taking of possession or disposition of the Collateral; and
(h) All other requirements as to the times, place and terms of sale and
other requirements with respect to Secured Party's enforcement of its rights hereunder.
7.9 RECOURSE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN
OR IN ANY OF THE OTHER LOAN DOCUMENTS TO THE CONTRARY, THE
LIABILITY OF PLEDGOR IN ITS CAPACITY AS PLEDGOR UNDER THIS
AGREEMENT SHALL BE LIMITED TO PLEDGOR'S RIGHTS IN THE
COLLATERAL, WHICH HAS BEEN COLLATERALLY ASSIGNED TO
LANDLORD PURSUANT TO THIS AGREEMENT; PROVIDED, HOWEVER,
THAT THE FOREGOING LIMITATION SHALL NOT LESSEN OR OTHERWISE
AFFECT THE LIABILITY OF PLEDGOR UNDER THE LEASE.
7.10 Rights Continuing. The rights and powers of Landlord hereunder shall
continue and remain in full force and effect until all indebtedness and other
obligations under the Lease have been irrevocably and unconditionally paid and
performed in full and shall continue after sale of the Collateral until expiration of
any right of redemption, notwithstanding sale of the Collateral to a purchaser other
than Landlord. Further, Pledgor hereby acknowledges and agrees that Landlord
shall not be required to exercise its rights against any person other than the
Pledgor who is liable for all or any portion of the indebtedness and other obligations
under the Lease or against any collateral for the indebtedness and other
obligations under the Lease other than the Collateral prior to exercising its rights
and remedies against Pledgor and the Collateral pursuant hereto. Without affecting
the liability of the Pledgor for payment and performance of the indebtedness and
other obligations under the Lease and without affecting Landlord's lien and security
interests in the Collateral created hereby, Landlord may release, at any time and
from time to time, any person liable for, or any security or other collateral for the
indebtedness and other obligations under the Lease.
7.11 Expenses of Default. Pledgor agree to pay on demand the amount of all
costs and expenses incurred by Landlord in protecting and realizing on its interest
in the Collateral and further agree that if this Agreement is referred to an attorney
for protecting or defending the priority of Landlord's interest in or lien on the
Collateral or for collecting or realizing thereon, Pledgor shall pay upon demand all
of Landlord's expenses, including reasonable attorneys' fees and costs (whether
incurred in connection with non -judicial action, prior to trial, at trial, or on appeal or
review, including in any Insolvency Proceeding), other professional fees and costs,
and expenses of title search and all court costs and costs of public officials. Pledgor
hereby further agree that their obligation to pay such amounts shall be secured
hereby and constitute a part of the Secured Obligations.
7.12 No Waiver. The exercise by Landlord of any one right or remedy
hereunder, under the Lease and any of the other pledge documents, or any other
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guaranty, at law or in equity shall not be a waiver of Landlord's right to exercise at
the same time or thereafter any other right or remedy, and no delay in exercising
or failing to exercise any rights or remedies of Landlord hereunder, under the
Lease and any of the other pledge documents, or any other guaranty, at law or in
equity, following any Event of Default, or any event which, with the giving of notice
or the passage of time or both would constitute an Event of Default, in any one or
more instances, or acceptance by Landlord of partial payments or partial
performance, shall constitute, or be deemed to constitute, a waiver of any such
Event of Default, a waiver of the right to exercise any such rights or remedies at
any time thereafter or upon the occurrence of any subsequent Event of Default, or
a release, satisfaction or discharge of the terms hereof, of any of the other pledge
documents or the Loan Documents, all such rights, remedies, terms and
documents remaining continuously in force. Any waiver or release by Landlord of
any Event of Default, or any event which, with the giving of notice or the passage
of time or both would constitute an Event of Default, or any waiver of rights or
remedies hereunder, under the Lease and any of the other pledge documents, or
any other guaranty, at law or in equity (no obligation or agreement to waive or
release or discharge any of the foregoing being implied hereby), may be effected
only through a written document executed by Landlord and then only to the extent
of any waiver, release, discharge or satisfaction specifically set forth therein. A
waiver or release in connection with any one event or any particular right or remedy
shall not be construed as a waiver or release of any subsequent event or as a bar
to any subsequent exercise of Landlord's rights or remedies hereunder,
subsequent event or as a bar to any subsequent exercise of Landlord's rights or
remedies hereunder, under the Lease and any of the other pledge documents, or
any other guaranty, at law or in equity.
7.13 Remedies Cumulative. All rights and remedies set forth in this Agreement
are cumulative, and the Landlord may recover judgment thereon, issue execution
therefor, and resort to every other right or remedy available at law or in equity, without
first exhausting and without affecting or impairing the security of any right or remedy
afforded hereby. No consent or waiver, express or implied, by any interested party
referred to herein, to or of any breach or default by any other interest party referred
to herein, in the performance by such other party or any obligations contained herein
shall be deemed a consent to, or waiver of, the performance by such party of any
other obligations hereunder or the performance by any other interested party referred
to herein of the same, or of any other, obligations hereunder.
7.14 Revival and Reinstatement. If Landlord is required to pay, return or
restore to Pledgor any other person any amounts previously paid on the
indebtedness or obligations under the Lease and any of the other pledge
documents, or any other guaranty, because of any bankruptcy proceeding of
Pledgor, any stop notice or any other reason, the obligations of Pledgor shall be
reinstated and revived and the rights of Landlord shall continue with regard to such
amounts, all as though they had never been paid, and this Agreement shall
continue to be effective or be reinstated, as the case may be.
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8. Landlord's Right to Assign. Landlord shall have the right to sell, assign,
participate, pledge, transfer or otherwise dispose of its interest in this Agreement. From
and after the date of any such sale, assignment, participation, pledge, transfer or other
disposition, such transferee shall be entitled to exercise any and all rights and remedies
of Landlord hereunder as fully and with the same force and effect as if such transferee
had been named the Secured Party hereunder. Pledgor shall not assign, convey or
otherwise transfer any of its rights and obligations hereunder except upon the Secured
Party's prior consent and approval, which consent and approval may be withheld in
Secured Party's sole and exclusive judgment and discretion.
9. Default. At any time that a "Default" or "Event of Default" exists under
the Lease (as defined therein), regardless of whether or not the maturity of the principal
thereof is accelerated, or at any time that a "Default" or "Event of Default" exists under the
Lease, Landlord may exercise any one or more of the rights or remedies set forth in the
Note, with respect to the Collateral Pledge Agreement, Landlord shall have full power and
authority to exercise all or any one or more of the remedies and shall have all the rights of a
Landlord under the Uniform Commercial Code of the State of Illinois (the "Code"). Any
requirement of the Code for reasonable notice shall be met if such notice is mailed by United
States certified or equivalent mail, return receipt requested, postage prepaid, to Pledgor (or
at such other address as the party to receive such notice may have designated by written
notice to Landlord received not less than three (3) business days prior to such mailing) at
least twenty (20) days prior to the time of the sale, disposition or other event or thing giving
rise to the requirement of notice (which period and method of giving notice is hereby agreed
to be commercially reasonable). The right of Landlord to be the purchaser for its own
account at any sale or other disposition of the Collateral shall not be adversely affected by
any matter whatsoever.
Any and all amounts received by Landlord by reason of the foregoing paragraph, after
first deducting all reasonable legal or other costs and expenses incurred in effecting such
realization, shall be applied to pay all or such portion of the indebtedness hereby secured
as Landlord shall deem proper, any overplus to be returned to Pledgor. Upon full payment
and performance of all indebtedness, obligations and liabilities hereby secured, or as
mutually agreed by the Parties, Landlord agrees to release this Agreement and the lien or
charge created hereby or resulting herefrom.
10. Binding on Successors and Assigns. This Agreement and all provisions
hereof shall be binding upon Pledgor, Landlord and their successors, assigns, and legal
representatives and all other persons or entities claiming under or through Pledgor and
Landlord, respectively.
11. Governing Law. This Agreement shall be governed by the laws of the
State of Illinois. The headings of paragraphs in this Agreement are for convenience only
and shall not be construed in any way to limit or define the content, scope, or intent of the
provisions hereof. As used in this Agreement, the singular shall include the plural and the
plural shall include the singular, and masculine, feminine, and neuter pronouns shall be fully
interchangeable, where the context so requires. If any provision of this Agreement, or any
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paragraph, sentence, clause, phrase, or word, or the application thereof, in any
circumstances, is adjudicated to be invalid, the validity of the remainder of this Agreement
shall be construed as if such invalid part were never included herein. Time is of the essence
of this Agreement.
12. No Third -Party Beneficiary. The provisions of this Agreement are solely
for the benefit of Secured Party and its successors and assigns. No provision of this
Agreement shall be construed as creating in any party other than Pledgor and Secured
Party, and their successors and assigns, any rights of any nature whatsoever.
13. WAIVER OF TRIAL BY JURY. PLEDGOR, FOR ITSELF AND ALL
PERSONS OR ENTITIES CLAIMING BY, THROUGH OR UNDER IT, HEREBY
EXPRESSLY, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO TRIAL BY JURY IN ANY LITIGATION OR ACTION
BROUGHT ON, UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY TO THIS
AGREEMENT, OR ANY CLAIMS, DEFENSES, RIGHTS OF SET-OFF OR OTHER
ACTIONS PERTAINING HERETO OR THERETO. THIS WAIVER MAY BE FILED WITH
THE CLERK OR JUDGE OF ANY COURT AS A WRITTEN CONSENT TO WAIVER OF
JURY TRIAL. PLEDGOR ACKNOWLEDGES THAT IT HAS CONSULTED WITH LEGAL
COUNSEL REGARDING THE MEANING OF THIS WAIVER AND ACKNOWLEDGES
THAT THIS WAIVER IS AN ESSENTIAL INDUCEMENT FOR SECURED PARTY'S
ENTERING INTO THIS AGREEMENT AND THIS WAIVER SHALL SURVIVE THE
REPAYMENT OF THE INDEBTEDNESS.
14. Time is of the Essence. TIME IS OF THE ESSENCE under this
Agreement and each and every provision hereof and thereof.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which together shall
constitute but one original. This Agreement shall not be effective unless and until
executed and delivered by Pledgor and Secured Party in one or more counterparts.
Facsimile and electronic mail signatures hereon shall be treated the same as and
provided the same legal significance as original signatures hereon.
(SIGNATURES APPEAR ON THE FOLLOWING PAGE)
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
and year first above written.
PLEDGOR:
WJN GOLF LLC, an Illinois limited liability
company
By:
Name:
Its:
Address for Pledgor's principal place of
business and chief executive offices for
notices:
LANDLORD:
VILLAGE OF BUFFALO GROVE, an Illinois
home rule municipality
By:
Name:
Its:
Address for Landlord's municipal executive
offices for notices:
50 Raupp Boulevard
Buffalo Grove, Illinois 60089
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STATE OF
) SS.
COUNTY OF )
, a notary public in and for said
County, in the State aforesaid, DO HEREBY CERTIFY that ,
personally known to me to be the of
a(n) , and the same person whose name is
subscribed to the foregoing Collateral Pledge Agreement, appeared before me this day
in person and acknowledged that he/she signed, sealed and delivered the said
instrument, on behalf of the corporation and as his/her free and voluntary act, for the uses
and purposes therein set forth.
GIVEN under my hand and notarial seal, this day of
2021.
STATE OF )
) SS.
COUNTY OF )
Notary Public
, a notary public in and for said
County, in the State aforesaid, DO HEREBY CERTIFY that ,
personally known to me to be the of
a(n) , and the same person whose name is
subscribed to the foregoing Collateral Pledge Agreement, appeared before me this day
in person and acknowledged that he/she signed, sealed and delivered the said
instrument, on behalf of the corporation and as his/her free and voluntary act, for the uses
and purposes therein set forth.
2021.
GIVEN under my hand and notarial seal, this day of
Notary Public
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Packet Pg. 92
9.B.c
EXHIBIT "A"
COLLATERAL
TENANT'S FF&E
1. All of the restaurant equipment, and dining room furniture of the Arboretum Club
located at located at 401 Half Day Road, Buffalo Grove, Illinois 60089 as enumerated
hereinbelow:
2. Any and all replacements and substitutions of the Tenant's FF&E as set forth in
Section 1, hereinabove.
M-17
Packet Pg. 93
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