EXHIBIT 10.5
TEXAS ASSOCIATION OF REALTORS(R)
------------------------------
COMMERCIAL LEASE
USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF
REALTORS(R) IS NOT AUTHORIZED.
(C)TEXAS ASSOCIATION OF REALTORS(R), INC. 2002
TABLE OF CONTENTS
-----------------
NO. PARAGRAPH DESCRIPTION PG.
- --- --------------------- ---
1. Parties 2
2. Leased Premises 2
3. Term 2
A. Term
B. Delay of Occupancy
4. Rent and Expenses 3
A. Base Monthly Rent
B. First Full Month's Rent
C. Prorated Rent
D. Additional Rent
E. Place of Payment
F. Method of Payment
G. Late Charges
H. Returned Checks
5. Security Deposit 4
6. Taxes 4
7. Utilities 4
8. Insurance 5
9. Use and Hours 6
10. Legal Compliance 6
11. Signs 7
12. Access By Landlord 7
13. Move-In Condition 7
14. Move-Out Condition 7
15. Maintenance and Repairs 8
A. Cleaning
B. Conditions Caused by a Party
C. Repair & Maintenance Responsibility
D. Repair Persons
E. HVAC Service Contract
F. Common Areas
G. Notice of Repairs
H. Failure to Repair
16. Alterations 9
17. Liens 9
18. Liability 10
19. Indemnity 10
20. Default 10
21. Abandonment, Interruption of Utilities,
Removal of Property & Lockout 10
TEXAS ASSOCIATION OF REALTORS(R)
--------------------------------
COMMERCIAL LEASE
USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF
REALTORS(R) IS NOT AUTHORIZED.
(C)TEXAS ASSOCIATION OF REALTORS(R), INC. 2002
TABLE OF CONTENTS
-----------------
NO. PARAGRAPH DESCRIPTION PG.
- --- --------------------- ---
22. Holdover 11
23. Landlord's Lien & Security Interest 11
24. Assignment and Subletting 11
25. Relocation 11
26. Subordination 11
27. Estoppel Certificates 12
28. Casuality Loss 12
29. Condemnation 12
30. Attorney's Fees 12
31. Representations 13
32. Brokers 13
33. Addenda 13
34. Notices 14
35. Special Provisions 14
36. Agreement of the Parties 14
ADDENDA & EXHIBITS (CHECK ALL THAT APPLY)
-----------------------------------------
[X] Exhibit A
[ ] Exhibit
[ ] Commercial Lease Addendum for Broker's Fee
[X] Commercial Lease Expense Reimbursement Addendum
[ ] Commercial Lease Addendum for Extension Options
[ ] Commercial Lease Addendum for Percentage Rent
[ ] Commercial Lease Parking Addendum
[ ] Commercial Landlord's Rules and Regulations
[ ] Commercial Lease Guaranty
[ ] Commercial Lease Right of First Refusal Addendum
[ ] Commercial Lease Addendum for Optional Space
[ ] Commercial Leasehold Construction Addendum
[ ] __________________________________________
[ ] __________________________________________
TEXAS ASSOCTATION OF REALTORS(R)
--------------------------------
COMMERCIAL LEASE
USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF
REALTORS(R) IS NOT AUTHORIZED.
(C)TEXAS ASSOCIATION OF REALTORS(R), INC. 2002
1. PARTIES: The parties to this lease are:
Tenant: AIRGATE TECHNOLOGIES, INC. and
Landlord: ARMET BETHANY LIMITED PARTNERSHIP ; and
2. LEASED PREMISES:
A. Landlord leases to Tenant the following described real
property, known as the "leased premises," along with all its
improvements (CHECK ONLY ONE BOX):
[X] (1) MULTIPLE-TENANT PROPERTY: Suite or Unit Number -
containing approximately 11,400 square feet of rentable area
in BETHANY TECH CENTER (building name) at 404 WEST BETHANY
DRIVE (address) IN ALLEN (city), COLLIN (county), Texas, which
is legally described on attached Exhibit "A" (a part of) or as
follows:
[ ] (2) SINGLE-TENANT PROPERTY: The real property at:_____________
_____________________________________________________________
(address)
_____________________________________________________________
(city),
_____________________________________________________________
(county), Texas, which is legally described on attached
Exhibit __ or as follows:
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
B. If Paragraph 2A(1) applies:
(1) "Property" means the building or complex in which the
leased premises are located, inclusive of any common
areas, drives, parking areas, and walks; and
(2) the parties agree that the rentable area of the
leased premises may not equal the actual or useable
area within the leased premises and may include an
allocation of common areas in the Property.
3. TERM:
A. TERM: The term of this lease is 62 months and 0 days, commencing on:
NOVEMBER 1, 2005 (Commencement Date) and ending on
DECEMBER 31,2010 (Expiration Date).
2
B. DELAY OF OCCUPANCY: If Tenant is unable to occupy the leased premises
on the Commencement Date because of construction on the leased premises
to be completed by Landlord that is not substantially complete or a
prior tenant's holding over of the leased premises, Landlord will not
be liable to Tenant for such delay and this lease will remain
enforceable. In the event of such a delay, the Commencement Date will
automatically be extended to the date Tenant is able to occupy the
Property and the Expiration Date will also be extended by a like number
of days, so that the length of this lease remains unchanged. If Tenant
is unable to occupy the leased premises after the 90th day after the
Commencement Date because of construction on the leased premises to be
completed by Landlord that is not substantially complete or a prior
tenant's holding over of the leased premises, Tenant may terminate this
lease by giving written notice to Landlord before the leased premises
become available to be occupied by Tenant and Landlord will refund to
Tenant any amounts paid to Landlord by Tenant. This Paragraph 3B does
not apply to any delay in occupancy caused by cleaning or repairs.
C. Unless the parties agree otherwise, Tenant is responsible for obtaining
a certificate of occupancy for the leased premises if required by a
governmental body.
4. RENT AND EXPENSES:
A. BASE MONTHLY RENT: On or before the first day of each month during this
lease, Tenant will pay Landlord base monthly rent as described on
attached Exhibit n/a or as follows:
from November 1, 2005 to November 31, 2005 $ 0.00;
---------------- ----------------- ---------------
from December 1, 2005 to December 31, 2005 $ 6,650.00;
---------------- ----------------- ---------------
from January 1, 2006 to December 31, 2006 $ 7,600.00;
---------------- ----------------- ---------------
from January 1, 2007 to December 31, 2010 $ 8,075.00;
---------------- ----------------- ---------------
from to $
---------------- ----------------- --------------.
B. First Full Month's Rent: The first full base monthly rent is due on or
before November 1, 2005
C. Prorated Rent: If the Commencement Date is on a day other than the
first day of a month, Tenant will pay Landlord as prorated rent, an
amount equal to the base monthly rent multiplied by the following
fraction: the number of days from the Commencement Date to the first
day of the following month divided by the number of days in the month
in which this lease commences. The prorated rent is due on or before
the Commencement Date.
D. Additional Rent: In addition to the base monthly rent and prorated
rent, Tenant will pay Landlord all other amounts, as provided by the
attached (CHECK ALL THAT APPLY.):
[x] (1) Commercial Expense Reimbursement Addendum
|_| (2) Commercial Percentage Rent Addendum
|_| (3) Commercial Parking Addendum
|_| (4)_____________________________________________
All amounts payable under the applicable addenda are deemed to be
"rent" for the purposes of this lease.
E. Place of Payment: Tenant will remit all amounts due Landlord under this
lease to the following person at the place stated or to such other
person or place as Landlord may later designate in writing:
Name: Armet Bethany Limited Partnership
Address: PO Box 121969
Fort Worth, TX
76121-1969
3
COMMERCIAL LEASE CONCERNING: 404 West Bethany Drive Allen TX 75013
--------------------------------------------------
F. Method of Payment: Tenant must pay all rent timely without demand,
deduction, or offset, except as permitted by law or this lease. If
Tenant fails to timely pay any amounts due under this lease or if any
check of Tenant is returned to Landlord by the institution on which it
was drawn, Landlord after providing written notice to Tenant may
require Tenant to pay subsequent amounts that become due under this
lease in certified funds. This paragraph does not limit Landlord from
seeking other remedies under this Lease for Tenant's failure to make
timely payments with good funds.
G. Late Charges: If Landlord does not actually receive a rent payment at
the designated place of payment within 5 days after the date it is due,
Tenant will pay Landlord a late charge equal to 5% of the amount due.
In this paragraph, the mailbox is not the agent for receipt for
Landlord. The late charge is a cost associated with the collection of
rent and Landlord's acceptance of a late charge does not waive
Landlord's right to exercise remedies under Paragraph 20.
H. Returned Checks: Tenant will pay $25.00 (not to exceed $25) for each
check Tenant tenders to Landlord which is returned by the institution
on which it is drawn for any reason, plus any late charges until
Landlord receives payment.
5. SECURITY DEPOSIT:
A. Upon execution of this lease, Tenant will pay $ 7,000.00 to Landlord as
a security deposit.
B. Landlord may apply the security deposit to any amounts owed by Tenant
under this lease. If Landlord applies any part of the security deposit
during any time this lease is in effect to amounts owed by Tenant,
Tenant must, within 10 days after receipt of notice from Landlord,
restore the security deposit to the amount stated.
C. After Tenant surrenders the leased premises to Landlord and provides
Landlord written notice of Tenant's forwarding address, Landlord will,
not later than the time required by Section 93.005, Texas Property
Code, refund the security deposit less any amounts applied toward
amounts owed by Tenant or other charges authorized by this lease. The
parties agree that Landlord acts in good faith if Landlord accounts for
the security deposit within the time stated.
6. TAXES: Unless otherwise agreed by the parties, Landlord will pay all
real property ad valorem taxes assessed against the leased premises.
7. UTILITIES:
A. The party designated below will pay for the following utility
charges to the leased premises and any connection charges for
the utilities. (Check all that apply.)
N/A LANDLORD TENANT
(1) WATER [ ] [ ] [ ]
(2) SEWER [ ] [ ] [ ]
(3) ELECTRIC [ ] [ ] [ ]
(4) GAS [ ] [ ] [ ]
(5) TELEPHONE [ ] [ ] [ ]
(6) TRASH [ ] [ ] [ ]
(7) CABLE [ ] [ ] [ ]
(8) ______________ [ ] [ ] [ ]
(9) ALL OTHER UTILITIES [ ] [ ] [ ]
4
B. The party responsible for the charges under Paragraph 7A will pay the
charges directly to the utility service provider. The responsible party
may select the utility service provider except that if Tenant selects
the provider any access or alterations to the Property or leased
premises necessary for the utilities may be made only with Landlord's
prior consent, which Landlord will not unreasonably withhold. If
Landlord incurs any liability for utility or connection charges for
which Tenant is responsible to pay and Landlord pays such amount,
Tenant will immediately upon written notice from Landlord reimburse
Landlord such amount.
C. Notice: Tenant should determine if all necessary utilities are
available to the leased premises and are adequate for Tenant's intended
use.
D. After-Hours HVAC Charges: "HVAC services" means the utility expenses to
heat and cool the leased premises. (CHECK ONE BOX ONLY.)
[ ] (1) Landlord is obligated to provide the HVAC services to the leased
premises only during the Property's operating hours specified under
Paragraph 9C.
[ ] (2) Landlord will provide the HVAC services to the leased premises
during the operating hours specified under Paragraph 9C for no
additional charge and will, at Tenant's request, provide HVAC services
to the leased premises during other hours for an additional charge of
$_______ per hour. Tenant will pay Landlord the charges under this
paragraph immediately upon receipt of Landlord's invoice. Hourly
charges are charged on a half-hour basis. Any partial hour will be
rounded up to the next half hour. Tenant will comply with Landlord's
procedures to make a request to provide the additional HVAC services
under this paragraph.
[X] (3) Tenant will pay for the HVAC services under this lease.
8. INSURANCE:
A. During all times this lease is in effect, Tenant must, at
Tenant's expense, maintain in full force and effect from an
insurer authorized to operate in Texas:
(1) public liability insurance in an amount not less than
$1,000,000.00 on an occurrence basis naming Landlord
as an additional insured; and
(2) personal property damage insurance for Tenant's
business operations and contents on the leased
premises in an amount sufficient to replace such
contents after a casualty loss.
B. Before the Commencement Date, Tenant must provide Landlord
with a copy of the insurance certificates evidencing the
required coverage. If the insurance coverage changes in any
manner or degree at any time this lease is in effect, Tenant
must, not later than 10 days after the change, provide
Landlord a copy of an insurance certificate evidencing the
change.
C. If Tenant fails to maintain the required insurance in full
force and effect at all times this lease is in effect,
Landlord may:
(1) purchase insurance that will provide Landlord the
same coverage as the required insurance and Tenant
must immediately reimburse Landlord for such expense;
or
(2) exercise Landlord's remedies under Paragraph 20.
D. Unless the parties agree otherwise, Landlord will, at
Landlord's expense, maintain in full force and effect
insurance for fire and extended coverage in an amount to cover
the reasonable replacement cost of the improvements of the
Property and public liability insurance in an amount that
Landlord determines reasonable and appropriate.
5
E. If there is an increase in Landlord's insurance premiums for
the leased premises or Property or its contents that is caused
by Tenant, Tenant's use of the leased premises, or any
improvements made by or for Tenant, Tenant will, for each year
this lease is in effect, pay Landlord the increase immediately
after Landlord notifies Tenant of the increase. Any charge to
Tenant under this Paragraph 8D will be equal to the actual
amount of the increase in Landlord's insurance premium.
9. USE AND HOURS:
A. Tenant may use the leased premises for the following purpose
and no other: Office and Laboratory
B. Unless otherwise specified in this lease, Tenant will operate
and conduct its business in the leased premises during
business hours that are typical of the industry in which
Tenant represents it operates.
C. The Property maintains operating hours of (specify hours, days
of week, and if inclusive or exclusive of weekends and
holidays): N/A
10. LEGAL COMPLIANCE:
A. Tenant may not use or permit any part of the leased premises
to be used for:
(1) any activity which is a nuisance or is offensive,
noisy, or dangerous;
(2) any activity that interferes with any other tenant's
normal business operations or Landlord's management
of the Property;
(3) any activity that violates any applicable law,
regulation, zoning ordinance, restrictive covenant,
governmental order, owners' association rules,
tenants' association rules, Landlord's rules or
regulations, or this lease;
(4) any hazardous activity that would require any
insurance premium on the Property or leased premises
to increase or that would void any such insurance;
(5) any activity that violates any applicable federal,
state, or local law, including but not limited to
those laws related to air quality, water quality,
hazardous materials, wastewater, waste disposal, air
emissions, or other environmental matters;
(6) the permanent or temporary storage of any hazardous
material; or
(7)
B. "Hazardous material" means any pollutant, toxic substance,
hazardous waste, hazardous material, hazardous substance,
solvent, or oil as defined by any federal, state, or local
environmental law, regulation, ordinance, or rule existing as
of the date of this lease or later enacted.
C. Landlord does not represent or warrant that the leased
premises or Property conform to applicable restrictions,
zoning ordinances, setback lines, parking requirements,
impervious ground cover ratio requirements, and other matters
that may relate to Tenant's intended use. Tenant must satisfy
itself that the leased premises may be used as Tenant intends
by independently investigating all matters related to the use
of the leased premises or Property. Tenant agrees that it is
not relying on any warranty or representation made by
Landlord, Landlord's agent, or any broker concerning the use
of the leased premises or Property.
6
11. SIGNS:
A. Tenant may not post or paint any signs at, on, or about the
leased premises or Property without Landlord's written
consent. Landlord may remove any unauthorized sign, and Tenant
will promptly reimburse Landlord for its cost to remove any
unauthorized sign.
B. Any authorized sign must comply with all laws, restrictions,
zoning ordinances, and any governmental order relating to
signs on the leased premises or Property. Landlord may
temporarily remove any authorized sign to complete repairs or
alterations to the leased premises or the Property.
C. By providing written notice to Tenant before this lease ends,
Landlord may require Tenant, upon move-out and at Tenant's
expense, to remove, without damage to the Property or leased
premises, any or all signs that were placed on the Property or
leased premises by or at the request of Tenant. Any signs that
Landlord does not require Tenant to remove and that are
fixtures, become the property of the Landlord and must be
surrendered to Landlord at the time this lease ends.
12. ACCESS BY LANDLORD:
A. During Tenant's normal business hours Landlord may enter the
leased premises for any reasonable purpose, including but not
limited to purposes for repairs, maintenance, alterations, and
showing the leased premises to prospective tenants or
purchasers. Landlord may access the leased premises after
Tenant's normal business hours if: (1) entry is made with
Tenant's permission; or (2) entry is necessary to complete
emergency repairs. Landlord will not unreasonably interfere
with Tenant's business operations when accessing the leased
premises.
B. During the last (60) days of this lease, Landlord may place a
"For Lease" or similarly worded sign in the leased premises.
13. MOVE-IN CONDITION: Tenant has inspected the leased premises and accepts
it in its present (as-is) condition unless expressly noted otherwise in
this lease. Landlord and any agent have made no express or implied
warranties as to the condition or permitted use of the leased premises
or Property.
14. MOVE-OUT CONDITION AND FORFEITURE OF TENANT'S PERSONAL PROPERTY:
A. At the time this lease ends, Tenant will surrender the leased
premises in the same condition as when received, except for
normal wear and tear. Tenant will leave the leased premises in
a clean condition free of all trash, debris, personal
property, hazardous materials, and environmental contaminants.
B. If Tenant leaves any personal property in the leased premises
after Tenant surrenders possession of the leased premises,
Landlord may: (1) require Tenant, at Tenant's expense, to
remove the personal property by providing written notice to
Tenant; or (2) retain such personal property as forfeited
property to Landlord.
C. "Surrender" means vacating the leased premises and returning
all keys and access devices to Landlord. "Normal wear and
tear' means deterioration that occurs without negligence,
carelessness, accident, or abuse.
D. By providing written notice to Tenant before this lease ends,
Landlord may require Tenant, upon move-out and at Tenant's
expense, to remove, without damage to the Property or leased
premises, any or all fixtures that were placed on the Property
or leased premises by or at the request of Tenant. Any
fixtures that Landlord does not require Tenant to remove
become the property of the Landlord and must be surrendered to
Landlord at the time this lease ends.
7
15. MAINTENANCE AND REPAIRS:
A. CLEANING: Tenant must keep the leased premises clean and
sanitary and promptly dispose of all garbage in appropriate
receptacles. |_| Landlord [X] Tenant will provide, at its
expense, janitorial services to the leased premises that are
customary and ordinary for the Property type.
B. REPAIRS OF CONDITIONS CAUSED BY A PARTY: Each party must
promptly repair a condition in need of repair that is caused,
either intentionally or negligently, by that party or that
party's guests, patrons, invitees, contractors or permitted
subtenants.
C. REPAIR AND MAINTENANCE RESPONSIBILITY: Except as provided by
Paragraph 15B, the party designated below, at its expense, is
responsible to maintain and repair the following specified
items in the leased primises. The specified items must be
maintained in clean and good operable condition. If a
premises. governmental regulation or order requires a
modification to any of the specified items, the party
designated modification. The specified to maintain the item
must complete and pay the expense of the items include and
relate only to real property in the leased premises. Tenant is
responsible for the repair and maintenance of its personal
property. (Check all that apply.)
N/A Landlord Tenant
--- -------- ------
(1) Foundation, exterior walls, roof, and other
structural components [ ] [X] [ ]
(2) Glass and windows [ ] [ ] [X]
(3) Fire protection equipment and fire sprinkler systems [ ] [ ] [X]
(4) Exterior & overhead doors, including closure devices,
molding, locks, and hardware [ ] [ ] [X]
(5) Grounds maintenance, including landscaping and ground
sprinklers [ ] [X] [ ]
(6) Interior doors, including closure devices, frames,
molding, locks, and hardware [ ] [ ] [X]
(7) Parking areas and walks [ ] [X] [ ]
(8) Plumbing systems, drainage systems, electrical
systems, ballast and lamp replacement, and
mechanical systems, except those specifically
designated otherwise [ ] [ ] [X]
(9) Heating Ventilation and Air Conditioning (HVAC)
systems [ ] [ ] [X]
(10) Signs and lighting: [X] [ ] [ ]
(a) Pylon [ ] [ ] [X]
(b) Facia [X] [ ] [ ]
(c) Monument [ ] [ ] [ ]
(d) Door/Suite [ ] [ ] [X]
(11) Extermination and pest control, excluding
wood-destroying insects [ ] [X] [ ]
(12) Storage yards and storage buildings [X] [ ] [ ]
(13) Wood-destroying insect treatment and repairs [ ] [X] [ ]
(14) Cranes and related systems [X] [ ] [ ]
(15) [X] [ ] [ ]
(16) [X] [ ] [ ]
(17) All other items and systems. [ ] [ ] [ ]
D. REPAIR PERSONS: Repairs must be completed by trained,
qualified, and insured repair persons.
8
E. HVAC SERVICE CONTRACT: If Tenant maintains the HVAC system
under Paragraph 15C(9), Tenant [X] is |_| is not required to
maintain, at its expense, a regularly scheduled maintenance
and service contract for the HVAC system. The maintenance and
service contract must be purchased from a HVAC maintenance
company that regularly provides such contracts to similar
properties. If Tenant fails to maintain a required HVAC
maintenance and service contract in effect at all times during
this lease, Landlord may do so and charge Tenant the expense
of such a maintenance and service contract or exercise
Landlord's remedies under Paragraph 20.
F. COMMON AREAS: Landlord will maintain any common areas in the
Property in a manner as Landlord determines to be in the best
interest of the Property. Landlord will maintain any elevator
and signs in the common area. Landlord may change the size,
dimension, and location of any common areas, provided that
such change does not materially impair Tenant's use and access
to the leased premises. Tenant has the non-exclusive license
to use the common areas in compliance with Landlord's rules
and restrictions. Tenant may not solicit any business in the
common areas or interfere with any other person's right to use
the common areas. This paragraph does not apply if Paragraph
2A(2) applies.
G. NOTICE OF REPAIRS: Tenant must promptly notify Landlord of any
item that is in need of repair and that is Landlord's
responsibility to repair. All requests for repairs to Landlord
must be in writing.
H. FAILURE TO REPAIR: Landlord must make a repair for which
Landlord is responsible within a reasonable period of time
after Tenant provides Landlord written notice of the needed
repair. If Tenant fails to repair or maintain an item for
which Tenant is responsible within 10 days after Landlord
provides Tenant written notice of the needed repair or
maintenance, Landlord may: (1) repair or maintain the item,
without liability for any damage or loss to Tenant, and Tenant
must immediately reimburse Landlord for the cost to repair or
maintain; or (2) exercise Landlord's remedies under Paragraph
20.
16. ALTERATIONS:
A. Tenant may not alter, improve, or add to the Property or the
leased premises without Landlord's written consent. Landlord
will not unreasonably withhold consent for the Tenant to make
reasonable non-structural alterations, modifications, or
improvements to the leased premises.
B. Tenant may not alter any locks or any security devices on the
Property or the leased premises without Landlord's consent. If
Landlord authorizes the changing, addition, or rekeying of any
locks or other security devices, Tenant must immediately
deliver the new keys and access devices to Landlord.
C. If a governmental order requires alteration or modification to
the leased premises, the party obligated to maintain and
repair the item to be modified or altered as designated in
Paragraph 15 will, at its expense, modify or alter the item in
compliance with the order.
D. Any alterations, improvements, fixtures or additions to the
Property or leased premises installed by either party during
the term of this lease will become Landlord's property and
must be surrendered to Landlord at the time this lease ends,
except for those fixtures Landlord requires Tenant to remove
under Paragraph 11 or 14 or if the parties agree otherwise in
writing.
17. LIENS: Tenant may not do anything that will cause the title of the
Property or leased premises to be encumbered in any way. If Tenant
causes a lien to be filed against the Property or leased premises,
Tenant will within 20 days after receipt of Landlord's demand: (1) pay
the lien and have the lien released of record; or (2) take action to
discharge the lien. Tenant will provide Landlord a copy of any release
Tenant obtains pursuant to this paragraph.
9
18. LIABILITY: To the extent permitted by law, Landlord is not responsible
to Tenant or Tenant's employees, patrons, guests, or invitees for any
damages, injuries, or losses to person or property caused by:
A. An act, omission, or neglect of: Tenant, Tenant's agent:
Tenant's guest: Tenant's employees, Tenant's patrons; Tenant's
invitees; or any other Tenant on the Property;
B. Fire, flood, water leaks, ice, snow, hail, winds, explosion,
smoke, riot, strike, interruption of utilities, theft,
burglary, robbery, assault, vandalism, other persons,
environmental contaminants, or other occurrences or casualty
losses.
19. INDEMNITY: Each party will indemnify and hold the other party harmless
from any property damage, personal injury, suits, actions, liabilities,
damages, cost of repairs or service to the leased premises or Property,
or any other loss caused, negligently or otherwise, by that party or
that party's employees, patrons, guests, or invitees.
20. DEFAULT:
A. If Landlord fails to comply with this lease within 30 days
after Tenant notifies Landlord of Landlord's failure to
comply, Landlord will be in default and Tenant may seek any
remedy provided by law. If, however, Landlord's non-compliance
reasonably requires more than 30 days to cure, Landlord will
not be in default if the cure is commenced within the 30-day
period and is diligently pursued.
B. If Landlord does not actually receive at the place designated
for payment any rent due under this lease within 5 days after
it is due, Tenant will be in default. If Tenant fails to
comply with this lease for any other reason within 10 days
after Landlord notifies Tenant of its failure to comply,
Tenant will be in default.
C. If Tenant is in default, Landlord may: (i) terminate Tenant's
right to occupy the leased premises by providing Tenant with
at least 3 days written notice; and (ii) accelerate all rents
which are payable during the remainder of this lease or any
renewal period without notice or demand. Landlord will attempt
to mitigate any damage or loss caused by Tenant's breach by
using commercially reasonable means. If Tenant is in default,
Tenant will be liable for:
(1) any lost rent;
(2) Landlord's cost of reletting the leased premises,
including brokerage fees, advertising fees, and other
fees necessary to relet the leased premises;
(3) repairs to the leased premises for use beyond normal
wear and tear;
(4) all Landlord's costs associated with eviction of
Tenant, such as attorney's fees, court costs, and
prejudgment interest;
(5) all Landlord's costs associated with collection of
rent such as collection fees, late charges, and
returned check charges;
(6) cost of removing any of Tenant's equipment or
fixtures left on the leased premises or Property;
(7) cost to remove any trash, debris, personal property,
hazardous materials, or environmental contaminants
left by Tenant or Tenant's employees, patrons,
guests, or invitees in the leased premises or
Property;
(9) cost to replace any unreturned keys or access devices
to the leased premises, parking areas, or Property;
(10) any other recovery to which Landlord may be entitled
under this lease or under law.
21. ABANDONMENT, INTERRUPTION OF UTILTIES, REMOVAL OF PROPERTY, AND
LOCKOUT: Chapter 93 of the Texas Property Code governs the rights and
obligations of the parties with regard to: (a) abandonment of the
leased premises; (b) interruption of utilities; (c) removal of Tenant's
property; and (d) "lock-out" of Tenant.
10
22. HOLDOVER: If Tenant fails to vacate the leased premises at the time
this lease ends, Tenant will become a tenant-at-will and must vacate
the leased premises immediately upon receipt of demand from Landlord.
No holding over by Tenant, with or without the consent of Landlord,
will extend this lease. Tenant will indemnify Landlord and any
prospective tenants for any and all damages caused by the holdover.
Rent for any holdover period will be 2 times the base monthly rent plus
any additional rent calculated on a daily basis and will be immediately
due and payable daily without notice or demand.
23. LANDLORD'S LIEN AND SECURITY INTEREST: To secure Tenant's performance
under this lease, Tenant grants to Landlord a lien and security
interest against all of Tenant's nonexempt personal property that is in
the leased premises or Property. This lease is a security agreement for
the purposes of the Uniform Commercial Code. Landlord may file a copy
of this lease as a financing statement.
24. ASSIGNMENT AND SUBLETTING: Landlord may assign this lease to any
subsequent owner of the Property. Tenant may not assign this lease or
sublet any part of the leased premises without Landlord's written
consent. An assignment of this lease or subletting of the leased
premises without Landlord's written consent is voidable by Landlord. If
Tenant assigns this lease or sublets any part of the leased premises,
Tenant will remain liable for all of Tenant's obligations under this
lease regardless if the assignment or sublease is made with or without
the consent of Landlord.
25. RELOCATION:
[ ] A. By providing Tenant with not less than 90 days advanced
written notice, Landlord may require Tenant to relocate to
another location in the Property, provided that the other
location is equal in size or larger than the leased premises
then occupied by Tenant and contains similar leasehold
improvements. Landlord will pay Tenant's reasonable
out-of-pocket moving expenses for moving to the other
location. "Moving expenses" means reasonable expenses payable
to professional movers, utility companies for connection and
disconnection fees, wiring companies for connecting and
disconnecting Tenant's office equipment required by the
relocation, and printing companies for reprinting Tenant's
stationary and business cards. A relocation of Tenant will not
change or affect any other provision of this lease that is
then in effect, including rent and reimbursement amounts,
except that the description of the suite or unit number will
automatically be amended.
[X] B. Landlord may not require Tenant to relocate to another
location in the Property without Tenant's prior consent.
26. SUBORDINATION:
A. This lease and Tenant's leasehold interest are and will be
subject, subordinate, and inferior to:
(1) any lien, encumbrance, or ground lease now or
hereafter placed on the leased premises or the
Property that Landlord authorizes;
(2) all advances made under any such lien, encumbrance,
or ground lease;
(3) the interest payable on any such lien or encumbrance;
(4) any and all renewals and extensions of any such lien,
encumbrance, or ground lease;
(5) any restrictive covenant affecting the leased
premises or the Property; and
(6) the rights of any owners' association affecting the
leased premises or Property.
B. Tenant must, on demand, execute a subordination, attornment,
and non-disturbance agreement that Landlord may request that
Tenant execute, provided that such agreement is made on the
condition that this lease and Tenant's rights under this lease
are recognized by the lien-holder.
11
27. ESTOPPEL CERTIFICATES: Within 10 days after receipt of a written execute
and deliver to Landlord an estoppel certificate that identifies:
A. any breach of the lease,
B. the then current rent payment and rent schedule;
C. the date the next rent payment is due;
D. any advance rent payments;
E. the amount of the security deposit;
F. any claims for any offsets;
G. the then current term of the lease;
H. any renewal options;
I. Tenant's possession and acceptance of the leased premises and
improvements;
J. any ownership interest by Tenant; and
K. any other information reasonably requested in the certificate.
28. CASUALTY LOSS:
A. Tenant must immediately notify Landlord of any casualty loss
in the leased premises. Within 20 days after receipt of
Tenant's notice of a casualty loss, Landlord will notify
Tenant if the leased premises are less than or more than 50%
unusable, on a per square foot basis, and if Landlord can
substantially restore the leased premises within 120 days
after Tenant notifies Landlord of the casualty loss.
B. If the leased premises are less than 50% unusable and Landlord
can substantially restore the leased premises within 120 days
after Tenant notifies Landlord of the casualty, Landlord will
restore the leased premises to substantially the same
condition as before the casualty. If Landlord fails to
substantially restore within the time required, Tenant may
terminate this lease.
C. If the leased premises are more than 50% unusable and Landlord
can substantially restore the leased premises within 120 days
after Tenant notifies Landlord of the casualty, Landlord may:
(1) terminate this lease; or (2) restore the leased premises
to substantially the same condition as before the casualty. If
Landlord chooses to restore and does not substantially restore
the leased premises within the time required, Tenant may
terminate this lease.
D. If Landlord notifies Tenant that Landlord cannot substantially
restore the leased premises within 120 days after Tenant
notifies Landlord of the casualty loss, Landlord may: (1)
choose not to restore and terminate this lease; or (2) choose
to restore, notify Tenant of the estimated time to restore,
and give Tenant the option to terminate this lease by
notifying Landlord within 10 days.
E. If this lease does not terminate because of a casualty loss,
rent will be reduced from the date Tenant notifies Landlord of
the casualty loss to the date the leased premises are
substantially restored by an amount proportionate to the
extent the leased premises are unusable.
29. CONDEMNATION: If after a condemnation or purchase in lieu of
condemnation the leased premises are totally unusable for the purposes
stated in this lease, this lease will terminate. If after a
condemnation or purchase in lieu of condemnation the leased premises or
Property are partially unusable for the purposes of this lease, this
lease will continue and rent will be reduced in an amount proportionate
to the extent the leased premises are unusable. Any condemnation award
or proceeds in lieu of condemnation are the property of Landlord and
Tenant has no claim to such proceeds or award. Tenant may seek
compensation from the condemning authority for its moving expenses and
damages to Tenant's personal property.
30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal
proceeding brought under or related to the transaction described in
this lease is entitled to recover prejudgment interest, reasonable
attorney's fees, and all other costs of litigation from the
nonprevailing party.
12
31. REPRESENTATIONS: Tenant's statements in this lease and any application
for rental are material representations relied upon by Landlord. Each
party signing this lease represents that he or she is of legal age to
enter into a binding contract and is authorized to sign the lease. If
Tenant makes any misrepresentation in this lease or in any application
for rental, Tenant is in default. Landlord is not aware of any material
defect on the Property that would affect the health and safety of an
ordinary person or any environmental hazard on or affecting the
Property that would affect the health or safety of an ordinary person,
except: NONE
32. BROKERS:
A. The brokers to this lease are:
None Mark V Commercial, Inc. #0322070
-------------------------------- ---------------------------------
Cooperating Broker License No. Prinicipal Broker License No.
1320 Village Creek Drive, Ste 200
Plano, TX 75093
-------------------------------- ---------------------------------
Address Address
972-250-2550 972-250-1015
-------------------------------- ---------------------------------
Phone Fax Phone Fax
-------------------------------- ---------------------------------
E-mail E-mail
Cooperating Broker represents Tenant. Principal Broker: (Check only one box)
[ ] represents Landlord only.
[ ] represents Tenant only.
[X] is an intermediary between
Landlord and Tenant.
B. FEES:
[X] (1) Principal Broker's fee will be paid according to: (Check
only one box).
[X] (a) a separate written commission agreement between
Principal Broker and:
[X] Landlord [ ] Tenant.
[ ] (b) the attached Addendum for Broker's Fee.
[ ] (2) Cooperating Broker's fee will be paid according to: (Check
only one box).
[ ] (a) a separate written commission agreement between
Cooperating Broker and:
[ ] Principal Broker [ ] Landlord [ ] Tenant.
[ ] (b) the attached Addendum for Broker's Fee.
33. ADDENDA: Incorporated into this lease are the addenda, exhibits and
other information marked in the Addenda and Exhibit section of the
Table of Contents. If Landlord's Rules and Regulations are made part of
this lease, Tenant agrees to comply with the Rules and Regulations as
Landlord may, at its discretion, amend from time to time.
13
34. NOTICES: All notices under this lease must be in writing and are
effective when hand-delivered, sent by mail, or sent by facsimile
transmission to:
Tenant at the leased premises,
and a copy to: Airgate Technologies, Inc.
Address: 404 Bethany Drive - Allen, TX 75013
Phone: Fax:
Landlord at: Armet Bethany Limited Partnership
Address: PO Box 121969 - Fort Worth, TX 76121
email: jill@havener.com
Phone: 817-560-1717 Fax: 817-560-1577
and a copy to:
Address:
Phone: Fax:
35. SPECIAL PROVISIONS:
36. AGREEMENT OF PARTIES:
A. ENTIRE AGREEMENT: This lease contains the entire agreement
between Landlord and Tenant and may not be changed except by
written agreement.
B. BINDING EFFECT: This lease is binding upon and inures to the
benefit of the parties and their respective heirs, executors,
administrators, successors, and permitted assigns.
C. JOINT AND SEVERAL: All Tenants are jointly and severally
liable for all provisions of this lease. Any act or notice to,
or refund to, or signature of, any one or more of the Tenants
regarding any term of this lease, its renewal, or its
termination is binding on all Tenants.
D. CONTROLLING LAW: The laws of the State of Texas govern the
interpretation, performance, and enforcement of this lease.
14
E. SEVERABLE CLAUSES: If any clause in this lease is found
invalid or unenforceable by a court of law, the remainder of
this lease will not be affected and all other provisions of
this lease will remain valid and enforceable.
F. WAIVER: Landlord's delay, waiver, or non-enforcement of
acceleration, contractual or statutory lien, rental due date,
or any other right will not be deemed a waiver of any other or
subsequent breach by Tenant or any other term in this lease.
G. QUIET ENIOYMENT: Provided that Tenant is not in default of
this lease, Landlord covenants that Tenant will enjoy
possession and use of the leased premises free from material
interference.
H. FORCE MAJEURE: If Landlord's performance of a term in this
lease is delayed by strike, lock-out, shortage of material,
governmental restriction, riot, flood, or any cause outside
Landlord's control, the time for Landlord's performance will
be abated until after the delay.
I. TIME: Time is of the essence. The parties require strict
compliance with the times for performance.
Brokers are not qualified to render legal advice, property inspections, surveys,
engineering studies, environmental assessments, tax advice, or compliance
inspections. The parties should seek experts to render such services. READ THIS
LEASE CAREFULLY. If you do not understand the effect of this lease, consult your
attorney BEFORE signing.
Airgate Technologies, Inc. Armet Bethany Limited Partnership
- ---------------------------------- ---------------------------------
TENANT LANDLORD
/s/ Michael L. Sheriff /s/ Gary W. Havener
- ---------------------------------- ---------------------------------
BY DATE
Michael L. Sheriff Gary W. Havener
- ---------------------------------- ---------------------------------
PRINTED NAME PRINTED NAME
President of Armet Corp,
its General Partner
- ---------------------------------- ---------------------------------
TITLE TITLE
- ---------------------------------- ---------------------------------
TENANT LANDLORD
- ---------------------------------- ---------------------------------
BY DATE
- ---------------------------------- ---------------------------------
PRINTED NAME PRINTED NAME
- ---------------------------------- ---------------------------------
TITLE TITLE
15
TEXAS ASSOCIATION OF REALTORS(R)
COMMERCIAL LEASE EXPENSE REIMBURSEMENT ADDENDUM
USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF
REALTORS(R) IS NOT AUTHORIZED.
(C)TEXAS ASSOCIATION OF REALTORS(R), INC. 2002
- --------------------------------------------------------------------------------
ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING
THE LEASED PREMISES AT 404 West Bethany Drive Allen TX 75013
In addition to rent stated in the lease, Tenant will pay Landlord the additional
rent described in this addendum. Tenant will pay the additional rent each month
at the time the base-monthly rent in the lease is due.
A. Method: The additional rent will be calculated under the following method:
[X] (1) Base-year expenses: Each month Tenant will pay Tenant's pro rata share
of the projected monthly expenses for the Property that exceed the
amount of the monthly base-year expenses for:
|_| (a) operating expenses.
[X] (b) the following expenses: [X] taxes, [X] insurance, |_| CAM, |_|
roof and structural.
|_| (2) Expense-stop: Each month Tenant will pay Tenant's pro rata share of
the projected monthly expenses for the Property that exceed
$__________ per square foot per year for:
|_| (a) operating expenses.
|_| (b) the following expenses: |_| taxes, |_| insurance, |_| CAM, |_|
roof and structural.
[X] (3) Net: Each month Tenant will pay Tenant's pro rata share of the
projected monthly expenses for the Property for:
|_| (a) operating expenses (NOTE THAT TAXES, INSURANCE, AND CAM ARE
INCLUDED IN OPERATING EXPENSES);
|_| (b) taxes;
|_| (c) insurance;
[X] (d) CAM;
|_| (e) roof and structural;
|_| (f) _________________________________________________________________.
|_| (4) Fixed Reimbursements: Each month Tenant will pay the stated amounts
for the Property for:
|_| (a) operating expenses: $___________ per month;
(NOTE THAT TAXES, INSURANCE, AND CAM ARE
INCLUDED IN OPERATING EXPENSES);
|_| (b) taxes: $___________ per month;
|_| (c) insurance: $___________ per month;
|_| (d) CAM: $___________ per month;
|_| (d) roof and structural: $___________ per month;
|_| (e)________________________________________: $___________ per month;
B. Definitions:
(1) "Tenant's Pro Rata Share" IS 20.110%.
(2) "Base-Year Expenses" means the expenses checked under A(1) incurred by
Landlord for the calendar year 2005. "Monthly base-year expenses"
means base-year expenses divided by 12.
(3) "Roof and Structural Expenses" means the cost to maintain, repair, and
replace the Property's structural and common area components including
the Property's foundation, load-bearing walls, roof and roof
components (for example, roof covering, deck, flashing, and
skylights), and parking lot.
(4) "Operating Expenses" means all of Landlord's expenses reasonably
incurred to maintain, repair, operate, secure, insure and own the
Property. Operating expenses do not include capital expenditures,
interest, depreciation, tenant improvements, and brokers' fees. The
following expenses are included in operating expenses, but operating
expenses are not limited to the following:
(i) "CAM" means common area maintenance expenses which are the cost
to own, operate, repair, and maintain the common areas that are
part of the Property and are available for the common use of all
tenants (for example, security, lighting, painting, cleaning,
decorations, utilities, trash removal, pest control, promotional
expenses, and other expenses reasonably related to the common
areas);
(ii) "Insurance" means Landlord's costs to insure the leased premises
and Property including but not limited to insurance for casualty
loss, general liability, and reasonable rent loss; and
(iii) "Taxes" means the real property ad valorem taxes assessed
against the leased premises and Property inclusive of all general
and special assessments and surcharges.
C. PROJECTED MONTHLY EXPENSES: This paragraph does not apply if Paragraph A(4)
applies. On or about December 31 of each calendar year Landlord will
project the applicable monthly expenses (those that Tenant is to pay under
this addendum) for the following calendar year and will notify Tenant of
the projected expenses. The projected expenses are based on Landlord's
estimates of such expenses. The actual expenses may vary.
NOTICE: If Paragraph A(1), A(2), or A(3) applies: (i) the applicable
calendar year in which the above-referenced lease commences is
$___________________ per square foot; and (ii) the total rentable area of
the Property presently used by reimbursements is _________________ square
feet.
D. RECONCILIATION: This paragraph does not apply if Paragraph A(4) applies.
Within a reasonable time after the end of each calendar year, Landlord will
notify Tenant of the actual costs of the applicable expenses (those that
Tenant is to pay under this addendum) for the previous year. If the actual
costs of the applicable expenses exceed the amounts paid or owed by Tenant
for the previous year, Tenant must pay the deficient amount to Landlord
within days after Landlord notifies Tenant of the deficient amount. If the
actual costs of the applicable expenses are less than the amounts paid by
Tenant for the previous year, Landlord will refund the excess to Tenant or
will credit the excess to Tenant's next rent payment. Tenant may audit or
examine those items in Landlord's records that relate to Tenant's
obligations under this addendum. Landlord will promptly refund to Tenant
any overpayment revealed by an audit or examination. If the audit or
examination reveals an error of more than 5% over the amounts Landlord
collected in a calendar year from Tenant under this addendum, Landlord will
pay the reasonable cost of the audit or examination. Landlord may not seek
a deficiency from Tenant under this paragraph if Landlord fails to timely
provide the required notice.
E. Special Provisions:
Armet Bethany Limited Partnership Airgate Technologies
- ------------------------------------- -----------------------------------
Landlord Tenant
By: /s/ Gary W. Havener 11-4-05 By /s/ Michael L. Sheriff 11-4-05
- ------------------------------------- -----------------------------------
Date Date
Landlord Tenant
By: By
- ------------------------------------- -----------------------------------
Date Date