Exhibit 10.22
LEASE
THIS LEASE is made and executed this 5th day of May, 2000, between XXXXXX
ASSOCIATES I, L.L.C., a Michigan limited liability company, of 0000 Xxxxxxxx
Xx., Xxxxx Xxxxxx, Xxxxxxxx 00000, as "Landlord", and ILLINOIS PCS LLC, an
Illinois limited liability company, of 000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx, 00000 ("Tenant").
1. Leased Premises. Landlord is the owner of the real property located at 4717
Broadmoor, SE, in the City of Kentwood, Kent County, Michigan and more
particularly described on attached Exhibit A (the "Property") on which Landlord
has constructed a single story building (containing approximately 00,000 xxxxxx
xxxx xx xxxxx xxxx) (the "Building") and other related improvements (the
"Improvements"). Landlord LETS AND LEASES to Tenant, and Tenant HIRES AND LEASES
from Landlord, that portion of the Building, containing approximately 5,100
square feet of floor area, more particularly described on attached Exhibit B
(the "Leased Premises"), at the rents and under the terms and conditions set
forth in this Lease.
2. Purpose of Occupancy. Tenant shall occupy and use the Leased Premises for
office and warehousing purposes in connection with its telecommunications
business and for any related purpose, but for no other purpose without the
written consent of Landlord, which consent shall not be unreasonably withheld.
The Leased Premises shall not be used for any purpose which would violate any
law, ordinance, rule or regulation applicable to the Building, nor in any way to
create any nuisance or trespass, nor in any way to violate the terms of a
standard form policy of insurance or increase the rate of insurance under any
such policy of insurance on the Building or the Leased Premises.
3. Term of Lease; Renewal Term. The term of this Lease shall commence on May 15,
2000, and shall continue for ten (10) years thereafter unless sooner terminated
as provided in this Lease. Tenant's taking possession of the Leased Premises
shall constitute Tenant's acceptance of the Leased Premises in their "as is"
condition, subject only to the other terms and conditions of this Lease. At the
request of Landlord, Tenant shall execute and deliver to Landlord the Acceptance
of Premises form attached to this Lease as Exhibit D.
Provided Tenant is not then in default in the performance of any of its
covenants and agreements under this Lease, Tenant may renew this Lease for two
(2) additional five (5) year terms, upon the same terms and conditions as
provided in this Lease except as to rent which shall be adjusted as provided in
Paragraph 4, below. In order to exercise such renewal rights, Tenant shall serve
Landlord with written notice of Tenant's election to renew not less than six (6)
months prior to the end of the term of this Lease or each renewal term, as the
case may be.
4. Rent. Tenant covenants and agrees to pay Landlord as rent for the lease
premises during the term of this Lease and any ---- renewal term as follows:
(a) Base Rent. As Base Rent, Tenant shall pay an amount equal to Thirty Five
Thousand Seven Hundred Sixty and 00/Dollars ($35,760.00) per year, payable
in equal monthly installments of Two Thousand Nine Hundred Eighty
00/Dollars ($2,980), subject, however, to adjustment as provided under
Paragraph 4(b), below. Base Rent shall be paid in advance on the first day
of each month during the term and any renewal term of this Lease; provided,
however, that Base Rent for the first full month of the term of this Lease
shall be paid upon the execution of this Lease. Moreover, in the event the
Commencement Date is any day other than the first day of a month, Tenant
shall pay to Landlord on the Commencement Date a prorated portion of the
monthly Base Rent for the period from the Commencement Date to the first
day of the following month.
(b) CPI Adjustments. The Rent paid by Tenant shall be adjusted upward, but
never downward, effective as of the first ---------------- anniversary of
the Commencement Date (or the first day of the thirteenth month after the
Commencement Date in the event the Commencement Date is a date other than
the first day of a calendar month) and on the same day of each year
thereafter during the term and any renewal term of this Lease to reflect
the increase, if any, in the Consumer Price Index (All Cities, All Urban
Consumers, All Items, 1982-1984=100) (subsequently referred to as "CPI-U")
or its successor Consumer Price Index, as published by the United States
Bureau of Labor Statistics. This adjustment shall be computed by adding to
the Base Rent an amount determined as follows: (i) the CPI-U index number
for second month preceding the Commencement Date ("Initial Index Number")
shall be subtracted from the CPI-U index number for the second month
immediately preceding the effective date of increase; (ii) the resulting
amount shall be divided by the Initial Index Number and reduced to a
decimal equivalent; (iii) the resulting decimal shall be multiplied by the
Base Rent. In no event, however, shall the Rent increase by more than four
percent (4%) per year on a cumulative basis. The Rent, as adjusted, shall
be paid in equal monthly installments as provided in Paragraph 4(a), above.
If the CPI-U is changed so that the base year differs from that used for
the Initial Index Number, the CPI-U shall be converted in accordance with
the conversion factor published by the United States Department of Labor,
Bureau of Labor Statistics. If the CPI-U is discontinued or revised during
the term of this Lease or any renewal term, such other government index or
computation with which it is replaced shall be used in order to obtain
substantially the same results as would be obtained if the CPI-U had not
been discontinued or revised.
(c) Landlord Improvement Rent. In addition to Rent, Tenant shall pay to
Landlord as Landlord Improvement Rent an amount determined as follows: The
amount by which the total cost to Landlord for all Landlord Improvements to
the Leased Premises exceeds $__________ shall be amortized on a monthly
basis over the initial ten (10) year term of the Lease at the rate of
__________ percent (__) per annum and paid monthly on the first day of each
month during the initial term of this Lease.
(d) Payment. The monthly installments of rent and all other sums payable under
this Lease by Tenant shall be paid to Landlord at Landlord's address set
forth above, or at such other address as Landlord may direct by written
notice, without setoff, counter claim, recoupment, abatement, suspension or
deduction.
5. Taxes and Special Assessments. Landlord shall pay and discharge all real
property taxes and special assessments which may be levied against all or any
portion of the Property, Building and Improvements during the term of this
Lease. Tenant shall pay and discharge all personal property taxes which may be
levied against its furniture, equipment and other personal property located on
the Leased Premises.
6. Insurance and Indemnity. Landlord shall keep the Property, Building and
Improvements insured against the following: -----------------------
(a) loss or damage by fire and those risks covered by "extended coverage" as
provided in a Michigan standard fire insurance policy in the amount of the
full replacement cost of the Building and Improvements.
(b) public liability and property damage insurance with coverage of at least
One Million Dollars ($1,000,000.00) on a combined single limit basis.
All such policies of insurance shall be payable to Landlord or as Landlord
specifies. Tenant shall indemnify Landlord against and save Landlord
harmless from any liability or claim for damages which may be asserted
against Landlord by reason of any accident or casualty occurring in, on or
about the Leased Premises or otherwise arising from Tenant's use and
occupancy of the Leased Premises except such as arise from the negligence
of Landlord, its agents or employees.
Tenant, at its expense, shall keep all of its furnishings, equipment and
other personal property located on the Leased Premises fully insured
against loss or damage by fire and those risks covered by "extended
coverage" as provided in a Michigan standard fire insurance policy. Such
policy of insurance shall be payable to Tenant or as Tenant specifies.
Tenant hereby releases Landlord from any and all liability for any damage
to or loss of such personal property from any cause whatsoever except to
the extent such loss or damage is the result of the negligence of Landlord,
its agents or employees and is not otherwise covered by insurance required
to be carried by Tenant under this Lease.
7. Waiver of Subrogation. Each policy of insurance authorized or required of
either party under this Lease shall contain a clause or endorsement under which
the insurer waives all right of subrogation against the other party, its agents
and employees with respect to losses payable under such policy, and each party
hereby waives all right of recovery it might otherwise have against the other
party, its agents and employees for any loss or injury which is covered by such
a policy of insurance, notwithstanding that such loss or injury may result from
the negligence or fault of such other party, its agents and employees.
8. Utilities. Tenant shall pay all charges for utility services provided to the
Leased Premises, which are separately metered. Landlord shall pay all charges
for all other utility services necessary for the reasonable use and operation of
the Leased Premises and the Building and Improvements. Landlord shall not be
liable in damages or otherwise for any interruptions or failure in the supply of
any utilities or utility service to the Leased Premises except such failure or
interruption which results from the negligence of Landlord, its agents or
employees.
9. Maintenance and Condition of Leased Premises. Tenant, at its expense, shall
keep the interior of the Leased Premises in good maintenance, condition, and
repair, reasonable wear and tear excepted, including, without limitation, the
maintenance, repair and replacement of all HVAC, plumbing and electrical systems
serving the Leased Premises, and perform all other maintenance, repair and
replacement upon the Leased Premises, the Property, Building and Improvements
necessitated by the acts or neglects of Tenant, its agents, employees or
invitees. All other necessary maintenance, repair and replacement of the
structural components of the Property, Building and Improvements, including the
roof, exterior walls and foundation, and the Common Areas (as defined in
Paragraph 16, below) shall be performed by Landlord. Tenant shall promptly
notify Landlord in writing of any defective condition known to it which Landlord
is required to repair or replace and failure to so report such defect shall make
Tenant responsible to Landlord for any additional loss or aggravation of loss
incurred by Landlord by reason of Tenant's failure to notify Landlord.
Tenant shall keep the Leased Premises in a neat and clean condition, shall not
allow refuse to accumulate, and shall conduct its business in such a manner that
the risk of fire to the Leased Premises shall not be increased beyond the hazard
normal and usual for its type of business.
10. Alterations. Tenant shall not make or permit to be made any alterations,
additions or improvements in, upon or to the Leased Premises, or any part of the
Leased Premises, without the prior written consent of Landlord. In the event
such consent is obtained, all such alterations, additions or improvements shall
be performed at the expense of Tenant in a good, workmanlike manner and in
accordance with all applicable laws and building codes and plans and
specifications approved by Landlord. Tenant shall not allow any construction
liens to attach to the Leased Premises or the Property, Building or Improvements
in connection with any such alteration, and the failure of Tenant to have any
such lien released within ten (10) days after written notice from Landlord shall
constitute a default under this Lease. In addition, Tenant shall indemnify,
defend and hold Landlord harmless from any and all costs and expenses incurred
by Landlord in connection with such construction liens, including, without
limitation, attorneys fees and costs of litigation. All alterations, additions
or improvements (except trade fixtures) so made and installed by Tenant shall
become part of the realty, shall become the property of Landlord and shall
remain for the benefit of Landlord at the end of the term or other expiration of
this Lease in as good condition as they were when installed, reasonable wear and
tear excepted; provided, however, that any such alteration, addition or
improvement remaining at the end of the term or other expiration of this Lease,
shall upon demand made by Landlord, be removed by Tenant, at Tenant's expense,
and Tenant shall repair any damage caused by such removal, restoring the Leased
Premises to their condition prior to the making of such alteration, addition or
improvement.
11. Performance by Landlord. In the event Tenant fails to perform any of its
covenants and agreements as set forth in this Lease and such failure continues
for a period of ten (10) days after written notice from Landlord (except that no
such notice shall be required in emergency situations), Landlord shall have the
option to undertake such performance for Tenant, and the costs and expenses
reasonably incurred by Landlord by reason of such undertaking shall be due and
payable forthwith by Tenant to Landlord as additional rent under this Lease.
12. Compliance with Public Authority Requirements. Tenant agrees, at its own
expense, to promptly comply with all requirements of any legally constituted
public authority made necessary by reason of Tenant's occupancy of the Leased
Premises, including, without limitation, the Americans with Disabilities Act.
Landlord shall deliver space as of the Commencement Date in full compliance with
all requirements legally constituted public authority, including without
limitation, the Americans with Disability Act.
13. Hazardous Materials.
(a) Definitions. For purposes of this Lease, the terms "Hazardous Materials"
and "Relevant Environmental Laws" shall be defined as follows:
(i) "Hazardous Materials" shall mean all solids, liquids and gasses,
including but not limited to solid waste, asbestos, crude petroleum
and petroleum fractions, toxic chemicals, polychlorinated biphenyl's,
paint containing lead, volatile organic chemicals, chlorinated organic
compounds, and urea formaldehyde foam insulation, which are governed
or regulated by Relevant Environmental Laws.
(ii) "Relevant Environmental Laws" shall include but not be limited to all
federal, state or local laws, rules, regulations, orders or
determinations established or issued by any judicial, legislative or
executive body, of any governmental or quasi-governmental entity which
govern or regulate the existence, storage, use, disposal, or release
of any solid, liquid or gas on, in or under the Leased Premises, or
which govern or regulate the environmental effect of any activity
currently or previously conducted on the Leased Premises.
(b) Tenant's Obligations; Indemnification. Tenant shall not, nor shall it
permit its employees, business invitees, contractors or subcontractors
(collectively "Tenant's Agents"), to bring upon, keep, store, use, or
dispose of any Hazardous Materials on, in, under, or about the Leased
Premises, the Property, Building or Improvements or any adjacent property,
except for the following: (i) gas, diesel fuel, oil, and other petroleum
products and petroleum by-products which drip in normal amounts from motor
vehicles on parking and maneuvering areas surrounding the Building; (ii)
Hazardous Materials contained within Tenant's products, equipment, or
inventory (including, but not limited to oxygen, hydrogen and hydrochloric
acid) and which do not pose any significant threat of being released into
the environment; or (iii) general office supplies (including, without
limitation, ordinary cleaning chemicals and solutions) used for their
intended purpose and not posing any significant threat of contamination of
the Leased Premises, the Building, the Improvements or any adjacent
property. Tenant shall cause the presence, use, storage, and/or disposal of
any Hazardous Materials on, in, under, or about the Leased Premises, the
Property, Building or Improvements or any adjacent property by Tenant or
Tenant's Agents to be in complete compliance with all applicable laws,
rules, regulations, orders, and the like (the "Environmental Laws"). Tenant
shall defend, indemnify, protect, and hold Landlord harmless from and
against all claims, costs, fines, judgments, and liabilities, including
attorneys' fees and costs, arising out of or in connection with the
presence, storage, use, or disposal of Hazardous Materials in, on, under,
or about the Leased Premises, the Property, Building or Improvements or any
adjacent property caused by the acts, omissions, or negligence of Tenant
and/or Tenant's Agents. Tenant's obligations hereunder shall survive the
termination of this Lease.
(c) Landlord's Obligations; Indemnification. Neither Landlord nor Landlord's
employees, business invitees, agents, contractors, or subcontractors
(collectively "Landlord's Agents") shall bring upon, keep, store, use, or
dispose of any Hazardous Materials in, on, under, or about the Leased
Premises, the Property, Building or Improvements or any adjacent property
except in complete compliance with all Environmental Laws. Landlord shall
indemnify, defend, protect, and hold Tenant and Tenant's Agents harmless
from and against any and all claims, costs, fines, judgments, and
liabilities, including attorney fees and costs, arising out of or in
connection with the presence of Hazardous Materials in, on, under, or about
the Leased Premises, the Property, Building or Improvements or any adjacent
property upon the date this Lease commences or introduced in, on, under, or
about the Leased Premises, the Property, Building or Improvements or any
adjacent property subsequent to commencement of this Lease due to the acts,
omissions, or negligence of Landlord or Landlord's Agents. Landlord's
obligations hereunder shall survive the termination of this Lease.
14. Damage to Leased Premises. In the event the Leased Premises are damaged by
fire, the elements, act of God, or other cause to such extent that they are
rendered untenantable by Tenant, and in the event Landlord elects not to rebuild
the Leased Premises as they existed prior to the damage or in some other manner
satisfactory to Tenant, then Landlord, within thirty (30) days of the date the
damage occurred, shall notify Tenant in writing of such election, and this Lease
shall be canceled as of the date the damage occurred, and Landlord and Tenant
shall have no further obligations by reason of its provisions. In the event
Landlord elects to rebuild the Leased Premises as they existed prior to the
damage or in some other manner satisfactory to Tenant, then Landlord shall
commence such rebuilding within thirty (30) days of the date of such damage and
shall continue and complete such rebuilding as promptly as possible. Upon
completion of such rebuilding, this Lease shall be reinstated in all of its
terms; provided, however, the rent shall xxxxx in full during the period of such
rebuilding.
In the event the Leased Premises are not damaged to such extent that they are
rendered wholly untenantable by Tenant, then Tenant shall continue to occupy
that portion of the Leased Premises which are tenantable, the rent shall xxxxx
proportionately to the portion occupied, and Landlord shall promptly commence
and complete repairs to the portion damaged.
In no event and under no circumstances shall Landlord be liable to Tenant for
any loss occasioned by damage to the Leased Premises, other than for the
abatement of rent as provided in this Paragraph 14, except to the extent of
property damage resulting from the negligence of Landlord, its agents or
employees which is not otherwise covered by insurance required to be carried by
Tenant under this Lease. Under no circumstances shall there be any abatement of
rent under this Paragraph 14 if the damage to the Leased Premises is caused by
the acts or negligence of Tenant, its agents, employees or invitees.
15. Eminent Domain. In the event that the whole of the Leased Premises shall be
taken or condemned for any public or quasipublic use or purpose by any competent
authority in appropriation proceedings or by any right of eminent domain, then
this Lease shall terminate as of the date title vests in the condemnor, all
rents and other payments shall be paid up to that date, and Landlord and Tenant
shall have no further obligations by reason of the provisions of this Lease.
In the event that less than the whole of the Leased Premises is so taken or
condemned, then Landlord shall have the right to terminate this Lease upon
written notice to Tenant given at least thirty (30) days prior to the date title
vests in the condemnor, and this Lease shall terminate as of the date title
vests in the condemnor, all rents and other payments shall be paid up to date,
and Landlord and Tenant shall have no further obligations by reason of the
provisions of this Lease. In the event that Landlord does not elect to so
terminate this Lease, Landlord, to the extent of the condemnation award, shall
repair and restore the portion not affected by the taking so as to constitute
the remaining premises a complete architectural unit. Thereafter, the rent to be
paid by Tenant shall be adjusted proportionately according to the ratio that the
floor area remaining in the Leased Premises bears to the former floor area in
the Leased Premises, and all of the other terms of this Lease shall remain in
full force and effect.
Tenant shall have no interest in any award resulting from any condemnation or
eminent domain or similar proceedings whether such award be for diminution in
value to the leasehold or to the fee of the Leased Premises, except that Tenant
shall be entitled to claim, prove and receive in such proceedings such award as
may be allowed it for loss of business, relocation, and for Tenant's trade
fixtures and personal property which are removable by Tenant at the end of the
term of this Lease, provided such award shall be in addition to the award for
land, buildings and other improvements.
16. Parking and Common Areas. Tenant shall have the right to use the driveways,
walkways and parking areas located adjacent to the Building (collectively
"Common Areas") in common with other occupants of the Building. Landlord
reserves the right in its absolute discretion to modify, change or alter any
Common Area provided such change or alteration does not materially alter the
amount of available parking space or the accessibility of the Leased Premises.
17. Defaults of Tenant. The following occurrences shall be deemed defaults by
Tenant:
(a) Tenant shall fail to pay when due any rent or other sum payable under this
Lease and such failure continues for five (5) days after written notice
from Landlord.
(b) Tenant shall abandon or vacate the Leased Premises before the end of the
term or before the end of any renewal term of this Lease; or Tenant shall
make a general assignment for the benefit of creditors or become bankrupt
or insolvent, or file or have filed against it in any court a petition in
bankruptcy or insolvency or for reorganization or for the appointment of a
receiver or trustee.
(c) Tenant shall be in breach of any other obligation under this Lease, and
such breach shall continue for thirty (30) days after written notice from
Landlord.
18. Remedies of Landlord. In the event of default by Tenant, Landlord shall have
the following rights and remedies in addition to all other rights and remedies
otherwise available to Landlord:
(a) Landlord shall be entitled to immediately accelerate upon written notice to
Tenant the full balance of the rent payable for the remainder of the term,
or renewal term, of this Lease; provided, however, such amount shall be
reduced to present value as of the date of payment based on interest rate
of seven percent (7%) per annum.
(b) Landlord shall have the right to terminate this Lease upon written notice
to Tenant without prejudice to any claim for rents or other sums due or to
become due under this Lease.
(c) Landlord shall have the immediate right of re-entry and may remove all
persons and property from the Leased Premises. Such property may be removed
and stored at the cost of Tenant. Should Landlord elect to re-enter as
herein provided, or should Landlord take possession pursuant to legal
proceedings, Landlord may either terminate this Lease or, from time to
time, without terminating this Lease, relet the Leased Premises or any part
thereof for such term or terms (which may be for a term extending beyond
the term of this Lease) and at such rental or rentals and upon such other
terms and conditions as Landlord, in the exercise of its sole discretion,
deems advisable, with the right to make alterations and repairs to the
Leased Premises. Upon each such reletting, (i) Tenant shall be immediately
liable to pay to Landlord, in addition to any indebtedness other than rent
due hereunder, the cost and expense of such reletting and of any such
alterations and repairs incurred by Landlord, and the amount, if any, by
which the rent reserved in this Lease for the period of the reletting as
accelerated under Subparagraph (a) of this Paragraph, exceeds the amount
agreed to be paid for rent for the Leased Premises by the reletting Tenant;
or (ii) at the option of Landlord, rents received by Landlord from such
reletting shall be applied first, to the payment of any indebtedness other
than rent due hereunder from Tenant to Landlord; second, to the payment of
any costs and expenses of such reletting and of such alterations and
repairs; third, to the payment of rent unpaid hereunder; and the residue,
if any, held by Landlord and applied in payment of future unaccelerated
rent as the same may become due and payable hereunder.
(d) Landlord may immediately xxx to recover from Tenant all damages Landlord
may incur by reason of Tenant's default, including the cost of recovering
the Leased Premises, and including the rent reserved and charged in this
Lease for the remainder of the stated term as accelerated under
Subparagraph (a) of this Paragraph, all of which shall be immediately due
and payable along with attorneys' fees and Landlord shall have no
obligation to relet.
19. Late Charge and Interest for Past Due Payments. All installments of rent
payable to Landlord under this Lease if not paid within five (5) days after they
become due shall be subject to a late charge equal to five percent (5%) of the
installment amount. In addition, any payment rent or other amount due from
Tenant to Landlord which is not made when due under this Lease shall bear
interest at the rate of eleven percent (11%) per annum from the date of
nonpayment to the date of payment.
20. Legal Expenses. In case suit shall be brought by either party to enforce the
provisions of this Lease, the prevailing party in such action shall be entitled
to recover all expenses so incurred, including reasonable attorneys' fees.
21. Right of Access. Tenant agrees to permit Landlord, and Landlord's agents, to
inspect or examine the Leased Premises at any reasonable time in a reasonable
manner, at any time for any emergency reason and to permit Landlord to make such
repairs, decorations, alterations, improvements or additions in the Leased
Premises, as Landlord may deem desirable or necessary or which Tenant has
covenanted in this Lease to do but has failed to do, without the same being
construed as an eviction of Tenant, in whole or in part, by reason of loss or
interruption of the business of Tenant because of the prosecution of such work,
and the rent due under this Lease shall in no way xxxxx while such decorations,
repairs, alterations, improvements or additions are being made. Tenant shall
have the right to accompany Landlord on any such inspections and examinations,
which shall be scheduled to suit the reasonable convenience of both parties.
Landlord shall have the right to enter upon the Leased Premises at any
reasonable time during the term, or any renewal term, of this Lease for the
purpose of exhibiting the leased premise to prospective tenants or purchasers,
provided advance notice is given to Tenant, and provided such exhibitions are
scheduled to suit the reasonable convenience of both parties. For a period
commencing six (6) months prior to the termination of this Lease and any
renewals, Landlord may also place signs in, or upon the Leased Premises to
indicate that the same are for rent, which signs shall not be altered, removed,
obliterated or hidden by Tenant. Signs indicating the Leased Premises are for
sale may be placed on the Leased Premises at any time.
Notwithstanding the foregoing, the parties acknowledge and agree that, because
of the nature of Tenant's business, Landlord shall not have a key to the Leased
Premises and that Landlord shall in all cases, other than emergency situations,
provide Tenant with reasonable prior notice of any exercise by Landlord of
Landlord's access rights under this Paragraph.
22. Surrender of Leased Premises. Tenant covenants and agrees to surrender
possession of the Leased Premises to Landlord upon the expiration of the term of
this Lease or any renewals or extensions of this Lease, or upon earlier
termination of this Lease, in as good condition and repair as the same shall be
at the commencement of the term of this Lease, or as the same may have been put
by Landlord and Tenant during the continuance of this Lease and any renewals, or
extensions, ordinary wear and tear excepted. In addition, Tenant shall remove
all of its property from the Leased Premises and shall repair any damage to the
Leased Premises caused by such removal.
Any personal property of Tenant or of anyone claiming under Tenant which shall
remain on the Leased Premises after the expiration or termination of this Lease
shall be deemed to have been abandoned by Tenant, and either may be removed by
Landlord as its property or may be disposed of in such manner as Landlord may
see fit, and Landlord shall not be in any way responsible for such property.
23. Holding Over. In the event Tenant shall continue to occupy all or any part
of the Leased Premises after the expiration of the term, or any renewal term of
this Lease with the consent of Landlord, such holding over shall be deemed to
constitute a tenancy from month to month, upon the same terms and conditions as
are contained in this Lease, except as to term; provided, however, if such
holding over is without Landlord's written consent, Tenant shall pay to Landlord
as rent for each month, or part of a month, that Tenant remains in possession of
the Leased Premises, one and one-half times the monthly rental rate in effect
immediately prior to the date of termination.
24. Subordination. This Lease is and shall be subject and subordinate to any
mortgage or mortgages now in force, or which shall at any time be placed upon
the Leased Premises or the Building or any part thereof, and to each and every
advance made pursuant to any such mortgage. Tenant agrees that it will upon
demand execute and deliver such instruments as shall be required by any
mortgagee or proposed mortgagee, to confirm or to effect more fully such
subordination of this Lease to the lien of any such mortgage or mortgages, and,
in the event of the failure of Tenant to execute or deliver any such instrument,
Tenant hereby irrevocably nominates and appoints Landlord as Tenant's
attorney-in-fact for the purpose of executing and delivering any such instrument
or instruments of subordination. Tenant's refusal to execute or deliver such
instrument shall also entitle Landlord, its successors and assigns, to elect
that this Lease terminate upon the giving of a written notice as provided for in
Paragraph 17(c).
25. Attornment. In the event any proceedings are brought for the foreclosure of
any mortgage covering the Leased Premises, or in the event of the conveyance by
deed in lieu of foreclosure, or in the event of exercise of the power of sale
under any such mortgage, or in the event of the sale or transfer of the Leased
Premises by Landlord, Tenant hereby attorns to the new owner and covenants and
agrees to execute an instrument in writing reasonably satisfactory to the new
owner whereby Tenant attorns to such successor in interest and recognizes such
successor as Landlord under this Lease.
26. Sale or Transfer by Landlord. If Landlord shall sell or transfer the Leased
Premises, Landlord shall be automatically and entirely released of all covenants
and obligations under this Lease from and after the date of such conveyance or
transfer, provided the purchaser on such sale has assumed and agreed to carry
out all covenants and obligations of Landlord under this Lease.
27. Quiet Enjoyment. On paying the rent and on performing all of the covenants
and agreements on its part to be performed under the provisions of this Lease,
Tenant shall peacefully and quietly have, hold and enjoy the Leased Premises for
the term, and for any renewal term, of this Lease without hindrance by Landlord
or anyone claiming by or through Landlord.
28. Benefit and Obligation. The benefits of this Lease shall accrue to, and the
burdens of this Lease shall be the liabilities of, the heirs, personal
representatives, successors and assigns of Landlord and Tenant.
29. Notices. All notices required under any provision of this Lease shall be
deemed to be properly served if delivered in writing personally, or sent by
registered or certified mail to each party at their address as stated above or
at such other address as each party shall designate in writing delivered to the
other party. All mailed notices shall be effective upon mailing.
30. Waiver. The failure of either party to enforce any covenant or condition of
this Lease shall not be deemed a waiver thereof or of the right of either party
to enforce each and every covenant and condition of this Lease, and no provision
of this Lease shall be deemed to have been waived unless such waiver is in
writing. One or more waivers of any covenant or condition by Landlord or Tenant
shall not be construed as a waiver of a subsequent breach of the same covenant
or condition nor shall the acceptance of rent or other payment by Landlord at
any time when Tenant is in default under any term, covenant or condition of this
Lease constitute a waiver of such default, nor shall any waiver or indulgence
granted by either party be taken as an estoppel against the party granting the
indulgence or waiver.
31. Unenforceability. In the event any covenant, term, provision, obligation,
agreement or condition of this Lease is held to be unenforceable, it is mutually
agreed and understood, by and between the parties hereto, that the other
covenants, terms, provisions, obligations, agreements and conditions herein
contained shall remain in full force and effect.
32. Captions. All headings contained in this Lease are intended for convenience
only and are not to be deemed or taken as a summary of the provisions to which
they pertain or as a construction thereof.
33. Governing Law. This Lease shall be governed by the laws of the State of
Michigan.
34. Landlord Improvements. Prior to the Commencement Date, Landlord shall
complete the Landlord Improvement as shown on attached Exhibit D in accordance
with plans and specifications to be approved by Tenant, which approval shall not
be unreasonably withheld or delayed. In the event Tenant fails to approve of
such plans and specifications within _________ (__) days after the date of this
Lease, Landlord shall have the right to terminate this Lease upon written notice
to Tenant.
35. Additional Covenants of Tenant. Tenant shall not perform or permit any of
the following acts to be performed by Tenant or its agents, employees, or
invitees without the written consent of the Landlord:
(a) Occupy the Leased Premises in any other manner or for any other purpose
than as set forth in this Lease.
(b) Use or operate any machinery that, in Landlord's reasonable opinion, is
harmful to the Building or disturbing to tenants occupying other parts
thereof.
(c) Use or allow to be used on the Leased Premises any article or substance
having an offensive odor, such as, but not limited to ether, naphtha,
phosphorus, benzyl, gasoline, benzene, petroleum or any product thereof,
crude or refined earth or coal oils, flashlight powder, or other
explosives, kerosene, camphene, burning fluid or any dangerous, explosive
or rapidly burning matter or material of any kind.
(d) Use electricity in the Leased Premises in excess of the capacity of any
of the electrical conductors and equipment in or otherwise serving the
demised premises nor connect any additional fixtures, appliances or
equipment other than lamps, typewriters, PC type desktop computers and
similar small offices machines to the Building electric distribution
system or make any alteration of addition to the electric system of the
Leased Premises.
36. Signs. Landlord shall have no obligation to provide any signs for Tenant or
the Leased Premises. All signs placed on the Leased Premises by Tenant shall
conform to the same style, type, size and quality of other signs in or on the
Building and shall be subject to the approval of Landlord, which approval shall
not be unreasonably withheld. All signs approved by Landlord shall be erected at
Tenant's sole cost and expense, and in compliance with all applicable laws,
ordinances, codes and regulations. In addition, all such signs shall be removed
by Tenant upon the termination of this Lease and all damages repaired at
Tenant's cost and expense.
37. Security Deposit. As security for the payment and performance of its
obligations under this Lease, Tenant has deposited with Landlord the sum of
$2,980.00 (the "Deposit"). The Deposit shall be held by Landlord, and, at
Landlord's discretion, applied to the payment of any amount due Landlord from
Tenant which comes due under the terms of this Lease. Any such use of the
Deposit by Landlord shall not serve to cure or waive Tenant's default, and such
default shall not be deemed cured until the full amount of the Deposit has been
restored to Landlord by Tenant. Any unexpended portion of the Deposit shall be
paid over to Tenant within thirty (30) days after the expiration or termination
of this Lease and the performance by Tenant of all of its obligations under this
Lease.
38. Entire Agreement; Amendment. This Lease contains all of the terms and
conditions of the agreement of the parties concerning the Leased Premises. This
Lease may be amended only by a written agreement signed by both Landlord and
Tenant.
39. Successors and Assigns. Upon written notice, Landlord and Tenant shall each
be entitled to assign, sublease or otherwise transfer all or any part of their
interest in this Agreement, the Property, the Parcel and the Easements from time
to time, without the other party's consent. This Agreement shall insure to the
benefit of and be binding upon the heirs, successors and assigns of the parties.
In the event Tenant shall assign this Agreement and shall at any time thereafter
be a tenant or subtenant ("Subtenant") on the Parcel, whether in relation to
Tenant's assignee or any successor thereto, Landlord, and any successors in
interest to Landlord, agree they shall continue to be bound to Tenant as such
Subtenant with respect to any provisions of this Agreement intended to benefit
Tenant's operations of its Tower Facilities and the provisions of Section 41
hereof shall continue to apply with respect to Tenant even as such Subtenant,
and Landlord and any such successor shall provide such written documents and
assurances thereof as Subtenant or its Lenders shall required from time to time.
Location of Tower shall be approved by Landlord and Tower shall be constructed
within the guidelines of the local ordinances. Approval of location shall not be
unreasonably withheld.
40. Waiver of Landlord's Lien.
(a) Landlord waives any lien rights it may have concerning the Tenant's Tower
Facilities which are deemed Tenant's personal property and not fixtures,
and Tenant has the right to remove the same by giving Landlord ten (10)
days written notice of its intent to remove any part of its Tower
Facilities so Landlord may properly coordinate the removal of the Towers.
Tenant shall bring the Tower area back to its original condition with
reasonable wear and tear accepted.
(b) landlord acknowledges that Tenant has entered into a financing arrangements
including promissory notes and financial and security agreements for the
financing of the Tenant's Tower Facilities (the "Collateral) with a third
party financing entity (and may in the future enter into additional
financing arrangements with other financing entities). In connection
therewith, Landlord (i) consents to the installation of the Collateral;
(ii) disclaims any interest in the collateral, as fixtures or otherwise;
and (iii) agrees that the Collateral shall be exempt from execution,
foreclosures, sale, levy, attachment, or distress for any Rent due or to
become due and such Collateral may be removed at any time without recourse
to legal proceedings.
(c) Landlord acknowledges and agrees that, notwithstanding anything to the
contrary contained in this Lease:
Tenant shall be permitted to pledge, mortgage, hypothecate or otherwise
xxxxx x xxxx, security interest or collateral assignment (whether pursuant
to a security agreement, deed or trust, collateral assignment, mortgage or
other instrument) (a "Lien") in and to all right, title and interest of
Tenant in and to this Lease, including, without limitation, the right to
occupy the Parcel pursuant to the terms hereof, to Nortel Networks Inc.
(individually and/or as administrative agent for itself and other lenders)
and its successors and assigns or any refinancing or replacement lender
(hereinafter collectively called "Lenders".) in connection with certain
debt financing to Tenant or to any of its affiliates as security for such
debt financing.
Lender shall be permitted to foreclose upon any such Lien (or accept an
assignment in lieu of foreclosure) and transfer and assign all right, title
and interest of Tenant in and to this Lease pursuant to or subsequent to
such foreclosure and, in the event of any such foreclosure, transfer of
assignment, and provided Lender or its successor-in-interest expressly
assumes in writing and agrees to perform each of Tenant's covenants, duties
and obligations which will arise and accrue from and after the date of such
foreclosure, transfer or assignment, Landlord agrees that it will recognize
Lender or its successor-in-interest as the successor-in-interest to Tenant
under this Lease as if Lender or its successor-in-interest (as applicable)
where Tenant under this Lease.
Within ten (10) business days after written request by Tenant, Landlord
will execute and deliver in favor of Lender an estoppel certificate or
other instrument in form reasonable acceptable to Landlord and such Lender
pursuant to which Landlord will (i) confirm the existence, validity and
binding effect of this Lease, (ii) confirm that Landlord is the owner and
holder of this Lease, (iii) confirm that, to Landlord's current, actual
knowledge, no monetary default and no other default has occurred under the
terms of this Lease (or specifying any defaults which have occurred, which
are continuing and of which Landlord is currently, actually aware), (iv)
agree to provide Lender a copy of any notice of default delivered to Tenant
hereunder, and (v) agree that, prior to any termination of this Lease as a
result of a default of Tenant hereunder, Landlord will provide written
notice of such default to Lender at its principal office in Richardson,
Texas to the attention of Xxxxxxx X. Xxxx and afford Lender a period not
less than 30 days within which to cure such default.
Landlord hereby agrees that all property of Tenant now or hereafter located
on the Parcel shall be and remain personal property of Tenant
notwithstanding the manner in which such property shall be attached of
affixed to the Parcel. Landlord hereby further agrees that, notwithstanding
the order of perfection or priority of any security interest or lien under
applicable law, any security interest or lien for rent or similar charges
or other indebtedness, liabilities or obligations owing to Landlord under
or in connection with the Lease, whether arising by operation of law or
otherwise, whether now existing or hereafter arising, and each and every
right which Landlord now has or hereafter may have, either to levy or
distrain upon any property of Tenant or any interest therein ("Lender's
Collateral") or to claim or assert title to Lender's Collateral, or make
any other claim against Lender's Collateral, whether under the Lease or the
laws of the State in which the Parcel are located or under any deed of
trust, mortgage or other lien document now in effect whether by reason of a
default under the Lease or otherwise, expressly is hereby made and shall be
subject and subordinate inevery respect to any security interest or lien or
other right, title or interest of Lender in Lender's Collateral, no matter
when acquired, and shall further be subject and subordinated to all of the
terms, provisions and conditions of any loan or security document in favor
of Lender. Lender and its agents and legal representatives, without any
liability or accountability whatsoever to Landlord (except for damages, if
any, to the Parcel caused thereby and the obligation to pay rental, both as
provided hereinbelow), (a) may remove any or all of Lender's Collateral
located at the Parcel from the Parcel (i) whenever Lender, in its sole
discretion, believes such removal is necessary to protect Lender's interest
in Lender's Collateral or (ii) whenever Lender shall seek to sell or
foreclose upon Lender's Collateral; and (b) shall have access to the parcel
and Lender's Collateral at all times. Landlord grants to Lender a license
access to the Parcel and Lender's Collateral at all times.
Landlord grants to Lender a license to enter onto the Parcel and consents
and agrees that Lender and/or its representatives or agents may at any time
enter onto the Parcel to inspect Lender's Collateral, to take possession of
Lender's Collateral and to remove any or all of Lender's Collateral from
the parcel or exhibit for sale and/or conduct one or more sales of Lender's
Collateral on the Parcel, and Landlord will not in any manner hinder,
interfere or prevent any of the foregoing. Lender agrees to repair any
damage caused by Lender or its agents or representatives as a direct result
of any such removal of Lender's Collateral from the parcel by Lender or its
agents or representatives. During any possession and occupancy of the
Parcel by Lender, Lender's obligation to Landlord shall include only the
obligation to pay the rental that accrues during such period of possession
and occupancy if and to the extent that Tenant has not paid such rental.
Lender shall have no obligation to cure any defaults of Tenant under the
Lease. If at any time, from time to time, Landlord ever comes into
possession or control of any proceeds of any of Lender's Collateral. Such
proceeds shall be held by Landlord for the benefit of Lender, to the extent
of its interest therein, and the same shall forthwith be paid and delivered
to Lender.
(1) All terms and provision of clause (1), (2), (3), and (4) preceding
shall endure to the benefit of Lender. Landlord shall, upon request by
Tenant, deliver to Lender a subordination agreement executed by
Landlord consistent with clause (4) and otherwise in a form reasonably
acceptable to Lender pursuant to which Landlord subordinates any
security interest or lien held by Landlord in any personal property of
Tenant located on the Parcel to any security interest or lien then
held by Lender.
(2) In the even any other provision of this lease shall be in conflict
with the provisions of the Section 40, the provisions of the Section
shall control.
IN WITNESS OF WHICH, Landlord and Tenant have executed this Lease at Grand
Rapids, Michigan.
WITNESSES:
XXXXXX ASSOCIATES I, L.L.C.,
By:
------------------------------------ --------------------------------------
Its Member
LANDLORD
WITNESSES:
ILLINOIS PCS, LLC,
By:
------------------------------------ --------------------------------------
Its Member
TENANT
EXHIBIT A
Building Floor Plan
EXHIBIT B
Leased Premises Diagram
ADDENDUM
This addendum to be an integral part of the lease between XXXXXX
ASSOCIATES, L.L.C., of 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxx (Lessor) and
ILLINOIS PCS, LLC (Lessee).
Lessor agrees to Lease 0000 Xxxxxxxxx Xxx., Xxxxx X to Tenant as of May 15,
2000, on a ten (10) year basis, subject to Lessor being able to construct the
switch site per Tenant's specification. If Lessor is unable to construct, Tenant
shall have the option to terminate May 15, 2001. All other terms and conditions
to remain the same of lease dated May 5, 2000.
Dated: XXXXXX ASSOCIATES I, L.L.C.
-----------------------------
(Lessor)
By:
--------------------------------
ILLINOIS PCS, LLC
(Tenant)
By:
--------------------------------
LEASE ADDENDUM #3
This addendum is to be an integral part of the lease dated May 5, 2000 and
Addendum dated August 30, 2000 between Xxxxxx Associates, L.L.C., of 0000
Xxxxxxxx Xx., XX, Xxxxx 0, Xxxxx Xxxxxx, XX 00000 (Landlord) and Illinois PCS,
L.L.C., of 000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, XX 00000 (Tenant).
1. Landlord agrees to lease 0000 Xxxxxxxxx XX, Xxxxx X for additional
rent of $5,506.25 per month beginning approximately May 1, 2001.
Tenant agrees to return the space to the original condition if Tenant
vacates, which includes the offices square footage per attached
exhibit.
2. The lease with Ritsba Land Development Company, LLC dated April 5,
2000 for 0000 Xxxxxxxxx, XX (existing engineering group) shall
terminate approximately April 30, 2001 or upon occupancy of Suite G
above. The lease for 0000 Xxxxxxxxx, XX (existing sales office) shall
have the rent set at $3,100 per month beginning May 1, 2001.
3. The lease term for 0000 Xxxxxxxxx Xxx., & 0000 Xxxxxxxxx Xxx., shall
expire April 30, 2011.
All other terms and conditions to remain the same as the lease dated May 5,
2000, April 5, 2000, and signed addendum's.
Dated: April 8, 2001
WITNESSES XXXXXX ASSOCIATES I, L.L.C.
LANDLORD
By:
--------------------------------- -------------------------------
ILLINOIS PCS, L.L.C.
TENANT
By:
--------------------------------- -------------------------------
