Preview
Hearing Date: 3/12/2024 10:00 AM
Location: Court Room 2403
Judge: Hall, Sophia H
FILED
11/13/2023 12:00 AM
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ
CIRCUIT CLERK
COUNTY DEPARTMENT, CHANCERY DIVISION COOK COUNTY, IL
2023CH09365
WILDCAT CAPITAL ENTERPRISES, LLC., a Calendar, 12
Delaware limited liability company, 25161639
Plaintiff,
Vv. No. 2023CH09365
CHICAGO TITLE LAND TRUST COMPANY,
as Trustee under Trust A greement dated February
24, 1986, and known as Trust No. 43515,
and NARE HARWOOD COMMONS, LLC.,
an Illinois limited liability company,
Defendants.
COMPLAINT FOR DECLARATORY JUDGMENT AND FOR OTHER RELIEF
NOW COMES THE PLAINTIFF, WILDCAT CAPITAL ENTERPRISES, LLC., a
Delaware limited liability company, by and through its attorney, ROBERT A. BORON, LTD., and
complaining of Defendants, CHICAGO TITLE LAND TRUST COMPANY, as Trustee under
Trust Agreement dated February 24, 1986, and known as Trust No. 43515, and NARE
HARWOOD COMMONS, LLC.), an Illinois limited liability company, states as follows:
FACTS COMMON
TO ALL COUNTS
1 LaSalle National Bank, as Trustee under Trust No. 50919, as ground lessor
(“Original Ground Lessor”) and LaSalle National Bank as Trustee under Trust No. 53900, as
ground lessee (“Original Ground Lessee”) entered into a certain Lease A greement dated August
30, 1978, as amended from time to time (the Lease Agreement and all amendments thereto are
collectively referred to as the “Ground Lease”), for the lease of a certain land located east of
Harlem A venue and south of Lawrence A venue in Harwood Heights, Illinois, and legally described
as follows:
The following parcels of land taken as one tract: Lot 4 (except the North
826 feet thereof) and Lot 5 in C.R. Ball’s Subdivision of the North % of the
Northwest % of Section 18, Township 40 North, Range 13, East of the Third
Principal Meridian (except school lot) and of the North 25.40 acres of the Northeast
Y%, of Section 13, Township 40 North, Range 12, East of the Third Principal
Meridian, also the North 230 feet of the West 281.68 feet of the East 1001.68 feet
of the South % of the Northwest % of Section 18, Township 40 North, Range 13,
East of the Third Principal Meridian, also the North 170 feet (except the East
1001.68 feet) of the South % of the Northwest 4 of Section 18, Township 40 North,
Range 13, East of the Third Principal Meridian, in Cook County, Illinois (the
“Entire Property”).
A copy of the Ground Lease for the Entire Property is attached hereto and incorporated
herein as Group Exhibit “A.”
2 Original Ground Lessor conveyed its entire interest in the Entire Property to Harris
Trust and Savings Bank as Trustee under Trust Agreement dated February 24, 1986, and known
as Trust No. 43515, n/k/a Chicago Title Land Trust Company, as Trustee under Trust No. 43515
(the “Ground Lessor”).
3 Original Ground Lessee, and K-Mart Corporation, as tenant (“K-Mart”) entered
into a certain Lease A greement dated March 30, 1979, a amended from time to time (collectively,
the K-Mart Lease”), for a portion of the Entire Property, commonly known as 4701 N. Harlem
Avenue, Harwood Heights, Illinois, 60706, consisting of approximately seven acres of land, and
legally described as follows:
That part of the Entire Property (as hereinbefore described), as follows:
Commencing at the Northeast corner of said tract; thence south along the East line
of the said tract 495.52 feet to the South line of said tract; thence west along the
South line of said tract 212.33 feet; thence south along the East line of said tract
230 feet to the South line of said tract; thence west along the South line of said tract
256.68 feet; thence north along a line parallel to the East line of said tract 175 feet;
thence west along a line parallel to the South line of said tract 284.90 feet to the
West line of said tract; thence north along the West line of said tract 30 feet; thence
east along a line parallel to the South line of said tract, 240 feet; thence north along
a line parallel to the West line of said tract, 520.85 feet to a point on the North line
of said tract, said point being 240 feet east of the Northwest comer of said tract;
thence east along the North line of said tract 508.12 feet to the point of beginning,
in Cook County, Illinois (the “K-Mart Property”).
A copy of the K-Mart Lease, including all amendments thereto is attached hereto and
incorporated herein as Group Exhibit “B.”
4 The Original Ground Lessee leased its interest in the Entire Property to Nare
Harwood LLC., an Illinois limited liability company (“Nare Harwood”), pursuant to a certain
Assignment and Assumption of Ground Lease, dated July 22, 2020, and recorded in the Office of
the Recorder of Deeds of Cook County, Illinois, as Document No. 2021044097. A copy of said
Assignment is attached hereto and incorporated herein as Group Exhibit “C.”
5. On or about February 1, 2002, K-Mart Corporation assigned and conveyed its
interest in the K-Mart Lease to Rubloff Development Group, Inc., an Illinois corporation, pursuant
to acertain Lease Assignment and Assumption A greement, a copy of which is attached hereto and
incorporated herein as Exhibit “D.”
6 Wildcat Capital Enterprises, LLC., is a Delaware limited liability company
(“Wildcat”), licensed and qualified to do business in Illinois. Rubloff Development Group, Inc.,
assigned and conveyed its interest in the K-Mart Lease to Wildcat, pursuant to: (a) an Assignment
of Sublandlord’s Interest in Sublease dated February 14, 2014, and recorded in the Office of the
Recorder of Deeds of Cook County, Illinois, as Document 1432839034; (b) an Assignment of
Sublandlord’s Interest in Sublease dated February 14, 2014, and recorded in the Office of the
Recorder of Deeds of Cook County, Illinois, as Document 1432839035 and (c) Lessor’s
Assignment of Lessee’s Interest in Ground Lease, dated February 14, 2014, and recorded in the
Office of the Recorder of Deeds of Cook County, Illinois, as Documents 1432839036. Copies of
said Assignments are attached hereto and incorporated herein as Group Exhibit “E.” As a result
of the above and foregoing, Wildcat is the sublessor of the current tenants of the K-Mart Property,
and the sublessee of Nare Harwood, with regard to the K-Mart Property.
7 Contained within the Ground Lease is Article X VI, pertaining to subleases. That
Article states the following:
“If for any reason this lease and the leasehold estate of Tenant hereunder is
terminated by Landlord by summary proceedings or otherwise in accordance with
the terms of this lease, Landlord covenants and agrees that such termination of this
lease shall not result in a termination of any sublease on any credit Tenant
sublessee, as hereinafter defined. Further, no such credit Tenant sublease shall be
inconsistent with the terms of this lease and insofar as they are inconsistent,
Landlord shall only be required to recognize the consistent terms, and that they
shall all continue for the duration of their respective terms and any extensions
thereof (but in no event beyond the term of this lease) as a direct lease between
Landlord hereunder and the sublessee thereunder, with the same force and effect as
if Landlord hereunder had originally entered into such sublease as landlord
thereunder (subject, however to the prior right of the holder of any fee mortgage);
provided, however, that any sublessee shall, in addition to any previous attornment
and recognition agreement, upon termination of this lease enter into a new
attormment agreement with Landlord in form reasonably satisfactory to Landlord’s
counsel which shall specifically contain an exculpation clause for the benefit of
Landlord, that Landlord shall not be personally liable for failure to perform any
agreements or terms agreed to be performed. Landlord shall, upon request, execute,
acknowledge and deliver such agreements evidencing and agreeing to the foregoing
as each sublessee shall require.
“Landlord covenants and agrees that promptly upon request by Tenant
therefor, it will execute, acknowledge and deliver any instrument or instruments
required by Tenant to effectuate the provisions of this Article XVI, including but
not limited to attornment and recognition agreements.
“Tenant hereby warrants and represents that the rentals received from all
Credit Subtenants as hereinafter defined shall be sufficient to pay the ground rent
as herein provided, and all real estate taxes and insurance attributable to the
premises, however, excepting therefrom those real estate taxes and insurance
charges which may be required to be paid by the Subtenants pursuant to their
respective subleases.
“As used herein, the term “Credit Tenant Sublessee” shall mean a
corporation or other entity with a minimum Dun & Bradstreet rating of AAA-1 or
equivalent.”
8 On oraboutJuly 7, 2022, the Ground Lessor filed a Complaint sounding in eviction,
Case No. 2022 M1-710329 (the “Eviction Complaint”), against Nare Harwood, alleging that the
Ground Lease for the Entire Property was terminated pursuant to certain default notices contained
in said eviction complaint, and seeking possession of the Entire Property. Said eviction action was
consolidated into the instant action for Declaratory Judgment.
9 Plaintiff has no adequate remedy at law, in that each Count seeks a declaration of
rights of the respective parties hereto.
COUNT I - DECLARATORY JUDGMENTI-NONDISTURBANCE
1-9. Plaintiff, Wildcat incorporates paragraphs 1 through 9 of the Facts Common to All
Counts as and for paragraphs 1 through 9 of Count I of this Complaint.
10. Plaintiff is a third-party beneficiary of the Ground Lease between Ground Lessor
and Nare Harwood, the Ground Lessor specifically covenanting and agreeing not to terminate any
sublease of any credit Tenant sublessee by virtue of any termination of the lease with regard to the
Ground Lessee (i.e., Nare Harwood). The clear intent of this provision is that the possessory
interests of sublessees having a Dun & Bradstreet AAA-1 or equivalent credit rating shall not be
adversely affected, and shall remain undisturbed, by a termination of the Nare Harwood, as Ground
Lessee under the Ground Lease. Upon information and belief, Wildcat, maintains a credit rating
satisfying the standards in the Ground Lease. Further, Wildcat’s subtenants, Aldi, Inc., and
Burlington Coat Factory of Illinois, LLC., maintain the requisite credit rating. As such, pursuant
to the terms of the Ground Lease, the possessory interests of Wildcat, and its subtenants, Aldi,
Inc., and Burlington Coat Factory of Illinois, LLC., should not be adversely affected by virtue of
any purported termination of the Ground Lease of Nare Harwood.
11. In light of the above and foregoing, Plaintiff, Wildcat, seeks a declaration from this
Honorable Court that Wildcat, and through Wildcat, Aldi, Inc., and Burlington Coat Factory of
Illinois, LLC., are entitled to maintain their possessory rights under the Ground Lease, and their
respective leases will remain undisturbed, regardless of the actual or prospective termination of
the rights of Nare Harwood.
12. Plaintiff, Wildcat, has no adequate remedy at law, since the only relief which can
be granted requires a determination of the respective rights of the parties hereto.
WHEREFORE, Plaintiff, Wildcat Capital Enterprises, LLC., prays this Honorable Court
grant the following relief:
A That this Court find that Plaintiff, Wildcat Capital Enterprises, LLC.’s possessory
rights in the K-Mart Property shall not be adversely affected, and shall remain undisturbed, by
virtue of any actual or prospective termination of the rights of Nare Harwood Commons, LLC, by
the Ground Lessor; and
B That this Court find that, by virtue of the survival of the possessory rights of
Wildcat Capital Enterprises, LLC., the possessory rights of Aldi, Inc., shall not be adversely
affected, and shall remain undisturbed, by virtue of any actual or prospective termination of the
rights of Nare Harwood Commons, LLC, by the Ground Lessor; and
Cc That this Court find that, by virtue of the survival of the possessory rights of
Wildcat Capital Enterprises, LLC., the possessory rights of Burlington Coat Factory of Illinois,
LLC., shall not be adversely affected, and shall remain undisturbed, by virtue of any actual or
prospective termination of the rights of Nare Harwood Commons, LLC, by the Ground Lessor;
and
D That this Court grant such other and further relief as this Court deems equitable and
just.
COUNT II - DECLARATORY JUDGMENT-PAYMENT OF RENT
1-9. Plaintiff, Wildcat incorporates paragraphs 1 through 9 of the Facts Common to All
Counts as and for paragraphs 1 through 9 of Count II of this Complaint.
10. Wildcat has paid all rents due and payable to Nare Harwood, under the K-Mart
Lease, and has otherwise fulfilled all lease terms and obligations under the K-Mart Lease. Wildcat
is and remains in good standing under the K-Mart Lease.
11. A conflict of rights asserted by the respective Defendants herein exists, in that each
may be entitled to the rents to be paid by Wildcat, depending upon the ultimate disposition of
Eviction Complaint. If, in fact, the Ground Lease has been terminated, then Wildcat’s rents are
due and payable to the Ground Lessor. Conversely, if the Eviction Complaint is ultimately
unsuccessful, the Wildcat’s rents are and remain due and payable to Nare Harwood.
12. By virtue of the alleged termination of the Ground Lease, as set forth in the Eviction
Complaint, Wildcat seeks a declaration of rights and responsibilities of Wildcat under the K-Mart
Lease, and specifically, a declaration from this Court as to whom rent should be paid, and to whom
performance should be tendered, pending adjudication of the respective rights and obligations of
Ground Lessor and Nare Harwood in the Eviction Complaint. Wildcat is ready, willing and able
to continue paying all rents all rents, and continuing all other performance under the K-Mart Lease,
pursuant to the Court’s declaration.
WHEREFORE, Plaintiff, Wildcat Capital Enterprises, LLC., prays this Honorable Court
grant the following relief:
A That this Court declare the party to whom rents for the K-Mart Property shall be
paid pending adjudication of the pending litigation by and between Nare Harwood and the
Ground Lessor, and
B That this Court grant such other and further relief as this Court deems equitable and
just.
COUNT III - DECLARATORY JUDGMENT - EXISTENCE OF SUBLEASE
1-9. Plaintiff, Wildcat incorporates paragraphs 1 through 9 of the Facts Common to All
Counts as and for paragraphs 1 through 9 of Count III of this Complaint.
10. Wildcat has paid all rents due and payable to Nare Harwood, under the K-Mart
Lease, and has otherwise fulfilled all lease terms and obligations under the K-Mart Lease.
11. Ground Lessor has not alleged any lease default on the part of Wildcat, has not
served any default notices upon Wildcat, and has not named Wildcat as a defendant in the Eviction
Complaint. As such, the Court has no jurisdiction to enter any relief, against Wildcat under the
Eviction Complaint.
12. If, in fact, the Ground Lessor prevails in the Eviction Compliant against Wildcat’s
sublessor, Nare Harwood, the sublease between Nare Harwood, and Wildcat, might fall by
operation of law. In that event, by operation of law, Wildcat might be deprived of its rights under
the K-Mart Lease despite its faithful performance under that lease; without the ability to assert and
defend its rights, and without the Ground Lessor having the requisite jurisdiction to obtain or
enforce rights as against Wildcat.
13. Plaintiff, Wildcat, seeks a declaration by this Court that any action relief granted
against Nare Harwood will not result in the termination or other abrogation of the K-Mart Lease,
or of the rights and privileges of Wildcat under the K-Mart Lease.
WHEREFORE, Plaintiff, Wildcat Capital Enterprises, LLC., prays this Honorable Court
grant the following relief:
A That this Court declare that any ruling terminating the rights of Nare Harwood,
LLC., will not result in the termination under the K-Mar Lease; and
B That this Court declare that the Ground Lessor shall have no right to take any
adverse action against Wildcat Capital Enterprises, LLC., pertaining to the K-Mart Lease, by
operation of law, as a consequence of the termination of Nare Harwood’s rights under the
Ground Lease, and
Cc That this Court grant such other and further relief as this Court deems equitable and
just.
ROBERT A. BORON, LTD.
[fetN Joey
Attomey for Plaintiff
ROBERT A. BORON, LTD. #23734
Attomey for Wildcat Capital Enterprises, LLC.
33 N. LaSalle Street, Ste. 2600
Chicago, Illinois 60602
(312) 263-7825
Email: rab@boronlaw.com
GROUP EXHIBIT “A”
LEASE AGREEMENT
INDENTURE OF LEASE made oy cat Fo. 1 1978, by
and between LA SALLE NATIONAL BANK AS TRUSTEE UNDER TRUST
NO. Se3 ("Landlord"), and LA SALLE NATIONAL BANK AS
TRUSTEE UNDER TRUST NO. 53900 ("Tenant").
RECI 2T ALS
Tenant “proposes to construct and develop a shopping
center on the property hereinafter described, the major sub-
tenants of which shall be K Mart Corporation and a major
grocery chain. The premises are presently leased to Com-
munity Discount Centers, Inc. ("Community") . It is Tenant! s
obligation at its cost and expense to obtain a cancellation
and termination of the Community lease and any subleases and
to develop the shopping center, ell as hereinafter provided.
ARTICLE I
Premises
Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the land located in Cook County, de-
scribed in Exhibit A attached hereto, together with all im-
Provements located thereon or to be hereafter constructed
thereon (herein sometimes referred to as the “premises",
“leased premises" or "demised premises"). Tenant acknowl-
edges receipt of a survey of the Premises. This lease shall
be on the terms and conditions hereinafter set forth.
ARTICLE II
Term
Section 1. The term of this lease shall be
thirty-five (35) years commencing February 1, 1979 and
ending January 31, 2014.
Section 2. At the termination of this lease,
Tenant shall have the option to extend this Lease Agreement
for ten (10) additional successive Periods of five (5) years
each, upon the same terms and conditions as are set forth in
this lease for the original term after the expiration of the
initial term and each such successive term hereof. Notice
of the exercise of each of said options shall be given no
less than twelve (12) months prior to the termination of the
preceding term and shall be governed by the Section pertain-
ing to notices herein.
ARTICLE III
Rent
Section 1. Tenant covenants and agrees to pay
to Landlord as rent c/o Richard Fanslow, 7855 Gross Point
Road, Skoki Illinois, or at such other place as Landlord
shall from time to time designate, in such coin or currency
of the United States as at the time of payment shail be
legal tender for the payment of public and private debts,
without any notice or demand, abatement, offset or deduc-
tions of any kind or for any reason whatsoever as follows:
The sum of $212,500.00 per annum for the original
term and all extensions thereof payable in equal monthly
installments of $17,708.33 each, payable on the first
day of February, 1979 and on the first day of each and
every month during the term and any renewal term hereof;
provided, however that during the renewal terms, if
if any,
Tenant shall pay as additional rental hereunder within
ninety (90) days after the end of each lease year a sum
equal to one percent (1%) of all gross sales made at the
demised premises in excess of the sum of $36,000,000.C0
but only to the extent that gross sales rental ere re-
ceived by Tenant from sublessees and subject to all
set-offs for the real estate taxes, maintenance, insur-
ance and similar items as provided in the subleases.
The gross sales statements provided by sublessees to
Tenant shall be deemed conclusive proof of gross sales
for the purposes of this Paragraph.
Section 2. Tenant covenants to pay and dis-
charge when the same shall become due, as additional rent,
all other amounts, liabilities and obligations which Tenant
assumes or agrees to pay or discharge pursuant to this
lease, together with every fine, penalty, interest and cost
which may be added for nonpayment or late payment thereof,
all of which are sometimes hereinafter referred to collec-
tively as "Impositions" and individually as "an Imposition".
In the event of any failure by Tenant to pay or discharge
any of the foregoing, Landlord shall have all rights, powers
and remedies provided herein or otherwise available by law
in the case of Mon-payment of the rent.
Section 3. Unless the context otherwise re-
quires, all references to the term of this lease shail in-
clude any renewal term or terms.
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ARTICLE IV
Construction of Building
and Financing Arrangements
Section 1. Landlord is entering into this
Agreement for a ground lease on the basis of a ground lease
rental, and Tenant, in turn, intends solely on its own
initiative for its own business purposes to construct im-
provements on the demised premises. Immediately after the
execution hereof, Tenant shall proceed, at its own cost,
with the necessary preliminaries leading to the preparation
of plans and specifications for said construction and de-
termination of the cost of said construction, as hereinafter
defined, It is the intention and agreement of the parties.
that the Tenant shall erect and complete said building and
improvements and pay for same at Tenant's sole cost and ex-
pense, and without any costs or expense to Landlord.
Section 2.
(A) Tenant agrees that prior to commencing con-
struction of the buildings and improvements, to submit to
the Landlord plans and specifications prepared by a licensed
architect and a certificate from the Hanover Development
Company showing the full amount of all moneys required for
the erection and completion of the proposed building and
improvements, and all costs and expenses connected
therewith.
'
(8) The plans and specifications and certificate
shall be subject to Landlord's approval which shall be given
within ten (10) days from receipt thereof and shall not be
unreasonably withheld, it being the intent of Tenant to
build a K Mart Department Store and fo00d store. Tf Landlord
fails to approve said plans and specifications or certifi-
cate, it shail notify Tenant of its spe ic reasons for
=4-
such disapproval. Minor modifications of plans and specifi-
cations may be made without further approval of Landlord,
provided that the same comply with all the other applicable
provisions of this lease, but copies thereof shall be fur-
nished to Landlord.
Section 3.
(A) The Tenant covenants and agrees that all the
improvements shall be constructed substantially in accor-
dance with the plans and specifications to be prepared by
its Architect, for which the Lessee shall procure a building
permit, the said construction to be prosecuted with due
diligence, and subject to all applicable restrictions,
rules, regulations, statutes and ordinances covering such |
construction. It is expressly understood that the Landlord
has made no representations to Tenant with respect to the
zoning provisions or any of the other applicable matters re-
lated to or governing the issuance of a building permit for
the construction of the improvements, the Tenant having re-
lied on its own investigation with respect thereto.
(B) The plans and specifications shall, among
other things, provide for a parking area and parking facil-
ities as required by all zoning and other requirements of
law.
(cy Prior to the time that Tenant shall commence
construction of the improvements, it shall furnish to the
Landlord, at Tenant's cost and expense, (i) a leasehold con-
struction loan commitment; (ii) the general contract for the
construction of the improvements; and (iii) the contractor's
Payment an¢ performance bond under which the General Con-
tractor shall be principal and on which @ surety company
satisfactory to the Landlord shall be surety, all in form
-5-
satisfactory to the Landlord. The bond shall run for the
benefit of and in favor of Landlord and Landlord's mortge-
gee; it may also run for the benefit of and in favor of
Tenant and Tenant's mortgagee without prejudice, however, to
Landlord's and Landlord's mortgagee's rights under said
bond. The foregoing requirements of this section be waived
if Tenant complies with provisions of subsection (F) of this
Section 3.
(D) Tenant shall secure and deliver to Landlord
prior to the commencement of construction a letter from
Tenant's mortgagee to the Landlord in form acceptable to
Landlord's counsel, warranting to the Landlord that the
funds deposited by Tenant with the construction mortgagee,,
together with the proceeds of the loan secured by the mort-
gage, are sufficient to complete the construction of the
building and improvements on the property in accordance with
firm contracts received from the contractors and subcon-
tractors and in accordance with the Architect's plans and
specifications.
(E) Prior to the time Tenant commences construc-
tion of the improvements, it shall deposit with some bank or
financial institution doing .business in the City o €£ Chicago
or with a Title Company, or as shall be required by the
surety on contractor's payment and performance bond provided
under the preceding Paragraph in form satisfactory to the
Landlord, th e entire amount of money required, less mortgage
Proceeds, to pay for all costs of construction of the im-
Provements including, without 1 imiting the generality of the
foregoing, all architect's costs, including all supervision
of construction, all direct costs of construction, the rea-
sonable estimates of all interest costs during construction,
-6-
and all other financing charges, together with all costs of
licenses, permits, bonds, insurance premiums and all other
financing charges and all other costs incidental to the con-
struction and completion of the improvements, including the
charges of said depositary. The purpose of said deposit
shall be, and the depositary shall agree in writing with the
Landlord and/or the said surety to disburse all such finds
as construction shall proceed, receiving with each disburse-
ment all the requisite contractors', sub-contractors and
materialmen's affidavits and releases of mechanic's liens
with respect to each such disbursement.
(F) The requirements of the foregoing subsections
C and E shall be waived in the event Tenant furnishes to
Landlord an unconditional guarantee of the completion of the
improvements substantially in accordance with plans and
specifications free of all liens and encumbrances whatsoever
and otherwise in accordance with the provisions of this
lease. The form of said guarantee shall be subject to the
approval of Landlord's counsel and shall be from K Mart
Corporation or an institutional lender satisfactory to Land-
lord.
(G) Upon procuring the building permit and after
commencement of construction of improvements, Tenant shall
thereafter with due diligence do all things necessary for
the proper prosecution and completion of the improvements.
ARTICLE V
Repairs and Maintenance
Section 1.
1 Tenant, at its expense, shall take
good care of the leased premises, and all parking areas,
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walks, road, malls, alleys, bridges and tunnels thereon, and
all buildings and improvements and building equipment here-
after erected or installed on the leased premises, and side-
walks, curbs, and vaults adjoining the leased premises,
shall keep them in good order and condition, shall not suf-
fer or commit waste or injury, and shall make all necessary
repairs thereto, interior and exterior, structural and non-
structural, ordinary and extraordinary, foreseen and un-
foreseen.
When used in this Article, the term "repairs" shall
include (but not be restricted to) replacements, renewals or
substitutions when necessary for any reason; and repairs
shall be of such class and character at least equal to or
better than the property replaced, renewed or substituted.
Section 2. Landlord shall not be obligated to
furnish any services, materials or perform
Preview
Hearing Date: 3/12/2024 10:00 AM Location: Court Room 2403 Judge: Hall, Sophia H FILED 11/13/2023 12:00 AM IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ CIRCUIT CLERK COUNTY DEPARTMENT, CHANCERY DIVISION COOK COUNTY, IL 2023CH09365 WILDCAT CAPITAL ENTERPRISES, LLC., a Calendar, 12 Delaware limited liability company, 25161639 Plaintiff, Vv. No. 2023CH09365 CHICAGO TITLE LAND TRUST COMPANY, as Trustee under Trust A greement dated February 24, 1986, and known as Trust No. 43515, and NARE HARWOOD COMMONS, LLC., an Illinois limited liability company, Defendants. COMPLAINT FOR DECLARATORY JUDGMENT AND FOR OTHER RELIEF NOW COMES THE PLAINTIFF, WILDCAT CAPITAL ENTERPRISES, LLC., a Delaware limited liability company, by and through its attorney, ROBERT A. BORON, LTD., and complaining of Defendants, CHICAGO TITLE LAND TRUST COMPANY, as Trustee under Trust Agreement dated February 24, 1986, and known as Trust No. 43515, and NARE HARWOOD COMMONS, LLC.), an Illinois limited liability company, states as follows: FACTS COMMON TO ALL COUNTS 1 LaSalle National Bank, as Trustee under Trust No. 50919, as ground lessor (“Original Ground Lessor”) and LaSalle National Bank as Trustee under Trust No. 53900, as ground lessee (“Original Ground Lessee”) entered into a certain Lease A greement dated August 30, 1978, as amended from time to time (the Lease Agreement and all amendments thereto are collectively referred to as the “Ground Lease”), for the lease of a certain land located east of Harlem A venue and south of Lawrence A venue in Harwood Heights, Illinois, and legally described as follows: The following parcels of land taken as one tract: Lot 4 (except the North 826 feet thereof) and Lot 5 in C.R. Ball’s Subdivision of the North % of the Northwest % of Section 18, Township 40 North, Range 13, East of the Third Principal Meridian (except school lot) and of the North 25.40 acres of the Northeast Y%, of Section 13, Township 40 North, Range 12, East of the Third Principal Meridian, also the North 230 feet of the West 281.68 feet of the East 1001.68 feet of the South % of the Northwest % of Section 18, Township 40 North, Range 13, East of the Third Principal Meridian, also the North 170 feet (except the East 1001.68 feet) of the South % of the Northwest 4 of Section 18, Township 40 North, Range 13, East of the Third Principal Meridian, in Cook County, Illinois (the “Entire Property”). A copy of the Ground Lease for the Entire Property is attached hereto and incorporated herein as Group Exhibit “A.” 2 Original Ground Lessor conveyed its entire interest in the Entire Property to Harris Trust and Savings Bank as Trustee under Trust Agreement dated February 24, 1986, and known as Trust No. 43515, n/k/a Chicago Title Land Trust Company, as Trustee under Trust No. 43515 (the “Ground Lessor”). 3 Original Ground Lessee, and K-Mart Corporation, as tenant (“K-Mart”) entered into a certain Lease A greement dated March 30, 1979, a amended from time to time (collectively, the K-Mart Lease”), for a portion of the Entire Property, commonly known as 4701 N. Harlem Avenue, Harwood Heights, Illinois, 60706, consisting of approximately seven acres of land, and legally described as follows: That part of the Entire Property (as hereinbefore described), as follows: Commencing at the Northeast corner of said tract; thence south along the East line of the said tract 495.52 feet to the South line of said tract; thence west along the South line of said tract 212.33 feet; thence south along the East line of said tract 230 feet to the South line of said tract; thence west along the South line of said tract 256.68 feet; thence north along a line parallel to the East line of said tract 175 feet; thence west along a line parallel to the South line of said tract 284.90 feet to the West line of said tract; thence north along the West line of said tract 30 feet; thence east along a line parallel to the South line of said tract, 240 feet; thence north along a line parallel to the West line of said tract, 520.85 feet to a point on the North line of said tract, said point being 240 feet east of the Northwest comer of said tract; thence east along the North line of said tract 508.12 feet to the point of beginning, in Cook County, Illinois (the “K-Mart Property”). A copy of the K-Mart Lease, including all amendments thereto is attached hereto and incorporated herein as Group Exhibit “B.” 4 The Original Ground Lessee leased its interest in the Entire Property to Nare Harwood LLC., an Illinois limited liability company (“Nare Harwood”), pursuant to a certain Assignment and Assumption of Ground Lease, dated July 22, 2020, and recorded in the Office of the Recorder of Deeds of Cook County, Illinois, as Document No. 2021044097. A copy of said Assignment is attached hereto and incorporated herein as Group Exhibit “C.” 5. On or about February 1, 2002, K-Mart Corporation assigned and conveyed its interest in the K-Mart Lease to Rubloff Development Group, Inc., an Illinois corporation, pursuant to acertain Lease Assignment and Assumption A greement, a copy of which is attached hereto and incorporated herein as Exhibit “D.” 6 Wildcat Capital Enterprises, LLC., is a Delaware limited liability company (“Wildcat”), licensed and qualified to do business in Illinois. Rubloff Development Group, Inc., assigned and conveyed its interest in the K-Mart Lease to Wildcat, pursuant to: (a) an Assignment of Sublandlord’s Interest in Sublease dated February 14, 2014, and recorded in the Office of the Recorder of Deeds of Cook County, Illinois, as Document 1432839034; (b) an Assignment of Sublandlord’s Interest in Sublease dated February 14, 2014, and recorded in the Office of the Recorder of Deeds of Cook County, Illinois, as Document 1432839035 and (c) Lessor’s Assignment of Lessee’s Interest in Ground Lease, dated February 14, 2014, and recorded in the Office of the Recorder of Deeds of Cook County, Illinois, as Documents 1432839036. Copies of said Assignments are attached hereto and incorporated herein as Group Exhibit “E.” As a result of the above and foregoing, Wildcat is the sublessor of the current tenants of the K-Mart Property, and the sublessee of Nare Harwood, with regard to the K-Mart Property. 7 Contained within the Ground Lease is Article X VI, pertaining to subleases. That Article states the following: “If for any reason this lease and the leasehold estate of Tenant hereunder is terminated by Landlord by summary proceedings or otherwise in accordance with the terms of this lease, Landlord covenants and agrees that such termination of this lease shall not result in a termination of any sublease on any credit Tenant sublessee, as hereinafter defined. Further, no such credit Tenant sublease shall be inconsistent with the terms of this lease and insofar as they are inconsistent, Landlord shall only be required to recognize the consistent terms, and that they shall all continue for the duration of their respective terms and any extensions thereof (but in no event beyond the term of this lease) as a direct lease between Landlord hereunder and the sublessee thereunder, with the same force and effect as if Landlord hereunder had originally entered into such sublease as landlord thereunder (subject, however to the prior right of the holder of any fee mortgage); provided, however, that any sublessee shall, in addition to any previous attornment and recognition agreement, upon termination of this lease enter into a new attormment agreement with Landlord in form reasonably satisfactory to Landlord’s counsel which shall specifically contain an exculpation clause for the benefit of Landlord, that Landlord shall not be personally liable for failure to perform any agreements or terms agreed to be performed. Landlord shall, upon request, execute, acknowledge and deliver such agreements evidencing and agreeing to the foregoing as each sublessee shall require. “Landlord covenants and agrees that promptly upon request by Tenant therefor, it will execute, acknowledge and deliver any instrument or instruments required by Tenant to effectuate the provisions of this Article XVI, including but not limited to attornment and recognition agreements. “Tenant hereby warrants and represents that the rentals received from all Credit Subtenants as hereinafter defined shall be sufficient to pay the ground rent as herein provided, and all real estate taxes and insurance attributable to the premises, however, excepting therefrom those real estate taxes and insurance charges which may be required to be paid by the Subtenants pursuant to their respective subleases. “As used herein, the term “Credit Tenant Sublessee” shall mean a corporation or other entity with a minimum Dun & Bradstreet rating of AAA-1 or equivalent.” 8 On oraboutJuly 7, 2022, the Ground Lessor filed a Complaint sounding in eviction, Case No. 2022 M1-710329 (the “Eviction Complaint”), against Nare Harwood, alleging that the Ground Lease for the Entire Property was terminated pursuant to certain default notices contained in said eviction complaint, and seeking possession of the Entire Property. Said eviction action was consolidated into the instant action for Declaratory Judgment. 9 Plaintiff has no adequate remedy at law, in that each Count seeks a declaration of rights of the respective parties hereto. COUNT I - DECLARATORY JUDGMENTI-NONDISTURBANCE 1-9. Plaintiff, Wildcat incorporates paragraphs 1 through 9 of the Facts Common to All Counts as and for paragraphs 1 through 9 of Count I of this Complaint. 10. Plaintiff is a third-party beneficiary of the Ground Lease between Ground Lessor and Nare Harwood, the Ground Lessor specifically covenanting and agreeing not to terminate any sublease of any credit Tenant sublessee by virtue of any termination of the lease with regard to the Ground Lessee (i.e., Nare Harwood). The clear intent of this provision is that the possessory interests of sublessees having a Dun & Bradstreet AAA-1 or equivalent credit rating shall not be adversely affected, and shall remain undisturbed, by a termination of the Nare Harwood, as Ground Lessee under the Ground Lease. Upon information and belief, Wildcat, maintains a credit rating satisfying the standards in the Ground Lease. Further, Wildcat’s subtenants, Aldi, Inc., and Burlington Coat Factory of Illinois, LLC., maintain the requisite credit rating. As such, pursuant to the terms of the Ground Lease, the possessory interests of Wildcat, and its subtenants, Aldi, Inc., and Burlington Coat Factory of Illinois, LLC., should not be adversely affected by virtue of any purported termination of the Ground Lease of Nare Harwood. 11. In light of the above and foregoing, Plaintiff, Wildcat, seeks a declaration from this Honorable Court that Wildcat, and through Wildcat, Aldi, Inc., and Burlington Coat Factory of Illinois, LLC., are entitled to maintain their possessory rights under the Ground Lease, and their respective leases will remain undisturbed, regardless of the actual or prospective termination of the rights of Nare Harwood. 12. Plaintiff, Wildcat, has no adequate remedy at law, since the only relief which can be granted requires a determination of the respective rights of the parties hereto. WHEREFORE, Plaintiff, Wildcat Capital Enterprises, LLC., prays this Honorable Court grant the following relief: A That this Court find that Plaintiff, Wildcat Capital Enterprises, LLC.’s possessory rights in the K-Mart Property shall not be adversely affected, and shall remain undisturbed, by virtue of any actual or prospective termination of the rights of Nare Harwood Commons, LLC, by the Ground Lessor; and B That this Court find that, by virtue of the survival of the possessory rights of Wildcat Capital Enterprises, LLC., the possessory rights of Aldi, Inc., shall not be adversely affected, and shall remain undisturbed, by virtue of any actual or prospective termination of the rights of Nare Harwood Commons, LLC, by the Ground Lessor; and Cc That this Court find that, by virtue of the survival of the possessory rights of Wildcat Capital Enterprises, LLC., the possessory rights of Burlington Coat Factory of Illinois, LLC., shall not be adversely affected, and shall remain undisturbed, by virtue of any actual or prospective termination of the rights of Nare Harwood Commons, LLC, by the Ground Lessor; and D That this Court grant such other and further relief as this Court deems equitable and just. COUNT II - DECLARATORY JUDGMENT-PAYMENT OF RENT 1-9. Plaintiff, Wildcat incorporates paragraphs 1 through 9 of the Facts Common to All Counts as and for paragraphs 1 through 9 of Count II of this Complaint. 10. Wildcat has paid all rents due and payable to Nare Harwood, under the K-Mart Lease, and has otherwise fulfilled all lease terms and obligations under the K-Mart Lease. Wildcat is and remains in good standing under the K-Mart Lease. 11. A conflict of rights asserted by the respective Defendants herein exists, in that each may be entitled to the rents to be paid by Wildcat, depending upon the ultimate disposition of Eviction Complaint. If, in fact, the Ground Lease has been terminated, then Wildcat’s rents are due and payable to the Ground Lessor. Conversely, if the Eviction Complaint is ultimately unsuccessful, the Wildcat’s rents are and remain due and payable to Nare Harwood. 12. By virtue of the alleged termination of the Ground Lease, as set forth in the Eviction Complaint, Wildcat seeks a declaration of rights and responsibilities of Wildcat under the K-Mart Lease, and specifically, a declaration from this Court as to whom rent should be paid, and to whom performance should be tendered, pending adjudication of the respective rights and obligations of Ground Lessor and Nare Harwood in the Eviction Complaint. Wildcat is ready, willing and able to continue paying all rents all rents, and continuing all other performance under the K-Mart Lease, pursuant to the Court’s declaration. WHEREFORE, Plaintiff, Wildcat Capital Enterprises, LLC., prays this Honorable Court grant the following relief: A That this Court declare the party to whom rents for the K-Mart Property shall be paid pending adjudication of the pending litigation by and between Nare Harwood and the Ground Lessor, and B That this Court grant such other and further relief as this Court deems equitable and just. COUNT III - DECLARATORY JUDGMENT - EXISTENCE OF SUBLEASE 1-9. Plaintiff, Wildcat incorporates paragraphs 1 through 9 of the Facts Common to All Counts as and for paragraphs 1 through 9 of Count III of this Complaint. 10. Wildcat has paid all rents due and payable to Nare Harwood, under the K-Mart Lease, and has otherwise fulfilled all lease terms and obligations under the K-Mart Lease. 11. Ground Lessor has not alleged any lease default on the part of Wildcat, has not served any default notices upon Wildcat, and has not named Wildcat as a defendant in the Eviction Complaint. As such, the Court has no jurisdiction to enter any relief, against Wildcat under the Eviction Complaint. 12. If, in fact, the Ground Lessor prevails in the Eviction Compliant against Wildcat’s sublessor, Nare Harwood, the sublease between Nare Harwood, and Wildcat, might fall by operation of law. In that event, by operation of law, Wildcat might be deprived of its rights under the K-Mart Lease despite its faithful performance under that lease; without the ability to assert and defend its rights, and without the Ground Lessor having the requisite jurisdiction to obtain or enforce rights as against Wildcat. 13. Plaintiff, Wildcat, seeks a declaration by this Court that any action relief granted against Nare Harwood will not result in the termination or other abrogation of the K-Mart Lease, or of the rights and privileges of Wildcat under the K-Mart Lease. WHEREFORE, Plaintiff, Wildcat Capital Enterprises, LLC., prays this Honorable Court grant the following relief: A That this Court declare that any ruling terminating the rights of Nare Harwood, LLC., will not result in the termination under the K-Mar Lease; and B That this Court declare that the Ground Lessor shall have no right to take any adverse action against Wildcat Capital Enterprises, LLC., pertaining to the K-Mart Lease, by operation of law, as a consequence of the termination of Nare Harwood’s rights under the Ground Lease, and Cc That this Court grant such other and further relief as this Court deems equitable and just. ROBERT A. BORON, LTD. [fetN Joey Attomey for Plaintiff ROBERT A. BORON, LTD. #23734 Attomey for Wildcat Capital Enterprises, LLC. 33 N. LaSalle Street, Ste. 2600 Chicago, Illinois 60602 (312) 263-7825 Email: rab@boronlaw.com GROUP EXHIBIT “A” LEASE AGREEMENT INDENTURE OF LEASE made oy cat Fo. 1 1978, by and between LA SALLE NATIONAL BANK AS TRUSTEE UNDER TRUST NO. Se3 ("Landlord"), and LA SALLE NATIONAL BANK AS TRUSTEE UNDER TRUST NO. 53900 ("Tenant"). RECI 2T ALS Tenant “proposes to construct and develop a shopping center on the property hereinafter described, the major sub- tenants of which shall be K Mart Corporation and a major grocery chain. The premises are presently leased to Com- munity Discount Centers, Inc. ("Community") . It is Tenant! s obligation at its cost and expense to obtain a cancellation and termination of the Community lease and any subleases and to develop the shopping center, ell as hereinafter provided. ARTICLE I Premises Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the land located in Cook County, de- scribed in Exhibit A attached hereto, together with all im- Provements located thereon or to be hereafter constructed thereon (herein sometimes referred to as the “premises", “leased premises" or "demised premises"). Tenant acknowl- edges receipt of a survey of the Premises. This lease shall be on the terms and conditions hereinafter set forth. ARTICLE II Term Section 1. The term of this lease shall be thirty-five (35) years commencing February 1, 1979 and ending January 31, 2014. Section 2. At the termination of this lease, Tenant shall have the option to extend this Lease Agreement for ten (10) additional successive Periods of five (5) years each, upon the same terms and conditions as are set forth in this lease for the original term after the expiration of the initial term and each such successive term hereof. Notice of the exercise of each of said options shall be given no less than twelve (12) months prior to the termination of the preceding term and shall be governed by the Section pertain- ing to notices herein. ARTICLE III Rent Section 1. Tenant covenants and agrees to pay to Landlord as rent c/o Richard Fanslow, 7855 Gross Point Road, Skoki Illinois, or at such other place as Landlord shall from time to time designate, in such coin or currency of the United States as at the time of payment shail be legal tender for the payment of public and private debts, without any notice or demand, abatement, offset or deduc- tions of any kind or for any reason whatsoever as follows: The sum of $212,500.00 per annum for the original term and all extensions thereof payable in equal monthly installments of $17,708.33 each, payable on the first day of February, 1979 and on the first day of each and every month during the term and any renewal term hereof; provided, however that during the renewal terms, if if any, Tenant shall pay as additional rental hereunder within ninety (90) days after the end of each lease year a sum equal to one percent (1%) of all gross sales made at the demised premises in excess of the sum of $36,000,000.C0 but only to the extent that gross sales rental ere re- ceived by Tenant from sublessees and subject to all set-offs for the real estate taxes, maintenance, insur- ance and similar items as provided in the subleases. The gross sales statements provided by sublessees to Tenant shall be deemed conclusive proof of gross sales for the purposes of this Paragraph. Section 2. Tenant covenants to pay and dis- charge when the same shall become due, as additional rent, all other amounts, liabilities and obligations which Tenant assumes or agrees to pay or discharge pursuant to this lease, together with every fine, penalty, interest and cost which may be added for nonpayment or late payment thereof, all of which are sometimes hereinafter referred to collec- tively as "Impositions" and individually as "an Imposition". In the event of any failure by Tenant to pay or discharge any of the foregoing, Landlord shall have all rights, powers and remedies provided herein or otherwise available by law in the case of Mon-payment of the rent. Section 3. Unless the context otherwise re- quires, all references to the term of this lease shail in- clude any renewal term or terms. -3- ARTICLE IV Construction of Building and Financing Arrangements Section 1. Landlord is entering into this Agreement for a ground lease on the basis of a ground lease rental, and Tenant, in turn, intends solely on its own initiative for its own business purposes to construct im- provements on the demised premises. Immediately after the execution hereof, Tenant shall proceed, at its own cost, with the necessary preliminaries leading to the preparation of plans and specifications for said construction and de- termination of the cost of said construction, as hereinafter defined, It is the intention and agreement of the parties. that the Tenant shall erect and complete said building and improvements and pay for same at Tenant's sole cost and ex- pense, and without any costs or expense to Landlord. Section 2. (A) Tenant agrees that prior to commencing con- struction of the buildings and improvements, to submit to the Landlord plans and specifications prepared by a licensed architect and a certificate from the Hanover Development Company showing the full amount of all moneys required for the erection and completion of the proposed building and improvements, and all costs and expenses connected therewith. ' (8) The plans and specifications and certificate shall be subject to Landlord's approval which shall be given within ten (10) days from receipt thereof and shall not be unreasonably withheld, it being the intent of Tenant to build a K Mart Department Store and fo00d store. Tf Landlord fails to approve said plans and specifications or certifi- cate, it shail notify Tenant of its spe ic reasons for =4- such disapproval. Minor modifications of plans and specifi- cations may be made without further approval of Landlord, provided that the same comply with all the other applicable provisions of this lease, but copies thereof shall be fur- nished to Landlord. Section 3. (A) The Tenant covenants and agrees that all the improvements shall be constructed substantially in accor- dance with the plans and specifications to be prepared by its Architect, for which the Lessee shall procure a building permit, the said construction to be prosecuted with due diligence, and subject to all applicable restrictions, rules, regulations, statutes and ordinances covering such | construction. It is expressly understood that the Landlord has made no representations to Tenant with respect to the zoning provisions or any of the other applicable matters re- lated to or governing the issuance of a building permit for the construction of the improvements, the Tenant having re- lied on its own investigation with respect thereto. (B) The plans and specifications shall, among other things, provide for a parking area and parking facil- ities as required by all zoning and other requirements of law. (cy Prior to the time that Tenant shall commence construction of the improvements, it shall furnish to the Landlord, at Tenant's cost and expense, (i) a leasehold con- struction loan commitment; (ii) the general contract for the construction of the improvements; and (iii) the contractor's Payment an¢ performance bond under which the General Con- tractor shall be principal and on which @ surety company satisfactory to the Landlord shall be surety, all in form -5- satisfactory to the Landlord. The bond shall run for the benefit of and in favor of Landlord and Landlord's mortge- gee; it may also run for the benefit of and in favor of Tenant and Tenant's mortgagee without prejudice, however, to Landlord's and Landlord's mortgagee's rights under said bond. The foregoing requirements of this section be waived if Tenant complies with provisions of subsection (F) of this Section 3. (D) Tenant shall secure and deliver to Landlord prior to the commencement of construction a letter from Tenant's mortgagee to the Landlord in form acceptable to Landlord's counsel, warranting to the Landlord that the funds deposited by Tenant with the construction mortgagee,, together with the proceeds of the loan secured by the mort- gage, are sufficient to complete the construction of the building and improvements on the property in accordance with firm contracts received from the contractors and subcon- tractors and in accordance with the Architect's plans and specifications. (E) Prior to the time Tenant commences construc- tion of the improvements, it shall deposit with some bank or financial institution doing .business in the City o €£ Chicago or with a Title Company, or as shall be required by the surety on contractor's payment and performance bond provided under the preceding Paragraph in form satisfactory to the Landlord, th e entire amount of money required, less mortgage Proceeds, to pay for all costs of construction of the im- Provements including, without 1 imiting the generality of the foregoing, all architect's costs, including all supervision of construction, all direct costs of construction, the rea- sonable estimates of all interest costs during construction, -6- and all other financing charges, together with all costs of licenses, permits, bonds, insurance premiums and all other financing charges and all other costs incidental to the con- struction and completion of the improvements, including the charges of said depositary. The purpose of said deposit shall be, and the depositary shall agree in writing with the Landlord and/or the said surety to disburse all such finds as construction shall proceed, receiving with each disburse- ment all the requisite contractors', sub-contractors and materialmen's affidavits and releases of mechanic's liens with respect to each such disbursement. (F) The requirements of the foregoing subsections C and E shall be waived in the event Tenant furnishes to Landlord an unconditional guarantee of the completion of the improvements substantially in accordance with plans and specifications free of all liens and encumbrances whatsoever and otherwise in accordance with the provisions of this lease. The form of said guarantee shall be subject to the approval of Landlord's counsel and shall be from K Mart Corporation or an institutional lender satisfactory to Land- lord. (G) Upon procuring the building permit and after commencement of construction of improvements, Tenant shall thereafter with due diligence do all things necessary for the proper prosecution and completion of the improvements. ARTICLE V Repairs and Maintenance Section 1. 1 Tenant, at its expense, shall take good care of the leased premises, and all parking areas, -7~ walks, road, malls, alleys, bridges and tunnels thereon, and all buildings and improvements and building equipment here- after erected or installed on the leased premises, and side- walks, curbs, and vaults adjoining the leased premises, shall keep them in good order and condition, shall not suf- fer or commit waste or injury, and shall make all necessary repairs thereto, interior and exterior, structural and non- structural, ordinary and extraordinary, foreseen and un- foreseen. When used in this Article, the term "repairs" shall include (but not be restricted to) replacements, renewals or substitutions when necessary for any reason; and repairs shall be of such class and character at least equal to or better than the property replaced, renewed or substituted. Section 2. Landlord shall not be obligated to furnish any services, materials or perform