EXHIBIT 10.5


 


LEASE AGREEMENT


 


THIS AGREEMENT is
made effective the 12th day of January, 2008, between RAMBO PHARMACY, INC., an
Illinois corporation (the “Landlord”), and APOTHECARYRX, LLC, an Oklahoma
limited liability company (the “Tenant”).


 


W I T N E S S E T
H :


 


1.           Leased Premises.  The Landlord
hereby leases to the Tenant, and Tenant hereby leases from Landlord, the real
property, the buildings and improvements now located thereon, all structures,
fixtures, and heating and cooling systems, now or hereafter located on or in
such real property and improvements and the appurtenances thereto commonly
known as 144 East Leafland, Decatur, Illinois 62521 and legally described as
follows (the “Leased Premises”):


 


The South 36 feet
of Lot Three (3), all of Lot Four (4) and the West 112.5 feet of Lot Five
(5), except that part of Lots Three (3) and Four (4) dedicated for public
right of way, all in Block One (1) of North Addition to the Town, now City of
Decatur, as per plat of said Addition recorded in Book 2 at page 125 of
the Records in the Recorder’s Office of Macon County, Illinois, except the
Northern most 54 feet thereof.


 


2.           Term.  The term (the
“Lease Term”) of this Agreement will be ten (10) years, commencing on January 12,
2008, and ending on January 11, 2018.


 


3.           Rent.  The Tenant
agrees to pay to the Landlord as rent (the “Rent”) for the Leased Premises
monthly installments of Three Thousand Five Hundred Dollars ($3,500.00),
payable without offset or deduction in advance on the first (1st) business day
of each month during the Lease Term.  If
the commencement date or the expiration date of the Lease Term is a date other than
the first day of the month, the rent for the month in which such date occurs
will be prorated based on the actual number of days in such month.


 


4.           Insurance.  The Tenant
will, at all times during the Lease Term, and at the cost and expense of the
Tenant, carry and maintain fire and extended coverage insurance and public liability,
bodily injury and property damage comprehensive insurance (collectively, “Tenant’s
Insurance”), all in form and amounts and with such insurance companies as may
be reasonably acceptable to the Landlord. 
Tenant’s Insurance will name the Landlord as an additional insured.  Originals or copies of original policies
(together with copies of the endorsements naming the Landlord) and evidence of
the payment of all premiums of such policies will be delivered to the Landlord
upon the execution of this Lease by the Tenant and on each anniversary thereof.  Tenant’s Insurance will provide that it may
not be terminated or amended except after thirty (30) days’ prior written
notice to the Landlord.


 


5.           Taxes.  Tenant will
pay all real estate taxes relating to the Leased Premises and for all taxes,
assessments, and other governmental charges which relate to the business
operated in the Leased Premises, including sales taxes and personal property
taxes.


 


6.           Utilities.  The Tenant
will pay for all utilities which it uses on the Leased Premises.


 


7.           Maintenance.  The
Tenant agrees to perform the customary routine maintenance and service to the
Tenant’s improvements and the interior surfaces of the walls, floors and
ceilings as well as routine maintenance and repairs of the plumbing fixtures
and heating and air conditioning systems, exterior signs for the business and those
portions of the parking area requiring the application of white rock and the
cutting or removal of weeds.  The Tenant
will also be responsible for any snow removal on the walkways or the parking
area as well as any striping for parking spaces used by customers.  The Landlord will be responsible for the
replacement of and major repairs to the heating and 


 


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air conditioning
systems if needed.  Notwithstanding the foregoing,
the Tenant will be responsible for repairing any part of the Leased Premises
damaged by the intentional or negligent actions of the Tenant or the Tenant’s
invitees or guests.  The Tenant will not
commit or allow any waste to be committed on the Leased Premises by the Tenant
or the Tenant’s invitees or guests.


 


8.           Use and Inspection.  The
Tenant agrees to use and occupy the Leased Premises in compliance with all
applicable laws, ordinances and regulations. 
The Tenant hereby grants to the Landlord the right to enter and inspect
the Leased Premises at reasonable times during normal business hours with prior
reasonable notice, provided that, for purposes of complying with pharmacy
access laws, the Landlord agrees that the Landlord or its agents will only
access the Leased Premises when accompanied by a pharmacist employed by Tenant.


 


9.           Quiet Enjoyment.  The
Landlord warrants that the Landlord is the owner of title to the Leased
Premises (subject to encumbrances, easements, restrictions and mineral interests
previously reserved or conveyed of record) and has full right and authority to
execute this Agreement.  The Landlord
covenants that the Landlord will warrant and forever defend the rights of the
Tenant to exclusive possession and quiet enjoyment of the Leased Premises
against all persons claiming under the Landlord so long as the Tenant pays the
rent herein reserved and performs the other obligations of the Tenant under
this Agreement.


 


10.         Alterations.  The
Tenant may make any alterations to the Leased Premises of a minor, temporary,
decorative nature at the Tenant’s expense. 
Tenant will make no other alterations or additions to the Leased
Premises without the Landlord’s prior written consent, which consent will not
be unreasonably withheld or delayed.  The
Tenant will pay all costs of any approved remodeling of or changes to the
Leased Premises which the Tenant desires to make.  Except as otherwise provided herein, any
permanent alteration to the Leased Premises will become a part of the Leased Premises
and will remain part of the Leased Premises after the termination of this Lease
Agreement.


 


11.         Tenant Fixtures.  On
termination of this Lease Agreement, the Tenant will be entitled to keep and
remove from the Leased Premises all of the Tenant’s equipment and trade
fixtures.


 


12.         Casualty Loss.  The
Landlord and the Tenant agree that if, at any time during the Lease Term, the
improvements to the Leased Premises are totally destroyed by fire or other
casualty, or are partially destroyed so as to render the improvements unfit for
occupancy or operation of the Tenant’s business and so as to render the
improvements so badly damaged that the same cannot be repaired or restored
within sixty (60) days after the occurrence of such damage, then the Tenant
will have the option to terminate this Lease Agreement by giving written notice
to the Landlord within thirty (30) days after the happening of such damage.  In the event the Tenant does not exercise the
right to cancel this Lease Agreement, the Landlord will repair and restore the
improvements with due diligence, and the rent will be abated until such time as
the Landlord has completed repair thereof.


 


13.         Eminent Domain.  In
the event the Leased Premises or any part thereof is taken by any public or
tribal authority under the power of eminent domain, other similar power, or by purchase
in lieu thereof, then the terms of this Lease Agreement will cease on the part
so taken from the day title is transferred to the public or tribal authority
and the Rent will be paid up to that date. 
From the day title is so taken, the monthly rental will be reduced in
proportion to the value of the Leased Premises taken, provided, however, that
if forty percent (40%) or more of the Leased Premises is taken under the power
of eminent domain, or by purchase in lieu thereof, the Tenant will have the
option to terminate this Lease Agreement on the date title is transferred to
the public or tribal authority and the parties will be released from any
further obligations hereunder.


 


14.         Subordination to Mortgage.  From
time to time during the Lease Term, the Landlord may execute one or more
mortgages covering the Leased Premises.  On
the request of the Landlord from time to time, the Tenant agrees to consent to
the subordination of this Lease Agreement to the lien of any such mortgage and
to execute any certificate or other instrument of such purpose that the holder
of such mortgage or mortgages might reasonably request.  The Tenant’s obligation to consent to such
subordination is conditioned on the holder of the mortgage agreeing not to disturb
the Tenant’s peaceable possession of the Leased Premises for the Lease Term and
any 


 


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renewals thereof
and that such possession will continue unabated in the event that such holder
succeeds to the interests of the Landlord as if such holder were the Landlord.


 


15.         Surrender.  At the
termination of this Lease Agreement, however such termination might be brought
about, the Tenant agrees to quit and surrender the Leased Premises in as good condition
as when occupancy began hereunder, ordinary wear and tear and casualty loss excepted.


 


16.         Holding Over.  If
the Tenant continues to occupy the Leased Premises after the expiration or
other termination of the Lease Term, such holding over will, unless otherwise
agreed by the Landlord in writing, constitute a tenancy at will at a daily
rental equal to one-thirtieth of the Rent payable during the last month prior
to the termination of the Lease Term and such holding over will be subject to
all of the other provisions of this Lease Agreement.


 


17.         Tenant Default; Landlord Remedies.  If
the Tenant fails to perform any of the Tenant’s acts, obligations and
agreements hereunder, the Landlord will have the option to declare the same to
be a default hereunder by written notice, to the Tenant specifying the nature
of such default.  In the event the Tenant
cures such default within ten (10) days after receipt of such notice, the
Landlord and the Tenant will be restored to their respective rights and
obligations under this Lease Agreement as if no event of default had occurred.  On the failure of the Tenant to cure a
default within the time provided, the Landlord may elect to waive the default
or terminate this Lease Agreement on written notice to the Tenant, in which
event the Tenant will immediately surrender the Leased Premises to the Landlord.  In addition to termination of this Lease, the
Landlord may, at its option, elect to: (a) enforce the terms and
conditions of this Lease; or (b) terminate the Tenant’s right of
possession without terminating this Lease, in which event it shall have the
right to re-enter the Leased Premises, with or without process or law, expel
the Tenant or any other occupant, and repossess the Leased Premises for
purposes of rerenting the Leased Premises. 
In the event the Landlord terminates the Tenant’s right to possession
without terminating this Lease, the Tenant shall remain liable for all rent due
under the Lease, less any rent received by the Landlord from such re-renting
after payment of all costs of re-renting. 
Nothing contained in this paragraph shall eliminate the Landlord’s legal
duty to mitigate damages in the event of the Tenant’s default.


 


Any and all
remedies provided to the Landlord are cumulative and not exclusive, and the
Landlord shall be entitled to pursue either the rights enumerated in this Lease
or remedies authorized by law, or both.  Any
defaulting party shall be liable for any costs or expenses, including
reasonable attorney’s fees, incurred by the other party in enforcing any terms of
this Lease, or in pursuing any legal action for the enforcement of the
prevailing party’s rights.


 


18.         Landlord Default; Tenant Remedies.  If
the Landlord fails to perform any of the Landlord’s acts, obligations and
agreements under this Lease Agreement or any other agreements between the
Landlord and the Tenant, the Tenant will give the Landlord written notice of
the default and the Landlord will have ten (10) days after receipt of such
notice to cure such default.  If such
default will in the Tenant’s opinion materially interfere with the Tenant’s
operations at the Leased Premises, the Tenant is authorized, at its option, to
take such actions as the Tenant deems appropriate to avoid interference with
the Tenant’s operations and pay the costs associated therewith.  Tenant may setoff any such amounts against
the Tenant’s obligations under this Agreement. 
If the Landlord has not cured the default within ten (10) days
after receipt of the notice, whether the Tenant has taken remedial action or
not, the Tenant will be entitled to terminate this Lease Agreement and to
exercise all further and additional remedies as might now or hereafter be
accorded to the Tenant at law or in equity.


 


19.         Assignment.  Tenant may
assign this Lease Agreement without the consent of the Landlord to any person
or entity in which the Tenant holds an interest or which holds an interest in
the Tenant or to any person or entity that purchases the pharmacy business
being operated on the Leased Premises, provided such assignee expressly assumes
and agrees to perform the Tenant’s obligations under this Lease.  Other than the foregoing, the Tenant may not
assign this Lease Agreement without the consent of the Landlord, which consent
will not be unreasonably withheld.


 


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20.         Notice.  Unless
otherwise required, any notice, payment, demand or communication required or
permitted to be given by any provision of this Lease Agreement will be in
writing and will be deemed to have been given when delivered personally to the
party designated to receive such notice, or on the date following the day sent
by overnight courier, or on the third (3rd) business day after the same is sent
by certified mail, postage and charges prepaid, directed to the following
addresses or to such other or additional addresses as any party might
designated by written notice to the other party:


 


	
  To the Landlord:
  Rambo Pharmacy, Inc.

  
	
   

  	
  Attn: Norman
  Greenberg

  
	
   

  	
  140 East Court
  Manor Place

  
	
   

  	
  Decatur,
  Illinois 62522

  
	
   

  	
   

  
	
  With a copy to:

  	
  Thomas M.  Shade, Esquire

  
	
   

  	
  132 South Water
  Street, Suite 515

  
	
   

  	
  Decatur,
  Illinois 62523

  
	
   

  	
  Fax: (217)
  428-9742

  
	
   

  	
   

  
	
  To the Tenant:

  	
  Apothecary Rx,
  LLC

  
	
   

  	
  Attn: Mr.  Lewis P. 
  Zeidner, President

  
	
   

  	
  5500 Wayzata
  Boulevard, Suite 210

  
	
   

  	
  Golden Valley,
  Minnesota 55416

  
	
   

  	
  Fax: (763)
  647-1137

  
	
   

  	
   

  
	
  With a copy to:

  	
  Michael Meleen,
  Esquire

  
	
   

  	
  Commercial Law
  Group, P.C.

  
	
   

  	
  700 Oklahoma
  Tower

  
	
   

  	
  210 Park Avenue

  
	
   

  	
  Oklahoma City,
  Oklahoma 73102

  
	
   

  	
  Fax: (405)
  232-5553

  



 


21.         Miscellaneous.  Time
is of the essence of each provision of this Agreement.  This document constitutes the entire
agreement between the Buyer and the Seller relating to the Leased Premises and
there are no agreements, understandings, warranties or representations between
the Landlord and the Tenant except as set forth herein.  Landlord and Tenant agree that, at the
request of either party, both Landlord and Tenant will execute a Memorandum of
Lease satisfactory to the registrar of deeds for Macon County, Illinois for
filing in the land records of such county. 
Neither this Agreement nor any of the provisions hereof can be changed,
waived, discharged or terminated, except by an instrument in writing
(specifically excluding electronic mail) signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought.  This Agreement may be executed in
counterparts, each of which will be deemed an original document, but all of
which will constitute a single document. 
This document will not be binding on or constitute evidence of a
contract between the parties until such time as a counterpart of this document
has been executed by each party and a copy thereof delivered to the other party
to this Agreement.  The parties agree
that any counterpart may be executed by facsimile signature and such facsimile
signature will be deemed an original.  When
executed by the parties in accordance with the foregoing, this Agreement inures
to the benefit of and is binding on the parties and their respective heirs,
successors and assigns.


 


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SIGNATURE PAGE TO
LEASE AGREEMENT


 


IN WITNESS
WHEREOF, the parties have executed this Lease Agreement on the date first above
written.


 


	
   

  	
  RAMBO PHARMACY,
  INC., an

  
	
   

  	
  Illinois
  corporation

  
	
   

  	
  By 

  	
  /S/NORMAN
  GREENBERG

  	
   

  
	
   

  	
  (the “Landlord”)

  



 


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SIGNATURE PAGE TO
LEASE AGREEMENT


 


IN WITNESS
WHEREOF, the parties have executed this Lease Agreement on the date first above
written.


 


	
   

  	
  APOTHECARYRX,
  LLC, an

  
	
   

  	
  Oklahoma limited
  liability company

  
	
   

  	
  By 

  	
  /S/LEWIS P.  ZEIDNER

  	
   

  
	
   

  	
  Lewis P.  Zeidner, President

  
	
   

  
	
   

  	
  (the “Tenant”)

  
					



 


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