EXHIBIT 10.12
LEASE AGREEMENT
BY THIS LEASE AGREEMENT (hereinafter referred to as the "Lease") made and
entered into as of the 31st day of December, 2002, by and between LATEL, LLC, an
Illinois limited liability company, of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Lessor"), and Illinois
Consolidated Telephone Company, of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (hereinafter referred to as "Lessee"), and in consideration of
the mutual covenants, terms, conditions and benefits contained herein, IT IS
HEREBY AGREED THAT:
1. PROPERTY LEASED:
(a) Lessor hereby leases and conveys to the Lessee on an absolute triple
net basis and Lessee hereby leases and accepts on an absolute triple net basis
from Lessor certain real estate legally described at Article 1(b) below,
together with the buildings and improvements located thereon (hereinafter
referred to as the "Premises").
(b) The Premises is legally described as:
TRACT 1: (General Office Building) Lot Eight (8) and the South
Eighty (80) Feet of Lots Nine (9) and Ten (10) in Block One Hundred
Forty - One (141), in the Original Town, now City of Mattoon, Coles
County, Illinois, commonly known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇; and, Parking Lot) Lot Seven (7) in Block One Hundred
Forty-One (141) in the Original Town, now City of Mattoon, Coles
County, Illinois, commonly known as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇; and, (Parking Lot) Lot Five (5) and Six (6) in Block One
Hundred Forty-One (141) in the Original Town, now City of Mattoon,
Coles County, Illinois.
TRACT 2: (Sales and Admin. Building) Lot Four (4), Five (5) and Six
(6) in Block One Hundred Fifty (150) in the Original Town, now City
of Mattoon, Coles County, Illinois, commonly known as ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and, (Parking Lot) The West
Thirty-Four (34) feet of Lot Three (3) in Block One Hundred Fifty
(150) in the Original Town, now City of Mattoon, Coles
1
County, Illinois; and, (Parking Lot) Lot Seven (7) and Eight (8) in
Block One Hundred Thirty-Eight (138) in the Original Town, now City
of Mattoon, Coles County, Illinois, commonly known as ▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and,(Parking Lot) Lot Five (5)
and Six (6) in Block One Hundred Thirty-Eight (138) in the Original
Town, now City of Mattoon, Coles County, Illinois, and the North
Half (N1/2) of a vacated alley lying South of and adjacent to the
aforementioned lots, said alley having been vacated by special
ordinance #96-807 and filed for record in the Office of the Recorder
of Coles County, Illinois on August 23, 1996 as Document #588072
commonly known as ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
TRACT 3: (Field Operations Building) Lot Six (6) of ▇▇▇▇▇▇▇▇
Subdivision 1991, situated in the City of Mattoon, Coles County,
Illinois, reference being made to the Plat thereof filed for Record
in Plat Book 5, Page 111 in the Coles County Recorder's Office
commonly known as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
TRACT 4: (Taylorville Property) The North 200 Feet of Lot Fifteen
(15) in ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (▇▇▇) Addition, situated
in part of the Southwest Quarter (SW1/4) of Section Twenty-eight
(28) and the Northwest Quarter (NW1/4) of Section Thirty-three (33),
all in Township Thirteen (13) North, Range Two (2) West of the Third
(3rd) Principal Meridian, Christian County, Illinois (reference made
to the Plat thereof recorded September 9, 1976, in Plat Book 5, Page
237, Document No. 76-1007), except all coal and coal rights; having
a common address of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
2. TERM: The initial term of this Lease shall be one (1) year, beginning on the
31st day of December, 2002 (hereinafter referred to as the "Commencement Date")
and ending at 12 o'clock midnight on a date Three Hundred Sixty Five (365) Days
thereafter (hereinafter referred
2
to as the "Term"); provided, however, that this Lease shall renew, at the option
of the Lessee, and extend for additional successive terms of one (1) year each
(hereinafter referred to as the "Renewal Term"), provided that there shall not
be more than ten (10) Renewal Terms so that these Leases shall not extend beyond
December 30, 2013, unless Lessee serves Lessor with written notice of Lessee's
intent to terminate this Lease not less than one (1) year before the expiration
of the Term, or any subsequent Renewal Term thereafter. Notwithstanding anything
in this paragraph 2 to the contrary. Lessee shall have the right to terminate
this Lease at any time during the Term or any Renewal Term(s) of this Lease
(hereinafter referred to as the "Lessee's Early Termination Right") by giving
Lessor one (1) year prior written notice. If Lessee gives Lessor written notice
of Lessee's exercise of Lessee's Early Termination Right, then this Lease shall
terminate one (1) year after the date of said Notice.
3. RENTAL: Lessee shall pay to Lessor as rent for the Premises an annual rent of
One Million Three Thousand Eight Hundred Ninety Nine and 60/100 Dollars
($1,003,899.60) in twelve monthly installments of Eighty Three Thousand Six
Hundred Fifty Eight and 30/100 Dollars ($83,658.30) for the first year of the
Lease (hereinafter referred to as the "Rent"), the first monthly installment
(including the last two calendar days of December, 2002) of the Rent shall be
paid on the 2nd day of January, 2003, and each monthly installment thereafter
being due and payable in advance on the 1st day of each month thereafter. Rent,
on an annual basis, shall be allocated as stated in Exhibit B. If this Lease is
renewed and extended as provided for in Paragraph 2 above, then the Rent payable
for each such Renewal Term shall be increased by two and one-half percent
(2-1/2%).
4. USE OF PREMISES: The Tracts 1 and tract 2 of the Premises are leased for the
exclusive purpose of an office facility and parking lot facilities, and Tract 3
and Tract 4 of the Premises are leased for the exclusive purpose of
office/warehouse and parking lot facilities, and are not to be used for any
other purpose without first having secured the written consent of the Lessor,
which consent shall not be unreasonably withheld. No use of the building shall
be made which would increase the insurable risk of the building for fire and
extended coverage insurance.
3
5. PUBLIC REQUIREMENTS: Lessee, at Lessee's sole expense, shall comply with all
laws, regulations, rules, ordinances, governmental orders and other public
requirements now and hereafter affecting the Premises or the use thereof,
including but not limited to all recorded covenants and restrictions, if any.
Lessee shall save and hold Lessor harmless from any and all loss, liability,
demand, cost, expense, damage, suit, cause of action, claim, or attorney fee
arising out of Lessee's failure to comply with all laws, regulations, rules,
ordinances, governmental orders and other public requirements now and hereafter
affecting the Premises or the use thereof, including but not limited to all
recorded covenants and restrictions, if any. In the furtherance of, and not in
limitation of, Lessee's obligations under the foregoing paragraph, throughout
the terms of this Lease, Lessee shall do or cause to be done all things
necessary to preserve and keep in full force and effect any and all permits
required for the conduct of its business and operations during the Term and any
subsequent Renewal Term(s).
6. ASSIGNING AND SUBLEASING: Lessee shall not sublet the Premises or any part
thereof and Lessee shall not assign, transfer, pledge, mortgage or otherwise
encumber the Premises or this Lease, or any portion of the Term or Renewal
Term(s) thereof, without the prior written consent in each instance of Lessor,
and Lessee shall furnish to Lessor with each request a copy of such proposed
instrument, which such consent shall not be unreasonably withheld. The
withholding of consent shall be deemed reasonable if the requested assignment or
sublease that is likely to be detrimental to the Premises or adjacent property,
or occupants thereof, or is likely to be more hazardous on account of fire or
otherwise, or creates wear and tear to the Premises in excess of the business
purpose for which the Premises is leased hereunder, shall be are herein leased.
7. INSURANCE--LESSEE:
(a) Lessee shall, throughout the term of this Lease, maintain fire and
extended coverage insurance with owners, landlords and tenants
endorsement on the Premises leased in an amount equal to the full
insurable value thereof, in a company or companies rated Best A
4
or better, and naming Lessor and Lessor's mortgagee or mortgagees as
additional insureds.
(b) Lessee shall, at its expense, during the term hereof, maintain and
deliver to Lessor general liability insurance policy with owners,
landlords and tenants endorsement with respect to the premises
naming Lessor and Lessor's mortgagee or mortgagees as additional
insureds, with limits of at least $2,000,000 for injury or death to
any one person and $2,000,000 for any one accident, and $1,000,000
with respect to damage to property.
(c) Said policies of insurance shall be in whatever form and with such
insurance companies as are reasonably satisfactory to Lessor, and
shall provide for at least ten days' prior notice to Lessor of
cancellation. At least ten days before any such policy expires,
Lessee shall supply Lessor with a substitute therefore, together
with evidence that the premiums therefore have been paid. If Lessee
fails to do so, Lessor may procure such policies or pay such
premiums. In such case, all amounts so paid by Lessor, with interest
thereon at the rate of 4% over Wall Street Journal's published prime
rate as published from time to time per annum, shall be added to the
next monthly Rent installment coming due, and shall be collected as
additional Rent.
(d) Lessee shall be solely responsible for its equipment, furniture,
fixtures, inventory and other personal property located on the
Premises and shall be solely responsible for carrying whatever
insurance it desires with respect to such property.
(e) Lessor and Lessor's mortgagee, if any, shall at all times be named
as an additional insured on all policies of insurance required by
this Lease and Lessee shall provide to Lessor and Lessor's
mortgagee, if any, a current certificate showing compliance with
this covenant, provided that Lessor shall have notified Lessee in
writing of the name and address of such mortgagee. Each policy of
insurance shall require notice to Lessor and Lessor's mortgagee
prior to cancellation.
5
8. TAXES: Lessee shall pay all real property taxes, personal property taxes and
special assessments lawfully levied against the Premises during the Term or any
Renewal Term of this Lease. In the event of termination of this Lease, taxes
shall be prorated between Lessor and Lessee, based on number of days the Lessee
is in possession of the Premises. Lessee shall have the right to contest the
amount or validity, in whole or in part, of any tax by appropriate proceedings
diligently conducted in good faith. If the provisions of any law or regulation
then in effect so require, Lessor shall join in such proceedings.
9. MAINTENANCE BY LESSEE: Lessee shall, at its expense, maintain, repair, clean,
and keep in good care and condition the entire Premises and appurtenances
thereto, including but not limited to, the interior of the Premises, the
exterior of the Premises, the roof of the Premises, all doors and windows of the
Premises, all heating, ventilating, plumbing, air conditioning, electrical
systems, communication and data transfer systems, and mechanical systems, all
structural aspects of the Premises, interior and exterior walls, parking lots,
sidewalks, landscaping, and shall keep the same in good repair free from filth,
mold, overloading, danger of fire, nuisance, or infestation of pests or vermin.
Lessee shall maintain and replace any plate glass, windows, glass doors, or
other glass in the building. Lessee shall conduct a continuing program of
preventive maintenance covering the walls, roof, doors, windows, interior and
exterior of the Premises, and all heating, ventilating, plumbing, air
conditioning, electrical systems, communication and data transfer systems, and
mechanical systems in the Premises, including but not limited to regular service
and maintenance by competent tradesmen. Lessee shall be solely responsible for
the care, control and maintenance of inside air quality in the Premises. Lessee
shall not permit any waste of the Premises. At the expiration or other
termination of this Lease, Lessee shall return the premises to Lessor in a clean
condition and in as good condition as when received by Lessee, except only for
normal wear and use, damage by fire, explosion or other insured casualty. Lessee
shall, at its expense, keep the sidewalks, parking lots, and lawns and
landscaped areas of the Premises in a clean condition from debris. Lessee shall,
at its expense, maintain in good repair the parking lot and sidewalk areas.
Lessee shall, at
6
its expense, provide for snow and ice removal, grass mowing, and landscaping
maintenance. If Lessee fails to do anything required of Lessee in this paragraph
within a reasonable time, Lessor may, at Lessor's option, perform the same at
Lessee's expense.
10. ALTERATIONS AND ADDITIONS: With the prior, written consent of the Lessor,
which such consent shall not be unreasonably withheld, the Lessee may, at its
sole expense, make non-structural additions, improvements, or modifications to
the interior of the building on the premises for the convenient conduct of its
business. All such changes shall be made in a good and workmanlike manner and in
accordance with applicable codes and regulations, including but not limited to
applicable municipal building codes, fire codes, and the American's With
Disabilities Act. Lessee shall have the right to install such machinery,
equipment, and business and trade fixtures as it deems necessary, and such items
shall remain the property of Lessee and shall be removed at the termination of
this Lease; provided, however, that the Lessee shall repair any damage caused by
the installation, use or removal of any such machinery, equipment, and business
and trade fixtures within thirty (30) days after termination of this Lease. If
any such machinery, equipment, and business and trade fixtures remain on the
Premises after said thirty (30) day period, Lessor may (a) deem all or a portion
of such property abandoned by Lessee and title to such property shall thereupon
transfer to Lessor; or, (b) remove all or a portion of such property from the
Premises at the Lessee's expense and the Lessee shall pay to Lessor the expenses
incurred by Lessor in removing, storing, and disposing of such property with ten
(10) days after notice as provided herein.
11. LESSOR'S RIGHT OF ENTRY: Lessor, or Lessor's Agent, may enter upon the
Premises at reasonable hours upon reasonable notice to Lessee to examine and
inspect the Premises and to do anything required of Lessor hereunder or which
Lessor may deem necessary for the protection of the Premises. Lessor may, during
the last 90 days of this Lease, display a sign offering the Premises for sale or
for lease, which sign may be affixed in a conspicuous place on the Premises.
Neither Lessor nor any of Lessor's agents who enters upon the Premises shall
7
disclose to any person or entity any information, observations, data, or visual
impressions regarding the trade secrets or other confidential business
information of Lessee.
12. SIGNS AND ADVERTISEMENTS: Lessee is hereby granted the privilege of erecting
signs on the front of the Premises, including in the front and side yards of the
Premises, subject to applicable laws, ordinances, and regulations, including but
not limited to ordinances of the municipality in which the Premises are located
and restrictive covenants on the Premises relating to signs, if applicable. All
such signs may advertise the Lessee's business only. No revenue producing signs
shall be permitted on the Premises, and Lessee shall not allow, assign, lease or
convey any right to any third person to place any sign or advertisement on the
Premises. Lessee shall not paint any messages, signs or advertising directly on
the improvements located on the Premises, or otherwise deface, damage or
overload the Premises. Lessee shall remove all signs at the termination of this
Lease, and shall repair any damage to the Premises caused by signs or the
removal of the signs at Lessee's sole cost and expense. Anything contained
herein to the contrary notwithstanding, Lessor expressly reserves the right and
privilege to lease a portion of the Premises for the purposes of erecting signs
or advertisements which did not unreasonably impair or interfere with the right
of the Lessee to use the Premises, and which do not compete with the business of
the Lessee.
13. LIABILITY: Lessee hereby releases, waives and relinquishes all claims
against the Lessor, and Lessee hereby assumes all risks and agrees to indemnify
and hold Lessor harmless from and against any loss, liability, claim, demand,
cause of action, costs, damage or expense done or occasioned by or from any
plumbing, wiring, gas, water, steam, sprinkler system, equipment or other pipes,
or the bursting, leaking roof, door or window, leaking or running of any tank,
washstand, water closet, waste pipe or other articles in, above, upon or about
the Premises, or for damage occasioned from or by water, snow, or ice being upon
or about the Premises. Lessor and Lessee hereby expressly waive any cause of
action or right of recovery which either may have hereafter against the other
for any loss or damage to the premises, or to the contents thereof, from all
claims and liabilities arising from or caused by any hazard that are
8
covered by a standard fire insurance policy with extended coverage and "all
risk" endorsement on the Premises or on the contents thereof, to the extent of
any amounts actually received. Lessee agrees to save and hold Lessor harmless
from any and all loss, liability, claim, damage, suit, cause of action, demand,
or expense arising from any injury (including death) to persons or damage to
property occurring in, on or about the Premises, except to the extent caused by
the negligence of the Lessor, its agents and employees.
14. DAMAGE BY CASUALTY: If, during the Term or any Renewal Term(s) or this Lease
and in the sole judgment of Lessor, the Premises suffer damage by fire,
explosion, or any other casualty (a) to the extent that the Premises cannot
reasonably be repaired within 180 days after date of such damage; or, (b) to the
extent the Premises cannot be economically repaired, then this Lease shall, at
the option of Lessor, terminate as to that portion of the Premises so damaged
without penalty to Lessor as of the date of such damage and the Rent allocated
to that portion of the Premises so damaged shall cease as of the date of such
damage, and Lessee shall forthwith surrender that portion of the damaged
Premises to Lessor; provided, however, that this Lease shall continue in full
force and effect as to the remainder of the Premises. If this Lease is not so
terminated, then Lessee shall repair the Premises as soon as reasonably
practicable, and Lessor shall assign any insurance proceeds to Lessee for the
purpose of paying for such repairs. It is further agreed that the period for
reconstruction shall be extended for such time during which strikes, riots,
civil commotion, governmental intervention, acts of God, or any other
contingency beyond Lessee's control shall delay the construction. In case of
such damage, whether this Lease is thereby terminated or not, Lessor shall not
do anything to hinder or delay Lessee's work or repair, and will cooperate with
Lessee in the performance of such repair or work. Lessor shall not be liable to
Lessee for any business interruption, loss, liability, property damage, personal
injury or inconvenience to Lessee, or Lessee's employees, agents or contractors
by making repairs to any part of the Premises, or for any restoration to the
Premises made by Lessee. Notwithstanding anything herein to the contrary, in the
event the holder of any indebtedness secured by a mortgage or deed of trust
covering the Premises requires that any or all of the
9
insurance proceeds be applied to such indebtedness, then Lessor shall have the
right to terminate this Lease without penalty by delivering written notice of
termination to Lessee, whereupon all rights and obligations hereunder shall
cease and terminate. Any allocation of Rent required under this Lease shall be
made in accordance with the Allocation Schedule in Exhibit B, as adjusted on a
pro rata basis for subsequent increases of rent.
15. DEFAULT:
A. Any of the following shall constitute a default by Lessee:
1. Failure to cure any breach or violation of any covenant, term,
obligation or condition of this Lease within twenty (20) days after
being notified of such breach or violation by Lessor.
2. The filing of a bankruptcy petition by Lessee.
3. The appointment of a receiver for Lessee.
4. The filing of an involuntary petition in bankruptcy, or for
reorganization, against the Lessee.
5. Execution by the Lessee of an assignment for the benefit of
creditors.
6. The actual or threatened sale, conveyance or assignment of
Lessee's leasehold interest hereunder.
B. If Lessee commits an event of default, Landlord may, at its
election:
1. Declare a forfeiture, terminate this Lease, accelerate the entire
balance of unpaid Rent and declare same immediately due and payable;
2. Immediately and without delay re-enter and take possession of the
Premises, using such force as may be necessary without the same
being deemed a trespass or forcible entry;
10
3. Remove all Lessee's personal property and fixtures from the
Premises without liability for damage thereto, and may sell the same
and apply the proceeds thereof, first, against the cost and expenses
of such removal or sale, next to the costs of cleaning and restoring
of the Premises and, next against the unpaid Rent due hereunder; or
4. Relet the premises, without such action being deemed an
acceptance of a surrender of this Lease or a termination of Tenant's
liability hereunder, upon such terms as it may see fit, and apply
the proceeds thereof, first, against the cost and expenses, legal or
otherwise, incurred as a result of the default, next against the
retaking of possession and the cleaning and restoring of the
Premises, next against the costs of reletting the Premises, and then
against the unpaid Rent due hereunder.
C. The rights and remedies provided herein shall be cumulative, and
Lessor's election of one shall not exclude the exercise any other provided
herein. Furthermore, the Lessor may proceed and file an action at law or
in equity to enforce this Lease, and the Lessor expressly reserves any and
all rights and remedies afforded the Lessor at law or in equity. No
failure by Lessee to insist upon the strict performance of any term or
condition of this Lease or to exercise any right or remedy available on a
breach or default thereunder, and no acceptance of full or partial Rent
during the continuance of any such breach or default shall constitute a
waiver of any such breach or default of any such term or condition. No
term or condition of this Lease required to be performed by Tenant, and no
breach or default thereof, shall be waived, altered, or modified, except
by a written instrument executed by Lessor. No waiver of any breach or
default shall affect or alter
11
any term or condition in this Lease, and each such term or condition shall
continue in full force and effect with respect to any other then existing
or subsequent breach or default thereof.
16. EMINENT DOMAIN: If eminent domain proceedings result in the partial
condemnation of the Premises thereby leaving part of Premises usable by Lessee
for the purposes of its business, then this Lease shall not terminate and the
Rent for the remainder of the Term or Renewal Term(s) of this Lease shall be
reduced by the amount that the usefulness of the Premises has been reduced, if
any, for the business purposes of Lessee. If eminent domain proceedings
resulting in the total condemnation of the Premises, then this Lease shall
terminate and the Rent shall be prorated as of the date of such termination and
Lessee shall pay such prorated sum immediately and Lessee shall have no claim
against Lessor, and the Lessee hereby waives and releases the Lessor from any
such claim, loss or liability, for any damages resulting from the condemnation
of the Premises and the Lessee shall have no claim against Lessor for the value
of any unexpired term of this Lease. Lessee hereby assigns and transfers to
Lessor any and all claims it may have to compensation for damages as a result of
any condemnation by eminent domain.
17. UTILITIES: Lessee (a) shall contract in its own name; (b) shall pay for all
deposits, fees, costs, expenses and charges for; and, (c) shall be solely
responsible for any and all water, sewer, gas, heat, oil, electricity, fuel,
telephone and other utilities used in or serving the Premises during the Term or
any Renewal Term(s) of this Lease.
18. MECHANIC'S LIENS: Lessee shall not permit any mechanic's liens, or other
liens, to be placed upon the Premises or any building or improvement thereon
during the term hereof as a result of Lessee's actions, and in case of the
filing of any such lien, Lessee shall promptly pay same; provided, however, that
Lessee shall have the right to contest the validity or amount of any such lien
upon posting security in the form or a surety bond or letter of credit with
Lessor which in Lessor's sole discretion and judgment is adequate to pay and
discharge any such lien in full if
12
held valid. Lessee shall have sixty (60) days after filing of any such lien to
pay the lien or post security as provided for above. If default in payment of
the lien shall continue for thirty (30) days after notice thereof from Lessor to
Lessee, Lessor shall have the right and privilege at Lessor's option of paying
the lien or any portion thereof without inquiry as to the validity thereof, and
any amounts so paid, including expenses and interest, shall be immediately due
and payable by Lessee to Lessor and shall be paid promptly upon presentation of
▇▇▇▇ therefore.
19. MORTGAGES AND ESTOPPEL CERTIFICATES: This Lease shall be subject and
subordinate to any mortgage or deed of trust now or at any time hereafter
constituting a lien or charge upon the Premises or the improvements situated
thereon; provided that Lessee and the holder of such mortgage or deed of trust
shall have entered into a non-disturbance and attornment agreement in form and
content reasonably acceptable to such parties. Subject to the foregoing, Lessee
shall at any time hereafter on demand execute any instruments, releases or other
documents which may be required by any such mortgagee for the purpose of
subjecting and subordinating this Lease to the lien of any such mortgage. Lessee
shall at any time and from time to time, upon not less than thirty (30) days'
prior request by Lessor, execute, acknowledge and deliver to Lessor, a statement
in writing certifying that (i) 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 identifying the modifications), (ii) the dates to which
the Rent and other charges have been paid, and (iii) so far as the person making
the certificate knows, Lessor is not in default under any provisions of this
Lease (or if there are defaults, specifying the defaults). It is intended that
any such statement may be relied upon by any person proposing to acquire
Lessor's interest in this Lease or the Premises, or any prospective mortgagee
of, or assignee of any mortgage upon such interest or the premises.
20. ENVIRONMENTAL COVENANTS AND WARRANTIES: Lessee, at Lessee's sole expense,
shall comply with all applicable federal, state and local laws, regulations, or
ordinances pertaining to air and water quality, special waste, hazardous waste
or hazardous materials, waste disposal, air emissions, and other environmental
matters, and with any direction
13
of any public officer or officers, pursuant to law, which shall impose any duty
upon Lessor or Lessee with respect to any of the foregoing.
21. INDEMNIFICATION: Lessee shall indemnify, defend, and hold Lessor harmless
from any and all loss, liability, claims, suits, causes of action, expenses,
costs, judgments, damages, penalties, or fines (including, without limitation,
diminution in value of the premises, damages for the loss or restriction on use
of rentable or usable space or of any amenity of the premises and reasonable
sums paid in settlement of claims, reasonable attorney's fees, reasonable
consultant fees, and reasonable expert fees) arising out of Lessee's or Lessee's
employees, agents or contractors, use or activities on the Premises. Lessee
shall indemnify, defend, and hold Lessor harmless from any and all loss,
liability, claims, suits, causes of action, expenses, costs, judgments, damages,
penalties, or fines (including, without limitation, diminution in value of the
premises, damages for the loss or restriction on use of rentable or usable space
or of any amenity of the premises and reasonable sums paid in settlement of
claims, reasonable attorney's fees, reasonable consultant fees, and reasonable
expert fees) arising out of air quality, existence of mold or other airborne
condition, or arising out of any deficiency arising out of heating, ventilation
and air conditioning causing abnormal or harmful air quality, mold or other
airborne condition in the Premises. This indemnification of Lessor by Lessee
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state, or local government agency or
political subdivision because of release of or existence of any special waste,
hazardous waste, or hazardous material in, on, or under the Premises or
groundwater in, on, under, or migrating to or from the Premises. Without
limiting the foregoing, if the release or presence of any special waste,
hazardous waste, or hazardous material on the Premises is caused or permitted by
Lessee or its employees, agents or contractors, Lessee shall promptly take all
actions at its sole expenses as are necessary to return the Premises to the
condition existing prior to the release of any such special waste, hazardous
waste or hazardous material to the premises; provided, however, that
14
Lessor's approval of such actions shall first be obtained. The foregoing
indemnity shall survive the expiration or termination of this Lease.
22. The submission of this Lease to Lessee shall not be construed as an offer
and Lessee shall not have any rights with respect thereto unless Lessor executes
a copy of this Lease and delivers the same to Lessee.
23. Lessee shall agree to amend this Lease to conform to any reasonable requests
of Lessor's lender or lenders so long as such amendment or amendments do not
adversely affect Lessee's rights pursuant hereto or increase Lessee's duties
with respect hereto.
24. WAIVER: A waiver by Lessor or Lessee of any default or breach hereunder
shall not be construed to be a continuing waiver of such default or breach, nor
as a waiver or permission, expressed or implied, of any other or subsequent
default or breach.
25. NOTICES: All notices required under this Lease shall be sent by registered
or certified mail or by express overnight delivery as follows:
To Lessor: LATEL, LLC
C/O Agracel
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Lessee: Illinois Consolidated Telephone Company
Attn: Chief Financial Officer
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Notices so mailed or delivered shall be deemed duly served and given upon
deposit with the U.S. Postal service or overnight courier, as applicable,
postage or delivery fee prepaid, addressed as above indicated.
26. SUCCESSORS: All of the terms, covenants and conditions of this Lease shall
apply and inure to the benefit of, and be binding upon the parties hereto, and
upon their respective successors in interest and legal representatives, except
as otherwise provided herein.
27. QUIET POSSESSION: Lessor covenants with Lessee that said Lessee, on paying
the Rent herein required to be paid and upon the full, faithful and timely
performance of each and
15
every covenants herein contained, shall and may peaceably and quietly have, hold
and enjoy the premises during the term of this Lease, except for those existing
tenant's in possession of part of the Premises under certain lease agreements
held by Lessor and identified in Exhibit A, which the Lessor shall assign to
Lessee contemporaneous with the execution of this Lease.
28. PROCUREMENT OF THIS LEASE: Each of the parties hereto certifies that no
broker or leasing agent independent of the parties has been involved in the
negotiation of this Lease.
29. ATTORNEY'S FEES: If any action at law or in equity shall be brought to
enforce any of the covenants, terms or conditions of this Lease, the prevailing
party shall be entitled to recover from the non-prevailing party the prevailing
party's costs, expenses and reasonable attorney's fees, the amount of which
shall be fixed by the court, and shall be made a part of any judgment or decree
rendered incurred in such enforcement of this Lease.
30. LEASE CONSTITUTES ENTIRE CONTRACT: This Lease shall constitute the entire
agreement between the parties. Any prior understandings, agreements,
negotiations or representations of any kind preceding the date of this Lease and
not contained herein are hereby discharged and shall not be binding upon either
party except to the extent incorporated in this Lease by a written modification
agreement signed by each party or an authorized representative of each party and
attached hereto. Lessor and Lessee agree that this Lease shall not be recorded
in the public records; provided, however, that a "Memorandum of Lease" in usual
and customary form shall be executed and acknowledged by the Lessor and Lessee,
and the Lessee may record same in the public records.
31. LESSOR'S OPTION TO EXTEND LEASE. In the event that during the Term or any
Renewal Term of this Lease (i) Lessee or an entity that directly or indirectly
controls Lessee engages in an public offering of its common equity securities;
or (ii) there is a change of control of Lessee or an entity that directly or
indirectly controls Lessee; or (iii) there is a Board Shift Event or Put Breach
Event under the Homebase Acquisition LLC Limited Liability Company Agreement,
then Lessor
16
shall have the option to convert the term of this Lease to a fixed term of six
(6) years commencing on the date the option is exercised. Except as otherwise
provided in this section, upon Lessor's conversion to a fixed term, all terms,
conditions and covenants of the Lease shall remain in full force and effect;
provided that Lessee's Early Termination Right shall be suspended for said six
(6) year term. The term "control" or "controlling" as used herein shall mean the
ownership of fifty percent (50%) or more of the voting securities of an entity.
The term "change of control" as used herein shall mean the acquisition after the
date hereof, directly or indirectly, by one or more persons or group of persons
(other than one or more affiliates of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or Lessor) of "control" of
Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease or have caused it
to be executed by its respective authorized representatives that affixed below
next to their respective signatures. Each of the persons executing this Lease
represent that they are authorized to execute the same on behalf of the party
for whom they have executed hereafter.
LESSEE: ILLINOIS CONSOLIDATED TELEPHONE COMPANY
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ DATE: 12/31/2002
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ITS SECRETARY
ATTEST: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATE: 12/31/2002
---------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ITS ASSISTANT SECRETARY
LESSOR: LATEL, LLC, AN ILLINOIS LIMITED LIABILITY COMPANY
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATE: 12/31/2002
-------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, PRESIDENT, AGRACEL, INC., MANAGING MEMBER
17
LESSEE'S NOTARY
STATE OF ILLINOIS )
) ss.
COUNTY OF COLES )
I, the undersigned, a Notary Public, in and for said county, in the state
aforesaid, DO HEREBY CERTIFY that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, personally known to me to be
the Secretary of Illinois Consolidated Telephone Company, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
personally known to me to be the Assistant Secretary of Illinois Consolidated
Telephone Company, and 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 as such Secretary and Assistant Secretary they
signed and delivered the said instrument as Secretary and Assistant Secretary of
said corporation, pursuant to authority given by the Board of Directors of said
Corporation as their free and voluntary act and as the free and voluntary act
and deed of said Corporation for the uses and purposes therein set forth.
Given under my hand and notarial seal this 31st day of December, 2002.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------
Notary Public
LESSOR'S NOTARY
STATE OF ILLINOIS )
) ss.
COUNTY OF COLES )
I, the undersigned, a Notary Public, in and for said county, in the state
aforesaid, DO HEREBY CERTIFY that ▇▇▇▇ ▇. ▇▇▇▇▇▇, personally known to me to be
the President of Agracel, Inc., Managing Member of Latel, LLC., an Illinois
limited liability company, and 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 as such President he signed and delivered
the said instrument as President of said company, pursuant to authority given by
the Board of Directors of said Corporation , as their free and voluntary act and
as the free and voluntary act and deed of said company for the uses and purposes
therein set forth.
Given under my hand and notarial seal this 31st day of December, 2002.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Notary Public
THIS INSTRUMENT PREPARED BY:
▇▇▇▇▇▇ Law Offices, P.C.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
18
EXHIBIT A
LIST OF EXISTING LEASES OF PART OF THE PREMISES TO BE ASSIGNED BY
LESSOR TO LESSEE
Unwritten Lease Agreement by Illinois Consolidated Telephone Company, and
Verisign, Inc. covering that part of Tract 1 commonly known as ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
19
EXHIBIT B
ALLOCATION SCHEDULE
TRACT #1: MATTOON GENERAL OFFICE ' $ 534,285.00
TRACT #2: MATTOON SALES AND ADMINISTRATION $ 304,094.70
TRACT #3: MATTOON FIELD OPERATIONS $ 137,291.70
TRACT #4: TAYLORVILLE GARAGE $ 28,228.20
-------------
TOTAL $1,003,899.60
20