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Exhibit 10.22
LEASE
THIS LEASE is made and executed this 5th day of May, 2000,
between BARDEN
ASSOCIATES I, L.L.C., a Michigan limited liability company, of
4380 Brockton
Dr., Grand Rapids, Michigan 49512, as "Landlord", and ILLINOIS
PCS LLC, an
Illinois limited liability company, of 373 Prarie Knoll Drive,
Naperville,
Illinois, 60565 ("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 51,000 square
feet of floor area) (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 abate 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 abate
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 o
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