Edens & 900 NationsBank Plaza
Avant Realty, Inc 1901 Main Street
Commercial Real Estate Post Office Box 528
Columbia, SC 29202
(803)779-4420
STATE OF SOUTH CAROLINA )
) LEASE
COUNTY OF RICHLAND )
THIS AGREEMENT, made this 7th day of August 1998, by and between Perry
Company of Columbia, Inc., hereinafter called "Landlord," and AirGate Wireless,
LLC, hereinafter called "Tenant."
WITNESSETH
In consideration of the covenants and agreement of the respective parties
herein contained, the parties hereto, for themselves, their heirs, successors,
distributees, executors, administrators, legal representatives and permitted
assigns, do hereby agree as follows:
A. Deemed Premises:
Landlord by these presents does hereby demise and let unto Tenant, and
Tenant leases and hires from Landlord all those certain premises, together with
the buildings and other improvements thereon, for the term and upon the rental
and the covenant and agreements of the respective parties herein set forth. Said
premises are situate, lying and being in the State of South Carolina, County of
Richland City of Columbia located at 411 Huger Street and more fully described
as appropriately 1.47 acres of land together with improvements thereon said
improvements consisting of a warehouse distribution facility containing the
following types and sizes, more or less:
Corporate offices/Sales-Showroom 11,174 square feet
Warehouse 13,475 square feet
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Total 24,649 square feet
B. Term and Delivery of Premises:
TO HAVE AND TO HOLD said premises unto Tenant for a term of Ten (10) years,
beginning on the 1st day of September 1998, and ending on the 31st day of August
2008.
C. Covenants and Conditions of Lease:
This Lease is made on the following covenants and conditions which are
expressly agreed to by Landlord and Tenant:
1. Rent: Tenant covenants to pay as rental to Landlord the annual sum of
See Rent Schedule, Page 6, Paragraph 29(b) Dollars and sum to be in lawful money
of the United States, payable in equal monthly installments of --- Dollars. Said
rental shall be payable monthly in advance at the offices of Edens & Avant
Realty, Inc. Agents for Landlord. Rent is due on the first day of each month and
shall not be withheld for any reason whatsoever.
In the event Tenant shall fail to pay each rental on the due date, a late
charge of two (2%) percent of the monthly rental, compounded monthly but a
minimum of ten ($10.00) dollars per month, shall be added to the rental and paid
to Landlord for each such late payment, and the same shall be treated as
additional rent.
2. Authorized Use: Tenant agrees not to abandon or vacate the demised
premises and shall use the demised premises for the following purpose, and for
no other purpose whatsoever, without the written consent of Landlord first had
and obtained: operation and storage of electronic telecommunication equipment.
3. Condition of the Premises: Tenant has inspected and accepts the
leased premises in the same condition they are in at the time of commencement of
the term of this Lease. Tenant agrees if, during said term, Tenant shall change
the usual method of conducting Tenant's business on the leased premises, or
should Tenant install thereon or therein any new facilities, Tenant will, at the
cost and expense of Tenant, make alterations or improvements in or to the
demised premises which may be required by reason of any Federal or State Law, or
by any municipal ordinance, or regulation applicable thereto.
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4. Repair and Care of Building by Tenant: Tenant shall, throughout the
initial term of this lease and any renewals thereof, at its own expense,
maintain in good order and repair the leased premises, including the building
and other improvements located thereon. Such repairs by Tenant shall include as
applicable but not limited to, repairs and replacements to electrical plumbing
systems and fixtures, air-conditioning and heating systems, loading doors, paved
parking areas and drives, mowing of grass and care of shrubs, the roof,
foundations, exterior walls or any portion of the premises in which neglect
would contribute to an unmatured depreciation of the premises. Tenant shall at
its expense contract with a reputable firm for periodic servicing of the
heating, air-conditioning and ventilation systems as recommended by the
manufacturer of such equipment and shall keep on file with Landlord or its agent
a copy of said contract or other substantial proof of such servicing. Tenant
shall be responsible for all repairs and replacements to heating and
air-conditioning equipment. Tenant shall also maintain pest control (including
termite) inspection and treatment of the premises as required. Tenant agrees to
return said premises to Landlord at the expiration or prior termination of this
lease in as good condition and repair as when received, natural wear and tear,
damage by storm, fire, lightning, or other natural casualty excepted.
5. Landlord's Right to Inspect: Landlord gives Tenant exclusive control
of the premises and shall be under no obligation to repair, replace or maintain
the premises or any part thereof, but reserves the right to inspect the premises
during reasonable business hours and may subsequently require Tenant, by written
notice, to make any such repairs necessary, and in a good workmanship like
manner, for proper and reasonable upkeep of the premises as agreed in Paragraph
4 of this Lease. If said required work is not completed within thirty (30) days
of said notice, Landlord may contract with any firm of his choice and have said
work completed, the cost of which will be considered as additional rent and will
be billed to Tenant and payable immediately.
6. Alteration of Buildings and Installation of Fixtures and Other
Appurtenances: Tenant may, with consent of Landlord, but at its own cost and
expense in a good, workmanlike manner, make such alterations and repairs in the
building as Tenant may require for the conduct of its business without, however,
materially altering the basic character of the building or improvements, or
weakening any structure on the demised premises. Tenant shall have the right,
without the permission of Landlord, to erect or remove, at Tenant's sole cost
and expense, such temporary partitions, including office partitions, as may be
necessary to facilitate the handling of Tenant's business and to install
electrical fixtures, additional lights and wiring as necessary to conduct
Tenant's business. Any alterations or improvements to the leased premises,
including but not limited to partitions, all electrical fixtures, lights and
wiring, shall at the option of Landlord, become the property of Landlord, at the
expiration or sooner termination of this Lease. Should Landlord request Tenant
to remove all or any part of the above mentioned items, Tenant shall do so prior
to the expiration of this Lease and repair the premises as described below.
Temporary shelves, bins and machinery installed by Tenant as well as all
telecommunications equipment and any related ancillary equipment installed by
tenant shall remain property of Tenant any may be removed by Tenant at any time;
provided, however, that all covenants, including rent, due hereunder to Landlord
shall have complied with and paid. At the expiration or sooner termination of
this Lease, or any extension thereof, Tenant shall remove said shelves, bins and
machinery, as well as all other herein named telecommunications and ancillary
equipment and repair, in good and workmanlike manner, all damage done to the
leased premises by such removal. Tenant shall not exercise the right and
privilege granted by this Article 6 in such manner as to damage or affect the
structural qualities of the building. Before any work is begun, Tenant agrees to
furnish Landlord with hold harmless agreements from all contractors protecting
against mechanics liens.
7. Payment of Taxes and Other Assessments; Landlord shall pay annually
all real estate taxes on the demised premises. However, Tenant shall upon
demand, reimburse Landlord for all taxes and other assessments assessed or
levied against the premises. Such payment shall be made by Tenant to landlord
not later than ten (10) days following the date on which Landlord provides
Tenant with written evidence of such taxes or assessments. If the final year of
the Lease term fails to coincide with the tax year, than any tax during which
the term ends shall be reduced by the pro rata part of such tax beyond the
Lease term. Additionally, if the lease year begins in the middle of a tax year
or some portion thereof, then taxes will be pro-rated accordingly. For the
purpose of this convenant, it is agreed that the premises hereunder contains
24.649 square feet and the total area contains 24.649 square feet.
- -------- --------
Tenant's Pro Rata Share is 100 %.
-------
In the event that any documentary stamp tax, or tax levied on the rental,
leasing or letting of the premises whether local, state or federal is required
to be paid to the execution hereof, the cost thereof shall be borne by the
Tenant.
8. Condemnation: In the event any part of the premises shall be taken or
condemned at any time during the term hereof through the exercise of power of
eminent domain, with or without litigation, and Tenant shall determine that the
remaining portion of premises are not reasonably suitable for its use and
occupation, Tenant may, be giving written notice to Landlord within sixty (60)
days after the date of such taking or condemnation, terminate this Lease as of a
date to be set forth in said notice) not earlier than thirty (30) days after the
date of the notice, and Landlord shall refund any unearned rent paid in advance
by Tenant. If the Tenant does not terminate this Lease as provided above, this
Lease shall continue in force as to the remaining portion of the demised
premises and in such event the monthly rental thereafter payable by Tenant
hereunder shall be adjusted and pro-rated in the exact ratio which the value of
the premises remaining after such taking or condemnation bears to the value of
the premises immediately preceding the taking or condemnation, and Landlord
shall, at its own expense, make any repairs or alterations to said premises
which may be necessary to restore the premises, in so far as possible, to their
condition prior to the taking or condemnation.
In the event any part of the premises shall be taken or condemned at any
time during the term hereof through the exercise of power of eminent domain,
with or without litigation, and the remainder of the premises shall not, in the
option of Landlord, constitute any economically feasible operating unit,
Landlord may, by giving notice to Tenant within sixty (60) days after the date
of such taking or condemnation terminate this Lease as of a date (to be set
forth in said notice) not earlier than thirty (30) days after the date of the
notice; rent shall be apportioned as of the termination date.
In the event of the taking or condemnation of all or any portion of the
premises and if the Landlord and/or Tenant
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terminates the Lease as provided above, Landlord and Tenant shall together
pursue the claim against the condemning or taking authority for the value of the
property taken or condemnation and Tenant shall receive from the condemnation
award the value of his improvements. If any, so taken; Tenant shall receive no
other part of the condemnation award. If the Lease is not terminated, Landlord
shall receive the entire aware in the condemnation proceeding.
9. Erection and Removal of Signs: Tenant may place suitable signs on the
leased premises for the purpose of indicating the nature of the business carried
on by Tenant in said premises; provided, however, that such signs shall be in
keeping with other signs in the district where the leased premises are located;
and provided, further that the location prior to their erection shall be
approved in writing by landlord, and shall not damage the leased premises in any
manner. At the termination of this Lease, Landlord may require that Tenant
remove his sign, and any damage to the premises caused by removal shall be
promptly repaired by Tenant.
10. Glass Breakage and Vandalism: Tenant agrees to immediately replace
broken or damaged glass with glass of comparable quality and characteristics
which meets appropriate agency building code requirements, excepting breakage
covered under Landlord's normal fire and extended coverage insurance policy.
Tenant shall make any repairs or replacements caused by vandalism to the
premises or any part thereof, if said damage is not covered by Landlord's
insurance.
11. Right of Entry by Landlord: Sixty (60) days prior to the expiration
of this Lease, Landlord may post suitable notice on the demised premises that
the same are "For Rent" and may show the premises to prospective tenants at
reasonable times. Landlord may not, however, thereby unnecessarily interfere
with the use of demised premises by Tenant.
12. Payment of Utilities: Tenant shall contract for and pay all charges
for sewerage, water, gas, electricity, and other public utilities used on the
leased premises, including all replacements of light bulbs, tubes, ballasts and
starters. Landlord may pay any delinquent bills incurred by Tenant during the
lease term which bills may create a lien on the demised premises and shall upon
demand be immediately reimbursed by Tenant. Said payments shall be treated as
additional rental even though the lease term may have expired.
13. Assignment and Subletting: Neither this Lease nor any interest herein
may be assigned by Tenant voluntarily or involuntarily, by operation of law, and
neither all nor any part of the leased premises shall be sublet by Tenant
without the written consent of Landlord first had and obtained; however,
Landlord agrees not to withhold its consent unreasonably for Tenant to sublet
the demised premises. Additionally, Tenant shall have the specific right to
assign this lease to SprintCom, Inc., its successors, affiliates and related
parties with prior written Landlord consent such consent not to be unreasonably
withheld.
14. Insurance:
a. Tenant agrees to keep the premises fully insured (appraised
value) against all perils covered under a normal fire and extended coverage
insurance policy including loss of rents; and will name Landlord as additional
insured under Tenant's policy.
b. If the demised premises or any part thereof shall be damaged or
destroyed by fire or other casualty, Landlord shall promptly repair all such
damage and restore the demised premises without expense to Tenant, subject to
delays due to adjustment of insurance claims, strikes and other causes beyond
Landlord's control. If such damage or destruction shall render the premises
untenantable in whole or in part, the rent shall be abated wholly or
proportionately as the case may be until the damage shall be repaired and the
premises restored. If the damage or destruction shall be so extensive as to
require the substantial rebuilding (i.e., expenditure of fifty (50%) percent or
more of the replacement cost) of the building or buildings on the demised
premises, Landlord or Tenant may elect to terminate this Lease by written notice
to the other given within thirty (30) days after the occurrence of such damage
or destruction.
c. Landlord and Tenant hereby release each other from liability for
loss or damage occurring on or to the leased premises or the premises of which
they are a part or to the contents of either thereof, caused by fire or other
hazards ordinarily covered by fire and extended coverage insurance policies and
each waives all rights of recovery against the other for such loss or damage.
Willful misconduct lawfully attributable to either party, whether in whole or in
part a contributing cause of the casualty giving rise to the loss or damage,
shall not be excused under the foregoing release. However, all of the foregoing
notwithstanding nothing shall constitute a waiver by a landlord or tenant as to
any rights of subrogation by any insurer.
d. Tenant agrees to indemnify and hold Landlord harmless of and
from any and all claims of any kind or nature arising from Tenant's use of the
demised premises during the term hereof, and Tenant hereby waives all claims
against Landlord for damage to goods wares or merchandise or for injury to
persons in and upon the premises from any cause whatsoever, except such as might
result from the negligence of Landlord or Landlord's representatives or from
failure of Landlord to perform its obligation hereunder within a reasonable time
after notice in writing by Tenant requiring such performance by Landlord. Tenant
shall at all times during the term hereof keep in effect in responsible
companies liability insurance in the names of and for the benefit of Tenant and
Landlord with limits as follows:
Bodily Injury ____________________ $1,000,000 Single Limit
Property Damage __________________ $150,000
and shall provide Landlord with all applicable policies or certified copies
thereof.
e. Tenant will not permit said demised premises to be used for any
purpose which would render the insurance thereon void or cause cancellation
thereof. Tenant will not keep, use or sell, or allow to be kept, used or sold in
or about the leased premises, any article or material which is prohibited by law
or by standard fire insurance policies of the kind customarily
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in force with respect to premises of the same general type as those covered by
this Lease.
Such insurance may, at Tenant's election, be carried under any
general blanket coverage of Tenant. A renewal policy shall be procured not less
than ten (10) days prior to the expiration of any policy. Each original policy
or a certified copy thereof, or a satisfactory certificate or the insurer
evidencing insurance carried with proof of payment of the premium shall be
deposited with Landlord. Tenant shall have the right to settle and adjust all
liability claims and all claims against the insuring companies, but without
subjecting Landlord to any liability or obligation.
15. Surrender of Premises: Tenant agrees to deliver all keys and to
surrender the leased premises at the expiration, or sooner termination, of this
Lease, or any extension thereof, broom-clean in the same condition as when said
premises were delivered to Tenant, or as altered, pursuant to the provisions of
this Lease, ordinary wear and tear and damage by the elements excepted, and
Tenant shall remove all of its property. Tenant agrees to pay a reasonable
cleaning charge should it be necessary for Landlord to restore or cause to be
restored the premises to the same condition as when said premises were delivered
to Tenant.
16. Holdover: Should Tenant hold over the leased premises or any part
thereof after the expiration of the term of this Lease, unless otherwise agreed
in writing, such holding over shall constitute a tenancy from month to month
only, and Tenant shall pay as monthly rental the then reasonable value of the
use of and occupation of the leased premises which shall not be less, however,
than the rent to be paid for the last month under this Lease. Tenant agrees to
give Landlord thirty (30) days' prior written notice of intent to vacate
premises.
17. Quiet Enjoyment: If and so long as Tenant pays the rents reserved by
this lease and performs and observes all the covenants and provisions hereof,
Tenant shall quietly enjoy the demised premises, subject, however, to the terms
of this Lease, and Landlord will warrant and defend Tenant in the enjoyment and
peaceful possession of the demised premises throughout the term of this Lease.
18. Waiver of Covenants: It is agreed that the waiving of any of the
covenants of this Lease agreement by either party shall be limited to the
particular instance and shall not be deemed to waive any other breaches of such
covenant or any provision herein contained.
19. Default by Tenant: This Lease is made upon the condition that the
Tenant shall punctually and faithfully perform all of the covenants and
agreements by it is to be performed as herein set forth, and if any of the
following events of default shall occur, to-wit: (a) there be any default on the
part of Tenant in the observance or performance of any of the covenants,
agreements, or conditions of this Lease on the part of Tenant to be kept and
performed, and said default shall continue for a period of fifteen (15) days
after written notice thereof from Landlord to Tenant (unless such default cannot
reasonably be cured within fifteen (15) days and Tenant shall have commenced to
cure said default within said fifteen (15) days and continues diligently to
pursue the curing of the same), or (b) Tenant shall file a petition in
bankruptcy or be adjudicated a bankrupt, or file any petition or answer seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future federal,
state or other statute, law or regulation, or make an assignment for the benefit
of creditors, or (c) any trustee, receiver or liquidator or Tenant or of all or
any substantial part of its properties or of the leased premises shall be
appointed in any action, suit or proceeding by or against Tenant and such
proceeding or action shall not have been dismissed within thirty (30) days after
such appointment, or (d) the leasehold estate hereby created shall be taken on
execution or by other process of law, or (e) Tenant shall admit in writing its
inability to pay its obligations generally as they become due, or (f) Tenant
shall vacate or abandon the leased premises, then and in any of said cases,
Landlord at its option may terminate this lease and re-enter upon the leased
premises and take possession thereof with full right to sue for and collect all
sums or amounts with respect to which Tenant may be in default and accrued up to
the time of such entry, including damages to Landlord by reason of any breach or
default on the part of Tenant, or Landlord may, if it elects to do so, bring
suit for the collection of such rents and damages without entering into
possession of the leased premises or voiding this Lease.
In addition to, but not in limitation of, any of the remedies set forth in
this lease or given to Landlord by law or in equity, Landlord shall also have
the right and option, in the event of any default by Tenant under this lease and
the continuance of such default after the period of notice above provided, to
retake possession of the leased premises from Tenant without process of law, by
summary proceeding or otherwise, and it is agreed that the commencement and
prosecution of any action by Landlord in forcible entry and detainer, ejectment
or otherwise, or any execution of any judgement or decree obtained in any action
to recover possession of the leased premises, shall not be construed as an
election to terminate this lease unless Landlord expressly exercises its option
hereinabove provided to declare the term hereof ended, whether, or not such
entry or re-entry be had or taken under summary proceedings or otherwise, and
shall not be deemed to have absolved or discharged Tenant from any of its
obligations and liabilities for the remainder of the term of this lease, and
Tenant shall, notwithstanding such entry or re-entry, continue to be liable for
the payment of the rents and performance of the other covenants and conditions
hereof and shall pay to Landlord all monthly deficits after any such re-entry in
monthly installments as the amounts of such deficits from time to time are
ascertained and, in the event of any such ouster, Landlord rents or leases the
leased premises to some other person, firm or corporation (whether for a term
greater, less than or equal to the unexpired portion of the term created
hereunder) for an aggregate rent during the portion of such new lease
co-extensive with the term created hereunder which is less than the rent and
other charges which Tenant would pay hereunder for such period, Landlord may
immediately upon the making of such new lease of the creation of such new
tenancy sue for and recover the difference between the aggregate rental provided
for in said new lease for the portion of the term co-extensive with the term
created hereunder and the rent which Tenant would pay hereunder for such period,
together with any expenses to which Landlord may be put for brokerage
commission, placing the leased premises in tenantable conditions or otherwise.
If such new lease or tenancy is made for shorter term than the balance of the
term of this lease, any such action brought by Landlord to collect the deficit
for that period shall not bar Landlord from thereafter suing for any loss
accruing during the balance of the unexpired term of this Lease.
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If Tenant at any time shall fail to pay any taxes, assessments, or liens,
or to make any payment or perform any act required by this Lease to be made or
performed by it, Landlord, without waiving or releasing Tenant from any
obligation or default under this lease, may (but shall be under no obligation
to) at any time thereafter make such payment or perform such act for the account
and at the expense of Tenant. All sums so paid by Landlord and all costs and
expenses so incurred shall accrue interest at the rate of eight percent (8%)
from the date of payment or incurring thereof by Landlord and shall constitute
additional rent payable by Tenant under this lease and shall be paid by Tenant
to Landlord upon demand. All other sums payable by Tenant to Landlord under this
lease, if not paid when due, shall accrue interest at the rate of eight percent
(8%) from their due date until paid, said interest to be so much additional rent
under this lease and shall be paid to Landlord by Tenant upon demand.
All rights and remedies of Landlord herein enumerated shall be cumulative,
and none shall exclude any other remedies allowed at law or in equity.
Tenant agrees to pay a reasonable attorney's fee and all costs if Landlord,
in its sole discretion, employs an attorney to collect any rent, additional
rent, or any other sums payable under this Lease agreement or to enforce any
covenants, agreements, or conditions on the part of the Tenant to be kept and
performed; and Tenant expressly waives all exemptions secured to the Tenant
under the laws of the State of South Carolina or of any other State of the
United States as against the collection of any debt herein or hereby incurred or
secured.
20. Default in Rent, Insolvency of Tenant: If Tenant shall make default
on any payment herein provided for other than rent, and any such default shall
continue for a period of fifteen (15) days or if the leased premises or any part
thereof shall be abandoned or vacated or if Tenant shall be dismissed therefrom
by or under any authority other than Landlord, or if Tenant shall file a
voluntary petition in bankruptcy or if Tenant shall file a petition or institute
any proceedings under any insolvency or Bankruptcy Act or any amendment thereto
hereafter made, seeking to effect its reorganization or a composition with its
creditors or if, in any proceedings based on the insolvency of Tenant or
relating to bankruptcy proceedings, a receiver or trustee shall be appointed for
Tenant or the leased premises or if any proceedings shall be commenced for the
reorganization of Tenant or if the leasehold estate created hereby shall be
taken on execution or by any process of law or if Tenant shall admit in writing
its inability to pay its obligations generally as they become due, then Landlord
may, at its option, terminate this Lease, without notice, and Landlord or
Landlord's agents and servants may immediately, or at any time thereafter,
re-enter the leased premises by force, summary proceedings and otherwise, and
remove all persons and property therein, without being liable to indictment,
prosecution or damage therefor, and Tenant hereby expressly waives the service
of any notice in writing of intention to re-enter said premises. Landlord may,
in addition to any other remedy provided by law or permitted herein, at its
option re-let said premises on behalf of Tenant, applying any moneys collected
first to the payment of expenses of resuming or obtaining permission, and second
to the payment of costs of placing the leased premises in rentable condition,
including leasing commission, and third to the payment of rent due hereunder,
and any other charges due to Landlord. Any surplus remaining thereafter shall be
paid to Tenant and Tenant shall remain liable for any deficiency in rental which
shall be paid upon demand therefor to Landlord.
21. Enforcement: In the event party shall enforce the terms of this Lease
by suit or otherwise, the party at fault shall pay the costs and expenses
incident thereto, including a reasonable attorney's fee.
22. Failure to Perform Covenant: Any failure on the part of either party
to this Lease to perform any obligation hereunder, and any delay in doing any
act required hereby shall be excused if such failure or delay is caused by any
strike, lockout, governmental restriction or any other similar cause beyond the
control of the party so failing to perform, to the extent and for the period
that such continues, save and except that the provisions of this paragraph shall
not excuse a non-payment of rent or other sums due hereunder on its due date.
23. Rights of Successors and Assigns: The covenants and agreements
contained in the within Lease shall apply to, inure to the benefit of, and be
binding upon the parties hereto, their heirs, successors, distributes,
executors, administrators, legal representatives, assigns and upon their
respective successors, in interest, except as expressly otherwise hereinbefore
provided.
24. Liens: Tenant will not permit any lien for moneys owing by Tenant to
remain against the leased premises for a period of more than thirty (30) days
following discovery of the same by Tenant. Should any such lien be filed and not
released or discharged within thirty (30) days after discovery of the same by
Tenant, Landlord may at Landlord's option (but without any obligation to do so)
pay and discharge such lien and may likewise pay and discharge any taxes,
assessments or other charges against the leased premises which Tenant is
obligated hereunder to pay and which may or might become a lien on said
premises. Tenant agrees to repay any sums so paid by Landlord upon demand
therefor, together with interest at the rate of ten (10%) percent per annum from
the date any such payment is made.
25. Construction of Lease: The word "Landlord" is used herein shall refer
to the individual, individuals, partnership or corporation called "Landlord" at
the commencement of this Lease, and the word "Tenant" shall likewise refer to
the individual, individuals, partnership, or corporation called "Tenant". Words
of any gender used in this Lease shall be held to include any other gender, and
words in the singular number shall be held to include the plural when the sense
requires.
26. Paragraph Headings: The paragraph headings as to the contents of
particular paragraphs herein, are inserted only for convenience and are in no
way to be construed as part of such paragraph or as a limitation on the scope of
the particular paragraph to which they refer.
27. Commissions: Landlord acknowledges the service of Edens & Avant
Realty, Inc. and ICON Commercial Interests, L.L.C. as Real Estate Brokers in
this transaction and in the consideration of the effort of said brokers in
obtaining Tenant herein does hereby agree to pay said brokers for services
rendered, commission on the rental of the demised premises
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in accordance with their separate agreement.
28. Notices: It is agreed that the legal address of the parties for all
notices required or permitted to be given hereunder, or for all purposes of
billing, process, correspondence, and any other legal purposes whatsoever, shall
be deemed sufficient, if given by a communication in writing by United States
mail, postage prepaid and certified, and addressed as follows:
To the Landlord at the following address:
Perry Company of Columbia
c/o Mr. Thomas E. McCutchen
Post Office Box 11209
Columbia, South Carolina 29211-1209
To the Tenant at the following address:
AirGate Wireless, LLC
230 Peachtree Street, NW
Suite 1700
Atlanta, GA 30303
29. Additional Provisions: Insofar as the following provisions conflict
with any other provisions of the Lease, the following shall control:
(a) The submission of this document for examination does not
constitute an option or offer to lease space at the Property. This document
shall have no binding effect on the parties unless executed by the Landlord and
the Tenant and a fully executed copy is delivered to the Tenant.
(b) Rent:
Date Monthly Annual
---- ------- ------
9/1/98-8/31/03 $8,216.00 $98,592.00
9/1/03-8/31/08 $10,270.00 $123,240.00
It is anticipated that the actual rent start date will be August 15,
1998, so that the first two week period will be outside the term with rent for
that period pro-rated in the amount of $4,108.00.
(c) Tenant is hereby granted immediate access to the premises for a
period beginning July 1, 1998 through August 14, 1998, to perform certain acts
of due diligence in order to determine suitability of demised premises for
tenant's occupancy. Immediately upon completion of said due diligence, tenant is
to so notify landlord in writing so that lease shall either be voided or come
into full force and effect not later than August 15, 1998.
(d) The provisions of Paragraph 6 notwithstanding, Tenant will be
permitted by Landlord, to make certain interior changes to building required by
tenant's occupancy up to and including construction of an enclosed "peril proof"
area within the building. Tenant expressly agrees to remove or cause to be
removed this specific area as well as the other items specifically designated in
paragraph 6 upon request by landlord at the end of the lease term and such
removal shall be at tenant's sole expense.
(e) Landlord hereby agrees to provide tenant a cosmetic improvement
allowance of $12,000.00 to be paid upon submission of properly approved
contractor invoices.
(f) Landlord hereby grants to Tenant renewal options of two five
year terms each at rental rates to be negotiated not less than 6 months prior to
expiration of the then current term. Rental rates are to be determined by the
then prevailing rates for comparable space in the same market area at that time.
(g) Landlord hereby grants to Tenant a right of first refusal to
purchase the building. However, such right shall not apply in the event of sale
or otherwise transfer to heirs or family members or entities in which family
members have a major interest.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
WITNESSES: LANDLORD: Perry Company of Columbia, Inc.
/s/ K. R. Young BY: /s/ Thomas E. McCutchen
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ITS: Chairman
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TENANT: AirGate Wireless, LLC
/s/ Barry A. Flood By: /s/ L. Chris Blane
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ITS: Manager
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6
CONSENT TO ASSIGNMENT
AND AMENDMENT TO LEASE AGREEMENT
--------------------------------
This Agreement is made this 27th day of April, 1999 by and between the
Perry Company of Columbia, Inc. ("Landlord"), AirGate Wireless, L.L.C. and
AirGate Wireless, Inc.
WHEREAS, Landlord and AirGate Wireless, L.L.C. are parties to that
certain Lease Agreement dated August 7, 1998 that provides for the lease of
property by AirGate Wireless, L.L.C. from the Landlord for a term of ten (10)
years beginning on August 1, 1998 (the "Lease").
WHEREAS, AirGate Wireless, L.L.C. has entered into an agreement with
AirGate Wireless, Inc. pursuant to which AirGate Wireless, Inc. has agreed to
assume from AirGate Wireless, L.L.C. all of AirGate Wireless, L.L.C's
obligations and liabilities arising pursuant to that certain Sprint PCS
Management Agreement between SprintCom, Inc. and AirGate Wireless, L.L.C. that
authorizes AirGate Wireless, L.L.C. to manage a PCS network for SprintPCS
including the Lease.
WHEREAS, AirGate Wireless, L.L.C. has asked the Landlord to consent to
the assignment of the Lease from AirGate Wireless, L.L.C. to AirGate Wireless,
Inc.
NOW, THEREFORE, the parties agree as follows:
1. AirGate Wireless, L.L.C. represents and warrants that it has entered
into an agreement with AirGate Wireless, Inc. pursuant to which AirGate
Wireless, Inc. has assumed from AirGate Wireless, L.L.C. all of AirGate
Wireless, L.L.C's obligations and liabilities arising pursuant to that certain
Sprint PCS Management Agreement between SprintCom, Inc. and AirGate Wireless,
L.L.C. that authorizes AirGate Wireless, L.L.C. to manage a PCS network for
SprintPCS including the Lease.
2. AirGate Wireless, Inc. hereby assumes from AirGate Wireless, L.L.C.
the performance of, and agrees to be bound by, all of the terms, covenants and
conditions of the Lease and assumes all obligations and liabilities thereunder
as if an original party thereto.
3. Landlord, pursuant to Section 13 of the Lease, consents to the
assignment of the Lease from AirGate Wireless, L.L.C. to AirGate Wireless, Inc.
provided AirGate Wireless, L.L.C. shall remain liable for the obligations and
liabilities under the Lease until released by the Landlord.
In Witness Whereof, the parties hereto have executed this Agreement as
of the day and year first above written.
WITNESSES LANDLORD: Perry Company of Columbia, Inc.
[SIGNATURE APPEARS HERE] By: [SIGNATURE APPEARS HERE]
- ---------------------------- --------------------------------------
[SIGNATURE APPEARS HERE] Its: its [XXXXX]
- ---------------------------- -------------------------------------
1
Tenant: AirGate Wireless, Inc.
M. Ahmadi By: Shelley Spencer
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E.Ahmadi Its: Corporate Secretary
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AirGate Wireless, L.L.C.
M.Ahmadi By: Shelley Spencer
---------------- -------------------------------------
E.Ahmadi Its: Corporate Secretary
---------------- -------------------------------------
2