EXHIBIT 10.11
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 0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0,
Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Lessor"), and
Consolidated Market Response Inc., of 000 Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, (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: Commencing at the Northwest corner of the Southwest
Quarter of Section 15, Township 12 North, Range 9 East of the 3rd
PM, Coles County, Illinois, thence measure on azimuth from true
North 89 degrees 37 minutes along the Xxxxx xxxx xx xxxx
Xxxxxxxxx Xxxxxxx, 0000.00 feet; thence azimuth 179 degrees 37
minutes a distance of 78.35 feet to the South right of way line
of F.A. Route 17, now known as Route 16, to the Point of
Beginning; thence azimuth 179 degrees 37 minutes a distance of
130.35 feet, thence azimuth 269 degrees 37 minutes a distance of
201.9 feet; thence azimuth 359 degrees 37 minutes a distance of
130.11 feet to the South right of way line of said F.A. Route 17
now known as Route 16; thence azimuth 89 degrees 33 minutes 00
seconds along said South right of way line 201.9 feet to the
Point of Beginning, City of Charleston,
1
County of Coles, State of Illinois; being commonly referred to as
000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx.
TRACT 2: Commencing at the Northwest corner of the Southwest
Quarter of Section 15, Township 12 North, Range 9 East of the 3rd
PM, Coles County, Illinois, thence measure on azimuth from true
North 89 degrees 37 minutes 00 seconds along the Xxxxx xxxx xx
xxxx Xxxxxxxxx Xxxxxxx, 0000.00 feet; thence azimuth 179 degrees
37 minutes 00 seconds a distance of 78.35 feet to the South right
of way line of F.A. Route 17, now known as Route 16, to the Point
of Beginning; thence azimuth 179 degrees 37 minutes 00 seconds a
distance of 130.35 feet; thence azimuth 269 degrees 37 minutes a
distance of 201.9 feet; thence azimuth 179 degrees 37 minutes 00
seconds a distance of 171.3 feet to the North line of University
Heights Subdivision, 337.03 feet; thence azimuth 359 degrees 33
minutes 00 seconds a distance of 301.8 feet to the South Right of
way line of F.A. Route 17, now known as Route 16; thence azimuth
269 degrees 33 minutes 00 seconds along the said South right of
way line 134.8 feet to the Point of Beginning, City of
Charleston, County of Coles, State of Illinois, being commonly
referred to as 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx.
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 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
this
2
Lease 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; provided, however, that anything contained herein to the contrary
notwithstanding, 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
Two Hundred Sixteen Thousand Eight Hundred Forty Three and 90/100 Dollars
($216,843.90) in twelve monthly installments of Eighteen Thousand Seventy and
33/100 Dollars ($18,070.33) 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 in advance 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 Premises are leased for the purpose of an office
facility 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.
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
3
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 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
4
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.
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
5
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 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
6
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
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
7
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 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.
8
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 Lessor shall repair the Premises as soon as reasonably
practicable. 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
Lesses'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 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 to
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:
9
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 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;
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
10
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 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.
11
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 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,
12
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 xxxx 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 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,
13
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 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.
14
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
0000 Xxxxxxx Xxxxxx, Xxxxx 0
Xxxxxxxxx, XX 00000
To Lessee: Consolidated Market Response Inc.
C/O Illinois Consolidated Telephone Company
Attn: Chief Financial Officer
000 Xxxxx Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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 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.
15
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 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
16
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
Xxxxxxx Xxxxxxx 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: CONSOLIDATED MARKET RESPONSE INC.
BY: /s/ XXXXXX XXXXXX DATE: 12/31/2002
-----------------------------
XXXXXX XXXXXX, ITS ASSISTANT TREASURER
ATTEST: /s/ XXXXXX X. XXXXXXX DATE: 12/31/2002
---------------------
XXXXXX X. XXXXXXX, ITS ASSISTANT SECRETARY
LESSOR: LATEL, LLC, AN ILLINOIS LIMITED LIABILITY COMPANY
BY: /s/ XXXX X. XXXXXXX DATE: 12/31/2002
--------------------
XXXX X. XXXXXXX, PRESIDENT, AGRACEL, INC., MANAGING MEMBER
ATTEST: /s/ XXXXXXX XXXX DATE: 12/31/2002
--------------------
XXXXXXX XXXX, SECRETARY, 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 XXXXXX XXXXXX, personally known to me to be
the Assistant Treasurer of Consolidated Market Response Inc., and XXXXXX X.
XXXXXXX, personally known to me to be the Assistant Secretary of Consolidated
Market Response Inc., 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 Assistant Treasurer and Assistant Secretary
they signed and delivered the said instrument as Assistant Treasurer 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/ Xxxxxx X. Xxx
-------------------
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 XXXX X. XXXXXXX, personally known to me to be
the President of Agracel, Inc., Managing Member of Latel, LLC., an Illinois
limited liability company, and XXXXXXX XXXX, personally known to me to be the
Secretary of Agracel, Inc., Managing Member of Latel, LLC., an Illinois limited
liability 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 President and Secretary they signed and
delivered the said instrument as President and Secretary 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/ Xxxxxx X. Xxxxxxxx
-----------------------
Notary Public
THIS INSTRUMENT PREPARED BY:
Xxxxxx Law Offices, P.C.
Xxxxxxx X. Xxxxxxxxxxx
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
000-000-0000
18
Exhibit A
1. Lease dated 1, 2000 between Consolidated Market Response Inc., as
Landlord, assigned to LATEL, LLC by Assignment dated December 31, 2002,
and Westaff, as Tenant;
2. Lease dated January 1, 1994 between Consolidated Telemarketing of America
Inc, as Landlord, now known as Consolidated Market Response Inc. assigned
to LATEL, LLC by Assignment dated December 31, 2002, and Xxxxx Xxxx
Lincoln Health Center, as Tenant
3. Lease dated November 25, 1993 between Consolidated Telemarketing of
America Inc, as Landlord now known as Consolidated Market Response Inc.
assigned by LATEL, LLC by Assignment dated December 31, 2002, and Illinois
Consolidated Telephone Company, as Tenant
19
Exhibit B
Tract 1 and Tract 2 of the Premises: $216,843.90
TOTAL: $216,843.90
20
