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09-92
Resolution No. 09-92 RESOLUTION AUTHORIZING EXECUTION OF A DEVELOPMENT AGREEMENT WITH OTTER CREEK, L.L.C. FOR DEVELOPMENT OF A BURLINGTON COAT FACTORY STORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Ed Schock,Mayor,and Diane Robertson, City Clerk,be and are hereby authorized and directed to execute a Development Agreement on behalf of the City of Elgin with Otter Creek, L.L.C. for development of a Burlington Coat Factory Store at the Otter Creek Shopping Center,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: April 8, 2009 Adopted: April 8, 2009 Omnibus Vote: Yeas: 6 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk `\.0OFEtcs ,� City of Elgin Memorandum ' nF r 'lee ffl . To: Jennifer Quinton, Deputy Clerk From: Mary Giffort, Legal Secretary/Paralegal Subject: Resolution No. 09-92 Adopted at the April 8, 2009 Council Meeting regarding Otter Creek LLC Development of a Burlington Coat Factory Store Attached find for the city clerk's files one originally executed copy of the agreement between the city and Otter Creek,L.L.C. The recorded easement agreements are attached as exhibits to the incentive agreement. (z/ mg Attachment • • 3/3/09 ECONOMIC INCENTIVE AGREEMENT This Economic Incentive Agreement (the "Agreement") is made and entered into as of the A Zo" day of I1°IQIh_ , 2009, by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as the "City"), Otter Creek L.L.C., an Illinois limited liability company(hereinafter referred to as the "Developer). WHEREAS, the Developer is the owner and the Developer of the property commonly known as the Otter Creek Shopping Center on South Randall Road in Elgin, Illinois (the "Shopping Center"), such Shopping Center being depicted on Exhibit A attached hereto and being legally described in Exhibit A-1 attached hereto; and WHEREAS, the Developer acquired the Shopping Center in 2007 and since such purchase has completed various landscape and facade improvements to the Shopping Center; and WHEREAS, the Developer has negotiated a lease agreement with Burlington Coat Factory of Illinois, L.L.C. ("Burlington Coat Factory") to lease to Burlington Coat Factory a portion of the Shopping Center, a copy of the lease agreement between the Developer and Burlington Coat Factory dated September 20, 2008 is attached hereto as Exhibit B (such lease agreement is hereinafter referred to as the "Burlington Coat Factory Lease" and the portion of the Shopping Center being leased to the Burlington Coat Factory pursuant to the Burlington Coat Factory Lease is hereinafter referred to as the "Burlington Coat Factory Leased Premises"); and WHEREAS, the Developer would be unable to proceed with the Burlington Coat Factory Lease without certain economic development assistance from the City as hereinafter described; and WHEREAS, 65 ILCS 5/8-11-20 authorizes municipalities including the City to enter into economic incentive Agreements relating to the development or redevelopment of lands within the corporate limits of a municipality and under such Agreements the municipality may agree to share or rebate a portion of any Retailer's Occupation Taxes received by the municipality that were generated by the development or redevelopment over a finite period of time; and WHEREAS, the City is a home rule unit authorized to exercise any power and perform any function relating to its government and affairs; WHEREAS, economic incentive Agreements including the economic incentive Agreement as provided for in this Agreement pertain to the government and affairs of the City; and WHEREAS, the Burlington Coat Factory Leased Premises has remained vacant for at least one (1) years; and WHEREAS, the Burlington Coat Factory Lease project is expected to create job opportunities within the City; and WHEREAS, the Burlington Coat Factory Lease project will serve to further the development of adjacent areas; and WHEREAS, without this Agreement the Burlington Coat Factory Lease project would not be possible; and WHEREAS, the Developer meets high standards of credit worthiness and financial strength as demonstrated by equity financing for not less than ten percent (10%) of the total project costs; and WHEREAS, the Burlington Coat Factory Lease project will strengthen the commercial sector of the City; and WHEREAS, the Burlington Coat Factory Lease project will enhance the tax base of the City; and WHEREAS, this Agreement is made in the best interests of the City. NOW, THEREFORE, for and in consideration of the mutual promises and undertakings contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are incorporated into this Agreement in their entirety. 2. Definitions. A. "Commencement Date" means the first day on which the Burlington Coat Factory Store opens for business at the Burlington Coat Factory Leased Premises in the Shopping Center. B. "Sales Tax Revenues" means for the five years following the Commencement Date, all revenues that the City receives from retail sales taxes from the State of Illinois pursuant to the Illinois Service Occupation Tax (35 ILCS 115/1 et seq.), the Illinois Retailer's Occupation Tax (35 ILCS 120/1 et seq.), and the Home Rule Municipal Retailer's Occupation Tax (65 ILCS 5/8-11-1) that relate to the sale of any goods by the Burlington Coat Factory from the Burlington Coat Factory Leased Premises at the Shopping Center. 3. Rebate of a Portion of Sales Tax Revenues. A. The City hereby agrees to rebate and pay to the Developer a portion of the Sales Tax Revenues received by the City in accordance with this Agreement, in order to reimburse the Developer for a portion of the costs incurred by Developer in conjunction with the Burlington Coat Factory Lease, all as set forth and detailed below. B. The City shall pay to the Developer a rebate of a portion of Sales Tax Revenues received by the City over the five-year period following the 2 Commencement Date in the total amount not to exceed $495,500. Such rebate of Sales Tax Revenues from the City to the Developer not to exceed the total amount of$495,500 shall be paid in five (5) annual installments according to the following formula: (i) In the event the Burlington Coat Factory store at the Burlington Coat Factory Leased Premises at the Shopping Center achieves annual sales for the year in question of$8 million or more, the City will rebate and pay to the Developer $99,100 for such year from the Sales Tax Revenues received by the City in such prior year. (ii) In the event the Burlington Coat Factory store at the Burlington Coat Factory Leased Premises at the Shopping Center achieves annual sales for the year in question of less than $8 million, the City will rebate and pay to the Developer seventy percent (70%) of the annual Sales Tax Revenues received by the City in such prior year, but in no event shall such amount exceed $99,100 per year. C. Notwithstanding any other provision of this Agreement to the contrary, it is agreed and understood that the amount of the rebates of Sales Tax Revenues provided herein have been agreed to based upon the current share of sales taxes received by the City in the amount of 1.75%, being 1% from the State of Illinois and .75% of the City's home rule tax. It is further agreed and understood that in the event the City's share of sales taxes is reduced from the current amount of 1.75% during the five years following the Commencement Date that the subsequent rebate of Sales Tax Revenues from the City to the Developer shall be reduced proportionately. For the purposes of clarification and example, in the event the City's share of sales taxes currently in the amount of 1.75% is reduced by 10%, then the amount of the subsequent rebate of a portion of Sales Tax Revenues from the City to the Developer will also be reduced by 10%. In the event of any conflict between the provisions of this paragraph and any other provisions of this Agreement, the provisions of this paragraph shall supersede and control. D. The city shall pay to the Developer the annual installments of the rebates of Sales Tax Revenues provided for herein within one hundred and eighty (180) days of each of the first five (5) annual anniversaries of the Commencement Date and the City having determined the amount of sales and Sales Tax Revenues generated by the Burlington Coat Factory at the Burlington Coat Factory Leased Premises in the preceding year. In the event the State of Illinois fails to distribute documentation to the City providing for the sales and Sales Tax Revenues generated by the Burlington Coat Factory at the Burlington Coat Factory Leased Premises in sufficient time for the City to make the annual payments, then the City shall provide notice of such fact to the Developer. In such event, the City shall make the required Sales Tax Revenue rebate payment to the 3 Developer within sixty (60) days after the date on which the City actually receives the supporting documentation for the applicable payment. E. At the time of each filing of an Illinois Department of Revenue form ST-1 or any successor reporting form with the Illinois Department of Revenue by the Burlington Coat Factory for the Burlington Coat Factory Leased Premises, the Developer shall cause a copy of such form to be filed with the Treasurer of the City or such other official as the City may designate. Within twenty (20) days after the Treasurer or other official receives an ST-1 Form, the Treasurer or other official shall calculate and certify to the City the amount of sales tax revenues due to the Developer in accordance with this Agreement. The City and its Treasurer and other officials shall keep strictly confidential all information in the ST-1 Form, except to the extent that disclosure is necessary to third parties for the proper administration of this Agreement, or is required by law or under this Agreement. F. Developer and the City agree to cooperate and take all additional actions as may reasonably be necessary in order to obtain the necessary information and to insure the accurate collection of deposits of Sales Tax Revenues. The City agrees to take all actions necessary to provide for the systematic receipt of sales tax information for the Burlington Coat Factory Leased Premises from the Illinois Department of Revenue. To assist the City, Developer will supply or cause to be supplied to the City appropriate authorizations for the Illinois Department of Revenue to provide such information, including copies of filings with the Illinois Department of Revenue made by Burlington Coat Factory. Developer shall cause Burlington Coat Factory, upon written request of the City, to provide a Power of Attorney in a form reasonably satisfactory to the Illinois Department of Revenue, authorizing the City to request and receive gross revenue and other information necessary to allow the City to compute the amount of Sales Tax Revenues. G. Notwithstanding any other provision of this Agreement to the contrary, it is agreed and understood that the City's obligation under this Agreement to rebate a portion of Sales Tax Revenues shall not be a general debt of the City on or a charge against its general credit or taxing powers, and shall constitute a special limited obligation payable solely and only out of the Sales Tax Revenues received by the City from the Burlington Coat Factory Store at the Burlington Coat Factory Leased Premises. The Developer shall have no right, and agrees that it shall not, compel any exercise of the taxing power of the City to pay the Sales Tax Revenues rebates, and no execution of any claim, demand, cause of action, or judgment shall be levied upon or collected from the general credit, general funds, or any other property of the City. The payments of a rebate of a portion of Sales Tax Revenues by the City to the Developer as provided for in this Agreement shall not constitute an indebtedness of the City or a loan or a liability of the City within the meaning of any constitutional or 4 statutory provision. No interest shall be due, owing or paid by the City with respect to the rebate of any Sales Tax Revenues. 4. Contingency. Notwithstanding any other provision of this Agreement to the contrary, it shall be a condition precedent to the obligations of the City under this Agreement that the Developer performs all of its obligations under the Burlington Coat Factory Lease Agreement, that the Burlington Coat Factory commences operations at the Burlington Coat Factory Leased Premises in the Shopping Center on or before April 1, 2009, and that the Burlington Coat Factory continues with its operations at the Burlington Coat Factory Leased Premises in the Shopping Center for a period of not less than five (5) years after so commencing operations in the Shopping Center. In the event that any of the foregoing contingencies are not satisfied, then the City, upon written notice to the Developer may elect to terminate this Agreement, and thereupon this Agreement, with the exception of Section 5 hereof, shall be null and void and of no further force and effect without any further obligations of the City hereto. 5. Easement Agreements. The City and the Developer further agree that concurrently with the execution and entry into this Agreement, to also enter into and execute the three Easement Agreements attached hereto as Exhibits C, D and E. The provisions of this section shall survive any termination, completion and/or expiration of this Agreement. 6. Miscellaneous. A. That this Agreement shall not be deemed or construed to create an employment, joint venture, partnership, or other agency relationship between the parties hereto. B. That all notices or other communications hereunder shall be made in writing and shall be deemed given if personally delivered or mailed by registered or certified mail, return receipt requested, to the parties at the following addresses, or at such other addressed for a party as shall be specified by like notice, and shall be deemed received on the date on which said hand delivered or the second business day following the date on which so mailed: TO THE CITY: TO THE DEVELOPER: City of Elgin Otter Creek, L.L.C. 150 Dexter Court 125 Fairfield Way, Suite 260 Elgin, IL 60120-5555 Bloomingdale, IL 60108 Attention: Raymond H. Moller With a copy of any such notice to: City of Elgin 150 Dexter Court Elgin, IL 60120-5555 Attention: William A. Cogley Corporation Counsel 5 C. That the failure by a party to enforce any provision of this Agreement against the other party shall not be deemed a waiver of the right to do so thereafter. D. That this Agreement may be modified or amended only in writing signed by both parties hereto, or their permitted successors or assigns, as the case maybe. E. That this Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter as set forth herein, all prior agreements and understandings having been merged herein and extinguished hereby. F. That this Agreement is and shall be deemed and construed to be a joint and collective work product of the City and the Developer and, as such, this Agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. G. That this Agreement is subject to and shall be governed by the laws of the State of Illinois. H. That this Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This Agreement and the obligations herein may not be assigned without the express written consent of each of the parties hereto, which consent may be withheld at the sole discretion of either the parties hereto. The City and Developer agree that, in the event of a default by the other party, the other party shall, prior to taking any such actions as may be available to it, provide written notice to the defaulting party stating that they are giving the defaulting party thirty (30) days within which to cure such default. If the default shall not be cured within the thirty (30) days period aforesaid, then the party giving such notice shall be permitted to avail itself of remedies to which it may be entitled under this Agreement. J. If either party fails or refuses to carry out any of the material covenants or obligations hereunder, the other party shall be entitled to pursue any and all available remedies as specified herein or otherwise available at law, equity or otherwise. Notwithstanding the foregoing or anything else to the contrary in this Agreement, with the sole exception of an action to recover the monies the City has agreed to pay pursuant to the preceding Section 3 hereof, no action shall be commenced by the Developer against the City for monetary damages. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. In the event any action is brought 6 by the City against the Developer or its permitted assigns with respect to this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Developer reasonable interest and reasonable attorney's fees. K. Time is of the essence of this Agreement. L. This Agreement shall be construed, and the rights and obligations of the City and the Developer hereunder shall be determined in accordance with the laws of the State of Illinois without reference to its conflict of laws rules. M. No past, present or future elected or appointed official, officer, employee, attorney, agent or independent contractor of the City shall be charged personally or held contractually liable under any term or provision of this Agreement including, but not limited to, because of their negotiation, approval, execution or attempted execution of this Agreement. N. Notwithstanding any other provisions of this Agreement, it is expressly agreed and understood by the Developer and the City that in connection with the performance of this Agreement, including, but not limited to, providing for improvements to the Burlington Coat Factory Leased Premises, and that Developer shall comply with all applicable federal, state, city and other requirements of law. Developer shall also at its expense secure all permits and licenses, pay all charges and fees and give notices necessary and incident to the due and lawful prosecution of the work necessary to provide for the improvements to the Burlington Coat Factory Leased Premises. Without limiting the foregoing, and notwithstanding anything to the contrary in this Agreement, Developer and its contractors and subcontractors shall comply with the Prevailing Wage Act in all respects relating to the improvements to the Burlington Coat Factory Leased Premises. 0. To the fullest extent permitted by law, Developer agrees to and shall indemnify, defend and hold harmless, the City, its officials, officers, employees, attorneys, agents, boards and commissions from and against any and all claims, suits, judgments, costs, attorney's fees, damages or other relief, including but not limited to workers' compensation claims, in any way resulting from or arising out of or alleged to be resulting from or arising out of negligent actions or omissions of the Developer in connection herewith, including negligence or omissions of employees, agents or subcontractors of the Developer arising out of the performance of this Agreement, or in any way resulting from or arising out of or alleged to be resulting from or arising out of any violation and/or breach of the terms or provisions of this Agreement by the Developer, including any violation and/or breach by employees, agents or subcontractors of the Developer. In the event of any action against the City, its officials, officers, employees, agents, attorneys, boards or commissions covered by 7 the foregoing duty to indemnify, defend and hold harmless such action shall be defended by legal counsel of the City's choosing the costs of which shall be paid by the Developer. The provisions of this paragraph shall survive any termination, completion and/or expiration of this Agreement. P. To the fullest extent permitted by law, Developer agrees to and shall indemnify, defend and hold harmless the City, its officials, officers, employees, attorneys, agents, boards and commissions, from and against any and all third party claims, suits, judgments, costs, attorneys' fees, expert witness fees and expenses, damages or other relief, in any resulting from or arising out of or alleged to be resulting from or arising out of the existence of this Agreement, the provisions of this Agreement, the performance of this Agreement, and/or any other actions to the parties hereto provided for or arising from this Agreement. In the event of any action against the City, its officials, officers, employees, agents, attorneys, boards or commissions, covered by the foregoing duty to indemnify, and defend and hold harmless, such action shall be defended by legal counsel of the City's choosing and the costs of which will be paid for by the Developer. Additionally, in the event of such third party action the Developer to the extent permitted by law shall upon the request of the City attempt to intervene in such proceedings and join the City in the defense thereof. Q. Developer agrees to and shall provide to the City written reports on the status of the Burlington Coat Factory Lease project. Such written reports shall be provided to the City quarterly or upon request of the City. Such written reports shall contain a status report on construction activities and such other information as may be requested by the City. R. Developer on behalf of itself and its respective successors, assigns and grantees of the Subject Property hereby acknowledges the propriety, necessity and legality of all of the terms and provisions of this Agreement and does hereby further agree and does waive any and all rights to any and all legal or other challenges or defenses to any of the terms and provisions of this Agreement and hereby agrees and covenants on behalf of itself and its successors, assigns and grantees of the Subject Property, not to sue the City or maintain any legal action or other defenses against the City with respect to any challenges of the terms and provisions of this Agreement. The provisions of this paragraph shall survive any termination, completion and/or expiration of this Agreement. SIGNATURE PAGE FOLLOWS 8 IN WITNESS WHEREOF, the City and Otter Creek, L.L.C. have executed this Agreement on the date first set forth above. CITY OF ELGIN, OTTER CREEK, L.L.C., a limited liability an Illinois municipal corporation company By: By: 1 I Ed Schock, Mayor j l e l ios A4<+;?i 5 Attest: Diane Robertson, City C rk F:\Legal Dept\Agreement\Economic Incentive-Otter Creek LLC-Burlington Coat Factory.doc 9 • OTTER CREEK - EXH EMT A Ill --,_ Del.Pond Target Burlington Coat ,......_, , I Omffice ---. Factory Hobby Avi :1 q icTi IN 1 sis L71 C.1 C-2 c4 C-4 Lobby .; 0. ...., , ;s411. 11.sv...N:zz,v..,,..a.N!.:.,,Nv,...T. ,z;IT, . ..N...,N... ,„..,.. \ \N •.-tt. .--tt;...„ \.„N \ . , ___,-------"-- \ ' . ..■ ele` ' ..kN,,..A...,.-a,..\.-\,&... .•.... —,X...' ,t.. ..\:. '' Nfie16 x._ , , `■ \\—\%`■, ''.s\ -"\\,,-'\ \ '\ \\ Det,Pond i _} _ Randall Road ______ \ - k . No Build Area EXHIBIT "A-1" Legal Description of Shopping Center PARCEL ONE: LOTS 5, 10 AND 11 OF DARLENE MCDERMOTT SUBDIVISION, BEING A SUBDIVISION OF PART OF THE SOUTHWEST 1/4 OF SECTION 16, PART OF THE SOUTHEAST 1/4 OF SECTION 17, PART OF THE NORTHEAST 1/4 OF SECTION 20 AND PART OF THE NORTHWEST 1/4 OF SECTION 21, ALL IN TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO SAID PLAT OF SUBDIVISION RECORDED ON JULY 17, 1992 AS DOCUMENT NO. 92K51304 AND CERTIFICATE OF CORRECTION RECORDED JANUARY 5, 1993 AS DOCUMENT NO. 93K00619, IN KANE COUNTY, ILLINOIS. PARCEL TWO: EASEMENT FOR THE BENEFIT OF LOT 11 IN PARCEL ONE AS CONTAINED IN THE SLOPE EASEMENT AGREEMENT RECORDED SEPTEMBER 25, 1992 AS DOCUMENT NO. 92K68107. PARCEL THREE: EASEMENTS FOR THE BENEFIT OF PARCEL ONE CONTAINED IN THE OPERATION AND EASEMENT AGREEMENT RECORDED AUGUST 19, 1991 AS DOCUMENT NO. 91K45166, FIRST AMENDMENT THERETO RECORDED DECEMBER 28, 1992 AS DOCUMENT NO. 92K93622, SECOND AMENDMENT THERETO RECORDED DECEMBER 28, 1992 AS DOCUMENT NO. 92K93623 AND CONTAINED IN DECLARATION RECORDED JUNE 28, 1993 AS DOCUMENT NO. 93K47279. LEASE AGREEMENT BETWEEN OTTER CREEK,LLC AND BURLINGTON COAT FACTORY OF ILLINOIS, LLC BCF.Elgin.Lease.Final 08/28/08 ARTICLE 1 PART!KS 1 ARTICLE 2 DEMISED PREMISES AND USE 1 ARTICLE 3 TERM 1 ARTICLE 4 POSSESSION 2 ARTICLE 5 RENTAL 2 ARTICLE 5A PERCENTAGE RENT 3 ARTICLE 6 TITLE 5 ARTICLE 7 USE OF DEMISED PREMISES BEFORE TERM 7 ARTICLE 8 TENANT'S RIGHT TO MAKE ALTERATIONS 8 ARTICLE 9 FIXTURES AND PERSONAL PROPERTY 9 ARTICLE 10 COMPLIANCE WITH LAWS 9 ARTICLE 11 QUIET POSSESSION 10 ARTICLE 12 TENANT'S RIGHT TO CURE LANDLORD'S DEFAULTS 11 ARTICLE 13 TENANT ATTORNEY FOR LANDLORD 12 ARTICLE 14 UTILITIES 12 ARTICLE 15 ASSIGNING; SUBLETTING; MORTGAGING 12 ARTICLE 16 REPAIRS 16 ARTICLE 17 DAMAGE TO DEMISED PREMISES 17 ARTICLE 18 INSURANCE; MUTUAL RELEASE; WAIVER OF SUBROGATION AND INDEMNITY 19 ARTICLE 19 REGULATIONS, ETC. 24 ARTICLE 20 EMINENT DOMAIN 24 ARTICLE 21 TENANT'S DEFAULT IN RENT 27 ARTICLE 22 OTHER DEFAULTS BY TENANT 27 ARTICLE 23 TRANSFER OF TITLE 28 ARTICLE 24 WAIVER 29 ARTICLE 25 NOTICES 29 ARTICLE 26 FULL PERFORMANCE 30 ARTICLE 27 GENERAL PROVISIONS 30 ARTICLE 28 LANDLORD'S PRE-OPENING CONSTRUCTION OBLIGATIONS'AND CONSTRUCTION ALLOWANCE 32 ARTICLE 29 OPTION FOR EXTENDED TERMS 34 ARTICLE 30 CERTAIN CONDITIONS 35 ARTICLE 31 SUBORDINATION AND NONDISTURBANCE 37 ARTICLE 32 USE OF COMMON FACILITIES 38 ARTICLE 33 RESTRICTIVE COVENANT 38 ARTICLE 34 TENANT'S RIGHT TO OPERATE 39 ARTICLE 35 REAL PROPERTY TAXES 40 ARTICLE 36 COST OF COMMON FACILITIES 42 ARTICLE 37 ENVIRONMENTAL COMPLIANCE 46 ARTICLE 38 USE OF COMMON AREAS 53 ARTICLE 39 CONSENT NOT TO BE UNREASONABLY WITHHELD 53 ARTICLE 40 TENANT SOLELY LIABLE; LANDLORD'S EXCULPATION 53 ARTICLE 41 OTHER TENANCIES 54 ARTICLE 42 TERMINATION 54 BCF.Elgin.Lease.Final -i- 08/28/08 ARTICLE 43 SIGNAGE 55 ARTICLE 44 SATELLITE DISH 55 ARTICLE 45 ESTOPPEL CERTIFICATES 55 ARTICLE 46 ACCESS TO DEMISED PREMISES 56 ARTICLE 47 HOLDING OVER 56 ARTICLE 48 COMPLETE AGREEMENT/SHORT FORM 56 ARTICLE 49 GUARANTY 57 ARTICLE 50 FIRST RIGHT TO LEASE ADJOINING SPACE 57 Exhibits: A. Site Plan of Shopping Center with Demised Premises Cross-Hatched, Protected Area, Dumpster Area, Food/Entertainment Premises, Critical Access Area A-1. Legal Description of Shopping Center B. Permitted Encumbrances C. Plans and Specifications D-1. Baby Depot Exclusives D-2. Luxury Linens Exclusives E. Intentionally Deleted F. Prohibited Uses G. Tenant's Signs H. Other Tenant Exclusives and Additional Restrictions Schedules: 37B Environmental Exceptions BCF.Elgin.Lease.Final -ii- 08/28/08 LEASE AGREEMENT ARTICLE 1 PARTIES This Lease ("Lease") is made on , 2008 by and between OTTER CREEK LLC, an Illinois li ted liability company, having an address at 125 Fairfield Way Suite 260, Bloomingdale, IL 60108 herein referred to as "Landlord" and BURLINGTON COAT FACTORY OF ILLINOIS, LLC, an Illinois limited liability company, having an address at 1830 Route 130, Burlington, New Jersey 08016, herein referred to as "Tenant." WITNESSETH: ARTICLE 2 DEMISED PREMISES AND USE Landlord does demise and let unto Tenant, and Tenant does Lease and take from Landlord, for the term and upon the terms and conditions set forth in this Lease, the premises comprising approximately Seventy Thousand (70,000) square feet of ground floor space, with a frontage of One Hundred Eighty Six (186) lineal feet, located in the Building, as defined in Article 27, with a street address of 250 S. Randall Road, Elgin, Illinois 60123, which premises are shown cross-hatched on Exhibit "A" annexed hereto and made a part hereof ("Demised Premises"), together with the exclusive right to the use of the loading dock adjoining the premises and all alley rights, if any, easements, and rights, privileges and appurtenances in connection therewith or thereunto belonging or herein granted. The Demised Premises are located in the shopping center known as Otter Creek in Elgin, Illinois, as such shopping center is depicted on Exhibit "A," which shopping center is located on the land more particularly described in Exhibit "A-1" annexed hereto and made a part hereof("Shopping Center"). Tenant may use the Demised Premises for any lawful retail purpose; provided, however, that in no event shall Tenant use the Demised Premises in violation of any of the exclusive or prohibited uses set forth in Exhibit"H." ARTICLE 3 TERM The "Effective Date" of this Lease is the day that the later of Landlord or Tenant (or their attorneys at law, respectively) receives a fully executed copy of this Lease. Tenant shall have and hold the Demised Premises for the term ("Initial Term") to commence upon delivery to Tenant of exclusive possession of the Demised Premises in accordance with the terms and conditions of this Lease ("Commencement Date") and shall end at the very end of the day on: (i) if the (tenth) (10th) anniversary of the Rent Commencement Date (as hereinafter defined) shall fall on any date after January 31 but before April 30 of a calendar year, then on April 30 of such BCF.Elgin.Lease.Final - 1 - 08/28/08 calendar year; (ii) if the (tenth) (10th) anniversary of the Rent Commencement Date shall fall on any date after July 31 of a calendar year, then on January 31 next following the (tenth) (10th) anniversary of the Rent Commencement Date; or(iii) if the (tenth) (10th) anniversary of the Rent Commencement Date shall fall on any other date of a calendar year, then on the last day of the month which contains the (tenth) (10th) anniversary of the Rent Commencement Date ("Initial Term"), unless sooner terminated herein. The Initial Term together with any extensions or renewals thereof shall be hereinafter referred to as the "Term." All optional or extended terms provided for in this Lease shall run from the end of the Initial Term as hereinabove determined. During the Initial Term, the term "Lease Year" shall mean: (a) for the first Lease Year, the period commencing on the Rent Commencement Date and ending on the last day of the month containing the first anniversary of the Rent Commencement Date; and (b) for each Lease Year thereafter, the twelve month period commencing on the first day of the month immediately following the month containing an anniversary of the Rent Commencement Date and ending on the last day of the twelfth (12th) month thereafter, except that the last Lease Year of the Initial Term shall also include any period from the last day of such twelfth (12th) month to and including the last day of the Initial Term. After the Initial Term, wherever in this Lease the term "Lease Year" is used, such term shall mean the period commencing on the first day after the expiration of the Initial Term (or an anniversary of such date) and ending at the very end of the last day of the twelfth (12th) month thereafter. Any period less than a full Lease Year shall be a partial Lease Year. ARTICLE 4 POSSESSION Landlord agrees to deliver to Tenant physical possession of the Demised Premises free and clear of all tenants and occupants and the rights of others and in accordance with the provisions of Article 28 below. Such delivery shall also be free of liens, encumbrances and violations of laws, ordinances and governmental regulations relating to the use, occupation and construction of the Building except as such may be specified in Exhibit "B" hereof Tenant agrees to deliver to Landlord physical possession of the Demised Premises upon the termination of the Term in good condition, ordinary wear and tear, damage by fire or other casualty or damages from any other cause (not directly attributable to the negligence of Tenant unless covered by Landlord's insurance) excepted. ARTICLE 5 RENTAL For Demised Premises of approximately (70,000) square feet, Tenant agrees to pay to Landlord the annual minimum rental ("Minimum Rent") of: (a) Six Hundred Sixty-Five Thousand Dollars, based on ($9.50) per square foot, for the period commencing on the "Rent Commencement Date" (as defined below), ending on the last day of the calendar month which includes the fifth (5th) anniversary of the Rent Commencement Date, and (b) Seven Hundred Thousand Dollars, based on ($10.00) per square foot, for the period commencing with the first day of the month immediately following the fifth (5th) anniversary of the Rent Commencement Date and ending on the last day of the Initial Term, (in each instance unless such rent shall be BCF.Elgin.Lease.Final -2- 08/28/08 abated or diminished as in this Lease elsewhere provided) in equal monthly installments on the first (1st) day of each and every month hereof. For the purposes hereof, the term "Rent Commencement Date" shall mean the date which shall be the earlier of: (i) the date Tenant shall "grand open"its completed store in the Demised Premises for business; or (ii) a date which shall be ninety (90) days after delivery by Landlord to Tenant of the Demised Premises in accordance with the provisions of this Lease (however, if Landlord delivers the Demised Premises to Tenant in accordance with the terms of this Lease, on or before January 15, 2009, then such ninety (90) day period shall be reduced to sixty (60) days; provided, however that notwithstanding the preceding in no event shall Tenant be required to initially "grand open" for business or to commence paying any rents payable under this Lease during any month other than March or September of any year as provided in Article 30 below. For the purposes hereof, the term"grand open" shall mean the date Tenant shall advertise as its grand opening date, which shall be not more than ten (10) days after Tenant initially opens its store for business. Payments of Minimum Rent, Additional Rent and Percentage Rent (as defined in Article 5A) are to be made to Landlord, or such other person or entity and at such other place, as shall be designated by Landlord in writing and delivered to Tenant at least thirty(30) days prior to the next ensuing rent payment date. Minimum Rent for the calendar month during which it shall begin to accrue or change in amount and for the last calendar month of the Term shall be apportioned if less than a full calendar month. Since Minimum Rent is based upon a square footage computation, Landlord agrees, at its cost and expense, to deliver to Tenant, within thirty (30) days after the execution of this Lease, a floor plan of the Demised Premises certified by a licensed architect or professional engineer as to the dimensions and total square footage thereof. In the event the square footage varies from the square footage set forth in Article 2 hereof, Minimum Rent and all items of proration based upon the size of the Demised Premises shall be adjusted accordingly. Notwithstanding any certification of the area of the Demised Premises or the acceptance of the same by Tenant or any other provision herein to the contrary, it is specifically understood and agreed that should the Demised Premises contain any mezzanine space, basement space, vestibules, patio or outside selling areas, loading areas, fire egress corridors (whether or not mandated by local law or regulation), or space used by or in common with others including, without limitation, duct work, utility rooms, stairs, stairwells, escalators, elevators and access easements of any type affecting the floor area of the Demised Premises, then such space or spaces and the area(s) surrounding any of the foregoing made unsuitable for sales purposes shall be excluded from all computation of Minimum Rent and pro rata share of taxes, insurance and common area maintenance charges and all items of pro-ration based upon the size of the Demised Premises under this Lease, and Minimum Rent and pro rata share of taxes, insurance and common area maintenance charges and other pro-rated charges shall be reduced in proportion to the area of such space or spaces. The Demised Premises shall be measured from the exterior faces of exterior walls and from the center line of demising walls between premises. BCF Elgin Lease 6.doc -3- 08/19/08 MC ARTICLE 5A PERCENTAGE RENT On or before the last day of March following each full calendar year of the Term (first such calendar year to begin with the first day of the calendar year following the calendar year in which this Lease commences), Tenant agrees to mail or deliver to Landlord a statement certified by one of its officers, showing the sales (computed as hereinafter provided) made by Tenant in its store in the Demised Premises during the preceding calendar year (provided that, the first statement shall also include the period from the Rent Commencement Date). Should Tenant's sales from the Demised Premises for a calendar year during the Term hereof exceed an amount determined by dividing the annual rent payable during a calendar year by 0.02 (the "Percentage Rent Breakpoint"), then Tenant agrees that it will pay to Landlord, as "Percentage Rent" due hereunder, a sum equivalent to two percent (2%) on the amount of such sales in excess of Percentage Rent Breakpoint for such period. In addition, if, for any calendar year, Tenant's obligation to pay Percentage Rent commences to accrue on a day other than the first (1st) day of the then calendar year or ceases to accrue on a day other than the last day of the then calendar year (in each case, the period during which Tenant's obligation to pay Percentage Rent accrues hereinafter called a "Partial Year"), then notwithstanding the preceding sentence, for the purposes of computing Percentage Rent for such Partial Year, sales made during such Partial Year shall be added to sales made during that number of days (including Sundays and holidays): (i) immediately following the Partial Year (in the case of a Partial Year at the beginning of the Term of this Lease); or (ii) immediately preceding such Partial Year(in the case of a Partial Year at the end of the Term of this Lease) as shall be equal to the difference between 365 and the number of days (including Sundays and holidays) in such Partial Year (such aggregate sales for such 365 day period hereinafter called the "Aggregate Sales"). The Percentage Rent payable for such Partial Year shall be equal to the Percentage Rent, if any, calculated on Aggregate Sales for such 365 day period in accordance with the first sentence of this paragraph multiplied by a fraction of which the numerator shall be the number of days in the Partial Year and the denominator shall be 365. It is understood that sales made in the period (during the Term) which follows or precedes a Partial Year, as the case may be, which are included in Aggregate Sales so as to allow computation of Percentage Rent payable for a Partial Year in accordance with the preceding formula, shall also be included in sales of the calendar year (which occurs completely within the Term) of which it is a part when computing Percentage Rent payable for such calendar year. In computing its sales for the purpose of this Article, Tenant shall take the total amount realized as the result of sales of merchandise and services made by it and its concessionaires, sub-lessees, and licensees in the Demised Premises (which does not include sales made directly to customers through internet and similar facilities) and deduct therefrom the following to the extent that same are included in the computation of sales: (1) all credits, discounts, adjustments, allowances made to customers, and refunds for merchandise returned; (2) all receipts from weighing machines, lockers, vending machines, public telephones and public toilets; (3) all sums and credits received in settlement of claims for loss or damage to merchandise, (4) delivery, mailing, gift wrap and alteration charges; (5) sales to employees of Tenant or of any subtenants, BCF.Elgin.Lease.Final -4- 08/28/08 concessionaires or licensees of Tenant at discount; (6) charges of credit/debit card companies; (7) interest, service and credit charges by customers on credit purchases; (8) uncollected accounts, bad checks and any penalty charged by Tenant for a returned check; (9) amounts received from sales of distressed, damaged or obsolescent merchandise sold to other than retail customers and from sales of store fixtures and equipment; (10) transfers of merchandise between the Demised Premises and affiliated stores or warehouses not made to consummate sales made at the Demised Premises; (11) transfers or returns of merchandise to vendors, suppliers or manufacturers; (12) sales from any portion of the Demised Premises used in the operation of a tire, battery and accessories pad ("TBA Pad") or a garden center; (13) amounts received from concessionaires and licensees of Tenant for occupancy, or for services rendered to such concessionaires or licensees by Tenant or for supplies or equipment furnished to such concessionaires and licensees; and (14) all taxes upon the receipt or purchase of merchandise by Tenant and all occupational sales taxes and other taxes upon or based upon the gross receipts of Tenant or upon the sale or sales price of merchandise and which must be paid by Tenant whether or not collected by Tenant from its customers and whether or not the same may be commonly known as "sales tax." Internet and catalogue sales to the extent recorded as revenues on the books and accounts of related entities are not deemed sales for the purposes of this Article, notwithstanding that orders may be facilitated at the Demised Premises. The taxes to which reference is hereinabove made may be deducted regardless of whether imposed under any existing or future orders, regulations, laws or ordinances. Tenant agrees that Landlord or Landlord's agents may inspect Tenant's records of sales made in the store annually at its Central Accounting Office, 1830 Route 130, Burlington, New Jersey 08016, provided such inspection is made within two (2) years after the statement of sales is mailed or delivered by Tenant to Landlord and is limited to the period covered by such statement. Tenant makes no representation or warranty as to the sales which it expects to make in the Demised Premises. Tenant agrees that if Landlord's inspection reveals an understatement of sales in excess of three percent (3%) resulting in an underpayment of Percentage Rent hereunder exceeding Two Thousand ($2,000.00) Dollars, Tenant will reimburse Landlord for the reasonable cost of the inspection. ARTICLE 6 TITLE Landlord covenants, represents, and warrants that it holds good and marketable title to the Shopping Center fee simple absolute and that the Shopping Center is not subject to any leases, tenancies, agreements, encumbrances, liens or defects in title, claims, causes of action or other proceedings pending or threatened in respect of ownership, operation or environmental condition of the Shopping Center or affecting the Demised Premises or the rights granted Tenant in this Lease except as set forth in Exhibit "B" ("Permitted Encumbrances"); provided, however: (i) that with respect to any exclusive use rights and other restrictions which are Permitted Encumbrances affecting the Shopping Center or the Demised premises in favor of other tenants or third parties, Tenant shall be subject thereto only while such other tenant or third party is operating and actively using its premises for the purposes for which such exclusives or restrictions are granted; and (ii) whenever an agreement underlying a Permitted Exception shall BCF.Elgin.Lease.Final -5- 08/28/08 lapse, Tenant shall ipso facto thereafter be free of such restriction whether or not this Lease is amended to reflect such fact. At any rate, Landlord warrants and represents to Tenant that no Permitted Encumbrance, whether arising under a reciprocal easement agreement, lease or other recorded document or instrument or otherwise, shall prevent or materially affect Tenant's ability to open and operate its store for the purposes intended, except that an exclusive or restriction in favor of a third party specifically set forth in Exhibit "B" may have the effect of limiting Tenant's ability to sell one or more products or deliver one or more services. Landlord represents and warrants that to the best of Landlord's knowledge, there is no existing, pending .or contemplated, threatened or anticipated: (a) condemnation of any part of the Shopping Center or any part thereof; (b) repaving, widening, change of grade or limitation on use of streets, roads or highways abutting the Shopping Center; (c) special tax or assessment to be levied against the Shopping Center or any part thereof; (d) change in the zoning classification of the Shopping Center or any part thereof; or (e) change in the manner of tax assessment of the Shopping Center. Landlord further covenants that there are no defaults under the Permitted Encumbrances and there are no zoning or other ordinances or regulations which will interfere with or prevent: (i)the performance of any construction work to be done hereunder; (ii) the use and occupancy of the Demised Premises for retail purposes whether resulting from such construction, or otherwise; (iii) Tenant from conducting its usual business or any department thereof in the Demised Premises; (iv) using each floor of the Demised Premises as one undivided room; or (v) the enjoyment of the exclusive and non-exclusive easements, rights and privileges herein granted to Tenant with respect to the Common Facilities (as such term is defined in Article 30 below) except for the rights of other tenants to use the Common Facilities in common with Tenant to the extent herein provided. In the event of a conflict between this Lease and any Permitted Encumbrance, as between Landlord and Tenant, this Lease shall in all respects control. Landlord represents and warrants to Tenant that the terms and conditions of this Lease are not in conflict with the provisions of any Permitted Encumbrances and further, that the Permitted Encumbrances shall not prohibit Tenant from conducting its business in the Demised Premises in accordance with the terms and conditions hereof. Landlord further covenants that all access roads within the Shopping Center afford actual and legal access to the public rights of way of the streets and roadways depicted on Exhibit"A," and no such access road can be closed, diminished, removed or altered other than through condemnation proceedings. Landlord agrees to procure and deliver to Tenant with the execution of this Lease, at Landlord's expense, confirmation of the condition of title to the Shopping Center and Tenant's leasehold estate consistent with this Article, such confirmation to be evidenced by an ALTA leasehold title insurance policy in the amount of Two Million Five Hundred Thousand and 00/100 Dollars ($2,500,000.00) insuring Tenant's leasehold estate and rights to the Common Facilities hereunder from Ticor Title Insurance Company or such other national title insurance company acceptable to Tenant. The receipt of the leasehold title insurance policy by Tenant shall not waive or relieve Landlord of any of its obligations, representations or warranties set forth above. BCF.Elgin.Lease.Final -6- 08/28/08 Landlord represents to Tenant that the construction of the Demised Premises and the Shopping Center are in compliance with that certain Operation and Easement Agreement, by and between Dayton Hudson Corporation, a Minnesota corporation and La Salle National Trust N.A., not personally but solely as Trustee under Trust Agreement dated August 10, 1991, and known as Trust No. 11652,recorded on August 19, 1991 as Document 91K45166, as amended by that certain First Amendment recorded December 28, 1992 as Document 92K93622, as amended by that certain Second Amendment recorded December 28, 1992 as Document 92K93623, as amended by that certain Third Amendment recorded February 3, 1997 as Document 97K007354 (collectively,the "REA"), and the REA is in full force and effect, and that Tenant shall have the rights and benefits of the easements and covenants set forth therein. Landlord agrees that it will enforce the terms of the REA for the benefit of Tenant. Landlord will not amend, modify or terminate the REA without Tenant's consent, nor knowingly consent to a modification or change to the REA without the prior written consent of Tenant. Landlord represents, warrants, and covenants that: (a)the REA is in full force and effect; (b)the REA has not been further modified or amended; (c) Landlord is not in default of any provisions of the REA; (d) Landlord will send notice to Tenant with an exact complete duplicate of any writings received by Landlord that allege Landlord is in breach of the REA and such notice shall be sent within five (5)business days after Landlord receives any such writing. Landlord represents and warrants to Tenant that the lease with Fashion Bug at the Shopping Center expires on January 31, 2009, and if extended or a new lease executed, neither will contain an exclusive or other use restriction applicable to the Demised Premises. ARTICLE 7 USE OF DEMISED PREMISES BEFORE TERM If under this Lease it is Landlord's obligation to build a new Building or to alter the existing Building or buildings for the occupancy of Tenant, Landlord agrees that if space in the Demised Premises is available, Tenant at any time prior to the beginning of the Term may install therein its fixtures and equipment and receive and store therein its merchandise and other property at its own risk, free from Minimum Rent,Percentage Rent, and other charges hereunder, provided the same does not interfere unreasonably with the work being done in or to the Building by Landlord. Landlord agrees to cooperate with Tenant and to provide reasonable areas within the Demised Premises, prior to the beginning of the Term, for Tenant to receive, store and install therein its merchandise and other property. Such use of the Demised Premises shall not be construed as acceptance of delivery of the Demised Premises under the terms and provisions of this Lease or as a waiver of any of the provisions of this Lease. If Tenant shall use the Demised Premises to receive, store and install therein its merchandise and other property prior to the Commencement Date, Tenant agrees to maintain from the date of such use of the Demised Premises the liability insurance required of Tenant under this Lease. BCF.Elgin.Lease.Final -7- 08/28/08 ARTICLE 8 TENANT'S RIGHT TO MAKE ALTERATIONS Landlord agrees that Tenant may at its own expense, from time to time during the Term, make such interior, non-structural alterations, additions and changes in and to the Demised Premises as it finds necessary or convenient for its purposes, provided, however, that it shall not make (a) a structural alteration or (b) an alteration to the exterior of the Demised Premises without first obtaining Landlord's written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the preceding, or anything herein to the contrary, Tenant may at any time and from time to time alter its exterior store front in and around the main entryway to the Demised Premises without consent of Landlord provided such alterations shall conform to the then current exterior store front adopted for use generally for stores within Tenant's chain in the region in which the Demised Premises are located. Tenant agrees that all the alterations, additions and changes made by it will be erected or made in a first- class workerlike manner, and anything in this Lease to the contrary notwithstanding, Landlord and Tenant agree that Tenant shall have neither the right nor the obligation at the end of the Term to remove the same or to change such structure or restore the Demised Premises to the condition in which they were originally delivered. Landlord agrees that when necessary Tenant may at all reasonable times enter any part of the Building of which the Demised Premises are a part with mechanics, tools and materials to make such alterations, additions and changes; provided, however, Tenant shall use reasonable efforts to avoid interference with the business operations of other tenants in the Shopping Center. Tenant shall have the right to close any mall or other entrance to the Demised Premises, subject to applicable municipal code. All alterations, additions improvements and fixtures (other than trade fixtures)which may be installed or made upon the Demised Premises shall remain upon and be surrendered with the Demised Premises and become property of the Landlord at the termination or expiration of this Lease, and Tenant shall not be required to remove the same or repair damage caused by removal thereof not conducted by Tenant. Tenant agrees not to suffer any mechanic's lien to be filed against the Demised Premises or any other portion of the Shopping Center by reason of any work, labor, services or materials performed at or furnished to the Demised Premises by Tenant or by anyone holding the Demised Premises through or under Tenant. If any such mechanic's lien shall at any time be filed, Tenant shall forthwith cause the same to be discharged of record by payment, bond, order of a court of competent jurisdiction, or otherwise, but Tenant shall have the right to contest any and all such liens, provided security reasonably satisfactory to Landlord is deposited with it. Nothing in this Lease contained shall be construed as consent on the part of Landlord to subject Landlord's estate in the Demised Premises to any such lien or liability. Landlord agrees not to suffer any mechanic's lien to be filed against the Demised Premises or any other property of Tenant by reason of any work, labor, services or materials performed at or furnished to the Shopping Center by Landlord or by anyone claiming through or under Landlord. If any such mechanic's lien shall at any time be filed, Landlord shall forthwith BCF.E1gin.Lease.Fina1 -8- 08/28/08 cause the same to be discharged of record by payment, bond, order of a court of competent jurisdiction, or otherwise, but Landlord shall have the right to contest any and all such liens, provided security reasonably satisfactory to Tenant is deposited with it. Nothing in this Lease contained shall be construed as consent on the part of Tenant to subject Tenant's estate in the Demised Premises to any such lien or liability. ARTICLE 9 FIXTURES AND PERSONAL PROPERTY All trade fixtures, equipment, and other property owned by Tenant shall remain the property of Tenant without regard to the means by which, or the person by whom the same are installed in or attached to the Demised Premises, and Landlord agrees that Tenant shall have the right at any time, and from time to time to remove any and all of its trade fixtures, equipment and other property, including but not limited to, counters, shelving, showcases, mirrors, slides, and signs. Tenant agrees to make all necessary repairs to the Demised Premises caused by such removal. Landlord agrees not to mortgage or pledge Tenant's trade fixtures, equipment or other property and hereby waives and releases any lien or claim thereon and agrees to deliver confirming lien waivers to Tenant upon request. All trade fixtures, equipment and other personal property remaining in the Demised Premises sixty (60) days after termination or expiration of this Lease and vacating of the Demised Premises by Tenant (unless prior thereto Tenant has notified landlord of arrangement for removal at a later time) shall be deemed abandoned by Tenant and shall become property of Landlord and may be disposed of by Landlord in its discretion. ARTICLE 10 COMPLIANCE WITH LAWS Landlord and Tenant agree to comply with and to require Landlord's and Tenant's contractors to comply with all Federal, State and local laws, ordinances, regulations and directions relating to the employment, conditions of employment and hours of labor in connection with any demolition, construction, alteration or repair work done by or for Landlord and Tenant in or about the Demised Premises. BCF.Elgin.Lease.Final -9- 08/28/08 ARTICLE 11 QUIET POSSESSION Landlord agrees that Tenant, upon paying the Minimum Rent, Percentage Rent and other charges payable hereunder and performing its covenants under this Lease, may quietly have, hold and enjoy the Demised Premises and all rights granted Tenant in this Lease during the Term, subject to the conditions of Article 31 hereof. If at any time through Landlord's act or omission Tenant shall be materially deprived of or impaired in the use and enjoyment of, or access to, the Demised Premises and/or Common Facilities as herein provided: (a) the rents and additional charges to be paid by Tenant shall be equitably abated during any such period extending beyond twenty-four (24) hours; and (b) at the option of Tenant, to be exercised by notice to Landlord, the running of the Term shall be suspended during any such period extending beyond twenty-four(24) hours, and the expiration date of the Term (and any extension Terms as applicable) shall be extended for an amount of time equal to such period. If such period continues for more than one hundred eighty (180) days after notice from Tenant, in addition to all other remedies available to Tenant at law or in equity, Tenant, at its option, may terminate this Lease by notice to Landlord while reserving all rights which Tenant may have for Landlord's default under this Lease. In addition to the foregoing remedies, in the event this Lease is terminated, Tenant shall have: (i) the right to recover from Landlord the unamortized value of leasehold improvements made by Tenant; and (ii) any other rights or remedies available to Tenant at law or in equity, including injunctive relief Tenant's rights and Landlord's obligations under this Article shall survive the termination of this Lease. Prior to any such termination, Tenant shall notify Landlord in writing of the unamortized value of its leasehold improvements. BCF.Elgin.Lease.Final - 10- 08/28/08 ARTICLE 12 TENANT'S RIGHT TO CURE LANDLORD'S DEFAULTS Landlord agrees that if Landlord fails to pay any installment of taxes or assessments or any interest, principal, costs or other charges upon any mortgage or mortgages or other liens and encumbrances affecting the Demised Premises and to which this Lease may be subordinate when any of the same become due, or if Landlord fails to make any repairs or do any work required of Landlord by the provisions of this Lease, or in any other respect fails to perform any covenant or agreement in this Lease contained on the part of Landlord to be performed, or, if any such repair, work, covenant or agreement cannot be completed or performed within such period, if Landlord shall not have promptly commenced such repair, work or covenant within such period and at all times shall have diligently and continuously pursued the completion and performance thereof, then and in any such event or events, in addition to all other remedies available to Tenant at law or in equity, Tenant, after the continuance of any such failure or default for twenty (20) days after notice in writing thereof is given by Tenant to Landlord, may, but shall not be obligated to pay any or all of the taxes, assessments, interest, principal, costs and other expenses of Landlord or at any time in the event the failure constitutes a danger to life or property, may, but shall not be obligated to, make or perform all reasonable or any necessary repair, work or covenant and make all reasonable and necessary payments in connection therewith including but not limited to the payment of counsel fees, costs and charges of or in connection with any legal action which may have been brought to enforce this provision or as may be required in connection with the performance of any such work, and Landlord agrees to pay to Tenant forthwith the amount so paid by Tenant, together with interest thereon at two percent (2%) above the prime rate of Citibank, N.A. in the City of New York (but in no event higher than the lawful maximum rate then in force in the state in which the Demised Premises are situated) ["Interest Rate"], and agrees that Tenant may withhold any and all rental payments and other payments thereafter becoming due to Landlord pursuant to the provisions of this Lease, and may apply the same to the payment of such indebtedness of Landlord to Tenant until such indebtedness is fully paid with interest thereon as herein provided. Nothing herein contained shall preclude Tenant from proceeding to collect the amount so paid by it as aforesaid without waiting for rental offsets to accrue, and if at the expiration of the Term,there shall be any sum owing by Landlord to Tenant, this Lease may be, at the election of Tenant, extended and continued in full force and effect until January 31st of the year following the date when indebtedness of Landlord to Tenant shall have been fully paid or Tenant may require full payment of the remainder of the rental offsets from Landlord. In addition to the foregoing remedies, in the event this Lease is terminated, Tenant shall have: (i) the right to recover from Landlord the unamortized value of leasehold improvements made by Tenant; and (ii) any other rights or remedies available to Tenant at law or in equity, including injunctive relief. Tenant's rights and Landlord's obligations under this Article shall survive the termination of this Lease. Prior to any such termination, Tenant shall notify Landlord in writing of the unamortized value of its leasehold improvements. BCF.E1gin.Lease.Fina1 - 11 - 08/28/08 ARTICLE 13 LANDLORD TO COOPERATE WITH TENANT Landlord, at no out-of-pocket cost to itself, shall fully and promptly cooperate with Tenant in the filing and prosecution of applications, with cognizant governmental authorities, for any and all permits or licenses which may be necessary in connection with the making of any alterations, additions, changes or repairs, and Landlord agrees upon request by Tenant to execute or join in the execution of any application for such permits and licenses. ARTICLE 14 UTILITIES Landlord agrees at Landlord's own cost and expense to provide to the Demised Premises throughout the Term such sewer facilities and such utilities (including, but not limited to, water, electric current and gas) as Tenant may require and to supply and maintain separate meters for the purpose of measuring all such utilities consumed by Tenant in the Demised Premises. Tenant agrees to pay directly to the utility companies for all such utilities indicated by such meters to have been consumed by Tenant during the Term beginning with the Commencement Date. From and after the Commencement date, Tenant, at Tenant's sole cost and expense, shall be responsible for maintaining sewer facilities and utilities within the Demised premises; provided, however,that Landlord shall maintain such facilities and utilities which are under floor slab. Landlord agrees that from the date of delivery of possession of the Demised Premises to Tenant until the expiration of the Term: all water, electricity, gas, and sewage disposal facilities provided for the benefit of the Demised Premises shall be in such amounts and capacities as shall be required by Tenant's plans (including, without limitation, sufficient water pressure to maintain fire suppression systems and domestic water use throughout the Term); provided, however, Landlord shall not be responsible for the failure of utilities if such failure is due to the act or omission of the public utility authority and not due to a circumstance under the direct control of Landlord. Landlord shall not take, nor permit or suffer any tenant or occupant of the Shopping Center or any person claiming under Landlord or any such tenant or occupant to take, any action which shall interrupt or interfere with, any electric, gas, water, sewage or telephone service to the Demised Premises. If any meters, controls or conduits for the utilities systems serving the Demised Premises are located outside the Demised Premises, then Tenant shall have reasonable access to such meters, controls or conduits and any room or rooms within which they are located. ARTICLE 15 ASSIGNING; SUBLETTING; MORTGAGING Tenant may assign, sublet, grant concessions, license, mortgage, pledge or encumber this Lease without first obtaining the written consent of Landlord. Notwithstanding such assignment, subletting or licensing, Tenant shall continue to be liable for the performance of the terms, conditions and covenants of this Lease. Tenant shall not subdivide the Demised Premises such that there are more than two (2) subleased premises or Tenant operating in one space and a single BCF.EIgin.Lease.Final - 12- 08/28/08 subtenant is subletting premises, and any subleased premises shall be for not less than forty percent (40%) of the floor area of the Demised Premises. Subdivided premises shall run the full depth of the Demised Premises, except for loading/service corridors and fire/safety corridors. Notwithstanding anything to the contrary contained in this Article, in the event that Tenant desires to assign this Lease or sublet all or a portion of the Demised Premises (except with respect to an assignment to a parent or affiliate or as a part of a merger, consolidation, reorganization or acquisition or as part of a sale all or multiple stores in the state in which the Demised Premises are located), Tenant shall send prior notice thereof to Landlord (such notice is hereinafter called a "Proposed Assignment/Sublet Notice"). Within twenty (20) days after Tenant sends a Proposed Assignment/Sublet Notice, Landlord shall have the right on written notice to Tenant to "recapture" this Lease by terminating this Lease in the case of an assignment, in which event this Lease shall terminate and the Term shall come to an end on the date which is thirty (30) days after Landlord notifies Tenant of its election to "recapture" the Demised Premises or, in the case of a sublease, to recapture the proposed sublet premises whereupon Landlord and Tenant shall execute an amendment to this Lease deleting the proposed sublet premises from the premises demised hereunder, effective thirty (30) days after the date of Landlord's recapture notice. Notwithstanding the foregoing, Tenant shall have the right to nullify Landlord's election to "recapture" this Lease or the sublet premises by sending Landlord a notice within thirty (30) days after Tenant's receipt of Landlord's termination notice, wherein Tenant may advise Landlord that Tenant has canceled its proposed assignment of this Lease or subletting or all or a portion of the Demised Premises. Any such notification shall not affect Landlord's continuing right to "recapture" in the event of a subsequent "Proposed Assignment/Sublet Notice". Time is of the essence with respect to each of the foregoing deadlines. Tenant on notice to Landlord, shall have the right to delay the effective date of the recapture of the entire Demised Premises or subleased premises for up to ninety (90) days to conduct closeout sales, remove its property, complete work to subdivide the recaptured subleased premises and to comply with any Legal Requirements relating to store closings and discharge of employees. If Landlord exercises its option to terminate this Lease or recapture the sublet premises as provided above, then Tenant shall vacate the Demised Premises or that portion thereof and deliver possession thereof to Landlord on or before the termination date, as if said termination date was the Expiration Date of the Term of this Lease, and commencing thereafter, neither party shall have any further rights against or obligations to the other, except for those obligations accruing prior to the termination date (or in the case of a sublet, with respect to the sublet premises). All rents, including Minimum Rent, prepaid or accrued, shall be adjusted, and paid or refunded or prorated, as the case may be, as of the termination date. On or before the termination date (or effective date of the amendment) Landlord shall pay to Tenant the unamortized cost of the leasehold improvements made by Tenant, such amortization to be over a ten (10) year period running from the date any such improvements are made. Prior to the termination date Tenant will notify Landlord in writing of such unamortized cost of its leasehold improvements. BCF.Elgin.Lease.Final - 13- 08/28/08 If Landlord accepts Tenant's offer to surrender a portion of the Demised Premises (such portion of the Demised Premises is hereinafter referred to as the"Subdivided Premises"), Tenant shall notify its proposed sublessee of Landlord's decision(and Landlord shall have the right to negotiate with any proposed subtenant or assignee without any liability whatsoever to Tenant). Tenant shall promptly commence to subdivide the Subdivided Premises by constructing a demising wall. In addition, Tenant shall cap electric and water lines leading to the Subdivided Premises. Tenant shall not be responsible or liable for the cost of any work to be performed in or to the Subdivided Premises. Upon request of Tenant, Landlord agrees to execute and deliver to any sublessee of the Demised Premises or a portion thereof, an agreement confirming that, in the event this Lease is terminated for any reason, if such sublessee shall observe and perform all of the obligations of such sublessee to be performed pursuant to such sublease, then and in that event such sublease and the rights of the sublessee thereunder shall not be disturbed by Landlord but shall continue in full force and effect so long as such sublessee shall continue to observe and perform all of its obligations under such sublease. Such sublessee shall attorn to Landlord, including the payment to Landlord of minimum or base rent, percentage rent (if any) and additional rent in the amounts provided for in such sublease. Such sublease shall become a direct lease between Landlord and such sublessee and those parties will execute and deliver any further reasonable documents at such time to more fully effectuate the foregoing. Notwithstanding the foregoing, in the event of any such attomment, Landlord shall not be: (i) liable for any previous act or omission by Tenant under any such sublease (unless a default of a continuing nature which is curable by Landlord); (ii) subject to any offset of rent that shall thereunto have accrued to any such sublessee against Tenant; (iii) bound by any previous prepayment of rent made by any such sublessee to Tenant for more than the current month; or (iv) liable to any such sublessee for any security deposit made by any such sublessee to Tenant unless Tenant pays such security deposit over to Landlord. The foregoing provisions of this Article shall apply only to those subleases that: (a) obligate the sublessee to pay base or minimum rent in an amount not less than a proportionate share of the Minimum Rent payable under this Lease (which proportionate share shall be based upon the square footage of the premises sublet by any sublessee as compared with the total square footage of the Demised Premises); and (b) to the extent that Tenant is obligated by the provisions of this Lease to pay same, obligate such sublessee to pay taxes, utilities and all other charges with respect to the premises covered by the sublease on a proportionate share basis as described above. Following any assignment of Tenant's interest in this Lease in which the original Tenant named herein is not released from liability hereunder, Landlord shall not exercise any rights or remedies under this Article on account of any default by the then tenant in possession unless Landlord shall give: (i) notice to Tenant named herein, as well as the tenant in possession, of such default; and (ii) the opportunity to both Tenant named herein as well as the tenant in possession to cure each such default within the applicable period of time provided in this Lease. After such notice, if the Term shall be terminated pursuant to the provisions of this Article, Tenant named herein shall not be liable for the payment of any Minimum Rent or Additional Rent or for the performance or observance of any agreements or conditions to be performed or BCF.Elgin.Lease.Final -14- 08/28/08 observed after the date of such termination; provided, however, Tenant, by notice to Landlord given within thirty (30) days following such termination, may cure any defaults reasonably capable of being cured by Tenant [or in the event of a default which cannot reasonably be cured within such thirty (30) day period, within such period commence to cure the same and thereafter proceed with the cure thereof with due diligence] and execute a new lease for the balance of the Tenn and any remaining unexercised optional, renewal or extended terms on the same terms and conditions provided for herein. It is the intention of the Parties hereto that such new lease shall have the same priority relative to other rights or interests in or to the Demised Premises as this Lease. The provisions of this Article and the applicable provisions of this Lease shall survive the termination of this Lease and shall continue in full force and effect thereafter to the same extent as if this paragraph were a separate and independent contract between Landlord and the original Tenant. Tenant may grant a mortgage, deed of trust or other financing instrument that constitutes or creates a lien on Tenant's interest in this Lease or the leasehold estate created hereby to an institutional lender (such as, but not limited to, a life insurance company, bank or savings association) [such mortgage, deed of trust or other financing instrument hereinafter referred to as a "Leasehold Mortgage"]. Provided Landlord receives written notice of a Leasehold Mortgage, Landlord will promptly provide to the holder of the Leasehold Mortgage ("Leasehold Lender") copies of any notice of default or breach under this Lease. Landlord hereby grants Leasehold Lender the right to cure any default or breach under this Lease, the exercise of which shall be at the sole option of Leasehold Lender. Leasehold Lender shall have the right to enter upon the Demised Premises at any time to cure any such default. Notwithstanding any contrary provisions of this Lease, Landlord agrees not to terminate this Lease or Tenant's right of possession of the Demised Premises, or to interfere with Tenant's occupancy, use or enjoyment of the Demised Premises for any default under this Lease unless: (x) Landlord has given to Leasehold Lender notice of such default, which notice shall specify in reasonable detail the nature of such default; and (y) such default shall not have been cured by Tenant or Leasehold Lender within the greater of the cure period provided therefor under the terms of this Lease or a period of thirty (30) days following Leasehold Lender's receipt of such notice. If any non-monetary default that is curable by Leasehold Lender is of such nature that it reasonably cannot be cured within thirty (30) days, Leasehold Lender shall be entitled to such additional period of time as may be reasonably necessary to cure such default provided Leasehold Lender commences within thirty (30) days to remedy the same and thereafter proceeds with due diligence. In the event of the bankruptcy of Tenant, or a general assignment by Tenant for the benefit of its creditors, Landlord will not terminate this Lease or exercise its other remedies under this Lease so long as Leasehold Lender continues to pay all rent and other sums payable by Tenant under the Lease and performs or causes to be performed all other obligations of Tenant under this Lease reasonably capable of being performed by Leasehold Lender. If any default (other than a monetary default) cannot be cured by Leasehold Lender because such cure requires possession of the Demised Premises, Landlord agrees that it will not exercise its rights and remedies under this Lease as a result thereof, so long as Leasehold Lender acts with due diligence to cure all other curable defaults reasonably capable of being cured by Leasehold Lender, including payment of past due rent and additional rent within the cure periods BCF.E1gin.Lease.Final - 15- 08/28/08 provided in this paragraph and is diligently pursuing its right to possession of the Demised Premises, whether through foreclosure or otherwise. It is expressly understood and agreed by Landlord that Leasehold Lender has the right to cure Tenant's defaults under this Lease, but shall not have the obligation to do so. Upon cure by Leasehold Lender of such Tenant defaults, any notice of breach or default given by Landlord, or any action of Landlord to terminate or exercise any remedies under this Lease or to otherwise interfere with the occupancy, use or enjoyment of the Demised Premises by reason thereof, shall be deemed rescinded without any further action by Landlord, Tenant or Leasehold Lender. BCF.Elgin.Lease.Final - 16- 08/28/08 ARTICLE 16 REPAIRS Until the end of the first Lease Year, Landlord, at its sole cost and expense, shall make and pay for all repairs and replacements of Landlord's Work, whether structural or nonstructural, including all utility lines and areas within or under the floor slab, excluding, however, damage caused by Tenant or its agents, employees or contractors. Thereafter, Landlord shall assign to Tenant all assignable warranties relating to the Demised Premises and the equipment located therein, except such warranties as may be used to cover any of Landlord's obligations stated herein. Landlord, at its sole cost and expense, throughout the Term of this Lease, shall make and pay for: (a) all repairs, structural or otherwise, to the exterior of the Building, including but not limiting such repairs to the streets, access drives, service drives, curbs, sidewalks and alleys; and (b) all repairs to the interior of the Building which are of a structural nature and which are not made necessary by any unusual use or alteration of the Demised Premises by Tenant including, without limitation, all repairs to the sprinkler system servicing the Demised Premises); and(c) all repairs to the structure and roof (including, without limitation, the structure and roof over Tenant's basement space, if any), the roof skin, utility lines (both exposed and unexposed), flashings, gutters and downspouts, floor slab, exterior walls, columns, beams, foundations, and footings; and(d) all repairs,remediations and other actions involving any Hazardous Material (as hereinafter defined) as required by Article 37 below; and (e) all repairs, structural or otherwise, to the interior of the Demised Premises made necessary by structural failures, acts of God, and the elements, and leakage or flowing of water and steam into the Demised Premises; and (f) all repairs, structural or otherwise, occasioned by losses which are covered by either Landlord's casualty policy or by a standard fire and extended coverage policy; and (g) all necessary repairs and replacements to and servicing of the heating, ventilating and the air-conditioning systems ("HVAC System") to maintain same in good operating condition through the tenth (10th) anniversary of the Rent Commencement Date, pursuant to the following contribution schedule, for any HVAC units not replaced by Landlord with new units either as part of Landlord's Work or thereafter. Tenant shall perform or have performed quarterly servicing of the HVAC units replacing as necessary belts and filters. The Landlord shall be responsible for one hundred percent (100%) of the maintenance, repair and replacement of the HVAC units during the first year following the Rent Commencement Date. Thereafter the Landlord's obligation for the cost of the maintenance, repair and replacement of the HVAC units shall decrease by ten percent (10%) on each anniversary of the Rent Commencement Date. Landlord on delivery of the Demised Premises to Tenant shall provide HVAC units which provide not less than one ton of air- conditioning for each 350 square feet of Demised Premises in accordance with Tenant's plans and specifications. BCF.Elgin.Lease.Final - 17- 08/28/08 After the tenth (10th) anniversary of the Rent Commencement Date, Tenant shall be responsible for the entire cost of the maintenance, repair and replacement of the heating, ventilating and air conditioning units. Landlord shall assign to Tenant all guarantees or warranties for the HVAC units replaced by Landlord. At delivery of the Demised Premises to Tenant the HVAC System shall be in compliance with regulations governing fluorinated hydrocarbons and shall be delivered with refrigerants in compliance with all regulations applicable to the HVAC during the Initial Term. Anything in this Lease to the contrary notwithstanding, Landlord agrees that if in an emergency it shall become necessary to promptly make any repairs hereby required to be made by Landlord, Tenant, at its option, may proceed forthwith to have such repairs made and pay the cost thereof. Landlord agrees to pay Tenant the cost of such repairs on demand, and that if not so paid within thirty (30) days after written notice of such demand, Tenant may deduct the amount so expended by it together with interest at the Interest Rate from any rent due or to become due. In the event Tenant shall elect not to make such repairs, it will promptly notify Landlord in writing of the need for such repairs. Within sixty (60) days after the fifth (5th) anniversary of the Rent Commencement Date and Tenant's waiver of its right to terminate this Lease under Article 42, then provided Landlord has not previously replaced the roof of the Building, Landlord and Tenant shall agree upon the selection of a consultant to review and inspect the roof of the Building. The cost of the consultant's inspection shall be borne equally by the Landlord and Tenant. Landlord agrees to be bound by and follow the recommendations of the consultant regarding the replacement of the roof over the Demised Premises and of any required repairs if replacement is not required at that time. If Landlord fails to take all appropriate action to comply with the recommendations of the consultant to replace the roof above the Demised Premises as soon as practicable, or perform repairs as recommended, Tenant shall have the right on ten (10) days prior written notice to Landlord to have the roof replaced above the Demised Premises with a fifteen (15) year warranted roof at Landlord's sole cost and expense or make the recommended repairs. Tenant shall have the right to deduct any and all expenses it may incur in connection therewith (or for unreimbursed damages), together with interest at the Interest Rate, from the payment of Minimum Rent, Additional Rent and any other charges or payments due Landlord under the Lease. Notwithstanding anything to the contrary contained in this Lease, in the event any Tenant improvements, personal property, fixtures or inventory is damaged as a result of a roof leak that occurs prior to replacement of the roof, then Landlord shall reimburse Tenant for any damages suffered within twenty days following demand. Tenant agrees to give Landlord prompt notice of such damages. Tenant agrees to make and pay for all ordinary nonstructural repairs to the interior of the Demised Premises which are reasonably necessary to keep the same in a good state of repair except such repairs as are herein provided to be made by Landlord. BCF.Elgin.Lease.Final - 18- 08/28/08 ARTICLE 17 DAMAGE TO DEMISED PREMISES Landlord agrees that if the Building and the other buildings in the Shopping Center are damaged or destroyed by fire or through any other cause at any time after the date of this Lease, Landlord will proceed with due diligence to repair or restore the same to the same condition as existed before such damage or destruction_(excluding Tenant's trade fixtures, personal property and inventory). Tenant shall have the right to require Landlord to make changes to the Demised Premises in the course of such restoration, subject to Landlord's reasonable approval of such changes. If the cost and expense of restoration of the Demised Premises is increased by any change or changes made by Tenant, then Tenant, within thirty (30) days after demand therefore, shall reimburse Landlord for the aggregate amount by which the cost or expense of restoration of the Demised Premises was thereby increased. If the Demised Premises are so damaged or destroyed, Landlord as soon as possible after such repair or restoration (but not prior to the beginning of the Term of this Lease, unless acceptable to Tenant) will give possession to Tenant of the same space as herein demised in the same condition as existed immediately prior to such damage or destruction, without diminution or change of location. If Tenant determines, in Tenant's sole opinion, that, by reason of such damage, Tenant can not operate its business as a viable financial unit within the unaffected portion of the Demised Premises, the Term of this Lease shall be tolled during the period from the date of the occurrence of the damage until the first to occur of Tenant's reopening of the Demised Premises to the retail public for business or ninety (90) days following Landlord's delivery of the restored Demised Premises to Tenant. If Landlord shall fail to commence repair or restoration within one hundred twenty (120) days after such damage or destruction or thereafter fail to diligently prosecute the repair or restoration to completion, or should Landlord not restore any such building or the Demised Premises to the condition required pursuant to the provisions of this Article by the anniversary of such damage or destruction, TIME BEING OF THE ESSENCE WITH RESPECT TO ALL SUCH TIME PERIODS, Tenant, in addition to and not in lieu of any other right available under law or equity, shall have the right to terminate this Lease upon notice to Landlord given at any time prior to such restoration. If this Lease shall terminate as aforesaid, Tenant shall have: (a) the right to recover from Landlord the unamortized value of leasehold improvements made by Tenant; and (b) any other rights or remedies available to Tenant at law or in equity, including injunctive relief, and if any rent shall have been paid in advance, Landlord agrees to refund to Tenant all rent so paid applicable to the period subsequent to such damage or destruction. Upon any such termination, Tenant shall be released from any further liability and obligations under this Lease. If, however, within the last year of this Lease, the Building is damaged by fire or through any other cause and in Tenant's sole opinion, Tenant can not operate its business as a viable fmancial unit within the unaffected portion of the Demised Premises, Tenant may terminate this Lease. If however, within the last year of this Lease the Building is damaged by fire or through any other cause and the cost to repair or restore the Building equals or exceeds forty percent (40%) of the total replacement cost of the Building, then Landlord may terminate this Lease. Either termination must be exercised by notice in writing given by the terminating party to the other within thirty (30) days after occurrence of such damage or destruction and upon such termination this Lease shall terminate and no rent shall be paid by Tenant for the period BCF.Elgin.Lease.Final - 19- 08/28/08 subsequent to the date of such damage or destruction; provided, however, that if at the time Tenant receives Landlord's notice of termination, Tenant shall have an option to extend the current Teini of this Lease for a period of at least five (5) years and if Tenant so exercises its option to extend within sixty (60) days after receipt of Landlord's notice of telmination, this Lease shall not terminate and Landlord shall be obligated to repair or restore as aforesaid. If this Lease shall terminate as aforesaid and any rent shall have been paid in advance, Landlord agrees to refund to Tenant all rent so paid applicable to the period subsequent to such damage or destruction. Upon any such termination, Tenant shall be released from any further liability and obligations under this Lease. In the event of damage or destruction of the Demised Premises, or in the event of damage or destruction to any portion of the Shopping Center which interferes with the operation of Tenant's business (damage or destruction to, or loss of, any portion of the Critical Areas, Critical Building Facilities or Protected Parking Area (as shown on Exhibit "A") or access to any adjoining public rights of way shall, ipso facto, be deemed to interfere with the operation of Tenant's business), rent shall be equitably abated from the date of such damage, destruction or interference, as the case may be, until ninety (90) days after Landlord has repaired or restored the Building and has delivered to Tenant the Demised Premises in the manner and in the condition provided in this Article, or has repaired or restored the Shopping Center so as to allow the operation of Tenant's business without material interference, as the case may be. The abatement shall be inversely proportional to the amount of the Demised Premises, if any, in which Tenant, at its sole discretion, continues to operate after such event. ARTICLE 18 INSURANCE; MUTUAL RELEASE; WAIVER OF SUBROGATION AND INDEMNITY LANDLORD'S OBLIGATION TO INSURE PROPERTY AT THE SHOPPING CENTER From and after the Effective Date and throughout the Term, Landlord shall maintain a policy of insurance covering the Shopping Center (including any of leasehold improvements installed by Tenant) against loss, damage or destruction caused by any peril covered by a Causes of Loss - Special Form coverage part (or the then industry replacement to such coverage part) to a policy of property insurance, including coverage for or endorsements for: (a)water damage; (b) Business Income; (c) Extra Expense; (d) Service Interruption; (e) Ordinance or Law; (f) Boiler and Machinery, if applicable; and (g) demolition costs. Such coverage shall be written for replacement value. Such policy shall provide for no deductible in excess of Fifty Thousand Dollars ($50,000.00). In addition, Landlord shall maintain: (y) if any portion of the Improvements is currently or at any time in the future located in a federally designated "special flood hazard area," flood hazard insurance in an amount equal to the lesser of: (1) the replacement value of the improvements at the Shopping Center; or (2) the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Refouu Act of 1994, as each may be amended; and (z) earthquake insurance in amounts and in form and substance satisfactory to Landlord's first mortgagee (or, if there is no first mortgagee, Tenant) in the event the Shopping Center is located in an area with a high degree of seismic activity, provided that the insurance BCF.Elgin.Lease.Final -20- 08/28/08 pursuant to clauses (y) and (z) hereof shall be on teens consistent with the Causes of Loss - Special Form coverage part required above. If Landlord is required by the operation of this Lease to repair all or any part of the Demised Premises, the proceeds (after deduction of Landlord's costs to collect same) which are payable under policies of insurance carried by Landlord shall first be made available for repair of the Demised Premises to the extent required by this Lease before such proceeds are applied in any other manner, including the satisfaction of debts secured by a mortgage or other lien instrument, or interest or penalties imposed thereon. LANDLORD'S OBLIGATION TO MAINTAIN LIABILITY INSURANCE From and after the Effective Date and throughout the Term, Landlord shall maintain commercial general liability insurance (in the broadest form then available in the State where the Shopping Center is located) against claims for bodily injury, personal injury, death or property damage occurring on, in or about the Shopping Center or as a result of ownership of facilities located on the Shopping Center. Any blanket insurance Policy shall specifically allocate to the Shopping Center the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate insurance policy insuring only the Shopping Center in compliance with the provisions of this Article. The commercial general liability coverage must be on the so-called "occurrence" form with a combined single limit, excluding umbrella coverage, of not less than Five Million Dollars ($5,000,000.00). Landlord shall also maintain umbrella liability insurance in addition to primary coverage in an amount not less than Twenty Million Dollars ($20,000,000.00) per occurrence on terms consistent with the required commercial general liability insurance policy. Landlord shall also maintain motor vehicle liability coverage for all owned and non- owned vehicles, including rented and leased vehicles containing minimum limits per occurrence, including umbrella coverage, of Three Million Dollars ($3,000,000.00). All policies of insurance provided for or contemplated by this Article to be carried by Landlord shall be primary, non-contributory coverage. No act or negligence of Landlord, or anyone acting for or at the direction of Landlord, or of any other owner, tenant or occupant of the Shopping Center, or failure to comply with the provisions of any insurance policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Tenant or Tenant's leasehold mortgagee (if any, and if named as an additional insured)is concerned. GENERAL INSURANCE PROVISIONS PERTAINING TO LANDLORD'S INSURANCE BCF.Elgin.Lease.Final -21 - 08/28/08 Landlord represents and warrants that all such insurance coverage required by this Lease to be carried by Landlord is now, and during the Term will continue to be in full force and effect. The premiums for such policy or policies shall be part of Operating Costs. All policy or policies required to be carried by Landlord shall be issued only by admitted insurers authorized to do business in the State where the Shopping Center is located and which are rated "A-/VIII" or equivalent in Best's Key Rating Guide, or any successor thereto (or if there is none, a rating organization having a national reputation). Within fifteen(15) days after the Effective Date, Landlord shall deliver to Tenant original or duplicate policies or certificates of the insurers evidencing all the insurance which is required to be maintained hereunder by Landlord and evidencing that an endorsement to the commercial general liability policy naming Tenant and any leasehold mortgagee of tenant of whom Tenant has notified Landlord as an additional insureds (including, without limitation, that within Landlord's property insurance policy, there is a waiver of each insurer's rights of subrogation, the naming of the insureds required hereunder, and the obligation of each insurer to give the notice required hereunder. Each policy required to be maintained by Landlord hereunder shall provide that Tenant and each additional insured under a liability insurance policy shall receive prior written notice of suspension, cancellation, termination, modification, non renewal or lapse or material change of coverage: (a) in the case of non-payment of premium, at least ten (10) days before such action shall take effect; and (b) in all other cases, at least thirty (30) days before such action shall take effect shall be given to all insured parties. Each policy required to be maintained by Landlord hereunder shall provide that such insurance shall not be invalidated by any act or neglect of Landlord or Tenant or any owner of the Shopping Center. Landlord, at least ten (10) days prior to the expiration of any insurance this Lease requires Landlord to carry, shall furnish Tenant with an original or duplicate policy or certificates evidencing the renewal of such insurance. The premiums incurred by Landlord for any of the insurance this Lease requires Landlord to maintain shall be included as part of Operating Costs. TENANT'S OBLIGATION TO CARRY LIABILITY INSURANCE From and after the Commencement Date and throughout the Term, Tenant, at its own expense shall maintain with admitted insurers authorized to do business in the State where the Shopping Center is located and which are rated "A-/VIII" or equivalent in Best's Key Rating Guide, or any successor thereto (or if there is none, a rating organization having a national reputation) commercial general liability (in the broadest form then available in the State where the Shopping Center is located) against claims for bodily injury, personal injury, death or property damage occurring on, in or about the Demised Premises or as a result of ownership of facilities located in the Demised Premises. Any blanket insurance policy shall specifically allocate to the Demised Premises the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate insurance policy insuring only the Demised Premises in compliance with the provisions of this Article. BCF.E1gin.Lease.Final -22- 08/28/08 The commercial general liability coverage must be on the so-called "occurrence" form with a combined single limit, excluding umbrella coverage, of not less than Five Million Dollars ($5,000,000.00). The policy of insurance required to be maintained by Tenant pursuant to this Article shall name as additional insured: Landlord, Landlord's managing agent of whom Landlord has notified Tenant, and any mortgagee of Landlord of whom Landlord has notified Tenant, and shall provide for the benefit of such holder or holders,that each shall receive prior written notice of suspension, cancellation, termination, modification, non renewal or lapse or material change of coverage: (a) in the case of non-payment of premium, at least ten (10) days before such action shall take effect; and (b) in all other cases, at least thirty (30) days before such action shall take effect. Each policy required to be maintained by Landlord hereunder shall provide that such insurance shall not be invalidated by any act or neglect of Landlord or Tenant or any owner of the Shopping Center. Within fifteen (15) days after Commencement Date, Tenant shall deliver to Landlord original or duplicate policies or certificates of the insurers evidencing all the insurance which is required to be maintained hereunder by Tenant certifying that all requirements set forth herein have been complied with, the naming of the insureds required hereunder and the obligation of each insurer to give the notice required hereunder) and, within ten (10) days prior to the expiration of any such insurance, other original or duplicate policies or certificates evidencing the renewal of such insurance. The specified limits of Tenant's insurance may be satisfied by any combination of primary or excess/umbrella liability insurance policies. Tenant shall have the right to self-insure for the insurance required above on the following terms and conditions: (a) "Self-insure" shall mean that Tenant is itself acting as though it were the insurance company providing the insurance required under the provisions hereof and Tenant shall pay any amounts due in lieu of insurance proceeds which would have been payable if the insurance policies had been carried, which amounts shall be treated as insurance proceeds for all purposes under this Lease. (b) All amounts which Tenant pays or is required to pay and all loss or damages resulting from risks for which Tenant has elected to self-insure shall be subject to the waiver of subrogation provisions of this Article and shall not limit Tenant's indemnification obligations set forth in this Article. (c) Tenant's right to self-insure and to continue to self-insure is conditioned upon and subject to Tenant and any guarantor of Tenant's obligation under this Lease having a tangible net worth or, if a reporting company under the Securities Exchange Act of 1934, a shareholder's equity, of at least Fifty Million Dollars ($50,000,000.00). BCF.Elgin.Lease.Final -23- 08/28/08 In the event that Tenant elects to self-insure and an event or claim occurs for which a defense and/or coverage would have been available from the insurance company, Tenant shall: (x) undertake the defense of any such claim, including a defense of Landlord, at Tenant's sole cost and expense, with counsel selected by Tenant and reasonably acceptable to Landlord; and (y) use its own funds to pay any claim or replace property or otherwise provide the funding which would have been available from insurance proceeds but for such election by Tenant to self-insure. MUTUAL RELEASE AND WAIVER OF SUBROGATION Landlord and Tenant shall each secure an appropriate clause, or an endorsement upon any policy of property insurance in force, covering the Shopping Center or any part thereof, including the Demised Premises, or any personal property, fixtures and equipment or leasehold improvements located therein or thereon, pursuant to which the respective insurance companies waive subrogation or permit the insured, prior to any loss, to agree with a third party to waive any claim it might have against that third party. The waiver of subrogation or permission for waiver of any claim hereinbefore referred to shall extend to the agents of each party and also extend to all other persons and entities holding under this Lease. In the event that either Landlord or Tenant shall be unable at any time to obtain one of the provisions referred to above in any of its insurance policies, Landlord or Tenant, as the case may be, shall promptly notify the other. Notwithstanding any provision of this Lease to the contrary, each party hereby releases the other and its members, shareholders, partners, agents, employees, and person and entities of like character (and in the case of Tenant, all other persons and entities occupying or using the Demised Premises in accordance with the terms of this Lease) with respect to any claim (including a claim for negligence) which it might otherwise have against the other party for loss, damages or destruction with respect to its property by fire or other casualty (including rental value or business interruption, as the case may be) occurring during the Term. BCF.E1gin.Lease.Fina1 -24- 08/28/08 TENANT'S INDEMNITY OF LANDLORD Tenant during the Term hereof shall indemnify, defend, and save Landlord harmless from and against any and all claims, demands, loss, damages and expenses, including legal fees, costs and charges whether for injuries to persons for loss of life, or damage to property, occurring within the Demised Premises, excepting,however, such claims and demands whether for injuries to persons or loss of life, or damage to property, arising out of acts or omissions of Landlord, its agents, employees or contractors. Tenant, at its own expense, shall defend all actions brought against Landlord, its agents or employees for which Tenant is responsible for indemnification hereunder, and if Tenant fails to do so, Landlord (at its option, but without being obligated to do so), at the cost and expense of Tenant, may defend such actions, and Tenant shall pay and discharge any and all judgments that arise therefrom. LANDLORD"S INDEMNITY OF TENANT Landlord during the Term hereof shall indemnify, defend, and save Tenant harmless from and against any and all claims, demands, losses, damages and expenses, including legal fees, costs and charges, whether for injuries to persons or loss of life, or damage to property, (i) occurring at the Demised Premises prior to delivery of full possession thereof with Landlord's Work completed (except if caused by any act or omission of Tenant, its agents, employees or contractors); (ii) occurring at the Demised Premises after delivery of possession thereof or during the Term if caused by any act or omission by Landlord or its agents, employees or contractors; (iii) arising out of any default by Landlord hereunder; or (iv) occurring in the Shopping Center (including in the Common Facilities), but outside the Demised Premises (except if caused by act or omission of Tenant, its agents, employees or contractors). Landlord, at its own expense, shall defend all actions brought against Tenant, its agents or employees for which Landlord is responsible for indemnification hereunder, and if Landlord fails to do so, Tenant (at its option, but without being obligated to do so) may, at the cost and expense of Landlord, defend such actions, and Landlord shall pay and discharge any and all judgments that arise therefrom. The provisions of this Article shall survive the expiration or earlier termination of this Lease. ARTICLE 19 REGULATIONS,ETC. Landlord agrees that if a governmental entity or any department or division thereof has or hereafter shall condemn: (a) the Demised Premises; (b) any Protected Parking Area; (c) any access roads to the Shopping Center; or (d) any public rights of way which are required to provide access to the Protected Parking Area to serve the Demised Premises or any part of the foregoing (a) through (d) as unsafe or as not in being in conformity with the laws and regulations relating to Tenant's original use, occupation or construction thereof, or has ordered or required or shall hereafter order or require any rebuilding, alteration or repair thereof or installations therein, Landlord, at Landlord's own cost and expense, immediately shall rebuild or make such BCF.Elgin.Lease.Final -25- 08/28/08 alterations, installations, and repairs as may be necessary to comply with such requirements. If by reason of such laws, orders or requirements or the work done by Landlord in connection therewith, Tenant is unable to utilize the Demised Premises or any Protected Parking Area or any access to public rights of way shall be materially impaired, all Minimum Rent and Additional Rent shall abate during the period of such deprivation or impairment; provided Tenant ceases to operate the Demised Premises for retail sales. If Tenant is deprived of use of part of the Demised Premises, but is operating in a portion of the Demised Premises, Minimum Rent and Additional Rent shall abate proportionately during the period of such deprivation. If, however, such condemnation, order or requirement as in this Article set forth shall be the result of Tenant's alterations, unlawful operations or a change of use of the Demised Premises by Tenant from that permitted hereunder, Tenant shall comply with such order or requirement within the Demised Premises at its own cost and expense and no abatement of Minimum Rent or Additional Rent shall be granted. In the Lease, "Legal Requirements" shall mean any and all applicable governmental requirements whether pursuant to statute, law, ordinance, regulation or the like promulgated by any governmental entity or an instrumentality thereof, or by an agency or department of any of the foregoing. Legal Requirements also include orders issued by any court of competent jurisdiction. ARTICLE 20 EMINENT DOMAIN In the event all of the Demised Premises shall be appropriated or taken under the power of eminent domain by any public or quasi-public authority, then, except as provided otherwise below, this Lease shall terminate and expire as of the date of such taking and Tenant shall thereupon be released from any further liability and obligations under this Lease. In the event ten percent (10%) or more of the Demised Premises or of the Common Areas, or any part of the Critical Areas, Critical Building Facilities or Protected Parking Areas, is appropriated or taken under the power of eminent domain, or if access to the Demised Premises or the Common Areas shall be appropriated or taken under the power of eminent domain, Tenant shall have the right to cancel and terminate this Lease as of the date of such taking upon giving Landlord written notice of such election not later than sixty (60) days after the receipt by Tenant from Landlord of written notice that the Demised Premises or Common Areas, as the case may be. In the event of such cancellation Tenant shall thereupon be released from any further liability and obligations under this Lease. Landlord, immediately after having knowledge or notice of any such appropriation or taking, shall give written notice to Tenant thereof. If this Lease is terminated in either manner hereinabove provided,the Minimum Rent and Additional Rent otherwise payable for the last month of Tenant's occupancy shall be prorated and Landlord agrees to refund to Tenant any rent paid in advance, and if at the time of such appropriation or taking, Tenant shall not have fully amortized expenditures which it may have made or erected on the Demised Premises, Landlord shall and hereby does assign to Tenant so BCF.Elgin.Lease.Final -26- 08/28/08 much of any award payable as a result of such appropriation or taking as equals the unamortized portion of Tenant's expenditures. The unamortized portion of Tenant's expenditures shall be deteiniined by multiplying such expenditures by a fraction, the numerator of which shall be the number of years of the Term of this Lease which shall not have expired at the time of such appropriation or taking and the denominator of which shall be the number of years of the Term of this Lease which shall not have expired at the time Tenant's expenditures are made. In addition, Landlord hereby grants to Tenant the right to any award or compensation for, to the extent permitted by law, including the right to apply for and to take account on behalf of Tenant, Tenant's economic value of this Lease (including any renewals), loss of good will and moving expenses. The "Term of this Lease" to which reference is herein made shall include the period of time remaining under this Lease in the current Term and any option to renew or extend, whether or not exercised, at the time to which reference is made. Tenant's right to receive compensation or damages for its fixtures or personal property shall not be affected in any manner hereby. If a portion of the Demised Premises or of the Common Areas or Building Facilities shall have been appropriated or taken and if this Lease shall continue, then in that event, Landlord agrees, at Landlord's cost and expense, to immediately restore the Building on the land remaining to a complete unit of like quality and character as existed prior to such appropriation or taking and to restore the remaining portion of the Common Areas or the Building Facilities, as the case may be, so as to provide access and services to the Demised Premises in a manner as nearly as possible to the condition thereof prior to such taking, rent shall abate proportionately, based upon the proportion of the Demised Premises not occupied by Tenant during the period of demolition and restoration, and thereafter the rent shall be reduced in the ratio that the ground floor area of the part of the Building taken which is included within the Demised Premises bears to the ground floor area of the Building which was included within the Demised Premises before such taking, or in the case of taking of Common Areas or Building Facilities, Minimum Rent and Additional Rent shall be abated in an equitable manner. Notwithstanding the foregoing, if, after or in connection with any condemnation: (a) Landlord; (b) any entity related to Landlord; (c) any person or entity having either or both a legal or beneficial ownership interest in Landlord; (d) any person or entity in which Landlord has either or both a legal or beneficial ownership interest; or (e) any person or entity controlled by or under common control with any of the preceding persons or entities [each of(b) through (e), a "Landlord Affiliate"] or an unaffiliated person or entity succeeding to Landlord's interest (e.g., acquiring an interest in the property consisting of any portion of the Shopping Center) ["Landlord Successor"] participates, or in any way directly or indirectly has an interest in the redevelopment of any portion of the Shopping Center, then Tenant(but not Landlord), shall have the right to terminate this Lease. If this Lease terminates as a matter of law notwithstanding the immediately preceding sentence, or if Tenant elects to terminate this Lease,then notwithstanding any provision of this Lease granting or reserving any portion of any award for Landlord, the BCF.Elgin.Lease.Final -27- 08/28/08 entire award with respect to this Lease (which shall include, without limitation, the economic value of this Lease including any renewals thereof), the Demised Premises, and any Tenant costs or losses shall be payable to Tenant. In the event this Lease terminates as hereinabove provided in this Article and within two (2) years following such termination of this Lease, Landlord or a Landlord Affiliate or a Landlord Successor: (m) restores the Shopping Center or the Building or erects any replacement thereof; (n) commences to rebuild; (o) files plans to rebuild or rebuilds on any portion of the land foiming part of the former Shopping Center, in whole or in part for retail uses, mixed use consisting partially of retail, Landlord or such Landlord Affiliate or such Landlord Successor, as the case may be, shall grant, and hereby does grant to Tenant, and Tenant hereby reserves the right to lease the Demised Premises or comparable premises at the Shopping Center for the balance of what would have been the remaining Term plus: (x) any unexercised extension rights set forth in this Lease; and (y) one (1) additional, optional extension term of five (5) years, on the same terms and conditions as set forth in this Lease, including without limitation, the square foot annual rental payable under this Lease (with an increase in Annual Minimum Rent per square foot in the additional extension term equal to the per square foot increase for the immediately preceding extension term). Any taking, sale or lease of the Shopping Center within such two (2) year period shall be subject to the rights granted to Tenant in this paragraph. Landlord or any Landlord Affiliate or Landlord Successor, as the case may be, shall notify Tenant when the Building is substantially restored or if retail premises are to be built and Tenant shall have ninety (90) days to notify Landlord or any such Landlord Affiliate or Landlord Successor of its election to lease the Demised Premises or comparable premises. None of Landlord, any Landlord Affiliate or Landlord Successor, as the case may be, shall be excused from performance hereunder by reason of the fact that the condemning authority requires the termination of the lease of any tenant in order to redevelop or improve the area being redeveloped if any retail use shall thereafter be permitted. It shall also be evidence of the bad faith of Landlord or of any Landlord Affiliate or Landlord Successor, as the case may be, if any other retail tenant who was a retail tenant at any time within Two (2) years prior to the condemnation is offered space in the redeveloped Shopping Center or in any area of which the former Shopping Center forms a part if Tenant is not also offered space in the redeveloped area on the terms herein provided. ARTICLE 21 TENANT'S DEFAULT IN RENT It is mutually agreed that in the event Tenant shall default in the payment of Minimum Rent herein reserved when due, Landlord shall forward notice in writing of such default to Tenant, and failure of Tenant to cure such default within fifteen(15) days after the date of receipt of such notice shall give Landlord the right, but not the obligation, to commence an action in any court of competent jurisdiction to terminate this Lease and re-enter and take possession of the Demised Premises. Notwithstanding the preceding, Landlord shall not exercise a right of termination and this Lease shall not terminate until Tenant shall fail to cure such default within thirty (30) days after the entry of a final order of a court of competent jurisdiction declaring BCF.Elgin.Lease.Final -28- 08/28/08 Tenant to be in default under this Lease. Landlord may terminate Tenant's right to possession of the Demised Premises without terminating this Lease and any order of court granting possession of the Demised Premises to Landlord that does not terminate the Lease shall not be deemed a termination under this Article 21. Upon any termination of this Lease by Landlord on account of a default by Tenant, Tenant's liability shall be limited to accrued and unpaid Rent and Additional Rent through the date of termination. ARTICLE 22 OTHER DEFAULTS BY TENANT It is mutually agreed that if Tenant shall be in default in performing any of the terms or provisions of this Lease other than the provision requiring the payment of Minimum Rent, and if Landlord shall give to Tenant notice in writing of such default, and if Tenant shall fail to cure such default within the thirty (30) days after the date of receipt of such notice, or if the default is of such a character as to require more than thirty(30) days, then if Tenant shall fail to commence to cure the default within the thirty (30) days and thereafter use reasonable diligence in curing such default, then and in any such events Landlord may cure such default for the account of and at the cost and expense of Tenant, and the sum so expended by Landlord plus interest at the Interest Rate shall be deemed to be "Additional Rent" and on demand shall be paid by Tenant on the day when Minimum Rent shall next become due and payable. If Tenant shall fail to observe, perform or comply with any of the other covenants, conditions, duties or obligations set forth in this Lease on Tenant's part to be observed, performed, or complied with and such failure is a non-monetary failure which is not capable of being turned into a monetary failure, Landlord shall have the right,but not the obligation, to seek either or both a declaratory judgment or injunctive relief only with respect to such failure, but Landlord shall not commence any actions for a declaratory judgment or an injunction with respect to any such failure by Tenant if Tenant had commenced to cure same within such period and proceeds with reasonable diligence in curing such default. In addition, subject to the provisions of this Article 22, Landlord may pursue any other remedy provided for at law under the statutes of the State of Illinois in regards to Tenant's default. Landlord's remedies shall be deemed cumulative and election of one remedy by Landlord shall not preclude the right to resort to another available remedy. Notwithstanding the foregoing should a dispute arise between the parties with respect to any sum payable hereunder (other than Minimum Rent), the dispute shall be resolved by arbitration initiated by either party before the American Arbitration Association at its offices in Chicago, Illinois, and this Lease shall not be terminated by either party except upon failure to pay a final award rendered in such arbitration within thirty (30) days after receipt by the liable party of notice of such rendering. Notwithstanding anything to the contrary herein contained, neither Tenant's nor any guarantor's liability hereunder, if any, shall exceed an aggregate sum computed by adding: (a) any unpaid sums then due under this Lease from Tenant prior to the existence of a default: PLUS (b) the greater of: (i) unpaid Minimum Rent, Percentage Rent and other charges payable BCF.Elgin.Lease.Final -29- 08/28/08 hereunder by Tenant under this Lease for the first one hundred twenty (120) months following the Rent Commencement Date, or (ii) six (6) months' accruals of Minimum Rent, Percentage Rent and other charges payable hereunder preceding such default. Landlord shall not be entitled to recover from Tenant or from any guarantor of Tenant any consequential damages nor shall Landlord be entitled to accelerate rents payable under this Lease (whether permitted by statute or otherwise). ARTICLE 23 TRANSFER OF TITLE It is understood and agreed that in the event of any change in or transfer of title of Landlord in or to the Demised Premises or any part thereof, whether voluntary or involuntary, or by the act of Landlord or by the operation of law, Tenant shall be under no obligation to pay to the transferee Rent, Additional Rent or any other amount thereafter accruing until: (x)thirty (30) days after being notified in writing of such change in title; (y) the transferee, in a recordable instrument, assumes performance of all obligations of Landlord under this Lease; and (z) Tenant is given satisfactory proof of the foregoing. The withholding of such Rent, Additional rent or other amounts in the meantime shall not be deemed a default on the part of Tenant; provided, however, that all amounts withheld on account of the preceding sentence shall be paid to such transferee after the satisfaction of the conditions set forth in said sentence. In the alternative, Tenant may, at its option, continue the payment of Rent, Additional rent and other amounts accruing under this Lease to the Landlord known to Tenant immediately prior to such transfer; all amounts thus paid shall be credited to Tenant against obligations accruing under this Lease; and it shall be the transferor Landlord's responsibility to pay over any amounts due to its transferee. Under no circumstance shall Landlord be permitted to transfer its interest in the Demised Premises without simultaneously conveying its entire interest in the Shopping Center to the same person or entity. Notwithstanding the preceding, Landlord may convey pad sites identified on Exhibit "A" (excluding any Common Facilities) without breach of this provision provided such conveyance does not interfere with the use of, access to, or visibility of the Demised Premises or Protected Areas or result in an increase in Common Area Maintenance expense to Tenant, and such conveyance shall be subject to the provisions of this Lease. In all events, Landlord shall protect and preserve Tenant's rights under this Lease for the entire Term (including any Extended Term) including, without limitation, rights of ingress, egress, access, parking, exclusive rights and consent rights. In connection therewith, Landlord shall enter into appropriate reciprocal easement agreements, restrictive covenants and/or other agreements for the benefit of Tenant and other tenants and occupants of the Shopping Center, as the Shopping Center is constituted on the date of this Lease, and their respective successors, assigns, officers, directors, principals, employees, invitees, customers, contractors and agents. BCF.Elgin.Lease.Final -30- 08/28/08 ARTICLE 24 WAIVER Landlord agrees that any rental payments or other payments becoming due to Landlord pursuant to the provisions of this Lease or any extensions thereof, which remain unpaid and for which no claim has been made in writing by Landlord to Tenant within two (2) years after the date when such payment is due, shall be deemed and hereby are waived by Landlord. ARTICLE 25 NOTICES Wherever in this Lease it shall be required or permitted that notice or demand be given or served by either party to this Lease to or on the other, such notice or demand shall be given or served and shall not be deemed to have been duly given or served unless in writing and forwarded: (a) by certified or registered mail, return receipt requested; or (b) by nationally recognized overnight courier against signed receipt addressed to the party being noticed at the address first set forth above. Notices to Tenant shall be addressed to the attention of the Lease Administration Department with a copy to Legal Department at Tenant's address. Such addresses may be changed from time to time by either party by serving notices as above provided. Notices shall be deemed given on the date received or delivery refused. Notices of change of address shall not be effective until twenty (20) days following receipt. Except with respect to the managing agent designated below, Landlord shall give to Tenant written notice ("Designation Notice") designating its managing agent to which notices are to be sent and rents paid. If Tenant receives any notice ("New Notice") including any direction where to deliver: (i) payments of rent; or (ii) notices to Landlord, from any party purporting to be Landlord's managing agent, which is not accompanied by a Designation Notice signed by Landlord, Tenant may deliver to Landlord a copy of the New Notice requesting that Landlord confirm in a Designation Notice Landlord's managing agent. If Landlord does not send to Tenant a Designation Notice within ten (10) days of receipt of Tenant's request, Tenant shall be entitled to rely on the New Notice as if such notice had been delivered by Landlord. Until Tenant either receives the Designation Notice with respect to the New Notice or such ten (10) day period has expired, Tenant may continue to pay rent and deliver notices to Landlord or Landlord's prior managing agent, as the case may be, any payments made to Landlord or the prior agent will be credited against any payments due under the Lease. After Landlord has confirmed Landlord's managing agent in the Designation Notice or such ten (10) day period has expired, all rents, commencing twenty (20) days following: (x) Tenant's receipt of the Designation Notice; or (y) the expiration of such ten (10) day period will be sent to the address of the agent in the New Notice. In addition, Tenant is entitled to rely on any signed or unsigned written communication purporting to come from Landlord or a managing agent as if duly signed by Landlord so long as Tenant does not have actual notice that the communication is fraudulent. BCF.E1gin.Lease,Final -31 - 08/28/08 Landlord hereby designates Accretion Management Company, c/o Schoen & Co., with offices at 125 Fairfield Way, #260, Bloomingdale, IL, telephone number 630-980-4121, facsimile number 630-980-3362 as its managing agent. ARTICLE 26 FULL PERFORMANCE This Lease (including any short form Lease or notice of Lease prepared for recording purposes) is and shall be considered to be the only agreement between the parties hereto; all negotiations and oral agreements acceptable to both parties are included herein. ARTICLE 27 GENERAL PROVISIONS Landlord agrees to pay all fees and commissions for bringing the execution and delivery of this Lease, and agrees to indemnify, defend and save Tenant harmless of and from any and all claims for such fees and commissions. Each of Tenant and Landlord represents and warrants to each other that it has not dealt with any broker in connection with this Lease other than Gershman Brown & Associates, Inc. ("Broker"). Landlord shall pay any fee or commission due Broker pursuant to separate agreement between Landlord and Broker. It is further agreed between the parties hereto that the signing of this agreement by Landlord does not constitute a complete transaction until such time as this Lease shall have been executed by Tenant's proper officers and delivered to Landlord. The captions of this Lease are for convenience only and are not a part of this Lease and do not in any way limit or amplify the terms and provisions of this Lease. As used in this Lease, the term "Additional Rent" shall refer to all sums of money which shall become due from and be payable by Tenant to Landlord under this Lease other than Minimum Rent and Percentage Rent. As used in this Lease, whenever it is provided that the Demised Premises or the Shopping Center, or any portion thereof, is delivered or accepted in "As Is" condition, the same shall exclude conditions that are concealed or not readily discoverable upon a reasonable inspection or any condition that constitutes an environmental condition (unless Tenant specifically accepts the risk of a specified environmental condition). In no event shall acceptance of the Demised Premises or the Shopping Center in "As Is" condition be deemed to relieve Landlord of any obligation of construction, maintenance or repair which would normally arise pursuant to the provisions of this Lease, but the same is only intended to mean Landlord shall not be obligated to perform any work with respect thereto as a condition of the delivery thereof. Wherever the word "Building" is used in this Lease it is intended that the same shall include any building, buildings, structure, and structures which are now on or which may BCF.Elgin.Lease.Final -32- 08/28/08 hereafter be erected on the Demised Premises or a structure of which the Demised Premises is a part. If more than one person, corporation or other entity is named as Landlord in this Lease and executes the same as such, then and in such event, the word "Landlord" wherever used in this Lease, is intended to refer to all such persons, corporations or other entities, and the liability of such persons, corporations or other entities for compliance with and performance of all the terms, covenants, and provisions of this Lease shall be joint and several. In addition, the teinis "Landlord" and "Tenant" shall include their respective successors and assigns who at the time of reference shall be the landlord or tenant, as the case may be,under this Lease. As used in this Lease, "retail stores" shall mean bona fide tenants, of a character consistent with a first class shopping center, whose businesses consist principally of the sale of goods or the purveying of services (principally to household consumers as contrasted with business consumers) at retail, and specifically shall exclude the uses set forth in Exhibit "F" hereto and all other establishments which purvey goods or services which are offensive, obnoxious, illegal or not consistent with a first class shopping center. Landlord and Tenant agree that all provisions hereof are to be construed as covenants and agreements as though the words importing such covenants and agreements were used in each separate paragraph hereof, and that all of the provisions hereof shall bind and inure to the benefit of the parties hereto, and their respective heirs, legal representatives, successors, and assigns. Landlord's and Tenant's respective indemnity obligations and any other provision of this Lease which by its express terms applies after termination (including, without limitation, this sentence) shall survive in accordance with its terms any termination of this Lease. If any provision(s) or portion thereof of this Lease held to be void or unenforceable by a court of competent jurisdiction, the remaining provisions hereof(and the remaining portion(s) of any provision held void or unenforceable in part) shall remain in full force and effect, and, in such case, the provisions hereof shall be interpreted or reformed by the court so as to nearly as possible effectuate the intent of the parties. The marginal notes used as headings for the various provisions of this Lease are used only as a matter of convenience for reference and are not to be considered a part of this Lease or used in determining the intent of the parties to this Lease. Nothing contained in this Lease shall be deemed or construed by Landlord or Tenant, nor by any third party, as creating a relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that no provision contained in this Lease, nor any acts of the parties hereto, shall be deemed to create any relationship between the parties hereto other than that of landlord and tenant. BCF.Elgin.Lease.Final -33- 08/28/08 Captions are used in this Lease agreement solely for convenience of reference and shall neither be considered a part of this Lease agreement nor affect the construction to be given any of the provisions hereon. This Lease may be executed in any number of original counterparts, all of which evidence only one agreement and only one full and complete copy of which need be produced for any purpose. A facsimile of a signature will have the same legal effect as an originally drawn signature. This Lease agreement shall not be interpreted or construed more strictly against one party or the other merely by virtue of the fact that it was drafted by counsel to Landlord or Tenant; it being hereby acknowledged and agreed that Landlord and Tenant have both contributed materially and substantially to the negotiations and drafting leading to this Lease. The time for the performance of any act required to be done by either Landlord or Tenant shall be extended by a period equal to any delay caused by or resulting from act of God, war, terrorism, civil commotion, fire, casualty, labor difficulties, shortages of labor or materials or equipment, governmental regulation, a restraint of law (e.g., injunctions, court or administrative orders or a legal moratorium imposed by a governmental authority), act or default of the other party or other causes beyond such party's reasonable control (which shall not, however, include the availability of funds), whether such time be designated by a fixed date, a fixed time or otherwise. Tenant shall have the right to use compactors and dumpsters at the location shown on Exhibit "A." ARTICLE 28 LANDLORD'S PRE-OPENING CONSTRUCTION OBLIGATIONS AND CONSTRUCTION ALLOWANCE Landlord agrees to provide Tenant with plans and specifications for Landlord's Work for Tenant's review and written approval incorporating the 9-15-2007 Burlington prototypical plans and specifications previously provided to Landlord, along with the Building Requirements and the Site Specific Control Drawings both as described on Exhibit "C" and the additional work described below (collectively "Landlord's Work"). Landlord, at its sole cost and expense and prior to delivery of the Demised Premises to Tenant, shall complete all of the work needed to adapt the Demised Premises for use as a prototypical Burlington Coat Factory store (other than movable trade fixtures and merchandise) in accordance with the plans and specifications prepared by Landlord and approved by Tenant in writing. Landlord's Work shall be completed to Tenant's reasonable satisfaction. Landlord's Work shall also include, without limitation: (a) the removal of all Hazardous Materials from the Building in accordance with all Legal Requirements (as defined in Article 19) and Landlord shall deliver to BCF.Elgin.Lease.Final -34- 08/28/08 Tenant evidence of Landlord's compliance with the Legal Requirements for the disposal of any such substances and that the Building is free of the same; (b) the installation of a HVAC system providing not less than one ton of air- conditioning for each 350 square feet of Demised Premises in accordance with Tenant's plans and specifications, and assign to Tenant warranties of not less than five (5) years for any new HVAC units. The HVAC system shall be delivered in good operating condition; (c) the installation of separate meters for all meterable utilities serving the Demised Premises including, without limitation, electric, gas, water, and waste water (if billing therefor is based upon a meter reading); (d) delivery of the Demised Premises with 3- phase, 277/480 volt electric service of not less than 1,600 ampere capacity, plumbing, sprinkler, water, waste disposal, and other systems exclusively serving the Demised Premises in good operating condition and in compliance with all Legal Requirements; (e) delivering the Demised Premises with the roof watertight and free from leaks; (f) the Demised Premises being in broom clean condition with all trade fixtures, trade equipment, and other personal property of any prior occupant or user removed; and (g) delivering the Demised Premises in compliance with all Legal Requirements (including, without limitation, being free of all applicable building code violations and being in compliance with the Americans with Disabilities Act). (h) delivering, newly seal coated and striped in accordance with local Code, the parking areas servicing the Demised Premises (which shall include, at a minimum, the areas directly in front and in back of the Demised Premises from the exterior walls of the Demised Premises to the boundary of the Shopping Center and any peripheral parking areas which naturally, or commonly may be thought to, service the Demised Premises). (i) removal of the overhang over the front of the Building and modifying the front facade as shown on plans approved by Tenant. Within five(5) days after Landlord commences Landlord's Work, Landlord shall provide Tenant written notice of the commencement thereof. Landlord shall give written notice to Tenant ("Delivery Notice") at least sixty(60) days prior to the January 15, 2009 delivery date and at least one hundred and fifty(150) days prior the date of intended delivery to Tenant of possession of the Demised Premises if delivery will be after January 15, 2009. BCF Elgin Lease 6.doc -35- 08/19/08 MC If Landlord shall fail to timely satisfy the requirements for delivery of possession of the Demised Premises on or prior to the date of delivery set forth in the Delivery Notice, Tenant will sustain substantial additional costs and expenses, including, without limitation, storage costs for Tenant's personal property, loss of value affecting inventory, costs associated with employees during such period of delay, additional advertising and promotional costs and other store opening opportunities, and delays in expansion plans in affiliated markets. Landlord and Tenant agree that Tenant will certainly incur such additional costs and expenses, but that it would be impracticable or extremely difficult to ascertain their actual amount. Consequently, Landlord and Tenant agree that a reasonable estimate of such additional costs and expenses is Five Thousand Dollars ($5,000.00) multiplied by the number of days which accrue beginning with the date of delivery set forth in the Delivery Notice and the date Landlord actually delivers the Demised Premises to Tenant or the date Tenant terminates this Lease, whichever is earlier. That amount shall be payable by Landlord to Tenant as agreed-upon liquidated damages (and not as a penalty) and Tenant, at its election, shall be entitled to offset such liquidated damages against any amounts then owing or in the future owing to Landlord by Tenant plus interest at the Interest Rate, including, inter alia, against future installments of Minimum Rent, Additional Rent, and Percentage Rent becoming due hereunder until Tenant offsets the entire amount of liquidated damages. Landlord and Tenant shall conduct a punch list inspection of the Demised Premises on a mutually agreed upon date approximately thirty (30) days prior to the date set forth in the Delivery Notice for delivery of the Demised Premises in order to inspect the Demised Premises together and to produce a punch list of remaining items to be completed by Landlord. If the punch list(s) generated at the time of the inspections reflect(s) that any element of Landlord's Work is not substantially complete, Landlord shall diligently and promptly pursue substantial completion of its obligations, and Landlord and Tenant will again together inspect Landlord's Work, upon reasonable notice from Landlord, and together they shall produce the final punch list(s). Tenant will not be required to finally accept the Demised Premises until Landlord's Work, as required pursuant to this Lease, is satisfactorily complete. Landlord shall act diligently and promptly to complete all final punch list items. In the event that Landlord fails to diligently complete the punch list items to the reasonable satisfaction of Tenant, Tenant may, upon five (5) days written notice to Landlord, cause such punch list items to be corrected ("Punch List Correction"). In the event Landlord fails to pay Tenant for expenses incurred due to the Punch List Correction within thirty (30) days following Tenant's written demand therefor, which shall be accompanied by reasonable documentation substantiating such expenses, Tenant shall be entitled to offset such expenses, together with interest thereon at the Interest Rate, against any amounts then owing or in the future owing to Landlord by Tenant, including, inter alia, future installments of Minimum Rent,Additional Rent, and Percentage Rent becoming due hereunder. Notwithstanding the acceptance of delivery of the Demised Premises by Tenant, Landlord agrees to correct any defect in Landlord's Work provided Tenant gives notice of such defect to Landlord prior to the first anniversary of the Rent Commencement Date. This time limitation shall not apply to defects in Landlord's Work which Tenant did not discover and which would not have been discoverable upon a diligent inspection by Tenant prior to the expiration of such time period. BCF.E1gin.Lease.Final -36- 08/28/08 Landlord shall pay Tenant a "Total Allowance" in an amount equal to Ten Dollars ($10.00) multiplied by the floor area of the Demised Premises, in square feet, as measured on the Rent Commencement Date. Not later than thirty (30) days after Tenant opens a fully fixtured, staffed, and stocked typical Burlington Coat Factory store for business with the retail public at the Demised Premises, and following Tenant's delivery to Landlord of lien waivers or releases from each contractor performing work or providing labor or materials for the Total Allowance exceeding $25,000.00 and for which a contractor or material supplier could file a lien against the Shopping Center if not paid. In the event any required lien waiver is not secured, then the Total Allowance less the amount due any such contractor performing work or providing materials in excess of$25,000.00, shall be paid to Tenant, which withheld sum shall be paid to Tenant within twenty (20) days following Tenant's providing to Landlord the lien waiver. Interest shall accrue on any sums not paid when due until paid at the Interest Rate. In the event of the filing of a lien which has not been discharged or bonded, then notwithstanding the foregoing, Landlord shall pay the Total Allowance less a holdback of 110% of the amount of any unpaid lien which is not bonded or discharged. If Tenant pays or resolves a payment dispute as to unpaid amounts, and provides proof of such payment or resolution reasonably satisfactory to Landlord, then Landlord shall pay the withheld Total Allowance to Tenant within twenty (20) days following the payment and discharging of any lien and Tenant providing proof thereof. Should Landlord fail to pay the Total Allowance to Tenant within the thirty (30) day or twenty (20) day periods, as the case may be, Tenant may deduct from the monthly Minimum Rent, Additional Rent or Percentage Rent (if applicable) otherwise due and payable to Landlord, all that which is due and payable to Tenant, plus interest accruing at the Interest Rate from the time the payment was due until such time as Tenant has been fully paid. ARTICLE 29 OPTION FOR EXTENDED TERMS Landlord agrees that Tenant shall have and is hereby granted four (4) successive options to extend the Term of this Lease for five (5) years on each such option, such extended Terms to begin, respectively, upon the expiration of the Initial Term or extended Term of this Lease and, except as in this Article otherwise provided, all the terms, covenants and provisions of this Lease shall apply to each such extended Term. Each such option shall automatically become exercised and effective as the same shall accrue unless Tenant gives Landlord notice in writing of its intention not to exercise such option at least six (6) months prior to the expiration of the Initial Term or any extended Term of this Lease. If an option to extend the Term of this Lease is exercised as provided herein, the annual per square foot Minimum Rent for each Lease Year of the extended Term shall be the amounts set forth below, and, except as otherwise herein provided, all of the terms and provisions of this Lease shall apply to the optional extended Terms. BCF.Elgin.Lease.Final -37- 08/28/08 Option Period Annual Rent per Sq. Ft. First $10.50 Second $11.00 Third $11.50 Fourth $12.00 ARTICLE 30 CERTAIN CONDITIONS Landlord agrees at Landlord's expense: (a) to erect and complete or alter and refurbish the Demised Premises and the Shopping Center, if applicable, in accordance with Article 28, hereinabove, in the location referred to in Exhibit "A" hereof, in accordance with plans and specifications prepared by Landlord's registered or licensed architect or engineer, as the case may be, at Landlord's expense and in accordance with Tenant's prototype plans and approved by Tenant; (b) to maintain within the Shopping Center certain parking areas (exclusive of basement or underground parking areas) to accommodate not less than four and one-half(4.5) automobiles for each one thousand (1,000) square feet of leasable floor area in the buildings on the Shopping Center; and (c) to maintain entrances and exits from and to public streets or highways, all to be located in the areas designated for such purpose on Exhibit "A" ("Common Areas"). All Common Areas, mall areas, service courts, service drives, sidewalks, access roads, curb cuts, parking areas, sign pylons and monuments and all improvements comprising or benefiting the Shopping Center, all of which are shown on Exhibit "A", are herein sometimes called the "Common Facilities." All of the Common Facilities shall be maintained in a good workerlike manner using first quality materials with paving of concrete or asphalt, so that the same will be adequate and serviceable in all respects for the exclusive (where provided herein) use by Tenant, (otherwise for the non-exclusive use by Tenant) for the purposes designated in Exhibit "A" and elsewhere in this Lease. Landlord agrees to comply with the preceding provisions of this Article with diligence on or before the Commencement Date and thereafter to maintain the same in such manner that upon completion and throughout the Term, they will not vary from the same as set forth in Exhibit "A," and upon compliance therewith to make delivery of the Demised Premises to Tenant in accordance with the provisions of this Lease. Throughout the Term, including any extension term, Landlord shall maintain not less than the greater of that existing on the Effective Date or the level of lighting per square foot of Common Area at a level five (5) feet above the ground required by local Code, but without regard to, or application, of any variance or "grandfather" provision. At any time, and from time to time before or during the Tenn, but not more frequently than twice in any calendar year, Landlord, at no cost to Tenant, and upon written request from Tenant, shall furnish Tenant with a then up-to-date copy of a site plan for the Shopping Center, showing, in reasonable detail, at least the following features: curb cuts, drive lanes, parking BCF.Elgin.Lease.Final -38- 08/28/08 conditions, Landlord shall, within fifteen (15) days written request from Tenant (such request to include all applicable receipts and/or paid invoices for work perfoinied by Tenant), reimburse Tenant its costs and expenses plus interest thereon at the Interest Rate accruing from the date incurred by Tenant until paid. In the event Landlord fails to reimburse Tenant within such time period, Tenant shall be entitled to deduct its costs and expenses plus interest at the Interest Rate as aforesaid from Minimum Rent, Percentage Rent and Additional Rent. In the event that by ninety (90) days after delivery of possession of the Demised Premises by Landlord to Tenant in accordance with the provisions of this Lease, despite its diligent efforts, Tenant is unable to obtain any permit required by law to make alterations as it deems necessary to operate initially as a typical Burlington Coat Factory store in accordance with this Lease, or if Landlord is not successful in obtaining any such permit, Tenant shall have the option to roll over the Rent Commencement Date to the earlier of: (x) the March 1 or September 1 next following the date which is one hundred twenty (120) days after the date Tenant obtains such permits; or (y) the date the Tenant "grand opens." Landlord agrees to cooperate with Tenant, including by permitting Tenant to make applications or bring proceedings in the name of Landlord, if necessary to obtain any such permit, in order to allow Tenant to obtain any such permit in the shortest time possible. Tenant shall notify Landlord if Tenant is denied any permit. Landlord shall then have the right to seek to obtain any such permit. ARTICLE 31 SUBORDINATION AND NONDISTURBANCE Tenant agrees that this Lease shall be subordinate to any mortgages, deeds of trust, or underlying leases now or hereafter affecting the real property of which the Demised Premises are part; provided, however, the subordination is conditioned upon the delivery to Tenant of a written agreement of the holder of such mortgage, deed of trust or underlying lease, in form and substance reasonably satisfactory to Tenant and otherwise in proper form for recording, providing that so long as this Lease shall be in full force and effect, Tenant's rights, use and occupancy shall not be disturbed, Tenant shall not be named or joined as a party or otherwise in any suit, action or proceeding for the foreclosure of the mortgage or the termination of the underlying lease or to enforce any rights under the underlying lease or the mortgage or the bond or note or other obligation secured thereby and that the holder thereof or lessor thereunder, as the case may be, shall apply all insurance and condemnation proceeds to the restoration of the Demised Premises as set forth in Articles 17 and 20. Landlord covenants and agrees to procure and deliver to Tenant such non-disturbance agreement from existing mortgagees, deed of trust holders, and/or underlying lessors upon the execution of this Lease, and from a holder of a new mortgage, deed of trust or underlying lease to which this Lease shall become subordinate, within thirty (30) days from the effective date of any of the foregoing instruments. In the event that Landlord fails to deliver to Tenant any non-disturbance agreement required under the provisions of this Article, Tenant shall have the right in addition to and not in lieu of, any other right or remedy available under law or equity, to terminate this Lease upon notice given to Landlord at any time prior to delivery of such non-disturbance agreement. Upon any such termination, Tenant shall be released from any further liability and obligations under this Lease. In addition all rents payable under this Lease shall abate from the date any such non-disturbance was to have BCF.Elgin.Lease.Final -40- 08/28/08 been delivered to Tenant through the date of delivery of any such instrument, which abated rents shall not be recoverable by Landlord. In the event Tenant executes and delivers a non-disturbance agreement to the holder of any mortgage or underlying lease which requires the payment of Tenant's rents to any such holder upon notice to Tenant, then following receipt of such notice, Tenant shall be released from any liability for any such rents paid to such holder or other person pursuant to written direction from such holder, and all payments shall be credited to Tenant under the Lease as if Tenant had made such payments directly to Landlord. In addition to the foregoing remedies, in the event this Lease is terminated, Tenant shall have: (a) the right to recover from Landlord the unamortized value of leasehold improvements made by Tenant; and (b) any other rights or remedies available to Tenant at law or in equity, including injunctive relief. Tenant's rights and Landlord's obligations under this Article shall survive the termination of this Lease. Prior to any such termination, Tenant shall notify Landlord in writing of the unamortized value of its leasehold improvements. ARTICLE 32 USE OF COMMON FACILITIES Landlord hereby grants to Tenant, its customers, employees, and visitors an easement throughout the Term hereof to use, in common with other tenants of the Shopping Center, their customers, employees and visitors, all of the Common Facilities and in addition thereto any similar future facilities, including but not limiting the same to the use of all the mall areas, streets, service courts, service drives and sidewalks, if any, for ingress and egress to and from the Demised Premises and the public streets or highways shown on Exhibit "A" and the use thereof for parking and deliveries; all of the Common Facilities being situated as shown in Exhibit "A" and upon land described in Exhibit "A-1" attached hereto. Landlord agrees at Landlord's expense to adequately maintain throughout the Term hereof, all of the Common Facilities in good, safe and useable condition, lighted as required by local ordinance or law, free and clear of ice, snow and debris, and without any charge or cost for such use by Tenant except as expressly provided herein. ARTICLE 33 RESTRICTIVE COVENANTS So long as Tenant, its successors, assigns or subtenants lease, use or occupy any space in the Shopping Center, Landlord covenants that notwithstanding the amendment, cancellation, termination or expiration of the herein Lease: (a) no covenant or agreement made by Landlord or any predecessor in title with any other person or entity restricting the use or occupancy of all or part of the Shopping Center shall prevent Tenant from using the Demised Premises for retail purposes, except as set forth in Exhibit "B" hereof; (b) no building or structure shall be demolished nor shall any building or structure be hereafter erected or maintained on any part of the Shopping Center except in the area designated `Building Area" or "Future Building Area", if any, on Exhibit "A" hereof; (c) no portion of any Protected Parking Area may be modified BCF.Elgin.Lease.Final -41 - 08/28/08 (including by way any change in the configuration of the parking stalls) without Tenant's consent, which consent Tenant may grant or withhold in its sole and absolute discretion; (d) no places of public assembly (e.g., movie theaters, bowling alleys, supermarkets, gymnasiums, fitness centers, and the like) shall be erected or maintained in any part of the Shopping Center, except as shown on Exhibit "A"; (e) no restaurant or other premises for on or off premises food or beverage consumption may be erected or maintained within 150 feet of any part of the Demised Premises except as shown on Exhibit "A", however Landlord shall have the right to lease ten thousand (10,000) square feet to a children's food and entertainment facility similar in operation to a Chuck E. Cheese's in the premises shown on Exhibit "A" as "Food/Entertainment"; (f) no building, store or premises in the Shopping Center shall be leased, used or occupied as other than a "retail store" as such term is defined in Article 27 hereof; and (g) no building in the Shopping Center shall be leased, used or occupied by an infant furniture and accessories store or as a bath and linen store or for the sale of the items listed in Exhibit "D-1" and "D-2." If Landlord violates any of its covenants above, and such violation continues for a period of five (5) business days following written notice from Tenant to Landlord, Tenant shall have the right to seek all remedies available at law or in equity, and Tenant shall have the right to deduct if such violation continues for ten (10) days Two Thousand Dollars ($2,000.00) per day from Minimum Rent, for each day of such violation, in addition to Tenant's right to seek other remedies available at law or in equity (it being understood that any amount which Tenant may realize thereby shall constitute a partial reimbursement to Tenant for costs incurred and sales lost by Tenant in connection with the interference with Tenant's business). Landlord and Tenant agree that Tenant would certainly be damaged by reason of Landlord's violation of the above- referenced covenants, but that it would be impractical or extremely difficult to ascertain the exact amount by which Tenant would be damaged. Consequently, Landlord and Tenant agree that the amount above is a reasonable estimate of the amount of Tenant's damages and shall constitute partial liquidated damages and not a penalty. ARTICLE 34 TENANT'S RIGHT TO OPERATE Landlord recognizes that Tenant's parent operates a chain of stores on a national basis in a highly competitive business and acknowledges that the amount of sales which Tenant may make in the Demised Premises is not predictable and will necessarily depend not only on business conditions, but upon many other factors and unforeseeable decisions which Tenant's parent reserves the right to make in the best interest of its entire business. Tenant reserves the right to lawfully operate its business in the Demised Premises as it sees fit for any lawful retail purpose other than for the uses listed on Exhibit "F". Further Tenant shall not operate its business at the Demised Premises in a manner that would cause Landlord to be in violation of those certain rights Landlord has granted other tenants at the Shopping Center to the extent that such rights ("Other Tenant Exclusives") are listed on Exhibit "H" are for so long as such tenants are operating for such purposes or the lease or exclusive remains in effect or in violation of the REA. Landlord shall have no express or implied right to BCF.Elgin.Lease.Final -42- 08/28/08 interfere in the operation of Tenant's business or to complain about or hold Tenant liable for the manner in which Tenant's business is operated. Without limiting the generality of the foregoing, Tenant shall have the right to determine how and during what hours, if any, its store in the Demised Premises is to be operated and what merchandise and services are to be offered for sale therein, and the further right to operate stores in other locations which are in competition with such store. Tenant may place and operate vending machines at such locations as it may desire within the Demised Premises; provided that it complies with all laws and ordinances, including licensing, associated therewith. Tenant may hold occasional or seasonal outdoor sales on and along the sidewalks outside its Demised Premises. Tenant shall not be obligated to join any merchants association or promotional fund. Further, Landlord acknowledges that notwithstanding anything contained in this Lease to the contrary, Tenant has not and shall not make any representation or covenant, express or implied, that it will achieve any amount of sales from the Demised Premises, or that it will open for business or continuously operate its or any business in the Demised Premises. Landlord acknowledges that Tenant was unwilling to enter into the Lease except for the provisions of this Article and Landlord is willing to accept the business risks involved, including, but not limited to, loss or diminution of Percentage Rent. The relationship of the parties hereto shall be that of Landlord and Tenant only, and not partners or joint venturers. Notwithstanding anything to the contrary in this Article, Tenant agrees to initially open for business as a typical Burlington Coat Factory store (similar to those currently operated in Illinois), and operate, for at least one (1) day, within six (6) months after the Rent Commencement Date (subject to delay or damage by fire or similar casualty, by condemnation or by reason of factors beyond the reasonable control of Tenant). ARTICLE 35 REAL PROPERTY TAXES Throughout the Term of this Lease, Landlord shall pay before same become delinquent all real property taxes upon the Shopping Center and upon all the improvements thereon at any time erected (collectively, "Taxes"). Landlord covenants and warrants that as of the Rent Commencement Date all Taxes upon the Demised Premises and the Shopping Center, except current taxes not yet delinquent, shall have been paid in full. From and after the first (1st) day of the calendar year immediately following the "Tax Base Year" (as hereafter defined), Tenant agrees to pay to Landlord, as Additional Rent due hereunder, its pro rata share of the increase, if any, of Taxes assessed against the Shopping Center for that and each subsequent calendar year (or portion thereof) which occurs entirely after the Rent Commencement Date and within the Term of this Lease over real estate Taxes assessed against the Shopping Center for the Tax Base Year. For the purposes hereof, the "Tax Base Year" shall be the later of: (i) the first full calendar year to occur entirely within the Term of this Lease; or (ii) the first full calendar year that occurs entirely within the Term of this Lease after the Shopping Center is assessed as a completed center and any tax abatement has expired. (It is understood that the Tax Base Year may be comprised of portions of separate tax fiscal years BCF.Elgin.Lease.Final -43- 08/28/08 fiscal years falling within such first full calendar year occurring entirely within the Term of this Lease.) The pro rata share shall be determined by multiplying such increase in Taxes by a fraction, the numerator of which shall be the total floor area of the Demised Premises and the denominator of which shall be the total floor area of all the buildings on the Shopping Center, but excluding buildings not included in the assessment upon which such Taxes were based. Following the first Lease Year after the Tax Base Year, (beginning with the second Lease Year) Tenant shall pay such pro rata share of increase, if any, in twelve equal monthly installments during each calendar year(or portion thereof) which occurs within the Term of this Lease. At the outset of the Lease, and at the time of any increase or reduction in building area in the Shopping Center or the Demised Premises, Landlord shall deliver to Tenant a certification by a registered architect or engineer of the accuracy of the new figures. For the first Lease Year following the Tax Base Year, Tenant shall pay such pro rata share within sixty (60) days after receipt of the above-mentioned statement together with a paid tax bill (receipted by the applicable taxing authority) from Landlord. Notwithstanding the preceding, if any increase in Taxes assessed against the Shopping Center is due to an alteration or improvement benefiting exclusively premises within the Shopping Center other than the Demised Premises or the Common Areas, the entire increase shall be borne by the premises so benefiting and no portion thereof shall be payable by Tenant. In addition, any increase in Taxes shall not include any increase due to the termination of any tax abatement, tax incentive financing or other similar programs or resulting from the sale of the Shopping Center or any portion thereof. The term "floor area" for the purposes of this Article shall not include any loading areas, mezzanine space, basement space, vestibules, garden centers, TBA Pads or double decking of any stockroom area. Landlord agrees to deliver to Tenant on or before January 31 following each full or part calendar year during the Term, a statement certified by one of its accountants showing the amount of Taxes on the Shopping Center paid by Landlord and allocable to such full or partial calendar year and the amount to be paid by Tenant, computed in the manner hereinabove provided. Any Tax paid by Landlord during the Term but allocable to a calendar year or portion thereof occurring outside the Term shall be excluded in computing the portion payable by Tenant. If there shall be more than one taxing authority, the Taxes for any period shall be the sum of the Taxes for such period attributable to each such taxing authority. Along with the statement, Landlord will furnish Tenant with a copy of the tax bill and proof satisfactory to Tenant that the Taxes and floor areas shown on the statement are accurate and if Landlord shall receive from the taxing authority a refund of part of such Taxes, Landlord agrees that it will forthwith repay to Tenant its proportionate share of any such refund. In addition, said statement certified by Landlord shall show in reasonable detail the information relevant or necessary to the exact computation and determination of Tenant's pro rata share of the increase of Landlord's actual Taxes for such calendar year over Landlord's Taxes for the Tax Base Year. If: the aggregate monthly (estimated) charges paid by Tenant and allocable to such calendar year (beginning with the first calendar year immediately following the Tax Base Year), as hereinabove provided, shall be less or greater than Tenant's pro rata share of Landlord's actual increase in Taxes over the Tax Base Year; Tenant shall pay to Landlord or Landlord shall refund to Tenant within thirty (30) days after receipt of such statement, an amount equal to the deficiency or excess, as the case may be. Should Landlord fail to furnish the above documentation when due, Tenant shall be relieved of BCF Elgin Lease 6.doc -44- 08/19/08 MC its obligation to make estimated monthly payments for increase in Taxes until the documentation has been delivered. Landlord agrees that Tenant has the right to join Landlord, or, on Tenant's own, contest the amount or legality of the Taxes on the Shopping Center and make applications for the reduction thereof or of any assessment upon which the same may be based and shall prosecute such contest or application with due diligence until the same shall have been finally determined. In connection therewith, Landlord shall make available to Tenant such information in its files as Tenant may reasonably request. If any abatement, refund or rebate shall be obtained, then the expenses of obtaining the same shall be a first charge thereon. If, during the Term, Landlord receives notification of a change in assessment of the Demised Premises or Shopping Center, Landlord agrees to provide a copy of such notice to Tenant within fifteen (15) days after Landlord's receipt of such notification to allow Tenant the right to protest any increase in assessment. In the event that Landlord fails to provide a copy of such notification, and the assessed value is increased, resulting in an increase in Taxes or special assessments, Landlord agrees to pay such increase in Taxes or special assessments for each and every bill received reflective of such increase, until such time as the Demised Premises is re-assessed and notification of same is provided to Tenant within fifteen (15) days after Landlord's receipt of same. Tenant agrees to cooperate with Landlord in filing any protest of such increase in assessment at the next opportunity. It is the intention to allow Tenant the ability to protest any increase in assessment which would result in an increase in the Taxes or special assessments Tenant is responsible for paying. Landlord represents and warrants to Tenant that the Shopping Center is not currently subject to, affected by, or involved in any tax rebate, abatement, tax incentive, tax financing program or other similar programs of any kind, whether the tax in question be termed a real property tax, sales tax or any other kind of tax or assessment. However, Landlord reserves the right to enter into any agreements that Landlord deems appropriate with any municipality with jurisdiction over the Shopping Center to obtain tax increment financing ("TIF") or include the Shopping Center in a TIF district. Such agreements might include real estate taxes and/or sales taxes; provided that no such agreement shall increase the Taxes or sales tax to be paid by Tenant or otherwise increase Tenant's costs under this Lease to operate the Demised Premises. It is understood and agreed that the Taxes to which reference is herein made shall in no event include estate, income, inheritance, succession, transfer, gift or franchise nor shall the Taxes include any penalties or interest resulting from delinquent payment of Taxes or any levies for public improvements, assessments or special assessments,but shall be strictly limited to taxes now generally known as ad valorem real property taxes Landlord represents and warrants to Tenant that Taxes were $2.60 per square foot of floor area within the Demised Premises for calendar year 2007, and Landlord estimates that Taxes are approximately $2.32 per square foot of floor area within the Demised Premises for calendar year 2008. BCF.Elgin.Lease.Final -45- 08/28/08 ARTICLE 36 COST OF COMMON FACILITIES During the period from and after the first (1st) day of the calendar year immediately following the "CAM Base Year" (as hereafter defined), Tenant agrees to pay to Landlord, as additional rent due hereunder, a monthly charge equal to one-twelfth (1/12) of Landlord's estimated increase, if any, for such calendar year (or portion thereof)which falls within the Term of this Lease over the annual "Operating Costs" (as hereinafter defined) of the CAM Base Year, (determined by Landlord reasonably estimating the actual annual Operating Costs but excluding non-recurring items, periodically recurring items or capital items) of: (a) maintaining and operating (i) the Common Facilities which are not under roof, (ii) the Common Areas which are under roof if the Shopping Center has interior common areas utilized by Tenant; and (b) purchasing Landlord's liability and casualty insurance required under this Lease, the sum of which is multiplied by a fraction, the numerator of which shall be the total floor area of the Demised Premises and the denominator of which shall be the total floor area of all the buildings on the Shopping Center. For the purposes hereof, the CAM Base Year shall be the first full calendar year which occurs entirely after the Rent Commencement Date and within the Term of this Lease. Within thirty (30) days after the end of each calendar year, Landlord shall furnish to Tenant a statement certified by Landlord, showing in reasonable detail the information relevant or necessary to the exact computation and determination of the above described fraction, a certification by a registered architect or engineer of the denominator figure referred to in the first paragraph of this Article, and Landlord's actual Operating Costs, for such calendar year. If: the aggregate monthly (estimated) charges paid by Tenant and allocable to such calendar year (beginning with the first calendar year immediately following the CAM Base Year), as hereinabove provided, shall be less or greater than Landlord's actual increase in Operating Costs over the CAM Base Year; Tenant shall pay to Landlord or Landlord shall refund to Tenant within thirty (30) days after receipt of such statement, an amount equal to the deficiency or excess, as the case may be. Should Landlord fail to furnish the above documentation when due, Tenant shall be relieved of its obligation to make estimated monthly payments for increase in Operating Costs until the documentation has been delivered. The term "floor area" for the purposes of this Article shall not include any loading areas, mezzanine space, basement space, vestibules, garden centers, TBA Pads or double decking of any stockroom areas. Taxes which are covered under the preceding Article hereof are specifically excluded from such Operating Costs. "Operating Costs" shall mean the total cost and expense incurred in operating and maintaining the Common Facilities which are not under roof, consistent with reasonable economical operation, and not properly chargeable to capital accounts under generally accepted accounting principles, specifically, repairing, lighting, cleaning, painting, striping, removing of snow, ice and debris, policing, inspection of equipment to be used in the operation of the BCF.Elgin.Lease.Final -46- 08/28/08 facilities, regulating traffic, maintenance of machinery and equipment used in the operation of the facilities (but not acquisition cost or depreciation); cost and expenses of repair of paving (other than those costs properly chargeable to capital accounts), curbs, walkways, landscaping, drainage and parking lot lighting facilities; cost and expense of planting, re-planting and replacing flowers and shrubbery, liability insurance (with endorsements) on the Common Areas and casualty insurance on the buildings and structures constructed in the Shopping Center, but exclusive of overhead, administrative or management fees or charges of any nature or other similar charges in excess of ten percent (10%) of Operating Costs (exclusive of insurance premiums, provided such fees are included in Operating Costs for the CAM Base Year). Notwithstanding the preceding, if any increase in insurance premiums payable for the Shopping Center is due to an alteration or improvement benefiting exclusively premises within the Shopping Center other than the Demised Premises or the Common Areas, the entire increase shall be borne by the premises so benefiting and no portion thereof shall be payable by Tenant. Except as expressly provided above, the following items shall be specifically excluded from Operating Costs: (i) costs incurred in connection with or related to the original construction (as distinguished from operation and maintenance) of the Shopping Center (including the Common Areas) or any replacement or expansion of the Shopping Center buildings (including the Common Areas); (ii) costs of correcting defects in the Landlord's Work, or repair and replacement of any of the Landlord's Work required as a result of such defects; (iii) costs of providing or performing improvements, work, repairs or replacements within or to any leased or leasable premises in the Shopping Center, or within or to any other portion of the Shopping Center that is not part of the Common Facilities, at any time; (iv) costs of repair or restoration of any portion of the Shopping Center that is: (a) damaged or destroyed by a fire or other casualty; or (b) taken by eminent domain or conveyance of title in lieu thereof; (v) principal, interest or ground rent payments on any financing, refinancing or ground lease for all or any portion of the Shopping Center; (vi) costs incurred as a result of any default or negligence of Landlord, its agents, servants or employees; (vii) costs of Landlord's compliance with its repair and maintenance obligations as set forth in this Lease, other than with respect to the Common Facilities; BCF.Elgin.Lease.Final -47- 08/28/08 (viii) costs, expenses, liabilities, fines, penalties, and losses in connection with or related to hazardous materials testing, abatement, remediation, clean-up or removal programs in the Shopping Center; (ix) legal and other fees, leasing commissions, advertising expenses, and other costs incurred in connection with the original development or original leasing of the Shopping Center or any re-leasing of all or any part of the Shopping Center; (x) the cost of items for which Landlord is entitled to reimbursement by any tenant or occupant of the Shopping Center or by any insurance (or would be entitled if such insurance was required by this Lease or by Landlord's mortgagee had been in effect) or otherwise compensated, including direct reimbursement by any tenant or occupant of the Shopping Center; (xi) costs and expenses of putting all or any portion of the Shopping Center into compliance with the requirements of the Americans with Disabilities Act; (xii) interest or penalties incurred as a result of Landlord's late payment of any tax, bill, invoice or other cost or expense as the same became due unless, and to the extent, incurred solely by reason of Tenant's default on payment of its portion of such expense; (xiii) costs of renting or leasing any item if the purchase price (or depreciation thereon) would not properly be included as a reimbursable expense hereunder; (xiv) Landlord's income, excise, franchise, and other taxes of similar nature; (xv) entertainment, transportation, meals, and lodging expenses of anyone; (xvi) promotional and similar fees; (xvii) charges covered elsewhere in this Lease; (xviii) costs and expenses payable to Landlord or to a Landlord Affiliate to the extent that such costs and expenses exceed competitive costs and expenses for materials and services furnished by unrelated persons or entities of similar skill and experience; and (xix) payments of judgments or liens against Landlord. Beginning with the Commencement Date and throughout the Term, Landlord, at its sole cost and expense, but for the mutual benefit of Tenant and Tenant's Guarantor, if any, shall keep and maintain policies of commercial general liability insurance with broad form coverage providing coverage on a special perils basis and with a contractual liability endorsement protecting against any and all claims for damages or injury to person or property or for loss of BCF.E1gin.Lease.Final -48- 08/28/08 pursuant to, or in connection with, an actual or alleged violation of, any Environmental Law; (b) in connection with any Hazardous Material or actual or alleged Hazardous Material Activity; (c) from any abatement, removal, remedial, corrective, or other response action in connection with a Hazardous Material Environmental Law or other order of a Governmental Authority; or (d) from any actual or alleged damage, injury, threat, or harm to health, safety,natural resources or the environment. "Environmental Law" shall mean any current or future Legal Requirement. pertaining to: (a) the protection of health, safety and the indoor or outdoor environment; (b) the conservation, management, or use of natural resources or wildlife; (c) the protection or use of surface water and groundwater; (d) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, Release, threatened Release, abatement, removal, remediation or handling of, or exposure to any Hazardous Material; or (e) pollution (including any Release to air, land, surface water and groundwater), and includes, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. 6901 et seq., Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., Clean Air Act of 1966, as amended, 42 U.S.C. 7401 et seq., Toxic Substances Control Act of 1976, 15 U.S.C. 2601, et seq., Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seq., Occupational Safety and Health Act of 1970, as amended 29 U.S.C. 651 et seq., Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. 11001 et seq., National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 U.S.C. 300(f) et seq., any similar, implementing or successor law, and any amendment, rule, regulation, order or directive issued thereunder. "Environmental Record" shall mean any document, correspondence, pleading, report, assessment, analytical result, Governmental Approval, or other record concerning a Hazardous Material, compliance with an Environmental Law, an Environmental Claim, or other environmental subject. "Governmental Approval" shall mean any permit, license, variance, certificate, consent, letter, clearance, closure, exemption, decision or action or approval of a Governmental Authority. "Governmental Authority" shall mean any international, foreign, federal, state, regional, county, or local person or body having or asserting governmental or quasi- governmental authority or jurisdiction or any department or sub-division thereof. "Hazardous Material" shall mean any substance, chemical, compound, product, solid, gas, liquid, waste, byproduct, pollutant, contaminant, or material which is hazardous or toxic, and includes, without limitation: (a) asbestos, polychlorinated BCF.Elgin.Lease.Final -50- 08/28/08 biphenyls, and petroleum (including crude oil or any fraction thereof); and (b) any such material classified or regulated as "hazardous" or "toxic" pursuant to an Environmental Law. "Hazardous Material Activity" shall mean any activity, event, or occurrence involving a Hazardous Material, including, without limitation, the manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, Release, threatened Release, abatement, removal, remediation, handling of or corrective or response action to any Hazardous Material. "Legal Requirement" shall mean any treaty, convention, statute, law, regulation, ordinance, Governmental Approval, injunction,judgment, order, consent, decree, or other requirement of any Governmental Authority. "Material Adverse Effect" shall mean any changes or effects that individually or in the aggregate are or are reasonably likely to be materially adverse to: (a) the assets, business, operations, income or condition (financial or otherwise) of Landlord or Tenant; (b) transactions contemplated by this agreement; or (c) the ability of Landlord or Tenant to perform their respective obligations under this Lease; or (d) the condition or fair market value of the Shopping Center or the Demised Premises. "Pre-Existing Conditions" shall mean the conditions of the Demised Premises and the Shopping Center as of the date Landlord delivers the Demised Premises to Tenant. "Post-Existing Conditions" shall mean the conditions of the Demised Premises and the Shopping Center which are not Pre-Existing Conditions and which arise after the date Landlord delivers the Demised Premises to Tenant. "RCRA" shall mean the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. 6901 et seq., and any amendments now or hereafter enacted. "Release" shall mean any spilling, leaking, pumping, pouring, emitting,emptying, discharging, injecting, escaping, leaching, dumping or disposing into the indoor or outdoor environment, including, without limitation, the abandonment or discarding of barrels, drums, containers, tanks, and other receptacles containing or previously containing any Hazardous Material. B. Except as set forth on Schedule 37B annexed hereto (with respect to which Landlord represents and warrants that none of such disclosures on Schedule 37B could materially and adversely impair the condition of the Demised Premises or the Shopping Center), Landlord represents and warrants as of the Commencement Date that: (1) to the best of Landlord's actual knowledge, the Shopping Center complies in all material respects with any applicable Environmental Law; BCF.Elgin.Lease.Final -51 - 08/28/08 (2) Landlord has obtained all Governmental Approvals required for the Shopping Center by any applicable Environmental Law; (3) Landlord has not, and has no actual knowledge of any other person who has, caused any Release,threatened Release, or disposal of any Hazardous Material at the Shopping Center; the Shopping Center is not adversely affected by any Release, threatened Release, or disposal of a Hazardous Material originating or emanating from any other property; (4) the Shopping Center does not contain and has not contained any: (a) underground storage tank; (b) asbestos-containing building material; (c) any landfills or dumps; (d) hazardous waste management facility as defined pursuant to RCRA or any other comparable state law; or (e) site on or nominated for the National Priority List promulgated pursuant to CERCLA or any state remedial priority list promulgated or published pursuant to any comparable state law; (5) Landlord has used no Hazardous Material in violation of any Environmental Law and has conducted no Hazardous Material Activity at the Shopping Center; (6) Landlord is not subject to, has no written notice or actual knowledge of, and is not required to give any notice of any Environmental Claim involving the Shopping Center; there are no conditions or occurrences at the Shopping Center which could form the basis for an Environmental Claim against Landlord or the Shopping Center; (7) the Shopping Center is not subject to any, and Landlord has no actual knowledge of any imminent, restriction on the ownership, occupancy, use or transferability of the Shopping Center in connection with any: (a) Environmental Law; or (b) Release, threatened Release, or disposal of a Hazardous Material; (8) there are no conditions or circumstances at the Shopping Center which pose a risk to the environment or the health or safety of persons; and, (9) Landlord has provided or otherwise made available to Tenant any Environmental Record concerning the Shopping Center which Landlord possesses or could reasonably have obtained. C. Tenant represents and warrants as of the Commencement Date that Tenant intends to use no Hazardous Material in violation of any Environmental Law and conduct no Hazardous Material Activity at the Demised Premises. BCF.Elgin.Lease.Final -52- 08/28/08 D. Landlord shall: (1) within ten (10) business days notify Tenant in writing of and provide any reasonably requested documents upon learning of any of the following which arise in connection with the Shopping Center: (a) any liability for response or corrective action, natural resource damage, or other harm pursuant to CERCLA, RCRA, or any comparable state law; (b) any Environmental Claim; (c) any violation of an Environmental Law or Release, threatened Release, or disposal of a Hazardous Material; (d) any restriction on the ownership, occupancy, use or transferability arising pursuant to any: (i) Release, threatened Release, or disposal of a Hazardous Material; or(ii) Environmental Law; or, (e) any environmental natural resource, health or safety condition which could materially impair the condition of the Shopping Center or could have a Material Adverse Effect; (2) cure to the reasonable satisfaction of Tenant any violation of applicable Environmental Laws at the Shopping Center at the expense of Landlord which are Pre- Existing Conditions or Post Existing Conditions (except Post-Existing Conditions which are violations caused by the negligence or willful misconduct of Tenant, or its employees, agents or contractors); and, (3) conduct in accordance with any applicable Environmental Law any investigation, study, sampling, testing, abatement, clean-up, removal, remediation, or other response action ("Response Action") necessary to remove, remediate, clean up, or abate any material Release, threatened Release, or disposal of a Hazardous Material at Landlord's expense to the extent such Response Action is attributable to events or conditions which are Pre-Existing Conditions or Post-Existing Conditions (except Post- Existing Conditions caused by the negligence or willful misconduct of Tenant, or its employees, agents or contractors). E. Tenant shall: (1) maintain the Demised Premises in compliance in all material respects with any applicable Environmental Law and be responsible for making any notification or report concerning the Demised Premises to a Governmental Authority required to be made by any applicable Environmental Law; BCF.Elgin.Lease.Final -53- 08/28/08 (2) if Landlord fails to cure legal violations, have the right to cure to the reasonable satisfaction of Tenant any material violation of applicable Environmental Laws at the Demised Premises: (a) at the expense of Landlord to the extent such violation is attributable to events or conditions which are Pre-Existing Conditions; and (b) at its own expense to the extent such violation is attributable to Post-Existing Conditions caused by the negligence or willful misconduct of Tenant or its employees, agents or contractors; (3) not create or operate at the Demised Premises any: (a) landfill or dump; or (b) hazardous waste management facility or solid waste disposal facility as defined pursuant to RCRA or any comparable state law; (4) not manufacture, use, generate, transport, treat, store, Release, dispose, or handle any Hazardous Material at the Demised Premises except in the ordinary course of its business as of the Rent Commencement Date and in de minimis amounts, without the written permission of Landlord; (5) if Landlord fails to conduct Response Actions, have the right to conduct to the reasonable satisfaction of Tenant and in accordance with any applicable Environmental Law any Response Action necessary to remove, remediate, clean up, or abate any material Release, threatened Release, or disposal of a Hazardous Material from the Demised Premises: (a) at Landlord's expense to the extent such Response Action is attributable to events or conditions which are Pre-Existing Condition or a Post-Existing Condition (except a Post-Existing Condition caused by the negligence or willful misconduct of Tenant or its employees, agents or contractors); and (b) at Tenant's expense to the extent such Response Action is attributable to events or conditions which are a Post-Existing Condition caused by the negligence or willful misconduct of Tenant or its employees, agents or contractors; (6) allow Landlord or its representatives from time to time upon reasonable notice and at Landlord's expense to inspect the Demised Premises and conduct an environmental assessment (including invasive soil or groundwater sampling), including without limitation,to facilitate any other sale or lease of the Shopping Center; (7) remove from the Demised Premises at its expense by the termination date any Hazardous Materials or equipment to manufacture, generate, transport treat, store, Release, dispose, or handle any Hazardous Material used by Tenant or in the course of Tenant's business; and (8) have the right to terminate this Lease as a result of any environmental, health, or safety events or conditions which Tenant did not know existed before the Rent Commencement Date and could reasonably be expected to cause a Material Adverse Effect. BCF.Elgin.Lease.Final -54- 08/28/08 F. (1) Landlord shall indemnify, defend, and hold Tenant harmless, and hereby waives any claim for contribution against Tenant for any Damages to the extent they arise from: (a) Pre-Existing Conditions or Post-Existing Conditions not caused by the negligence or willful misconduct of Tenant or its employees, agents or contractors, and which relate to: (i) any Release, threatened Release, or disposal of any Hazardous Material at the Shopping Center; (ii) the operation or violation of any Environmental Law at the Shopping Center; or, (iii) any Environmental Claim in connection with the Shopping Center; (b) the inaccuracy or breach of any representation or warranty by Landlord in this Article of this Lease. (2) Tenant shall indemnify, defend, and hold Landlord harmless, and hereby waives any claim for contribution against Landlord for any Damages to the extent they arise from: (a) Post-Existing Conditions caused by the negligence or willful misconduct of Tenant or its employees, agents or contractors, and relate to: (i) any Release, threatened Release, or disposal of any Hazardous Material at the Demised Premises; (ii) the operation or violation of any Environmental Law at the Demised Premises; (iii) any Environmental Claim in connection with the Demised Premises; or, (b) the inaccuracy or breach of any representation or warranty by Tenant in this Article of this Lease. (3) These indemnifications and waivers shall be binding upon successors and assigns of Landlord and Tenant and inure to the benefit of Landlord, Tenant, their respective directors, officers, employees and agents, and their successors and assigns and shall survive the expiration or sooner termination of the Term of this Lease. BCF.Elgin.Lease.Final -55- 08/28/08 (4) Landlord shall have supplied to Tenant an environmental report certified to Tenant, prepared by an environmental consultant licensed in the state where the Demised Premises are located disclosing any and all Hazardous Materials, including items listed in Exhibit "E" attached hereto and prior to the execution of this Lease. In the event that the environmental report discloses any Hazardous Material, Tenant shall have the option to terminate this Lease unless Landlord, as part of Landlord's Work, remediates such Hazardous Material. ARTICLE 38 USE OF COMMON AREAS Landlord agrees during Tenant's normal business hours and for one-half hour thereafter to: A. Keep all Common Areas open to the public with the entrances and exits shown on Exhibit"A." B. Keep all Common Areas adequately lighted and maintained in a clean and orderly condition. C. Provide heating and air-conditioning to any enclosed Common Areas, if any, equal to the heating and air-conditioning that Tenant provides for its store in the Demised Premises. Landlord covenants and agrees it will not erect and maintain, or permit the erection and maintenance of any shops, stalls, stands or kiosks in the Common Areas (or in the enclosed Common Areas, if any) within fifty (50) feet of any part of the Demised Premises or any Protected Parking Area and will not permit any selling in the Common Areas (or in the enclosed Common Areas, if any) within fifty (50) feet of any part of the Demised Premises or any Protected Parking Area. This limitation on the use of enclosed Common Areas shall not apply to any seating arrangements that may be erected or installed and maintained by Landlord for the comfort and convenience of customers, nor to the planters or other decorative installations that may be placed therein provided such seating arrangements, planters or decorative installations do not obliterate, hinder or obstruct full customer visibility of the Demised Premises or accessibility between stores located adjacent to the Common Areas. ARTICLE 39 CONSENT NOT TO BE UNREASONABLY WITHHELD Whenever Landlord's consent or Tenant's consent shall be required by the terms of this Lease, such consent shall not be unreasonably withheld, conditioned or delayed. BCF.Elgin.Lease.Final -56- 08/28/08 ARTICLE 40 TENANT SOLELY LIABLE; LANDLORD'S EXCULPATION A. Landlord agrees to look solely to Tenant for the fulfillment of Tenant's obligations hereunder and shall not, under any theory, seek any recovery against Tenant's parent or affiliates or its or their officers, directors, stockholders, partners or members except pursuant to a written agreement executed by the party against whom such recovery is sought. B. Tenant agrees to look solely to Landlord's estate in the Shopping Center and the rents and profits therefrom and the proceeds from any sale or financing or refinancing of Landlord's interest in any portion or interest in the Shopping Center and the proceeds realized from insurance or upon a taking as the sole assets for collection of any claim, judgment or damages or enforcement of any other judicial process requiring payment of money. Tenant agrees that no other assets of Landlord (other than such interest, and the rents and profits therefrom and the sale, financing, refinancing, insurance or taking proceeds thereof) shall be subject to levy, execution or other procedures to satisfy Tenant's rights or remedies. Tenant shall not, under any theory, seek any recovery against Landlord's parent or affiliates or its or their officers, directors, stockholders, partners or members except pursuant to a written agreement executed by the party against whom such recovery is sought. ARTICLE 41 OTHER TENANCIES Should less than sixty-five percent (65%) of the aggregate of leasable square feet of tenant space cease being operated for business in the Shopping Center, Tenant, as its sole option may, if such condition is not cured within a twelve month period from the date less than sixty- five percent (65%) of the tenant's spaces in the Shopping Center are being operated for business, terminate this Lease on not less than thirty (30) days prior notice to Landlord. Should less than sixty-five percent of the aggregate of leasable square feet of tenant space fail to be leased and open for business as retail stores on the Commencement Date of this Lease, Tenant may delay the Rent Commencement Date by one hundred eighty (180) days or, if such condition is not cured within a twelve month period, terminate this Lease on not less than thirty (30) days prior notice to Landlord. ARTICLE 42 TERMINATION A. If Tenant's sales from the Demised Premises for the 37th-48th full calendar months following the Rent Commencement Date shall not exceed One Hundred Fifteen and 00/100 Dollars ($115.00) per square foot, Tenant, at its sole option, may terminate this Lease upon ninety (90) days prior notice to Landlord, however such termination shall not be effective until the day preceding the 5th anniversary of the Rent Commencement Date. In the event of any such termination, this Lease and the Teitii hereof shall end on the effective date of such termination as if it were set forth herein as the end of the Term, and neither party shall have any further rights or obligations hereunder thereafter accruing. In the event Tenant exercises its termination right, BCF.Elgin.Lease.Final -57- 08/28/08 Tenant shall pay to Landlord Twelve and 50/100 Dollars ($12.50) per square foot as a termination payment, which obligation shall survive termination of this Lease. ARTICLE 43 SIGNAGE Tenant may install name identification signs on the Building façades (and Tenant shall have the exclusive right to install its name identification signs on the Building façades) and on each side of any existing or new pylon or monument sign in the Shopping Center, subject only to obtaining permission of the governing municipality, if required. Landlord shall cooperate with Tenant in obtaining such permission. In addition, Landlord, at its sole cost and expense, shall include Tenant on all directional signs and directories serving the Shopping Center. Tenant, at Landlord's sole cost and expense, also shall have the right to also seek such permits and approvals and to erect, install, maintain, and repair the pylon(s) and Tenant's identification panels thereon in the event Landlord fails to do so. In such event, Landlord shall cooperate with Tenant in obtaining all permits and approvals and shall promptly execute and return any documents requiring Landlord's signature in connection therewith. Tenant shall be entitled to place its panel in the most prominent position (in Tenant's judgment) on all pylon and monument signs and Tenant's sign panels shall be no smaller than the dimensions shown therefor on Exhibit "G". No identification sign of an entity not a tenant or occupant of the Shopping Center shall be permitted to be affixed to any pylon sign serving the Shopping Center. ARTICLE 44 SATELLITE DISH Tenant, at its own expense, may erect and maintain a satellite dish upon the roof of the Demised Premises. If required by Landlord in order to maintain the roof warranty, Tenant shall use a roofing contractor reasonably designated by Landlord. Tenant is solely responsible for obtaining all necessary permits required for installation and Landlord shall cooperate therewith. There shall be no additional charge payable by Tenant to Landlord for the use of such roof area or for the installation or maintenance of the satellite dish. Landlord shall not impede Tenant's access to Tenant's satellite dish. ARTICLE 45 ESTOPPEL CERTIFICATES At any time and from time to time, Landlord and Tenant agree, upon request in writing from the other, to execute, acknowledge, and deliver to: (a) a bona fide proposed purchaser of the Shopping Center or of Tenant's interest in the Lease, or to a proposed subtenant, as the case may be; or (b) to any bona fide proposed or present holder of a deed of trust or mortgage (no more than once every twelve months), a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modification), the dates to which the Minimum Rent, Percentage Rent, if any, and other charges have been paid, and whether or not Landlord or Tenant is in default under the Lease and such other matters of fact as such bona fide purchaser, BCF.Elgin.Lease.Final -58- 08/28/08 mortgagee or subtenant may reasonably request. The failure of either party to execute, acknowledge and deliver an estoppel certificate substantially conforming to the foregoing within fourteen (14) days of receipt of the same from the other party, then ten (10) days following a second notice and such party's failure to deliver such estoppel certificate within ten (10) days following receipt of such second notice, shall be deemed a default under this Lease. ARTICLE 46 ACCESS TO DEMISED PREMISES Tenant shall permit Landlord to enter upon the Demised Premises at all reasonable times: (a) to make repairs, changes, replacements and restorations to the Demised Premises and/or the Building in which it is located which are required to be made by Landlord; and (b) during the six (6) month period preceding the expiration date, to exhibit the Demised Premises to prospective tenants, provided that Landlord shall not unreasonably interfere with the conduct of business therein. Landlord's indemnity of Tenant under Article 18 shall apply to any claims against Tenant arising from the presence of Landlord or its contractors, agents, or invitees upon the Demised Premises or from any work undertaken by Landlord. ARTICLE 47 HOLDING OVER Any holding over after the expiration of the Term shall be construed to create a tenancy from month-to-month at the rental that would have applied had Tenant exercised its respective option to renew (or if no further option exists at the then current Minimum Rent) and shall otherwise be on the terms and conditions specified in this Lease as far as applicable. Landlord and Tenant shall each have the right to terminate any month-to-month tenancy upon thirty (30) days' written notice to the other. ARTICLE 48 COMPLETE AGREEMENT/SHORT FORM This Lease constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements, written or oral, between or among the parties with respect to such subject matter. This Lease cannot be amended or modified except by a writing signed by the parties. The submission of this Lease for examination, approval or execution does not constitute a definitive agreement, and no agreement is made or is effective until execution and delivery of the Lease by both Landlord and Tenant. Simultaneously with the execution of this Lease or upon any amendment of this Lease, Landlord shall execute and deliver to Tenant a memorandum or notice or short form lease in form and substance satisfactory to Tenant in proper form for recording. If the Demised Premises are located in Louisiana, then Landlord will execute and deliver to Tenant a new memorandum or short form lease at the time Tenant delivers each notice to extend the Term. If Landlord fails to execute and deliver to Tenant a memorandum of lease or notice or short form of lease as BCF.Elgin.Lease.Final -59- 08/28/08 provided herein, Landlord hereby grants to Tenant an irrevocable power of attorney coupled with an interest for Tenant to execute such instrument on behalf of Landlord. ARTICLE 49 GUARANTY By its signature at the end of this Lease, Burlington Coat Factory Warehouse Corporation, a Delaware corporation ("Guarantor"), agrees to guaranty the performance of the obligations under this Lease of Tenant, its wholly-owned subsidiary, for the period commencing with the Rent Commencement Date and ending on the tenth (10th) anniversary of the Rent Commencement Date. If Tenant is not an affiliate of Guarantor, then Guarantor shall not be liable for any self-insurance obligations of any assignee of Tenant. ARTICLE 50 FIRST RIGHT TO LEASE ADJOINING SPACE If at any time during the Term after the fifth (5th) anniversary of the Rent Commencement Date, any lease demising space contiguous to the Demised Premises in the Building ("Adjoining Space") shall expire or be terminated, Landlord, in writing, shall offer to lease such Adjoining Space to Tenant in"as is" condition prior to making it available to any other person or entity, which offer shall be on the same terms and conditions set forth in this Lease except that the Minimum Rent for such space shall be the then fair market rent for the space. Tenant shall have thirty (30) days after determination of the fair market rental value in which to respond to Landlord's offer. If Tenant elects to accept any such offer,then within twenty(20) days thereafter, Tenant and Landlord shall execute an appropriate amendment to this Lease. Fair market rent shall be reasonably determined by Landlord and Tenant to be the annual rental charge for new leases then being negotiated or executed for comparable retail space in the standard metropolitan statistical area surrounding the Shopping Center for terms commencing on or about the date of Landlord's offer and ending as of the expiration of the Term and containing extension options parallel to those remaining under this Lease. Landlord and Tenant, in good faith, shall attempt to agree in writing as to the fair market rent within ten(10) days after Tenant's receipt of Landlord's offer. If Landlord and Tenant cannot so agree, fair market rent shall be determined by impartial appraisers, one each to be chosen by Landlord and Tenant, and, if necessary, a third to be selected as provided below. All appraisers shall be MAI certified, familiar with retail space, leases, and rents in the standard metropolitan statistical area surrounding the Shopping Center, and shall have at least ten(10) years experience in making real estate appraisals. Landlord and Tenant shall notify each other of its selected appraiser within five (5) days following the expiration of such ten (10) day period. The initial appraisers shall render their written appraisals of fair market value within ten(10)business days after their appointment. If the higher of the two appraisals is less than One Hundred Five percent(105%) of the lower appraisal, then the fair market rent shall be deemed to be the average of the two appraisals. Otherwise,the initial appraisers shall promptly select a third appraiser who shall choose either the rental amount submitted by Landlord's appraiser or the rental amount submitted by Tenant's appraiser within five (5)business days after appointment and the rental chosen by the third appraiser shall be the Minimum Rent for the contiguous space. The BCF.E1gin.Lease.Final -60- 08/28/08 Percentage Rent Breakpoint shall be proportionately increased based upon the Minimum Rent for the contiguous space. The cost of each of the initial appraisers shall be paid by the party selecting such appraiser and the cost of the third appraiser shall be shared equally between Landlord and Tenant. The Minimum Rent for the Adjoining Space applicable to each remaining extension term shall be determined by applying the same per square foot increment of Minimum Rent as is set forth in Article 29 for the original Demised Premises under this Lease. IN WITNESS WHEREOF, Landlord and Tenant have duly executed and affixed their respective seals to this Lease on the day and year first above written. WITNESS: LANDLORD: OTTER CREEK, LLC an Illinois limited liability company fF By: i' � Name: S-7 E-'0--c 74-1e--77,0/S Title: _ /Vf i A/46.i/J-cr- P 7AZfZ Federal I.D. No.: 0 - 5 3 WITNESS: TENANT: BURLINGTON COAT FACTORY OF ILLINOIS, LLC an Illinois limited liability company By: Mark A. Nesci, President Federal I.D.No.: 020- V(3 V3 Yd AGREED TO WITH RESPECT TO ARTICLE 49: BURLINGTON COAT FACTORY WAREHOUS CO ORATION By: t' Mark A.Nesci, President BCF.Elgin.Lease.Final -61 - 08/28/08 EXHIBIT "A" Site Plan of Shopping Center with Demised Premises Cross-Hatched, Protected Area, Dumpster Area, Food/Entertainment Premises, Critical Access Area BCF.Elgin.Lease.6 - 1 - 08/19/08 MC Demised Premises - ExhibitA 1 of 5 3 k . A 7 - i 4 . l I :6 M r Q .y ya 'r n } alibi WM r 1 t } " �2f at in.ma ran ■* ! !' .rp r•rI+ 1 2+ I orr' F! � a y1 i4 t I Jir . I 5i w -, ,— f i41,.., ! rte `: !'`1 if•`' i .- 1 • —_. eft _�_� ---- - - —4 ---- -I-- ---4 -- -l- ---4- --- ---- ----- - - --c a•: IP it I I MI= 504 FLT I I A 1 n- e,.xxrxaeeer_..._ . M•Rf.+•,1,....,.r.T—, — i' 'r---.-- ---I -- I ---I- ---- —I— ---_ t — , -- -- ce • = ad --G -- ---- --1- ---- — i- � . •:. a r , g a ; T ra rr 1P'fAIPEG ........c.:....,,,,, .a.• , I y— --- I ---- 1f+.ice`+ r+ ''''IS..� _r f7�jrr1 r� 'e ,�,':�Y _i I ,. , 4 1 WA" I I I I I I : ..• .�• a I (3-...., “a' 1147'' Iliangrifil i � � , a f ! e «..,,,. ,..,,� -..I. wow,�.� ».� .. �.,..:. hI ai"`° ,.,.+. w a ; I ,* t' plc � a ,,. ii, i F1 r x C p id 1 4_. ;AL,,„.41, Ear .,,i T 'A -_IL._--T--._—_.—. 4----- I'. —_'--0' lidciitny o. •.... "7 .. .... ..... f 1 r.a. r �6' f �f- f M r s 1 0 64 nom mu" I ...c,nr.., 1 - Critical Building Facilbitiess- Exhibit Si n 2 of5 J 4 . a a i 4 . I p }. 9 5}` p/ p'�{ Wilk WWII .II)� f p r..ra I WO ■+ i M! ■ ■! 1 2 OF ., I -I a. 1 (1)***'***** - iii , r ,..,--.- -- .,. — - La:J.,,. ,...„., ....ir,.. ,so:.3„. cz. 1 CIL■ - ---- --_.4.. _.__ __I__- ___4 -- -I-- --- - _--- I --- ---- ----- - ; 1 __ f I I I I 1 I 4 1 I l 4 14 t I 1 1 P Oa,or.1[e a array a as,k svx.0 W....a:.r..s- n It r a 1[7,.41 w...a.•miaa a aana -am a aaar.r -,a raw a wad .r.a maw.a 1[..a. 'a 4141.. .s. r..mw x x a,rya,m.aa .wxwr• w rc 4141 r awr a ,1[r r JIM.ne: n.rasc• a.aeN+ avl[.I. . r wma wrr- 4141 4141.. +f I I I 14 le41 41 ' w i aIS AQI i ri 0 'P� S I _ 41 41 k 41,41 ___ ITRRT$wi Pr�r�l'�T y I I I ' �I _ — -- ywp,r_—_— —_ — -- __--_— ---- —.'-- -- --- � - ------ 41r �r _—.1.. __—_ ____ __t_ ____ 4141 4141Ia7TAARl�I.F!P I .. le,i,. ;=:> -13.i- „ �" �, ti j; 1 I�1L'A�ass=i'A.giizL'.. dP I SC 4 I f. I 'r .+ r � 71 a r ' [ I 1 I e r7r + - '� T°;+ tkw ��_.. A N C- f C F 6 I 1[.r..wr .°7,•,,.m I Mil 1144 - 11 F I1 e I } :Ad�SY''�' rya ._._ _--- ,—,-1[.,.,,w ww..1[.,r— _ a, r P- 1[ 41,,41...t� ,a—,.R,,,,.r—r.,,,.w.� ,�:-, ,,, P a— t �R.—w ,—,41,41. I , I I I � ■ P I fl. ` I �� � � I r, 4:0,.ra r ,F.„..... 9. 6 ,. 11 41..41..' ra.a..F..-. 41`41 ..r1[: .r,y.aw�,.rrx r I'wa.r sMoab"t° IIIG�kG7111 [88�YY• l r e— .eff,1ln�, w. 4141. ..' , 4 * . 4141' 41 41 4141 i Z Y' iR y w --^ ---' --- -- $ cue€ n®I1a� c=mans: " _' Ii_=11•1111W"i�'��f•� •-zr�.1 41- � sr's r., � � l— 1 �..... 0 tl , 4.7 t➢A C4LPOA9 � 3•—I Al ai M w �. . rsma'Ila-r rvP- i - ' 3 @ • ] - 4 •. I • + • IT . a • •I. .n r OTTER CREEK -. EXHH IBIT A 3 of 5 Del.Pond P ,, , 9 I OmffiAxre A Burlington Coat i Target Factory Hobby T.- V4 ri col-ayrtrai C.1 C-2 C-3 G-4 c-s Lobby 4 A tic . .... -17.fe Zr7f.re:,..7'.7■V'egirpr 4 91.7r iri? ,10 'Pley e / Ve` f ,/11 IIIII IIIIII _ 4 ' "/ tiVitl NIP I , A _ g1211211 \D 1 (.).------"'----- /. ,,d,A ...4. :or .......„ .44-ir.Air" 4 V,r Are Zre-4.- 00 I Dot.Pond . Randall Road Critical Area Protected Parking OTTER CREEK - EXHIBIT A 4 Of 5 Def.Pond _j '1._ 61 19 Target Burlington Coat Office — Factory — . MAX , . Hobby s uol, o.i C-2 C-3 C-4 5 C- :i Z 4.+Z Cil"'01 11 Va';to 41 Lobby Pi.1.-V,1'..Nzz....-sl.....,Nrzz-•1,:n.-m-v,::,z, ..z.,.......... , ..„ s''',„ , . \'',,%7S47■......Z.Z.%N.""‘ '''' .....'.. '4", N', \\ .' • • \N •74, . \i`;;,, Z'.°S`:4•SI.'■'NiZ• NZ$:.Vs, ,\i 1 1" '''," Nr." l''''' ef" '‘,4r..N. ...,„.. ,.,,.. . V ‘1,•., ,,,,* \ N4 \•■••:..c -"- — •--N.-:.,-\-- ..k. ,..•.‘a,IS, ....Ski. S.* iN k.„, (4 ' '\'‘-‘\ \\\ -.\ '' . -‘ '.\\44 '— ' ■fiel6V't) etE -, • Det.Pond Randall Road ,.. No Build Area Permissible Food - Exhibit A 5 of 5 J t a 1 t • , at , I a t M I 14 r I Is n ti 1! m(a�diF X011! OJ Igs11r11laarars� rr' 9 i I " '" I " °'" Permissible ■*� w: I, 1114 1 .. 1 I , , i Food k a, :+ �# -non sit down I..W ».:. 4 ... . i ,) - �" r`li 1 -sandwich shop •It sire- i -pizza a c y I ._ IY' a 4w i. * I C +1 4 e Ogg,g lit r 1 „smermiiiiimirjaminumpr Ai,. ii,4, 4r,,-iiikpriiii ..-- 1 I V ' ---- .._1__ _--4. ---- —i—. -_---1- --__ — ---- ---- --- r i i I I it w„» P rp 8 k a. i 1 Vii' FF i ' ....._,.,__,,,.,._. 1 7 Safi. C !G• ny�.RT.r..11i�+/'1'�l�» - -—[ ---- ----- -- — ---- ----'—.--..”- , "Ir 2,_ 1 1,11 - • 41•M. IKLIESVIEWEI ' it I � ! 1 Z,,r rt rF r f + 1_ ._ 1 -----1:10_, .r:° .J e a r '=11..1 pt,- It-: L. q $ "��. i 11141 1 e 1 w 1 is t r� (>yy r,..' 1 - 1 1 .tea x $ + grammoimmoweriudimmi o � , 1 1 "`� xf J ai il.1 �M r q .. r �,...v. ...,..Ili ......1 n.Y.}g } 2 ,i+:x, gr.!. �faini 4 ,Lki. _: IMF,. T ' 1� �, �. »; "'Yanl s L �—' �... e�'. 1 r+i T...Ti '� 1 Y ��- �'►! '♦ �. 1 } `° tai 1� �,, ........l .(�rtrr,. .:: , � °'-"� �� �~ . -�•wR.'r,e . ,�.� . .1 r I1, 9f' w1 .-.s-r r . l oTi2'ie- �? +,�;, `e»` ih 0---- .i_,._--.-- -L_.r— 1.1:1+� 11 n: r. �+ 'AA -' Approximately 87'Frontage d ii r:,�'°` ' ,.,.......... «^ a >��rur :rr r'� tee" _'ApproximatelY33'Frontage + rrr, -,Tr-,.r.r.- t I N. rt 1 3,000 square feet 4 n ,. nar-:r .f1 1. „h , 1 _ a-t r1omrllin .1 c 3 , 1 • -• 3 , I I 4 • 7 R. . • .r IT ■ n _ EXHIBIT "A-1" Legal Description of Shopping Center PARCEL ONE: LOTS 5, 10 AND 11 OF CAARLENE MCDERMOTT SUBDIVISION, BEING A SUBDIVISION OF PART OF THE SOUTHWEST 1 '4 OF SECTION 16, PART OF THE SOUTHEAST 1/4 OF SECTION 17, PART OF THE NORTHEAST 114 OF SECTION 20 AND PART OF THE NORTHWEST 1/4 OF SECTION 21, ALL IN TOWNSHIP 41 N JRTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO SAID PLAT OF SUBDIVISION RECORDED ON JULY 17, 1992 AS DOCUMENT NO. 92K51304 AND CERTIFICATE OF CORRECTION RECORDED JANUARY 5, 1993 AS DOCUMENT NO. 93K00619, IN KANE COUNTY, ILLIF'OIS. PARCEL TWO: EASEMENT FOR THE B ENEFIT OF LOT 11 IN PARCEL ONE AS CONTAINED IN THE SLOPE EASEMENT AGREEMENT RECORDED SEPTEMBER 25, 1992 AS DOCUMENT NO. 92K68107. PARCEL THREE: EASEMENTS FOR THE 3ENEFIT OF PARCEL ONE CONTAINED IN THE OPERATION AND EASEMENT AGREEMENT RECORDED AUGUST 19, 1991 AS DOCUMENT NO. 91 K45166, FIRST AMENDMENT THERETO RECORDED DECEMBER 28, 1992 AS DOCUMENT NO. 92K93622, SECOND AMENDMENT THERETO RECORDED DECEMBER 28, 1992 AS DOCUMENT NO. 92K93623 AND CONTAINED IN DECLARATION RECOR?ED JUNE 28, 1993 AS DOCUMENT NO. 93K47279. EXHIBIT "B" Permitted Encumbrances 1. The land has been annexed to Fox River Reclamation District per instrument recorded December 2, 1991 as Document 91K65461. 2. Operation and Easement Agreement recorded August 19, 1991 as Document 91K45166 relating to parking, ingress and egress, utilities and other matters. First Amendment recorded Dec. 28, 1992 as Document 92K93622. Second Amendment recorded Dec. 28, 1992 as Document 92K93623. Third Amendment recorded February 3, 1997 Document 97K007354. 3. Public Utility Easement and Easement Provisions in Favor of City,the Commonwealth Edison Company, the Illinois Bell Telephone Company and Northern Illinois Gas Company and Jones Intercable, Inc. and successors and assigns on Plat Document 92K51304. (Affects East 20 feet and 20 foot to 30 foot strip through Lot 5 in Parcel 1, East 20 feet Lot 10 in Parcel One; 20 foot strip in East part Lot 11 in Parcel One) 4. There shall be no access to Randall Road per Plat of Subdivision Document 92K51304. 5. Part of Lot 5 falls within flood plain per note on Plat of Subdivision Document 92K51304. Certificate of Correction recorded Jan. 5, 1993 as Document 93K00619 which corrects the Plat to show Lot 5 as the affected Lot. 6. Easement recorded August 19, 1991 as Document 91K45159 in favor of City of Elgin relating to storm water drainage. 7. Declaration of Covenants, Easements, Conditions and Restrictions recorded July 29, 1993 as Document 93K47279 as to use, development, easements, maintenance,restrictions and other matters. Note: Said instrument contains no provision for a forfeiture of or a reversion of title in case of breach of condition. 8. Annexation Agreement dated November 14, 1990 recorded August 19, 1994 as Document 94K065017 and First Amendment thereto made with the City of Elgin recorded as Document 94K065017. 9. Side Yard Agreement and Yard Easement for Otter Creek Shopping Center recorded November 9, 1992 as Document 92K80110. (Affects Lot 11 of Parcel One) 10. Easement in favor of the Commonwealth Edison Company and Illinois Bell Telephone Company, and their respective successors and assigns, to install, operate and maintain all equipment necessary for the purpose of serving the land and other property, together with the right of access to said equipment, and the provisions relating thereto contained in the grant recorded as Document No. 92K85197, affecting the areas shown on Exhibit A of the Document of the land. (Affects part of Lot 11 of Parcel One) * All references to recordings are in Kane County, Illinois. ourlington • PROJECT LOCATION , , •,___ pfi.u... , _____,.. _ 0,. gl _____,_______„,:, „„ i w g�i Coat Factory -E '' �a baby Home • I } e Depot Decor SITE VICINITY MAP NOT TO SCALE N YL Se) CLIENT: ARCHITECT: PROJECT LOCATION: a BURLINGTON COAT FACTORY 111111 1)Ilq1 1111111 PROTOTYPE 2007 0t =LL 1830 RT. 130 N IIIIIIIIIIII 1p 111)IIIIIIII - U N BURLINGTON,NJ 08016 .Ids I wY/ PHONE: (609) 387-7800 ARCHITECTS, INC. MALL NAME. THIS SET OF DRAWINGS IS TO BE UTILIZED FAX: (609) 387.0395 STREET ,- AS GUIDELINES FOR THE RENOVATION OF AN 0 ° 17775 DETROIT AVENUE LAXEw000,OHIO 44107 CITY EXISTING BUILDING OR THE CONSTRUCTION e� 1 (216)521-5134 FAX(216)52114824 CIIJSTATE,ZIP OF A NEW BUILDING(GROUND UP). V a a GENERAL NOTES CODE ANp BUILDING: DATA MATERIALS KEY 4 GRAPHIC SYMBOLS DRAWING INDE>C as 440 L ALL GREATER THAN B TO EE AS NOTED A O WALL l NGT NAVE 510 e DEVELOPED RATIOS 'C`U,�,•e1r„ GLOATER S T A30 P1V]JECT DESCRIPTION} O.rA.Sn rmT INTERIOR RENOVATION OF AN EXISn.G SPACE EL.MODFICAT!ONS TO THE T t CP WALLS R.CEILWISS IN ALL 7.HAVE CLAY INNINDS SPREAD LOS!RAIN>a0 INTERIOR srE>Dn IX�ACCF1>L EXTERIOR ENTRY ELEVATION. �,� %�//�/v FLAIR SPRE LEY 144.1113 R��i/ E F FLOOR PHIS.MATERIALS GULL COPP,YON THE DOC P-I m pyILDMG CODE EN.ORCEDT ' rc moat, 'Y'V ,,St,$ 'Sj SHALL NOT LACEED AMA OF rNEAADD DATE WALL ARID CELNS A..a ERFY WTH PROJECT LcCATKN GD wLA'Rw Pco r,FFU.0 a E e G AHT rr»+OR SPACE Arm PAT DE CLASS I. OA . Em n N'.IOW GROUP, . _ 1 I ARCHITECTURAL F515K5 SHALL COrPLT WIN THE DOC P WILL rEST•NTH A CRTAHL M•MERCHRTILL ® TIDI -- 1 rtooR CS-I COVER SHEET R� a 5451ANT FLux DP at.wA S/OT}OR earre e.N TIACCESS CTRROORS FLOOR • x Fw SKS SHALL DE CLASS wnI A CRITICAL FLUX CF RD CATTiCS OR BETTER COISTRITTICN TYPE. _ ' K' '.',),',1 EX-I 1401 USED■STORE SPECIFIC' { 75-FULLY>PRGKLER£D ��rz AL� a ILOOIR eYrATwI F-I NOT USED ISTCRE SFEG IC G) S a S.INIERTOR FINISN MATERIALS DES.r FOR 30 PRATT. SHALL K APPLIED SO THAT TART wLL HOT Der4cN 4T Toe ... �.,..:�.g owe.*manacle). O.nE.Immr.aa GrnEO F-I FIXTURE PLAN O o A-I CONSTUCTION PLAN A-] EXTERIOR ELEVATIONS s.•R[exTNGU SS WALL• C.T LOCATED. w vIIRC O OP w 4 DEPART... 0 000N upr•r_ATAN ° INWARD A-3 ENLARGED ENTRY PLAN I ELEvATION \ neewlmreN;e AND MAC!RevlesPO ALL FIELD COOPIT OVS. TcvvlmeD ALL RLD a mmLrni _e_x_ _ 0j �� A-4 FLOOR FINISH PLAN NAAR LNLI-INED 000011 5-. A RRCw•0ur°R A-5 REFLECTED CEILING PLAN CONDITIONS SMALL DE VERIFIED N rK Fm.o Br TIE oEOi141 --I,..} PR..DONATOR A-b ROOF PLAN 6COHOR4C705t�PRIOR TO CWSTRICTION OR ODDER w MATERIAL ANT'RE0131OSB, ' ` A-1 ENLARGED PLANS I INT.ELEVATIONS dANGES,L LAT TOR NCONSISTENCIS BEI..TK R-BUILT Ir NS TTUSE / I E'4EIGOT' ACSUAL HECTHT —� OYUL lOCTaR --0 GRID LK A- 55. }4-9 B SECTIONS E DETAILS A-e SECTIONS 5 DETAILS F SEVERAL CONTRACTOR ISKC ED SPC;IBLE ORR�d^°ALL'�°®"KD • ABBREVIATIONS A•Im SECTIONS E SIGN DETAILS W ALL nA RIU TO e A-II ROOM/FINISH/DOOR SCHEDULES W LABOR IOe ruRRSHIw ALL neTERIAL!SCOPT BNr,rxtie OCLIIPtM LDm er I OIreRI s Rw IRE R5-I RESPONSIBILITY SCHEDULE sALD ACoRTNAL LK C AND STROKE NECO '�I'SALES 13.150 SF./35 7436 OCCUPRTE IL TK G.C.5H4LPERFORM ALL WORK N CONT RTITT WITH TH O u ESC AOISOICTION M-RESTR00IS SF. 30 w OCCUPANTS INT•L STRUCTURAL 1Z Nun IRIET.IR OR GUSH SPICTFICALLY BUILD.PERrns AND GULL Be RENDUeSMA L OFFII SALES lAP 61.O 100 IA OCCUPANTS cAT�AP�. 5-I STRUCTURAL PLAN FOR PEW. PRGOTRE ATOP COSTS Be ALL K M(CRUCES/LOINGE} - S-2 DETAILS AND SECTIONS PI-HON-SALES 5,00}SF./300 11 OCCUPATIT3 5-3 NOTES AND DETAILS O a.T.Ca sHALL Ise RESPONSIBLE FOR rose rue COD11.1ANCE WITH T.DESIGN.THE GC GULL CORRECT ALL ERRORS R.DEHATIOPSS.4S., terOCX2lec Rte TOTAL• O U REQUESTED BE THE mum .+. 2.483 OCCUPANTS MECHANICAL M-I MECHANICAL PLANS AvT worecLOee0 Acn B.C.A.PROJECT R R-RRD ><LT P THEY puCaNTeR "—SS e€OUIR9E'NTS REQUIRED PRONDED Hr J H-] MECHANICAL SCHEDULES R DETAILS \ cE�0 IvSONIE 504W OCEES TT3E-FLOORS N A REQUIRED HO,OP EXITS A b PAT.FRTM Tw LOADING DOCK r�•' TRAVEL DISTANCE ]50 }50 PLUMBING, TAR GENERAL cwrRACTOR G TO rw- P-1 PLUMBING PLAN PA SEWER i s0.DRIVE LIKE e n bE OHEY•q PR.• pUIIffD OGRE>S WIDTH P-] PLUMBING GAS PLAN,NOTES■DETAILS s.CLEAR CF ANT BSTROTIOP I ARE TN GOOD wnlev-w dmem RE Sl+ 3v. em5 CROWN PASCATR.OP Tn.R TRIATm Fl F]pr,,,, N.TAIE SD PER ANENT AND REFS eH.AG C RAG T-0'O.TOTT N NS ALL NEEDED. LAMS TO BE X�RES 12 m r E-I LIGHTING PLAN erULL eSOABLIAe�IGIe� 6r.dui o FIXTURES WALL Be raOmSIITS UATER CLOSETS IPER 500 OCC.JPOlTN•3•! • rR E-3 DETAILS ICAL POU.ER PLAN n.EXACT SETOEN CONWACTO.�evrnt0NTw c vOiD STERFRR ACE. Oc ] IS ALL _ HEADS URINALS WATER ] E-S SINGLE LINE DIAGRAM I PANEL SCHEDULE NATED RN TOA CLOSETS,LESS TFARR 61A LV LIGHTING SCHEDULE,NOTES A DETAILS o b6NKGH�l=.'-c. OFS�POIFX2,14 67 LICENSED 17 wdD CP QUIRED NO.OF WATER LV-1 COE ALARM PLANS,NOTES E DETAILS �, . REM1ACEnEM O'�EEALL LOCAL uO.HATIput CCOES 6cLUDNG rEPA.IS m wR CLOSETS Lv-] BUILDING COMMUNICATION PLAN RvISISNS�6 KK 11 APIER drLETrES OP TAR LOPS ARTS OP T.BWLDFU eHAL BE CLEANED 1.Re LAVATORIES I PER 150...EN•} Lv-3 BUILDING AUTO'IATION SYSTEM DIAGRAM EVER SUCla RG IS REaI m r.G ARE.CF THE BUILDIFG MADE DIRTT BY Lv-4 LOSS PREVENTION PLAN RRSB194. I PER 150 DTTAImEN•} 3 R TOP,STEEL DATE 5/15/01 TOOLS COAPDI NT TATEROLS THE BILDRGS 0 TO SE LIFO N PE TLY PSECE G FgNrAly> I PER I00m•] ] FIRE PROTECTION JR NE i LOCAL CODES A6 rw IROYIIOTRNT6 a rw OTHERS I SERVICE SEXASE GROUP I rr6ATED NOOEO OTRw )) FP-I FIRE PROTECTION PLAN 1 NATIONAL ELECTRICAL CODE.NITA it LO'+-•tl I I I I I I SEE BOOK SPECIFICATIONS CS— 1 AN GA Tom •.o urwIT (UNDER SEPARATE COVER) 6 ri 0 n gt on ir i Coat Factory w w 0 � o z c o e- � - ,; w = 4.4t-A'''''44"A"M"',,=,'cf.,0.`"S'-4'v i*T.-: ' • .., .-,---- $1111moo.„ ' -' f.41 0 led) a cr I _ , ,„ : , '1„ ',=';`,.;. ,_. Yik,44,.....11t15,11,„:4-.--..1,4". Y'.1' _ 111;:.,41:7,:it,:-;111;:\ ':'11: _, a z wall CI . Y f1 j ' j RANDALL RD & SOUTH ST. 1 ELGIN, IL I U) w c;w of c�Zr � N GPD ASSOCIATES o.re� 09.05.08 CLAUS PYLE SCHOMER BURNS & DEHAVEN INC. 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NOTES PLAN NOTES: CABLE INSTALLATION NOTES I g:•.=,.-0:T.,77..:.:"..V.T.t:.":=7;:=2,...t.t==T.1,'ZT.I...,.,.... ,.....L................,.......“.. .,,,,,,........,...............,.......: ',=7,:.'11...IT:::::::==.,:"ZToTc=`"T"- ' :::::-.‘:,.s.:::,:;;.-.=;:.:,-,zt.::-,":.:!::::r.;.,..z.:...;•:-...",==t,°.;...., ',-."--::-....:,-:=4.........=°==.427.,,,,,.....„, , ' .',.:z.t.:!.....--.1=7::f:Z7.,t7',.,":,=.1',-.*...=..!.,:„.=1;==...., ==.::,..,....J.:.”,..,.......'.....,.........,..-.......,.....L. •:."..F.,:::",=,.."a.',.:-...1.'..'if. .Z.-.-;:i."=.2",`'"-" , -..,.....,.....-.,-....,_.....„.....--,...---......c.-. .,...--.......,..--............. L SECURITY CAMERA LEGEND I .,..,...........“.....•,,,...........“.,.„...L.......,.,..............c....... ",111::.=:::::::;.::::C=.=;;%`:","Z.,T'c'tt■::::T>:='''''' . =7.....nz..Fi.".......7:.7,11.3n.z",,,,Fr.:,-v€:::::74°.;:-...:77.:.Y.:1;.:...,:z....1.......-t"- ,...„„ ,_ ....,,• .L401140.111,("....•rval.14 n.10.11.0.04•16,4/4.. 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SIM 11 .1 I I 0 1 , 1 11"' ,--., I , I , 1,e ' ' 1 I d 2 a a '-7 ( ,,.. ... 1 . , ,,,, ; . i ; 41.047(ft P.N. i 1 'I ,., CO 70 71■15 We -,,,,\,. J I 6 2 n , 19,1 ':- r .til" i!,..'' LT:r. 1- i m oz 8 0 i 1 i_ ,__ _i_ , ,„_,,_„,,,T,ii 4 e_,;±,,,a,,,ort ,1 '-' I.-[4 --__.--. -'rn--‘,'d gA,; , , , I, ___.__ l'-', !, ,. 1 '4 W.W.I.MLR I ' - Owif 09 05 08 0 _, L , , , 1 , ,,,, „'-jj T , Al JOU ma 2008055 07 /1111COMMUNCIATION PLAN LV-3 .-.,-.. -", -1 1 I 8 i° 1! I 4Q• z a- lt w (� w CAT,OUTLET `^ �a�_ j l•l.,a CAWS • LO c e��cstwu.(:7 Evan, ~ »u, � Et,a V mµ a,- am «aa. O (TELEPHONE EXTENSIONS( d ° `aa. /m 1171.•=42'nwa Sa e } "l L z wwcors �.. — (0 U s CABLE � W U)noR w„t. UI n ru Y vw I i' _ _ O O p} x/ Eau"E� 1111 uE YxRE po � . K,) At 0 J 1111,111. r_71- T - �10/10 51 10/011111 10 COWEN()MODULAR JACK WIRING 01n^;,,/rO... I n}wS �°w T •*y _ [ NONE CAE rut wn“A...,omu I I L -� EEw nn'} o'T- _ V C CAWS/m Tam/ms 11 = - - co.— -{AP31. "° _ _ _ JR . au+"^11 -a u,s 0.01 T 10 75 . _ _ _ uE o.«snEV ..,.5,/2 cot_uri I —0-- 1,... - : Z rtn O ® AP4� I � li mot DE. - -- Q WALL JACK WIRING DETAIL •TYPICAL DATA SYSTEM WIRING DIAGRAM JI 1 %IF sc.... .a. SCALL NONE ©25 PAIR IDF PUNCHDOWN DETAI L . E HOME I I ' I 1 I 1 En Z 0 QJ UQ ZF– 0 0 051.45/004 11115 DATE 09.0508 .00 no 2008055.07 LV-4 EXHIBIT "D-1" Baby Depot Exclusives 1. cribs 2. changing tables 3. toy boxes 4. children's and adult rocking chairs 5. glider/rockers 6. juvenile furniture a. tables b. chairs c. chests d. dressers e. bean bags 7. crib comforters, dust ruffles, bumpers, sheets and mattress pads 8. diaper stackers and diaper bags 9. strollers 10. high chairs 11. car seats 12. play pens 13. walkers and entertainers 14. infant swings 15. infant and layette clothing 16. infant toys 17. children's books 18. diapers 19. such additional items that are typically sold in an infant and children toys, furnishings and furniture store. BCF.Elgin.Lease.6 08/19/08 MC EXHIBIT "D-2" Luxury Linens Exclusives 1. Bedding, such as: Sheets, comforters, bedspreads, bed pillows, mattress pads, duvet covers, blankets, quilts, and decorative throws 2. Bath and Kitchen Towels, such as: beach towels, aprons, potholders, oven mitts, robes and body wraps 3. Decorative Pillows and Chair Pads 4. Tabletop, such as: tablecloths,napkins, placements, runners, scarves and doilies 5. Rugs, such as: scatter rugs, bath rugs, area rugs, novelty rugs 6. Bath Room Accessories and Shower Curtains, such as: Plastic ensembles, ceramic ensembles, metal ensembles, scales, hampers, toilet seats, shower hooks, personal care products 7. Curtains and Draperies 8. Drapery hardware 9. Wall Art and Picture Frames 10. Decorative Housewares 11. Decorative Gifts, such as: Crystal, ceramic, silver, brass and wood accessories, stationery and gift wrap 12. Closet and Storage Items 13. Luggage 14. Candles and Candleholders BCF.Elgin.Lease.6 - 1 - 08/19/08 MC EXHIBIT "F" Prohibited Uses 1. A tavern, bar, nightclub, cocktail lounge, discotheque, dance hall or any other establishment selling alcoholic beverages for on-premises consumption; provided, however, the foregoing shall not prohibit the operation of a restaurant where the sale of alcoholic beverages therein comprises less than thirty (30%) percent of the restaurant's gross revenues, or a restaurant of the type operated on the date hereof under the trade names "Bennigan's," "Chili's" or"TGI Friday's." 2. A billiards parlor, pool hall, arcade,video or game room. 3. A theater (for live performance), an auditorium, a convention or exhibition hall or the like. 4. A fairground. 5. A service station, automotive repair shop,truck stop or vehicle fueling station. 6. A flea market or pawnshop. 7. A training or educational facility (including without limitation, a school, college, reading room or other facility catering primarily to students and trainees rather than to customers or employees employed on premises provided that educational or training classes as part of a permitted use shall be permitted). 8. A car wash. 9. A medical clinic or office (which shall not preclude an optometrist's office located in a store selling eyeglasses, contact lenses and similar eye ware products or a person who may, by law,write prescriptions in connection with the operation of a pharmacy or a medical or a medically-related activity then being conducted in, and incidental to, retail drug stores). 10. An office building or any office of any kind not used principally for the purveying of products or services to walk-in consumers at retail (other than back room offices incidental to a retail use). 11. A dry cleaning plant, central laundry or laundromat(which shall not preclude a"drop off' and"pick up" dry cleaning service where all dry cleaning processes shall be located outside of such premises). 12. An establishment for sale of automobiles, trucks,mobile homes, recreational motor vehicles. BCF.Elgin.Lease.6 - 1 - 08/19/08 LC 13. A piercing pagoda or tattoo parlor or similar establishment. 14. An adult type bookstore or other establishment selling,renting, displaying or exhibiting pornographic or obscene materials (including without limitation: magazines, books,movies,videos,photographs or so called "sexual toys") or providing adult type entertainment or activities (including, without limitation, any displays of a variety involving, exhibiting or depicting sexual themes,nudity or lewd acts. [This clause shall not prohibit or limit the items typically sold by a business of the type operated on the date hereof under the trade names"Barnes &Noble" or "Borders."] 15. A massage parlor or any establishment purveying similar services. 16. A skating rink of any type. 17. A mortuary, crematorium or funeral home. 18. A mobile home or trailer court, labor camp,junkyard or stockyard. 19. A motel or hotel or a lodging establishment of any kind. 20. A landfill, garbage dump or for the dumping, disposing, incineration or reduction of garbage. 21. A telephone call center (which shall not preclude a telephone store, cellular and otherwise). 22. A gambling establishment of any kind including, without limitation, a casino, bingo parlor or betting parlor (but lottery tickets may be sold and government sponsored lottery and similar gaming devices may be operated incidental to non-casino and non- hotel primary business at the premises). 23. An assembling, manufacturing, industrial, distilling, refining or smelting facility. 24. A storage warehouse or storage facility, except for storage incidental to a permitted use. 25. The conduct of any"fire sale," going out of business sale or bankruptcy sale(except pursuant to a court order) or any auction house operation. 26. Any use which regularly emits a noxious odor, loud noises or sounds which can be heard or smelled outside of the occupant's premises. 27. A"so called" head shop. BCF.Elgin.Lease.6 -2- 08/19/08 LC /..... ALTO S1��Y...,.PHON E:(215)724-1724j .. .. .._.. ..__._.. ....... .. ....___ -_-..__... ... _._.., .. _- ..,._ . ... i�� FAX:(215)724-4088 I N Q Q R P O R AT U D WWW.ALTOSIGN.COM 4 SERV NG THE RETAIL INDUSTRY SINCE 1997 ALTO @ALTOSIGN.COM --- I E ) ..... .-_.. ... _ .. , J { y• f .,',, ., t..:. .4,iir F t - I { Ili- r+t �� , , F,„ ,,,,,„,. ' ..4k , .•.!--e• .-.71 Ir., i -SIGN"A” AREA:263.50 SQ.FT 3 _ ''i .0-- �' , y ?M .l'i z SIGN' 59 "BURLINGTON COAT FACTORY" ; 17 ,.;4 u;; It It i }q, R, r SIGN.TYPE: LED CHANNEL-STYLE LETTERS x'< E `•- v � �tTy Y- A7 4 �� 1"+.�{y _ I SIGN FACE: 3/16"RED PLEXI .. _. .. x _` - e E ) - s "fe r., PaftY"�h/F!fks '---- r T TRIM CAP: WHITE - r Id,. -1 S � c. L�„,1...#. •• , `e RETURNS: WHITE y ca a i t, j t,,;�• LIGHTING: RED L.E.D. Is r i MOUNTING: FLUSH MOUNT LETTERS �V i I i t•,1.fit I tt /� 1 ♦ I SIGN"B^ AREA:69.51 SQ.FT j.. LJLlT111IIgtOII `' "';'.17,,,,,—,-'sr a "'#3 , Coat Factory SIGN`C' :, SIGN: 32"-BABY DEPOT" 7 �• y i , y SIGN TYPE: LE.D.CHANNEL STYLE LETTERS A s -I A SIGN + #4 ,. 51CN FACE: 3/16"RED PLEAT SIGN A s, ;�'. t''1 TRIM CAP: WHITE RETURNS: WHITE } 3r- & i fiLIGHTING: RED LED• , • SIGN B �s i.iT: t, 1• MOUNTING: FLUSH MOUNT LETTERS ,F' ' i •_..,, z + a+ " TAT r�j i }i. 3 ' SIGN"C^ AREA:64.16 SO.FT - "' -._- - - � - !, �; .t , rSIGN: 30'"HOME DECOR' , , r SIGN TYPE: LE.D.CHANNEL-STYLE LETTERS , go 1 ) - '.S - SIGN FACE: 3/16"RED PLEXI •j i #'-"" f �.T�e I • TR1:1 CAP: WHITE tl F •� .21',',,,' 1s` RETURNS: WHITE , .• I:-p- .. 1 f P ,stn t' r` } LIGHTING: RED LE.U. f 1 x # t k MOUNTING: FLUSH MOUNT LETTERS ".f s' �` A } z ^[, !t 10 I ~ • A' r'j k' Kt+l `i. I r SIGN"D" ,� i .i P SIGN: "BURLINGTON COAT FACTORY" ;. SIGN TYPE: 3x13'LEXAN PANEL + -- t; ".X.',.'.� ° k •, a ` *, t fit f .-""" "1,,,'.-, SIGN FACE: 3/25"WHITE PLEXI-RED VINYL OVERLAY _ -�-'' x,";. x _ . LETTERING: 20"WHITE DROP-OUT LETTERS r - . �yy ,� ,<:;. b1 r '+ `31 u' , ...✓✓✓"` 7 .¢`.' ti'�., I• SITE PLAN SCALE: NOT TO SCALE TOTAL ALLOWABLE AREA: 480.00 SQFT TOTAL SIGN AREA: 397.17 SQFT REVISIONS SALESMAN_ DWG DATE BURLINGTON COAT FACTORY REV.#1 DATE:07-11-08 BY:KF DM 07 02-2006' AL SE TN OTTER CREEK S/C REV.#2 DATE:07-21-08 BY:RU r TO BE L USED DRAWINGS FOR CONCEPTUAL ARE THE PROPERTY PURPOSES AL ONLY O SIGN UNTIL SC.1 AND D ELGIN,IL. DRAWN BY S D #1 AND DATED BY PROJECT MANAGER OR CUSTOMER.ANY USE i KF OPT #1 OF THESE DRAWINGS FOR OTHER PURPOSES IS PROHIBITED. / ..PHONE:(215)724-1724 ,.- ALTO SIGN FAX:(215)724-9088 A IN C9 ilk �1 RAT * FOR PRESENTATION PURPOSES ONLY ACTUAL SIGN MAY VARY, WWW ALTOSIGN.COM - SERVING THE RETAIL INDUSTRY SINCE RS? ALTO@ALTOSIGN.COM j 1 154'-8"LEASE LINE ■ ...--- - ------ 45 -4 + 65 7 1/4' 43' 8 I: ------ l EQ 11 0" EQ. I EQ. 34 9" EQ. ' EQ. 1 11 0' EQ I. 11 I -- , ■ J Ih1o1 wnnxniimll wmriiNgNn / 1 am�laul��n�mn�mn 1 1mm��NW�111 nl moil'diiiinlil:iilmla� !miiiimiliinnduniilini -- I I n I mI Im11 n I 1 IlIIWIII F INIaNp III mill 0 HIIIII N unl 1 IIIIaIIIaIIN 1".iii'Iii Ha911 iiiiiiiiiim d Iiiii 1 m anal 1 Imapmm mnmlmnnmlilmmmUIU man mamnplpry(ry�latl a p ry a Ilm 1 ._._ ..—...._ . ._ ..._!nm°815 11l95Umlm9951f)nmm�{nm)hl.m89ma Itlli9anm5985j98iP9918111mlan!Lm5j9!IIli)amm�mann!ffiIUW!l Ii�....�il.9lla _Ann,I it bab3r 11i'lington 'Some ., Depot Coat Factory Decor ri ,slfn nnnn.Eumxm 1um�,nindnmlmv____ m�nxiLil____fiViiHHtitiliiuiifi__..Lim..-„,i....1.-..i_,______- ._-__=,-nldulilifdm"iBitiaiiil6.11,iiiiiinanmmnrini.-=-=i-,--.-=-5ui '-1'6 1mnm1 m unaaxdumnx lmlmnNmmm--,-=nd&i,_-_miiiv7iµifiHi=_-_-#.,.l...."d'iifu'iw'➢ ____ = _ ==-- ---- _—= _ _�=�=�__=- —_�-�__?fin�___—_�_— =—_—=r--3�--- - ---=z_;rim--•-----='z-- _--=_= -- ALTO SIGN PHONE:(215)724-1724 EXISTING STOREFRONT IP FA X:(215)724-908 "'' y, INCORPORAT1A1[7 WWW.ALTOSIGN.COnt SERVING,...,.-........,..'""CE 195) ALTO @ALTOSIGN.COM y x' �' •Y t ' ^ r3 °�� $ *FOR PRESENTATION PURPOSES ONLY-ACTUAL SIGN MAY VARY PROPOSED STOREFRONT r�-3' -*�'7mz e,.,:r ra .r ? t r m.: a' x dt� r v i ;:,..„,.,,,:::..,24.,,,,,,,:,,,r,_ 1 fi` s i t 3 }. F/fir ,�k�r i *.'`f 3{A='N''',rid ' r y Y "x ' ` s '� t` i; tY"5-};taj$ira' tax S `". 21 s ,-( t i I iI+fit b. N F ki i::'," 2� _ } 3� x �4 y '' , 1 11 'S.'H r►auy t3urh • IR t '{3 til6?{ '4gs i x F ¢ la°�kJ ° u 'I Y' m Lfi"'•TS sir a ,+,d ,h.s a )'' .r^ x.�+,r,, v S:!.•nT m i+r. "btr"F ,°'�',t c'. : r^ aE..': 6 'a te`ir ;::':i '' .., ,--x -arc .a^. -c mot,•e 4- -''' ss` ''ts J';'�; �`'` _ _ �r " y ti» t a � ` - ` SIGNS: S9""BCE",32""BD"(30""HD" r , ..F,+ '' it tiT,` 'a.+a'r.'r,ON •.w� p !', n.gy -;,,,,,,,..,:n. L"'4 i ii n 't 1 ' R k •N h} `tl ,f.PI'"� 1 S;: k ;� � t ( �;} ,r.; �� SIGN TYPE: L.E.D.ILLUM CHANNEL-STYLE LETTERS } i ' I. ''' r:„4 'r` c�, .X K am rtM ',+ � ,y„ SIGN FACE: 3/16":x2418 RED FLEX! -. ,IbI >. „w'T i '-';', ,s46.0.0.4.4.71"- .. €M ... TRIM CAP: WHITE _...-._... .2r- ,. �Y:. RETURNS: WHITE a*'�+..., •,+"S I ' '9 l.1 v ..,r LIGHTING: RED L.E.D.ILLUM... - _... �" 4 � ,Iy ia.:,.:. '''1-"',F,, ^My'`Y ., .: d 2 F A 'I }y AL"d ,1'„,/,:..:;-,,,,,,:.,:.[. r�_ MOUNTING FLUSH MOUNT LETTERS & 3 ,a 4 n i V AkraR -4' `x. .� i Vii°,.2 T: F S S_ / REVISIONS SALESMAN DWG DATE ALL DRAWINGS ARE THE PROPERTY OF ALTO SIGN INC AND IGN SUPERIMPOSED SCALE N. ON_PHOTOGRAPH BURLINGTON COAT FACTORY REY.#1 DATE:07-11-08 BY:KF DM � �i07_02=2006 TO BE USED FOR CONCEPTUAL PURPOSES ONLY UNTIL SIGNED OTTER CREEK S/C REV.#2 DATE:07-21-08 BY:RU DRAWN BY _ S.D.#3 AND DATED BY PROJECT MANAGER OR CUSTOMER.ANY USE ELGIN,IL. - r Kt J OPT.#1 OF THESE DRAWINGS FOR OTHER PURPOSES IS PROHIBITED.• / ALTO SIGN. .,..PHONE:(215)724-1724 \ -..... .. ... _.... .... ..._ -._.._.. .. FAX:(215)724-9088 A INCORPORATED WWW.ALTOSIGN.COM SERVING THE aETA[t INDUSTRY SINCE 1957 ALTO @ALTOSIGN,COM 34'- 9" • EXISTING 59" 7'- 7" 6" 24 Coat Factory 11,- 0" 11,- 0" 32" baby 30" Home 6'- 6" 8" 5'- 10' 30" Depot 30" Decor SIGNS: 59""BCF',32"'BD"&30""HD" SIGN ELEVATIONS SCALE: N.T.S. SIGN PPE: L.E.D.ILL UM CHANNEL-STYLE LETTERS SIGN FACE: 3/16'x2415 RED FLEX) TRIM CAP WHITE ALLOWABLE SIGN AREA = 480.0 SQ. FT. RETURNS. WHITE ACTUAL SIGN AREA = 397.17 SQ. FT. I TOOTING. RED L.E.D.ILLUM. MOUNTING: FLUSH MOUNT LETTERS „ ('BCF'= 263.50 SQ. FT) ('BD'=69.51 SQ.FT) . - ('HD'= 64.16 SQ. FT,) REVISIONS SALESMAN DWG.DATE ALL DRAWINGS ARE THE PROPERTY OF ALTO SIGN INC AND BURLINGTON COAT FACTORY REV.#1 DATE:07-11-08 BY:RE F DM [07-02-2008 TO BE USED FOR CONCEPTUAL PURPOSES ONLY UNTIL S I GNED OTTER CREEK S/C REV.#2 DATE:07-21-08 BY:RU DRAWN BY AND DATED BY PROJECT MANAGER OR CUSTOMER.ANY USE ELGIN,IL. _ ( _ S,D.#4 C KF OPT.#1 OF THESE DRAWINGS FOR OTHER PURPOSES IS PROHIBITED, ALTOSIGN... PHONE:(215)724-1724 ........ .....,.. .. _..-. ..- .. ....... ., _... ....... ..... - -.. -. .. FAX.(215)724-9088 , A INCORPORATED WWW.ALTOSIGN.COM SERVING THE RETAIL INDUSTRY SINCE 1957 ALTO©ALTOSIGN.COM J J 3 ( Y •1 g' ., 1� STOREFRONT FASCIA -' v " I z' ' , . 1TRIM CAP (WHITE) ,, lasm�l'u tO it =c ,� '/4" BOLT THRU WALL II r rig; (-i ", 3/16" PLEXI FACE (RED #2415) 1 1 L.E.D. DETAIL 4 1` - 5" DEEP .063 ALUMINUM RETURN (WHITE) 1 ___, IL �,. j— RED L.E.D. ILLUMINATION II / I1 •-•-._, it h i1 3y "� 44 REMOTE POWER SUPPLY p;: * ' , ,,,t_„,_,r____..:4::' ISOMETRIC LETTER VIEW L.E.D. CHANNEL LETTER SECTION { te- REVISIONS SALESMAN DWG DATE ALL DRAWINGS ARE THE PROPERTY OF ALTO SIGN INC.AND BURLINGTON COAT FACTORY REV.#1 DATE:07-11-08 BY:KF r DM 07-02-2008 OTTER CREEK S/C REV.#2 DATE:07-21-08 BY:RU L_R S TO AND USED FOR CONCEPTUAL ROD EPTUAL PURPOSES C ONLY UNTIL ANY USE ELGIN,IL. DRAWN BY S.D.#5 AND DATED BY PROJECT MANAGER OR CUSTOMER.ANY USE s L KF OPT #1 OF THESE DRAWINGS FOR OTHER PURPOSES IS PROHIBITED. ALTO SIGN PHONE:(215)729-1724\ ... FAX:(215)724-9088 * FOR PRESENTATION PURPOSES ONLY.ACTUAL SIGN MAY VARY. A INCORPORATED WWW.ALTOSIGN.COM ;T VINE THE An INDUSTRY SINCE 1957 ALTOBrALTOSIGN.COM J 1 4 19'.4„ 2'-8" 14'-0" 2'-8" i 13'-8" -EQ. - - - EQ.- - .��� ��. I 1 12_11 i/2" — — ,� �r T- ' Kam 614/4/7i r //C"IiY var Li �� N ur1ington N ourlington - N N 1 Coat Factory , s - rill Coat Factory p.,, V ■ RED VINYL OVERLAY ON WHITE .,,,N - LEXAN W/ DROP-OUT LETTERING - MONUMENT FACE ELEVATION SCALE : 3/8"= 1'-0" ;- I,. ii E�[ LEI Ai If �_- r; N I t SIGN 11' SIGN: "BURLINGTON COAT FACTORY" \ '5.__ SIGN TYPE: 22"x 13'-8"LEXAN PANEL SIGN FACE: 3/16"WHITE PLEXI•RED VINYL OVERLAY MONUMENT SIGN ELEVATION SCALE : NOT TO SCALE LETTERING: 13"WHITE DROP-OUT LETTERS REVISIONS SALESMAN DWG.DATE BURLINGTON COAT FACTORY ----� ALL DRAWINGS ARE THE PROPERTY OF ALTO SIGN INC.AND OTTER CREEK S/C REV.#1 DATE:07-11-08 BY;KF L DM , �07-02-2008 TO BE USED FOR CONCEPTUAL PURPOSES ONLY UNTIL SIGNED IL REV.#2 DATE 07 21-08 BY:RU DRAWN BY S.D.#6 AND DATED BY PROJECT MANAGER OR CUSTOMER.ANY USE KF OPT.#1 OF THESE DRAWINGS FOR OTHER PURPOSES IS PROHIBITED. ...,..._.ELGIN!,,.. EXHIBIT "H" Other Tenant Exclusive Uses and Additional Restrictions Landlord represents that each of the tenants listed on this Exhibit were occupying leased space at the Shopping Center on the Effective Date pursuant to lease in force on the Effective Date and that the exclusive use rights and prohibited use provisions recited below are true copies of the text from each of those tenant's leases as of the Effective Date and that no part of the text from any tenant's lease has been omitted where such omission would make the following text misleading. Tenant shall not operate within the Demised Premises where such operation would be violative of the rights granted by Landlord in the text below or would be prohibited by Landlord's covenant not to permit one or more of the activities that are proscribed by the text below. Notwithstanding the foregoing, Tenant shall not be bound by the restrictions or prohibitions in the text below from and after the first time that Landlord is not bound by such provisions, such as, but not limited to when the respective restriction or prohibition is no longer in effect under the lease within which it was contained. 1. Chaslyn Group, expiration date of June 30, 2012: So long as the lease with Chaslyn Group continues and subject to tenant's occupying and active use of the entire premises, Tenant shall not enter into the primary business of a party store or a card store, such as Party City, Factory Card & Party Outlet or Hallmark. Lease provisions attached. 2. Alpha-Corn, Inc., expiration date of October 31, 2011: So long as the lease with Alpha- Corn, Inc. remains in effect and the tenant's exclusive use right continues, Tenant agrees that it shall not enter into the primary business of the sale, rental or installation of cellular car telephones,portable cellular phones and pagers. Lease provisions attached. 3. Office Max, expiration date of November 30, 2013: So long as the lease with Office Max remains in effect and the tenant's exclusive use right continues, Tenant agrees that its primary business shall not be the sale of office, home office, school or business supplies or equipment; mobile telephones or pagers; office furniture; or electronics (including by way of example those businesses operated by Office Depot, Staples, Office Shop Warehouse, Mail Boxes, Etc., and Workplace), or for use as a business support center, copy center or"Kinko"type of operation. This restriction shall not be applicable to a tenant whose primary use is the sale of Residential Consumer Electronics (including by way of example those businesses operated by Circuit City, Best Buy and Radio Shack). Lease provisions attached. 4. Cole Vision, expiration date of November 30, 2008: So long as the lease with Cole Vision remains in effect and the tenant's exclusive use right continues, Tenant agrees that Tenant shall not operate as an optical store or department. Lease provisions attached. BCF.Elgin.Lease.6 08/19/08 LC 5. GNC, expiration date of October 31, 2008: So long as the lease with GNC remains in effect and the tenant's exclusive use right continues, Tenant agrees it shall not use the Demised Premises primarily for the operation of a store which engages in the sale of vitamins,minerals, supplements, health-related cosmetics and beauty aids, sports and nutrition products, exercise equipment and apparel, and health-related food products; Lease provisions attached. 6. Hobby Lobby, expiration date of March 31, 2013: So long as the lease with Hobby Lobby remains in effect, Tenant understand that no portion of the Shopping Center with 350 of the Hobby Lobby premises shall be used for (a) any purpose other than retail store selling at retail merchandise normally carried in other quality shopping centers, (b) financial institutions, (c) service shops, (d) professional offices and (e)parking and loading areas. No bowling alley, theater, billiard parlor, night club or the uses set forth on Exhibit"E"of the Hobby Lobby lease shall be operated in the Shopping Center unless designated on Exhibit "A" of the Hobby Lobby lease or approved in writing by the tenant. 7. Sally Beauty, expiration date of January 31, 2009: So long as the lease with Sally Beauty remains in effect and the tenant's exclusive use right continues,Tenant agrees that Tenant shall not operate as a store for the sale of beauty supplies and related items. Lease provisions attached. 8. Ronald L. Lupo d/b/a Postnet, expiration date of May 31, 2011: So long as the lease with Postnet remains in effect and the tenant's exclusive use right continues, Tenant agrees it shall not use the Demised Premises primarily for the purpose of offering shipping service, rental of private mailboxes, and packaging services. Applies only to stores of less than 5,000 square feet. Lease provisions attached. 9. Great Clips, Inc., expiration date of September 30, 2011: So long as the lease with Great Clips, Inc. remains in effect and the tenant's exclusive use right continues, Tenant agrees that Tenant shall not operate as a full service hair salon. Lease provisions attached. BCF.Elgin.Lease.6 08/19/08 LC I/+Ell i li;uii+ in i'■1 EI E ; I I Ii r 1 11II I li E�i ililt`:IiIIII IIII III: This Instrument Prepared L-2 1Z/ ' R 0 4 2 7 0 2 by and Return After Recording to: `_7ANIDlr WEGMAN F . Fr:;~'R - F ANE COUNTY, IL Christopher J. Beck , :,0,,,, Pr City of Elgin �� _ Legal Department 150 Dexter Court Elgin IL 60120-5555 EASEMENT AGREEMENT THIS EASEMENT AGREEMENT made and entered into this g''day of %VAL, , 2009, by and between the City of Elgin, an Illinois municipal corporation, (hereinafter referred to as the "City"), and Otter Creek, LLC, an Illinois limited liability company, (hereinafter referred to as the"Grantor"). WITNESSETH WHEREAS, Grantor owns the real property depicted on Exhibit A, attached hereto and incorporated herein by this reference, located along Randall Road, Elgin, Illinois, and having Permanent Index Number 06-21-105-001 (hereinafter referred to as the"Subject Property"); and, WHEREAS,the City desires to obtain a permanent easement from the Grantor for the purposes of constructing, maintaining, operating and repairing a sewer line over that portion of the Subject Property depicted by the area designated "Sanitary Sewer Easement" on Exhibit A and legally described on Exhibit B,attached hereto and incorporated herein by this reference(hereinafter referred to as the "Easement Premises"); and, WHEREAS, the City further desires to obtain a temporary construction easement from the Grantor for the purposes of constructing said sewer line over that portion of the Subject Property depicted by the areas designated "Temporary Construction Easement" on Exhibit A and legally described on Exhibit C,attached hereto and incorporated herein by this reference(hereinafter referred to as the "Temporary Construction Easement Premises"); and, C py - 1 - WHEREAS,Grantor has agreed to grant such easements to the City for such purposes and pursuant to the terms and conditions of this Easement Agreement. NOW,THEREFORE,for and in consideration of Four Thousand Dollars($4,000.00) in hand paid to Grantor, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. That Grantor being the owner of the Subject Property,does hereby grant to the City a permanent and exclusive easement for the construction, installation,maintenance,operation and repair of a sewer line, along with any appurtenances or facilities related thereto, within, over, under, along, across and through the Easement Premises. 2. That Grantor does hereby further grant to the City a temporary construction easement allowing access over,within,under, along, across and through,and use of the Temporary Construction Easement Premises for the purpose of constructing,installing,maintaining,operating or repairing said sewer line under and through the above-described Easement Premises. The temporary construction easement hereby granted shall be deemed terminated after the thirty-six(36) month period following the commencement of construction within the Easement Premises. 3. That following the exercise by the City of any easement rights granted herein, the City shall promptly repair and restore the Easement Premises and the Temporary Construction Easement Premises to the same condition as existed immediately prior to the existence of such rights as is reasonably practicable and shall leave the Easement Premises and the Temporary Construction Easement Premises and surrounding premises free from debris. 4. That the City for itself,its agents and independent contractors,hereby agrees to indemnify and hold Grantor and its successors harmless from third party claims for personal injuries or property damage arising directly as a result of the City's work in the Easement Premises and the Temporary Construction Easement Premises during construction or during any subsequent maintenance or repair thereof. The City further agrees to indemnify and hold harmless Grantor from any and all liens placed against the Easement Premises or the Temporary Construction Easement Premises arising from said construction activities. - 2 - 5. That the Grantor and its successors shall not construct any structures or buildings nor plant any trees on the Easement Premises nor undertake any other activities on the Easement Premises which unreasonably interfere with the City's intended use of the Easement Premises. 6. That no amendment,revision or modification hereof shall be effective unless it is in writing and signed by all parties hereto. 7. That this agreement constitutes the entire agreement between the parties and is intended as a complete and exclusive statement of the terms of the parties agreement, and it supersedes all prior and concurrent promises,representations,proposals,negotiations, discussions and agreements that may have been made in connection with the subject matter hereof. 8. That this agreement shall be governed by and construed in accordance with the laws of the State of Illinois. 9. That the City may utilize the services of third party contractors, employees or other agents to perform work in either the Easement Premises or the Temporary Construction Easement Premises. 10. That Grantor hereby represents and warrants to the City that it is the fee simple title holder of the Easement Premises and the Temporary Construction Easement Premises and that it has the full power and authority to enter into and make the grant of easement as provided herein. 11. That this agreement shall be binding on the parties hereto,their successors and permitted assigns and shall run with the land. 12. That this agreement shall be recorded by the City at the City's cost with the Kane County Recorder. - 3 - • IN WITNESS WHEREOF,the parties have entered into and executed this Easement Agreement on the date and year first written above. CITY OF ELGIN OTTER CREEK, LLC By: By: 1111■ • ayor S4-e 4.* k�{iPi! Attest: A . Its: City Clerk Attest: F:\Legal Dept\Agreement\Easement-Allied District-Lot 5-Otter Creek Incentive Agr.doc - 4 - • STATE OF ILLINOIS ) ) SS. COUNTY OF KANE ) I,the undersigned, a Notary Public,in and for said County, in the State aforesaid,do hereby certify that Ed Schock,Mayor, and Diane Robertson, City Clerk,personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their free and voluntary act for the uses and purposes therein set forth. Given under my hand an official seal, this .Y2day of April, 2009. Notary Public/ "OFFICIAL SF'IL" MARY GIFFORT STATE OF ILLINOIS ) Notary public,Stale of Illinois SS. My Commission Expires 06/13 12012 COUNTY OF KANE I,the undersigned,a Notary Public,in and for said County,in the State aforesaid,do hereby certify that Stelios Aktipis is personally known to me to be the same person whose name is subscribed to the foregoing instrument,appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his free and voluntary act of the uses and purposes therein set forth. Given under my hand an official seal, this a6 day of March, 2009. �.��• .r' Notary Publi'/ 'O FiciAL SLAL" MARY GIFFORT lt$ry itialc,State et!lanais t�, t^'Ssicxl Eras 06/13/2012 - 5 - EXHIBIT A Plat of Easement,prepared by Barrington Engineering Consultants,Ltd., last revised September 12, 2007, to be inserted. - 6 - PLAT OF EASEMENT * . TEMPORARY CONSTRUCTION EASEMENT II I I 1 I DARLENE msreemOTT SUBDIVISION 1 .ART OF LOT INDAEE EMODEw°,SMONwwlENOA lLIs EVISIO.nl mw THE SONIAVEST II I for e THAT SECTOR m nw v"ARa MNORINSEST MARTEN or SECTSEMI./N 1..0"N TTORTEMv.t MOM,R E II I i I EAST OMK OEWCRREO AS FOLLOWS COa0NCN0 AT THE SOME.'CORER 0, I I " SO eo 30 0 SAO Lamrt NORTH IR DEGRE°.031ANnE4 m SECONDS WEST ALONG THE Samenr UM OF MO 1 LOT OF RATUE;nENCE WESTERLY ALONG THE SOUTHERLY LIE BEND ALCM A RADIOS OF3mmFEE.AMMD WAND NORM RMORE�.m 1 1 Nero yw Scale 1'=30' CURVE.®.E DSWES1,ANARCOMAN.Of N,EE TFOR THEPONTOFIECENN,THENCENORGOI, I�� PONT amavrE am SECWDSWEBT MST FEET TO NOW MIME NORTNME2IERV UNE K uO LOTS. I II aamwETMELYOFTM MOST NOR NNEWERLY CORNER V IMO LOT a Gou g KENN FEET S.STwEsWge AL EADNdnWrEaTERY UM OF LCR 430.SO FEET: II�II I / THEW! 0 OMFSr MO.n.A TDAIT, sMOM NSMEAV MEW 1 MURIEL ELISABETH KAY RESUSDNISIOJ L A CUM OeNCE wRICY ALONG IAO SOM.,LIM mNG ALONG A 1 1 DOC.NO.MIKOSBSSA CLEMCCMC VE.TTOTOHTHESOUTH HAVING A RAGA a D300 FEET,MVmgeaNO Rama DEGEES.t I I LOT wEGOfWYr.LNG.. •:w ARC D�A OF 35112 FEET /OW GF.Ea.N�.NTMOm ExC 1101 i, / I/ I I 1 a SANITARY SEWER EASEMENT lII lR I / I R.O.w. nMTPART DF OARLEM MATO.tTM rtawrrErt rcTONa..Pan na \ Li I er I SOUTISSEST NORTHEAST, aMREROFEECTONaArOV OE I \g I q T TNORaM RAN.0 EAST OF Ile MEW raNCru MERroux x!0001113 AS FOLLOWS; Ir7 1 ryY I IIEGFOENO AT SOmHIlNT CANER OF MO LOT S;DENTE XDRM m DEGINPE4mwNHEIIm !#5.` WANDS ALP SO SO eR.OF MO LOT S.sao FEET TO A FONT RORVATOE: MURIEL ELISABETH O KAY RESUBOMSION I / Q THEN.MESTERY.ALONG THE N IRE SUM AnENE CONCAVE TO 11M Waal WANG A DOC.NO BOKOBBSSE 1 t I \ O RAMS OF 3S3 a FEET.A CHORD SEAR.NORM E DEGREES,a MMIES.m SECONDS WEST.AN AK FONTOr.OF OM FEErTENCEKRT.U OEOREM a MwRFS.CS IEeanI WEST ax E FEET TO A LOT I I\ \ / I� Cr MOST NmoNMTEEmOH Of LOT a SAO ET TETiTIOED.SS7 FEET Sn RUES 07 KA i \ \ iI� • W SAID THE FAST ALONG ME HpEHNESTFAN LNE A OD MT;THENCE SOUTH D DEGREES.a MARES WEED.= 1 1 1 �s�( EAST la a FEET;THENCE SON.THE EASTERLY ME OF SAD LOT a ME SOUTHHD.x4Ee S3 UN. ITMCGUT TOAroWM !\ / I i T OIHEIDWOFREGNNNG.NTHECRY.WIN.KAMCOM ELMS^EEVDewu .nom N45 '07(_ /\ SS = S 45•29;0`7"W — � �7 dA� \\:�/ 1 if 30600' �\�\\ ` I 0 SANITARY SEWER EASEMENT 0.15 Acres TEMPORARY CONSTRUCTION EASEME,N`�/ // Epil�3yF;�� _�g0.41_' I 0.09 Acres �,�%,� \3Gt. •.., �E000.10^ f' / II / d• 1 - ' . 07°53'17"E —_ / / '��-� 1 19.73' POIMd .ncemeM of Temporary Cons .- Easement I t �/ ?"7/ .• \ y130ar aomcm:.. .of Sanitary sewer Faeement� 4' / 6o \ 28.00' 1 0 uE°e °" eEe. //� , / - $L N 82•00'53-W C.1 pEm A D _-- --,/ / '(�� Arc 38.52'_\ 8• e 233.00' _ G' ,4,e s CIL•38.78• Are.47.84' I R" r N 81'41'37"E Ch 47.78' a 1IN' F� p S 87'53'50"E ____°�'TGDCA.EeowxG 01,./9V 4 �A Y'' �}/r/yq,L BRA Poin[or Beglnni dTempaery MURIEI ELISABETH KAY GtEw /�" �L��o Y COTLSmICLb11 RIBM IRESUODMISIOO DOC.NO.BBKOBOESE s' F�, LOT f I I �,� / a I I v f f 1 0 / z I Q Il / /. Lb. DARLENE McDERMOTT SUBDMSION Q/ / i '- pAM116. / �' LOT E / /''/ / I I • �� I s � N I �_ // I PLAT OF EASEMENT ''S 1E; CERTEY COAT at NAVE aREawaEO'REBUT HEREON / / // / �� `� s �2foEOUeHwN.p PLAT NEaEwauMNEA / i �—� _. �t & Woodman -.3h GssTN.Ew000MAMmMaR ,L,D./,,R�M)./�/r 'i.i mwN Ns.Al rssG x. ..e MY PROFESSIONAL LICENSE REEWALwre E 11.7010 'KIM Da1ES r1 a-mrr IIA:ISMS rA>. ■ .mEAa de a . MEW:E,.NIEN 030681 EXHIBIT B SANITARY SEWER EASEMENT THAT PART OF LOT 5 IN DARLENE MCDERMOTT SUBDIVISION BEING A SUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF SECTION 16, PART OF THE SOUTHEAST QUARTER OF SECTION 17, PART OF THE NORTHEAST QUARTER OF SECTION 20 AND PART OF THE NORTHWEST QUARTER OF SECTION 21, ALL IN TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 5; THENCE NORTH 82 DEGREES, 00 MINUTES, 53 SECONDS WEST ALONG THE SOUTHERLY LINE OF SAID LOT 5, 28.00 FEET TO A POINT OF CURVATURE; THENCE WESTERLY, ALONG THE SOUTHERLY LINE BEING ALONG A CURVE CONCAVE TO THE SOUTH HAVING A RADIUS OF 233.00 FEET, A CHORD BEARING NORTH 87 DEGREES, 53 MINUTES, 50 SECONDS WEST, AN ARC DISTNCE OF 47.84 FEET; THENCE NORTH 43 DEGREES, 39 MINUTES,05 SECONDS WEST 139.97 FEET TO A POINT ON THE NORTHWESTERLY LINE OF SAID LOT 5, SAID POINT BEING 288.60 FEET SOUTHWESTERLY OF THE MOST NORTHWESTERLY CORNER OF SAID LOT 5; THENCE NORTH 45 DEGREES, 29 MINUTES, 07 SECONDS EAST ALONG SAID NORTHERLY LINE 20.00 FEET; THENCE SOUTH 43 DEGREES, 39 MINUTES, 05 SECONDS EAST 86.39 FEET; THENCE SOUTH 85 DEGREES,00 MINUTES, 10 SECONDS EAST 105.41 FEET TO A POINT ON THE EASTERLY LINE OF SAID LOT 5; THENCE SOUTH 07 DEGREES, 53 MINUTES, 17 SECONDS WEST 49.73 FEET TO THE POINT OF BEGINNING, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. - 7 - EXHIBIT C TEMPORARY CONSTRUCTION EASEMENT THAT PART OF LOT 5 IN DARLENE MCDERMOTT SUBDIVISION BEING A SUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF SECTION 16, PART OF THE SOUTHEAST QUARTER OF SECTION 17,PART OF THE NORTHEAST QUARTER OF SECTION 20 AND PART OF THE NORTHWEST QUARTER OF SECTION 21, ALL IN TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID LOT 5; THENCE NORTH 82 DEGREES, 00 MINUTES, 53 SECONDS WEST ALONG THE SOUTHERLY LINE OF SAID LOT 5, 28.00 FEET TO A POINT OF CURVATURE; THENCE WESTERLY ALONG THE SOUTHERLY LINE BEING ALONG A CURVE CONCAVE TO THE SOUTH HAVING A RADIUS OF 233.00 FEET, A CHORD BEARING NORTH 87 DEGREES, 53 MINUTES, 50 SECONDS WEST, AN ARC DISTANCE OF 47.84 FEET FOR THE POINT OF BEGINNING; THENCE NORTH 43 DEGREES,39 MINUTES,05 SECONDS WEST 139.97 FEET TO A POINT ON THE NORTHWESTERLY LINE OF SAID LOT 5, SAID POINT BEING 288.60 FEET SOUTHWESTERLY OF THE MOST NORTHERLY CORNER OF SAID LOT 5; THENCE SOUTH 45 DEGREES,29 MINUTES,07 SECONDS WEST ALONG SAID NORTHWESTERLY LINE OF LOT 5, 30.00 FEET; THENCE SOUTH 43 DEGREES, 39 MINUTES, 05 SECONDS EAST 118.24 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID LOT 5 SAID POINT BEING ON A CURVE; THENCE EASTERLY ALONG SAID SOUTHERLY LINE BEING ALONG A CURVE CONCAVE TO THE SOUTH HAVING A RADIUS OF 233.00 FEET, A CHORD BEARING NORTH 81 DEGREES, 41 MINUTES, 37 SECONDS EAST, AN ARC DISTANCE OF 36.82 FEET TO THE POINT OF BEGINNING,IN THE CITY OF ELGIN,KANE COUNTY, ILLINOIS. - 8 - HiililiHUn1 II {I{ !H! !ii 0111011 !il 111E111 �z II This Instrument Prepared by and Return After .e.2 „ S K'23 4 7 CZ) 1 Recording td: Christopher J. Beck } S`ANDYKAWEGMANL City of Elgin Legal Department , '22,3 0.t 150 Dexter Court Elgin IL 60120-5555 EASEMENT AGREEMENT THIS EASEMENT AGREEMENT made and entered into this 0 day of O , 2009, by and between the City of Elgin, an Illinois municipal corporation, (hereinafter referred to as the "City"), and Otter Creek, LLC, an Illinois limited liability company, (hereinafter referred to as the"Grantor"). WITNESSETH WHEREAS, Grantor owns the real property depicted on Exhibit A, attached hereto and incorporated herein by this reference,commonly known as 200-268 South Randall Road,Elgin, Illinois,and having Permanent Index Number 06-20-227-001 (hereinafter referred to as the"Subject Property"); and, WHEREAS,the City desires to obtain a permanent easement from the Grantor for the purposes of constructing,maintaining,operating and repairing sanitary sewer lines and appurtenance related thereto over that portion of the Subject Property depicted by the area designated"Proposed 20' Easement for Sanitary Sewer"on Exhibit A and legally described on Exhibit B,attached hereto and incorporated herein by this reference(hereinafter referred to as the"Easement Premises"); and, WHEREAS,Grantor has agreed to grant such easements to the City for such purposes and pursuant to the terms and conditions of this Easement Agreement. NOW,THEREFORE, for and in consideration of Ten Dollars($10.00)in hand paid to Grantor,and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: _ 1 _ e ° P 1. That Grantor,being the owner of the Subject Property,does hereby grant to the City a permanent and exclusive easement to install,construct,operate, use,maintain,locate,upgrade, repair, service, remove or replace sewer lines, along with any appurtenances or facilities related thereto, within, over, under, along, across and through the Easement Premises. 2. That Grantor does hereby further grant to the City a temporary construction easement allowing access over, within, under, along, across and through, and use of the Subject Property for the purpose of constructing, installing, maintaining, operating or repairing said sewer line under and through the above-described Easement Premises. The temporary construction easement hereby granted shall be deemed terminated after the thirty-six (36)month period following the commencement of construction of the sewer line improvements within the Easement Premises. 3. That following the exercise by the City of any easement rights granted herein, the City shall promptly repair and restore the Easement Premises to the same condition as existed immediately prior to the existence of such rights as is reasonably practicable and shall leave the Easement Premises and surrounding premises free from debris. 4. That the City for itself,its agents and independent contractors,hereby agrees to indemnify and hold Grantor and its successors harmless from third party claims for personal injuries or property damage arising directly as a result of the City's work in the Easement Premises during construction or during any subsequent maintenance or repair thereof. The City further agrees to indemnify and hold harmless Grantor from any and all liens placed against the Easement Premises arising from said construction activities. 5. That the Grantor and its successors shall not construct any structures or buildings nor plant any trees on the Easement Premises nor undertake any other activities on the Easement Premises which unreasonably interfere with the City's intended use of the Easement Premises. 6. That no amendment,revision or modification hereof shall be effective unless it is in writing and signed by all parties hereto. - 2 - 7. That this Agreement constitutes the entire agreement between the parties and is intended as a complete and exclusive statement of the terms of the parties agreement, and it supersedes all prior and concurrent promises, representations, proposals,negotiations, discussions and agreements that may have been made in connection with the subject matter hereof. 8. That this Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. 9. That the City may utilize the services of third arty contractors, employees or other agents to perform work in the Easement Premises. 10. That Grantor hereby represents and warrants t the City that it is the fee simple title holder of the Easement Premises and that it has the full powe and authority to enter into and make the grant of easement as provided herein. 11. That this agreement shall be binding on the parties hereto,their successors and permitted assigns and shall run with the land. 12. That this agreement shall be recorded by the City at the City's cost with the Kane County Recorder. SIGNATURE PAGE TO FOLLOW - 3 - IN WITNESS WHEREOF,the parties have entered into and executed this Easement Agreement on the date and year first written above. CITY OF ELGIN OTTER CREEK, LLC B By: Amor i y: ��.«� Mayo_ .5-Fe U05 Ak4. pb Attest: Its: City Clerk Attest: F:\Legal Dept\Agreement\Easement-Allied District-Shales-Otter Creek Incentive Agr.doc - 4 - STATE OF ILLINOIS ) ) SS. COUNTY OF KANE ) I,the undersigned, a Notary Public, in and for said County,in the State aforesaid, do hereby certify that Ed Schock,Mayor, and Diane Robertson, City Clerk,personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their free and voluntary act for the uses and purposes therein set forth. Given under my hand an official seal, this day of April, 2009. J Notary 'ublii 'oI FICIAL SEAL" <M MARY GIFFORT STATE OF ILLINOIS ) l� ry�utc,date ai Illinois SS. h Curamisaib E fires 0611312012 COUNTY OF KANE ) I,the undersigned, a Notary Public,in and for said County,in the State aforesaid,do hereby certify that Stelios Aktipis is personally known to me to be the same person whose name is subscribed to the foregoing instrument,appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his free and voluntary act of the uses and purposes therein set forth. Given under my hand an official seal, this oe-J day of March, 2009. lei∎��,/.d. Notary ' . . ;� #7 "OFFICIAL SEAL" MARY GIFFORT New PUbilc,State of Illinois Mg n Wires 06/13/2012 - 5 - EXHIBIT A Plat of Easement, prepared by Alan J. Coulson, P.C., dated June 19, 2008, to be inserted. - 6 - EXHIBIT B A 20 FOOT EASEMENT DESCRIBED AS: A 20.0 FOOT EASEMENT IN LOT 11 IN DARLENE MCDERMOTT SUBDIVISION, BEING A SUBDIVISION OF THE SOUTHWEST QUARTER OF SECTION 16,PART OF THE SOUTHEAST QUARTER OF SECTION 17,PART OF THE NORTHEAST QUARTER OF SECTION 20,AND PART OF THE NORTHWEST QUARTER OF SECTION 21,ALL IN TOWNSHIP 41 NORTH,RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN,IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. THE CENTERLINE OF SAID EASEMENT DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF LOT 11 IN DARLENE MCDERMOTT SUBDIVISION; THENCE SOUTH 20 DEGREES 12 MINUTES 54 SECONDS WEST ALONG THE WESTERLY LINE OF SAID LOT 11, A DISTANCE OF 483.37 FEET TO AN ANGLE POINT ON THE WESTERLY LINE OF SAID LOT 11; THENCE SOUTH 09 DEGREES 06 MINUTES 16 SECONDS WEST ALONG SAID WESTERLY LINE, 436.72 FEET TO THE POINT OF BEGINNING OF THE CENTERLINE OF SAID EASEMENT; THENCE SOUTH 80 DEGREES 53 MINUTES 44 SECONDS EAST,41.01 FEET;THENCE SOUTH 08 DEGREES 50 MINUTES 55 SECONDS WEST,328.28 FEET; THENCE SOUTH 30 DEGREES 26 MINUTES 54 SECONDS EAST, 199.51 FEET TO THE POINT OF TERMINATION,ALL IN KANE COUNTY,ILLINOIS. - 7 - i 1i j 1 l I, n ! iiIII This Instrument Prepared by and Return After ;ANDY' WEGMAN Recording to: `zGt: - KANE CC NT'r, :7 Christopher J. Beck - City of Elgin ,' Legal Department 150 Dexter Court Elgin IL 60120-5555 EASEMENT AGREEMENT THIS EASEMENT AGREEMENT made and entered into this day of , 2009, by and between the City of Elgin, an Illinois municipal corporation, (hereinafter referred to as the "City"), and Otter Creek, LLC, an Illinois limited liability company, (hereinafter referred to as the"Grantor"). WITNESSETH WHEREAS, Grantor owns the real property depicted on Exhibit A, attached hereto and incorporated herein by this reference, commonly known as 200-268 South Randall Road,Elgin, Illinois, and having Permanent Index Number 06-20-227-001 (hereinafter referred to as the"Subject Property"); and, WHEREAS,the City desires to obtain a permanent easement from the Grantor for the purposes of constructing,maintaining, operating and repairing a sewer line over that portion of the Subject Property depicted by the area designated "Sanitary Sewer Easement" on Exhibit A and legally described on Exhibit B,attached hereto and incorporated herein by this reference(hereinafter referred to as the "Easement Premises"); and, WHEREAS, the City further desires to obtain a temporary construction easement from the Grantor for the purposes of constructing said sewer line over that portion of the Subject Property depicted by the areas designated "Temporary Construction Easement" on Exhibit A and legally described on Exhibit C,attached hereto and incorporated herein by this reference(hereinafter referred to as the "Temporary Construction Easement Premises"); and, Pti 0 - 1 - WHEREAS,Grantor has agreed to grant such easements to the City for such purposes and pursuant to the teinis and conditions of this Easement Agreement. NOW, THEREFORE, for and in consideration of Eighty Thousand Dollars ($80,000.00) in hand paid to Grantor, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. That Grantor being the owner of the Subject Property,does hereby grant to the City a permanent and exclusive easement for the construction,installation,maintenance,operation and repair of a sewer line, along with any appurtenances or facilities related thereto, within, over, under, along, across and through the Easement Premises. 2. That Grantor does hereby further grant to the City a temporary construction easement allowing access over,within,under,along, across and through, and use of the Temporary Construction Easement Premises for the purpose of constructing,installing,maintaining,operating or repairing said sewer line under and through the above-described Easement Premises. The temporary construction easement hereby granted shall be deemed terminated after the thirty-six(36) month period following the commencement of construction within the Easement Premises. 3. That following the exercise by the City of any easement rights granted herein, the City shall promptly repair and restore the Easement Premises and the Temporary Construction Easement Premises to the same condition as existed immediately prior to the existence of such rights as is reasonably practicable and shall leave the Easement Premises and the Temporary Construction Easement Premises and surrounding premises free from debris. 4. That the City for itself,its agents and independent contractors,hereby agrees to indemnify and hold Grantor and its successors harmless from third party claims for personal injuries or property damage arising directly as a result of the City's work in the Easement Premises and the Temporary Construction Easement Premises during construction or during any subsequent maintenance or repair thereof. The City further agrees to indemnify and hold harmless Grantor from any and all liens placed against the Easement Premises or the Temporary Construction Easement Premises arising from said construction activities. - 2 - • 5. That the Grantor and its successors shall not construct any structures or buildings nor plant any trees on the Easement Premises nor undertake any other activities on the Easement Premises which unreasonably interfere with the City's intended use of the Easement Premises. 6. That no amendment,revision or modification hereof shall be effective unless it is in writing and signed by all parties hereto. 7. That this agreement constitutes the entire agreement between the parties and is intended as a complete and exclusive statement of the terms of the parties agreement, and it supersedes all prior and concurrent promises, representations, proposals,negotiations, discussions and agreements that may have been made in connection with the subject matter hereof. 8. That this agreement shall be governed by and construed in accordance with the laws of the State of Illinois. 9. That the City may utilize the services of third party contractors, employees or other agents to perform work in either the Easement Premises or the Temporary Construction Easement Premises. 10. That Grantor hereby represents and warrants to the City that it is the fee simple title holder of the Easement Premises and the Temporary Construction Easement Premises and that it has the full power and authority to enter into and make the grant of easement as provided herein. 11. That this agreement shall be binding on the parties hereto,their successors and permitted assigns and shall run with the land. 12. That this agreement shall be recorded by the City at the City's cost with the Kane County Recorder. - 3 - IN WITNESS WHEREOF,the parties have entered into and executed this Easement Agreement on the date and year first written above. CITY OF ELGIN OTTER CREEK, LLC By: / �� ►1� By: ■ l Mayor 54e-lios 1%-k4-1/4p • Attest: .�o� Its: City Clerk Attest: F:\Legal Dept\Agreement\Easement-Allied District-Lot 11-Otter Creek Incentive Agr.doc - 4 - • STATE OF ILLINOIS ) ) SS. COUNTY OF KANE ) I, the undersigned, a Notary Public, in and for said County,in the State aforesaid,do hereby certify that Ed Schock,Mayor, and Diane Robertson, City Clerk,personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their free and voluntary act for the uses and purposes therein set forth. Given under my hand an official seal, this VAIL day of April, 2009. - Nota Pu61 i "OFFICIAL SEAL" MARY G1FFOr` T STATE OF ILLINOIS ) Notary Public,Nate of Illinois ) SS. My Commission Expires 0611312012 .t COUNTY OF KANE I,the undersigned, a Notary Public,in and for said County,in the State aforesaid,do hereby certify that Stelios Aktipis is personally known to me to be the same person whose name is subscribed to the foregoing instrument,appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his free and voluntary act of the uses and purposes therein set forth. ,u Given under my hand an official seal, this of -- day of March, 2009. Notary Pu y is A/ °OFFICIAL SEAL" • MARY GIFFGRT Pubfic,State of Eliinofs My Commission Wires 06113/2012 - 5 - EXHIBIT A Plat of Easement,prepared by Barrington Engineering Consultants,Ltd., last revised September 12, 2007, to be inserted. - 6 - PLAT OF EASEMENT N 7*--- 100 300 moiiiLl 303 NO TEMPORARY comemucrou EAREMEIR TINT PORT OF LOT 11 84 M0184011E13VOIONEENOANmalTE0 Scale 1"=100' eOUTIOVR:BO EMMY,4PANTffnaeum..sT • _ INSNON11EA4TaARTENEEC11wBANO T>RNE1111,A,NOM OEOYMO AT MLIFT NOSTIOSTEM COMER O SOlOT 11:I11B1fi LLFIN MST INNO Tl O�IDTN, TIM FfET,TNENCE SOON O THEWS 80LITS 011060466.8111 1488.1TY411313.401181171T,NM/FM TO A PONT ON TO IIMITIILINE OF SOOLOT 11 SOOPCOR DEMO.7.53 FEET WESTERLY CIF TNE EE• O• WIKOIOMO NCIFM LEE OF UN 11.3001FEET:114O,CENEMO 37▪41118.11.28.1OCCINOS MST SLIM FE87,11410.1‘1•714 31 COOPEES Or IMUTE1148111ECCM•WIT 411.74 FEET TOSPONT ON Of 6OIOET Ot oFS. LOT 11 NO POINT MONO WEE FEET MY TK mar MRNF/m,F0.T OMN10 8NOLOT 11;THENCE NOTN11EOQNO■N41T0 VISEC OIwPSTMLNi WO OMEN,LINE OF LOT II,80.21 FEET TOTE POINT O EGINOO.IN THE OW UNWARY SEWER EASEMENT • PTOR(H LID TINT PARE O LOT I,NORBSE Mm 147.7EEOYFOOAMmd OF MT O TIE EOFFIREST OMMB,O SET,0114 MOTOTE SOTE/AT pW R COMM Oa•:TIONO.NOT OF TIE 1[NOMTT COMM OF mem«IDONO TO Wt,Nmt O TKTYMNNI1ML 140113841,E10BmNFOILONO CPNE ICNO ATM MET 1RB11EOMT COMOOMO.11;INENCS SOUTH MI R f uor .O TIE PONT O sEONXY4 TWICE SOWN 31 01031113E8 OT IMMO MINOR,�m TSB=sOOMTBVoman 011110417.11 41 NOMA w o�y T,...7 WEST 1000,118 MET TO APOINT°N ` MBIOT II,MOPONT y OF BEM UM PM MIT E ^OmlennuCOwBI OMB LOT II:TBE< ME a .s* 0 EmEA ,EOLVaBAMTAIOOTRNwrNLtOMO G AaeTiEXa HORNis EaWOOMMI® ITIEN I FR ECO M M17 A. n,ECOUN T,LIAM S 'riMnD SI 4.,0 Mn nre 02 p 5 4 Grv. Lei a V / 0 .) • h. SOT„TEEOTEE,N E:_ n 1 _1 .• LINE 0,1E WWI OF SECTION .,. � 1,3 :„\ ..NaT ,EE NEE..E LTa•-.,- R ERETENN,NEEE�aN.,-.,.. Iii M. .®N�T mm .m,a LO• 11 a OWNER ALLIED DI -CT PROPERTES p • ES T 1-0000 ' 0 �a _ 4 OMANI OOC....sawn O Al A� _ N44•440414 Is g D mN F s'e L _:a . J ...il a YARD EA9pMBIT oLE �OOC•ND.peal 10 II 1111117.12.18_ , LOT ■N 'M MOO BINN 09UMFRO0WI0 ELECTnN Sfs,FY 1 ,----EAEaeNT OM NO.pe,»I INURE J , J MuAEL ELISABETH SAY FOLO11301OS• g t Lot 1 0 OWNER 0001011 MOS.CORPORA• Z - 0343-2/0-0030000 Or .a V ROM ss m60'�ycQ E d'' PLAT OF EASEMENT E 4TAEE ; Crystal Lae.R.. 815.158.1360 COUNTY CPMT1.TM, ° €o IrE>®.MITI gpUrH_ =A Batter & Woodman g�.agW woNON. mNNINaNC T oNTNm w 'p„4y .NEN.•N &y= eAZTPxaw000ew mNwAL E� ,�// 01rasol _1 a ied•a8 w,E r"",. I•( / / i r ®�A..»H.....•.....<,� iq10 EN SUNOS NO..OSOZIO ...w cECUOn:AE CTML mem M..WE m 1,ma m -Z:: M PNOP�R R R m ,._ m1N .. ,. 474.164,, SCALE T.IOW 030681 4444 la hl CUM:aE.I E.M EXHIBIT B SANITARY SEWER EASEMENT THAT PART OF LOT 11 IN DARLENE MCDERMOTT SUBDIVISION BEING A SUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF SECTION 16,PART OF THE SOUTHEAST QUARTER OF SECTION 17, PART OF THE NORTHEAST QUARTER OF SECTION 20 AND PART OF THE NORTHWEST QUARTER OF SECTION 21, ALL IN TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST NORTHEASTERLY CORNER OF SAID LOT 11;THENCE SOUTH 15 DEGREES 27 MINUTES 55 SECONDS EAST ALONG THE EAST LINE OF SAID LOT 11, 85.21 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 31 DEGREES 07 MINUTES 49 SECONDS WEST, 48.74 FEET; THENCE SOUTH 15 DEGREES 27 MINUTES 29 SECONDS EAST,293.49 FEET;THENCE SOUTH 08 DEGREES 01 MINUTES 41 SECONDS WEST, 1004.96 FEET TO A POINT ON THE SOUTH LINE OF SAID LOT 11, SAID POINT BEING 67.35 FEET WEST OF THE SOUTHEASTERLY CORNER OF SAID LOT 11;THENCE SOUTH 82 DEGREES 07 MINUTES 12 SECONDS EAST ALONG THE SOUTH LINE OF SAID LOT 11,25.00 FEET; THENCE NORTH 08 DEGREES 01 MINUTES 41 SECONDS EAST 1,010.09 FEET; THENCE NORTH 15 DEGREES 27 MINUTES 29 SECONDS WEST,294.81 FEET;THENCE NORTH 31 DEGREES 07 MINUTES 49 SECONDS EAST, 14.33 FEET TO A POINT ON THE EAST LINE OF SAID LOT 11;THENCE NORTH 15 DEGREES 27 MINUTES 55 SECONDS WEST, 27.53 FEET TO THE POINT OF BEGINNING,IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. - 7 - EXHIBIT C TEMPORARY CONSTRUCTION EASEMENT THAT PART OF LOT 11 IN DARLENE MCDERMOTT SUBDIVISION BEING A SUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF SECTION 16,PART OF THE SOUTHEAST QUARTER OF SECTION 17, PART OF THE NORTHEAST QUARTER OF SECTION 20 AND PART OF THE NORTHWEST QUARTER OF SECTION 21, ALL IN TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHEASTERLY CORNER OF SAID LOT 11; THENCE NORTH 82 DEGREES 08 MINUTES 49 SECONDS WEST ALONG THE NORTH LINE OF SAID LOT 11, 71.21 FEET; THENCE SOUTH 15 DEGREES 27 MINUTES 29 SECONDS EAST,434.14 FEET;THENCE SOUTH 08 DEGREES 01 MINUTES 41 SECONDS WEST, 998.80 FEET TO A POINT ON THE SOUTH LINE OF SAID LOT 11, SAID POINT BEING 97.35 FEET WESTERLY OF THE SOUTHESAST CORNER OF SAID LOT 11; THENCE SOUTH 82 DEGREES 07 MINUTES 12 SECONDS EAST ALONG SAID SOUTH LINE OF LOT 11, 30.00 FEET; THENCE NORTH 08 DEGREES 01 MINUTES 41 SECONDS EAST, 1004.96 FEET; THENCE NORTH 15 DEGREES 27 MINUTES 29 SECONDS WEST, 293.49 FEET;THENCE NORTH 31 DEGREES 07 MINUTES 49 SECONDS EAST,48.74 FEET TO A POINT ON THE EASTERLY LINE OF SAID LOT 11, SAID POINT BEING 85.21 FEET FROM THE MOST NORTHEASTERLY CORNER OF SAID LOT 11; THENCE NORTH 15 DEGREES 27 MINUTES 55 SECONDS WEST ALONG SAID EASTERLY LINE OF LOT 11, 85.21 FEET TO THE POINT OF BEGINNING, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. - 8 -