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EXHIBIT 10.9
LEASE
This Lease is made this 29th day of January, 1999 between 56
GRANDVILLE, L.L.C., a Michigan limited liability company, of 20 Monroe, N.W.,
Suite 450, Grand Rapids, Michigan 49503 ("Landlord") and US XCHANGE, L.L.C., a
Michigan limited liability company, of 20 Monroe, N.W., Suite 450, Grand Rapids,
Michigan 49503 ("Tenant").
1. DESCRIPTION OF LEASED PREMISES. Landlord leases to Tenant,
and Tenant leases from Landlord, the building which is located at 56 Grandville
Avenue, S.W., City of Grand Rapids, Kent County, Michigan commonly known as the
Crane Building, as improved (the "Building") containing approximately 65,000
square feet of leaseable space as more particularly described on attached
Exhibit A (the "Leased Premises") for the purposes, for the term, at the rents
and under the terms and conditions set forth in this Lease.
2. USE OF LEASED PREMISES AND COMMON AREAS. Tenant shall
occupy and use the Leased Premises as an office and telecommunications
operations center and for related purposes. Tenant shall comply with all the
health, safety, sanitary, zoning and building laws, codes, ordinances, rules,
and orders of applicable governmental authorities affecting the use,
cleanliness, occupancy, and preservation of the Leased Premises during the term
of this Lease. However, Landlord represents and warrants to Tenant that there
are no building or use restrictions applicable to the Building or the Leased
Premises which would restrict or prevent the use of the Leased Premises as
provided in this Paragraph.
3. TERM OF LEASE. The term of this Lease shall commence on
July 1, 1999, or the date Tenant first takes occupancy of the Leased Premises,
whichever is later (the "Commencement Date"), and shall continue for ten (10)
years thereafter unless sooner terminated as provided in this Lease; provided,
however, that in the event that the Commencement Date is a date other than the
first day of a calendar month, then the initial term shall extend for said
number of years in addition to the remainder of the calendar month in which the
Commencement Date occurs.
Notwithstanding any contrary provision contained in this
Lease, Tenant shall have the unilateral right, after the expiration of the first
five (5) years of the term of this Lease, to terminate this Lease on each
anniversary of the Commencement Date by providing Landlord written notice at
least ninety (90) days prior to the termination date. Upon such termination,
Landlord and Tenant shall have no further obligations to each other by reason of
the provisions of this Lease.
4. RENT. Tenant covenants and agrees to pay Landlord as rent
for the Leased Premises during the term of this Lease as follows:
(a) BASE RENT. Base Rent for the initial five (5)
years of this Lease shall be as set forth on the attached Exhibit B to be agreed
upon by Landlord and Tenant
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prior to the Commencement Date. Base Rent for the sixth and all subsequent years
of this Lease shall be $390,000.00 per year, payable in equal monthly
installments of $32,500.00, subject, however, to adjustment as provided under
Paragraph 4(b) below. The monthly Base Rent described above shall be payable in
advance beginning on the Commencement Date, and continuing on the same day of
each subsequent month throughout the term of this Lease. Notwithstanding the
foregoing, if Ronald H. VanderPol ceases to own, as of any date after the
initial five (5) years of this Lease, at least 51% of the issued and outstanding
membership interests of Tenant (other than due to the occurrence of an Initial
Public Offering), the Base Rent shall automatically be adjusted to equal the
fair market value rate for the Leased Premises as of such date, as determined by
appraisal. The appraisal shall be made by an appraiser selected jointly by
Landlord and Tenant. If the parties are unable to agree upon the selection of an
appraiser, each party shall select an independent appraiser. The two independent
appraisers shall select a third independent appraiser who shall make the
appraisal. The cost of the appraisal shall be borne equally by Landlord and
Tenant.
(b) CPI ADJUSTMENTS. The Base Rent paid by Tenant
shall be adjusted upward, but never downward, effective as of the sixth
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 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 fifth
anniversary of 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. The Base 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, 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) PAYMENT. The monthly installments of rent and all
other sums payable under this Lease by Tenant shall be paid to Landlord at 20
Monroe, N.W., Suite
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450, Grand Rapids, Michigan 49503, or at such other address as Landlord may
direct by written notice.
5. LATE FEE. In the event any rental payment required under
this Lease is not received by Landlord within thirty (30) days after it is due,
a late payment fee equal to five percent (5%) of the late rental payment shall
be immediately due from Tenant to Landlord.
6. TAXES AND SPECIAL ASSESSMENTS. Tenant shall pay and
discharge all real property taxes and special assessments which may be levied
against the Leased Premises or any part of the Building during the term of this
Lease prior to the same becoming subject to interest or penalties. 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.
7. INSURANCE AND INDEMNITY. Tenant shall keep the Building
insured against the 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. 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 and all liabilities, obligations, damages, penalties, costs,
and expenses, including reasonable attorneys fees, paid or incurred by Landlord
and arising from Tenant's use and occupancy of the Leased Premises except such
as either arise from the willful acts or negligence of Landlord, its agents,
employees or contractors or are covered by insurance required to be carried by
Landlord under this Lease. If any action or proceeding is brought against
Landlord by reason of any such claim, Tenant will, upon written notice from
Landlord, at Tenant's expense, resist or defend such action or proceeding by a
counsel approved by Landlord in writing. In addition, Tenant shall, at its cost
and expense, obtain and keep in force during the term of this Lease a policy or
policies of public liability and property damage insurance with an insurance
company and on terms approved by Landlord and with liability coverage of not
less than One Million Dollars ($ 1,000,000) on a combined single limit basis.
Tenant shall furnish Landlord with certificates or other evidence acceptable to
Landlord indicating that such insurance is in effect, showing Landlord as an
additional insured party, and providing that Landlord shall be notified in
writing at least thirty (30) days prior to cancellation of, any material change
in or non-renewal of the policy.
Landlord shall indemnify Tenant against and save Tenant
harmless from any and all liabilities, obligations, damages, penalties, costs,
and expenses, including reasonable attorneys fees, paid or incurred as a result
of the willful acts or negligence of Landlord, its agents, employees or
contractors. If any action or proceeding is brought against Tenant by reason of
any such claim, Landlord will, upon written notice from Tenant, at Landlord's
expense, resist or defend such action or proceeding by a counsel approved by
Tenant in writing.
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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.
8. WAIVER OF SUBROGATION. Each policy of insurance
authorized or required of either party under this Lease shall, to the extent
permitted by the insurer, 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 or employees.
9. UTILITIES. Tenant shall pay all charges for utility
services provided to the Leased Premises.
10. MAINTENANCE AND CONDITION OF LEASED PREMISES;
REPRESENTATION OF LANDLORD. Tenant, at its expense, shall keep the interior of
the Leased Premises in good maintenance, condition, and repair, reasonable wear
and tear excepted. Additionally, all other necessary maintenance, repair and
replacement of structural components and mechanical systems of the Building,
including, without limitation, the roof, walls, floors and foundation, the HVAC,
plumbing and electrical systems, lawn care and landscaping and snow and ice
removal, shall be performed by Tenant at its cost and expense in accordance with
standards typical for other similar buildings. Landlord represents and warrants
that as of the Commencement Date all mechanical systems serving the Leased
Premises, including, without limitation, the HVAC, plumbing and electrical
systems, shall be in good working order and in a good state of maintenance and
repair.
11. 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, which shall not be unreasonably withheld. In the event such consent is
obtained, all such alterations, additions or improvements shall be performed at
the expense of Tenant 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 Building in
connection with any such alteration and any such lien shall be released by
Tenant within thirty (30) days after written notice from Landlord. All
alterations, additions or improvements so made and installed by Tenant may be
removed by Tenant, at Tenant's expense, upon the termination of this Lease
provided Tenant repairs any damage caused by such removal and restores the
Leased Premises to their condition prior to the making of such alteration,
addition or improvement. Landlord's consent shall not be required for any
redecorating of the Leased Premises performed by Tenant, including, without
limitation, painting or installing wall or floor coverings. In addition,
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Landlord specifically consents to any modifications of the Leased Premises and
the Building set forth on the attached Exhibit C.
12. PERFORMANCE BY LANDLORD OR TENANT. 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 incurred by Landlord by reason of such
undertaking shall be due and payable forthwith by Tenant to Landlord as
additional rent under this Lease. However, in the event that Tenant's failure
cannot reasonably be cured within the ten (10) day period, Landlord shall have
no right to perform Tenant's covenant or agreement so long as Tenant commences
such performance during the ten (10) day period and diligently pursues
completion of such performance thereafter.
In the event Landlord fails to perform any of its covenants
and agreements as set forth in this Lease for a period of ten (10) days after
written notice from Tenant (except that no such notice shall be required in
emergency situations), Tenant shall have the option to undertake such
performance for Landlord, and the costs and expenses incurred by Tenant by
reason of such undertaking shall be due and payable forthwith by Landlord to
Tenant, and, if not so paid, may be set off against the rent and other sums due
or to become due under this Lease. However, in the event that Landlord's failure
cannot reasonably be cured within the ten (10) day period, Tenant shall have no
right to perform Landlord's covenant or agreement so long as Landlord commences
such performance during the ten (10) day period and diligently pursues
completion of such performance thereafter.
13. COMPLIANCE WITH PUBLIC AUTHORITY REQUIREMENTS. Landlord
represents and warrants that the Building and Leased Premises, as constructed,
is in compliance with all existing laws, ordinances, orders, rules, regulations
and requirements of all governmental authorities related to the design, safety,
occupancy or use of the Building and Leased Premises, including the Americans
with Disabilities Act and that the use of the Leased Premises as authorized in
this Lease is not contrary to any law, ordinance, order, rule, regulation or
requirement applicable to the Building or the Leased Premises. Tenant covenants
and 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.
14. 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
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petroleum fractions, toxic chemicals, polychlorinated biphenyls, 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 Premises, or which govern or regulate the environmental
effect of any activity currently or previously conducted on the
mortgaged 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 Building except in compliance with all Relevant 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 Building or adjacent property caused by the acts,
omissions, or negligence of Tenant or Tenants 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 Building or adjacent property except in complete compliance with
all Relevant Environmental Laws. Landlord represents and warrants that no
asbestos or other Hazardous Materials have been or will be utilized in the
construction of the Building, except as permitted under Relevant Environmental
Laws in effect as of the time of construction, and that no underground storage
tanks are located under the Building or any property adjacent to the Building.
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 attorneys' fees and costs, arising out of or in
connection with the presence of Hazardous Materials in, on, under, or about the
Leased Premises, the Building or adjacent property upon the date this Lease
commences or introduced in, on, under, or about the Leased Premises, the
Building or 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.
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15. DAMAGE TO LEASED PREMISES. In the event the Leased
Premises and/or the Building are damaged by fire, the elements, or other cause
to such extent that either the Leased Premises are rendered untenantable by
Tenant or more than fifty percent (50%) of the Building is rendered
untenantable, then either party may terminate this Lease upon written notice
given within thirty (30) days of the date the damage occurred and Landlord and
Tenant shall have no further obligations by reason of its provisions. In the
event of such a termination, Base Rent and Additional Rent shall be prorated to
the date of such damage and Tenant shall have not less than thirty (30) days
after delivery of the notice of termination to vacate the Leased Premises. In
the event this Lease is not so terminated, Landlord shall as soon as reasonably
possible rebuild the Building and the Leased Premises to substantially the
condition that existed prior to the damage or in some other manner satisfactory
to Tenant. 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 from the date of the damage to the date of completion.
In the event the Leased Premises and the Building are not
damaged to such extent that the Leased Premises are rendered wholly untenantable
by Tenant or more than fifty percent (50%) of the Building is rendered
untenantable, 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 portions 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 15, 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.
16. 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
or any substantial portion of the Building is so taken or condemned, then either
party shall have the right to terminate this Lease upon written notice to the
other given at least fifteen (15) 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 such date, and
Landlord and Tenant shall have no further obligations by reason of the
provisions of this Lease. In the event that this Lease is not so terminated,
Landlord 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
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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.
In any such condemnation or eminent domain or similar
proceedings the parties shall be entitled to claim and prove their respective
losses and damages as provided by law.
17. DEFAULTS BY TENANT AND REMEDIES OF LANDLORD. In the event
any rent shall not be paid when due and such default continues for ten (10) days
after written notice from Landlord or if Tenant shall fail in the performance of
any of the other covenant or agreement to be performed by Tenant under the
provisions of this Lease and such failure continues for thirty (30) days after
written notice from Landlord, Landlord shall have the option to terminate this
Lease without notice to Tenant, to re-enter into, and again have and enjoy, the
Leased Premises, with or without legal process, and to remove and evict Tenant
and any person holding under Tenant from the Leased Premises, all without
prejudice to any other remedy available to Landlord for the collection of rent
coming due before or after such termination or the recovery of other damages.
However, in the event any failure by Tenant cannot reasonably be cured within
the thirty day period set forth in this Paragraph, Tenant shall not be deemed in
default so long as Tenant commences such cure within the thirty day period and
diligently pursues completion of such cure thereafter.
18. LEASE 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
attorneys' fees.
19. RIGHT OF ACCESS. Tenant agrees to permit Landlord, upon
reasonable prior notice, to inspect or examine the Leased Premises at any
reasonable time in a reasonable manner, 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 necessary for its
preservation 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
abate 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
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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.
20. 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 or Tenant during the continuance of this Lease and any
renewals, or extensions, ordinary wear and tear and damage by fire, the elements
or other casualty 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.
21. 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, 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.
22. AGREEMENT AND SUBLEASE. Except as provided below, Tenant
shall not assign this Lease or sublease all or any part of the Leased Premises
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Until such time as Ronald H. VanderPol ceases to own at
least 51% of the issued and outstanding membership interests of Tenant (other
than due to the occurrence of an Initial Public Offering), Tenant may sublease
all or any part of the Leased Premises without Landlord's consent.
23. SUBORDINATION; NON-DISTURBANCE AGREEMENT. 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 reasonably 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.
Landlord shall provide Tenant with a non-disturbance agreement
from all present and future mortgagees of the Leased Premises which will
expressly recognize Tenant's rights under this Lease and shall permit Tenant's
continued possession of the Leased Premises under this Lease so long as Tenant
is not in default, without any diminution of Tenant's rights, notwithstanding
any action by any such mortgagee to foreclose its mortgage or otherwise pursue
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its rights pursuant to its mortgage. A non-disturbance agreement from all
existing mortgagees shall be provided within thirty (30) days after the
execution of this Lease. In addition, a non-disturbance agreement from each
future mortgagee shall be provided within thirty (30) days after the recording
of the mortgage.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
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30. 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.
31. GOVERNING LAW. This Lease shall be governed by the laws of
the State of Michigan.
32. TENANT IMPROVEMENTS. At the request of Tenant, Landlord
shall install and complete the improvements to the Leased Premises required by
Tenant which are set forth on Exhibit C (the "Tenant Improvements"). All Tenant
Improvements shall be completed by Landlord in a good, workmanlike manner, free
from faults and defects and in accordance with all applicable laws and building
codes and the plans and specifications provided by Tenant. The Tenant
Improvements shall also be completed in accordance with a construction schedule
approved by both parties and by contractors approved by Tenant.
33. 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 be subject to the approval of Landlord, which approval shall not
be unreasonably withheld. All signs approved by Landlord shall be erected at
Tenants 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. Tenant shall have the right to have its business name
included on any sign identifying the Building and in any Building directory in a
manner consistent with other tenants of the Building.
34. LANDLORD DEFAULT. In the event the Landlord defaults under
the terms of this Lease and fails to cure such default within thirty (30) days
after written notice from Tenant, Tenant shall have the right to terminate this
Lease upon ninety (90) days written notice to Landlord given at any time after
the thirty (30) day period but before the default is cured. The rights set forth
in this Paragraph shall be in addition to any other remedies available to
Tenant.
IN WITNESS OF WHICH, Landlord and Tenant have executed this
Lease.
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SIGNED IN THE PRESENCE OF:
56 GRANDVILLE, L.L.C.,
a Michigan limited liability company
/s/ Chris D. Leeves By: Williams Investment Co.,
- -------------------------- a Michigan co-partnership
/s/ Donald Offringa By /s/ R. Thomas Williams
- -------------------------- ---------------------------------
R. Thomas Williams,
Managing Partner
By: RVP Development Corporation,
a Michigan corporation
By /s/ Randall Veltkamp
---------------------------------
Randall Veltkamp, President
LANDLORD
US XCHANGE, L.L.C.,
a Michigan limited liability company
/s/ Ruth Miedema By /s/ Richard Postma
- -------------------------- -----------------------------------------
Richard Postma, Member
/s/ Donald Offringa TENANT
- --------------------------
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13
EXHIBIT A
[Graphical depiction of leased premises.]
14
EXHIBIT B
Base Rent, as described in Section 4(a), for the Leased
Premises during the initial five (5) years of the Lease between 56 Grandville,
L.L.C. and US Xchange, L.L.C. shall be as follows:
- $15,000.00/month ($6.00/s.f. - 3rd and 4th floors)
commencing September 1, 1999
- $81,500.00/month ($15.05/s.f. - 2nd, 3rd and 4th
floors) commencing October 1, 1999
- $86,500.00/month ($15.97/s.f. - all floors) commencing
October 15, 1999
56 GRANDVILLE, L.L.C. (LANDLORD)
Dated: 9-10-99 By /s/ Donald Offringa
---------------------- ------------------------------
US XCHANGE, L.L.C. (TENANT)
Dated: 9-10-99 By /s/ Richard Postma
---------------------- ------------------------------