Attached files
EXHIBIT 10.3
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LEASE AGREEMENT
BY THIS LEASE AGREEMENT (hereinafter referred to as the "Lease")
made and entered as of the 22nd day of December, 2010, by and between
LATEL, LLC, an Illinois limited liability company, of 1200 Network
Centre Drive, Suite 3, Effingham, Illinois 62401 (hereinafter referred
to as "Lessor"), and Illinois Consolidated Telephone Company, an
Illinois corporation, of 121 South 17th Street, Mattoon, Illinois
61938 (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 Paragraph 1(b) below, together with the buildings and
improvements located thereon (hereinafter referred to as the
"Premises").
(b) The Premises is legally described as:
(Taylorville Property) The North 200 Feet of Lot Fifteen
(15) in Taylorville Industrial Park, Third (3rd) 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 1000 South Spresser,
Taylorville, Illinois.
2. TERM:
(a) The initial term of this Lease shall be ten (10) years and
six (6) months (hereinafter referred to as the "Initial Term"),
beginning on the 1st day of December, 2010 (hereinafter referred to as
the "Commencement Date") and ending May 31, 2021.
(b) Lessee shall have two (2) five-year options (hereinafter
referred to as the "Renewal Term" or "Renewal Terms") to extend the
term of this Lease on the same terms and conditions contained herein,
except as to rent which shall be as provided in Paragraph 3 of this
Lease. Lessee shall exercise its option to renew this Lease for a
Renewal Term by giving written notification to Lessor not less than
120 days prior to the end of the then current Term that Lessee desires
to exercise such option.
3. RENTAL: Lessee shall pay to Lessor gross rent for the
Initial Term of the Lease in the amount of THREE HUNDRED SEVENTEEN
THOUSAND SIX HUNDRED FORTY-SIX AND 00/100 DOLLARS ($317,646.00) (the
"Rent"), payable monthly as follows:
Year 1----------------------$2,235.00 per month for annual rent of $26,820.00;
Year 2----------------------$2,291.00 per month for annual rent of $27,492.00;
Year 3----------------------$2,348.00 per month for annual rent of $28,176.00;
Year 4----------------------$2,407.00 per month for annual rent of $28,884.00;
Year 5----------------------$2,467.00 per month for annual rent of $29,604.00;
Year 6----------------------$2,529.00 per month for annual rent of $30,348.00;
Year 7----------------------$2,592.00 per month for annual rent of $31,104.00;
Year 8----------------------$2,657.00 per month for annual rent of $31,884.00;
Year 9----------------------$2,723.00 per month for annual rent of $32,676.00;
Year 10---------------------$2,791.00 per month for annual rent of $33,492.00;
Year 11---------------------$2,861.00 per month for six months rent of $17,166.00;
(i) without advance notice, demand, offset, or deduction, except
as otherwise set forth in this Lease;
(ii) by the first day of each month during the term; and
(iii) by way of ACH debit into Lessor's account, or as Lessor
may reasonably specify in writing to Lessee.
Rent for the Renewal Terms shall be as follows:
Year 1----------------------$2,861.00 per month for annual rent of $34,332.00;
Year 2----------------------$2,933.00 per month for annual rent of $35,196.00;
Year 3----------------------$3,006.00 per month for annual rent of $36,072.00;
Year 4----------------------$3,081.00 per month for annual rent of $36,972.00;
Year 5----------------------$3,158.00 per month for annual rent of $37,896.00;
Year 6----------------------$3,237.00 per month for annual rent of $38,844.00;
Year 7----------------------$3,318.00 per month for annual rent of $39,816.00;
Year 8----------------------$3,401.00 per month for annual rent of $40,812.00;
Year 9----------------------$3,486.00 per month for annual rent of $41,832.00;
Year 10---------------------$3,573.00 per month for annual rent of $42,876.00.
Past due Rent shall bear interest at the rate of 1% per month (i.e
twelve (12%) percent per annum which shall be deemed the "Default
Rate" hereunder) prorated on a daily basis from the date due.
4. USE OF PREMISES: Premises are leased for the exclusive
purpose of an office/warehouse and parking lot facilities and are not
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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 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 Initial 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 Initial 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.
Permission is, however, granted to Lessee to assign or transfer
this Lease and also to sublet the Premises to any subsidiary
corporation of Lessee, affiliate corporation of Lessee, or parent
corporation of Lessee, upon giving Lessor written notice of intent so
to do. Lessee shall have the right to transfer and assign this Lease
without Lessor's consent to any parent, subsidiary, or affiliated
company of Lessee or to any person or corporation acquiring all or
substantially all of the assets of Lessee by purchase, merger,
consolidation or otherwise. An affiliate company is a company which
has at least a 50% common ownership with Lessee. Transfers of
Lessee's shares of stock as may occur from time to time shall not be
deemed a prohibited assignment of this Lease. In the event of any
assignment or subletting, Lessee shall remain the principal obligor to
the Lessor under all covenants of this Lease, and by accepting any
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assignment or subletting, an assignee or sublessee shall become bound
by and shall perform and shall become entitled to the benefits of all
the terms, conditions and covenants by which the Lessee hereunder is
bound.
7. INSURANCE--LESSEE:
(a) Lessee shall, throughout the Initial Term or Renewal Term(s)
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 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 at least thirty
(30) days 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 Initial Term or any Renewal Term of this Lease.
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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, excessive mold at a level cleaner than the
exterior of the Premises and at levels considered safe for most human
occupants, 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. At the expiration or other termination of
this Lease, Lessee shall return the premises to Lessor in a clean
condition as when received by Lessee, except only for reasonable use,
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 after receiving
written notice from Lessor of such violations, Lessor may, at Lessor's
option, perform the same at Lessee's expense providing that Lessor
first provides Lessee with competitive bids and/or estimates for such
remediation, repairs or maintenance.
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
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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, except reasonable use and
normal wear and tear excepted, 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 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.
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
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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.
14. DAMAGE BY CASUALTY: If, during the Initial 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, and in such event Tenant shall not be
obligated to pay any rent for the period from the date the Premises
are rendered untenantable until the Premises are again fit and ready
for Tenant's use and occupancy. Rent shall abate on a per diem basis.
If the Premises are rendered partially untenantable, rent shall be
equitably abated for the period from the date the Premises are
rendered untenantable until the Premises are again fit and ready for
Tenant's use and occupancy. 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
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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.
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 in violation of
Paragraph 6 of this Lease.
B. If Lessee commits an event of default, which Landlord does
not correct within the time specified above, 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
4. Relet the premises, without such action being deemed an
acceptance of a surrender of this Lease or a termination of
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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. In such event, Lessor shall use all
reasonable commercial means to obtain a new tenant for the
subject premises.
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.
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 Initial 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 to
the leased premises as a result of any condemnation by eminent domain.
Lessee reserves any rights it may have against the condemnation
authority which arise solely out of Lessee's loss of income or related
business interruption damages.
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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 Initial 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, 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 bill 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
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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 but only as to Lessee's operations under this Lease.
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
excessive mold at a level cleaner than the exterior of the Premises
and at levels considered safe for most human occupants or arising out
of any deficiency arising out of heating, ventilation and air
conditioning causing abnormal or harmful air quality arising out of
Lessee's or Lessee's employees, agents or contractor's use or
activities 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 and shall be
in compliance of all applicable federal, state or local government
agencies regulations. The foregoing indemnity with regard to the
actions of the Lessee shall survive the expiration or termination of
this Lease, provided, however, that upon the expiration or termination
of this Lease, Lessor shall make an inspection of the subject premises
and shall advise Lessee in writing within sixty (60) days thereafter
of any of the claims or matters which are the subject of this
paragraph.
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22. LEASE NOT AN OFFER: 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. Likewise, the submission by
Lessee to Lessor or any counter-proposals or revisions to this
proposed Lease shall not be construed as an offer by Lessee, and
Lessor shall not have any rights with respect thereto until Lessee
executes a copy of this Lease and delivers the same to Lessor.
23. AMENDMENTS: 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. Lessee shall be reimbursed by Lessor for any reasonable
attorney fees incurred by Lessee in complying with the terms of this
paragraph.
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, Inc.
1200 Network Centre Drive, Suite 3
Effingham, IL 62401
To Lessee: Illinois Consolidated Telephone Company
Attn: Chief Financial Officer
121 South 17th Street
Mattoon, IL 61938
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.
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.
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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. RIGHT OF FIRST REFUSAL. Lessor hereby grants to the Lessee
the "Right of First Refusal" to purchase the Premises if Lessor shall,
at any time during the Term of this Lease as the same may be extended
from time to time, obtain a bona fide written offer accepted by Lessor
to purchase the Premises ("3rd Party Offer) from any party upon the
following terms and conditions:
(a) If and when Lessor shall receive a 3rd Party Offer Lessor
must first notify Lessee in writing thereof and shall deliver to
Lessee a copy of any such written 3rd Party Offer, and Lessee shall
thereupon have the right for a period of twenty (20) days after
receipt of such notice and/or 3rd Party Offer to deliver to Lessor
written notice that it wishes to purchase the Premises upon the same
terms and conditions as set forth in the 3rd Party Offer whereupon the
Lessor and Lessee shall consummate the sale of the Premises as set
forth in the 3rd Party Offer. If Lessee shall fail to deliver its
written notice within such twenty (20) day period, Lessor shall be
free to sell the Premises to such prospective purchaser upon all of
the same terms and conditions as set forth in the 3rd Party Offer, and
upon closing of such sale and purchase, Lessee's Right of First
Refusal shall automatically terminate and be of no further force or
effect. Notwithstanding the foregoing, if Lessor shall materially
change any of the terms of the 3rd Party Offer prior to its sale of
the Premises to such prospective purchaser, the Premises shall be
reoffered to Lessee upon such changed terms as set forth above in this
Section. Furthermore, if Lessor shall fail to consummate the sale of
the Premises to the prospective purchaser within one hundred twenty
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(120) days after the date when Lessee fails to timely and properly
exercise its rights to purchase the Premises under this Right of First
Refusal, Lessee's Right of First Refusal, as set forth above shall be
reinstated and Lessee's rights thereunder shall revive.
(b) Upon the consummation of the sale of the Premises to the
prospective purchaser, Lessee shall deliver to Lessor in recordable
form a termination and release of Lessee's Right of First Refusal.
The foregoing termination and release shall not cause or constitute a
termination of record notice of the Lease and its options.
32. LESSOR'S OPTION TO EXTEND LEASE. In the event that during
the Initial Term or any Renewal Term of this Lease there is a change
of control of Lessee or an entity that directly or indirectly controls
Lessee, then Lessor shall have the option to convert the term of this
Lease for a fixed term of seven (7) years commencing on the date the
option is exercised if (i) on the date the option is exercised the
remaining Term is less than seven (7) years or (ii) if the option is
exercised during any Renewal Term. Upon Lessor's conversion to a
fixed seven (7) year term, all terms, conditions and covenants of the
Lease shall remain in full force and effect. 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 of "control" of Lessee. Notwithstanding anything in this
Paragraph 32 to the contrary, Lessor shall not have the option to
convert the term as described above in the event Lessor is an entity
other than LATEL, LLC.
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.
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Date: 12/15/10 LATEL, LLC, an Illinois Limited
Liability Company
By: /s/ R. Dean Bingham
--------------------------------
R. Dean Bingham, President of
Agracel, Inc., Managing
Member
Attest:
/s/ Michael Mumm
-------------------------------------
Michael Mumm, Chief Financial Officer
"LESSOR"
Date: Dec. 22, 2010 ILLINOIS CONSOLIDATED TELEPHONE
COMPANY, an Illinois Corporation
By: /s/ Robert J. Currey
--------------------------------
Robert J. Currey
President & CEO
Attest:
/s/ Steven L. Childers
-------------------------
Steven L. Childers
Senior Vice President &
Chief Financial Officer
"LESSEE"
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ACKNOWLEDGMENTS
---------------
STATE OF ILLINOIS )
)
COUNTY OF EFFINGHAM )
I, the undersigned, a Notary Public, in and for said county, in
the state aforesaid, DO HEREBY CERTIFY that R. Dean Bingham,
personally known to me to be the President of Agracel, Inc., Managing
Member of LATEL, LLC, and Michael Mumm, personally known to me to be
the Chief Financial Officer of Agracel, 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 President and CFO they signed and delivered the said
instrument as President and CFO of said corporation, and caused the
corporate seal of said corporation to be affixed thereto, 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 15th day of December,
2010.
/s/ Sharon K. Harper
----------------------------------
Notary Public
"OFFICIAL SEAL"
SHARON K. HARPER
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 5/9/13
STATE OF ILLINOIS )
)
COUNTY OF COLES )
I, the undersigned, a Notary Public, in and for said county, in
the state aforesaid, DO HEREBY CERTIFY that Robert J. Currey,
personally known to me to be the President & CEO of Consolidated
Communications Services Company and Steven L. Childers, personally
known to me to be the Senior Vice President & CFO of said corporation,
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 & CEO and Senior Vice
President & CFO they signed and delivered the said instrument as
President & CEO and Senior Vice President & CFO of said corporation,
and caused the corporate seal of said corporation to be affixed
thereto, 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.
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Given under my hand and notarial seal this 22nd day of December,
2010.
/s/ Mary Jo Frank
----------------------------------
Notary Public
OFFICIAL SEAL
MARY JO FRANK
NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EXPIRES: 07/09/14
1
