EXHIBIT 10.42
ASSET PURCHASE AGREEMENT
BETWEEN
COMPS INFOSYSTEMS,
THE LAND SALES RESOURCE AND
KITTY LAYNE
JULY 17, 1995
TABLE OF CONTENTS
1. PURCHASE AND SALE OF ASSETS....................................... 2
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1.1 Transfer of Assets........................................... 2
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1.2 Assumption of Liabilities.................................... 3
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1.3 Purchase Price............................................... 3
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1.4 Allocation of Asset Price.................................... 3
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1.5 Prorations................................................... 3
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1.6 Sales Taxes.................................................. 4
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2. CLOSING............................................................ 4
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2.1 Closing...................................................... 4
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2.2 Conveyances at Closing....................................... 4
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2.3 Form of Instruments.......................................... 5
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2.4 Additional Documents and Information......................... 5
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3. REPRESENTATIONS AND WARRANTIES OF LSR AND LAYNE.................... 5
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3.1 Organization of LSR.......................................... 5
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3.2 Authorization................................................ 6
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3.3 No Conflict or Violation..................................... 6
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3.4 Consent and Approvals........................................ 6
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3.5 Absence of Certain Changes or Events......................... 6
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3.6 Purchased Assets............................................. 7
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3.7 Real Property................................................ 7
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3.8 Equipment Lease.............................................. 9
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3.9 Financial Statements......................................... 9
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3.10 Litigation................................................... 9
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3.11 Liabilities.................................................. 10
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3.12 Compliance with Law.......................................... 10
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3.13 No Brokers................................................... 10
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3.14 No Other Agreements to Sell the Assets....................... 10
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3.15 Tax Matters.................................................. 11
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3.16 Employment Matters and Benefit Plans......................... 11
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3.17 Insurance.................................................... 12
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3.18 Purchase Commitments and Outstanding Bids.................... 13
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3.19 Transactions with Certain Persons............................ 13
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3.20 Environmental Quality........................................ 14
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3.21 Hazardous Conditions......................................... 14
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3.22 Adequacy of Purchased Assets................................. 14
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3.23 Material Misstatements or Omissions.......................... 14
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4. REPRESENTATIONS AND WARRANTIES OF COMPS
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4.1 Organization of COMPS........................................ 14
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4.2 Authorization................................................ 14
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4.3 No Conflict or Violation..................................... 15
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4.4 Consent and Approvals........................................ 15
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5. COVENANTS OF LSR AND COMPS......................................... 16
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5.1 Maintenance of Business Prior to Closing..................... 16
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5.2 Key Employees................................................ 16
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5.3 Investigation by COMPS; Audits............................... 17
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5.4 Notification of Certain Matters.............................. 18
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5.5 No Mergers, Consolidations, Sale of Stock, Etc............... 18
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6. CONDITIONS TO LSR'S AND LAYNE's OBLIGATIONS........................ 19
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6.1 Representations, Warranties and Covenants.................... 19
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6.2 No Governmental Proceedings or Litigation.................... 19
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6.3 Certificates................................................. 19
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7. CONDITIONS TO COMP's OBLIGATIONS................................... 20
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7.1 Representation, Warranties and Covenants..................... 20
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7.2 No Governmental Proceedings or Litigation.................... 20
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7.3 Opinion of Counsel........................................... 20
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7.4 Certificates................................................. 20
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7.5 Conveyancing Documents....................................... 20
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8. COVENANT NOT TO COMPETE............................................ 20
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9. ACTIONS BY LSR AND COMPS AFTER THE CLOSING
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9.1 Books and Records............................................ 20
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9.2 Survival of Representations.................................. 20
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9.3 Indemnification.............................................. 21
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9.3.1 By LSR and Layne..................................... 21
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9.3.2 By COMPS............................................. 21
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9.3.3 Assistance........................................... 21
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9.3.4 Defense of Claims.................................... 22
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9.3.5 COMPS's Right of Offset.............................. 23
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9.3.6 Damages.............................................. 23
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10. MISCELLANEOUS
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10.1 Termination.................................................. 24
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10.2 Risk of Loss................................................. 24
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10.2.1 Personal Property.................................... 25
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10.2.2 Leased or Owned Real Property........................ 25
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10.3 Notices...................................................... 26
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10.4 Choice of Law................................................ 26
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10.5 Entire Agreement; Amendments and Waivers..................... 27
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10.6 Counterparts................................................. 27
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10.7 Expenses..................................................... 27
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10.8 Invalidity................................................... 27
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10.9 Arbitration and Venue........................................ 27
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10.10 Public Announcements......................................... 28
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10.11 Construction................................................. 28
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10.12 Section and Other Headings................................... 25
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10.13 Schedules and Exhibits Not Attached.......................... 28
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ASSET PURCHASE AGREEMENT
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This Asset Purchase Agreement, dated July 17, 1995, is by and between COMPS
InfoSystems, Inc., a Delaware corporation ("COMPS"), The Land Sales Resource, an
Illinois corporation ("LSR"), and Kitty Layne ("Layne").
RECITALS
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A. LSR is engaged in the business of gathering information on the real
estate industry in the Chicago area and compiling and selling that information
in various forms. LSR owns certain assets (the "Assets") which it uses in the
conduct of its business (the "Business").
B. COMPS also is engaged in the information systems business and operates
in many locations throughout the United States. It is the intention of COMPS to
enter the Chicago market and COMPS desires to purchase the Business.
C. The shareholders of LSR and their percentage ownership are:
Kitty Lane 65%
Mark Fogarty 20%
Joe Lyng 15%
D. In order to induce COMPS to enter into this Agreement, LSR and Layne
desire to grant COMPS a covenant not to compete and provide certain other
assurances.
E. Terms used herein which are not otherwise defined in context and the
initial letters of which are capitalized shall have the definitions set forth in
Appendix I.
AGREEMENT
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NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration. the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. PURCHASE AND SALE OF ASSETS
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1.1 Transfer of Assets. On the Closing Date, LSR will sell, convey,
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transfer, assign, and deliver to COMPS, and COMPS will acquire from LSR,
effective as of 12:01 a.m. local time on the Closing Date (the "Closing Time"),
all of LSR's assets of every nature and kind, except as provided in
Schedule 1.1, (the "Purchased Assets"), both real and personal, including,
without limitation:
1.1.1 customer lists, real estate information database, formats,
customer data, and customer subscription agreements all as
more particularly described on Schedule 1.1.
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1.1.2 a lease for space located at 622 Executive Dr. Willowbrook,
IL., true and correct copy of which is attached as Exhibit
1.1.2 (the "Real Property Lease");
1.1.3 A personal property lease for an office copier described in
Exhibit 1.1.3 (the "Equipment Lease").
1.1.4 all patents, trade names, trademarks, logos, copyrights and
applications therefor used or held for use in connection with
the Business, as described on Schedule 1.1.4 hereto (the
"Intellectual Property Rights");
1.1.5 all leasehold improvements;
1.1.6 all machinery, equipment, furniture, fixtures, vehicles,
office equipment, supplies, tools, inventory, and parts used
or held for use in the Business, all of which are listed on
Schedule 1.1.6;
1.1.7 all rights under contracts and agreements related to the
Business;
1.1.8 accounts receivable, cash on hand, all prepaid items,
deposits, advance payments, rights to offset and credits of
all kinds of LSR;
1.1.9 Copies of all of the Books and Records of the Business;
1.1.10 all goodwill of the Business;
1.1.11 all manufacturer, supplier or contractor warranties or
guaranties respecting any Purchased Assets; and
1.1.12 all other assets, tangible or intangible, used currently in
the Business or necessary for the operation of the Business in
the ordinary course and consistent with past practice;
1.2 Assumption of Liabilities. COMPS shall assume no liabilities of LSR
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of any sort whatsoever except for those obligations and liabilities set forth on
Schedule 1.2.
1.13 Purchase Price. The purchase price for the assets (the "Asset
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Price") shall be $275,000 to be paid at Closing, in cash, by certified check or
other immediately available funds.
1.4 Allocation of Asset Price. The Asset Price shall be allocated among
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the Purchased Assets as set forth on Schedule 1.4. COMPS and LSR agree that
each shall report the transfers contemplated by this Agreement in a manner
consistent with such
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allocation including without limitation, compliance with the requirements of
Section 1060 of the Code and the regulations thereunder.
1.5 Prorations. On the Closing Date, or as promptly as practicable
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following the Closing Date, the rents, real property taxes, water, gas,
electricity and other utilities, common area maintenance reimbursements to
lessors and other similar periodic charges payable with respect to the Real
Property shall be prorated between COMPS and LSR effective as of the Closing
Date. To the extent practicable, utility meter readings for LSR's facilities
shall be determined as of the Closing Date. If the real property tax rate for
the current tax year is not established by the Closing Date, the prorations
shall be made on the basis of the rate in effect for the preceding tax year and
shall be adjusted when the exact amounts are determined. All such prorations
shall be based upon the most recent available assessed value of any facility
prior to the Closing Date.
1.6 Sales Taxes. COMPS shall pay any sales taxes imposed by reason of the
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purchase by COMPS of the Purchased Assets pursuant to this Agreement.
2. CLOSING
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2.1 Closing. The Closing of the purchase and sale of assets contemplated
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herein (the "Closing") shall be held at 10:00 A.M. local time on July 31, 1995
(the "Closing Date") at the offices of The Land Sales Resources, 622 Executive
Drive, Willowbrook, Illinois, unless extended by either party for a period not
to exceed 60 days unless the parties hereto otherwise agree.
2.2 Conveyances at Closing. To effect the transaction contemplated by
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this Agreement, on the Closing Date
2.2.1 LSR will execute and deliver to COMPS:
(a) an Assignment and Assumption Agreement in the form attached
hereto as Exhibit 2.2.1(1) conveying in the aggregate all of LSR's owned
personal property included in the Purchased Assets to COMPS;
(b) an assignment of Real Property Lease together with the consent of
the landlord in the form attached hereto as Exhibit 2.2.1(2);
(c) an assignment of the Equipment Lease together with the consent of
the lessor in the form attached hereto as Exhibit 2.2.1(3);
(d) such other instruments as shall be reasonably requested by COMPS
to vest in COMPS good and marketable title in and to all of the Purchased Assets
in accordance with the provisions hereof.
2.2.2 COMPS shall deliver to LSR and/or Layne
(a) the Asset Price;
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(b) the Assignment and Assumption Agreement attached as Exhibit
2.2.1(1);
(c) the employment agreements referred to in Section 5.2.1.;
(d) the option agreements referred to in Section 5.2.1
2.3 Form of Instruments. To the extent that a form of any document to be
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delivered hereunder is not attached as an Exhibit hereto, all the foregoing
instruments shall be in form and substance, and shall be executed and delivered
in a manner reasonably satisfactory to counsel for the parties.
2.4 Additional Documents and Information. COMPS and LSR shall, on
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request, on or after the Closing Date, cooperate with one another by furnishing
any additional information, executing and delivering any additional documents
and/or instruments, and by doing any and all such other things as may be
reasonably required by the parties or their counsel to consummate or otherwise
implement the transactions contemplated by this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF LSR AND LAYNE. LSR and Layne hereby
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represent and warrant to COMPS as of the date hereof, and as of Closing, as
follows:
3.1 Organization of LSR. LSR is a corporation duly organized, validly
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existing and in good standing under the laws of the State of Illinois, has full
corporate power and authority to conduct its business as it is presently being
conducted and to own and lease its properties and assets. LSR is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is necessary under the applicable law
as a result of the conduct of its business or the ownership of its properties
and where the failure to be so qualified, singly or in the aggregate, would have
a material adverse effect on the business or financial condition of LSR. Each
jurisdiction, if any, in which LSR is qualified to do business as a foreign
corporation is listed on the Disclosure Schedule.
3.2 Authorization. LSR has all necessary corporate power and authority
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and has taken all corporate action necessary, and Layne has all necessary power
and authority, to enter into this Agreement, to consummate the transactions
contemplated hereby and to perform their respective obligations hereunder. This
Agreement has been duly executed and delivered by each of LSR and Layne, and is
a legal, valid and binding obligation enforceable against LSR and Layne in
accordance with the terms except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other similar jaws, or by
equitable principles, relating to or limiting the rights of creditors generally
and (b) limitations imposed by law or equitable principles upon the availability
of specific performance, injunctive relief or other equitable remedies.
3.3 No Conflict or Violation. Except as described in the Disclosure
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Statement, neither the execution and delivery of this Agreement nor the
consummation of
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the transactions contemplated hereby will result in (a) a violation of or a
conflict with any provision of any of LSR's charter documents; (b) a breach of,
or a default under, or constitute a basis for terminating any term or provision
of any contract, agreement, indebtedness, lease to which LSR is a party or by
which the Purchased Assets are bound; (c) a violation by LSR of any law, order
or judgment; or (d) an imposition of any Encumbrance, restriction or charge on
the Business or on any of the Purchased Assets.
3.4 Consents and Approvals. Except as set forth on the Disclosure
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Schedule, no consent, approval or authorization of, or declaration, filing or
registration with, any governmental or regulatory authority, or any other person
or entity, is required to be had or obtained by LSR or Layne in connection with
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby.
3.5 Absence of Certain Changes or Events. Since the Balance Sheet Date,
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there has not been any:
3.5.1 change in LSR's condition (financial or otherwise), assets,
liabilities, working capital, reserves, earnings, business or prospects, except
for changes which have not, individually or in the aggregate, been materially
adverse, and neither LSR nor Layne knows of any developments in the Business
which could reasonably be expected to have a material adverse affect on the
condition (financial or otherwise), earnings, business or prospects of the
Business;
3.5.2 failure to operate the Business in the ordinary course so as
to use LSR's best efforts to preserve the business intact and to preserve for
COMPS the goodwill of LSR's suppliers, customers and others having business
relations with LSR;
3.5.3 change in accounting methods or practices by LSR affecting its
assets, liabilities or business;
3.5.4 sale, assignment or transfer of any of the assets or
properties of LSR, other than in the ordinary course of business, consistent
with past practice; or
3.5.5 any other event or condition which in any one case or in the
aggregate has or might reasonably be expected to have a material adverse effect
on the condition (financial or otherwise), earnings, business or prospects of
the Business.
3.6 Purchased Assets. LSR has good and marketable title to the Purchased
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Assets and, upon the consummation of the transactions contemplated hereby, COMPS
will acquire good title to the Purchased Assets, free and clear of any
Encumbrance of any sort whatsoever.
3.7 Real Property. LSR owns no Real Property.
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3.7.1 Real Property Lease. The Real Property Lease is the only
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lease, sublease or other occupancy agreement pursuant to which LSR occupies or
uses real property in connection with the Business; with respect to the Real
Property Lease:
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3.7.2 LSR has in all material respects performed all the obligations
required to be performed by it through the date hereof with respect thereto.
The Real Property Lease is not in default, is in full force and effect and LSR
enjoys peaceful and undisturbed possession of all the property covered by the
Real Property Lease;
3.7.3 LSR has and will transfer to COMPS at the Closing an
unencumbered interest in the Real Property Lease, which lease is freely
assignable by LSR to COMPS pursuant to this Agreement without any further action
except for the consent of the landlord including, without limitation, the
consent of, or payment of money or giving of notice to, any party;
3.7.4 To the best of LSR and Layne's knowledge, all facilities
leased thereunder have received all material approvals of governmental
authorities (including licenses and permits and a certificate of occupancy or
other evidence of lawful occupancy of the leased property) required in
connection with the operation thereof, and have been operated and maintained in
all material respects in accordance with applicable laws, rules and regulations;
3.7.5 The facilities leased thereunder are supplied with utilities
(including water, sewage, disposal, electricity, gas and telephone) and other
services necessary for the operation of such facilities as currently operated;
3.7.6 To the best of LSR and Layne's knowledge, there are no pending
or threatened condemnation proceedings with respect to the property leased
pursuant to the Real Property Lease, or pending or threatened litigation or
administrative actions relating thereto;
3.7.7 There are no subleases, licenses, options, rights, concessions
or other agreements or arrangements, written or oral, granting to any person the
right to use or occupy such property leased pursuant to any Real Property Lease,
or any portion thereof or interest therein;
3.7.8 The improvements constructed on the leased property are in
good operating condition and repair and, to the best of LSR and Layne's
knowledge, they are without any material structural or mechanical defects of any
kind; and
3.7.9 LSR has not received notice of any special assessment relating
to the leased property and has no knowledge of any pending or threatened special
assessment.
3.8 Equipment Lease. The Equipment Lease is the only lease or other
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agreement pursuant to which LSR utilizes personal property in connection with
the Business. With respect to the Equipment Lease:
3.8.1 LSR has in all material respects performed all the obligations
required to be performed by it through the date hereof with respect thereto.
The Equipment Lease is not in default, is in full force and effect and LSR
enjoys peaceful and undistributed possession of all the property covered by the
Equipment Lease;
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3.8.2 LSR has and will transfer to COMPS at the Closing an
unencumbered interest in the Equipment Lease, which lease is freely assignable
by LSR to COMPS pursuant to this Agreement without any further action except for
the consent of the Lessor including, without limitation, the consent of, or
payment of money or giving of notice to, any party;
3.8.3 There are no subleases, licenses, options, rights concessions
or other agreements or arrangements, written or oral, granting to any person the
right to use property leased pursuant to any Equipment Lease, or any portion
thereof or interest therein.
3.9 Financial Statements. LSR has heretofore delivered to COMPS the
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Financial Statements. The Financial Statements (i) are true, correct and
complete, (ii) are in accordance with the books and records of LSR, (iii) have
been examined by Roche, Scholz, Roche, Walsh, LTD, independent certified public
(iv) have been prepared in conformity with generally accepted accounting
principles consistently applied throughout the periods covered thereby and (v)
fairly and accurately present the consolidated assets, liabilities and financial
position of LSR as of the date thereof and the consolidated results of
operations and changes in cash flows for the periods then ended.
3.10 Litigation. There is no action, order, writ, injunction, judgment,
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decree, claim, suit, litigation, proceeding, labor dispute, arbitral action,
investigation or similar dispute of any sort whatsoever (collectively,
"Actions") outstanding or pending or, to the best knowledge of LSR and Layne,
threatened or anticipated against, relating to or affecting (i) LSR, (ii) any
benefit plan for employees of LSR or any fiduciary or administrator thereof,
(iii) Layne, or (iv) the transactions contemplated by this Agreement. LSR is
not in default with respect to any judgment, order, writ, injunction or decree
of any court or governmental agency, and there are no unsatisfied judgments
against LSR or its business or activities.
3.11 Liabilities. LSR has no liabilities or obligations (absolute,
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accrued, contingent or otherwise), which may have an effect on this transaction,
except (i) liabilities which are reflected and reserved against on the Balance
Sheet or (ii) Liabilities incurred in the ordinary course of business and
consistent with past practice since the Balance Sheet Date.
3.12 Compliance with Law. LSR and the Business are in compliance with all
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applicable laws, statutes, ordinances and regulations, whether federal, state or
local, except where the failure to comply would not have a material adverse
effect on the business, condition (financial or otherwise) or prospects of LSR.
LSR has not received any written notice to the effect that, or otherwise been
advised that, it is not in compliance with any of such statutes, regulations,
orders, ordinances or other laws where the failure to comply would have a
material adverse effect on the business, condition (financial or otherwise) or
prospects of LSR, and LSR has no reason to anticipate that any presently
existing circumstances are likely to result in violations of any such
regulations which would, in any one case or in the aggregate, have a material
adverse effect on the business, condition (financial or otherwise) or prospects
of LSR.
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3.13 No Brokers. Neither LSR, Layne nor any other affiliate of LSR has
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paid, nor incurred any obligation to pay, any finder's fee, brokerage commission
or similar payment of any sort whatsoever in connection with the transactions
contemplated by this Agreement.
3.14 No Other Agreements to Sell the Assets. Neither LSR, Layne nor any
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other affiliate or Representative of LSR has any obligation, absolute or
contingent, to any other person or firm to sell or encumber the Purchased
Assets, to sell capital stock of LSR or to effect any merger, consolidation or
other reorganization of LSR or to enter into any agreement with respect thereto,
nor has any such party had any discussion with any third party regarding any of
the foregoing.
3.15 Tax Matters.
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3.15.1 LSR is an S Corporation. LSR, any predecessor of LSR and all
members for income tax purposes of any affiliated group of corporations of which
LSR or any such predecessor corporation is or has been a member (collectively,
the "Taxpayers") have duly filed all tax reports and returns required to be
filed by them, including all federal, state, local and foreign tax returns and
reports. The Taxpayers have paid in full all taxes required to be paid by such
Taxpayers before such payment became delinquent. LSR has made adequate
provision, in conformity with generally accepted accounting principles
consistently applied, for the payment of all taxes which may subsequently become
due. All taxes which any Taxpayer has been required to collect or withhold have
been duly collected or withheld and, to the extent required when due, have been
or will be duly paid to the proper taxing authority.
3.15.2 The consolidated federal income tax returns of LSR and the
federal income tax returns of each subsidiary of LSR whose results of operations
are not consolidated in the federal income tax returns of LSR, have never been
examined by the Internal Revenue Service. There are no audits known by LSR to
be pending of LSR's tax returns, and there are no claims which have been or may
be assorted relating to any of LSR's tax returns filed for any year which if
determined adversely would result in the assertion by any governmental agency of
any deficiency. There have been no waivers of statutes of limitations by LSR.
3.15.3 For the purpose of this Agreement, any federal, state local
or foreign income, sales, use, transfer, payroll, personal property, occupancy
or other tax, levy, impost, fee, imposition, assessment or similar charge,
together with any related addition to tax, interest or penalty thereon, is
referred to as a "Tax."
3.16 Employment Matters and Benefit Pans
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3.16.1 Except as disclosed on the Disclosure Schedule, LSR has no
obligation of any sort whatsoever pursuant to or in connection with any
Employment Agreement or Employee Plan. All obligations to employees in respect
of vacation, sick leave and other benefits are described in detail in Exhibit
1.2
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3.16.2 Since the Balance Sheet Date there has not been any (i)
increase in the compensation payable or to become payable by LSR to any of its
officers, employees or agents (collectively, "Personnel") whose total
compensation for services rendered to LSR is currently at an annual rate of more
than $20,000, except for normal periodic increases in the ordinary course of
business consistent with past practice, (ii) any bonus, incentive compensation,
service award or other like benefit granted, made or accrued, contingently or
otherwise, for or to the credit of any of the Personnel, (iii) any employee
welfare, pension, retirement, profit-sharing or similar payment or arrangement
made or agreed to by LSR for any Personnel except pursuant to the existing
plans and arrangements described in the Disclosure Schedule, (iv) any new
Employment Agreement to which LSR is a party; or (vi) addition to or
modification of the employee benefit plans, arrangements or practices described
in the Disclosure Schedule affecting Personnel.
3.16.3 At the option of COMPS, certain employee of LSR shall become
employees of LSR-COMPS division. Immediately prior to the Closing, LSR shall
terminate all of those employees who are to transfer to LSR-COMPS division and
shall retain all liabilities in respect of such employees. At the Closing COMPS
shall immediately hire so many of those employees as it shall, in its sole
discretion, determine without the assumption of any prior obligation to such
employees. COMPS makes no representation that any specific benefit will be
maintained upon its hiring LSR employees and expressly reserves the right to
alter the nature and/or amount of any or all of such benefits as a condition to
hiring such employees.
3.17 Insurance. The Disclosure Schedule contains a complete and accurate
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list of all policies or binders of fire, liability, title, worker's compensation
and other forms of insurance (showing as to each policy or binder the carrier,
policy number, coverage limits, expiration dates, annual premiums and a general
description of the type of coverage provided) maintained by LSR on its business,
property or Personnel. Such insurance provides coverage to the extent and in the
manner (a) customary for the industry in which LSR is engaged and (b) as may be
required by law and by any and all contracts to which LSR is a party. LSR is
not in default under any of such policies or binders, and LSR has not failed to
give any notice or to present any claim under any such policy or binder in a due
and timely fashion. There are no outstanding unpaid claims under any such
policies or binders. All policies and binders provide sufficient coverage for
the risks insured against, are in full force and effect on the data hereof and
shall be kept in full force and effect by LSR with respect to all insured events
occurring on or prior to the Closing Date.
3.18 Purchase Commitments and Outstanding Bids. Except as set forth on
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the Disclosure Schedule, LSR has no pending or outstanding commitments, bids or
proposals to purchase any goods or services.
3.19 Transactions with Certain Persons. Except as set forth on the
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Disclosure Schedule, no officer, director or employee of LSR or any member of
any such person's immediate family is presently a party to any transaction with
LSR relating to LSR's business, including without limitation, any contract,
agreement or other arrangement (i)
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providing for the furnishing of services by, (ii) providing for the rental of
real or personal property from, or (iii) otherwise requiring payments to (other
than for services as officers, directors or employees of LSR) any such person or
corporation, partnership, trust or other entity in which any such person has a
substantial interest as a shareholder, officer, director, trustee or partner.
3.20 Environmental Quality. LSR has complied in all material respects with
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all federal, state, and local environmental protection laws and regulations and
have not been cited for any violation of any such law or regulation. No material
capital expenditures will be required for compliance with any applicable
federal, state, or local laws or regulations now in force relating to the
protection of the environment. There is no pending audit known to LSR or Layne
or any of their officers by any federal, state, or local governmental authority
with respect to groundwater, soil, or air monitoring; the storage, burial,
release, transportation, or disposal of hazardous substances; or the use of
underground storage tanks by LSR or relating to the Facilities. Neither LSR nor
Layne has any agreement with any third party or federal, state, or local
governmental authority relating to any such environmental matter or any
environmental cleanup.
3.21 Hazardous Conditions. There are no defective, unsafe or hazardous
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conditions pertaining to the Purchased Assets or the locations in which any such
Purchased Assets are installed or stored.
3.22 Adequacy of Purchased Assets. The Purchased Assets are in good
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operating condition and repair (ordinary wear and tear excepted), are all of the
assets used currently in the Business or necessary for the operation of the
Business in the ordinary course and consistent with past practice, and are in
conformity in all material respects with all applicable laws, ordinances,
orders, relations and other requirements (including applicable zoning,
environmental, motor vehicle safety or standards, occupational safety and health
laws and regulations) relating thereto currently in effect, except where the
failure to conform would not have a material adverse effect on the business,
condition (financial or otherwise) or prospects of LSR.
3.23 Material Misstatements Or Omissions. No representations or
-----------------------------------
warranties by LSR or Layne in this Agreement, nor any document, exhibit,
statement, certificate or schedule furnished to COMPS pursuant hereto, or in
connection with the transactions contemplated hereby, contain or will contain
any untrue statement of a material fact, or omit or will omit to state any
material fact necessary to make the statements or facts contained therein not
misleading. LSR has disclosed all events, conditions and facts materially
affecting the business, condition (financial or otherwise) or prospects of such
LSR.
4. REPRESENTATION AND WARRANTIES OF COMPS. COMPS hereby represents and
--------------------------------------
warrants to LSR as follows:
4.1 Organization of COMPS. COMPS is a corporation duly organized, validly
---------------------
existing and in good standing under the laws of the State of Delaware, has full
10
corporate power and authority to conduct its business as it is presently being
conducted and to own and lease its properties and assets.
4.2 Authorization. COMPS has all necessary corporate power and authority
-------------
and has taken all corporate action necessary to enter into this Agreement, to
consummate the transactions contemplated hereby and to perform its obligations
hereunder. This Agreement has been duly executed and delivered by COMPS and is
a legal, valid and binding obligation enforceable against COMPS in accordance
with its terms except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws, or by equitable
principles, relating to or limiting the rights of creditors generally, and (b)
limitations imposed by law or equitable principles upon the availability of
specific performance, injunctive relief or other equitable remedies.
4.3 No Conflict or Violation. Neither the execution and delivery of this
------------------------
Agreement nor the consummation of the transactions contemplated hereby will
result in (a) a violation of or a conflict with any provision of any of COMPS's
charter documents; (b) a breach of, or a default under, or constitute a basis
for terminating any term or provision of any contract, agreement, indebtedness
or lease to which COMPS is a party or by which its assets are bound which breach
or default would have a material adverse effect on the ability of COMPS to
consummate the transactions contemplated hereby or (c) a violation by COMPS of
any law, order or judgment.
4.4 Consent and Approvals. Except as set forth on Schedule 4.4 hereto, no
---------------------
consent, approval or authorization of, or declaration, filing or registration
with, any governmental or regulatory authority, or any other person or entity,
is required to be made or obtained by COMPS in connection with the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby.
4.5 Capitalization and Rights. The authorized and outstanding capital
-------------------------
stock of COMPS is as follows:
Class Authorized Outstanding
----- ----------- -----------
A common 22,500,000 4,773,860
B common 2,500,000 0
Preferred 5,000,000 4,270,336
The preferred stock and the class B common stock are both convertible into class
A common on a one to one basis.
4.6 No Brokers. Neither COMPS nor any affiliate of COMPS has paid nor
----------
incurred any obligation to pay, any finder's fee, brokerage commission or
similar payment of any sort whatsoever in connection with the transactions
contemplated by this Agreement.
4.7 Litigation. There is no action, order, writ, injunction, judgment,
----------
decree, claim, suit, litigation, proceeding, labor dispute, arbitral action,
investigation or
11
similar dispute of any sort whatsoever outstanding or pending or, to the best
knowledge of COMPS, threatened or anticipated against, relating to, affecting or
which would have reasonable potential to obstruct or prevent the consummation of
the transaction contemplated by this Agreement.
5. COVENANTS OF LSR AND COMPS. LSR and COMPS each covenant with the other as
--------------------------
follows:
5.1 Maintenance of Business Prior to Closing. LSR shall continue to carry
----------------------------------------
on its business in ordinary course and in accordance with past practice to
reserve the business intact and to preserve for COMPS the goodwill of LSR's
suppliers, customers and others having business relations with it and will not
take any action inconsistent therewith or with the consummation of the Closing.
Without in any way limiting the generality of the foregoing, LSR agrees that
from the date hereof through the Closing Date, (a) it shall conduct and schedule
its cash collected on operations consistent with past practice, (b) maintain the
Purchased Assets in their current state of repair, ordinary wear and tear
excepted, (c) maintain the insurance coverages and (d) it shall not sell, assign
or transfer any of its assets or properties other than in the ordinary course of
business, consistent with past practice.
5.2 Key Employees.
-------------
5.2.1 Layne and Mark Fogarty ("Fogarty") shall agree to become
employees of COMPS operating out of the Chicago office. Layne shall be the
President of LSR-COMPS division and Regional Vice President of COMPS. Mr.
Fogarty shall be the Systems Manager of LSR-COMPS division. Both Layne and
Fogarty shall serve pursuant to the executive employment agreement of COMPS and
each shall receive incentive stock options pursuant to COMPS" Incentive Stock
Option Plan (the "Options") of the same type as those which are currently issued
to other executives of COMPS. The form of employment agreement for Layne and
Fogarty referred to above and the form of stock option agreement in respect of
the Options for Layne and Fogarty referred to above are attached hereto as
Exhibits 5.2.1A and 5.2.1B, respectively.
5.2.2 The Options shall be in respect of 75,000 shares to Layne and
15,000 shares to Fogarty and shall be exercisable at $.30 per share for a period
of 5 years. The Options shall vest at the end of the first year following the
closing and as to 15,000 shares for Layne and 3,000 shares for Fogarty and a
similar number of shares each year thereafter for the next four years.
5.2.3 All options shall vest upon
(a) the closing of any transaction in which all or substantially
all of the assets of COMPS are sold to or COMPS is merged with an entity not
owned or controlled by or under common control with COMPS; or
(b) the effective date of a registration statement filed
pursuant to the Securities Act of 1933, as amended, in respect of an
underwritten public offering of the common shares of COMPS.
12
5.2.4 The parties acknowledge that the issuance of the Options and
the underlying shares is subject to the requirements of state and federal
securities laws. As a condition precedent to their issuance, Layne and Fogarty
shall agree to such restrictions and other requirements as shall be necessary in
order for COMPS to meet the requirements for exemption from registration or
other qualification under the federal securities laws and under any applicable
state securities laws.
5.3 Investigation by COMPS; Audits;
------------------------------
5.3.1 LSR shall allow COMPS at its own expense during regular
business hours to make such inspection of the Purchased Assets and to inspect
and make copies of other contracts, Books and Records or information requested
by COMPS and necessary for or reasonably related to the operation of the
Business including historical financial information concerning the business and
operations of LSR; provided, however, that any information obtained from LSR is
-------- -------
subject to the confidentially agreement entered into and dated April 28, 1995.
5.3.2 COMPS intends to enter the real estate information market in
the Chicago area in the very near future. It recognizes that despite the best
efforts of the parties to consummate the transaction contemplated by this
agreement, it may not be possible to complete the sale. This being the case and
since COMPS wishes to avoid any possible question concerning its use of the
proprietary information of LSR, COMPS does not intend to review LSR customer
list nor LSR real estate information database in connection with its due
diligence investigation nor will it review any of the proprietary techniques of
LSR unless believes that a Closing is a certainty. However, COMPS reserves the
right to make such an investigation and LSR agrees that if COMPS should make a
specific written request to do so, it will assist COMPS to undertake the
investigation in such a way that there can be no significant potential that
COMPS could realistically be placed in a position to use LSR proprietary
information in connection with its independent entry into the Chicago market.
5.4 Notification of Certain Matters. LSR shall give prompt notice to
-------------------------------
COMPS, and COMPS shall give prompt notice to LSR, of (i) the occurrence, or
failure to occur, of any event the occurrence or failure of which would be
likely to cause any representation or warranty contained in this Agreement to be
untrue or inaccurate any time from the date hereof to the Closing Date and (ii)
any failure of LSR or COMPS, as the case may be, to comply or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder. Each party shall use all reasonable efforts to remedy any failure on
its part to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder.
5.5 No Mergers, Consolidations, Sale of Stock, Etc. Except for
----------------------------------------------
negotiations between Layne and Joe Lyng for the acquisition by Layne of the
shares of LSR owned by Joe Lyng, neither LSR, Layne nor any other affiliate or
Representative of LSR will, directly or indirectly, solicit any inquiries or
proposals or enter into or continue any discussions, negotiations or agreements
relating to the sale or exchange of its capital stock or the merger of LSR with,
or any direct or indirect disposition of any amount of
13
LSR's assets or business to, any person other than COMPS or provide any
assistance or any information to or otherwise cooperate with any person in
connection with any such inquiry, proposal or transaction. In the event that LSR
receives an unsolicited offer for such a transaction or obtains information that
such an offer is likely to made, LSR will provide COMPS with notice thereof as
soon as practical after receipt, including the identity of the prospective
purchaser or soliciting party.
6. CONDITIONS TO LSR'S AND LAYNE's OBLIGATIONS. The obligations of LSR and
-------------------------------------------
Layne to consummate the transactions provided for hereby are subject, in the
reasonable discretion of LSR, to the satisfaction, on or prior to the Closing
Date, of each of the following conditions:
6.1 Representations, Warranties and Covenants. All representations and
-----------------------------------------
warranties of COMPS contained in this Agreement shall be true and correct at and
as of the Closing Date and COMPS shall have performed all agreements and
covenants required to be performed by it prior to or at the Closing Date.
6.2 No Governmental Proceedings or Litigation. No action by any
-----------------------------------------
governmental authority shall have been instituted or threatened which questions
the validity or legality of the transactions contemplated hereby and which could
reasonably be expected materially to damage LSR if the transactions contemplated
hereunder are consummated.
6.3 Certificates. COMPS will furnish LSR with such certificates of its
------------
officers and others to evidence compliance with the conditions set forth in this
Section 6 as may be reasonably requested by LSR.
6.4 Delivery at the Closing. COMPS shall deliver to LSR the Asset Price
-----------------------
comprised of the cash, certified check or other immediately available funds and
the Note referred to in section ? and shall deliver to Layne and Fogarty the
employment agreements and stock option agreements referred to in section 5.2.1
6.5 Opinion of Counsel. COMPS shall have delivered to LSR an opinion of
------------------
Monroe & Dostart counsel to COMPS, dated as of the Closing Date, in form and
substance satisfactory to LSR, to the effect that: [To Come].
7. CONDITIONS TO COMPS's OBLIGATIONS. The obligations of COMPS to consummate
---------------------------------
the transactions provided for hereby are subject, in the reasonable discretion
of COMPS, to the satisfaction, on or prior to the Closing Date, of each of the
following conditions:
7.1 Representations, Warranties and Covenants. All representations and
-----------------------------------------
warranties of LSR and Layne contained in this Agreement shall be true and
correct at and as of the Closing Date and LSR shall have performed all
agreements and covenants required to be performed by it prior to or at the
Closing Date.
7.2 No Governmental Proceedings or Litigation. No action by any
-----------------------------------------
governmental authority shall have been instituted or threatened which questions
the
14
validity or legality of the transactions contemplated hereby and which could
reasonably be expected materially to damage COMPS if the transactions
contemplated hereunder are consummated.
7.3 Opinion of Counsel. LSR shall have delivered to COMPS an opinion of
------------------
Burke, Warren and MacKay, counsel to LSR, dated as of the Closing Date, in form
and substance satisfactory to COMPS, to the effect that: [To Come].
7.4 Certificates. LSR will furnish COMPS with such certificates of its
------------
officers and others to evidence compliance with the conditions set forth in this
Section 7 as may be reasonably requested by COMPS.
7.5 Conveyancing Documents. LSR shall have executed and delivered each of
----------------------
the documents described in Section 2.2 so as to effect the transfer and
assignment to COMPS of all right, title and interest in and to the Purchased
Assets.
8. COVENANT NOT TO COMPETE. As an inducement for COMPS to enter into this
-----------------------
Agreement, each of LSR and Layne shall execute and deliver to COMPS a three-year
covenant not to compete in the form attached as Exhibit 8.
9. ACTION BY LSR AND COMPS AFTER THE CLOSING
------------------------------------------
9.1 Books and Records. Each party agrees that it will cooperate with and
-----------------
make available to the other party, during normal business hours, all Books and
Records, information and employees retained and remaining in existence after the
Closing Date which are necessary or useful in connection with any tax inquiry,
audit, investigation or dispute, any litigation or investigation or any other
matter requiring any such Books and Records, information or employees for any
reasonable business purpose. The party requesting any such Books and Records,
information or employees shall bear all of the out-of-pocket costs and expenses
reasonably incurred in connection with providing such Books and Records,
information or employees.
9.2 Survival of Representations. The representations and warranties of
---------------------------
COMPS, LSR and Layne contained herein shall survive the Closing Date until the
date that is 18 months following the Closing Date, without regard to any
investigation made by any of the parties hereto.
9.3 Indemnification.
---------------
9.3.1 By LSR and Layne. LSR and Layne shall, jointly and severally,
----------------
indemnify, save and hold harmless COMPS, its affiliates and its and their
respective Representatives, from and against any and all Damages, incurred in
connection with, arising out of, resulting from or incident to (i) any breach of
any covenant, representation, warranty or agreement or the inaccuracy of any
representation, made by LSR and Layne in or pursuant to this Agreement; or (ii)
any liability, obligation or commitment of any nature (absolute, accrued,
contingent or otherwise) of LSR and Layne and relating to the Business and
arising out of transactions entered into or events occurring prior to the
Closing.
15
9.3.2 By COMPS. COMPS shall indemnify and save and hold harmless LSR
--------
and Layne, its affiliates and subsidiaries, and its and their respective
Representatives from and against any and all Damages incurred in connection with
or arising out of or resulting from any (i) breach of any covenant or warranty,
or the inaccuracy of any representation, made by COMPS in or pursuant to this
Agreement or (ii) any liability, obligation or commitment of any nature
(absolute, accrued, contingent or otherwise) relating to the Business and
arising out of transactions entered into or events occurring subsequent to the
Closing.
9.3.3 Assistance. The parties shall cooperate with one another in
----------
all reasonable respects, at their own cost, risk and expense, in the
investigation, prosecution, trial, and defense of any lawsuit, claim,
proceeding, arbitration or action that is subject to indemnification hereunder.
9.3.4 Defense of Claims. If any lawsuit or enforcement action is
-----------------
filed against any party entitled to the benefit of indemnity hereunder, written
notice thereof shall be given to the indemnifying party as promptly as
practicable (and in any event within fifteen (15) days after the service of the
citation or summons); that the failure of any indemnified party to give timely
notice shall not affect rights to indemnification hereunder except to the extent
that the indemnifying party demonstrates actual damage caused by such failure.
After such notice, if the indemnifying party shall acknowledge in writing to the
indemnified party that the indemnifying party shall be obligated under the terms
of its indemnity hereunder in connection with such lawsuit or action, then the
indemnifying party shall be entitled, if it so elects, to take control of the
defense and investigation of such lawsuit or action and to employ and engage
attorneys of its own choice to handle and defend the same, at the indemnifying
party's cost, risk and expense unless (i) the indemnifying party has failed to
assume the defense of such action or proceeding or (ii) the named parties to
such action or proceeding include both of the indemnifying party and the
indemnified party and the indemnified party has been advised in writing by
counsel that there may be one or more legal defenses available to such
indemnified party that are different from or additional to those available to
the indemnifying party, and to compromise or settle such claim, which compromise
or settlement shall be made only with the written consent of the indemnifying
party, such consent not to be unreasonably withheld. If the indemnifying party
fails to assume the defense of such claim within 15 days after receipt of notice
of the claim pursuant to this Section 9.3, the indemnified party against which
such claim has been asserted will (upon delivering notice to such effect to the
indemnifying party) have the right to undertake, at the indemnifying party's
cost and expense, the defense, compromise or settlement of such claim on behalf
of and for the account and risk of the indemnifying party; that such claim shall
not be compromised or settled without the written consent of the indemnifying
party, which consent shall not be unreasonably withheld. In the event the
indemnified party assumes defense of the claim, the indemnified party will keep
the indemnifying party reasonably informed of the progress of any such defense,
compromise or settlement. The indemnifying party shall be liable for any
settlement of any action effected pursuant to and in accordance with this
Section 9.3 and for any final judgment (subject to any right of appeal), and the
indemnifying party agrees to indemnify and hold
16
harmless an indemnified party from and against any Damages by reason of such
settlement of judgment.
9.3.5 COMPS Right of Offset.
---------------------
(a) Anything in this Agreement to the Contrary notwithstanding,
COMPS may withhold from any amount which COMPS is obligated to indemnify LSR
and/or pursuant to any provision of this Section 9.3, an amount equal to any
Damages which it deems to be due to it from LSR and/or Layne (but may not
exercise a right of offset except as provided in subsection (b), below).
(b) COMPS shall have the right to exercise an offset against any
amount which it has with held as provided above if
(l) there is no dispute as to the amount due;
(2) LSR and Layne agree to the offset; or
(3) any controversy concerning the amount due is arbitrated in
accordance with Section 10.9 and resolved in favor of
COMPS.
9.3.6 Damages. The term "Damages" as used in this Section 9.3 shall
-------
mean all costs, losses (including, without limitation, diminution in value),
Taxes, diminutions in value, liabilities, damages, lawsuits, deficiencies,
claims and expenses (whether or not arising out of third-party claims),
including without limitation, interest, penalties, costs of mitigation, clean-up
or remedial action, lost profits and other losses resulting from any shutdown or
curtailment of operations, damages to the environment, attorneys" fees and all
amounts paid in investigation, defense or settlement of any of the foregoing.
Damages are not limited to matters asserted by third parties against LSR and
Layne or COMPS, but include Damages incurred or sustained by LSR and Layne or
COMPS in the absence of third party claims. Payments by LSR and Layne or COMPS
of amounts for which they are indemnified hereunder shall not be a condition
precedent to recovery. The parties" obligation to indemnify one another shall
not limit any other rights, including without limitation, rights of contribution
they may have with respect to each other under statute or common law.
9.4 Single Family Residence Data. After the Closing, COMPS proposes to
----------------------------
sell that portion of the Business which currently provides single family
residence data to Market Data Center, Inc. If it can be sold as a unit/system
to Market Data Center, Inc. or REIC or some other person or entity, the net
proceeds of the sale will be shared 50% with LSR.
10. MISCELLANEOUS.
-------------
10.1 Termination. This Agreement may be terminated at any time prior to
-----------
Closing:
(a) by LSR, if any condition precedent to LSR's obligations
hereunder is not satisfied and such condition is not waived by LSR at or prior
to the Closing Date;
17
(b) by COMPS, if any condition precedent to COMPS's obligations
hereunder is not satisfied and such condition is not waived by COMPS at or prior
to the Closing Date;
(c) by either party, in the event the Closing has not taken
place by sixty days from the date specified in Section 2.1 as the Closing Date;
in which case, COMPS or LSR, as the case may be, may terminate this Agreement at
its option by notice to the other party. In the event of the termination of
this Agreement by either party as above provided, neither party shall have any
liability hereunder of any nature whatsoever to the other party, including any
liability for damages, unless either party is in default under its obligations
hereunder, in which event the party in default shall be liable to the other
party for such default. In the event that a condition precedent to its
obligations is not satisfied, nothing contained herein shall be deemed to
require any party to terminate this Agreement, rather than to waive such
condition precedent and proceed with the Closing.
10.2 Risk of Loss.
------------
10.2.1 Personal Property. Until the Settlement Time, all risk of
-----------------
loss or damage to the personal property included in the Purchased Assets shall
be borne by LSR, and thereafter shall be borne by COMPS. If any material
portion of such personal property is destroyed or damaged by fire or any other
cause prior to the Settlement Time, LSR shall promptly give notice to COMPS of
such damage or destruction and the amount of insurance, if any, covering said
personal property. Prior to the Settlement Time, COMPS may exclude said
property from this Agreement by providing notice as soon as possible, but not
less than 24 hours prior to the Closing Date, in which event the Asset Price
shall be reduced by the amount allocated to such damaged or destroyed property,
as mutually agreed between the parties. After the Settlement Time, any such
insurance proceeds shall belong, and to the extent necessary shall be assigned,
to COMPS without any reduction in the Asset Price.
10.2.2 Leased or Owned Real Property. If after the Settlement Time,
-----------------------------
there is any fire, other casualty loss or condemnation (a "Destruction")
affecting any of the facilities covered by the Real Property Lease, the risk of
loss of such property shall be borne by COMPS, and any insurance proceeds with
respect to such property shall belong to COMPS, without any reduction in the
Asset Price. If between the date hereto and the Settlement Time there is any
Destruction affecting any of the facilities covered by the Real Property Lease,
then:
(a) COMPS may refuse to accept any such property, and this
Agreement shall be terminated as to said property, unless LSR agrees to restore
------
or repair such destroyed or damaged property in which latter event any insurance
proceeds shall be retained by LSR and LSR shall complete said repairs and
restoration within a reasonable time not to exceed nine (9) months after the
date upon which LSR notified COMPS of its election to repair or restore said
property pursuant to this Section.
18
(b) If, pursuant to this Section, this Agreement is terminated
with respect to any of the facilities covered by the Real Property Lease, the
parties hereto shall be relieved of any further obligations or liabilities under
this Agreement with respect to such property and any related leasehold
improvements, fixtures and equipment and inventory, and the Asset Price shall be
reduced by the amount allocated to such Purchased Assets.
10.3 Notices. Any notice of any sort to be given hereunder by either
-------
party to the other shall be in writing and delivered as follows:
If to LSR, addressed to:
Land Sales Resource
622 Executive Drive
Willowbrook, IL 60521
Attention: Ms. Kitty Layne, President & CEO
cc: Chris Manning, Esq.
Burke, Warren and MacKay, P.C.
22 W. Washington, 24th floor
Chicago, IL 60606
If to Layne, addressed to:
Ms. Kitty Layne
President & CEO
Land Sales Resource
622 Executive Drive
Willowbrook, IL 60521
If to COMPS, addressed to:
COMPS InfoSystems, Inc.
9888 Carroll Center Road, Suite 100
San Diego, CA 92126
Attention: Mr. Chris Crane
cc: Jerry W. Monroe, Esq.
Monroe & Dostart
9191 Towne Centre Drive, Suite 270
San Diego, CA 92122
or to such other place and with such other copies as either party may designate
as to itself by written notice to the other.
19
10.4 Choice of Law. This Agreement shall be construed, interpreted and
-------------
the rights of the parties determined in accordance with the laws of the State of
California, without reference to the choice of law provisions thereof.
10.5 Entire Agreement; Amendments and Waivers. This Agreement, together
----------------------------------------
with all exhibits and schedules hereto, constitutes the complete, final and
exclusive statement of the terms of the agreement among the parties pertaining
to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions of the parties. No modification or
rescission of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
10.6 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.7 Expenses. Except as expressly provided herein with respect to sales
--------
taxes, each party hereto shall pay its own legal, accounting, out-of-pocket and
other expenses incident to this Agreement and to any action taken by such party
in preparation for carrying this Agreement into effect.
10.8 Invalidity. In the event that any one or more of the provisions
----------
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
10.9 Arbitration and Venue. Any controversy or claim arising out of or
---------------------
relating to this Agreement or the making, performance or interpretation thereof
shall be submitted to arbitration in San Diego, California, pursuant to the
rules and procedures of the American Arbitration Association before a panel of
three arbitrators. The ruling of the arbitrator shall be final, and judgment
thereon may be entered in any court having jurisdiction. If any question is
submitted to a court of law for resolution, then the Superior Court of the
County of San Diego, California, or the United States District Court having
jurisdiction in the County of San Diego, shall be the exclusive court of
competent jurisdiction for the resolution of such question. The costs of an
arbitration or any litigation whether the same shall arise either in connection
with or apart from the arbitration shall be borne by the party against whom he
award is granted. Each party shall be entitled to pre-hearing discovery as
provided in California Code of Civil Procedure Section 1283.05.
10.10 Public Announcements. Neither COMPS, LSR, Layne nor any of their
--------------------
respective affiliates shall issue any press release or make any public statement
regarding the transactions contemplated hereby, without the prior written
approval of the other parties hereto.
20
10.11 Construction. No provision of this Agreement shall be construed in
------------
favor of or against any party on the ground that such party or its counsel
drafted the provision. Any remedies provided for herein are not exclusive of any
other lawful remedies which may be available to either party. This Agreement
shall at all times be construed so as to carry out the purposes stated herein.
10.12 Section and Other Headings. The section and other headings
--------------------------
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
10.13 Schedules and Exhibits Not Attached. The Schedules and Exhibits
-----------------------------------
hereto are sometimes referenced as being "attached" to his Agreement. In fact,
such Exhibits are compiled separately in a document entitled " SCHEDULES AND
EXHIBITS TO THE ASSET PURCHASE AGREEMENT BETWEEN COMPS INFOSYSTEMS, THE LAND
SALES RESOURCE AND KITTY LAYNE." In some instances, because of the exigencies
of time, Schedules or Exhibits may not have been provided at the time of
execution of this Agreement. All Schedules and Exhibits will be provided to
COMPS not later than the midpoint in the time between the execution of this
Agreement and the Closing Date. At any time within 15 business days after any
Schedule or Exhibit is provided to COMPS, COMPS may object to its form or
content and shall have the right to terminate this Agreement without liability
unless amended to its satisfaction within 5 business days from the time of such
objection.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
COMPS InfoSystems, Inc. Land Sales Resource
By: /s/ CHRIS CRANE By: /s/ KITTY LAYNE
------------------------------ ----------------------------
Chris Crane Kitty Layne
President President & CEO
By: /s/ Kitty Layne
----------------------------
Kitty Layne
21
APPENDIX I
Definitions
-----------
As used herein, the terms below shall have the following meanings. Any of
these terms, unless the context otherwise requires may be used in the singular
or plural, depending upon the reference.
"Balance Sheet" shall mean the audited balance sheets of LSR as of April
-------------
30, 1995 and May 31, 1995, together with the notes thereon and the related
report of Roche, Scholz, Roche, Walsh, LTD, LSR's certified public accountants.
"Balance Sheet Data" shall mean May 31, 1995.
------------------
"Benefit Arrangement" shall mean any employment, consulting, severance or
-------------------
other similar contract, arrangement or policy and each plan, arrangement
(written or oral), program, agreement, or commitment providing for insurance
coverage (including any self-insured arrangements), workers" compensation,
disability benefits, supplemental unemployment benefits, vacation benefits,
retirement benefits, life, health, disability or accident benefits (including,
without limitation, any "voluntary employees' beneficiary association" as
defined in Section 501(c) (9) of the Code providing for the same or other
benefits) or for deferred compensation, profit-sharing bonuses, stock options,
stock appreciation rights, stock purchases or other forms of incentive
compensation or post-retirement insurance, compensation or benefits which (A) is
not a Welfare Plan, Pension Plan or Multi-employer Plan, (B) is entered into,
maintained, contributed to or required to be contributed to, as the case may be,
by the Company or an ERISA Affiliate or under which the Company or any ERISA
Affiliate may incur any liability, and (C) covers any employee or former
employee of the Company or any ERISA Affiliate (with respect to their
relationship with such entities).
"Books and Records" shall mean (i) all records and lists pertaining to the
-----------------
Purchased Assets, (ii) all records and lists pertaining to the business,
customers, suppliers or personnel of LSR, (iii) all product, business and
marketing plans of LSR, and (iv) all books, ledgers, files, reports, plans,
drawings and operating records of every kind maintained by LSR.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
----
"Disclosure Schedule" shall mean the disclosure schedule attached hereto.
---------------------
"Employee Plans" shall mean all Benefit Arrangements, Multi-employer Plans,
--------------
Pension Plans and Welfare Plans.
"Encumbrances" shall mean any claim, lien, pledge, option, charge,
------------
easement, security interest, deed of trust, mortgage, right-of-way,
encroachment, building or use restriction, conditional sales agreement,
encumbrance or other right of a third party, whether voluntarily incurred or
arising by operation of law, and includes, without
limitation, any agreement to give any of the foregoing in the future, and any
contingent sale or other title retention agreement or lease in the nature
thereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
-----
amended.
"ERISA Affiliate" shall mean any entity which is (or at any relevant time
---------------
was) a member of a "controlled group of corporations" with or under "common
control" with the Company as defined in Section 414(b) or (c) of the Code.
"Facilities" shall mean the Real Property and any facilities covered by any
----------
Real Property Lease.
"Financial Statements" Unaudited financial statements at April 30, 1995
--------------------
and May 31, 1995.
"Leased Property" shall mean all property leased pursuant to the Real
---------------
Property Leases.
"Multi-employer Plan" shall mean any "multi-employer plan, as defined in
-------------------
Section 4001(a) (3) of ERISA, (A) which the Company or any ERISA Affiliate
maintains, administers, contributes to or is required to contribute to, or,
after September 25, 1980, maintained, administered, contributed to or was
required to contribute to, or under which the Company or any ERISA Affiliate may
incur any liability and (B) which covers any employee or former employee of the
Company or any ERISA Affiliate (with respect to their relationship with such
entities).
"Pension Plan" shall mean any "employee pension benefit plan" as defined in
------------
section 3(2) of ERISA (other than a Multi-employer Plan) (A) which the Company
or any ERISA Affiliate maintains, administers, contributes to or is required to
contribute to, or, within the five years prior to the Closing Date, maintained,
administered, contributed to or was required to contribute to, or under which
the Company or any ERISA Affiliate may Incur any liability and (B) which covers
any employee or former employee of the Company or any ERISA Affiliate (with
respect to their relationship with such entities).
"Representative" of a party shall mean any officer, director, principal,
--------------
attorney, agent, employee or other representative of such party.
"Settlement Time" shall mean 5:00 p.m. Pacific Daylight time on the Closing
---------------
Date.
"Welfare Plan" shall mean any "employee welfare benefit Plan" as defined in
------------
Section 3(1) of ERISA, (A) which the Company or any ERISA Affiliate maintains,
administers, contributes to or is required to contribute to, or under which the
Company or any ERISA Affiliate may incur any liability and (B) which covers any
employee or former employee of the Company or any ERISA Affiliate (with respect
to their relationship with such entities).
SCHEDULES AND EXHIBITS TO THE
ASSET PURCHASE AGREEMENT BETWEEN
COMPS INFOSYSTEMS, INC., THE LAND SALES RESOURCE AND KITTY LAYNE
Exhibits:
1.1.2 Real Property Leases
1.1.3 Equipment Leases
2.2.1 (1) Assignment and Assumption Agreement
2.2.1 (2) Assignment of Real Property Lease
2.2.1 (3) Assignment of Equipment Lease
8 Covenant Not To Compete
Schedules:
1.1 Purchased Assets
1.1.1 Detail of Assets Described in Paragraph 1.1.1
1.1.6 Machinery, Equipment, Furniture, Fixtures, Vehicles, Office
Equipment, Supplies, Tools, Inventory and Parts
1.2 Liabilities
1.4 Allocation of Asset Purchase Price
Exhibit 1.1.2(1)
LEASE
THIS LEASE, made September 19, 1991 between Willowbrook Office an Illinois
limited partnership, sole beneficiary of American National Bank and Trust
Company of Chicago, as Trustee under Trust Agreement dated March 1, 1979 and
known as Trust No. 46058 (herein called Lessor), and THE LAND SALES RESOURCE,
INC. (herein called Lessee), whereby Lessee has leased from Lessor, and Lessor
has demised to Lessee, certain premises containing approximately 1,352 square
feet, and designated as Unit 9N (herein called Leased Premises), as outlined in
red on the attached (Exhibit A) building floor plan, in the building (herein
called Building) on Lot 1 in the Resubdivision of Lot 35 in Willowbrook
Executive Plaza, Willowbrook, Illinois situated on a parcel of ground (herein
called Site), the vacant portion of which is improved with parking areas,
driveways and landscaping.
The Lease term will be for a term of 5 years 6 months and will commence on
November 1, 1991 and terminate April 30, 1997 (herein called Lease Term).
The term rental will be $77,063.94 (herein called Term Rent) payable
monthly in advance in installments of $___*____ each (herein called Monthly
installments). "Lessee's Proportionate Share" as such term is hereinafter used
shall be 2.67%. Lessee has deposited with Lessor's beneficiary the sum of
$2,478.66 as Security Deposit. Leased Premises shall be used only for
General Office
- --------------------------------------------------------------------------------
(herein called the Specified Use). "Holdover Rental" as such term is
hereinafter used, shall be the amount of the Monthly Installment for the last
month of the Lease Term divided by fifteen. Until otherwise notified in writing
by Lessor, the Term Rental, Monthly Installments and all other sums to be paid
by Lessee to Lessor hereunder shall be made payable to the order of
Wiskes/Abaris Willowbrook Office Partnership, 650 Executive Drive, Willowbrook,
Illinois 60521.
IN WITNESS WHEREOF, the parties have executed this Lease the day and year
first above written, intending thereby to incorporate and include therein, all
terms, conditions and provisions contained In Sections 1 through 27 attached
hereto as though the said Sections had been hereinbefore fully set forth.
LESSOR: LESSEE:
Willowbrook Office Partnership THE LAND SALES RESOURCE, INC.
7701 S. Grant St.
Burr Ridge, Ill. 60521
By: /s/ DON J. WISKES By: /s/ KITTY LAYNE, President
------------------------------ ------------------------------
General Partner (Title)
11-1-91--4-30-92... 0 ATTEST:
5-1-92---10-31-94..$1,239.33/mo. /s/ [ILLEGIBLE] MILLER
11-1-94--10-31-95.. 1,295.67/mo. ---------------------------------
11-1-95--4-30-97... 1,352.00/mo. (Title)
ADDRESS OF LESSEE:
622 Executive Drive
Willowbrook, Illinois 60521
9/19/91 #1
INITIAL
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Landlord
Tenant
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IN CONSIDERATION WHEREOF, THE PARTIES HERETO COVENANT AND AGREE AS FOLLOWS:
Section 1. RENTAL
1.1 Lessee agrees to pay the Term Rent to Lessor in Monthly
Installments payable one each in advance on or before the first day of every
calendar month of the Lease Term, in lawful money of the United States or by
good check or draft (subject to collection)
1.2 Lessee shall pay to Lessor, as additional rental, (a) Lessee's
Proportionate Share of the amount by which the general real estate taxes payable
during each year of the Lease Term, on the Building and Site of which Leased
Premises are a part exceed the amount of .80 cents per square foot of Building
and (b) Lessee's Proportionate Share of installments of special assessments, if
any, payable during each year of the Lease Term applicable to the Building and
Site of which the Leased Premises are a part. Lessee shall not be liable for
any special assessments for improvements completed prior to the commencement
date of the Lease Term, nor for any income or other taxes, of the Lessor.
1.3 Lessee shall pay to Lessor as additional rental for each year of
the Lease Term Lessee's Proportionate Share of the amount by which the cost of
common area maintenance (as hereinafter defined) incurred by Landlord during
such year exceeds .41 cents per square foot of Building. Common area maintenance
includes the operation, repair and replacement of parking areas, driveways,
sidewalks, landscaped areas, drainage facilities and exterior lighting on the
Site, and, without limiting the generality of the foregoing, snow and ice
removal from and sweeping of the parking areas, driveways and sidewalks.
1.3 A. Insurance. Lessee shall pay to Lessor as additional rental
for each year of the lease term Lessee's proportionate share of the amount by
which the premium cost of Lessor's extended coverage insurance, with all
endorsements, on all public liability and property damage insurance exceeds
$.0849 per square foot of building.
1.4 Lessor shall submit to Lessee annual statements showing the
computations of the amount of Lessee's liability, if any, under Sections 1.2 and
1.3 which amount Lessee shall pay to Lessor on or before thirty (30) days
immediately following delivery of such statement. Such amounts shall be
prorated as of the commencement date for the first year of the Lease Term and as
of the termination date for the last year of the lease Term.
1.5 The Term Rent and additional rental shall be paid by Lessee
promptly when due, without any deduction or setoff whatsoever. Any such amount
not paid when due shall bear interest at the rate of 18% per annum from the due
date until paid.
Section 2. SECURITY DEPOSIT
2.1 The Security Deposit may be applied by Lessor the purpose of curing
any default or defaults of Lessee under this Lease. If said sum or any part
thereof is used, applied or retained in curing any such default, Lessee shall,
upon demand, immediately deposit with Lessor an amount in cash equal to the
amount so used, applied or retained. Default by lessee in paying to Lessor any
amount required to restore the Security Deposit after any application thereof,
shall afford to Lessor the same remedies as in the default of the payment of the
rent. If Lessee has not defaulted hereunder, or if Lessor has not applied said
sum to said default, then the Security Deposit or any portion thereof not so
applied by Lessor shall be paid to Lessee within thirty (30) days after the
termination of this Lease, provided Lessee has surrendered possession of the
Leased Premises in accordance with the provisions of this Lease. In the event
of a bona-fide sale of the Site and the Building, Lessor shall have the
-2-
right to transfer the Security Deposit to the purchaser to be held, under the
terms of this Lease and, in such event, Lessor shall be released from all
liability for the return of such Security Deposit to Lessee.
Section 3. UTILITY SERVICES
3.1 Lessee shall promptly pay for all public utilities rendered or
furnished, and metered to the Leased Premises during the term of this Lease.
Lessee shall not waste or permit the waste of water, or use the water for any
purpose other than those stated. Lessor periodically will bill Lessee for
Lessee's Proportionate share of all water bills received by Lessor for water
metered to the Building and Lessee shall pay such amount not later than the date
for the next Monthly Installment. Lessee may, at its own cost, install a
submeter to meter water delivered to the Leased Premises and in such event
Lessee shall be free of the restrictions regarding water usage and shall pay
Lessor for water used according to meter readings (at the rate charged by the
supplier of such water) in lieu of paying the aforesaid percentage of bills for
all water metered to the Building. All leases heretofore or hereafter executed
with respect to premises in the Building will contain identical restrictions
with respect to the use, misuse or wasting of water, except where the Lessee
installs a submeter at its cost (and such submetered water will be deducted
prior to computing Lessee's obligation for such water bills). Lessor shall not
be liable for damages, by abatement of rent or otherwise, for interruption of
failure of or delay in, furnishing any service or utility, whether the
responsibility of Lessor or of others, when the same is occasioned by causes
beyond the reasonable control of Lessor, and no such interruption, failure or
delay shall be deemed an eviction or disturbance of Lessee's use of the Leased
Premises.
Section 4. USE
4.1 Lessee may use the Leased Premises for the Specified Use. Lessee
shall not injure, overload, deface or otherwise harm Site, Building or Leased
Premises nor permit the same; nor commit any nuisance; nor permit the emitting
of any objectionable noise or odor; nor burn any trash or refuse thereon or
therein; nor manufacture, sell, display, distribute or give away any alcoholic
liquors or beverages; nor make or permit any use of Leased Premises which is
improper, offensive or contrary to any law or ordinance, or which will
invalidate or increase the cost of any Lessor's insurance (including the keeping
or storage of any article of dangerous, inflammable or explosive character) or
which would increase the danger of fire in Leased Premises or in the Building;
nor obstruct or permit the obstruction of driveways, walks, parking areas and
other common areas of Site.
4.2 Lessee shall not exhibit, inscribe, paint or affix any sign,
advertisement, notice or other lettering (hereinafter referred to as "signs") on
any part of the Site, exterior of the Building, or in the windows, without the
express prior written consent of Lessor, which consent will not be unreasonably
withheld. Lessor shall have, at any time and from time to time, the right to
establish rules and regulations setting forth uniform characteristics for all
signs on the Building and Site, and Lessor's refusal to consent to any sign not
meeting such characteristics shall not be deemed to be unreasonable. In the
event of the violation of the foregoing, Lessor may remove same without any
liability, and may charge the expense incurred by such removal to Lessee.
Subject to applicable laws, ordinances and regulations, Lessee may, however,
place a sign on the front door of Leased Premises which sign shall be installed
by Lessor at the expense of Lessee, and shall be (i) for identification purposes
only; (ii) uniform with all other such signs on Building; and (iii) of a size,
color and style acceptable to Lessor.
Section 5. CONDITION OF PREMISES
5.1 Lessee's taking possession of the Leased Premises shall be
conclusive evidence that Leased Premises were in good order and satisfactory
condition when Lessee took possession, with the exception of those items if any,
detailed in a written list executed by Lessor and Lessee at or prior to
acceptance of possession. No promise of Lessor to alter, remodel, complete or
improve Leased Premises or Building or Site, and no representation concerning
the condition of Leased Premises or Building or Site have been made by Lessor to
-3-
Lessee unless same is contained herein or is contained in agreed plans and
specifications signed by both parties. At the termination of this Lease by
lapse of time or otherwise, Lessee shall return Leased Premises in good order
and condition, loss or damage by fire or other casualty, conditions which are
the responsibility of Lessor to repair pursuant to the terms of Section 6.1
hereof, and ordinary wear and tear excepted.
Section 6. MAINTENANCE AND ALTERATIONS
6.1 Maintenance. Lessor shall keep and maintain the roof and
structural members of the Building of which the Leased Premises are a part, and
the parking lot, sidewalks and landscaping on the Site in good order and repair,
except for loss by fire or other casualty covered by Section 9 of this Lease,
and shall remove snow accumulations from the parking lot and sidewalks. Lessee
shall keep and maintain the balance of the exterior and the entire interior of
the Leased Premises clean and sanitary and in good condition and repair
including, without limitation, any necessary replacements (and further
including, without limitation, necessary interior painting and window
replacement). Lessee shall fully comply with all health and police regulations
in force and shall conform with the rules and regulations of fire underwriters
or their fire protection engineers. Lessor will obtain the qualified Contractor
to inspect and maintain the HVAC equipment at Lessee's premises. Lessor will
bill Lessee monthly commencing November 1, 1991. The cost will be $35.00 per
month and will be billed and payable with your monthly rent. Lessee shall
promptly remove any debris left in the parking area or other exterior areas of
the Site by Lessee, its employees, agents or contractors.
6.2 Alterations. Lessee shall not create any openings in the roof or
exterior wails, nor shall Lessee make any alterations or additions to the Leased
Premises. Lessee shall make all additions, improvements, alterations and
repairs on the Leased Premises and on and to the appurtenances and equipment
thereof required by any governmental authority or which may be made necessary by
the act or neglect of any person, firm or corporation (public or private). Upon
completion of any work by or on behalf of Lessee, Lessee shall provide Lessor
with such documents as Lessor may require (including, without limitation, sworn
contractor's statements and supporting lien waivers) evidencing payment in full
for such work.
Section 7. INDEMNIFICATION AND RELEASE OF CLAIMS
7.1 Lessee will at all times hold Lessor, its beneficiaries and the
management of the Building harmless and indemnified against any loss, damage,
cost, expense or liability resulting to any person or property by reason of any
use which may be made of the Leased Premises or any part thereof, or by reason
of any act or thing done or omitted to be done in, upon or about Leased Premises
or any part thereof, unless such loss, damage, cost, expense or liability shall
be caused by the sole negligence of Lessor; and Lessee will hold Lessor and
Site, Building and Leased Premises harmless, indemnified and free and clear of
any and all claims, demands, penalties, liabilities, judgments, costs and
expenses, including reasonable attorneys' fees, arising in connection with any
use of Leased Premises by Lessee or its employees, agents or servants.
7.2 Only to the extent that such business interruption, loss or
damage to property or injury to or death of persons is covered by insurance,
neither Lessor nor Lessee shall be liable to the other for any business
interruption or any loss or damage to property or injury to or death of persons
occurring on Site, in Building or in Leased Premises or in any manner growing
out of or connected with the Lessee's use and occupation of Leased Premises,
Building and Site, or the condition thereof, whether or not caused by the
negligence or other fault of Lessor or Lessee, or of their respective agents,
employees, subtenants, licensees, or assignees. Nothing herein shall be
construed to impose any other or greater liability upon either Lessor or Lessee
than would have existed in the absence of this Section 7.2. This release shall
be in effect only so long as the applicable insurance policies contain a clause
to the effect that this release shall not affect the right of the insured to
recover under such policies. Such clauses shall be obtained by the parties
whenever possible. The release in favor of Lessor contained herein, is in
-4-
INITIAL
- ----------
Landlord
Tenant
- ----------
addition to, and not in substitution for, or in diminution of the hold harmless
and indemnification provisions of Section 7.1 hereof.
Section 8. INSURANCE
8.1 At all times during the Lease Term Lessee shall, at its sole cost
and expense, maintain:
(a) Comprehensive General Public Liability Insurance against
claims for personal injury, death or property damage occurring in
connection with the use and occupancy of Leased Premises, naming Lessee and
Lessor, Lessor's beneficiaries and the management of Building as the named
insureds, such insurance to afford protection to the limit of not less than
Five Hundred Thousand ($500,000.00) Dollars in respect to injury or death
of a single person, and to the limit of not less than One Million
($1,000,000.00) Dollars in respect to any one accident, and to the limit of
not less than One Hundred Thousand ($100,000.00) Dollars in respect to
property damage.
(b) Steam Boiler Insurance an all steam boilers, pressure tanks
and other such apparatus, if any shall, from time to time, be installed on
Leased Premises, in such amount as Lessor may from time to time reasonably
require.
(c) At all times when any work is in process in connection with
any change or alteration being made by Lessee, Lessee shall maintain
Workmen's Compensation insurance covering all persons employed in
connection with the work and with respect to whom death or bodily injury
claims could be asserted against Lessor or its beneficiaries, as well as
Lessee or Leased Premises.
8.2 Lessee shall furnish Lessor with a duplicate certificate or
certificates of such insurance and not less than ten (10) days prior to the
expiration date of any policy, will furnish Lessor with a new policy or
certificate therefor or a renewal thereof, in substitution of the expiring
policy. Each such policy which Lessee is required to procure and maintain
hereunder shall be issued by insurers of recognized responsibility licensed to
do business in Illinois, and shall contain an agreement or endorsement that it
will not be cancelled by the insurer without at least ten (10) days' prior
written notice to Lessor.
8.3 Lessee will not do, suffer or permit any act or omission, whether
upon Leased Premises or otherwise, which might or would result in voiding or
impairing the obligation of any such policy of insurance.
Section 9. FIRE AND CASUALTY.
9.1 If Leased Premises or Building are substantially destroyed or
rendered untenantable by fire or other casualty, Lessor shall have the right to
terminate this Lease by notice in writing to Lessee mailed within thirty (30)
days of the fire or other casualty. In any case of fire or other casualty damage
to Leased Premises (except where this Lease is terminated by Lessor as
hereinbefore provided), Lessor shall repair and rebuild Leased Premises within
one hundred and fifty (150) days of the fire or other casualty, and, upon
failing to do so, Lessee shall have the right to terminate this Lease by notice
in writing to Lessor mailed within twenty (20) days thereafter. If any such fire
or other casualty renders Leased premises or any portion thereof untenantable,
the rent to be paid by Lessee hereunder shall abate by an amount bearing the
same ratio of the total amount of rent for the period of untenantability as the
untenantable portion of Leased Premises bears to the entire Leased Premises
during the period beginning with the date of such fire or other casualty and
ending with the date when Leased Premises are again rendered tenantable.
Section 10. CONDEMNATION
10.1 If the whole of Leased premises shall be taken for any public or
quasi-public use under statute or by right of eminent domain by private
purchase in lieu thereof, then this Lease shall automatically terminate as of
the date that title shall be taken. If any portion of Leased premises shall be
so taken as to render the remainder thereof unusable for the purpose for which
Leased Premises were leased, then Lessor and Lessee shall each have
-5-
the right to terminate this Lease on thirty (30) days' notice to the other given
within sixty (60) days after the date of such taking. In the event neither party
shall exercise the aforesaid right to terminate, the rent payable under this
Lease shall be equitably apportioned according to the space so taken, and Lessor
shall, at its own cost and expense, restore the remaining portion of Leased
Premises to the extent necessary to render it reasonably suitable for the
purposes for which it was leased and shall make all repairs to Building to the
extent necessary to constitute Building a complete architectural unit, provided
the cost thereof shall not exceed the proceeds of Lessor's condemnation award.
Lessee shall not be entitled to receive any part of any award or awards based
upon taking of the fee or lease hold interest, which shall be the property of
Lessor, and Lessee hereby assigns to Lessor any of Lessee's rights, title or
interest therein, but Lessee may prosecute any claim against the condemning
authority in such condemnation proceedings for damages which it may have
sustained; provided, however, that no such claim shall diminish or otherwise
adversely affect Lessor's award or the award of any fee mortgagee.
Section 11. ASSIGNMENT AND SUBLETTING
11.1 Lessee shall not sublet any part of Leased Premises nor assign
this Lease, without in each and every case Lessor's prior written consent
thereto first had, which consent shall not be unreasonably withheld, provided,
however, that Lessee shall remain liable hereunder; nor will Lessee make or
permit any transfer of this Lease or any interest hereunder by operation of law.
Section 12. LESSOR'S PERFORMANCE OF LESSEE'S COVENANTS
12.1 Should Lessee at any time fail or omit to do any act or thing
provided under this Lease to be done by Lessee, Lessor may in its sole
discretion after ten (10) days' written notice to Lessee, itself do or cause to
be done such act or thing (including the payment of any claim or lien upon
Leased Premises made or filed by any laborer, supplier, materialman, principal
contractor, subcontractor, or other person, whether for work, labor or services
performed upon, or materials supplied to Leased Premises). All monies paid by
Lessor shall be and constitute so much additional rental due hereunder from
Lessee to Lessor to be due and payable upon notice given by Lessor of the nature
and amount thereof, on the first day of the calendar month next succeeding the
month during which Lessor shall have given notice, with interest upon any such
amount at the rate of ten percent (10%) per annum from the date of payment by
Lessor until repayment to Lessor by Lessee.
Section 13. RIGHTS RESERVED TO LESSOR
13.1 Lessor reserves the following rights:
(a) To have pass keys to Leased Premises and no locks shall be
changed without the prior written consent of Lessor;
(b) To enter the Leased premises for the purpose of making
inspections or repairs, alterations or improvements connected with any
portion of Leased premises during reasonable hours, and at any time in the
event of an emergency;
(c) To show Leased premises to prospective lessees or brokers
during the last six months of the Term of this Lease (and if vacated during
such period, to prepare Leased Premises for reoccupancy) and to prospective
purchasers at all reasonable times, provided prior notice is given to
Lessee in each case;
(d) To designate and/or approve, prior to installation, all types
of window shades, blinds, drapes, awnings, window ventilators, and other
similar equipment, and to control all internal lighting that may be visable
from the exterior of Building.
-6-
Section 14. SUBORDINATION TO EXISTING AND FUTURE MORTGAGES
14.1 At the option of Lessor's mortgagee, this Lease shall be subject
and subordinate at all times to the lien of any existing mortgage or mortgages
and of mortgages which hereafter may be made a lien on Site and/or Building;
provided that so long as Lessee is not in default under this Lease, its
possession of Leased premises and its rights and privileges hereunder shall not
be interfered with by the mortgagee or any purchaser upon a foreclosure of such
mortgage. Although no instrument or act on the part of the Lessee shall be
necessary to effectuate such subordination, the Lessee shall nevertheless
execute and deliver such further instruments subordinating this Lease to the
lien of any such mortgages as may be desired by the mortgagee, provided the same
acknowledges Lessee's rights as hereinbefore specified. The Lessee hereby
appoints the Lessor its attorney-in-fact irrevocably to execute and deliver any
such instrument for the Lessee.
Section 15. RIGHTS AND REMEDIES OF LESSOR
15.1 If default shall be made in the payment of any sum required to be
paid by Lessee under this Lease, and default shall continue for five (5) days
after written notice to Lessee, or default shall be made in the performance of
any of the other covenants or conditions which Lessee is required to observe and
perform, and such default shall continue for fifteen (15) days after written
notice to Lessee, or if the interest of Lessee under this Lease shall be levied
on under execution or other legal process, or if any petition shall be filed by
or against Lessee to declare Lessee a bankrupt or to delay, reduce or modify
Lessee's debts or obligations, or if any petition shall be filed or other action
taken to reorganize or modify Lessee's capital structure if Lessee be a
corporation or other entity, or if Lessee be declared insolvent according to
law, or if any assignment of Lessee's property shall be made for the benefit of
creditors, or if a receiver or trustee is appointed for Lessee or its property,
or if Lessee shall abandon Leased premises during the term of this Lease, then
Lessor may treat the occurrence of any one or more of the foregoing events as a
breach of this Lease (provided that no such levy, execution, legal process or
petition filed against Lessee shall constitute a breach of this Lease if Lessee
shall vigorously contest the same by appropriate proceedings and shall remove or
vacate the same within thirty (30) days from the date of its creation, service
or filing) and thereupon, at its option, may without notice or demand of any
kind to Lessee or any other person, have any one or more of the following
described remedies in addition to all other rights and remedies provided at law
or in equity:
(a) Lessor may terminate this Lease and forthwith repossess Leased
Premises and be entitled to recover forthwith as damages a sum of money
equal to the balance of the Term Rent then remaining unpaid hereunder
(without commutation, in consideration of disregarding any rent adjustments
pursuant to Section 1.2 hereof) less the fair rental value of Leased
premises for said period, and any other sum of money and damages owed by
Lessee to Lessor;
(b) Lessor may terminate Lessee's right of possession and may
repossess Leased Premises by forcible entry or detainer suit or otherwise,
without demand or notice of any kind to Lessee and without terminating this
Lease, in which event Lessor may, but shall be under no obligation so to
do, relet the same for the account of Lessee for such rent and upon such
terms as shall be satisfactory to Lessor. For the purpose of such reletting
Lessor is authorized to decorate or to make any repairs, changes,
alterations or additions in or to Leased Premises that may be necessary or
convenient, and if Lessor shall fail or refuse to relet Leased Premises, or
if the same are relet and a sufficient sum shall not be realized from such
reletting after paying all of the costs and expenses of such decorations,
repairs, changes, alterations and additions and the expense of such
releting and of the collection of the rent accruing therefrom to satisfy
the rent provided for in this Lease to be paid, then Lessee shall pay to
Lessor as damages a sum equal to the amount of the rental reserved in this
Lease for such period or periods, or if the Leased premises have been relet
the Lessee shall satisfy and pay any such deficiency upon demand therefor
from time to time and Lessee agrees that Lessor may file suit to recover
any sums falling due under the terms of this Section 15.1(b) from time to
time , and that no delivery or recovery of any portion due Lessor hereunder
shall be any defense to any subsequent action brought for any amount not
theretofore reduced to judgment in favor of Lessor.
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15.2 Upon the termination of this Lease or upon the termination of
Lessee's right of possession, Lessee shall at once surrender possession of
Leased Premises to Lessor and remove all effects therefrom, and if such
possession is not immediately surrendered Lessor may forthwith re-enter Leased
Premises and repossess itself as of its former estate and remove all persons and
effects therefrom, using such force as may be necessary without being guilty of
any manner of trespass or forcible entry or detainer. Without limiting the
generality of the foregoing, Lessee agrees to remove, at the termination of this
Lease or upon the termination of Lessee's right of possession, Lessee's movable
furniture, signs, trade fixtures, machinery, equipment and other personal
property and such alterations, improvements and additions made by Lessee as may
be requested by Lessor. If Lessee shall fail or refuse to remove all such
property from Leased Premises, Lessee shall be conclusively presumed to have
abandoned the same and title thereto shall thereupon pass to Lessor without any
cost, either by setoff, credit, allowance or otherwise, and Lessor may, at its
option, accept the title to such property or at Lessee's expense may remove the
same, or any part thereof, in any manner that Lessor shall choose, and store the
same without incurring liability to Lessee or any other person.
15.3 Lessee shall pay, upon demand, all of Lessor's costs, charges, and
expenses, including the fees of counsel, agents and other retained by Lessor, at
any time incurred in enforcing Lessee's obligations hereunder (whether incurred
in litigation or otherwise) or incurred by Lessor in any litigation, negotiation
or transaction in which Lessee causes Lessor, without Lessor's fault, to become
involved or concerned.
Section 16. HOLDING OVER
16.1 Lessee shall pay to Lessor Holdover Rental for each day Lessee
shall retain possession of Leased Premises, or any part thereof, after the
termination of this Lease, whether by lapse of time or otherwise and shall also
pay all damages sustained by Lessor on account thereof; but the provisions of
this article shall not operate as a waiver by Lessor of any right of re-entry
hereinbefore provided; nor shall the receipt of said rent or any part thereof,
or any other act in apparent affirmance of tenancy, operate as a waiver of the
right to forfeit this Lease and the Lease Term hereby granted for the period
still unexpired, for a breach of any of the covenants herein.
Section 17. NOTICES
17.1 All notices to be given by one party to the other under this Lease
shall be in writing, mailed or delivered as follows: if to Lessor, at the place
where rent is payable; if to Lessee, at the address of Lessee set forth on the
first page hereof until Lessee takes possession of the Leased Premises and
thereafter at Leased Premises, provided that either party may, by notice to the
other, from time to time designate another address to which notices shall
thereafter be addressed.
Mailed notices shall be sent by United States Certified or Registered
Mail, postage prepaid. Such notices shall have been deemed to have been given by
posting in the United States Mails.
Section 18. ESTOPPEL CERTIFICATE
18.1 Lessee shall at any time and from time to time within ten (10)
days after written request from Lessor execute, acknowledge and deliver to
Lessor, in form reasonably satisfactory to Lessor and/or Lessor's mortgagee, a
written statement certifying (if true) that Lessor has accepted the Leased
Premises, that 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 stating the modifications), that the Lessor is not in default
hereunder, the date to which the rental and other charges have been paid in
advance, if any, and such other accurate certifications as may reasonably be
required by Lessor or Lessor's mortgagee, and agreeing to give copies to any
mortgagee of Lessor of all notices by Lessee to Lessor. It is intended that any
such statement delivered pursuant to this subsection may be relied upon by any
prospective purchaser or mortgagee of the Leased Premises and their respective
successors and assigns.
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Section 19. COVENANT OF QUIET ENJOYMENT
19.1 Lessor further agrees that at all times when Lessee is not in
default under the terms of and during the term of this Lease, Lessee's quiet and
peaceable enjoyment of the Leased Premises shall not be disturbed or interfered
with by Lessor or by any person claiming by, through or under Lessor.
Section 20. POSSESSION
20.1 Lessor shall construct, or cause to be constructed, the Leased
Premises in accordance with the provisions of Exhibit B attached hereto,
including building standard work therein described.
20.2 Construction shall be commenced and diligently pursued in order to
have the Leased Premises substantially completed on or before the date specified
for commencement of the Lease Term, provided that if construction is delayed
because of changes, deletions or addition in construction requested by Lessee,
strikes, lockouts, casualties, acts of God, war, material or labor shortages,
governmental regulation or control or other causes beyond the control of Lessor,
the construction time period shall be extended for the amount of time Lessor is
so delayed, and Monthly Installments of rental shall abate pro rata until
substantial completion and delivery of possession.
20.3 Lessor shall notify Lessee as soon as the Leased Premises are
substantially completed. In the event that there is a dispute as to whether or
not the Leased Premises are substantially completed, the dispute shall be
resolved by the architect for the Building. Taking of possession by Lessee
shall be deemed conclusively to establish that the Leased Premises have been
completed in accordance with the said Exhibit B. If Lessor gives possession
prior to the commencement date to enable Lessee to fit the Leased Premises to
its use, such occupancy shall be subject to all the terms and conditions of this
Lease (except that Lessee shall not be required to pay rent or taxes during such
occupancy).
Section 21. ACTS SUBSEQUENT TO TERMINATION
21.1 No receipt of money by Lessor from Lessee after the termination of
this Lease, the service of any notice, the commencement of any suit or final
judgment for possession shall reinstate, continue to extend the term of this
Lease or affect any such notice, demand, suit or judgment.
Section 22. WAIVER OF DEFAULT
22.1 No waiver of default of Lessee shall be implied, and no express
waiver shall affect any default other than the default specified in such waiver
and that only for the time and to the extent therein stated. The invalidity or
unenforceability of any provision of this Lease shall not affect or impair any
other provision.
Section 23. EXAMINATION OF LEASE
23.1 Submission of this installment for examination or signature by
Lessee does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both Lessor
and Lessee.
Section 24. DEFAULT UNDER OTHER LEASE
24.1 If the term of any lease, other than this Lease, made by Lessee,
for the Leased Premises or any part thereof, or for any other space in the
Building shall be terminated or terminable after the making of this Lease,
because of any default by Lessee under such other lease, such fact shall empower
Lessor, at Lessor's sole option, to terminate this Lease by notice to Lessee
and/or to exercise any of the remedies set forth in Section 15.
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Section 25. REPRESENTATIVE CAPACITY
25.1 No person, partnership, corporation or other organization
executing this Lease in a representative capacity for Lessor or Lessee shall be
held individually liable hereunder in the absence of fraud provided such person,
partnership, corporation or other organization acted with due authority and the
intended principals are bound.
Section 26. MISCELLANEOUS
26.1 All rights and remedies of Lessor and Lessee under this Lease
shall be cumulative and none shall exclude any other rights and remedies allowed
by law or statute.
26.2 Each of the provisions of this Lease shall extend to and shall, as
the case may require, bind or inure to the benefit, not only of Lessor and of
Lessee, but also of their respective heirs, legal representatives, successors
and permitted assigns, provided this clause shall not permit any assignment
contrary to the provisions of Section 11 hereof.
26.3 All of the representations and obligations of Lessor and Lessee
are contained herein and no modification, waiver or amendment of this Lease, or
any of its conditions or provisions, shall be binding upon the Lessor and Lessee
unless in writing, signed by Lessor and Lessee.
26.4 The receipt by Lessor of any installment of the regular stipulated
rent hereunder or any of said additional rent, shall not be a waiver of any
other additional rent then due or of any default of Lessee hereunder.
26.5 This Lease way be executed in any number of counterparts. Each
such executed counterpart shall be deemed an original hereof and all such
executed counterparts shall together constitute but one and the same
installment, which instrument shall for all purposes be sufficiently evidenced
by such executed counterpart.
26.6 The section and paragraph headings of this Lease are for
convenience only and in no way limit or enlarge the scope or meaning of the
language contained in the body of this Lease.
27.0 Build as per plan.
Paint entire premises.
Carpet entire premises.
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INITIAL
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Landlord
Tenant
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WILLOW LAKES OFFICE CENTER
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FLOOR PLAN
INITIAL
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WILLOW LAKES OFFICE CENTER
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SITE PLAN
INITIAL
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"EXHIBIT A"
Exhibit 1.1.2(2)
LEASE
THIS LEASE, made July 20, 1993 between Willowbrook Office an Illinois
limited partnership, sole beneficiary of American National Bank and Trust
Company of Chicago, as Trustee under Trust Agreement dated March 1, 1979 and
known as Trust No. 46058 (herein called Lessor), and THE LAND SALES RESOURCE,
INC. (herein called Lessee), whereby Lessee has leased from Lessor, and Lessor
has demised to Lessee, certain premises containing approximately 364 square
feet, and designated as Unit 8NE (herein called Leased Premises), as outlined in
red on the attached (Exhibit A) building floor plan, in the building (herein
called Building) on Lot 1 in the Resubdivision of Lot 35 in Willowbrook
Executive Plaza, Willowbrook, Illinois situated on a parcel of ground (herein
called Site), the vacant portion of which is improved with parking areas,
driveways and landscaping.
The Lease term will be for a term of 3 years 9 months and will commence on
August 1, 1993 and terminate April 30, 1997 (herein called Lease Term).
The term rental will be $17,166.00 (herein called Term Rent) payable
monthly in advance in installments of $___*___ each (herein called Monthly
Installments). "Lessee's Proportionate Share" as such term is hereinafter used
shall be .0072%. Lessee has deposited with Lessor's beneficiary the sum of
___$0___ as Security Deposit. Leased Premises shall be used only for
General Office
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(herein called the Specified Use). "Holdover Rental" as such term is
hereinafter used, shall be the amount of the Monthly Installment for the last
month of the Lease Term divided by fifteen. Until otherwise notified in writing
by Lessor, the Term Rental, Monthly Installments and all other sums to be paid
by Lessee to Lessor hereunder shall be made payable to the order of Willowbrook
Office Partnership, 650 Executive Drive, Willowbrook, Illinois 60521.
IN WITNESS WHEREOF, the parties have executed this Lease the day and year
first above written, intending thereby to incorporate and include therein, all
terms, conditions and provisions contained In Sections 1 through 27 attached
hereto as though the said Sections had been hereinbefore fully set forth.
LESSOR: LESSEE:
Willowbrook Office Partnership THE LAND SALES RESOURCE, INC.
622 Executive Drive
Willowbrook, Ill. 60521
By: /s/ DON J. WISKES By: /s/ KITTY LAYNE President
----------------------------- -----------------------------
General Partner (Title)
ATTEST:
*Aug.1, `93--Oct. 31, `94..$ 364.00/mo.
Nov. 1, `94--Oct. 31, `95.. 380.00/mo. /s/ CHERYL BENTLEY
Nov. 1, `95--Apr. 30, `97.. 397.00/mo. --------------------------------
(Title)
ADDRESS OF LESSEE:
622 Executive Drive
Willowbrook, Illinois 60521
7/20/93 #2
INITIAL
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Landlord
Tenant
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IN CONSIDERATION WHEREOF, THE PARTIES HERETO COVENANT AND AGREE AS FOLLOWS:
Section 1. RENTAL
1.1 Lessee agrees to pay the Term Rent to Lessor in Monthly
Installments payable one each in advance on or before the first day of every
calendar month of the Lease Term, in lawful money of the United States or by
good check or draft (subject to collection).
1.2 Lessee shall pay to Lessor, as additional rental, (a) Lessee's
Proportionate Share of the amount by which the general real estate taxes payable
during each year of the Lease Term on the Building and Site of which Leased
Premises are a part exceed the amount of .80 cents per square foot of Building
and (b) Lessee's Proportionate Share of installments of special assessments, if
any, payable during each year of the Lease Term applicable to the Building and
Site of which the Leased Premises are a part. Lessee shall not be liable for any
special assessments for improvements completed prior to the commencement date of
the Lease Term, nor for any income or other taxes, of the Lessor.
1.3 Lessee shall pay to Lessor as additional rental for each year of
the Lease Term Lessee's Proportionate Share of the amount by which the cost of
common area maintenance (as hereinafter defined) incurred by Landlord during
such year exceeds .41 cents per square foot of Building. Common area maintenance
includes the operation, repair and replacement of parking areas, driveways,
sidewalks, landscaped areas, drainage facilities and exterior lighting on the
Site, and, without limiting the generality of the foregoing, snow and ice
removal from and sweeping of the parking areas, driveways and sidewalks.
1.3 A. Insurance. Lessee shall pay to Lessor as additional rental for
each year of the lease term Lessee's proportionate share of the amount by which
the premium cost of Lessor's extended coverage insurance, with all endorsements,
on all public liability and property damage insurance exceeds .0849 per square
foot of building.
1.4 Lessor shall submit to Lessee annual statements showing the
computations of the amount of Lessee's liability, if any, under sections 1.2 and
1.3, which amount Lessee shall pay to Lessor on or before thirty (30) days
immediately following delivery of such statement. Such amounts shall be
prorated as of the commencement date for the first year of the Lease Term and as
of the termination date for the last year of the Lease Term.
1.5 The Term Rent and additional rental shall be paid by Lessee
promptly when due, without any deduction or setoff whatsoever. Any such amount
not paid when due shall bear interest at the rate of 18% per annum from the due
date until paid.
Section 2. SECURITY DEPOSIT
2.1 The Security Deposit may be applied by Lessor the purpose of curing
any default or defaults of Lessee under this Lease. If said sun or any part
thereof is used, applied or retained in curing any such default, Lessee shall,
upon demand, immediately deposit with Lessor an amount in cash equal to the
amount so used, applied or retained. Default by Lessee in paying to Lessor any
amount required to restore the Security Deposit after any application thereof,
shall afford to Lessor the same remedies as in the default of the payment of the
rent. If Lessee has not defaulted hereunder, or if Lessor has not applied said
sum to said default, then the Security Deposit or any portion thereof not so
applied by Lessor shall be paid to Lessee within thirty (30) days after the
termination of this Lease, provided Lessee has surrendered possession of the
Leased Premises in accordance with the provisions of this Lease. In the event
of a bona-fide sale of the Site and the Building, Lessor shall have the right to
transfer the Security Deposit to the purchaser to be held under the terms of
this Lease and, in such event, Lessor shall be released from all liability for
the return of such Security Deposit to Lessee.
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Section 3. UTILITY SERVICES
3.1 Lessee shall promptly pay for all public utilities rendered or
furnished, and metered to the Leased Premises during the term of this Lease.
Lessee shall not waste or permit the waste of water, or use the water for any
purpose other than those stated. Lessor periodically will bill Lessee for
Lessee's Proportionate Share of all water bills received by Lessor for water
metered to the Building and Lessee shall pay such amount not later than the date
for the next Monthly Installment. Lessee may, at its own cost, install a
submeter to meter water delivered to the Leased Premises and in such event
Lessee shall be free of the restrictions regarding water usage and shall pay
Lessor for water used according to meter readings (at the rate charged by the
supplier of such water) in lieu of paying the aforesaid percentage of bills for
all water metered to the Building. All leases heretofore or hereafter executed
with respect to premises in the Building will contain identical restrictions
with respect to the use, misuse or wasting of water, except where the Lessee
installs a submeter at its cost (and such submerged water will be deducted prior
to computing Lessee's obligation for such water bills). Lessor shall not be
liable for damages, by abatement of rent or otherwise, for interruption or
failure of, or delay in, furnishing any service or utility, whether the
responsibility of Lessor or of others, when the same is occasioned by causes
beyond the reasonable control of Lessor, and no such interruption, failure or
delay shall be deemed an eviction or disturbance of Lessee's use of the Leased
Premises.
Section 4. USE
4.1 Lessee may use the Leased Premises for the Specified Use. Lessee
shall not injure, overload, deface or otherwise harm Site, Building or Leased
Premises nor permit the same; nor commit any nuisance; nor permit the emitting
of any objectionable noise or odor; nor burn any trash or refuse thereon or
therein; nor manufacture, sell, display, distribute or give away any alcoholic
liquors or beverages; nor make or permit any use of Leased Premises which is
improper, offensive or contrary to any law or ordinance, or which will
invalidate or increase the cost of any Lessor's insurance (including the keeping
or storage of any article of dangerous, inflammable or explosive character) or
which would increase the danger of fire in Leased Premises or in the Building;
nor obstruct or permit the obstruction of driveways, walks, parking areas and
other common areas of Site.
4.2 Lessee shall not exhibit, inscribe, paint or affix any sign,
advertisement, notice or other lettering (hereinafter referred to as "signs") on
any part of the Site, exterior of the Building, or in the windows, without the
express prior written consent of Lessor, which consent will not be unreasonably
withheld. Lessor shall have, at any time and from time to time, the right to
establish rules and regulations setting forth uniform characteristics for all
signs on the Building and Site, and Lessor's refusal to consent to any sign not
meeting such characteristics shall not be deemed to be unreasonable. In the
event of the violation of the foregoing, Lessor may remove same without any
liability, and may charge the expense incurred by such removal to Lessee.
Subject to applicable laws, ordinances and regulations, Lessee may, however,
place a sign on the front door of Leased Premises which sign shall be installed
by Lessor at the expense of Lessee, and shall be (i) for identification purposes
only; (ii) uniform with all other such signs on Building; and (iii) of a size,
color and style acceptable to Lessor.
Section 5. CONDITION OF PREMISES
5.1 Lessee's taking possession of the Leased Premises shall be
conclusive evidence that Leased Premises were in good order and satisfactory
condition when Lessee took possession, with the exception of those items if any,
detailed in a written list executed by Lessor and Lessee at or prior to
acceptance of possession. No promise of Lessor to alter, remodel, complete or
improve Leased Premises or Building or Site, and no representation concerning
the condition of Leased Premises or Building or Site have been made by Lessor to
Lessee unless same is contained herein or is contained in agreed plans and
specifications signed by both parties. At the termination of this Lease by lapse
of time or otherwise, Lessee shall return Leased Premises in good order and
condition, loss or damage by fire or other casualty, conditions which are the
responsibility of Lessor to repair pursuant to the terms of Section 6.1 hereof,
and ordinary wear and tear excepted.
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Section 6. MAINTENANCE AND ALTERATIONS
6.1 Maintenance. Lessor shall keep and maintain the roof and
structural members of this Building of which the Leased Premises are a part, and
the parking lot, sidewalks and landscaping on the Site in good order and repair,
except for loss by fire or other casualty covered by Section 9 of this Lease,
and shall remove snow accumulations from the parking lot and sidewalks. Lessee
shall keep and maintain the balance of the exterior and the entire interior of
the Leased Premises clean and sanitary and in good condition and repair
including, without limitation, any necessary replacements (and further
including, without limitation, necessary interior painting and window
replacement). Lessee shall fully comply with all health and police regulations
in force and shall conform with the rules and regulations of fire underwriters
or their fire protection engineers. Lessor will obtain the qualified Contractor
to inspect and maintain the HVAC equipment at Lessee's premises. Lessor will
bill Lessee monthly commencing Aug. 1, 1993. The cost will be $35.00 per month
and will be billed and payable with your monthly rent. Lessee shall promptly
remove any debris left in the parking area or other exterior areas of the Site
by Lessee, its employees, agents or contractors.
6.2 Alterations. Lessee shall not create any openings in the roof or
exterior walls, nor shall Lessee make any alterations or additions to the Leased
Premises. Lessee shall make all additions, improvements, alterations and
repairs on the Leased Premises and on and to the appurtenances and equipment
thereof required by any governmental authority or which may be made necessary by
the act or neglect of any person, firm or corporation (public or private). Upon
completion of any work by or on behalf of Lessee, Lessee shall provide Lessor
with such documents as Lessor may require (including, without limitation, sworn
contractor's statements and supporting lien waivers).evidencing payment in full
for such work.
Section 7. INDEMNIFICATION AND RELEASE OF CLAIMS
7.1 Lessee will at all times hold Lessor, its beneficiaries and the
management of the Building harmless and indemnified against any loss, damage,
cost, expense or liability resulting to any person or property by reason of any
use which may be made of the Leased Premises or any part thereof , or by reason
of any act or thing done or omitted to be done in, upon or about Leased Premises
or any part thereof, unless such loss, damage, cost, expense or liability shall
be caused by the sole negligence of Lessor; and Lessee will hold Lessor and
Site, Building and Leased Premises harmless, indemnified and free and clear of
any and all claims, demands, penalties, liabilities, judgments, costs and
expenses, including reasonable attorneys' fees, arising in connection with any
use of Leased Premises by Lessee or its employees, agents or servants.
7.2 Only to the extent that such business interruption, loss or
damage to property or injury to or death of persons is covered by insurance,
neither Lessor nor Lessee shall be liable to the other for any business
interruption or any loss or damage to property or injury to or death of persons
occurring on Site, in Building or in Leased Premises or in any manner growing
out of or connected with the Lessee's use and occupation of Leased Premises,
Building and Site, or the condition thereof, whether or not caused by the
negligence or other fault of Lessor or Lessee, or of their respective agents,
employees, subtenants, licensees, or assignees. Nothing herein shall be
construed to impose any other or greater liability upon either Lessor or Lessee
than would have existed in the absence of this Section 7.2. This release shall
be in effect only so long as the applicable insurance policies contain a clause
to the effect that this release shall not affect the right of the insured to
recover under such policies. Such clauses shall be obtained by the parties
whenever possible. The release in favor of Lessor contained herein, is in
addition to, and not in substitution for, or in diminution of the hold harmless
and indemnification provisions of Section 7.1 hereof.
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INITIAL
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Landlord
Tenant
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Section 8. INSURANCE
8.1 At all times during the Lease Term Lessee shall, at its sole
cost and expense, maintain:
(a) Comprehensive General Public Liability Insurance against
claims for personal injury, death or property damage occurring in
connection with the use and occupancy of Leased Premises, naming Lessee and
Lessor, Lessor's beneficiaries and the management of Building as the named
insureds, such insurance to afford protection to the limit of not less than
Five Hundred Thousand ($500,000.00) Dollars in respect to injury or death
of a single person, and to the limit of not less than One Million
($1,000,000.00) Dollars in respect to any one accident, and to the limit of
not less than One Hundred Thousand ($100,000.00) Dollars in respect to
property damage.
(b) Steam Boiler Insurance on all steam boilers, pressure tanks
and other such apparatus, if any shall, from time to time, be installed an
Leased Premises, in such amount as Lessor may from time to time reasonably
require.
(c) At all times when any work is in process in connection with
any change or alteration being made by Lessee, Lessee shall maintain
Workmen's Compensation insurance covering all persons employed in
connection with the work and with respect to whom death or bodily injury
claims could be asserted against Lessor or its beneficiaries, as well as
Lessee or Leased Premises.
8.2 Lessee shall furnish Lessor with a duplicate certificate or
certificates of such insurance and not less than ten (10) days prior to the
expiration date of any policy, will furnish Lessor with a new policy or
certificate therefor or a renewal thereof, in substitution of the expiring
policy. Each such policy which Lessee is required to procure and maintain
hereunder shall be issued by insurers of recognized responsibility licensed to
do business in Illinois, and shall contain an agreement or endorsement that it
will not be cancelled by the insurer without at least ten (10) days' prior
written notice to Lessor.
8.3 Lessee will not do, suffer or permit any act or omission, whether
upon Leased Premises or otherwise, which might or would result in voiding or
impairing the obligation of any such policy of insurance.
Section 9. FIRE AND CASUALTY.
9.1 If Leased Premises or Building are substantially destroyed or
rendered untenantable by fire or other casualty, Lessor shall have the right to
terminate this Lease by notice in writing to Lessee mailed within thirty (30)
days of the fire or other casualty. In any case of fire or other casualty damage
to Leased Premises (except where this Lease is terminated by Lessor as
hereinbefore provided) , Lessor shall repair and rebuild Leased Premises within
one hundred and fifty (150) days of the fire or other casualty, and, upon
failing to do so, Lessee shall have the right to terminate this Lease by notice
in writing to Lessor mailed within twenty (20) days thereafter. If any such fire
or other casualty renders Leased premises or any portion thereof untenantable,
the rent to be paid by Lessee hereunder shall abate by an amount bearing the
same ratio of the total amount of rent for the period of untenantability as the
untenantable portion of Leased Premises bears to the entire Leased Premises
during the period beginning with the date of such fire or other casualty and
ending with the date when Leased Premises are again rendered tenantable.
Section 10. CONDEMNATION
10.1 If the whole of Leased premises shall be taken for any public or
quasi-public use under statute or by right of eminent domain or by private
purchase in lieu thereof, then this Lease shall automatically terminate as of
the date that title shall be taken. If any portion of Leased premises shall be
so taken as to render the remainder thereof unusable for the purpose for which
Leased Premises were leased, then Lessor and Lessee shall each have the right to
terminate this Lease on thirty (30) days' notice to the other given within sixty
(60) days after the date of such taking. In the event neither party shall
exercise the aforesaid right to terminate, the rent payable under this
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Lease shall be equitably apportioned according to the space so taken, and Lessor
shall, at its own cost and expense, restore the remaining portion of Leased
Premises to the extent necessary to render it reasonably suitable for the
purposes for which it was leased and shall make all repairs to Building to the
extent necessary to constitute Building a complete architectural unit, provided
the cost thereof shall not exceed the proceeds of Lessor's condemnation award.
Lessee shall not be entitled to receive any part of any award or awards based
upon taking of the fee or lease hold interest, which shall be the property of
Lessor, and Lessee hereby assigns to Lessor any of Lessee's rights, title or
interest therein, but Lessee may prosecute any claim against the condemning
authority in such condemnation proceedings for damages which it may have
sustained; provided, however, that no such claim shall diminish or otherwise
adversely affect Lessor's award or the award of any fee mortgagee.
Section 11. ASSIGNMENT AND SUBLETTING
11.1 Lessee shall not sublet any part of Leased Premises nor assign
this Lease, without in each and every case Lessor's prior written consent
thereto first had, which consent shall not be unreasonably withheld, provided,
however, that Lessee shall remain liable hereunder; nor will Lessee make or
permit any transfer of this Lease or any interest hereunder by operation of law.
Section 12. LESSOR'S PERFORMANCE OF LESSEE'S COVENANTS
12.1 Should Lessee at any time fail or omit to do any act or thing
provided under this Lease to be done by Lessee, Lessor may in its sole
discretion after ten (10) days' written notice to Lessee, itself do or cause to
be done such act or thing (including the payment of any claim or lien upon
Leased Premises made or filed by any laborer, supplier, materialman, principal
contractor, subcontractor, or other person, whether for work, labor or services
performed upon, or materials supplied to Leased Premises). All monies paid by
Lessor shall be and constitute so much additional rental due hereunder from
Lessee to Lessor to be due and payable upon notice given by Lessor of the nature
and amount thereof, on the first day of the calendar month next succeeding the
month during which Lessor shall have given notice, with interest upon any such
amount at the rate of ten percent (10%) per annum from the date of payment by
Lessor until repayment to Lessor by Lessee.
Section 13. RIGHTS RESERVED TO LESSOR
13.1 Lessor reserves the following rights:
(a) To have pass keys to Leased Premises and no locks shall be
changed without the prior written consent of Lessor;
(b) To enter the Leased premises for the purpose of making
inspections or repairs, alterations or improvements connected with any
portion of Leased premises during reasonable hours, and at any time in the
event of an emergency;
(c) The show Leased premises to prospective lessees or brokers
during the last six months of the Term of this Lease (and if vacated during
such period, to prepare Leased Premises for reoccupancy) and to prospective
purchasers at all reasonable times, provided prior notice is given to
Lessee in each case;
(d) To designate and/or approve, prior to installation, all types
of window shades, blinds, drapes, awnings, window ventilators, and other
similar equipment, and to control all internal lighting that may be visible
from the exterior of Building.
Section 14. SUBORDINATION TO EXISTING AND FUTURE MORTGAGES
14.1 At the option of Lessor's mortgagee, this Lease shall be subject
and subordinate at all times to the lien of any existing mortgage or mortgages
and of mortgages which hereafter way be made a lien on Site and/or
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Building; provided that so long as Lessee is not in default under this Lease,
its possession of Leased premises and its rights and privileged hereunder shall
not be interfered with by the mortgagee or any purchaser upon a foreclosure of
such mortgage. Although no instrument or act on the part of the Lessee shall be
necessary to effectuate such subordination, the Lessee shall nevertheless
execute and deliver such further instruments subordinating this Lease to the
lien of any such mortgages as may be desired by the mortgagee, provided the same
acknowledges Lessee's rights as hereinbefore specified. The Lessee hereby
appoints the Lessor its attorney-in-fact irrevocably to execute and deliver any
such instrument for the Lessee.
Section 15. RIGHTS AND REMEDIES OF LESSOR
15.1 If default shall be made in the payment of any sum required to be
paid by Lessee under this Lease, and default shall continue for five (5) days
after written notice to Lessee, or default shall be made in the performance of
any of the other covenants or conditions which Lessee is required to observe and
perform, and such default shall continue for fifteen (15) days after written
notice to Lessee, or if the interest of Lessee under this Lease shall be levied
on under execution or other legal process, or if any petition shall be filed by
or against Lessee to declare Lessee a bankrupt or to delay, reduce or modify
Lessee's debts or obligations, or if any petition shall be filed or other action
taken to reorganize or modify Lessee's capital structure if Lessee be a
corporation or other entity, or if Lessee be declared insolvent according to
law, or if any assignment of Lessee's property shall be made for the benefit of
creditors, or if a receiver or trustee is appointed for Lessee or its property,
or if Lessee shall abandon Leased premises during the term of this Lease, then
Lessor may treat the occurrence of any one or more of the foregoing events as a
breach of this Lease (provided that no such levy, execution, legal process or
petition filed against Lessee shall constitute a breach of this Lease if Lessee
shall vigorously contest the same by appropriate proceedings and shall remove or
vacate the same within thirty (30) days from the date of its creation, service
or filing.) and thereupon, at its option, may without notice or demand of any
kind to Lessee or any other person, have any one or more of the following
described remedies in addition to all other rights and properties provided at
law or in equity:
(a) Lessor may terminate this Lease and forthwith repossess Leased
Premises and be entitled to recover forthwith as damages a sum of money
equal to the balance of the Term Rent then remaining unpaid hereunder
(without commutation, in consideration of disregarding any rent adjustments
pursuant to Section 1.2 hereof) less the fair rental value of Leased
premises for said period, and any other sum of money and damages owed by
Lessee to Lessor;
(b) Lessor may terminate Lessee's right of possession and may
repossess Leased Premises by forcible entry or detainer suit or otherwise,
without demand or notice of any kind to Lessee and without terminating this
Lease, in which event Lessor may, but shall be under no obligation so to
do, relet the same for the account of Lessee for such rent and upon such
terms as still be satisfactory to Lessor. For the purpose of such
reletting Lessor is authorized to decorate or to make any repairs, changes,
alterations or additions in or to Leased Premises that may be necessary or
convenient, and if Lessor shall fail or refuse to relet Leased Premises, or
if the same are relet and a sufficient sum shall not be realized from such
reletting after paying all of the costs and expenses of such decorations,
repairs, changes, alterations and additions and the expense of such
releting and of the collection of the rent accruing therefrom to satisfy
the rent provided for in this Lease to be paid, then Lessee shall pay to
Lessor as damages a sum equal to the amount of the rental reserved in this
Lease for such period or periods, or if the Leased premises have been relet
the Lessee shall satisfy and pay any such deficiency upon demand therefor
from time to time and Lessee agrees that Lessor may file suit to recover
any sums falling due under the term of this Section 15.1(b) from time to
time, and that no delivery or recovery of any portion due Lessor hereunder
shall be any defense to any subsequent action brought for any amount not
theretofore reduced to judgment in favor of Lessor.
15.2 Upon the termination of this Lease or upon the termination of
Lessee's right of possession, Lessee shall at once surrender possession of
Leased Premises to Lessor and remove all effects therefrom, and if
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such possession is not immediately surrendered Lessor may forthwith re-enter
Leased Premises and repossess itself as of its former estate and remove all
persons and effects therefrom, using such force as may be necessary without
being guilty of any manner of trespass or forcible entry or detainer. Without
limiting the generality of the foregoing, Lessee agrees to remove, at the
termination of this Lease or upon the termination of Lessee's right of
possession, Lessee's movable furniture, signs, trade fixtures, machinery,
equipment and other personal property and such alterations, improvements and
additions made by Lessee as may be requested by Lessor. If Lessee shall fail or
refuse to remove all such property from Leased Premises, Lessee shall be
conclusively presumed to have abandoned the same and title thereto shall
thereupon pass to Lessor without any cost, either by setoff, credit, allowance
or otherwise, and Lessor may, at its option, accept the title to such property
or at Lessee' s expense, may remove the same, or any part thereof, in any manner
that Lessor shall choose, and store the same without incurring liability to
Lessee or any other person.
15.3 Lessee shall pay, upon demand, all of Lessor's costs, charges, and
expenses, including the fees of counsel, agents and other retained by Lessor, at
any time incurred in enforcing Lessee's obligations hereunder (whether incurred
in litigation or otherwise) or incurred by Lessor in any litigation, negotiation
or transaction in which Lessee causes Lessor, without Lessor's fault, to become
involved or concerned.
Section 16. HOLDING OVER
16.1 Lessee shall pay to Lessor Holdover Rental for each day Lessee
shall retain possession of Leased Premises, or any part thereof, after the
termination of this Lease, whether by lapse of time or otherwise and shall also
pay all damages sustained by Lessor on account thereof; but the provisions of
this article shall not operate as a waiver by Lessor of any right of re-entry
hereinbefore provided; nor shall the receipt of said rent or any part thereof,
or any other act in apparent affirmance of tenancy, operate as a waiver of the
right to forfeit this Lease and the Lease Term hereby granted for the period
still unexpired, for a breach of any of the covenants herein.
Section 17. NOTICES
17.1 All notices to be given by one party to the other under this Lease
shall be in writing, mailed or delivered as follows: if to Lessor, at the place
where rent is payable; if to Lessee, at the address of Lessee set forth on the
first page hereof until Lessee takes possession of the Leased Premises and
thereafter at Leased Premises, provided that either party may, by notice to the
other, from time to time designate another address to which notices shall
thereafter be addressed.
Mailed notices shall be sent by United States Certified or Registered,
mail postage prepaid. Such notices shall have been deemed to have been given by
posting in the United States Mails.
Section 18. ESTOPPEL CERTIFICATE
18.1 Lessee shall at any time and from time to time within ten (10)
days after written request from Lessor execute, acknowledge and deliver to
Lessor, in form reasonably satisfactory to Lessor and/or Lessor's mortgagee, a
written statement certifying (if true) that Lessor has accepted the Leased
Premises, that 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 stating the modifications,) that the Lessor is not in default
hereunder, the date to which the rental and other charges have been paid in
advance, if any, and such other accurate certifications as may reasonably be
required by Lessor or Lessor's mortgagee, and agreeing to give copies to any
mortgagee of Lessor of all notices by Lessee to Lessor. It is intended that any
such statement delivered pursuant to this subsection may be relied upon by any
prospective purchaser or mortgagee of the Leased Premises and their respective
successors and assigns.
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Section 19. COVENANT OF QUIET ENJOYMENT
19.1 Lessor further agrees that at all times when Lessee is not in
default under the terms of and during the term of this Lease, Lessee's quiet and
peaceable enjoyment of the Leased Premises shall not be disturbed or interfered
with by Lessor or by any person claiming by, through or under Lessor.
Section 20. POSSESSION
20.1 Lessor shall construct, or cause to be constructed, the Leased
Premises in accordance with the provisions of Exhibit B attached hereto,
including building standard work therein described.
20.2 Construction shall be commenced and diligently pursued in order to
have the Leased Premises substantially completed on or before the date specified
for commencement of the Lease Term, provided that if construction is delayed
because of changes, deletions or addition in construction requested by Lessee,
strikes, lockouts, casualties, acts of God, war, material or labor shortages,
governmental regulation or control or other causes beyond the control of Lessor,
the construction time period shall be extended for the amount of time Lessor is
so delayed, and Monthly Installments of rental shall abate pro rata until
substantial completion and delivery of possession.
20.3 Lessor shall notify Lessee as soon as the Leased Premises are
substantially completed. In the event that there is a dispute as to whether or
not the Leased Premises are substantially completed, the dispute shall be
resolved by the architect for the Building. Taking of possession by Lessee
shall be deemed conclusively to establish that the Leased Premises have been
completed in accordance with the said Exhibit B. If Lessor gives possession
prior to the commencement date to enable Lessee to fit the Leased Premises to
its use, such occupancy shall be subject to all the terms and conditions of this
Lease (except that Lessee shall not be required to pay rent or taxes during such
occupancy).
Section 21. ACTS SUBSEQUENT TO TERMINATION
21.1 No receipt of money by Lessor from Lessee after the termination of
this Lease, the service of any notice, the commencement of any suit or final
judgment for possession shall reinstate, continue to extend the term of this
Lease or affect any such notice, demand, suit or judgment.
Section 22. WAIVER OF DEFAULT
22.1 No waiver of default of Lessee shall be implied, and no express
waiver shall affect any default other than the default specified in such waiver
and that only for the time and to the extent therein stated. The invalidity or
unenforceability of any provision of this Lease shall not affect or impair any
other provision.
Section 23. EXAMINATION OF LEASE
23.1 Submission of this instrument for examination or signature by
Lessee does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both Lessor
and Lessee.
Section 24. DEFAULT UNDER OTHER LEASE
24.1 If the term of any lease, other than this Lease, made by Lessee,
for the Leased Premises or any part thereof, or for any other space in the
Building shall be terminated or terminable after the making of this Lease,
because of any default by Lessee under such other lease, such fact shall empower
Lessor, at Lessor's sole option, to terminate this Lease by notice to Lessee
and/or to exercise any of the remedies set forth in Section 15.
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Section 25. REPRESENTATIVE CAPACITY
25.1 No person, partnership, corporation or other organization
executing this Lease in a representative capacity for Lessor or Lessee shall be
held individually liable hereunder in the absence of fraud provided such person,
partnership, corporation or other organization acted with due authority and the
intended principals are bound.
Section 26. MISCELLANEOUS
26.1 All rights and remedies of Lessor and Lessee under this Lease
shall be cumulative and none shall exclude any other rights and remedies allowed
by law or statute.
26.2 Each of the provisions of this Lease shall extend to and shall, as
the case may require, bind or inure to the benefit, not only of Lessor and of
Lessee, but also of their respective heirs, legal representatives, successors
and permitted assigns, provided this clause shall not permit any assignment
contrary to the provisions of Section 11 hereof.
26.3 All of the representations and obligations of Lessor and Lessee
are contained herein and no modification, waiver or amendment of this Lease, or
any of its conditions or provisions, shall be binding upon the Lessor and Lessee
unless in writing, signed by Lessor and Lessee.
26.4 The receipt by Lessor of any installment of the regular stipulated
rent hereunder or any of said additional rent, shall not be a waiver of any
other additional rent then due or of any default of Lessee hereunder.
26.5 This Lease may be executed in any number of counterparts. Each
such executed counterpart shall be deemed an original hereof and all such
executed counterparts shall together constitute but one and the same instrument,
which instrument shall for all purposes be sufficiently evidenced by such
executed counterpart.
26.6 The section and paragraph headings of this Lease are for
convenience only and in no way limit or enlarge the scope or meaning of the
language contained in the body of this Lease.
27.0 Build as per plan.
Carpet.
Paint.
Install door opening between Units 8NE & 9N,
Install wall & opening in 9N.
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INITIAL
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Landlord
Tenant
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WILLOW LAKE OFFICE CENTER
-------------------------
SITE PLAN
"EXHIBIT A"
WILLOW LAKES OFFICE CENTER
--------------------------
FLOORPLAN
INITIAL
Landlord
Tenant
Exhibit 1.1.2.(3)
LEASE
THIS LEASE, made September 16, 1994 between Willowbrook Office an Illinois
limited partnership, sole beneficiary of American National Bank and Trust
Company of Chicago, as Trustee under Trust Agreement dated March 1, 1979 and
known as Trust No. 46058 (herein called Lessor), and THE LAND SALES
------------------------
RESOURCE, INC.
- -------------------------------------------------------------------------------
(herein called Lessee), whereby Lessee has leased from Lessor, and Lessor has
demised to Lessee, certain premises containing approximately 1,089 square feet,
and designated as Unit 20E (herein called Leased Premises), as outlined in red
on the attached (Exhibit A) building floor plan, in the building (herein called
Building) on Lot 1 in the Resubdivision of Lot 35 in Willowbrook Executive
Plaza, Willowbrook, Illinois situated on a parcel of ground (herein called
Site), the vacant portion of which is improved with parking areas, driveways and
landscaping.
The Lease term will be for a term of Two Years Seven Months and will
commence on October 1, 1994 and terminate April 30, 1997 (herein called Lease
Term).
The term rental will be $36,164.86 (herein called Term Rent) payable
monthly in advance in installments of $ * each (herein called Monthly
------
Installments). "Lessee's Proportionate Share" as such term is hereinafter used
shall be 2.15%. Lessee has deposited with Lessor's beneficiary the sum of
$1,137.10 as Security Deposit. Leased Premises shall be used only for
General Office (herein called the Specified Use). "Holdover Rental" as such
- ---------------
term is hereinafter used, shall be the amount of the Monthly Installment for the
last month of the Lease Term divided by fifteen. Until otherwise notified in
writing by Lessor, the Term Rental, Monthly Installments and all other sums to
be paid by Lessee to Lessor hereunder shall be made payable to the order of'
Willowbrook Ofc. Partnership, 650 Executive Drive, Willowbrook, Illinois 60521.
IN WITNESS WHEREOF, the parties have executed this Lease the day and year
first above written, intending thereby to incorporate and include therein, all
terms, conditions and provisions contained in Sections 1 through 27 attached
hereto as though the said Sections had been hereinbefore fully set forth.
LESSOR: LESSEE:
Willowbrook Office Partnership THE LAND SALES RESOURCE, INC.
622 Executive Drive
Willowbrook, Ill. 60521
By: /s/ DON J. WISKES By: /s/ KITTY M. LAYNE President
-------------------------- -----------------------------------
General Partner (Title)
ATTEST:
*10-1-94--10-31-95....$1,137.10/mo.
11-1-95--4-30-97......$1,187.92/mo. /s/ CHERYL A. BENTLEY
-------------------------------------
(Title)
ADDRESS OF LESSEE:
7660 Plaza Court
Willowbrook, Illinois 60521
9/16/94 #3
INITIAL
Landlord
Tenant
IN CONSIDERATION WHEREOF, THE PARTIES HERETO COVENANT AND AGREE AS FOLLOWS:
Section 1. RENTAL
1.1 Lessee agrees to pay the Term Rent to Lessor in Monthly
Installments payable one each in advance on or before the first day of every
calendar month of the Lease Term, in lawful money of the United States or by
good check or draft (subject to collection).
1.2 Lessee shall pay to Lessor, as additional rental, (a) Lessee's
Proportionate Share of the amount by which the general real estate taxes payable
during each year of the Lease Term on the Building and Site of which Leased
Premises are a part exceed the amount of .80 cents per square foot of Building
and (b) Lessee's Proportionate Share of installments of special assessments, if
any, payable during each year of the Lease Term applicable to the Building and
Site of which the Leased Premises are a part. Lessee shall not be liable for any
special assessments for improvements completed prior to the commencement date of
the Lease Term, nor for any income or other taxes, of the Lessor.
1.3 Lessee shall pay to Lessor as additional rental for each year of
the Lease Term Lessee's Proportionate Share of the amount by which the cost of
common area maintenance (as hereinafter defined) incurred by Landlord during
such year exceeds .41 cents per square foot of Building. Common area maintenance
includes the operation, repair and replacement of parking areas, driveways,
sidewalks, landscaped areas, drainage facilities and exterior lighting on the
Site, and, without limiting the generality of the foregoing, snow and ice
removal from and sweeping of the parking areas, driveways and sidewalks.
1.3A. Insurance. Lessee shall pay to Lessor as additional rental for
each year of the lease term Lessee's proportionate share of the amount by which
the premium cost of Lessor's extended coverage insurance, with all endorsements,
on all public liability and property damage insurance exceeds .0849 per square
foot of building.
1.4 lessor shall submit to Lessee annual statements showing the
computations of the amount of Lessee's liability, if any, under Sections 1.2 and
1.3, which amount Lessee shall pay to Lessor on or before thirty (30) days
immediately following delivery of such statement. Such amounts shall be
prorated as of the commencement date for the first year of the Lease Term and as
of the termination date for the last year of the Lease Tenn.
1.5 The Term Rent and additional rental shall be paid by Lessee
promptly when due, without any deduction or setoff whatsoever. Any such amount
not paid when due shall bear interest at the rate of 18% per annum from the due
date until paid.
Section 2. SECURITY DEPOSIT
2.1 The Security Deposit may be applied by Lessor the purpose of
curing any default or defaults of Lessee under this Lease. If said sum or any
part thereof is used, applied or retained in curing any such default, Lessee
shall, upon demand, immediately deposit with Lessor an amount in cash equal to
the amount so used, applied or retained. Default by lessee in paying to Lessor
any amount required to restore the Security Deposit after any application
thereof, shall afford to Lessor the same remedies as in the default of the
payment of the rent. If Lessee has not defaulted here under, or if Lessor has
not applied said sum to said default, then the Security Deposit or any portion
thereof not so applied by Lessor shall be paid to Lessee within thirty (30) days
after the termination of this Lease, provided Lessee has surrendered possession
of the Leased Premises in accordance with the provisions of this Lease. In the
event of a bona-fide sale of the Site and the Building, Lessor shall have the
right to transfer the Security Deposit to the purchaser to be held under the
term of this Lease and, in such event, Lessor shall be released from all
liability for the return of such Security Deposit to Lessee.
Section 3. UTILITY SERVICES
3.1 Lessee shall promptly pay for all public utilities rendered or
furnished, and metered to the Leased Premises during the term of this Lease.
Lessee shall not waste or permit the waste of water, or use the water for any
purpose other than those stated. Lessor periodically will bill Lessee for
Lessee's Proportionate Share of all
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water bills received by Lessor for water metered to the Building and Lessee
shall pay such amount not later than the date for the next Monthly Installment.
Lessee may, at its own cost, install a submeter to meter water delivered to the
Leased Premises and in such event Lessee shall be free of the restrictions
regarding water usage and shall pay Lessor for water used according to meter
readings (at the rate charged by the supplier of such water) in lieu of paying
the aforesaid percentage of bills for all water metered to the Building. All
leases heretofore or hereafter executed with respect to premises in the Building
will contain identical restrictions with respect to the use, misuse or wasting
of water, except where the Lessee installs a submeter at its cost (and such
submetered water will be deducted prior to computing Lessee's obligation for
such water bills). Lessor shall not be liable for damages, by abatement of rent
or otherwise, for interruption or failure of, or delay in, furnishing any
service or utility, whether the responsibility of Lessor or of others, when the
same is occasioned by causes beyond the reasonable control of Lessor, and no
such interruption, failure or delay shall be deemed an eviction or disturbance
of Lessee's use of the Leased Premises.
Section 4. USE
4.1 Lessee may use the Leased Premises for the Specified Use. Lessee
shall not injure, overload, deface or otherwise harm Site, Building or Leased
Premises nor permit the same; nor commit any nuisance; nor permit the emitting
of any objectionable noise or odor; nor burn any trash or refuse thereon or
therein; nor manufacture, sell, display, distribute or give away any alcoholic
liquors or beverages; nor make or permit any use of Leased Premises which is
improper, offensive or contrary to any law or ordinance, or which will
invalidate or increase the cost of any Lessor's insurance (including the keeping
or storage of any article of dangerous, inflammable or explosive character) or
which would increase the danger of fire in Leased Premises or in the Building;
nor obstruct or permit the obstruction of driveways, walks, parking areas and
other common areas of Site.
4.2 Lessee shall not exhibit, inscribe, paint or affix any sign,
advertisement, notice or other lettering (hereinafter referred to as "signs") on
any part of the Site, exterior of the Building, or in the windows, without the
express prior written consent of Lessor, which consent will not be unreasonably
withheld. Lessor shall have, at any time and from time to time, the right to
establish rules and regulations setting forth uniform characteristics for all
signs on the Building and Site, and Lessor's refusal to consent to any sign not
meeting such characteristics shall not be deemed to be unreasonable. In the
event of the violation of the foregoing, Lessor may remove same without any
liability, and may charge the expense incurred by such removal to Lessee.
Subject to applicable laws, ordinances and regulations, Lessee may, however,
place a sign on the front door of Leased Premises which sign shall be installed
by Lessor at the expense of Lessee, and shall be (i) for identification purposes
only; (ii) uniform with all other such signs on Building; and (iii) of a size,
color and style acceptable to Lessor.
Section 5. CONDITION OF PREMISES
5.1 Lessee's taking possession of the Leased Premises shall be
conclusive evidence that Leased Premises were in good order and satisfactory
condition when Lessee took possession, with the exception of those items if any,
detailed in a written list executed by Lessor and Lessee at or prior to
acceptance of possession. No promise of Lessor to alter, remodel, complete or
improve Leased Premises or Building or Site, and no representation concerning
the condition of Leased Premises or Building or Site have been made by Lessor to
Lessee unless same is contained herein or is contained in agreed plans and
specifications signed by both parties. At the termination of this Lease by lapse
of time or otherwise, Lessee shall return Leased Premises in good order and
condition, loss or damage by fire or other casualty, conditions which are the
responsibility of Lessor to repair pursuant to the term of Section 6.1 hereof,
and ordinary wear and tear excepted.
Section 6. MAINTENANCE AND ALTERATIONS
6.1 Maintenance. Lessor shall keep and maintain the roof and
structural members of the Building of which the Leased Premises are a part, and
the parking lot, sidewalks and landscaping on the Site in good order and repair,
except for loss by fire or other casualty covered by Section 9 of this Lease,
and shall remove snow accumulations from the parking lot and sidewalks. Lessee
shall keep and maintain the balance of the exterior and the entire interior of
the Leased Premises clean and sanitary and in good condition and repair
including, without
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limitation, any necessary replacements (and further including, without
limitation, necessary interior painting and window replacement). Lessee shall
fully comply with all health and police regulations in force and shall conform
with the rules and regulations of fire underwriters or their fire protection
engineers. Lessor will obtain the qualified Contractor to inspect and maintain
the HVAC equipment at Lessee's premises. Lessor will bill Lessee monthly
commencing Oct. 1, 1994. The cost will be $35.00 per month and will be billed
and payable with your monthly rent. Lessee shall promptly remove any debris left
in the working area or other exterior areas of the Site by Lessee, its
employees, agents or contractors.
6.2 Alterations. Lessee shall not create any openings in the roof or
exterior walls, nor shall Lessee make any alterations or additions to the Leased
Premises. Lessee shall make all additions, improvements, alterations and
repairs on the Leased Premises and on and to the appurtenances and equipment
thereof if required by any governmental authority or which may be made necessary
by the act or neglect of any person, firm or corporation (public or private).
Upon completion of any work by or on behalf of Lessee, Lessee shall provide
Lessor with such documents as Lessor may require (including, without limitation,
sworn contractor's statements and supporting lien waivers) evidencing payment in
full for such work.
Section 7. INDEMNIFICATION AND RELEASE OF CLAIMS
7.1 Lessee will at all times hold Lessor, its beneficiaries and the
management of the Building harmless and indemnified against any loss, damage,
cost, expense or liability resulting to any person or property by reason of any
use which may be made of the Leased Premises or any part thereof, or by reason
of any act or thing done or omitted to be done in, upon or about Leased Premises
or any part thereof, unless such loss, damage, cost, expense or liability shall
be caused by the sole negligence of Lessor; and Lessee will hold Lessor and
Site, Building and Leased Premises harmless, indemnified and free and clear of
any and all claims, demands, penalties, liabilities, judgments, costs and
expenses, including reasonable attorneys' fees, arising in connection with any
use of Leased Premises by Lessee or its employees, agents or servants.
7.2 Only to the extent that such business interruption, loss or damage
to property or injury to or death of persons is covered by insurance, neither
Lessor nor Lessee shall be liable to the other for any business interruption or
any loss or damage to property or injury to or death of persons occurring on
Site, in Building or in Leased Premises or in any manner growing out of or
connected with the Lessee's use and occupation of Leased Premises, Building and
Site, or the condition thereof, whether or not caused by the negligence or other
fault of Lessor or Lessee, or of their respective agents, employees, subtenants,
licensees, or assignees. Nothing herein shall be construed to impose any other
or greater liability upon either Lessor or Lessee than would have existed in the
absence of this Section 7.2. This release shall be in effect only so long as the
applicable insurance policies contain a clause to the effect that this release
shall not affect the right of the insured to recover under such policies. Such
clauses shall be obtained by the parties whenever possible. The release in favor
of Lessor contained herein, is in addition to, and not in substitution for, or
in diminution of the hold harmless and indemnification provisions of Section 7.I
thereof.
Section 8. INSURANCE
8.1 At all times during the Lease Term Lessee shall, at its sole cost
and expense, maintain:
(a) Comprehensive General Public Liability Insurance against
claims for personal injury, death or property damage occurring in
connection with the use and occupancy of Leased Premises, naming Lessee
and Lessor, Lessor's beneficiaries and the management of Building as the
named insureds, such insurance to afford protection to the limit of not
less than Five Hundred Thousand ($500,000.00)
INITIAL
Landlord
Tenant
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Dollars in respect to injury or death of a single person, and to the
limit of not less than One Million ($1,000,000.00) Dollars in respect to
any one accident, and to the limit of not less than One Hundred Thousand
($100,000.00) Dollars in respect to property damage.
(b) Steam Boiler Insurance an all steam boilers, pressure tanks
and other such apparatus, if any shall, from time to time, be installed
on Leased Premises, in such amount as Lessor may from time to time
reasonably require.
(c) At all times when any work is in process in connection with
any change or alteration being made by Lessee, Lessee shall maintain
Workmen's Compensation insurance covering all persons employed in
connection with the work and with respect to whom death or bodily injury
claims could be asserted against Lessor or its beneficiaries, as well as
Lessee or Leased Premises.
8.2 Lessee shall furnish Lessor with a duplicate certificate or
certificates of such insurance and not less than ten (10) days prior to the
expiration date of any policy, will furnish Lessor with a new policy or
certificate therefor or a renewal thereof, in substitution of the expiring
policy. Each such policy which Lessee is required to procure and maintain
hereunder shall be issued by insurers of recognized responsibility licensed to
do business in Illinois, and shall contain an agreement or endorsement that it
will not be cancelled by the insurer without at least ten (10) days' prior
written notice to Lessor.
8.3 Lessee will not do, suffer or permit any act or omission, whether
on Leased Premises or otherwise, which might or would result in voiding or
impairing the obligation of any such policy of insurance.
Section 9. FIRE AND CASUALTY.
9.1 If Leased Premises or Building are substantially destroyed or
rendered untenantable by fire or other casualty, Lessor shall have the right to
terminate this Lease by notice in writing to Lessee mailed within thirty (30)
days of the fire or other casualty. In any case of fire or other casualty damage
to Leased Premises (except where this Lease is terminated by Lessor as
hereinbefore provided), Lessor shall repair and rebuild Leased Premises within
one hundred and fifty (150) days of the fire or other casualty, and, upon
failing to do so, Lessee shall have the right to terminate this Lease by notice
in writing to Lessor failed within twenty (20) days thereafter. If any such fire
or other casualty renders Leased premises or any portion thereof untenantable,
the rent to be paid by Lessee hereunder shall abate by an amount bearing the
same ratio of the total amount of rent for the period of untenantability as the
untenantable portion of Leased Premises bears to the entire Leased Premises
during the period beginning with the date of such fire or other casualty and
ending with the date when Leased Premises are again rendered tenantable.
Section 10. CONDEMNATION
10.1 If the whole of Leased premises shall be taken for any public or
quasi-public use under statute or by right of eminent domain or by private
purchase in lieu thereof, then this Lease shall automatically terminate as of
the date that title shall be taken. If any portion of Leased premises shall be
so taken as to render the remainder thereof unusable for the purpose for which
Leased Premises were leased, then Lessor and Lessee shall each have the right to
terminate this Lease on thirty (30) days' notice to the other given within sixty
(60) days after the date of such taking. In the event neither party shall
exercise the aforesaid right to terminate, the rent payable under this Lease
shall be equitably apportioned according to the space so taken, and Lessor
shall, at its own cost and expense, restore the remaining portion of Leased
Premises to the extent necessary to render it reasonably suitable for the
purposes for which it was leased and shall make all repairs to Building to the
extent necessary to constitute Building a complete architectural unit, provided
the cost thereof shall not exceed the proceeds of Lessor's condemnation award.
Lessee shall not be entitled to receive any part of any award or awards based
upon taking of the fee or lease hold interest, which shall be the property of
Lessor, and Lessee hereby assigns to Lessor any of Lessee's rights, title or
interest therein, but Lessee may prosecute any claim against the condemning
authority in such condemnation proceedings for damages which it may have
sustained; provided, however, that no such claim shall diminish or otherwise
adversely affect Lessor's award or the award of any fee mortgagee.
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Section 11. ASSIGNMENT AND SUBLETTING
11.1 Lessee shall not sublet any part of Leased Premises nor assign
this Lease, without in each and every case Lessor's prior written consent
thereto first had, which consent shall not be unreasonably withheld, provided,
however, that Lessee shall remain liable hereunder; nor will Lessee make or
permit any transfer of this Lease or any interest hereunder by operation of law.
Section 12. LESSOR'S PERFORMANCE OF LESSEE'S COVENANTS
12.1 Should Lessee at any time fail or omit to do any act or thing
provided under this Lease to be done by Lessee, Lessor may in its sole
discretion after ten (10) days' written notice to Lessee, itself do or cause to
be done such act or thing including the payment of any claim or lien upon Leased
Premises made or filed by any laborer, supplier, materialman, principal
contractor, subcontractor, or other person, whether for work, labor or services
performed upon, or materials supplied to Leased Premises). All monies paid by
Lessor shall be and constitute so much additional rental due hereunder from
Lessee to Lessor to be due and payable upon notice given by Lessor of the nature
and amount thereof, on the first day of the calendar month next succeeding the
month during which Lessor shall have given notice, with interest upon any such
amount at the rate of ten percent (10%) per annum from the date of payment by
Lessor until repayment to Lessor by Lessee.
Section 13. RIGHTS RESERVED TO LESSOR
13.1 Lessor reserves the following rights:
(a) To have pass keys to Leased Premises and no locks shall be
changed without the prior written consent of Lessor;
(b) To enter the Leased premises for the purpose of making
inspections or repairs, alterations or improvements connected with any
portion or Leased premises during reasonable hours, and at any time in
the event of an emergency;
(c) To show Leased premises to prospective lessees or brokers
during the last six months of the Term of this Lease (and if vacated
during such period, to prepare Leased Premises for reoccupancy) and to
prospective purchasers at all reasonable times, provided prior notice is
given to Lessee in each case;
(d) To designate and/or approve, prior to installation, all types
of window shades, blinds, drapes, awnings, window ventilators, and other
similar equipment, and to control all internal lighting that may be
visible from the exterior of Building.
Section 14. SUBORDINATION TO EXISTING AND FUTURE MORTGAGES
14.1 At the option of Lessor's mortgagee, this Lease shall be subject
and subordinate at all times to the lien of any existing mortgage or mortgages
and of mortgages which hereafter may be made a lien on Site and/or Building;
provided that so long as Lessee is not in default under this Lease, its
possession of Leased premises and its rights and privileges hereunder shall not
be interfered with by the mortgagee or any purchaser upon a foreclosure of such
mortgage. Although no instrument or act on the part of the Lessee shall be
necessary to effectuate such subordination, the Lessee shall nevertheless
execute and deliver such further instruments subordinating this Lease to the
lien of any such mortgages as may be desired by the mortgagee, provided the same
acknowledges Lessee's rights as hereinbefore specified. The Lessee hereby
appoints the Lessor its attorney-in-fact irrevocably to execute and deliver any
such instrument for the Lessee.
Section 15. RIGHTS AND REMEDIES OF LESSOR
15.1 If default shall be made in the payment of any sum required to be
paid by Lessee under this Lease, and default shall continue for five (5) days
after written notice to Lessee, or default shall be made in the
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performance of any of the other covenants or conditions which Lessee is required
to observe and perform, and such default shall continue for fifteen (15) days
after written notice to Lessee, or if the interest of Lessee under this Lease
shall be levied on under execution or other legal process, or if any petition
shall be filed by or against Lessee to declare Lessee a bankrupt or to delay,
reduce or modify Lessee's debts or obligations, or if any petition shall be
filed or other action taken to reorganize or modify Lessee's capital structure
if Lessee be a corporation or other entity, or if Lessee be declared insolvent
according to law, or if any assignment of Lessee's property shall be made for
the benefit of creditors, or if a receiver or trustee is appointed for Lessee or
its property, or if Lessee shall abandon Leased premises during the term of this
Lease, then Lessor may treat the occurrence of any one or more of the foregoing
events as a breach of this Lease (provided that no such levy, execution, legal
process or petition filed against Lessee shall constitute a breach of this Lease
if Lessee shall vigorously contest the same by appropriate proceedings and shall
remove or vacate the same within thirty (30) days from the date of its creation,
service or filing) and thereupon, at its option, may without notice or demand of
any kind to Lessee or any other Person, have any one or more of the following
described remedies in addition to all other rights and remedies provided at law
or in equity:
(a) Lessor may terminate this Lease and forthwith repossess
Leased Premises and be entitled to recover forthwith as damages a sum of
money equal to the balance of the Term Rent then remaining unpaid
hereunder (without commutation, in consideration of disregarding any
rent adjustments pursuant to Section 1.2 hereof) less the fair rental
value of Leased premises for said period, and any other sum of money and
damages owed by Lessee to Lessor;
(b) Lessor may terminate Lessee's right of possession and may
repossess Leased Premises by forcible entry or detainer suit or
otherwise, without demand or notice of any kind to Lessee and without
terminating this Lease, in which event Lessor may, but shall be under no
obligation so to do, relet the same for the account of Lessee for such
rent and upon such terms as shall be satisfactory to Lessor. For the
purpose of such reletting Lessor is authorized to decorate or to make
any repairs, changes, alterations or additions in or to Leased Premises
that may be necessary or convenient, and if Lessor shall fail or refuse
to relet Leased Premises, or if the same are relet and a sufficient sum
shall not be realized from such reletting after paying all of the costs
and expenses of such decorations, repairs, changes, alterations and
additions and the expense of such releting and of the collection of the
rent accruing therefrom to satisfy the rent provided for in this Lease
to be paid, then Lessee shall pay to Lessor as damages a sum equal to
the amount of the rental reserved in this Lease for such period or
periods, or if the Leased premises have been relet the Lessee shall
satisfy and pay any such deficiency upon demand therefor from time to
time and Lessee agrees that Lessor may file suit to recover any sums
falling due under the terms of this Section 15.1 (b) from time to time,
and that no delivery or recovery of any portion due Lessor hereunder
shall be any defense to any subsequent action brought for any amount not
theretofore reduced to judgment in favor of Lessor.
15.2 Upon the termination of this Lease or upon the termination of
Lessee's right of possession, Lessee shall at once surrender possession of
Leased Premises to Lessor and remove all effects therefrom, and if such
possession is not immediately surrendered Lessor may forthwith re-enter Leased
Premises and repossess itself as of its former estate and remove all persons and
effects therefrom, using such force as may be necessary without being guilty of
any manner of trespass or forcible entry or detainer. Without limiting the
generality of the foregoing, Lessee agrees to remove, at the termination of this
Lease or upon the termination of Lessee's right of possession, Lessee's movable
furniture, signs, trade fixtures, machinery, equipment and other personal
property and such alterations, similar improvements and additions made by Lessee
as may be requested by Lessor. If Lessee shall fail or refuse to remove all such
property from Leased Premises, Lessee shall be conclusively presumed to have
abandoned the same and title thereto shall thereupon pass to Lessor without any
cost, either by setoff, credit, allowance or otherwise, and Lessor may, at its
option, accept the title to such property or at Lessee's expense may remove the
same, or any part thereof, in any manner that Lessor shall choose, and store the
same without incurring liability to Lessee or any other person.
15.3 Lessee shall pay, upon demand, all of Lessor's costs, charges, and
expenses, including the fees of counsel, agents and other retained by Lessor, at
any time incurred in enforcing Lessee's obligations hereunder
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(whether incurred in litigation or otherwise) or incurred by Lessor in any
litigation, negotiation or transaction in which Lessee causes Lessor, without
Lessor's fault, to become involved or concerned.
Section 16. HOLDING OVER
16.1 Lessee shall pay to Lessor Holdover Rental for each day Lessee
shall retain possession of Leased Premises, or any part thereof, after the
termination of this Lease, whether by lapse of time or otherwise and shall also
pay all damages sustained by Lessor on account thereof; but the provisions of
this article shall not operate as a waiver by Lessor of any right of re-entry
hereinbefore provided; nor shall the receipt of said rent or any part thereof,
or any other act in apparent affirmance of tenancy, operate as a waiver of the
right to forfeit this Lease and the Lease Term hereby granted for the period
still unexpired, for a breach of any of the covenants herein.
Section 17. NOTICES
17.1 All notices to be given by one party to the other under this Lease
shall be in writing, mailed or delivered as follows: if to Lessor, at the place
where rent is payable; if to Lessee, at the address of Lessee set forth on the
first page hereof until Lessee takes possession of the Leased Premises and
thereafter at Leased Premises, provided that either party may, by notice to the
other, from time to time designate another address to which notices shall
thereafter be addressed.
Mailed notices shall be sent by United States Certified or Registered
Mail, postage prepaid. Such notices shall have been deemed to have been given by
posting in the United States Mails.
Section 18. ESTOPPEL CERTIFICATE
18.1 Lessee shall at any time and from time to time within ten (10)
days after written request from Lessor execute, acknowledge and deliver to
Lessor, in form reasonably satisfactory to Lessor and/or Lessor's mortgagee, a
written statement certifying (if true) that Lessor has accepted the Leased
Premises, that 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 stating the modifications), that the Lessor is not in default
hereunder, the date to which the rental and other charges have been paid in
advance, or any, and such other accurate certifications as may reasonably be
required by Lessor or Lessor's mortgagee, and agreeing to give copies to any
mortgage of Lessor of all notices by Lessee to Lessor. It is intended that any
such statement delivered pursuant to this subsection may be relied upon by any
prospective purchaser or mortgage of the Leased Premises and their respective
successors and assigns.
Section 19. COVENANT OF QUIET ENJOYMENT
19.1 Lessor further agrees that at all times when Lessee is not in
default under the terms of and during the terms of this Lease, Lessee's quiet
and peaceable enjoyment of the Leased Premises shall not be disturbed or
interfered with by Lessor or by any person claiming by, through or under Lessor.
Section 20. POSSESSION
20.1 Lessor shall construct, or cause to be constructed, the Leased
Premises in accordance with the provisions of Exhibit B attached hereto,
including building standard work therein described.
20.2 Construction shall be commenced and diligently pursued in order to
have the Leased Premises substantially completed on or before the date specified
for commencement of the Lease Term, provided that if construction is delayed
because of changes, deletions or addition in construction requested by Lessee,
strikes, lockouts, casualties, acts of God, war, material or labor shortages,
governmental regulation or control or other causes beyond the control of Lessor,
the construction time period shall be extended for the amount of time Lessor is
so delayed, and Monthly Installments of rental shall abate pro rata until
substantial collection and delivery of possession.
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20.3 Lessor shall notify Lessee as soon as the Leased Premises are
substantially completed. In the event that there is a dispute as to whether or
not the Leased Premises are substantially completed, the dispute shall be
resolved by the architect for the Building. Taking of possession by Lessee
shall be deemed conclusively to establish that the Leased Premises have been
completed in accordance with the said Exhibit B. If Lessor gives possession
prior to the commencement date to enable Lessee to fit the Leased Premises to
its use, such occupancy shall be subject to all the terms and conditions of this
Lease (except that Lessee shall not be required to pay rent or taxes during such
occupancy).
Section 21. ACTS SUBSEQUENT TO TERMINATION
21.1 No receipt of money by Lessor from Lessee after the termination of
this Lease, the service of any notice, the commencement of any suit or final
judgment for possession shall reinstate, continue to extend the term of this
Lease or affect any such notice, demand, suit or judgment.
Section 22. WAIVER OF DEFAULT
22.1 No waiver of default of Lessee shall be implied, and no express
waiver shall affect any default other than the default specified in such waiver
and that only for the time and to the extent therein stated. The invalidity or
unenforceability of any provision of this Lease shall not affect or impair any
other provision.
Section 23. EXAMINATION OF LEASE
23.1 Submission of this instrument for examination or signature by
Lessee does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both Lessor
and Lessee.
Section 24. DEFAULT UNDER OTHER LEASE
24.1 If the term of any lease, other than this Lease, made by Lessee,
for the Leased Premises or any part thereof, or for any other space in the
Building and shall be terminated or terminable after the making of this Lease,
because of any default by Lessee under such other lease, such fact shall embower
Lessor, at Lessor's sole option, to terminate this Lease by notice to Lessee
and/or to exercise any of the remedies set forth in Section 15.
Section 25. REPRESENTATIVE CAPACITY
25.1 No person, partnership, corporation or other organization
executing this Lease in a representative capacity for Lessor or Lessee shall be
held individually liable hereunder in the absence of fraud provided such person,
partnership, corporation or other organization acted with due authority and the
intended principals are bound.
Section 26. MISCELLANEOUS
26.1 All rights and remedies of Lessor and Lessee under this Lease
shall be cumulative and none shall exclude any other rights and remedies allowed
by law or statute.
26.2 Each of the provisions of this Lease shall extend to and shall, as
the case may require, bind or inure to the benefit, not only of Lessor and of
Lessee, but also of their respective heirs, legal representatives, successors
and permitted assigns, provided this clause shall not permit any assignment
contrary to the provisions of Section 11 hereof.
26.3 All of the representations and obligations of Lessor and Lessee
are contained herein and no modification, waiver or amendment of this Lease, or
any of its conditions or provisions, shall be binding upon the Lessor and Lessee
unless in writing, signed by Lessor and Lessee.
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26.4 The receipt by Lessor of any installment of regular stipulated
rent hereunder or any of said additional rent, shall not be a waiver of any
other additional rent then due or of any default of Lessee hereunder.
26.5 This Lease may be executed in any number of counterparts. Each
such executed counterpart shall be deemed an original hereof and all such
executed counterparts shall together constitute but one and the same instrument,
which instrument shall for all purposes be sufficiently evidenced by such
executed counterpart.
26.6 The section and paragraph headings of this Lease are for
convenience only and in no way limit or enlarge the scope or meaning of the
language contained in the body of this Lease.
27.0 Lessor will build as per plan.
Lessor will carpet entire premises.
Lessor will paint entire premises.
INITIAL
Landlord
Tenant
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WILLOW LAKE OFFICE CENTER
-------------------------
SITE PLAN
EXHIBIT A
WILLOW LAKES OFFICE CENTER
--------------------------
FLOOR PLAN
INITIAL
Landlord
Tenant
EXHIBIT "B"
CLC Plan Agreement
Exhibit 1.1.3
===============================================================================
CAMADON(TM)
CORPORATE OFFICE: Pewaukee, WI 414/544-9200 . fax: 414/544-4488
REGIONAL OFFICE: Vernon Hills, IL . 708/362-5100 . fax 708/362-5114
REGIONAL OFFICE: Madison, WI . 608/233-3880 . 608/223-3890
Agreement No._____ Date______ Customer No.____
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BILL TO: SHIP TO:
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Name (Full Legal Name) Name
The Land Sales Resource Same
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Address Address
622 Executive Dr.
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City/State City/State Zip Code
Willow Brook, IL 60521
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INITIAL PERIOD: CHARGES AND COPIES PER COPY PERIOD:
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Term/Payment Frequency Agreed Minimum Monthly Volume X Base Copy Rate = Minimum [_] plus tax Advance
Monthly Copy Payments
Charges: [X] incl tax
60 month 29,000 .024 696.00 1392.00
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Meter Reading Frequency Excess Copy Charge .0135 Please check one:
(Circle One) M Q S A ----- [_] Aggregate Minimum
[_] Per Machine Minimum
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PLEASE FURNISH THE FOLLOWING INFORMATION
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Make/Model Serial # Per Machine Make/Model SeriaL # Per Machine
Allowance Allowance
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FT-6655
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Sorter/Stapler
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DOC Feeder
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Power Cond.
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Dear User: We have written this Agreement in plain language because we want you
to fully understand its terms. Please read your copy of this Agreement carefully
and feel free to ask us any questions you may have about it. We use the words
"you" and "your" to mean the user named below. The words "we", "us" and "our"
refer to the Owner named below.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT (INCLUDING THOSE ON
THE REVERSE SIDE) SHOULD BE READ CAREFULLY, BECAUSE ONLY THOSE TERMS IN WRITING
ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN
AGREEMENT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT
ONLY BY ANOTHER WRITTEN AGREEMENT. YOU AGREE TO COMPLY WITH THE TERMS AND
CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS NOT CANCELLABLE. YOU PROMISE
THAT THE EQUIPMENT WILL BE USED ONLY FOR BUSINESS PURPOSES
TERMS AND CONDITIONS
(CONTINUED ON REVERSE SIDE)
1. AGREEMENT. You agree to rent from us and we agree to rent to you the
Equipment listed above. You promise to pay not less than the Minimum Monthly
Copy Charge every month during the Initial Term. WE WILL PROVIDE THE EQUIPMENT
AND FULL SERVICE MAINTENANCE DURING NORMAL BUSINESS HOURS, INCLUDING ALL
SUPPLIES AND PARTS NECESSARY TO PRODUCE COPIES, EXCEPT PAPER WHICH YOU MUST
PURCHASE SEPARATELY. YOU AGREE THAT WE CAN INCREASE THE MINIMUM MONTHLY COPY
CHARGE ANNUALLY AFTER TWELVE MONTHS HAVE ELAPSED UNDER THIS AGREEMENT BY AN
AMOUNT NOT GREATER THAN THE PREVIOUS YEAR'S INFLATION RATE AS MEASURED BY THE
CONSUMER PRICE INDEX. You agree to pay for service outside of normal business
hours or service required by your negligence or misuse of the Equipment at our
customary rates.
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YOU AGREE WITH US TO USE THE EQUIPMENT FOR THE INITIAL PERIOD IN ACCORDANCE WITH
THE TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING THOSE ON THE REVERSE SIDE)
AND NOT TO PAY LESS THAN THE MINIMUM MONTHLY COPY CHARGE PAYMENT EACH MONTH. YOU
PROMISE THAT ALL THE INFORMATION GIVEN IN THIS AGREEMENT AND YOUR APPLICATION
WAS CORRECT AND COMPLETE WHEN THIS AGREEMENT WAS SIGNED. THIS AGREEMENT IS NOT
BINDING UPON US OR EFFECTIVE UNTIL AND UNLESS WE EXECUTE THIS AGREEMENT. THE
AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF WISCONSIN. YOU AGREE TO
THE JURISDICTION AND VENUE OF FEDERAL AND STATE COURTS IN WAUKESHA COUNTY,
WISCONSIN.
ACCEPTED BY: PROPOSED BY:
OWNER: CAMADON, INC. USER: THE LAND SALES RESOURCE
BY: /s/ ILLEGIBLE BY: /s/ ILLEGIBLE
-------------------------------- --------------------------------
TITLE: LEASE Coordinator TITLE:
------------------------------ ------------------------------
DATE: 6-20-94 DATE:
------------------------------ ------------------------------
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UNCONDITIONAL PERSONAL GUARANTY: TO CAMADON, INC.
In consideration of your entering into the above Agreement in reliance upon this
guaranty, the undersigned, together and separately, unconditionally and
irrevocably guaranteed to you, your successors and assigns, the prompt payment
and performance of all obligations under the Agreement. We agree that (a) this
is a guaranty of payment and not of collection, and that you can proceed
directly against us without disposing of any security or seeking to collect from
the above named User, (b) we waive all defenses and notices, including those of
protest, presentment and demand, (c) you may extend or otherwise change the
terms of the Agreement without notice to us, and (d) we will pay all of your
costs of enforcement and collection. This guaranty survives the bankruptcy of
the above named User and binds our administrators, successors and assigns. My
obligations under this guaranty continues even if the User becomes insolvent or
bankrupt or is discharged from bankruptcy and I agree not to seek to be repaid
by the User in the event I must pay you. THIS GUARANTY WILL BE GOVERNED BY THE
SAME STATE LAW AS THE AGREEMENT. WE AGREE TO JURISDICTION AND VENUE IN THE STATE
AND FEDERAL COURTS IN THE SAME STATE AND COUNTY.
By___________________ , individually By___________________ , individually
Address_____________________________ Address_____________________________
Soc. Security #_____________________ Soc. Security #_____________________
Witness:____________________________ Witness:____________________________
================================================================================
2. ORDERING EQUIPMENT. You request us to arrange delivery of the equipment to
you at your expense. If the Equipment has not been delivered, implied, and
accepted by you, within forty-five (45) days from the date that ordered the
equipment, we may terminate the Agreement and our obligations to you on ten (10)
days written notice to you. If we have issued a purchase contract or order for
the Equipment, you agree that the purchase order or contract is acceptable to
you. If you have entered into a purchase contract for the Equipment, by signing
this Agreement you have assigned it to us, effective when we pay for the
Equipment.
3. COPY CHARGES. The first monthly payment is due upon receipt of invoice.
Thereafter, monthly payments will be due on the same date each month during the
Initial Term, which will start on the date you accept the Equipment (as
confirmed by a properly executed Certificate of Acceptance received by us or as
otherwise confirmed by us to our satisfaction) and will continue until the end
of the Term, whether or not you receive an invoice, payments will be made to us
at our address below, or at another address which we designate in writing. Your
obligation to pay Minimum Monthly Copy Charges is unconditional and is not
subject to any reduction, set-off, defense, or counterclaim for any reason
whatsoever. If we accepted an advance payment form you, it will be held by us
to secure your faithful performance of this Agreement, and it will be returned
or applied as stated in Paragraph 12. You agree that we may at our option
charge and collect a one-time reasonable administrative fee for credit
investigation and documentation expenses.
4. NO WARRANTIES. The Equipment is being supplied to you "AS IS". YOU AGREE
THAT YOU HAVE SELECTED THE SIZE, MODEL, DESIGN AND BRAND OF THE EQUIPMENT USING
YOUR OWN JUDGMENT WITHOUT ANY RELIANCE ON US. WE MAKE NO WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR ORDINARY
USE IN CONNECTION WITH THIS AGREEMENT OR THE EQUIPMENT. As long as you are not
in default under any of the terms of this Agreement, we transfer to you any
warranties made to us by the manufacturer or supplier. YOU AGREE THAT
REGARDLESS OF CAUSE, YOU WILL NOT MAKE ANY CLAIM WHATSOEVER AGAINST US OR ANYONE
TO WHOM WE MAY ASSIGN THIS AGREEMENT FOR LOSS OF EXPECTED PROFITS OR ANY OTHER
DIRECT, SPECIAL OR INDIRECT DAMAGES. You acknowledge that anyone to whom we
assign this Agreement will not be responsible for any service, repairs or
maintenance of the Equipment, that such assignee is not a party to any service
or maintenance agreement, and even if you have a dispute regarding the
Equipment, you will continue to pay such assignee all rental and maintenance
payments due under this Agreement and all schedules to this Agreement without
deducting or withholding any amounts.
5. METER. (A) In return for Minimum Monthly Copy Charge, you are entitled to
use the Agreed Minimum Number of Copies each month. If you use more than the
Agreed Minimum Number of Copies in any month, you will additionally pay us a
charge equal to the number of additional metered copies times the Excess Copy
Charge. We may audit the automatic meter reading device periodically. If we
determine that you have used fifteen percent (15%) more supplies than normal for
copies, you agree to pay customary charges for all excess supplies. (B) The
Meter Reading Frequency is the period of time (monthly, quarterly, semi annually
or annually) for which the number of copies used will be reconciled. The Meter
Reading Frequency and corresponding excess charge, if any, may be different than
the Minimum Payment Frequency. (C) You agree to provide adequate space without
charge at the Equipment Location for the Equipment, adequate electricity
(including if necessary a dedicated 220 volt line), a telephone line and hookup
for any automatic meter reading device and reasonable storage for supplies to be
used with the Equipment. Most Equipment will be connected to an automatic meter
reading device which will report the number of copies made on the Equipment each
month and upon which monthly invoices will be based. If an automatic meter
reading device is not installed and otherwise upon request, you shall provide us
by telephone with the actual meter reading on the first business day of each
calendar month, provided that we may estimate a number of copies used if such
meter reading is not received by us within seven (7) days. We will adjust the
estimated charge for excess copies upon receipt of actual meter readings.
Notwithstanding any adjustment you will never pay less than the Minimum Monthly
Copy Charge.
6. ASSIGNMENT. YOU MAY NOT SELL, TRANSFER, ASSIGN OR SUBLEASE THE EQUIPMENT.
We may, without notifying you, sell, assign, or transfer this Agreement and
ownership of the Equipment. You agree that if we do so, the new owner will have
the same rights and benefits that we now have, and the assignee will not have to
perform any of our obligations. You agree that the rights of the assignee will
not be subject to any claims, defenses, or set-offs that you may have against
us. However, any such assignment, sale or transfer of this Agreement or the
Equipment will not relieve us of our obligations to you under this Agreement.
7. OWNERSHIP AND QUIET ENJOYMENT. We are the owner of the Equipment and have
title to the Equipment. If any other person attempts to claim ownership of the
Equipment against or through you, you agree, at your expense, to protect and
defend our title to the Equipment. You agree that you will at all times keep
the Equipment free from any legal process or lien whatsoever, and you will give
us immediate notice if any legal process or lien is asserted or made against the
Equipment. So long as you are not in default under any of the terms in this
Agreement, we agree that you shall quietly use and enjoy the Equipment. YOU
AGREE THAT YOU WILL NOT BE ABLE TO PURCHASE THE EQUIPMENT AT ANY TIME.
8. CARE, USE AND LOCATION; LOSS. (A) You will not move the Equipment form the
Equipment Location without our written consent in advance. You will give us
reasonable access to the Equipment Location to confirm the Equipment's
existence, condition and proper maintenance. You are responsible for installing
and keeping the Equipment in good working order and repair and for using it in
compliance with all applicable laws. You will not make any alterations to the
Equipment without our prior written consent nor will you permanently attach the
Equipment to your real estate. At the end of the Initial Term of the Agreement,
you will return the Equipment to us, at your expense. (B) You are responsible
for protecting the Equipment from damage, except for ordinary wear and tear and
from any other kind of loss while you have the Equipment or while it is being
delivered to you. Even if the Equipment is damaged or lost, you agree to pay
all Minimum Monthly Copy Charges for the entire Initial Term.
9. TAXES. You agree to pay when due either directly or to reimburse us all
taxes, fines and penalties relating to this Agreement or the Equipment.
10. INDEMNITY. We are not responsible for any injuries, damages, penalties,
claims or losses including legal expenses incurred by you or any other person
caused by the installation, selection, ownership, possession, maintenance,
condition or use of the Equipment. You agree to reimburse us for and to defend
us against any claims for such losses, damages, penalties, claims, injuries or
expenses. This indemnity shall continue even after this Agreement has expired.
11. INSURANCE. You agree to keep the Equipment fully insured against loss
until you have met all your obligations under this Agreement. You agree to
obtain a general public liability insurance policy, covering both personal
injury and property damage, from anyone who is acceptable to us and include us
as an insured on the policy. You agree to provide us with certificates or other
evidence of insurance acceptable to us. If any insurance proceeds are paid as a
result of any loss or damage to the Equipment, you agree that such insurance
proceeds shall be paid first to us to satisfy your obligations under this
Agreement. If the Equipment is either lost or totally destroyed, and you are
not in default under the terms of this Agreement, instead of continuing to pay
us the Minimum Monthly Copy Charge, you have the option of paying us the then
present value of both the unpaid balance of all remaining Minimum Monthly Copy
Charges under this Agreement and the value of our residual interest in the
Equipment, each computed with a discount rate of six percent (6%) per year; or
the lowest legal rate. If you do not provide evidence of proper insurance
within ten (10) days of our request, we will have the right but not the duty to
obtain such insurance at your expense on our own interest in the Equipment. You
shall pay all premiums and related charges, including interest at up to one and
one-half percent (1.5%) per month, or the highest legal rate, if less.
12. DEFAULTS AND REMEDIES. If you do not pay the Minimum Monthly Copy Charges
when due or if you or your guarantor break any of your promises under this
Agreement, or you or your guarantor become insolvent, assign your assets for the
benefit of your creditors, or enter (voluntarily or involuntarily) into a
bankruptcy proceeding, or all or a material portion of your assets or stock is
sold, or (if an individual) you or your guarantor dies, or you are in default in
any other agreement between you and us, you will be in default. If you are in
default, we can require that you return the Equipment to us and pay to us the
then present value of the unpaid balance of all remaining Minimum Monthly Copy
Charges under this Agreement computed with a discount rate of six percent (6%)
per year, or the lowest legal rate. If you fail to return the Equipment to us,
in addition we can also require that you pay to us the current estimated fair
market value of similar equipment of like age. You also agree to pay us
interest on all sums due us from the date of default until paid at the rate of
one and one-half percent (1.5%) per month, but only to the extent permitted by
law. In addition, we shall be entitled to recover from you all damages caused
by any such default to the extent permitted by law. We can also use any of the
remedies available to us under the Uniform Commercial Code ("UCC") or any other
law. If we refer this Agreement to an attorney for enforcement or collection,
you agree to pay our reasonable attorney's fees, which may be twenty percent
(20%) of the total discounted unpaid Minimum Monthly Copy Charges for the
remaining term of this Agreement. If we have to take possession of the
Equipment, you agree to pay the cost of the repossession, storing, shipping,
repairing and selling the Equipment. Although you agree that we are not
obligated to do so, if we decide to sell the Equipment, and we are able to sell
the Equipment for a price that exceeds the sum of (a) our cost of repossession
and sale of the Equipment and (b) our estimated residual value of the Equipment,
present value as calculated above, then we shall give you credit for the amount
of such excess. You agree that we do not have to notify you that we are selling
the Equipment or of the time, place or advertising of any sale, You also agree
that we may telephone you at any reasonable time to enforce our rights.
13. OTHER RIGHTS. You Agree that any delay or failure to enforce our rights
under this Agreement will not prevent us from enforcing any rights at a later
time. The parties intend this document to be a rental agreement. However, you
grant us a security interest in your interest in the Equipment in case it is
found otherwise: You also give us the right to file immediately, at your
expense, any UCC financing statements or related filings, as well as the right
to sign your name to any such filings that we make.
14. RETURN OF EQUIPMENT. When this agreement expires or is otherwise
terminated, you shall disconnect, properly package for transportation, and
return the Equipment, freight prepaid to us, in good repair, condition and
working order, normal wear and tear excepted, to the location we designate. If
upon expiration or termination, you do not immediately return the Equipment, at
our option (a) we will peacefully remove the Equipment and you agree to pay us
an amount equal to two (2) Minimum Monthly Copy Charges or (b) the Equipment
will continue to be held and rented by you for successive periods at the same
Minimum Monthly Copy Charge, subject to your or our right to terminate this
Agreement upon one (1) month written notice, provided that we retain the right,
in our sole discretion, to limit the total number of such successive renewals to
protect our rights as owner of the Equipment. If we agree at your request to
allow you to terminate this Agreement before the end of the Initial Term, you
agree to pay us a reasonable fee for such privilege.
15. LATE CHARGES. If any part of a payment is not made by you when due, you
agree to pay us a late charge of the higher of $25 or ten percent (10%) of each
such late payment, but not more than permitted by law. You agree to pay us the
late charge not later than one (1) month following the date that the original
Minimum Monthly Copy Charge was due.
16. MISCELLANEOUS. This is the entire Agreement between us regarding the
Equipment. In the event you fail to comply with any part of this Agreement, we
can, but we do not have to, take any action necessary to effect your compliance
and you will pay the amount it costs us plus all of our expenses in causing your
compliance at the time of the next due Minimum Monthly Copy Charge. If any
notices are required under this Agreement, they may be given personally or
mailed to the addresses in this Agreement by certified or registered mail,
postage prepaid or by recognized overnight delivery service. This Agreement is
for the benefit of and is binding upon you and your personal representatives,
successors and assigns. You agree and consent that we may serve you by
registered or certified mail, which shall be sufficient to obtain jurisdiction.
YOU WAIVE TRIAL BY JURY IN ANY ACTION BETWEEN US. Both you and we intend this
Agreement to be a valid and legal document, and agree that if any part is
determined to be unenforceable, all other parts remain in full force and effect.
You agree that we both intent that this Agreement comply with all applicable
laws. If it is determined that any payment due under this Agreement results in
an interest payment, and that interest is higher than allowed by law, then any
excess interest will be applied to principal and interest will be at the highest
legal rate. In no event will you pay or will we charge or receive any more
interest than allowed by law.
17. UCC-ARTICLE 2A PROVISIONS. You acknowledge that Article 2A of the UCC may
be applicable to this Agreement. Therefore, you agree to the following: (a)
you acknowledge that we have given you the name of the supplier of the Equipment
you are renting from us in this Agreement or on the attached schedule or in your
purchase agreement. We hereby notify you that you may have rights under the
supply contracts and that you may contact the supplier for a description of
those rights or any warranties; and (b) you hereby waive any rights and remedies
you are given by Sections 2A-508 through 2A-522 of the UCC, including the right
to reject the Agreement and the Equipment; to cancel the Agreement; to revoke
acceptance of the Equipment; to grant a security interest in the Equipment in
your possession or control for any reason; to recover damages under such UCC 2A
Sections for any breach of warranty. You will start any action against us
within one year. We will not be liable to you for any failure to deliver or
delay in delivering the Equipment or other loss or damage suffered by you in
connection with this Agreement or the Equipment.
Exhibit 2.2.1(1)
BILL OF SALE
The Land Sales Resource, an Illinois corporation ("Assignor"), for good and
valuable consideration to it in hand paid, receipt of which is hereby
acknowledged, hereby sells, assigns, transfers and conveys unto COMPS
InfoSystems, Inc., a Delaware corporation ("Assignee"), its Successors and
assigns, the following described property:
1. All property of every kind and description and wherever situated,
tangible and intangible, owned by Assignor or to which Assignor has any right,
title or interest on the date hereof as described in Section 1.1 and the
exhibits referenced therein of the Asset Purchase Agreement dated July __, 1995.
2. Assignor hereby authorizes and grants its power of attorney to Assignee
and appoints Assignee and the officers thereof as Assignor's attorney-in-fact to
take any appropriate action in connection with any of said rights, claims,
causes or action and property, in the name of Assignor or in its own or any
other name but at its own expense, it being understood that this authorization
and power of attorney are coupled with an interest and irrevocable.
3. Assignee shall have the right to have and to hold all of the rights,
claims, causes of action, property, assets, business and goodwill transferred
hereby as a going concern.
4. Assignor does hereby warrant, covenant and agree that it:
(i) has good and marketable title to the properties and assets hereby
sold, assigned, transferred, conveyed and delivered, subject to such liens and
other encumbrances as are disclosed in the Asset Purchase Agreement or any
schedules or exhibits thereto and except as otherwise provided in the Asset
Purchase Agreement; and
(ii) will warrant and defend the sale of said properties and assets
against all and every person or persons whomsoever claiming or to claim against
any or all of the same, subject to the terms and provisions of the Asset
Purchase Agreement.
1
IN WITNESS WHEREOF, this Bill of Sale has been executed this _____ day of
July, 1995.
ASSIGNOR
The Land Sales Resource
By
-----------------------------------------------
Kitty Layne, President
ASSIGNEE
COMPS InfoSystems, Inc.
By
-----------------------------------------------
Chris Crane, President
5487.1
2
Exhibit 2.2.1(2)
ASSIGNMENT OF REAL PROPERTY LEASE
FOR VALUABLE CONSIDERATION receipt of which is hereby acknowledged, the
undersigned The Land Sales Resource, an Illinois corporation ("Assignor") hereby
assigns all of its right, title and interest under that certain Lease dated
____________________, 199_, by and between Assignor, as Lessee, and
________________________________________, as Lessor, for the office space
located at 622 Executive Drive, Willowbrook, Illinois 60521 (the "Lease")
including all of the undersigned's right, title and interest in and to any
prepaid rent or security deposit with respect to the Lease, and delegates all of
its duties under the Lease, to COMPS InfoSystems, Inc., a Delaware corporation
("Assignee").
Dated this _____ day of ____________________, 1995.
The Land Sales Resource
By
-----------------------------------------------
Kitty Layne, President
ACCEPTANCE OF ASSIGNMENT
Assignee hereby accepts the assignment, transfer and conveyance of
Assignor's interest under the Lease and further assumes and agrees to make all
payments which become due from, and to perform all covenants, conditions,
responsibilities, duties, liabilities and obligations which are to be performed
by Assignor pursuant to the Lease effective as of the Closing of the Asset
Purchase Agreement.
Dated this _____ day of ____________________, 1995.
COMPS InfoSystems, Inc.
By
-----------------------------------------------
Chris Crane, President
1
Exhibit 2.2.1(2)
CONSENT TO ASSIGNMENT
The undersigned, _______________________________________, hereby consents
to the assignment of Assignor's interest under the Lease to COMPS InfoSystems,
Inc., a Delaware corporation. The undersigned does not hereby waive any of its
rights under the Lease, and all of the terms, conditions, provisions and
covenants of the Lease shall remain and continue in full force and effect.
Dated this _____ day of ____________________, 1995.
--------------------------------------------
5485.1
2
Exhibit 2.2.1(3)
ASSIGNMENT OF EQUIPMENT LEASE
FOR VALUE CONSIDERATION receipt of which is hereby acknowledged, the
undersigned The Land Sales Resource, an Illinois corporation ("Assignor")
hereby assigns all of its rights, title and interest under that certain
Equipment Lease dated ____________________, 199_, by and between Assignor, as
Lessee, and ________________________ as Lessor, for the equipment described on
Exhibit A thereto (the "Lease"), including all of Assignor's rights, title and
interest in and to any prepaid rent or security deposit with respect to the
Equipment Lease, and delegate all of its duties under the Equipment Lease, to
COMPS InfoSystems, Inc., a Delaware corporation ("Assignee").
Dated this _____ day of ____________________, 1995.
The Land Sales Resource
By
-----------------------------------------------
Kitty Layne, President
ACCEPTANCE OF ASSIGNMENT
Assignee hereby accepts the assignment, transfer and conveyance of
Assignor's interest under the Equipment Lease and further assumes and agrees to
make all payments which become due from, and to perform all covenants,
conditions, responsibilities, duties, liabilities and obligations which are to
be performed by assignor pursuant to the Equipment Lease effective as of the
Closing of the Asset Purchase Agreement.
Dated this _____ day of ____________________, 1995.
COMPS InfoSystems, Inc.
By
-----------------------------------------------
Chris Crane, President
1
Exhibit 2.2.1(3)
CONSENT TO ASSIGNMENT
The undersigned, ________________________________________ hereby consents
to the assignment of Assignor's interest under the Equipment Lease to COMPS
InfoSystems, Inc. The undersigned does not hereby waive any of its rights under
the Equipment Lease, and all of the terms conditions, provisions and covenants
of the Equipment Lease shall remain and continue in full force and effect.
Dated this _____ day of ____________________, 1995.
----------------------------------------
5484.1
2
Exhibit 8
COVENANT NOT TO COMPETE
This COVENANT NOT TO COMPETE ("Covenant") is made and effective on July 31,
1995 by and between COMPS InfoSystems, Inc., a Delaware corporation ("COMPS"),
The Land Sales Resource, an Illinois corporation ("LSR"), and Kitty Layne
("Layne"). LSR and Layne are sometimes collectively referred to as
"Covenantors. This Covenant is made with reference to the following facts:
A. COMPS, Layne and LSR have entered into an Asset Purchase Agreement
dated July 17, 1995 ("Agreement") providing for COMPS to acquire the
assets of LSR.
B. Layne is a shareholder of LSR.
C. COMPS is unwilling to purchase the assets unless Covenantors agree to
provide this Covenant.
NOW, THEREFORE, in consideration of the premises and mutual covenants,
representations and warranties contained herein, the parties agree as follows:
1. NON-COMPETITION. Except as an employee or consultant of COMPS,
Covenantors agree that they will not at any time within the three (3) year
period immediately following the date of this Covenant, directly or indirectly,
in the counties in which LSR is presently doing business, whether or not for
compensation, engage in, or have any interest in any person, firm, corporation,
or business (whether as an employee, officer, director, agent, shareholder,
security holder, creditor, partner, consultant, holder of any beneficial
interest or otherwise) that engages in any activity which is the same as,
similar to, or competitive with any activity now engaged in by COMPS as long as
COMPS, or any transferee of all or substantially all of the assets of COMPS
("Transferee") shall engage in this or similar activity.
2. EMPLOYEES. Covenantors shall not, during the term of this Covenant,
induce any employee of LSR to leave the employ of the LSR.
3. CONSIDERATION. This Covenant is made in consideration of and in
connection with the sale of the assets and good will of LSR as described in the
Agreement.
4. TERM. The term of this Covenant is to be three (3) years from the
date hereof.
5. ASSIGNMENT. No rights under this Covenant shall be assignable nor
duties delegable by either party, except that COMPS may assign and delegate any
of its rights and duties hereunder to a Transferee. Nothing contained in this
Covenant is intended to confer upon any person or entity, other than the parties
hereto, their successors in interest and Transferees, any rights or remedies
under or by reason of this Covenant unless expressly so stated to the contrary.
6. SUCCESSORS AND ASSIGNEES. All covenants, representations, warranties
and agreements of the parties contained herein shall be binding upon and inure
to the benefit of their respective heirs, executors, administrators, personal
representatives, successors and Transferees.
7. UNENFORCEABILITY. It is the intention of the parties hereto that the
provisions of this Covenant shall be enforced to the fullest extent permissible
under all applicable laws and public policies, but that the unenforceability or
the modification to conform with such laws or public policies of any provision
hereof shall not render unenforceable or impair the remainder of the Covenant.
Accordingly, if any provision shall be determined to be invalid or unenforceable
either in whole or in part, this Covenant shall be deemed amended to delete or
modify, as necessary, the invalid or unenforceable provisions to alter the
balance of this Covenant in order to render the same valid and enforceable.
8. INJUNCTIVE RELIEF. Covenantors acknowledge that any breach of this
Covenant will result in irreparable damage to COMPS for which COMPS will not
have an adequate remedy of law. Shareholder further acknowledges that COMPS
shall be entitled to injunctive relief hereunder and the parties hereby consent
to an injunction in favor of COMPS enjoining any breach of any of the foregoing
by any court of competent jurisdiction without prejudice to any other right or
remedy to which COMPS may be entitled.
9. COUNTERPARTS. This Covenant may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
10. ATTORNEYS' FEES. If an action is instituted to enforce any of the
provisions of this Covenant, the prevailing party in such action shall be
entitled to recover from the losing party its or his reasonable attorneys" fees
and costs as set by the court.
11. WAIVER. The waiver by either party of a breach of any provision of
this Covenant shall not operate or be construed as a waiver of any subsequent
breach.
COVENANTORS: COMPS InfoSystems, Inc.
By: /s/ KITTY LAYNE By: /s/ CHRIS CRANE
------------------------------ --------------------------------
Kitty Layne Chris Crane, President
The Land Sales Resource
By: /s/ KITTY LAYNE
------------------------------
Kitty Layne, President
AMENDMENT TO
COVENANT NOT TO COMPETE
This Amendment to Covenant Not to Compete (the "Covenant Not to Compete")
dated as of July 31, 1995 by and among COMPS InfoSystems, Inc., a Delaware
corporation ("COMPS"), Kitty Layne ("Layne") and Land Sales Resource, an
Illinois corporation ("LSR") is entered into and effective as of the 31st day of
March, 1996.
WHEREAS, the COMPS and Layne are also parties to that certain Employment
Agreement dated as of August 1, 1995 (the "Employment Agreement"); and
WHEREAS, in exchange for the amendment of even date herewith of the
Employment Agreement, and in recognition of the value of the business and assets
(including without limitation goodwill) acquired by COMPS from LSR pursuant to
that certain Asset Purchase Agreement dated July 17, 1995 by and among COMPS,
LSR and Layne, and for other good and valuable consideration receipt of which is
hereby acknowledged, COMPS and Employee desire to amend the Employment Agreement
as set forth herein;
NOW THEREFORE, the Covenant Not to Compete is hereby amended as follows:
Sections 3 and 4 of the Covenant Not to Compete is hereby amended and
restated in its entirety as follows:
3. CONSIDERATION. This Covenant is made in consideration of and in
connection with (i) the sale of substantially all the assets and good will
of LSR as described in the Agreement; and (ii) the payment to Layne by
COMPS of the amounts and at the times set forth on Exhibit A hereto.
4. TERM. The term of this Covenant is to run from July 31, 1995 through
the close of business June 30, 1999. Except as set forth herein, the
Covenant Not to Compete remains unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties hereto execute this Amendment, effective as
of the date first above written.
COMPS InfoSystems, Inc.
a Delaware corporation
By: /s/ KITTY LAYNE By: /s/ DALE WALLIS
--------------------------------- ---------------------------------
Kitty Layne
Its: Chief Financial Officer
--------------------------------
EXHIBIT A
Date Payment Due
---- -----------
March 31, 1996 $22,400
December 31, 1996 70,000
December 31, 1997 76,000
December 31, 1998 75,000
2
Schedule 1.1
Asset Purchase Agreement
Between COMPS and LSR
LIST OF ASSETS WITH ESTIMATED VALUES
TO BE TRANSFERRED AT CLOSE
Following is the list of assets to be transferred under The Asset Purchase
Agreement and their estimated fair market values at the date of close. No other
assets are to be transferred as part of this Agreement.
Actual values of these assets will be determined by a balance sheet showing
actual value of these assets at July 31,1995 to be prepared by Roche, Scholz,
Roche, & Walsh, LTD. CPAS.
Cash (to be transferred to new LSR-COMPS bank
account) $ 3,000
Accounts receivable (to be evidenced by a detailed
aged receivable list) 65,000
Prepaid Map Subscriptions 1,000
Security deposits 3,615
Property and equipment (detail fist attached) 8,265
------
Total assets transferred $ 80,880
======
SCHEDULE 1.1.1
ASSETS
------
The complete database of LSR's real estate information in print and electronic
form (database format) . Print and computer formats, including the file used in
conjunction with Q&A to provide data electronically to customers.
Customer list, customer data and customer subscription agreements, including:
. account profile - contact name at the company and payment status of each
account, including amounts currently due and through what date the customer
has paid.
. subscriber profile - name of company/individual who subscribes, the type(s)
of product delivered to customers currently and in the past, the
subscription price and term, and the format in which the subscriber
receives the print and/or electronic data.
. list of customers who have used LSR's call-in service and the level of
sales to such customers in the last 12 months. All customer information
shall include company name, address, phone number and company contact name.
Schedule 1.1.6
Furnit.ofc
OFFICE FURNITURE INVENTORY
--------------------------
ITEM QTY
---- ---
Desks 17
Tables 13
Credenzas 2
Bookcases 4 (large & small)
Printer Stands 2
File Cabinets 18 (large & small)
Chairs 35
1
OFFICE EQUIPMENT INVENTORY
--------------------------
ITEM QTY
---- ---
Fax machines 3
Copiers 2
Typewriters 1
Microfilm Readers 9
Merlin Telephones 13
computers:
file server: DTK 486DX/50 EISA, 32Mb ram, 2.7Gb disk, 20 user NW3.11
fax server: 386SX/16, 4Mb ram, 2 Intel Satisfaxtion 400 int fax boards
print srvr: Printmate dedicated 2P/1S ethernet
MF: Midwest Micro 486DX2/66, 15" SVGA, 40OMb disk, 2x CD player, HP
IIc scanner, Mirror/Syquest 20OMb 5 1/4" removable, USR Sportster
14.4 Fax/Modem, WangDAT 2Gb tape
datafax: (2) Insight 486DX2/66 mono VGA
reception: AGI 386DX/20, 8Mb ram, 28OMb disk
KL: Xinetron 386DX/25 diskless, mono VGA, 5Mb ram, USR Sportster 14.4
JS: Xinetron 386DX/25 diskless, mono VGA, 5Mb ram
SJ: Wang 386DX/20
JL: Compudyne 386SX/16
JB: Compaq Deskpro 286/12
research1: Insight 486DX2/66, 2x CD, mono VGA, USR Sportster 14.4
research2: Krista 486DX2/66, 2x CD, mono VGA
print srvr: XT Turbo clone running IQ Server
digest: Insight 486DX2/66, 15" SVGA, 40OMb disk, 2x CD player
print srvr: AGI 286/12 running IQ Server
*GK: Midwest Micro 486DLC/33 laptop, mono, 12OMb disk, modem
*WH: Midwest Micro 486DX4/100, 15" SVGA, 54OMb disk, 2x CD, 14.4 F/M
*JS: Clone XT Turbo
* Machine is at employee's home.
printers:
HP LaserJet Series II
HP LaserJet III
HP LaserJet 4 MP PS, 6Mb ram
HP DeskJet 1200c, 4Mb ram
Fargo Primera 203dpi thermal wax/dye sub
Oki ML393 24pin, wide carriage dot matrix
Epson LQ850 24pin dot matrix
(2) Panasonic KXP1180 9pin dot matrix
UPS:
(5) Tripp BC250
(1) Tripp BC400
(1) Tripp BC45OLan
(1) Tripp BC75OLan
(3) APC 250VA
(1) APC 400VA
SCHEDULE 1.2
ASSET PURCHASE AGREEMENT
BETWEEN COMPS AND LSR
LIST OF LIABILITIES
TO BE ASSUMED BY COMPS AT CLOSE
Following is the complete list of liabilities to be assumed by COWS under The
Asset Purchase Agreement and their estimated fair market values at the date of
close. No other liabilities are to be assumed as part of this Agreement.
Actual values of these liabilities will be determined by a balance sheet showing
actual value of these assets at July 31,1995 to be prepared by Roche, Scholz,
Roche, & Walsh, LTD. CPAS.
Accounts payable (to be evidenced by a
detailed list of payables) $ 30,370
Payable to LSR for accrued payroll from
July 22 through July 31 6,000
Line of credit to Bank 30,000
--------
Total liabilities to be paid in cash 66,370
Deferred subscription revenues 180,000
--------
Total liabilities transferred $246,370
========
SCHEDULE 1.4
COMIPS INFOSYSTEMS, INC.
THE LAND SALES RESOURCE, INC.
ALLOCATION OF ASSET PURCHASE PIICE
Assets purchased:
Assets from Schedule 1.1
Cash $ 3,000
Accounts receivable 65,000
Prepaid Map Subscriptions 1,000
Security Deposits 3,615
Property and equipment 8,265
Value assigned to intangible asset purchased
Customer lists 440,490
--------
Total value of assets purchased $521,370
========
Purchase price:
Liabilities assumed from Schedule 1.2
Accounts payable $ 30,370
Payable to LSR for accrued payroll 6,000
Line of credit to bank 30,000
Deferred subscription revenues 180,000
Cash paid at purchase 275,000
--------
Total purchase price $521,370
========
NOTE: The above allocation of purchase price is based on the assumed asset
and liability values to be transferred as set forth in Schedules 1.1
and 1. 2. After closing, Land Sales Resource will provide COMPS with
a final July 31, 1995 balance sheet. The values set forth above will
be adjusted to reflect the values on that balance sheet.
After the final adjustments are made, IRS Form 8594 reflecting
allocation values under Internal Revenue Code Section 1060 will be
prepared by COMPS and provided to LSR.