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EXHIBIT 10.2
LEASE
THIS LEASE, made as of the 18th day of September, 1998, by and between
AIRTECH PARKWAY ASSOCIATES, LLC, an Indiana limited liability company (the
"Landlord"), and BRIGHTPOINT NORTH AMERICA, INC., an Indiana corporation (the
"Tenant");
WITNESSETH:
1. LEASED PREMISES. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, a certain building to be constructed by Landlord (the
"Building") that will be located generally at Lot 1 on Airtech Parkway in
Airtech Park (the "Park"), Indianapolis, Indiana, together with: (a) the parcel
of real estate upon which the Building will be constructed (the "Parcel"); and
(b) the related improvements to be constructed on the Parcel and used in
connection with the Building (the "Improvements"). For purposes of this Lease,
the Building shall be deemed to contain approximately 495,740 square feet of
gross leasable area (the "Gross Leasable Area"),100,500 square feet of which
shall be office space (the "Office Space"), and the remainder of which shall be
distribution/warehouse space (the "Warehouse Space"). Tenant shall have the
right, in common with Landlord, to the non-exclusive use of the common easements
and facilities in the Park that benefit the Parcel, subject to the terms and
conditions of any recorded declaration of covenants and restrictions applicable
to the Park (the "Declaration"). The Parcel and the Park are depicted on Exhibit
A-1 attached hereto, the Parcel more particularly is described on Exhibit A-2
attached hereto, and the Building generally is depicted on the site plan
described on Exhibit A-3 attached hereto. The Building, the Parcel and the
Improvements, collectively, are the "Leased Premises".
2. LEASE TERM AND HOLDING OVER. Subject to Subsection 6(f) hereof, the
initial term of this Lease (the "Initial Lease Term") shall be for a period
commencing on the later of: (a) 15 days after the Substantial Completion Date;
or (b) January 1, 2000 (the "Commencement Date"); and ending on the date that is
20 years after the first day of the first calendar month following the
Commencement Date (the "Expiration Date"). So long as Tenant is not in default
hereunder, Tenant shall have the option to extend the term of this Lease for
four consecutive periods of five years (the "Extension Term(s)"); provided that,
if Tenant exercises its option to expand in accordance with the attached Exhibit
J, and the terms and conditions of Exhibit J require that Tenant have the right
to extend the term of this Lease for a fifth Extension Term, then, subject to
the terms and conditions of Exhibit J, Tenant shall have the option to extend
the term of this Lease for a fifth Extension Term. Tenant shall exercise its
option to extend the term of this Lease by providing written notice to Landlord
at least one year prior to the expiration of the Initial Lease Term or the
applicable Extension Term, as the case may be (the "Extension Date"). If Tenant
fails to exercise its option to extend the Initial Lease Term or the applicable
Extension Term, as the case may be, on or before the Extension Date, then the
option of Tenant to extend the term of this Lease automatically shall terminate,
and have no further force or effect, without further notice from Landlord. If
Tenant holds over and remains in possession of the Leased Premises after the
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expiration of the Lease Term (as defined below), and if Rent is paid by Tenant
and accepted by Landlord, then such holding over and continued possession shall
create a tenancy from month to month upon and subject to the same terms and
conditions of this Lease in effect when the Lease Term expires, except for the
length of the term of this Lease. At any time, either party may terminate such
tenancy from month to month upon 30 days written notice delivered to the other
party in accordance with Section 25. If Tenant holds over and remains in
possession of the Leased Premises after the expiration of the Lease Term without
the consent of Landlord, then Tenant shall: (a) pay to Landlord for each day of
such possession 125% of all the Base Rent (as defined in Section 3) in effect
when expiration or termination occurs, computed on a daily basis; and (b)
indemnify and hold harmless Landlord from and against any and all claims,
judgments, liabilities, losses, costs, and expenses (including, without
limitation, reasonable attorneys' fees and court costs) arising from, or in
connection with, such possession. The Initial Lease Term and the Extension
Terms, collectively, are the "Lease Term."
3. RENT. Tenant shall pay to Landlord minimum rent (the "Base Rent") for
the Leased Premises during the Lease Term in accordance with the terms and
conditions of Exhibit B, attached hereto (the "Rent Schedule"). Base Rent shall
be payable in advance on or before the first day of each full and partial
calendar month during the Lease Term; provided that: (a) if the Lease Term
commences or expires on a date other than on the first day or last day of a
calendar month, respectively, then the Base Rent payable for each such partial
calendar month shall be an amount equal to: (i) the Base Rent otherwise then in
effect; divided by (ii) the number of days in the full calendar month during
which the Lease Term commences or expires, respectively; and multiplied by (iii)
the number of days in the partial calendar month after and including the
Commencement Date or before and including the Expiration Date, respectively; and
(b) the Base Rent for any partial calendar month at the commencement of the
Lease Term shall be payable on or before the first day of the first full
calendar month during the Lease Term. In addition to the payment of Base Rent,
Tenant shall pay to Landlord as additional rent (the "Additional Rent") all
other sums of money and charges required to be paid by Tenant to Landlord under
this Lease, regardless of whether the same are designated as Additional Rent.
Base Rent and Additional Rent, collectively, are "Rent". All Rent shall be paid
without relief from valuation and appraisement laws, and shall be payable
without offset for any amount due or claimed to be due from Landlord to Tenant,
except as expressly provided in this Lease.
4. PAST DUE PAYMENTS. If any Rent shall become overdue for a period in
excess of five days, then Tenant shall pay to Landlord on demand interest on the
unpaid Rent from the date due to the date of payment at the rate of 1.5% per
month. Amounts recoverable from Tenant pursuant to this Section shall be in
addition to, and not in lieu of, any other right or remedy that Landlord may
have hereunder, at law, or in equity.
5. PLACE OF PAYMENTS. All payments of Rent required to be made, and all
statements required to be rendered, by Tenant to Landlord shall be delivered to
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Landlord at its address set forth in Section 25, or to such other address as
Landlord specifies to Tenant in accordance with Section 25.
6. PREPARATION OF LEASED PREMISES.
(a) Landlord's Work. Landlord shall construct the Building and
the Improvements, and landscape the Parcel (the "Landlord's Work"),
pursuant to the construction schedule attached hereto as Exhibit C (the
"Construction Schedule"), and in accordance with the plans and
specifications attached hereto as Exhibit D-1 (the "Construction
Plans"). Landlord represents and warrants that, upon substantial
completion of the Building and Improvements, the Building and
Improvements shall comply with all laws, statutes, ordinances, and
governmental rules, regulations, guidelines, orders, and decrees now or
hereafter affecting or relating to the Leased Premises or the use
thereof (the "Applicable Laws"); except for Applicable Laws that are
applicable because of: (i) a special or unusual use of the Leased
Premises; or (ii) alterations or additions made by Tenant to the Leased
Premises. Landlord shall cooperate with efforts by Tenant to determine
the permits or governmental authorizations, if any, that are necessary
for the installation of Tenant's distribution/warehouse fixtures and
equipment; provided that Tenant shall be responsible for obtaining all
such permits and authorizations. Landlord's Work shall be performed
under a timely recorded no-lien construction contract, which, by a
separate document, shall be collaterally assigned to Tenant to secure
the obligation of Landlord to complete Landlord's Work. All change
orders with respect to Landlord's Work shall be requested, implemented,
and paid for in accordance with the terms and conditions of Exhibit
D-4, attached hereto. Landlord shall obtain all permits and
governmental authorizations necessary for the completion of Landlord's
Work.
(b) Tenant Finish Work. As part of Landlord's Work, Landlord
shall complete the Tenant Finish Work (as defined in Exhibit D-2
attached hereto) in accordance with specifications and final selections
to be: (i) prepared by Tenant, (ii) delivered to Landlord on or before
November 30, 1998; and (iii) attached hereto as Exhibit D-3 (the
"Tenant Finish Selections"); provided that, if the Tenant Finish
Selections are not delivered to Landlord by November 30, 1998, then:
(i) the Scheduled Completion Date shall be extended by a period equal
to the number of days after November 30, 1998, that it takes Tenant to
deliver the Tenant Finish Selections to Landlord; and (ii) the
obligation of Tenant to pay Rent shall commence on the Commencement
Date, notwithstanding anything to the contrary set forth therein. The
cost of the Tenant Finish Work shall be paid as provided in Exhibit
D-2. All change orders with respect to the Tenant Finish Work shall be
requested, implemented, and paid for in accordance with the terms and
conditions of Exhibit D-4.
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(c) Substantial Completion. The Building and the Improvements
shall be deemed to be substantially completed when Landlord delivers to
Tenant a copy of an architect's certificate of substantial completion
indicating that the Building and the Improvements have been completed
in accordance with Exhibits D-1 and D-2 (the "Substantial Completion
Date"), subject to identified "punch-list" items that: (i) do not
materially affect the ability of Tenant to use the Building and the
Improvements for the purpose of: (A) conducting its normal business
operations without material interruption or interference; or (B)
completing the installation of its fixtures and equipment; and (ii) are
able to be completed without materially interrupting or interfering
with the conduct of Tenant's normal business operations (the
"Punch-List"). Subject to Subsection 6(b), Landlord shall substantially
complete the Buildings and the Improvements on or before December 15,
1999 (the "Scheduled Completion Date").
(d) Completion Requirements. Notwithstanding anything to the
contrary set forth herein, the Buildings and the Improvements shall not
be deemed to be substantially completed until: (i) there are no
mechanics liens or claims or other similar liens or claims on or
against the Leased Premises with respect to the performance of
Landlord's Work, except for such liens and claims that are able to be
brought to a successful conclusion by the lienor or claimant without
materially interrupting or interfering with the conduct of Tenant's
normal business operations; (ii) the certificate of occupancy with
respect to the Leased Premises has been issued, or all requirements for
the issuance of the certificate of occupancy with respect to the Leased
Premises have been satisfied, and all other permits and governmental
authorizations have been issued with respect to the Building, the
Improvements, and the Park as required so that Tenant is able to
conduct its normal business operations without material interference or
interruption; (iii) the road providing access from Xxxxxxxx Road to the
Parcel, as shown on the site plan described on Exhibit A-3, has been
paved; provided that if, in Landlord's reasonable determination, the
weather will not permit completed paving, then such access road shall
be deemed to be substantially completed when the base coat of pavement
has been applied, and, in such event, the final coat of pavement shall
be applied, and such access road shall be completed, at such time as
Landlord reasonably determines that the weather permits the completion
of such access road; (iv) all parking lots that are part of Landlord's
Work have been paved and striped; provided that if, in Landlord's
reasonable determination, the weather will not permit paving and
striping of such parking lots, then such parking lots shall be deemed
to be substantially completed when the base coat of pavement has been
applied and striped, and, in such event, the final coat of pavement
shall be applied, and such parking lots shall be completed and striped,
at such time as Landlord reasonably determines that the weather permits
the completion and striping of such parking lots; and (v) at least 15
days have passed since
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Landlord gave Tenant access to the Warehouse Space for the purpose of
installing Tenant's distribution/warehouse fixtures and equipment.
(e) Tenant Access. Landlord shall give Tenant access to the
Warehouse Space for the purpose of installing Tenant's
distribution/warehouse fixtures and equipment as soon as possible after
the date hereof, consistent with the completion of the Warehouse Space;
provided that Tenant shall coordinate the installation of such fixtures
and equipment so that such installation does not interfere with the
performance of Landlord's Work. On the Substantial Completion Date,
Tenant may have full occupancy of the Leased Premises, subject to all
of the terms and conditions of this Lease other than the payment of
Rent.
(f) Non-Completion. Subject to Subsection 6(c), if the Tenant
Finish Selections are delivered to Landlord by November 30, 1998, and
the Buildings and Improvements are not substantially completed on or
before the Scheduled Completion Date, then: (i) the Commencement Date
shall be delayed until the date that is 15 days after the date on which
the Buildings and the Improvements are substantially completed; and
(ii) the Expiration Date shall be extended to the last day of that
calendar month during which the twentieth anniversary of the
Commencement Date occurs.
(g) Tenant's Work. Tenant shall be responsible for all other
work necessary to prepare the Leased Premises for occupancy by Tenant
that is not included expressly as Landlord's Work on Exhibit D or in
Section 12. Upon substantial completion of the Building and the
Improvements, Tenant may have occupancy of the Leased Premises, subject
to continued presence of Landlord on the Leased Premises to correct
"punch-list" items and defects in Landlord's Work. Such occupancy of
the Leased Premises shall be subject to all of the terms and conditions
of this Lease, except that payment of Base Rent shall commence on the
Commencement Date. Tenant shall coordinate any work it performs to
prepare the Leased Premises with the correction by Landlord of
"punch-list" items and defects in Landlord's Work.
(h) Construction Meetings. Commencing on the first full week
after the week in which Landlord commences Landlord's Work, and
continuing each week thereafter until Landlord's Work is completed, a
representative of Landlord and Tenant and the Inspecting Architect
shall attend construction meetings at a mutually acceptable location
during general business hours, for the purposes of discussing the
progress of Landlord's Work in accordance with the Construction
Schedule.
(i) Copies of Drawings. Upon reasonable written notice,
Landlord shall make the Construction Plans, including all drawings,
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available to Tenant or Tenant's Inspecting Architect (as defined in
Subsection 7(a)). Upon completion of Landlord's Work, including
completion of all Punch List items, Landlord shall provide to Tenant
hard copies of as-built drawings of Landlord's Work, together with a
set of such drawings in a reasonably acceptable CAD format.
(j) Selection of Arbitrator. Within 15 days after the date
hereof, Landlord and Tenant jointly shall agree on a party to resolve
any disputes (the "Construction Dispute Arbitrator") with respect to:
(i) defects in Landlord's Work; (ii) deviations of Landlord's Work from
the Construction Plans; (iii) substantial completion; or (iv) the
Punch-List or items to be included in, or excluded from, the Punch-List
(the "Construction Dispute"). The Construction Dispute Arbitrator must:
(i) be a qualified, independent expert on construction of projects
similar to the one contemplated by this Lease; (ii) not have worked for
either Landlord or Tenant, or the affiliates of either, within last
five years; and (iii) have at least ten years of experience as an
arbitrator of construction disputes.
(k) Construction Disputes. If there is any Construction
Dispute, then Landlord and Tenant shall endeavor diligently to resolve
the Construction Dispute within ten days after Landlord or Tenant, as
the case may be, gives notice to the other party of the Construction
Dispute; provided that, if Landlord and Tenant are unable to resolve
the Construction Dispute within such ten day period, then, within two
days after the expiration of such period, Landlord and Tenant shall
present to the Construction Dispute Arbitrator any existing materials
and information with respect to the Construction Dispute. Within three
days after receipt of any such materials and information, the
Construction Dispute Arbitrator shall determine the resolution of the
Construction Dispute, which resolution shall be binding upon Landlord,
Tenant, the general contractor, and the Inspecting Architect.
(l) Completion Delays. On or before November 30, 1998, Tenant
shall deliver to Landlord a written list of those components of the
Office Space that are required for the Warehouse Space to be
sufficiently completed so that the Warehouse Space can be used for the
normal business operations of Tenant. Notwithstanding anything to the
contrary set forth herein, if: (i) the date on which: (A) the Warehouse
Space is completed, so that the Warehouse Space satisfies the
requirements of Subsection 6(c), clauses (i) and (iii) of Subsection
6(d), and clause (iv) of Subsection 6(d), to the extent that the
parking lots are required so that the Warehouse Space can be used for
the normal business operations of Tenant; (B) the Office Space is
sufficiently completed so that the Warehouse Space can be used for the
normal business operations of Tenant (the "Warehouse Completion Date");
and (C) Applicable Laws permit the occupancy by Tenant of the Warehouse
Space, such limited
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use by Tenant of Office Space, and the use of the Warehouse Space for
the normal business operations of Tenant; is delayed until after the
date that is 15 days after the Scheduled Completion Date; (ii) the
delay in the Warehouse Completion Date (the "Warehouse Completion
Delay") results from any cause other than: (A) an act or omission of
Tenant; (B) an Event of Force Majeure (as defined in Subsection 26(g));
or (C) a Casualty (as defined in Subsection 17(a)) with respect to
which the Insurance Proceeds (as defined in Subsection 17(a)) payable
to Landlord exceed all amounts payable to the mortgage lender or lien
holder under, or with respect to, the Mortgage Lien (as defined in
Section 22) (the "Complete Destruction"); and (iii) Tenant is not in
default hereunder; then, for each day of delay from and including the
date 16 days after the Scheduled Completion Date to and including the
day before the Warehouse Completion Date, Landlord shall pay to Tenant
$10,000 as delay damages (the "Delay Payment"); provided that: (i) the
Delay Payment shall be the sole and exclusive remedy of Tenant with
respect to a Warehouse Completion Delay, unless the Warehouse
Completion Delay extends until after the date that is nine months after
the Scheduled Completion Date (the "Outside Completion Date") due to
any cause other than: (A) an act or omission of Tenant; or (B) a
Complete Destruction; and (ii) the maximum amount of the Delay Payment
shall not exceed $500,000, notwithstanding the length of the Warehouse
Completion Delay. If: (i) the Warehouse Completion Date is delayed
until after the Outside Completion Date; (ii) the Warehouse Completion
Delay results from any cause other than: (A) an act or omission of
Tenant; or (B) a Complete Destruction; and (iii) Tenant is not in
default hereunder; then, in addition to requiring Landlord to pay the
Delay Payment, Tenant may terminate this Lease; provided that the Delay
Payment and termination of this Lease shall be the sole and exclusive
remedies of Tenant with respect to a Warehouse Completion Delay that
extends until after the Outside Completion Date. If: (i) a Complete
Destruction occurs prior to substantial completion of the Building and
Improvements; and (ii) as a result of the Complete Destruction, the
Building and Improvements cannot be substantially completed until after
the Outside Completion Date; then, notwithstanding anything herein to
the contrary, Tenant may elect either to: (i) terminate this Lease; or
(ii) require Landlord to substantially complete the Building and
Improvements; provided that the right of Tenant to require Landlord to
substantially complete the Building and Improvements is contingent
upon: (A) there being no material reduction in the creditworthiness of
Tenant at the time of the Complete Destruction from the
creditworthiness of Tenant on the date hereof; and (B) there being no
material increase in the construction and financing costs with respect
to substantial completion of the Building and Improvements by Landlord.
If Tenant elects to require Landlord to substantially complete the
Building and Improvements in accordance with the terms and conditions
of this Subsection, then the Outside Completion Date and the other
applicable dates set forth in this Section 6 for the
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performance of Landlord's Work shall be extended in accordance with the
terms and conditions of Subsection 26(g) hereof.
7. TENANT INSPECTIONS.
(a) Completed Work Inspections. Upon receipt by Tenant of a
written request from Landlord for the inspection of a completed or
substantially completed and specified portion of Landlord's Work (the
"Inspection Request"), and within such period of at least five days as
is specified in the Inspection Request (the "Inspection Period"),
Tenant and/or an architect chosen by Tenant, at its expense, for
purposes of inspecting Landlord's Work (the "Inspecting Architect")
shall conduct with Landlord and/or the general contractor an inspection
(the "Completed Work Inspection") of such completed or substantially
completed and specified portion of Landlord's Work (the "Completed
Landlord's Work"). If neither Tenant nor the Inspecting Architect
conducts a Completed Work Inspection within the Inspection Period, then
the Completed Landlord's Work shall be deemed to be accepted by Tenant.
(b) List of Defects. In conjunction with each Completed Work
Inspection, including the final Completed Work Inspection (the "Final
Work Inspection"), Landlord and/or the general contractor and Tenant
and/or the Inspecting Architect jointly shall prepare a list of items
or components of the Completed Landlord's Work that: (i) are materially
defective or deviate materially from the Construction Plans; (ii) have
not been performed in a good and workmanlike manner; or (iii) have not
been performed materially in accordance with the terms and conditions
of this Lease (the "List of Defects"), and Landlord shall correct, or
cause to be corrected, the items or components on the List of Defects
as soon as reasonably is practicable; provided that Landlord shall have
no obligation to correct, or cause to be corrected, any defective or
deviating items or components expressly accepted by Tenant on a List of
Defects. Subject to Subsection 7(e) and Section 10, each portion of the
Completed Landlord's Work that is not included on the List of Defects
prepared in conjunction with the Completed Work Inspection of such item
or component of Landlord's Work shall be deemed to be accepted by
Tenant, other than items or components that become defective or
deviating after acceptance of such items or components by Tenant,
unless such defect or deviation is a result of actions or omissions of
Tenant or its employees, agents, contractors, invitees or licensees.
(c) Voluntary Inspections. Upon reasonable written notice
delivered to Landlord, Tenant and/or the Inspecting Architect may
perform such additional inspections of Landlord's Work as Tenant and/or
the Inspecting Architect reasonably deem to be necessary or appropriate
(the "Voluntary Inspections"); provided that: (i) Tenant and/or the
Inspecting
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Architect shall specify the portion of Landlord's Work to be inspected;
(ii) Tenant and/or the Inspecting Architect shall comply with all
health and safety rules of which Tenant has been informed that have
been established by Landlord and/or the general contractor for
personnel present on the Premises; and (iii) Tenant and/or the
Inspecting Architect shall coordinate the inspections so that the
inspections do not interfere with the performance of Landlord's Work.
Landlord reserves the right to accompany, and/or to have the general
contractor accompany, Tenant and/or the Inspecting Architect during any
inspection of Landlord's Work. In conjunction with any Voluntary
Inspection, Tenant shall notify Landlord of any item or component of
Landlord's Work that: (i) is materially defective or deviates
materially from the Construction Plans; (ii) has not been performed in
a good and workmanlike manner; or (iii) has not been performed
materially in accordance with the terms and conditions of this Lease;
and Landlord shall correct, or cause to be corrected, such items or
components as soon as reasonably is practicable; provided that, subject
to Subsection 7(e) and Section 10, Landlord shall have no obligation to
correct, or cause to be corrected, any defective or deviating items or
components previously accepted by Tenant, other than items or
components that become defective or deviating after acceptance of such
items or components by Tenant, unless such defect or deviation is a
result of actions or omissions of Tenant or its employees, agents,
contractors, invitees or licensees.
(d) Punch-List Preparation. Upon receipt by Tenant of an
Inspection Request from Landlord for a Final Work Inspection, and
within the Inspection Period: (i) Tenant and/or the Inspecting
Architect shall conduct with the Landlord and the general contractor
the Final Work Inspection; and (ii) the Inspecting Architect and the
general contractor jointly shall prepare the Punch-List. Completion of
the Punch-List shall not be a condition of substantial completion of
the Building and Improvements; provided that, the Building and
Improvements shall not be deemed to be substantially complete if the
Punch-List includes items that: (i) materially affect the ability of
Tenant to use the Building and the Improvements for the purpose of: (A)
conducting its normal business operations without material interruption
or interference; or (B) completing the installation of its fixtures and
equipment; and (ii) are not able to be completed without materially
interrupting or interfering with the conduct of Tenant's normal
business operations. Any dispute with respect to the Punch-List, or
items included in or excluded from the Punch-List, shall be resolved in
accordance with Subsection 6(k).
(e) Tenant Acceptance. Notwithstanding anything to the
contrary set forth herein, no acceptance, or deemed acceptance, by
Tenant pursuant to this Section shall: (i) be applicable with respect
to any Latent Defects; or (ii) relieve Landlord of any of its warranty
obligations
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under Section 10. Deemed acceptance by Tenant of a portion of
Landlord's Work shall mean that, subject to Section 10: (i) the items
and components of such portion of Landlord's Work were installed or
constructed materially in accordance with the Construction Plans and
the terms and conditions of this Lease, to the extent that the same can
be discovered during a reasonably diligent inspection of the Leased
Premises; (ii) the fit, color, and finish of the items and components
of such portion of Landlord's Work are acceptable to Tenant or were
selected by Tenant; and (iii) items and components actually installed
with respect to such portion of Landlord's Work are the items and
components specified in the Construction Plans to be installed with
respect to such portion of Landlord's Work. Deemed acceptance by Tenant
of a portion of Landlord's Work shall not mean that Tenant has any
responsibility for, or has relieved Landlord, the general contractor,
or any other subcontractors from its or their responsibility for: (i)
compliance with the Applicable Laws pursuant to the terms and
conditions of this Lease; or (ii) any warranty obligations.
8. TAXES AND ASSESSMENTS.
(a) Payment of Real Estate Taxes. Tenant shall pay and
discharge when due all real estate taxes and assessments (the "Real
Estate Taxes") levied during the Lease Term on, against, or with
respect to the Leased Premises. Within 20 days after any installment or
payment of such Real Estate Taxes is due, Tenant shall deliver to
Landlord satisfactory evidence that the installment or payment has been
paid and discharged in full. If the Lease Term commences or expires on
a date other than the first day or the last day of a calendar year,
respectively, then: (i) Tenant shall pay and discharge so much of the
Real Estate Taxes levied with respect to such calendar year in which
the Lease Term commences or expires as shall be allocable to Tenant by
proration (based upon the number of days in such calendar year after
and including the Commencement Date or before and including the
expiration date, respectively); and (ii) Landlord shall pay and
discharge the remainder of the Real Estate Taxes levied with respect to
such calendar year in which the Lease Term commences or expires. All
installments and payments of Real Estate Taxes that are the obligation
of Tenant hereunder shall be deemed to be Rent, even though such
installments and payments are made to the public or quasi-public bodies
that levy, charge, or impose Real Estate Taxes. Landlord shall pay and
discharge when due all Real Estate Taxes levied prior to the Lease Term
on, against, or with respect to the Leased Premises, and first due and
payable before or during the Lease Term. Within 20 days after any
installment or payment of such Real Estate Taxes is due during the
Lease Term, Landlord shall deliver to Tenant satisfactory evidence that
the installment or payment has been paid and discharged in full.
Landlord shall: (i) cause the Leased Premises
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to be established as a separate parcel for the purpose of the
assessment of Real Estate Taxes; and (ii) cause to be sent directly to
Tenant the bills, statements, and invoices for, or with respect to,
Real Estate Taxes levied during the Lease Term on, against, or with
respect to the Leased Premises.
(b) Exclusions from Real Estate Taxes. Real Estate Taxes shall
include any tax, levy, or other charge on, against, or with respect to
Landlord's interest hereunder or on, against, or with respect to
ownership interests in the Leased Premises. Real Estate Taxes shall not
include: (i) general gross receipts taxes; (ii) franchise taxes; or
(iii) income taxes. Notwithstanding anything to the contrary set forth
herein, if any governmental authority imposes a general gross receipts
tax, a franchise tax, an income tax, or a tax on rents, any or all or
which are adopted or enacted, as evidenced by the provisions of the
Applicable Laws or the legislative history, in substitution for a real
estate tax or assessment levied on, against, or with respect to: (i)
Landlord's interest hereunder; or (ii) ownership interests in the
Leased Premises; then such taxes, levies, or other charges (the
"Substitute Tax(es)") shall be deemed to constitute Real Estate Taxes
hereunder. If a Substitute Tax is enacted, then Tenant shall pay all
Real Estate Taxes remaining in effect, notwithstanding the enactment of
the Substitute Tax, plus all Substitute Taxes; provided that: (i) the
aggregate amount of: (A) the Real Estate Taxes payable by Tenant during
any year; plus (B) the Substitute Taxes payable by Tenant during that
year; shall not exceed the amount of the Real Estate Taxes payable by
Tenant during the year before the Substitute Tax first is payable by
Tenant (the "Tax Payment Base"); and (ii) the Tax Payment Base shall be
increased annually, on a compounded basis, by the percentage increase
in the Consumer Price Index for Urban Wage Earners and Clerical
Workers, U.S. Cities Average, All Items (Base Year 1982-84=100), from
the prior year. The obligations of Tenant hereunder with respect to the
payment of Real Estate Taxes levied during the final calendar year of
the Lease Term shall survive the termination of this Lease.
(c) Other Taxes and Assessments. Tenant shall pay and
discharge, as and when assessed, all taxes, levies, and charges imposed
on, against, or with respect to: (i) the conduct of its business
operations in, on, or from the Leased Premises; and (ii) its trade
fixtures, equipment, inventory and other personal property in, on or
about the Leased Premises. Tenant also shall pay and discharge, as and
when assessed, all Contribution Payments (including, without
limitation, Common Access Way Expenses, Common Utility Expenses, Common
Drainage and Irrigation Systems Expenses, Pylon Sign Expenses, Common
Security Costs, Common Capital Construction Costs, and Individual
Capital Construction Costs) (all as defined in the Declaration) levied
or assessed during the Lease Term on, against or with respect to, the
Leased
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Premises pursuant to the Declaration (the "Park Assessments"), and
Tenant shall pay all late charges, interest and costs of collection
under the Declaration if any installment or payment of Park Assessments
is not paid or discharged by Tenant when required hereunder. Within 20
days after any installment or payment of such Park Assessments is due,
Tenant shall deliver to Landlord satisfactory evidence that the
installment or payment required to be made by Tenant has been paid and
discharged in full. If the Lease Term commences or expires on a date
other than the first day or the last day of a calendar year,
respectively, then: (i) Tenant shall pay so much of the Park
Assessments levied or assessed with respect to such calendar year in
which the Lease Term commences or expires as shall be allocable to
Tenant by proration (based upon the number of days in such calendar
year after and including the Commencement Date or before and including
the expiration date, respectively); and (ii) Landlord shall pay and
discharge the remainder of the Park Assessments levied or assessed with
respect to such calendar year in which the Lease Term commences or
expires. All installments and payments of Park Assessments that are the
obligation of Tenant hereunder shall be deemed to be Rent, even though
such installments and payments are made to a third party. The
obligations of Tenant hereunder with respect to the payment of such
Park Assessments levied during the final calendar year of the Lease
Term shall survive the termination of this Lease. Landlord shall pay
and discharge all Park Assessments levied prior to the Lease Term and
first due and payable prior to or during the Lease Term (the "Prior
Park Assessments"), and Landlord shall pay all late charges, interest
and costs of collection under the Declaration if any installment or
payment of Prior Park Assessments is not paid or discharged when
required. Within 20 days after any installment or payment of Prior Park
Assessments is due, Landlord shall deliver to Tenant satisfactory
evidence that such installment or payment has been paid and discharged.
Notwithstanding anything to the contrary set forth herein, the maximum
amount of the Park Assessments payable by Tenant shall be limited in
accordance with Exhibit K, attached hereto (the "Assessment Limit
Amount"), and Landlord shall pay and discharge any Park Assessments in
excess of the Assessment Limit Amount.
(d) Contesting Real Estate Taxes. Tenant shall have the right
to contest, in the manner prescribed by law and otherwise in a
reasonable and diligent manner, the calculation of Real Estate Taxes
levied on, against or with respect to the Leased Premises or the
valuation of the Leased Premises for purposes of calculating such Real
Estate Taxes, at Tenant's cost and expense, if: (i) Tenant determines
in good faith that such Real Estate Taxes have been incorrectly
calculated or the Leased Premises has been overvalued for purposes of
calculating such Real Estate Taxes (the "Tax Dispute"); (ii) Tenant
delivers to Landlord a written notice describing the Tax Dispute and
the proposed contest with
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particularity; and (iii) if such contest is to be made during the last
two years of the Initial Lease Term or an Extension Term, as the case
may be, Landlord does not object to the proposed contest within ten
days after receipt of such notice, which objection shall be made only
on a reasonable basis. Pending resolution of the Tax Dispute, Tenant
shall pay the amount of the Real Estate Taxes levied on, against or
with respect to the Leased Premises as may be required by the
Applicable Laws; provided that, if the Applicable Laws do not require
Tenant to pay the full amount of such Real Estate Taxes pending
resolution of the Tax Dispute, then, after resolution of the Tax
Dispute, Tenant shall pay any unpaid amount of such Real Estate Taxes.
If any settlement will result, or reasonably is anticipated by Landlord
to result, in increased Real Estate Taxes at any time, then Tenant
shall not agree to the settlement of a Tax Dispute without Landlord's
prior written consent, which consent shall not be withheld
unreasonably. Notwithstanding anything to the contrary set forth
herein, Tenant shall have the right to make a claim for a refund of
Real Estate Taxes at any time, including after the expiration or
earlier termination of this Lease, if Tenant determines that it has
overpaid Real Estate Taxes. Until such time as the first installment of
Real Estate Taxes is due and payable following the first reassessment
of the Leased Premises after resolution of a contest commenced or
conducted by Tenant, Tenant shall indemnify and hold harmless Landlord
from and against any and all increases in Real Estate Taxes that result
from a contest commenced or conducted by Tenant, together with all
reasonable attorneys' fees and court costs associated therewith.
9. USE OF LEASED PREMISES. The Leased Premises shall be
occupied and used solely as a facility for distribution/warehouse, light
assembly, and general office purposes, and for any other purpose permitted under
zoning classification "I-2", and for no other uses. Tenant shall have no right
to change the zoning classification applicable to the Leased Premises or to
obtain variances from such classification or the requirements thereof; provided
that Tenant may obtain variances from such classification or the requirements
thereof: (a) with respect to use of the Leased Premises, if such variances are
necessary to permit the use of the Leased Premises for light assembly; and/or
(b) with respect to development standards for the Leased Premises, if such
variances are necessary to make alterations or additions permitted to be made
hereunder. Tenant covenants and agrees that:
(a) Tenant shall not permit any waste, damage or nuisance in,
on or about the Leased Premises, or use or permit the use of the Leased
Premises for any unlawful purpose or in any manner that materially
violates the terms and conditions of the Declaration, all subject to
the Assessment Limit Amount;
(b) Tenant shall conduct its business and keep the Leased
Premises in a safe, clean and sightly condition that complies with all
rules,
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regulations and guidelines of the health, fire, building, environmental
and other governmental agencies having jurisdiction over Tenant's
business operations and/or the Leased Premises, and Tenant shall comply
with all Applicable Laws;
(c) Tenant shall not dump, or otherwise dispose of, any
chemicals, metals, garbage, trash or other industrial by-products or
incidentals to Tenant's business in, on or about the Leased Premises,
and Tenant shall use only waste removal facilities on the Leased
Premises that are appropriate, leakproof and fireproof;
(d) Tenant shall comply with the terms and conditions of the
Declaration, use commercially reasonable efforts to cause its agents
and employees to comply with the terms and conditions of the
Declaration, and use reasonable efforts to cause its customers,
invitees, licensees and concessionaires to comply with the terms and
conditions of the Declaration, all subject to the Assessment Limit
Amount; and
(e) Tenant shall not: (i) use the Leased Premises for the
treatment or disposal of any wastes, materials or substances that are
hazardous, toxic or radioactive and are, or become, regulated by any of
the Applicable Laws (including, without limitation, asbestos-containing
materials and electrical transformers or ballasts that contain PCB's)
(the "Hazardous Substances"); or (ii) store or use any Hazardous
Substance on the Leased Premises, except for such storage and usage of
those types and amounts of Hazardous Substances as may be necessary for
the operations permitted under this Lease; provided that Tenant shall
not stockpile Hazardous Substances or otherwise store more Hazardous
Substances on the Leased Premises than may be necessary to conduct the
operations permitted under this Lease to be conducted with reasonable
dispatch. All storage, usage and transportation of Hazardous Substances
shall be conducted in compliance with all Applicable Laws, and Tenant
shall take all necessary and appropriate safety precautions in
connection with such storage, usage and transportation. Tenant shall
not install or locate on the Leased Premises any underground storage
tanks (the "UST's"). Tenant agrees to indemnify, defend (by counsel
reasonably acceptable to Landlord), protect and hold harmless Landlord
and any party affiliated with Landlord from and against any and all
claims, judgments, liabilities, losses, costs and expenses (including,
without limitation, reasonable attorneys' fees and court costs) arising
from, or in connection with: (i) any storage or usage of any Hazardous
Substances by Tenant (or its employees, agents, contractors, invitees
or licensees) in, on or about the Leased Premises; or (ii) any
transportation of any Hazardous Substances to or from the Leased
Premises by Tenant (or its employees, agents, contractors, invitees or
licensees), whether or not such storage, usage or transportation
constitutes a failure of Tenant to observe or
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perform fully its obligations under this Subsection or to comply with
or observe fully the limitations and restrictions under this
Subsection. The claims, judgments, liabilities, losses, costs and
expenses from and against which Tenant has agreed to indemnify, defend,
protect and hold harmless Landlord and any party affiliated with
Landlord under this Subsection shall, to the extent covered by the
preceding indemnity, include the following: (i) any obligation or
liability of Tenant or Landlord under any of the Applicable Laws to
remove any Hazardous Substance or contaminated soil or groundwater from
the Leased Premises, "clean up" any contamination of the soil or the
groundwater in, on or under the Leased Premises, or perform any
remediation of or for the Leased Premises; (ii) all charges, fines or
penalties imposed by governmental authority or under any of the
Applicable Laws governing Hazardous Substances; (iii) any excess of the
fair market value of the Leased Premises without contamination by
Hazardous Substances over the fair market value of the Leased Premises
as so contaminated; and (iv) all claims by, and liabilities to, any
third party. The obligations of Tenant under this Subsection shall
survive the expiration or earlier termination of this Lease.
Tenant shall have the right to contest, in the manner prescribed by the
Applicable Laws, and otherwise in a reasonable and diligent manner, any
allegation by a governmental entity that there exists a violation of any of the
Applicable Laws, if such alleged violation exists as a result of actions or
omissions of Tenant or its employees, agents, contractors, invitees or licensees
(the "Alleged Violation"), and if: (a) Tenant determines in good faith that no
violation exists or that the Applicable Law is inapplicable; and (b) Tenant
delivers to Landlord a written notice describing the Alleged Violation with
particularity; provided that: (a) such contest postpones the enforcement of the
Applicable Law that is the subject of the Alleged Violation until the contest is
completed, postpones any action against Landlord with respect to the Alleged
Violation until the contest is completed, and postpones the imposition of any
charges, fines or penalties until the contest is completed; (b) such contest
shall not result in the imposition of additional charges, fines or penalties if
the contest is unsuccessful; and (c) the Leased Premises shall not deteriorate
or decline in value as a result of, or in connection with, the contest and the
failure to correct the Alleged Violation. Tenant shall not agree to any
settlement of an Alleged Violation without the prior written consent of
Landlord, which consent shall not be withheld unreasonably. Tenant shall
indemnify and hold harmless Landlord from: (a) any and all actions against
Landlord with respect to any contest hereunder or any Alleged Violation that
Tenant is contesting; (b) any and all charges, fines and penalties imposed upon
Landlord as a consequence of any contest hereunder or any Alleged Violation that
Tenant is contesting; and (c) any other claims, judgments, liabilities, losses,
costs and expenses arising from, or incurred in connection with, any contest
hereunder or any Alleged Violation that Tenant is contesting (including, without
limitation, reasonable attorneys' fees and court costs).
10. LANDLORD WARRANTIES.
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(a) Acceptance Letter. On the Commencement Date, Tenant shall
execute and deliver to Landlord a certificate, in the form attached
hereto as Exhibit E (the "Acceptance Letter"), stating that Tenant has
accepted the Leased Premises, subject to the Punch-List, and subject
to: (i) latent defects (the "Latent Defects") that: (A) could not be
discovered during a reasonably diligent inspection of the Leased
Premises, including, without limitation, latent defects in items or
components of Landlord's Work that could not be discovered due to the
inability of Tenant to perform a reasonably diligent inspection or
complete test of such items or components because: (1) the season in
which the Substantial Completion Date occurs is incompatible with an
inspection or test of such items or components; or (2) the load bearing
capabilities of such items or components cannot be tested before the
Commencement Date; and (B) subsequently are discovered and identified
with particularity in a written notice delivered to Landlord within one
year after the Commencement Date (the "Warranty Period"); and (ii)
items or components of Landlord's Work that become defective or require
repair or replacement and are identified with particularity in a
written notice delivered to Landlord during the Warranty Period (the
"Warranty Items"); provided that neither: (A) items or components that
Tenant is required to repair or replace as part of the Preventative
Maintenance (as defined in Section 13 of this Lease); nor (B) items or
components of Landlord's Work that become defective or require repair
or replacement as a result of actions or omissions of Tenant or its
employees, agents, contractors, invitees, or licensees; shall be
Warranty Items. Notwithstanding anything to the contrary set forth
herein, the Warranty Period for identifying Latent Defects and Warranty
Items with respect to the foundation, floor structure, exterior walls,
structural steel, roof, and other structural parts shall be four years
after the Commencement Date. The Acceptance Letter shall confirm the
square footage of the Building for purposes of the Declaration and for
purposes of calculating Base Rent for the Extension Terms.
(b) Correction Obligations. Landlord promptly shall correct
the Punch-List items within 60 days after receipt of the Acceptance
Letter with respect thereto, and Landlord promptly shall correct any
Latent Defects and Warranty Items within 120 days after receipt of the
written notice thereof. If Landlord fails to correct a Punch-List item,
Latent Defect, or Warranty Item within the period specified under this
Section, then Tenant shall have the right to correct such Punch-List
item, Latent Defect, or Warranty Item, and Landlord shall reimburse
Tenant on demand for the reasonable costs and expenses of such
correction; provided that, if Landlord fails to reimburse Tenant on
demand for the reasonable costs and expenses of such correction, then
the terms and conditions of Section 20 shall apply. Landlord shall
attach to the Acceptance Letter a list of all warranties that: (i) are
extended to Landlord by manufacturers, suppliers or subcontractors in
connection with the completion of Landlord's Work;
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and (ii) cover the foundation, exterior walls and those other parts of
the Leased Premises that Tenant is obligated to maintain under Section
13 (the "Contractor Warranties"); and, upon the expiration of the
Warranty Period, Landlord shall assign to Tenant all of the Contractor
Warranties. Landlord also shall attach to the Acceptance Letter a
complete list of all manufacturers, suppliers and subcontractors that
manufactured, supplied or performed any portion of Landlord's Work (the
"Subcontractors"). During the Warranty Period, Landlord shall enforce,
on behalf of Landlord and Tenant, all of: (i) the Contractor
Warranties; (ii) the obligations of the warrantors under all of the
Contractor Warranties; and (iii) any obligations of the Subcontractors
to correct defects in Landlord's Work or deviations from the
Construction Plans. If, for any reason other than: (i) an action or
omission of Tenant or its employees, agents, contractors, invitees or
licensees; or (ii) the bankruptcy, insolvency, or dissolution of the
warrantor; any of the Contractor Warranties become void or
unenforceable, then, during the Warranty Period, Landlord shall honor
any such Contractor Warranties as though the Contractor Warranties
originally had been made by Landlord. If, as a result of an action or
omission of Landlord or its employees, agents, contractors, invitees,
or licensees, any Contractor Warranty becomes void or unenforceable,
then, during the period of such Contractor Warranty, Landlord shall
honor the Contractor Warranty as though the Contractor Warranty
originally had been made by Landlord.
11. TENANT ALTERATIONS. Tenant, at its cost and expense, may
install in the Building such trade fixtures, equipment and other personal
property as Tenant determines to be necessary or appropriate to conduct its
business. Tenant, at its cost and expense, also may make non-structural
alterations or additions to the interior of the Building if: (a) Tenant delivers
to Landlord written notice describing the proposed alteration or addition with
particularity, and provides to Landlord copies of any plans and specifications
for the alteration, and (b) upon the expiration of the Lease Term or earlier
termination of this Lease, Tenant surrenders the portion of the Leased Premises
altered or improved in as good a condition as on the date that Tenant accepts
the Leased Premises, except for ordinary wear and tear, or the effects of damage
to, or the total or partial destruction of, the Building by fire or other
casualty that Landlord is obligated to repair or replace, or for which Landlord
retains the Insurance Proceeds. Tenant shall make no structural alterations,
improvements or additions of or to any part of the Leased Premises, or any
alterations, improvements or additions to the exterior of the Building, without
the prior written consent of Landlord. All alterations and additions to the
Leased Premises, except only Tenant's trade fixtures and personalty, shall
become the sole property of Landlord upon the expiration of the Lease Term or
earlier termination of this Lease. All exterior signs shall be subject to: (a)
satisfaction of the requirements of all applicable governmental authorities; and
(b) compliance with signage standards established with respect to the Park; and
installation thereof shall be the sole responsibility of Tenant. Prior to the
time that Tenant makes any structural alterations or additions to the Leased
Premises, Landlord and Tenant shall agree which
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portions of such alterations and additions shall become the property of Landlord
upon surrender by Tenant of the Leased Premises and which portions of such
alterations and additions shall remain the property of Tenant.
12. UTILITIES. As part of Landlord's Work, Landlord shall
install (or cause installation of) facilities to furnish electricity, water,
sewer and other services specified in Exhibit D-1 to the Building, so that such
utility services are not metered commonly with any other building. Landlord
represents and warrants that the voltages, amperages, volumes, capacities and
amounts of electricity, water, sanitary sewer, storm sewer, and other services
specified in Exhibit D-1 are adequate for use of the Building and the
Improvements for Tenant's normal business operations as conducted in its current
facility located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx, reflecting the
increased size of the Leased Premises over the size of such current facility.
During the Lease Term, Tenant shall pay all usage and other charges for all
utility services furnished to the Leased Premises (including, without
limitation, electricity, water, sewer and telephone). If any equipment installed
by Tenant requires additional utility facilities, then the costs of installing
such additional facilities shall be paid by Tenant.
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13. REPAIRS AND REPLACEMENTS.
(a) General Repairs. Tenant, at its cost and expense, subject
to Landlord's obligation to complete or correct Punch-List items,
Latent Defects, and Warranty Items, shall keep and maintain (and
provide all repairs and replacements necessary to keep and maintain)
the Leased Premises and every part thereof at all times in good order,
condition and repair (including, without limitation: (a) all interior
and exterior electrical, mechanical and utility fixtures, equipment and
systems; (b) all other fixtures, equipment and systems of any nature
located on the Leased Premises; (c) all interior walls, floors, floor
coverings and ceilings; (d) the foundation, floor structure, exterior
walls, structural steel, roof, and other structural parts of the
Building; and (e) all exterior signs and all landscaped areas,
driveways and parking lots). Without limiting the generality of the
foregoing, Tenant shall implement: (a) a janitorial program of cleaning
sufficient to keep the Leased Premises in a safe, clean and sightly
condition at all times; (b) a program of grass cutting and landscape
maintenance sufficient to keep all landscaped areas in a safe, clean
and sanitary condition at all times; (c) a regularly scheduled program
of preventive maintenance and repair of the roof, the heating,
ventilation and air conditioning system, and all electrical, mechanical
and utility fixtures, equipment and systems serving the Leased
Premises, so that such items are in good order, condition and repair at
all times; and (d) a regularly scheduled program of sealing, re-topping
and striping all driveways and parking lots sufficient to keep all
driveways and parking lots in a safe, clean and sanitary condition at
all times (the "Preventative Maintenance"). Tenant shall not be
responsible for making any repairs occasioned by any negligence,
intentional act or willful misconduct of Landlord or its employees,
contractors or agents, which repairs shall be made promptly by Landlord
at its cost and expense. Notwithstanding anything to the contrary set
forth herein, during the Warranty Period: (i) Landlord shall enforce,
on behalf of Landlord and Tenant, all of the Contractor Warranties, and
the obligations of the warrantors under all of the Contractor
Warranties; and (ii) Tenant shall have no obligation to provide repairs
or replacements that a warrantor is obligated to make under a
Contractor Warranty.
(b) Capital Replacements. Notwithstanding anything to the
contrary set forth herein, if any capital replacement becomes necessary
or appropriate during the final two years of the Lease Term, as
extended by any Extension Term, then Tenant shall notify Landlord, and
Landlord either shall: (i) require Tenant to repair, but not replace,
the item that is in need of replacement, at Tenant's cost and expense;
or (ii) make the needed capital replacement, at Landlord's cost and
expense; provided that, if it is: (i) impractical; (ii) impossible; or
(iii) uneconomical, based upon a comparison of the cost to repair the
item that is in need of replacement
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and the cost to replace such item; for Tenant to repair an item that is
in need of replacement, then Landlord may not opt to require Tenant to
repair such item, and Landlord shall replace such item. If Landlord
makes a needed capital replacement, then: (i) the cost and expense of
such capital replacement shall be amortized over the useful life of the
capital replacement using an interest rate equal to the rate at which
Landlord is able to borrow funds to make the capital replacement; and
(ii) the Base Rent for the remaining Lease Term, as extended by any
Extension Term for which Tenant already has exercised (or subsequently
does exercise) its extension option, and the Minimum Extension Rent (as
defined on Exhibit B) shall be increased to include such cost and
expense, as amortized in accordance with the terms and conditions of
this Subsection.
14. ASSIGNMENT AND SUBLETTING.
(a) Requirements of Landlord's Consent. Tenant shall not
assign this Lease or any interest herein, sublet the whole or any part
of the Leased Premises, or permit any other party, (including, without
limitation, concessionaires or licensees) to operate in, on or from, or
occupy the whole or any part of, the Leased Premises, without the prior
written consent of Landlord, which consent shall not be withheld or
delayed unreasonably; provided that Landlord's consent shall not be
required with respect to an assignment of this Lease or any interest
herein to any entity that is a wholly-owned subsidiary of Brightpoint,
Inc. ("BPI") or of Tenant. Any transfer of this Lease by operation of
law (including, without limitation, a transfer as a result of a change
of control, merger, consolidation or liquidation of Tenant) shall
constitute an assignment for purposes of this Lease. Except as
expressly provided in Subsection 14(b): (i) Tenant shall remain fully
liable to perform all of its obligations under this Lease,
notwithstanding any assignment of this Lease; and (ii) no consent by
Landlord to any Tenant assignment shall release Tenant from such
liability. The consent of Landlord to any assignment or subletting
shall not constitute a waiver of the requirement for such consent to
any subsequent assignment or subletting.
(b) Permitted Transfers. Consent by Landlord shall not be
required with respect to: (i) the merger or consolidation of Tenant
with one or more entities (the "Merger"); (ii) the sale by Tenant of
all or substantially all of its assets, including this Lease, to a
single entity (the "Asset Sale'"); or (iii) the change of control of
Tenant resulting from a sale, transfer, or issuance of stock in Tenant
to another: (A) entity; (B) group of related entities; (C) person;
and/or (D) group of related persons (the "Stock Sale"); if: (i) the
entity to which this Lease is transferred or assigned as a result of a
Merger or Asset Sale (the "Assignee"), or the entity(ies) and/or
person(s) that obtains control of Tenant as a result of a Stock Sale
(the "Purchaser"), as the case may be, has a net worth equal to or
greater than
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the net worth of BPI reflected on the financial statements for the
quarter ending June 30, 1998, and provided to Landlord; (ii) the
Assignee or the Purchaser does not control, is not controlled by, or is
not under common control with Tenant or BPI; (iii) the Assignee
specifically assumes the obligations of Tenant under this Lease, or the
Purchaser assumes the obligations of BPI under that certain Guaranty
Agreement entered into by BPI, dated as of the date of the execution of
this Lease (the "Guaranty Agreement"), and the Assignee or the
Purchaser, as the case may be, agrees to cure any outstanding default
pursuant to such obligations (the "Outstanding Defaults"); and (iv)
Tenant otherwise complies with the terms and conditions of this Section
(collectively, the "Transfer Conditions"). If the Transfer Conditions
are satisfied with respect to a Merger or Asset Sale, then the assignor
Tenant shall be released from its liability to perform any obligations
of Tenant under this Lease that first arise after the date of the
Merger or Asset Sale; provided that the Assignee or the Purchaser, as
the case may be, shall be liable to perform all such obligations.
(c) Guaranty Agreement. After: (i) any assignment of this
Lease or any interest herein (including, without limitation, an
assignment by virtue of a foreclosure of a Leasehold Mortgage (as
defined in Subsection 14(d) or an assignment of this Lease or the
Leasehold under Subsection 14(d)); or (ii) any subletting of the whole
or any part of the Leased Premises; the Guaranty Agreement shall remain
in full force and effect, and BPI shall remain fully liable to perform
all of its obligations pursuant to the Guaranty Agreement; provided
that, if the Transfer Conditions are satisfied with respect to a Merger
or Asset Sale, then the Guaranty Agreement shall terminate in
accordance with its terms and conditions.
(d) Leasehold Mortgage. Notwithstanding anything to the
contrary set forth herein, Tenant shall have the right to mortgage its
leasehold interest under this Lease (the "Leasehold") to a mortgage
lender that is not affiliated with Tenant (the "Leasehold Lender");
provided that: (i) either Tenant or the guarantor under the Guaranty
Agreement is the debtor under the loan secured by such mortgage (the
"Leasehold Loan"); and (ii) the loan documents evidencing and securing
the Leasehold Loan provide that, if Landlord, at its option, either
waives a Tenant Default (as defined in Section 19) or extends the cure
period applicable to a Tenant Default, then the Leasehold Lender shall
not have the right to: (i) take possession of the Leased Premises; (ii)
foreclose the mortgage securing the Leasehold Loan (the "Leasehold
Mortgage"); or (iii) accept an absolute assignment of this Lease or the
Leasehold; on the basis of the Tenant Default, until all cure periods,
including any extended cure periods, applicable to the Tenant Default
have lapsed without the Tenant Default being cured. The consent by
Landlord shall not be required with respect to: (i) a Leasehold Loan or
a Leasehold Mortgage; (ii) the foreclosure of a
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Leasehold Mortgage; or (iii) the absolute assignment of this Lease and
the Leasehold to the Leasehold Lender or its successor or assign after
a default under the Leasehold Loan. If Tenant: (i) mortgages the
Leasehold pursuant to the terms and conditions of this Subsection; and
(ii) provides to Landlord the name and address of the Leasehold Lender;
then: (i) Landlord shall provide to the Leasehold Lender copies of all
notices of Tenant Defaults provided to Tenant pursuant to this Lease;
(ii) Landlord shall accept a cure by either Tenant or the Leasehold
Lender of any such Tenant Default at any time during the cure period,
including any extended cure period, applicable to the Tenant Default
(the "Tenant Cure Period"); and (iii) Landlord shall accept a cure by
the Leasehold Lender of any such Tenant Default at any time during a
period of ten days after the Tenant Cure Period lapses; provided that,
neither the Leasehold Lender nor its successor or assign shall have any
obligation to cure any Tenant Default unless the Leasehold Lender or
its successor or assign: (i) takes possession of the Leased Premises;
or (ii) accepts an absolute assignment of this Lease or the Leasehold.
Upon a Leasehold Lender, or its successor or assign, accepting an
absolute assignment of this Lease or the Leasehold, the Leasehold
Lender, or its successor or assign, may require Landlord to enter into
a replacement lease for the Leased Premises (the "Replacement Lease").
Upon execution of the Replacement Lease, and the cure of all of all
Outstanding Defaults, this Lease shall terminate. The term of the
Replacement Lease shall commence on the date that this Lease
terminates, and continue for the remainder of the Lease Term. The
Replacement Lease otherwise shall contain the same terms and conditions
as this Lease, except for terms and conditions that no longer are
applicable or that previously have been performed.
15. ACCESS TO LEASED PREMISES. Tenant shall permit Landlord
and its agents to enter upon the Leased Premises at all reasonable times and
upon reasonable notice (except in the event of an emergency, with respect to
which such time and notice requirements shall not apply) to: (a) inspect and
examine the Leased Premises; (b) show the Leased Premises to prospective
purchasers and mortgagees, and, during the last 18 months of the Lease Term or
during the continuation of a default by Tenant hereunder, to prospective
tenants; (c) make such repairs and replacements as Landlord may deem necessary,
at its cost and expense; or (d) exercise its rights hereunder in connection with
performing a covenant of Tenant that is in default, without: (i) any such act
constituting any eviction of Tenant in whole or in part; (ii) Rent in any manner
abating by reason of loss or interruption of Tenant's business in the Leased
Premises, unless such loss or interruption results from the negligence,
intentional act, or willful misconduct of Landlord or its employees, agents, or
contractors; and (iii) responsibility for any loss or damage to Tenant's
business or property, other than loss or damage resulting from the negligence,
intentional act, or willful misconduct of Landlord, its agents, employees or
contractors; provided that any repairs and replacements for such negligence,
intentional acts, or willful misconduct shall be made at the cost and expense
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of Landlord. Landlord shall use reasonable care, and shall cause its agents to
use reasonable care, (except in the event of an emergency) not to cause any
material interruption or interference with the conduct of Tenant's business as a
result of the exercise of the Landlord's right of entry. If Landlord and/or its
agents enter upon a portion of the Leased Premises designated by Tenant as a
"secure area" for the purpose of inspecting and/or examining such portion of the
Leased Premises, then, upon request by Tenant, Landlord shall enter into, and/or
cause its agents to enter into, a confidentiality agreement with respect to
confidential or proprietary matters that may be observed by Landlord and/or its
agents in connection with such inspection. Landlord's right of entry shall not
be deemed or construed to impose upon Landlord any obligation or liability
whatsoever for the maintenance or repair of the Leased Premises, except as
expressly provided in this Lease.
16. INSURANCE AND INDEMNIFICATION.
(a) Real Property Insurance. Landlord, at its cost and
expense, shall maintain in full force and effect throughout the Lease
Term fire and extended coverage insurance, which insurance shall name
Landlord, Tenant, Landlord's mortgage lender, and any mortgage lender
of Tenant as insureds, as their respective interests may appear, on:
(i) the Building; and (ii) and any alterations or additions of or to
the Leased Premises; in either case for at least 100% of its insurable
value on a replacement cost basis, less, in the case of the Building,
the replacement cost of the foundation and other structural parts of
the Building that commonly are not covered by policies of fire and
extended coverage insurance; provided that Tenant shall be responsible
for advising Landlord of the replacement cost of the alterations or
additions of or to the Leased Premises. Upon receipt of a written
invoice, Tenant shall reimburse Landlord for the premiums paid and
other costs and expenses incurred by Landlord to obtain and maintain
such insurance and related coverages (including, without limitation,
such coverages as reasonably may be required by Landlord's mortgage
lender or lien holder).
(b) Public Liability Insurance. Tenant, at its cost and
expense, shall maintain in full force and effect throughout the Lease
Term a policy of general public liability insurance naming Landlord as
an additional insured and covering any and all claims for injuries to,
or death of, persons and damage to, or loss of, property occurring in,
on or about the Leased Premises, in an amount not less than: (i)
$2,000,000 for injury to, or death of, any one person; (ii) $5,000,000
for injury to, or death of, more than one person in the same accident
or occurrence; and (iii) $1,000,000 for damaged or lost property
arising out of any one accident or occurrence. If it becomes customary
for other similar businesses in the Indianapolis metropolitan area to
carry higher limits of liability coverage, then Tenant, upon request by
Landlord, shall increase the foregoing coverage to such
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customary limits; provided that Landlord shall not require Tenant to
increase the foregoing coverage more than once in any five year period.
(c) Personal Property Insurance. All of Tenant's trade
fixtures, equipment, inventory and other personal property (including,
without limitation, property that Tenant stores for third parties),
shall be kept in or upon the Leased Premises at Tenant's sole risk and
expense, and Tenant, at its cost and expense, shall maintain in full
force and effect throughout the Lease Term fire and extended coverage
insurance on such trade fixtures, equipment, inventory and other
personal property for their full insurable value on a replacement cost
basis; provided that, so long as Tenant maintains a net worth adequate
to satisfy and discharge fully all of its financial obligations,
including, without limitation, its financial obligations under this
Lease, and to replace all of its trade fixtures, equipment, inventory,
and other personal property, Tenant may "self insure" its trade
fixtures, equipment, inventory, and other personal property. Tenant
shall indemnify and hold harmless Landlord from any and all claims,
judgments, liabilities, losses, costs and expenses (including, without
limitation, reasonable attorneys' fees and court costs) arising from,
or in connection with, damage to, or loss of, such trade fixtures,
equipment, inventory and other personal property, unless such damage is
caused by: (i) the negligence, intentional act, or willful misconduct
of Landlord or its employees, contractors or agents; or (ii) a Landlord
Default (as defined in Section 20); provided that this indemnity shall
not apply to a Landlord Default if it is customary for the insurance
required to be maintained by Tenant hereunder to cover damage arising
from, or connection with, such Landlord Default.
(d) Workmen's Compensation. Tenant shall comply with the
provisions of the applicable worker's compensation laws and insure its
liability thereunder.
(e) Copies of Policies. For each type of insurance required to
be maintained under this Lease, the party required to maintain such
insurance shall furnish to the other party an endorsed copy of such
insurance policy showing that such type of insurance is in full force
and effect and may not be modified or canceled without 30 days prior
written notice to such other party. All insurance policies required to
be maintained under this Lease shall be issued by companies reasonably
satisfactory to the party not responsible for maintaining such
insurance.
(f) Waiver of Subrogation. Landlord and Tenant waive and
release any and all rights of recovery that either may have against the
other for any loss or damage, regardless of whether caused by any
alleged negligence of the other party or the other party's employees,
contractors, agents, invitees or licensees, to the extent that such
loss or
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damage is or would be covered by any insurance required to be
maintained under this Lease. Each policy of insurance required under
this Lease shall contain an endorsement to such effect, waiving the
insurer's right of subrogation against the other party.
(g) Responsibility for Damages. Subject to the terms and
conditions of Subsection 16(f), Tenant assumes all risks and
responsibilities for injuries, death, damages or losses to or of person
or property (including, without limitation, the Building, the
Improvements and any fixtures, equipment or systems that constitute a
part of the Building or the Improvements), unless caused by: (i) the
negligence (to the extent not customarily covered by casualty or
liability insurance), intentional act, or willful misconduct of
Landlord or its employees, contractors or agents; or (ii) a breach of
this Lease by Landlord, including, without limitation, a breach of any
warranty obligation; and, subject to the foregoing limitations, Tenant
agrees to indemnify and hold harmless Landlord from and against any and
all claims, judgments, liabilities, losses, costs and expenses
(including, without limitation, reasonable attorneys' fees and court
costs) arising from, or in connection with, the condition, use or
control of the Leased Premises.
(h) Landlord Indemnity. Subject to the terms and conditions of
the Subsection 16(f), Landlord agrees to indemnify and hold harmless
Tenant from and against any and all claims, judgments, liabilities,
losses, costs and expenses (including, without limitation, reasonable
attorneys' fees and court costs) arising from, or in connection with
the negligence (to the extent not customarily covered by casualty or
liability insurance), intentional act or willful misconduct of Landlord
or its employees, contractors or agents.
17. FIRE AND OTHER CASUALTY.
(a) Casualty Repair. In the event of damage to, or total or
partial destruction of, the Building or any fixtures, equipment or
systems that constitute a part of the Building, by fire or other
casualty (the "Casualty"), the insurance proceeds, if any, that, as a
result of such Casualty, are payable under any fire and extended
coverage insurance maintained by Landlord (the "Insurance Proceeds")
shall be payable to, and be the sole property of, Landlord, and,
subject to the terms and conditions of this Section, Landlord shall
cause the prompt and diligent repair and replacement of the Building as
soon as reasonably possible to substantially the same condition as
existed prior to such damage or destruction; provided that: (i)
Landlord shall not be obligated to repair or replace alterations or
additions of or to the Leased Premises by Tenant; (ii) Landlord shall
be obligated to make the Insurance Proceeds available, in accordance
with the terms and conditions of this Subsection set forth
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below, for the repair and/or replacement of the alterations and/or
additions of or to the Leased Premises by Tenant; and (iii) when
Landlord commences the insurance adjustment process (the "Adjustment
Process"), Landlord shall: (A) deliver notice to Tenant of its
commencement of the Adjustment Process; and (B) provide to Tenant an
opportunity to participate in the Adjustment Process. Landlord shall
make the Insurance Proceeds available, or cause the Insurance Proceeds
to be made available, to pay the costs and expenses to repair or
replace: (i) the Building in accordance with the terms and conditions
of this Section; and (ii) the alterations and additions of or to the
Leased Premises; provided that: (i) Tenant has not caused a default of
the documents evidencing the Mortgage Lien or evidencing the method of
financing or refinancing secured by the Mortgage Lien through a breach
of any of its obligations under this Lease; and (ii) to the extent
applicable to Tenant, Tenant meets the reasonable and customary
conditions for disbursement of the Insurance Proceeds established by
the documents evidencing the Mortgage Lien or evidencing the method of
financing or refinancing secured by the Mortgage Lien. Rent shall xxxxx
proportionately (based upon the proportion that the unusable gross
leasable area of the Building due to damage or destruction bears to the
total Gross Leasable Area) during the time that the Building or any
part thereof is unusable by reason of any damage to, or destruction of,
the Building. Landlord shall use commercially reasonable efforts to
relocate Tenant temporarily during the period of any repair or
replacement of the Building.
(b) Substantial Damage. Notwithstanding anything to the
contrary set forth herein, if substantial damage or destruction occurs
during the last two years of the Lease Term, as extended by any
Extension Term for which Tenant already has exercised (or subsequently
does exercise) its extension option, so that the cost to repair the
Building to substantially the same condition as existed prior to such
damage or destruction equals or exceeds 35% of the cost to replace the
Building, as reasonably determined by the insurance adjusters (the
"Substantial Damage"), then either Landlord or Tenant, at its option,
may terminate this Lease upon written notice delivered to the other
party at least 15 days in advance, and all obligations hereunder,
except those due or mature, shall cease and terminate; provided that:
(i) if: (A) Substantial Damage occurs during the final two years of the
Lease Term, as extended by any Extension Terms; (B) Tenant has not
exercised its rights to extend the Lease Term for all remaining
Extension Terms; and (C) Tenant has not waived (or been deemed to have
waived) its rights to extend the Lease Term for all remaining Extension
Terms; then neither Landlord nor Tenant shall have the right to
terminate this Lease until the date of the earlier of: (A) the
expiration of the period during which Tenant may exercise its rights to
extend the Lease Term for the next Extension Term; or (B) the waiver
(or deemed waiver) by Tenant of its rights to extend the Lease Term for
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the next Extension Term; and (ii) if: (A) Substantial Damage occurs
during the final two years of the Lease Term, as extended by any
Extension Terms; and (B) Tenant exercises its rights to extend the
Lease Term for the next Extension Term; then neither Landlord nor
Tenant shall have the right to terminate this Lease. Notwithstanding
anything to the contrary set forth herein, if: (i) Substantial Damage
occurs during the final two years of the Lease Term, as extended by any
Extension Terms; (ii) Tenant has not exercised its rights to extend the
Lease Term for all remaining Extension Terms; and (iii) Tenant has not
waived (or been deemed to have waived) its rights to extend the Lease
Term for all remaining Extension Terms; then Landlord shall not be
obligated to repair or replace the Building until the date of the
earlier of: (i) the exercise by Tenant of its rights to extend the
Lease Term for the next Extension Term; or (ii) the waiver (or deemed
waiver) by Tenant of its rights to extend the Lease Term for the next
Extension Term; provided that, if Tenant fails to exercise its rights
to extend the Lease Term for the next Extension Term within ten days
after Landlord delivers to Tenant a written estimate of the period
required to repair or replace the Building, then Tenant shall be deemed
to have waived its rights to extend the Lease Term for all remaining
Extension Terms.
18. EMINENT DOMAIN.
(a) Condemnation. In the event that: (i) all or a substantial
part of the Leased Premises is taken or condemned for public or
quasi-public use under any statute or by the right of eminent domain;
or (ii) in lieu thereof, all or a substantial part of the Leased
Premises is conveyed to a public or quasi-public body under threat of
condemnation (the "Condemnation"), and the Condemnation renders the
Leased Premises unsuitable for Tenant's normal business use (the
"Complete Condemnation"), then, at the option of either Landlord or
Tenant exercised within 15 days after the Complete Condemnation occurs:
(i) this Lease shall terminate as of the date possession of all or such
part of the Leased Premises is conveyed to the condemning authority;
and (ii) all obligations hereunder, except those due or mature, shall
cease and terminate. All compensation awarded or paid for any
Condemnation shall belong to and be the sole property of Landlord (the
"Condemnation Award"); provided that: (i) Landlord shall not be
entitled to any award made solely to Tenant for loss of business or
cost and expense of relocation and removing trade fixtures; and (ii)
Landlord shall make the Condemnation Award available, or cause the
Condemnation Award to be made available, to pay the costs and expenses
to repair or replace: (A) the Building; and (B) the alterations and
additions of or to the Leased Premises; provided that: (A) Tenant has
not caused a default of the documents evidencing the Mortgage Lien or
evidencing the method of financing or refinancing secured by the
Mortgage Lien through a breach of any of its obligations under this
Lease;
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and (B) to the extent applicable to Tenant, Tenant meets the reasonable
and customary conditions for disbursement of the Condemnation Award
established by the documents evidencing the Mortgage Lien or evidencing
the method of financing or refinancing secured by the Mortgage Lien.
(b) Allocation of Award. Notwithstanding anything to the
contrary set forth herein, in the event that: (i) there is a Complete
Condemnation; and (ii) as a result of the Complete Condemnation, this
Lease is terminated at the option of either Landlord or Tenant; then
the Condemnation Award shall be allocated as follows: (i) first, to pay
all amounts payable to any mortgage lender or lien holder under, or
with respect to, a Mortgage Lien (the "Mortgage Payoff"); and (ii)
second, divided between Landlord and Tenant in accordance with the
following terms and conditions of this Section. If the Condemnation
Award exceeds the Mortgage Payoff, then Landlord and Tenant jointly
shall appoint a Qualified Appraiser (as defined in Exhibit B). If
Landlord and Tenant are unable to agree upon the Qualified Appraiser
within the specified period, then, within 15 days thereafter: (i)
Landlord and Tenant each shall appoint a Qualified Appraiser; and (ii)
the Qualified Appraisers appointed by Landlord and Tenant jointly shall
appoint an additional Qualified Appraiser to constitute the Appraiser
Panel (as defined in Exhibit B). Within one month after the date on
which the Qualified Appraiser or the Appraiser Panel, as the case may
be, is appointed, the Qualified Appraiser or the Appraiser Panel, as
the case may be, shall determine the Fair Market Value of Landlord's
interest in the Leased Premises and the Fair Market Value of Tenant's
interest in the Leased Premises. The determination of the Qualified
Appraiser or the Appraiser Panel, as the case may be, shall be the Fair
Market Value of Landlord's and Tenant's respective interests in the
Leased Premises for purposes of this Section. "Fair Market Value" with
respect to Landlord's interest in the Leased Premises shall be the
aggregate amount of: (i) the net present value of the Rent to be
received by Landlord for the remainder of the Lease Term (including all
of the remaining Extension Terms, whether or not Tenant has exercised
its option to extend the Lease Term for all of the remaining Extension
Terms); plus (ii) the net present value of the residual value of the
Leased Premises after the expiration of the Lease Term (including all
of the remaining Extension Terms, whether or not Tenant has exercised
its option to extend the Lease Term for all of the remaining Extension
Terms). "Fair Market Value" with respect to Tenant's interest in the
Leased Premises shall be an amount equal to the net present value of
the excess, if any, of the: (i) the fair market rental of the Leased
Premises for the remainder of the Lease Term (including all of the
remaining Extension Terms, whether or not Tenant has exercised its
option to extend the Lease Term for all of the remaining Extension
Terms), as fair market rental is determined in accordance with the
terms and conditions of Exhibit B; over (ii) the Rent to be received by
Landlord for the remainder of the Lease Term (including all
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of the remaining Extension Terms, whether or not Tenant has exercised
its option to extend the Lease Term for all of the remaining Extension
Terms). From any excess of the Condemnation Award over the Mortgage
Payoff (the "Excess Amount"), Landlord shall receive an amount equal to
the Excess Amount multiplied by a fraction: (i) the numerator of which
is the Fair Market Value of Landlord's interest in the Leased Premises;
and (ii) the denominator of which is the total of the Fair Market Value
of Landlord's and Tenant's respective interests in the Leased Premises.
From any Excess Amount, Tenant shall receive an amount equal to the
Excess Amount multiplied by a fraction: (i) the numerator of which is
the Fair Market Value of Tenant's interest in the Leased Premises; and
(ii) the denominator of which is the total of the Fair Market Value of
Landlord's and Tenant's respective interests in the Leased Premises.
All costs and fees incurred to have the Qualified Appraiser or the
Appraiser Panel determine the Fair Market Value of Landlord's and
Tenant's respective interests in the Leased Premises shall be split
equally between Landlord and Tenant.
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19. DEFAULT BY TENANT.
(a) Events of Tenant Default. Each of the following shall be
deemed to be a "Tenant Default":
(i) failure by Tenant to pay any amount of Rent when due, and,
in the case of the first two such failures in any 12 month
period, the continuance of such failure for five days after
written notice from Landlord;
(ii) failure by Tenant to observe or perform any other term or
condition of this Lease to be observed or performed by Tenant,
and the continuance of such failure for 30 days after written
notice from Landlord; provided that it shall not be a "Tenant
Default" if such failure cannot be cured by Tenant within 30
days, despite reasonably diligent effort, so long as Tenant
diligently commences to cure such failure within 15 days, and
continues to pursue such cure to completion.
(iii) the sale of Tenant's leasehold interest hereunder
pursuant to execution;
(iv) the adjudication of Tenant as a bankrupt or insolvent;
(v) the making by Tenant of a general assignment for the
benefit of creditors;
(vi) the appointment of a receiver for Tenant's property, if
such appointment is not vacated or satisfied within 60 days
from the date of such appointment;
(vii) the appointment of a trustee or receiver for Tenant's
property in a reorganization, arrangement, bankruptcy or other
insolvency proceeding, if such appointment is not vacated or
set aside within 60 days from the date of such appointment;
(viii) the filing by Tenant of a voluntary petition in
bankruptcy or for reorganization or arrangement, or the filing
of an involuntary petition in bankruptcy or for reorganization
or arrangement against Tenant if such involuntary petition is
not vacated within 60 days after the filing thereof;
(ix) the filing by Tenant of an answer admitting bankruptcy or
insolvency or agreeing to reorganization or arrangement; or
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(b) Landlord's Remedies. In the event of a Tenant Default,
Landlord, in addition to any other rights or remedies available at law
or in equity, may exercise the following rights and remedies:
(i) elect to terminate this Lease;
(ii) if Tenant has failed to perform any of its obligations
under this Lease (other than the obligation to pay Base Rent),
perform such obligations that Tenant has failed to perform
(entering upon the Leased Premises for such purpose, if
necessary), without such performance being construed as a
waiver of the Tenant Default or of any other right or remedy
of Landlord with respect to such Tenant Default, or as a
waiver of any term or condition of this Lease; or
(iii) immediately re-enter upon the Leased Premises, remove
all persons and property therefrom, and store such property in
a public warehouse or elsewhere at the sole cost and expense
and for the account of Tenant, all: (A) in compliance with the
Applicable Laws; and (B) without being deemed guilty of
trespass or becoming liable for any loss or damage that may be
occasioned thereby;
(c) Re-Letting. If Landlord re-enters upon the Leased Premises
as provided in Subsection 19(b)(iii), or takes possession of the Leased
Premises pursuant to legal proceedings or pursuant to any notice
provided by the Applicable Laws, then Landlord either may terminate
this Lease, or, from time to time without terminating this Lease, make
alterations and repairs for the purpose of re-letting the Leased
Premises and re-let the Leased Premises or any part thereof for such
term or terms (which may extend beyond the term of this Lease) at such
rental and upon such other terms and conditions as Landlord deems
advisable. Upon each re-letting, all rentals received from such
re-letting shall be applied in the following order: (i) first, to
payment of reasonable costs and expenses incurred by Landlord in
connection with such re-entry or taking of possession and making such
reasonable alterations and repairs; (ii) second, to the payment of Rent
and any other outstanding indebtedness of Tenant to Landlord hereunder
or in connection herewith; and (iii) the remainder, if any, shall be
held by Landlord and applied in payment of future Rent as it becomes
due and payable hereunder. If the rentals received from such re-letting
during any month are less than the full amount of Rent payable
hereunder during that month, then Tenant shall pay any such deficiency
to Landlord. Such deficiency shall be calculated and paid monthly. No
re-entry or taking of possession by Landlord of the Leased Premises
shall be construed as an election to terminate this Lease, or as an
acceptance of a surrender of the Leased Premises, unless a written
notice of termination
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or acceptance of surrender is delivered by Landlord to Tenant.
Notwithstanding any re-letting without termination, Landlord at any
time thereafter may elect to terminate this Lease for Tenant's previous
Tenant Default. Landlord shall use reasonable efforts to mitigate its
damages in the event of a Tenant Default; provided that it shall remain
Tenant's burden of proof to establish that Landlord failed to use
reasonable efforts to mitigate such damages.
(d) Damages Upon Termination. If Landlord at any time
terminates this Lease as a result of any Tenant Default, then, in
addition to any other rights and remedies Landlord may have, Landlord
may recover from Tenant, from time to time, all damages Landlord may
incur by reason of such Tenant Default (including, without limitation:
(i) reasonable costs and expenses in connection with a re-entry or
taking of possession; (ii) reasonable attorneys' fees; and (iii) the
present value at the time of such termination of the excess, if any, of
the amount of Rent for the remainder of the Lease Term (excluding any
unexercised Extension Terms) over the then reasonable rental value of
the Leased Premises for the remainder of the Lease Term; provided that
the reasonable rental value of the Leased Premises shall be determined
on the basis that: (i) the Leased Premises is relet in its "as is"
condition on the date of termination; and (ii) no alterations or
repairs have been, or will be, made for the purpose of reletting). All
such amounts shall be immediately due and payable from Tenant to
Landlord.
(e) Indemnification Upon Tenant Default. Upon any Tenant
Default, Tenant shall indemnify and hold harmless Landlord from any and
all claims, judgments, liabilities, losses, costs and expenses
(including, without limitation, reasonable attorneys' fees and court
costs) incurred by Landlord and arising from, or in connection with, a
Tenant Default or the exercise by Landlord of its rights and remedies
with respect to such Tenant Default.
(f) Limitation on Recovery. Landlord shall not be entitled to
recover from Tenant any amount for any particular item of loss, cost,
or expense more than once, notwithstanding that Subsections 19(c),
19(d), and 19(e) each may provide for recovery of such item of loss,
cost, or expense.
20. DEFAULT BY LANDLORD. The following shall be deemed to a
"Landlord Default": (a) failure by Landlord to observe or perform any term or
condition of this Lease to be observed or performed by Landlord; and (b)
continuation of such failure for 30 days after written notice from Tenant;
provided that it shall not be a "Landlord Default" if such failure cannot be
cured by Landlord within 30 days, despite reasonably diligent effort, so long as
Landlord diligently commences to cure such failure within 15 days, and continues
to pursue such cure to completion. In the event of a Landlord Default, Tenant
shall have all rights or remedies available at law or in equity. With
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respect to Landlord Defaults, Tenant shall have the right to perform such
obligations on behalf of Landlord, without such performance being construed as a
waiver of the Landlord Default or of any other right or remedy of Tenant with
respect to such Landlord Default, or as a waiver of any term or condition of
this Lease. Landlord shall pay to Tenant on demand all reasonable costs and
expenses incurred by Tenant to perform any such obligations in accordance with
the terms and conditions of this Section. If any amount due to Tenant by
Landlord hereunder shall become overdue for a period in excess of five days,
then Landlord shall pay the Tenant interest on such unpaid amount from the date
due to the date of payment at the rate of 1.5% per month. Notwithstanding
anything to the contrary set forth herein, if: (a) Landlord fails to maintain
the insurance required to be maintained by it under Subsection 16(a) hereof; (b)
Tenant performs such obligation in accordance with the terms and conditions of
this Section; and (c) Landlord fails to pay to Tenant on demand all reasonable
costs and expenses incurred by Tenant to perform such obligation (the "Tenant
Insurance Costs"); then Tenant may offset the Tenant Insurance Costs against
payments of Rent. Upon any Landlord Default, Landlord shall indemnify and hold
harmless Tenant from any and all claims, judgments, liabilities, losses, costs
and expenses (including, without limitation, reasonable attorneys' fees and
court costs) incurred by Tenant and arising from, or in connection with, a
Landlord Default or the exercise by Tenant of its rights and remedies with
respect to such Landlord Default.
21. SURRENDER. Upon the expiration of the Lease Term or the
earlier termination of this Lease, Tenant shall quit and surrender to Landlord
the Leased Premises and, except as expressly set forth below in this Section,
all property affixed to the Leased Premises, broom clean, and in good order,
condition and repair, except for ordinary wear and tear, the effects of damage
to, or the total or partial destruction of, the Building by fire or other
casualty that Landlord is obligated to repair or replace; provided that Tenant
shall remove any or all of its property that Landlord directs Tenant to remove,
and, upon Tenant's failure to do so, Landlord may cause all or any item of such
property to be removed at Tenant's cost and expense. Notwithstanding anything to
the contrary set forth herein, Tenant shall not be required to surrender any of
Tenant's trade fixtures or personalty, whether or not affixed to the Leased
Premises. Tenant shall pay all costs and expenses of any such removal and of the
repair of any damage to the Leased Premises caused by such removal. Landlord
acknowledges that Tenant shall have the right to grant to any third party a
security interest in and to its personalty and trade fixtures. Tenant's
obligation to observe and perform these covenants shall survive the expiration
of the Lease Term or earlier termination of this Lease.
22. SUBORDINATION. This Lease is and shall be subordinate to
the lien of any mortgage or any other method of financing or refinancing now or
hereafter encumbering the Leased Premises, the Building or the Parcel (the
"Mortgage Lien") and to all advances made, or hereafter to be made, upon the
security thereof, and to any declaration of covenants, restrictions and
easements with respect to the Leased Premises. With respect to the construction
loan or financing, and the first permanent loan or refinancing, such
subordination shall be effective only upon the execution of the
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non-disturbance agreement in the form attached hereto as Exhibit G in favor of
Tenant, which non-disturbance agreement shall be executed fully by Landlord,
Tenant, and the construction lender or the initial permanent lender, as the case
may be. With respect to refinancings with different permanent lenders, Tenant
shall execute and deliver, upon request by Landlord, a subordination agreement
in the form attached hereto as Exhibit G or otherwise in form and substance as
is customary for tenants of comparable size and creditworthiness if such
subordination agreement provides that the rights of Tenant under this Lease and
the possession of the Leased Premises by Tenant shall not be disturbed so long
as Tenant is not in default hereunder. If any proceedings are brought for the
foreclosure of any Mortgage Lien (the "Foreclosure Proceedings"), then Tenant
shall: (a) attorn to the purchaser upon any sale resulting directly or
indirectly from the Foreclosure Proceedings; and (b) recognize the purchaser as
Landlord hereunder. If, as a result of the Foreclosure Proceedings, any Mortgage
Lien is foreclosed, then the foreclosed Landlord shall liable to Tenant
hereunder for any Landlord Defaults that occurred prior to the foreclosure of
the Mortgage Lien. Upon request by Landlord, Tenant shall execute and deliver an
estoppel certificate in the form attached hereto as Exhibit H or otherwise in
form and substance as reasonably requested by Landlord or as reasonably
requested by any purchaser, mortgage lender or lien holder. Upon request by
Tenant, Landlord shall execute and deliver an estoppel certificate in form and
substance as reasonably requested by Tenant or any lender.
23. COVENANT OF QUIET ENJOYMENT. Landlord represents and
warrants that: (a) it has all necessary right, title and interest in the Leased
Premises to enter into this Lease and grant Tenant the tenancy hereunder; (b) as
of the date hereof, Landlord owns the Leased Premises in fee simple, subject
only to the matters identified on Exhibit I, which matters shall constitute
permitted encumbrances (the "Permitted Encumbrances"); (c) the zoning
classification "I-2" applies to the Parcel, and, under that zoning
classification, all of the uses listed on Exhibit L are permitted; and (d) after
the Substantial Completion Date, Landlord shall keep the Leased Premises free
from mechanics liens or claims or other similar liens or claims asserted by
lienors or claimants having performed work for or at the direction of Landlord.
Landlord agrees that if Tenant observes and performs all of its covenants
hereunder, then, at all times during the Lease Term, Tenant shall have the
peaceable and quiet enjoyment of possession of the Leased Premises, without any
manner of hindrance.
24. MECHANIC'S LIENS. Tenant shall not suffer or cause the
filing of any mechanic's lien against the Leased Premises. If any mechanic's
lien is filed against the Leased Premises or any part thereof for work claimed
to have been done for, or material claimed to have been furnished to, Tenant,
other than Landlord's Work, then Tenant shall: (a) cause such mechanic's lien to
be discharged of record within 30 days after notice of the filing by bonding or
as provided or required by law; or (b) provide evidence that the lien is being
contested by proceedings adequate to prevent foreclosure of the lien, together
with a title insurance endorsement over such lien or a satisfactory indemnity
(in either case in an amount equal to at least 150% of the claimed lien) to
Landlord within 30 days after notice of the filing thereof. All liens suffered
or
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caused by Tenant shall attach to Tenant's interest only. Nothing in this Lease
shall be deemed or construed to constitute consent to, or request of, any party
for the performance of any work for, or the furnishing of any materials to,
Tenant, nor as giving Tenant the right or authority to contract for, authorize
or permit the performance of any work or the furnishing of any materials that
would permit the attaching of a mechanic's lien. Landlord shall deliver the
Building and Improvements to Tenant free of liens for work claimed to have been
done for, or materials claimed to have been furnished to, Landlord in the
performance of Landlord's Work. Landlord and Tenant each shall indemnify and
hold harmless the other from all claims, judgments, liabilities, losses, costs
and expenses (including, without limitation, reasonable attorneys' fees and
court costs) incurred by the other as a result of, or in connection with, any
mechanic's lien for work claimed to have been done for, or material claimed to
have been furnished to, Landlord or Tenant, respectively.
25. NOTICES. Any notice, statement, invoice, demand, request,
or consent required or permitted to be given or delivered by either party to
this Lease shall be in writing and shall be deemed to have been duly given or
delivered: (a) on the date of delivery, if delivery is made in person; (b) on
the date of transmission, if delivery is made by electronic facsimile
transmission with electronic confirmation of receipt; or (c) on the date of
deposit, if delivery is made by a national overnight courier service; in any
case if addressed to the other party as follows:
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Landlord: c/o Browning Investments, Inc. Tenant: c/o Brightpoint, Inc.
Capital Center North Tower 0000 Xxxxxxxxx Xxxxx
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxxxxx, Xxxxxxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000 Attention: General Counsel
Attention: Xxxxx X. Xxxxxx Facsimile No. 000-000-0000
Facsimile No. 000-000-0000
Any party may change its address for notice from time to time by delivering
notice to the other party as provided above.
26. MISCELLANEOUS PROVISIONS.
(a) Memorandum of Lease. The parties hereto shall not record
this Lease in the Xxxxxxxxx County Recorder's Office, but each party
shall execute upon request of the other a "memorandum of lease"
suitable for recording. All costs and expenses associated with
preparing, executing and recording a "memorandum of lease" shall be
borne by the party requesting execution of such document.
(b) Relationship of Parties. Nothing contained herein shall be
deemed or construed by the parties hereto or by any third party as
creating between the parties hereto the relationship of principal and
agent, partnership, joint venture, or any relationship other than the
relationship of landlord and tenant.
(c) Waivers of Covenants. No waiver of any covenant, term or
condition or the breach of any covenant, term or condition of this
Lease shall be deemed to constitute a waiver of any subsequent breach
of such covenant, term or condition nor justify or authorize a
non-observance upon any occasion of such covenant, term or condition or
any other covenant, term or condition, and the acceptance of Rent by
Landlord at any time when Tenant is in default of any covenant, term or
condition shall not be construed as a waiver of such default or any
right or remedy of Landlord on account of such default.
(d) Accord and Satisfaction. No payment by Tenant or receipt
by Landlord of a lesser amount than the Rent due hereunder shall be
deemed to be other than on account of the Rent first due hereunder;
provided that Landlord shall not apply payments by Tenant to items of
Rent with respect to which there exists a good faith dispute of which
Tenant has delivered to Landlord a written notice describing with
particularity the nature of such dispute. No endorsement or statement
on
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any check or letter accompanying any check or payment of Rent shall be
deemed to be an accord and satisfaction, and Landlord may accept any
such check or payment without prejudice to the right of Landlord to
recover the balance of such Rent or to pursue any other right or
remedy.
(e) Remedies Cumulative. The rights and remedies of Landlord
and Tenant hereunder shall be cumulative, and no one of them shall be
deemed or construed as exclusive of any other or of any right or remedy
provided by law or in equity. The exercise of any one such right or
remedy by the Landlord or Tenant shall not impair its standing to
exercise any other such right or remedy.
(f) Successors and Assigns. Subject to the terms and
conditions of Section 14 hereof, this Lease and all of the covenants,
terms and conditions hereof shall inure to the benefit of, and be
binding upon, the respective heirs, executors, administrators,
successors and assigns of Landlord and Tenant, except as otherwise
expressly provided herein.
(g) Construction of Lease. Whenever in this Lease a singular
word is used, it shall also include the plural wherever required by the
context and vice versa. Exhibits X-0, X-0, X-0, X, X, X-0, X-0, D-3,
D-4, E, G, H, I, J, K, L, and M are incorporated herein by reference.
This Lease shall be construed in accordance with the laws of the State
of Indiana. The captions of this Lease are for convenience only and do
not in any way limit or alter the terms and conditions of this Lease.
All references in this Lease to periods of days shall be construed to
refer to calendar, not business, days. Notwithstanding anything set
forth herein, if Landlord or Tenant, as the case may be, is delayed in,
or prevented from: (i) completing Landlord's Work on or before the
applicable dates set forth in Section 6 hereof; (ii) correcting
Punch-List items within the applicable periods specified under Section
10 hereof; or (iii) otherwise observing or performing any of its
covenants hereunder, other than the payment of money, as the result of
an act or omission of the other party or any other cause that is not
within the control of the delayed or prevented party (including,
without limitation, inclement weather and the unavailability of
materials, equipment, services or labor) (the "Event(s) of Force
Majeure"), then such completion, correction, observation or performance
shall be excused for the period of days that such completion,
correction, observation or performance is delayed or prevented, and the
dates set forth in Section 6 hereof, the periods specified under
Section 10 hereof and other deadlines for observation and performance,
as the case may be, shall be extended for the same period. Landlord or
Tenant, as the case may be, shall deliver to the other party written
notice within ten days after Landlord or Tenant, as the case may be,
becomes aware: (i) of an Event of Force Majeure that will delay or
prevent observance or performance of any of its covenants hereunder
(the "Force Majeure Notice"); and (ii) that such Event of Force Majeure
has ceased to delay or
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prevent observance or performance of its covenants hereunder; provided
that, in the Force Majeure Notice, Landlord or Tenant, as the case may
be, shall describe the Event of Force Majeure with specificity.
(h) Prior Agreements. All prior representations, promises and
undertakings by or between the parties hereto with respect to the
subject matter of this Lease are merged into, and expressed in, this
Lease, and any and all prior agreements between such parties with
respect thereto are hereby canceled. This Lease shall not be amended,
modified, or supplemented, except by a written agreement duly executed
by both Landlord and Tenant.
(i) Severability. The invalidity or unenforceability of any
particular provision of this Lease shall not affect the other
provisions, and this Lease shall be construed in all respects as if
such invalid or unenforceable provision had not been contained herein.
(j) Counterparts. This Lease may be executed in separate
counterparts, each of which when so executed shall be an original, but
all of such counterparts shall together constitute but one and the same
instrument.
(k) Authority. Each person executing this Lease other than on
behalf of themselves represents and warrants that he or she has been
duly authorized to execute and deliver this Lease by the entity for
which he or she is signing, and this Lease is the valid and binding
agreement of such entity, enforceable in accordance with its terms.
(l) Obligation of Reasonableness. Wherever under this Lease
consent or approval is required by either party, such consent or
approval shall not be withheld, conditioned, or delayed unreasonably.
(m) Environmental Condition. Landlord represents and warrants
to Tenant that, to Landlord's actual knowledge and except as disclosed
by the environmental assessment reports prepared with respect to the
Leased Premises and the Park and provided to Tenant: (i) neither the
Leased Premises nor the Park has been used for the treatment, disposal,
or storage of Hazardous Substances; (ii) no Hazardous Substances are
present or were installed, exposed, released or discharged in, on,
under, or from the Leased Premises or the Park at any time during or
prior to Landlord's ownership thereof, and neither Landlord nor any
prior owner or occupant of the Leased Premises or the Park has used
Hazardous Substances therein; (iii) no UST's for petroleum products or
any other Hazardous Substances are or were located on the Leased
Premises or the Park at any time during or prior to Landlord's
ownership thereof; and
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(iv) neither the Leased Premises nor the Park has been used or operated
in violation of Applicable Laws governing Hazardous Substances.
(n) Environmental Indemnity. Landlord agrees to indemnify,
defend (by counsel reasonably acceptable to Tenant), protect and hold
harmless Tenant, BPI, and any party affiliated with Tenant from and
against any and all claims, judgments, liabilities, losses, costs and
expenses (including without limitation, reasonable attorneys' fees and
court costs) arising from, or in connection with: (i) any storage or
usage of any Hazardous Substances by Landlord (or its employees,
agents, contractors, invitees or licensees) in, on or about the Leased
Premises; (ii) any transportation of any Hazardous Substances to or
from the Leased Premises by Landlord (or its employees, agents,
contractors, invitees or licensees); or (iii) the inaccuracy of any of
the representations set forth in Subsection 26(m). The claims,
judgments, liabilities, losses, costs and expenses from and against
which Landlord has agreed to indemnify, defend, protect and hold
harmless Tenant and any party affiliated with Tenant under this
Subsection shall include the following: (i) any obligation or liability
of Landlord or Tenant under any of the Applicable Laws to remove any
Hazardous Substance or contaminated soil or groundwater from the Leased
Premises, "clean up" any contamination of the soil or the groundwater
in, on or under the Leased Premises, or perform any monitoring or
remediation of or for the Leased Premises; (ii) all charges, fines or
penalties imposed by governmental authority or under any of the
Applicable Laws governing Hazardous Substances; and (iii) all claims
by, and liabilities to, any third party. Landlord agrees, at its cost
and expense, and in accordance with Applicable Laws, to monitor,
remediate, and pay any charges, fines, or penalties related to, any
Hazardous Substances or petroleum products present at, on, or under, or
released from the soil or groundwater of, the Leased Premises or the
Park prior to the Commencement Date; provided that the presence of such
Hazardous Substances or petroleum products is not related to any action
or omission of Tenant or its employees, agents, contractors, invitees
or licensees. The obligations of Landlord under this Subsection shall
survive the expiration or earlier termination of this Lease.
(o) Expansion Option. The terms and conditions of Tenant's
option to expand the Leased Premises are set forth on the attached
Exhibit J.
(p) Purchase Option. The terms and conditions of Tenant's
option to purchase the Leased Premises are set forth on the attached
Exhibit M.
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(q) Title Insurance Policy. Landlord shall provide to Tenant a
leasehold policy of title insurance in amounts and with coverages
reasonably acceptable to Tenant.
27. LANDLORD CONVEYANCE. Landlord shall not cause or permit any
conveyance or transfer of fee title to the Leased Premises, without the prior
written consent of Tenant, which consent shall not be withheld or delayed
unreasonably; provided that the terms and conditions of this Section shall not
apply to: (a) any changes in the ownership of Landlord, so long as Xxxxxxx X.
Xxxxxxxx ("Xxxxxxxx") remains in control of Landlord; (b) conveyances or
transfers to another entity controlled by Xxxxxxxx or that result from the death
of Xxxxxxxx; or (c) conveyances or transfers to an individual or entity that has
the financial wherewithal at the time of the conveyance or transfer to satisfy
the obligations of Landlord under this Lease. Notwithstanding anything set forth
herein, the terms and conditions of this Section shall not apply to, or limit or
affect in any manner: (a) any Mortgage Lien; (b) the right or ability of
Landlord to finance or refinance the Leased Premises, the Building or the Parcel
and encumber the Leased Premises with a Mortgage Lien securing such financing or
refinancing; (c) the rights and remedies of any mortgage lender or lien holder
under, or with respect to, a Mortgage Lien or the financing or refinancing that
the Mortgage Lien secures or the ability of the mortgage lender or lien holder
to exercise such remedies (including without limitation, foreclosure of any
Mortgage Lien or acceptance of a deed in lieu of foreclosure); or (d) the
performance by Tenant of its obligations under Section 22. Notwithstanding
anything set forth herein, after fee title to the Leased Premises has been
conveyed or transferred as permitted by this Section to an individual or entity
who or that is not Xxxxxxxx or controlled by Xxxxxxxx, this Section shall have
no further force or effect.
IN WITNESS WHEREOF, the parties have executed or caused the
execution of this Lease by their respective officers duly authorized as of the
day and year first above written.
LANDLORD:
AIRTECH PARKWAY ASSOCIATES, LLC
By: /S/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Printed: Xxxxxxx X. Xxxxxxxx
------------------------------
Title: Member
--------------------------------
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TENANT:
BRIGHTPOINT NORTH AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Printed: Xxxxxx X. Xxxxx
-----------------------
Title: Vice President
-------------------------
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EXHIBIT A-1
PARCEL & PARK
Brightpoint Lot, Airtech Business Park
Graphic cannot be reproduced
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EXHIBIT A-2
PARCEL DESCRIPTION
LAND DESCRIPTION
A part of the land of Six Points Associates, LLC, recorded in Volume 3, pages
84-93 and a part of the land of Six Points Associates, LLC recorded in Deed Book
337, pages 610-611 in the Office of the Recorder in Xxxxxxxxx County, Indiana
and a part of the Southeast quarter of Section 30, the Southwest quarter of
Section 29, the Northwest quarter of Section 32 and the Northeast quarter of
Section 31 all in Township 15 North, Range 2 East of the Second Principal
Meridian in Guilford Township, Xxxxxxxxx County, Indiana more particularly
described as follows:
Commencing at the Southeast corner of said Northeast quarter of Section 31, a
Xxxxxxxxx County disk found per County Surveyor; thence along the South line of
said Northeast quarter of Section 31, South 89 degrees 38 minutes 49 seconds
West (assumed bearing) 86.51 feet; thence North 00 degrees 19 minutes 50 seconds
East 85.31 feet; thence continue North 00 degrees 19 minutes 50 seconds East
2387.15 feet to the POINT OF BEGINNING; thence continue North 00 degrees 19
minutes 50 seconds East 1194.98 feet; thence South 89 degrees 52 minutes 01
seconds East 1084.14 feet; thence South 00 degrees 07 minutes 59 seconds West
988.42 feet to the South line of said Southwest quarter of Section 29; thence
along said South line South 89 degrees 52 minutes 01 seconds East 331.39 feet to
the East line of the West half of said Northwest quarter of Section 32; thence
along said East line South 00 degrees 21 minutes 12 seconds West 710.48 feet;
thence North 89 degrees 40 minutes 10 seconds West 254.50 feet; thence parallel
with said East line North 00 degrees 21 minutes 12 seconds east 499.03 feet;
thence North 89 degrees 40 minutes 10 seconds West 1164.14 feet to the POINT OF
BEGINNING, containing 34.362 acres.
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EXHIBIT A-3
SITE PLAN WITH BUILDING
Expansion Parcel
Graphic Cannot be Reproduced
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EXHIBIT B
BASE RENT
Base Rent during the Initial Lease Term shall be:
Commencement Date - Year 3 $2,519,199 per annum
Year 4 - Year 7 $2,782,600 per annum
Year 8 - Year 11 $3,240,063 per annum
Year 12 - Year 15 $3,771,082 per annum
Year 16 - Expiration Date $4,302,626 per annum
Base Rent during each Extension Term shall be the lower of the Fair Market
Rental (as defined below) or the following amounts (the "Fixed Rental Rate"):
First Extension Term $9.80 per square foot per annum
Second Extension Term $11.05 per square foot per annum
Third Extension Term $12.57 per square foot per annum
Fourth Extension Term $14.10 per square foot per annum
Fifth Extension Term $16.10 per square foot per annum
provided that the Base Rent shall not be lower than $3,787,056 per annum during
any Extension Term (the "Minimum Extension Rent").
The "Fair Market Rental" shall be the per annum rate of minimum rent on or about
the Extension Date for comparable office and distribution/warehouse space in
buildings at comparable locations in the Park or within a radius of ten miles
from the Leased Premises, excluding amounts attributable to amortization of
brokerage fees, tenant finish costs, or tenant inducements paid or provided by
landlords of such buildings.
If Tenant exercises its option to extend the term of this Lease pursuant to
Section 2 hereof, then, on or before the date that is one month after the
Extension Date, Landlord shall deliver to Tenant written notice setting forth
its good faith determination of the Fair Market Rental (the "Fair Market Rental
Notice"). Within 15 days after Landlord delivers the Fair Market Rental Notice
to Tenant, Tenant shall deliver to Landlord written notice accepting or
rejecting Landlord's determination of the Fair Market Rental. If Tenant fails to
so notify Landlord, then Tenant shall be deemed to have accepted Landlord's
determination as the Fair Market Rental for the purposes of this Exhibit, and
the Term shall be extended pursuant to Section 2 of this Lease. If Tenant
rejects Landlord's determination of the Fair Market Rental in accordance with
the terms and conditions of this Exhibit, then, within 15 days thereafter,
Landlord and Tenant jointly shall appoint a qualified, independent MAI appraiser
(the "Qualified Appraiser"). If Landlord and Tenant are unable to agree upon the
Qualified Appraiser within the specified period, then, within 15 days
thereafter: (a) Landlord and Tenant each shall appoint a Qualified Appraiser;
and (b) the Qualified Appraisers appointed by Landlord and Tenant jointly shall
appoint an additional Qualified Appraiser (collectively, the "Appraiser Panel").
Within one month after the date on which the Qualified Appraiser or the
Appraiser Panel, as the case may be, is appointed, the Qualified Appraiser or
the Appraiser Panel, as the case may be, shall determine the Fair Market Rental
with respect to the Leased Premises. The determination of the Qualified
Appraiser or the Appraiser Panel, as the
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case may be, shall be the Fair Market Rental for the purposes of this Exhibit.
Within 15 days after the Qualified Appraiser or the Appraiser Panel, as the case
may be, determines the Fair Market Rental, Tenant shall deliver to Landlord
written notice confirming or rescinding the exercise of its option to extend the
Term. If Tenant fails to so notify Landlord, then: (a) Tenant shall be deemed to
have confirmed the exercise of its option to extend the Term; and (b) the Term
shall be extended pursuant to Section 2 of this Lease. All costs and fees
incurred to have the Qualified Appraiser or the Appraiser Panel determine the
Fair Market Rental shall be split equally between Landlord and Tenant; provided
that, if: (a) the Fair Market Rental, as determined by the Qualified Appraiser
or the Appraiser Panel, as applicable, is equal to or greater than Landlord's
determination of the Fair Market Rental, as set forth in the Fair Market Rental
Notice; and (b) Tenant rescinds the exercise of its option to extend the Term;
then Tenant shall pay all such costs and fees.
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EXHIBIT C
CONSTRUCTION SCHEDULE
Graphic Cannot be Reproduced
Brightpoint 2000/Warehouse
Arch/Eng
Excavation/Site Prep.
Site Utilities
Footing & Foundations
Slab on Grade
Order/Fab. & Erect Structural
Precast/Brick/Dryvet
Roof
Caulking
Alum. & Glazing
Door Frames
Doors & Hardware
Interior Wall Framing
Drywall
Ceramic Tile
Carpet
Vinyl Tile
Ceilings
Painting
Overhead Doors
Plumbing Underground
Plumbing
Electrical Underground
Electrical
HVAC
Fire Protection
Signage
Site Concrete
Asphalt Paving
Landscaping
Punch List
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EXHIBIT C
CONSTRUCTION SCHEDULE-PAGE 2
Graphic Cannot be Reproduced
Brightpoint 2000/ Office
Arch/Eng
Slab on Grade
Precast
Roof
Caulking
Alum. & Glazing
Door Frames
Doors & Hardware
Interior Wall Framing
Drywall
Ceramic Tile
Carpet
Vinyl Tile
Ceilings
Painting
Wall covering
Plumbing Underground
Plumbing
Electrical Underground
Electrical
HVAC
Fire Protection
Telephone Install
Punch List
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EXHIBIT D-1
LANDLORD'S WORK
The Landlord will construct the building in accordance with the plans and
specifications prepared by CSO Architects & Interiors, Inc. which include:
Plan Index Last Revision Date
---------- ------------------
SO/SOA General Notes/Typical Details 07/27/98
S1 Composite Foundation 07/27/98
X0X Xxxxxxxxxx Xxxx, Xxxx A 07/27/98
X0X Xxxxxxxxxx Xxxx, Xxxx X 07/27/98
S1C Foundation Plan, Area C 07/27/98
S1D Foundation Plan, Area D 07/27/98
S1E Foundation Plan, Area E 07/27/98
S1F Foundation Plan, Area F 07/27/98
S2 Composite Mezzanine Plan 07/27/98
X0X Xxxxxx Xxxxx Xxxxxxx Xxxx, Xxxx A 07/27/98
X0X Xxxxxx Xxxxx Xxxxxxx Xxxx, Xxxx X 07/27/98
S3 Composite Roof Framing Plan 07/27/98
S3A Roof Framing Plan, Area A 07/27/98
S3B Roof Framing Plan, Area B 07/27/98
S3C Roof Framing Plan, Area C 07/27/98
S3D Roof Framing Plan, Area D 07/27/98
S3E Roof Framing Plan, Area E 07/27/98
S3F Roof Framing Plan, Area F 07/27/98
S4-S5A Sections and Details 07/27/98
S6 Steel Elevations 07/27/98
A101 Overall Floor Plan 08/05/98
A102 Overall Roof Plan 08/05/98
X000 Xxxxx Xxxxx Xxxx "A" 08/05/98
X000 Xxxxx Xxxxx Xxxx "X" 08/05/98
X000 Xxxxx Xxxxx Xxxx "X" 08/05/98
X000 Xxxxx Xxxxx Xxxx "D" 08/05/98
X000 Xxxxx Xxxxx Xxxx "X" 08/05/98
X000 Xxxxx Xxxxx Xxxx "F" 08/05/98
A207 Enlarged Office Area "G" 08/05/98
A208 Enlarged Office Area "H" 07/06/98
A209 Enlarged Second Floor Office Area "G" 08/05/98
A210 Enlarged Second Floor Office Area "H" 08/05/98
A211 Enlarged Stair Plans and Details 08/05/98
A212 Enlarged Warehouse Restroom Plans 08/05/98
A301 Elevations 08/05/98
A302 Enlarged Elevations 08/05/98
A401 Warehouse Wall Sections 08/05/98
A402 Office Wall Sections 08/05/98
A403 Details 08/05/98
A404 Interior Wall Sections 08/05/98
A501/502 Door and Frame Schedules/Details 08/05/98
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EXHIBIT D-2
TENANT FINISH WORK
The Landlord will provide the following allowances for completion of the Tenant
Finish Work:
100,500 square feet of office space $3,588,654
395,240 square feet of warehouse space $1,289,504
Any cost savings for the Tenant Improvements as a result of a reduction in scope
will reduce the Base Rent for the Initial Lease Term by the difference between
the Allowances and the total cost of the Tenant Finish Work. Such reduction
shall be calculated in the same manner as the Base Rent. The allowance provides
for the finish out of 90,500 square feet of office. The second floor of the
office will have 10,000 square feet of unfinished space.
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EXHIBIT D-3
TENANT FINISH WORK
The Landlord will complete the Tenant Finish Work for the office in accordance
to the plans prepared by Xxxxxx Design Associates, Inc. and dated September 8,
1998, which include:
XX000X 0xx Xxxxx Xxxx, Xxxxx
XX000X 1st Floor Plan, North
IN202A 2nd Floor Plan, South
XX000X 0xx Xxxxx Xxxx, Xxxxx
XX000X 0xx Xxxxx Xxxxxxx Xxxx, Xxxxx
XX000X 0xx Xxxxx Ceiling Plan, North
IN212A 0xx Xxxxx Xxxxxxx Xxxx, Xxxxx
XX000X 0xx Xxxxx Xxxxxxx Xxxx, Xxxxx
XX000X 0xx Xxx. Xxxxx Xxxxxxx Xxxx, Xxxxx
XX000X 0xx Xxx. Xxxxx Xxxxxxx Xxxx, Xxxxx
XX000X 0xx Xxx. Xxxxx Xxxxxxx Xxxx, Xxxxx
XX000X 0xx Xxx. Xxxxx Xxxxxxx Xxxx, Xxxxx
XX000 Interior Elevations
IN302 Interior Elevations
IN401 Wall Sections/Types
IN402 Miscellaneous Details
IN403 Miscellaneous Details
IN404 Miscellaneous Details
The Landlord will complete the Tenant Finish Word for the warehouse in
accordance with plans and specifications to be prepared at a subsequent date and
to be attached to this Exhibit D-3 as an amendment.
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EXHIBIT D-4
CHANGE ORDERS
1. Tenant may propose one or more changes to the Construction Plans by
submitting to Landlord a written change order request (the "Change Order
Request"). With respect to the changes proposed in each individual Change Order
Request (the "Proposed Changes"), Landlord may evaluate: (a) all costs that
would be incurred to implement the Proposed Changes (including loan extension
commissions and fees, and additional debt service on construction loans) (the
"Change Order Costs"); (b) all savings that would result from implementing the
Proposed Changes (the "Change Order Savings"); (c) any delay that would result
from completing the Proposed Changes; and (d) whether the Proposed Changes
would: (i) materially affect the number of rentable square feet in the Building;
(ii) materially affect the quality of the materials used in the foundation,
floor structure, exterior walls, structural steel, roof, or other structural
parts of the Building; (iii) materially change the "footprint" of the Building;
or (iv) otherwise materially change the scope of Landlord's Work (collectively,
the "Material Scope Change(s)").
2. Landlord shall approve an individual Change Order Request, unless Landlord
reasonably concludes that: (a) implementing the Proposed Changes will cause a
delay in the completion of Landlord's Work; or (b) the Proposed Changes
constitute a Material Scope Change. Within ten business days after receipt of
the Change Order Request, Landlord shall deliver to Tenant a written notice
stating: (a) whether Landlord approves or disapproves the Change Order Request;
(b) the amount of the Change Order Costs; (c) the amount of the Change Order
Savings; and (d) if Landlord disapproves the Change Order Request, the specific
basis for the disapproval. If: (a) Landlord disapproves the Change Order Request
solely on the basis that implementing the Proposed Changes will cause a delay in
the completion of Landlord's Work; and (b) Tenant agrees to extend the periods,
dates, and deadlines applicable with respect to the completion of Landlord's
Work, including the periods, dates, and deadlines set forth in Subsection 6(l)
with respect to completion delays, one day for each day of delay as a result of
implementing the Proposed Changes; then the Proposed Changes shall be
implemented notwithstanding Landlord's disapproval. If: (a) Landlord approves an
individual Change Order Request; and (b) the Change Order Costs resulting from
the Proposed Changes exceed the Change Order Savings resulting from the Proposed
Changes; then Tenant shall reimburse Landlord on demand for all Change Order
Costs in excess of Change Order Savings, as such Change Order Costs are
incurred. Changes to the Construction Plans proposed by Tenant and approved by
Landlord, or implemented notwithstanding Landlord's disapproval, shall be
implemented on a "cost plus 10%" basis. Such 10% addition shall be: (a) for
overhead and profit of the general contractors and the subcontractors; and (b)
included as a Change Order Cost.
3. If Landlord approves a Change Order Request, then Tenant shall have five
business days within which to deliver to Landlord a written notice stating its
desire to execute a change order finalizing the inclusion of the Proposed
Changes into the
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Construction Plans (the "Change Order"). If Tenant delivers such a written
notice to Landlord within the specified period, then Landlord and Tenant shall
execute the Change Order. If Tenant does not deliver such a written notice to
Landlord within the specified period, then Tenant shall be deemed to have
abandoned its Change Order Request, and Landlord's Work shall be completed in
accordance with the then current Construction Plans. If Tenant abandons, or is
deemed to have abandoned, its Change Order Request, then Tenant promptly shall
reimburse Landlord for any reasonable costs incurred by Landlord as a result of
the evaluation by Landlord of the Change Order Request.
4. Landlord may make changes to the Construction Plans if such changes are
required: (a) by the Applicable Laws; or (b) to correct mistakes or inadequacies
in the Construction Plans (the "Landlord Permitted Change(s)"); by submitting to
Tenant a Change Order Request setting forth the Proposed Changes. If Landlord
delivers to Tenant a Change Order Request with respect to a Landlord Permitted
Change, then Tenant shall have ten business days within which to evaluate the
Change Order Request and confirm that the Proposed Changes are Landlord
Permitted Changes; provided that, if Tenant fails to: (a) object in writing to
the Change Order Request within the stated period; or (b) state in such writing
the specific basis for objecting
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to the Change Order Request; then Tenant shall be deemed to have confirmed that
the Proposed Changes are Landlord Permitted Changes. If Tenant confirms, or is
deemed to have confirmed, that the Proposed Changes are Landlord Permitted
Changes, then Landlord and Tenant shall execute a Change Order. Landlord
Permitted Changes shall be implemented at the expense of Landlord, and shall not
result in an increase in Rent.
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EXHIBIT E
Acceptance Letter
Airtech Parkway Associates, LLC
--------------------------------
--------------------------------
RE: Leased Premises located at Airtech Park
Gentlemen:
The undersigned, as "Tenant" under that certain Lease dated
____________________, 1998, made with Airtech Parkway Associates, LLC, an
Indiana limited liability company (the "Landlord"), hereby certifies:
1. That the Leased Premises have been substantially completed in accordance with
the terms and conditions of the Lease, subject to Latent Defects, Punch-List
items listed on Schedule I, attached hereto, and Warranty Items;
1. That Tenant has accepted possession of the Leased Premises, subject to the
terms and conditions of the Lease and to Latent Defects, Punch-List items listed
on Schedule I, and Warranty Items, and Tenant now occupies the Leased Premises;
1. That Tenant has paid to Landlord all required amounts for allowance overages
and change orders, and the final schedule of Base Rent is attached hereto as
Schedule II; and
1. The Commencement Date of the Lease is ______________________________, _____.
Dated: __________________________, 2000
TENANT:
By:
Printed:
Title:
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Accepted and agreed to by: LANDLORD:
By:
Printed:
Title:
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EXHIBIT G
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance, and Attornment Agreement
(the "Agreement"), dated the ____ day of __________, 199__, by and among
______________________________ (the "Mortgagee"), ______________________________
(the "Landlord") and ______________________________, (the "Tenant"), having its
principal place of business at ________________________________, WITNESSES:
WHEREAS, Tenant has entered into a lease dated the ___ day of
__________, 199_ (the "Lease"), pursuant to which Tenant has leased certain
premises located at ___________________________, as more particularly described
in the Lease (the "Leased Premises");
WHEREAS, Mortgagee has agreed to make a mortgage loan in the
amount of $___________ (the "Mortgage") to ____________________, the "Landlord"
under the Lease;
WHEREAS, Tenant desires to be assured of the continued use
and occupancy of the Leased Premises under the terms of the Lease; and
WHEREAS, Mortgagee agrees to such continued use and occupancy
by Tenant; provided that Tenant agrees to recognize and attorn to Mortgagee or
to the purchaser in the event of foreclosure or otherwise;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are acknowledged hereby, Mortgagee and Tenant
agree as follows:
1. The Lease is and shall be subject and subordinate to the Mortgage and
to all renewals, modifications, consolidations, replacements, and
extension of the Mortgage, to the full extent of amounts secured
thereby and interest thereon.
2. Tenant agrees that, in the event any proceedings are brought for the
foreclosure of the Mortgage, it will attorn to the purchaser at such
foreclosure sale and recognize such purchaser by virtue of such
foreclosure to be deemed to have assumed and agreed to be bound, as
substitute landlord, by the terms and conditions of the Lease, until
the resale or other disposition of its interest by such purchaser,
except that: (a) such assumption shall not be deemed of itself to be an
acknowledgment by such purchaser of the validity of any then
existing claims of Tenant against the prior landlord, or the release
by Tenant of such claims against the prior landlord; and (b) such
purchaser shall remain liable after the resale or other disposition of
its interest for defaults by such purchaser after such foreclosure
sale and before such resale or other disposition. All rights and
obligations herein and hereunder shall continue as though such
foreclosure proceedings had not been brought, except as aforesaid.
Tenant agrees to execute and deliver to any such purchaser such
further assurances and all other documents, including a new lease
upon the same terms and conditions as the Lease, confirming the
foregoing as such purchaser reasonably may request, except that
entering into such new lease shall not be deemed of itself to release
the claims of Tenant against the prior landlord under the Lease.
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3. So long as there is no uncured Tenant Default under the terms and
conditions of the Lease, the right of possession of Tenant to the
Leased Premises, and the terms and conditions of the Lease, shall not
be affected or disturbed by Mortgagee in the exercise of its rights and
remedies under the Mortgage. If it should become necessary to foreclose
the Mortgage, or if Mortgagee otherwise should come into possession of
the Leased Premises, then Mortgagee will not join Tenant under the
Lease in summary or foreclosure proceedings, and will not disturb the
use and occupancy of Tenant under
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the Lease, so long as Tenant is not in default under any of the terms,
covenants, or conditions of the Lease beyond the applicable notice and
cure period, and has not prepaid the rent except monthly in advance as
provided by the terms of the Lease.
4. Tenant agrees to give Mortgagee, by certified mail, a copy of any
notice of default served upon Landlord; provided that, prior to such
notice, Tenant has been notified in writing of the address of
Mortgagee. Tenant further agrees that Mortgagee shall have the right to
cure any such default on behalf of the Landlord.
5. The subordination of Tenant's leasehold estate to the lien of the
Mortgage shall not subordinate in any way the rights of Tenant with
respect to any insurance proceeds payable by reason of a casualty loss
to the Leased Premises or to any of the property of Tenant located
therein or thereon. Such subordination shall not subordinate in any way
any rights of Tenant for recovery of any sums due to Tenant under the
terms and conditions of the Lease as a result of an exercise, or threat
of exercise, of the power of eminent domain. Mortgagee agrees that the
terms and conditions of the Lease shall govern the rights of Tenant
with respect to casualty insurance proceeds and recoveries due to
eminent domain.
6. Mortgagee or the ultimate purchaser shall not be or become subject to
any liability or obligation under the Lease or otherwise by virtue of
this Agreement until Mortgagee or such purchaser shall have acquired
the interest of Landlord in the Leased Premises, by foreclosure or
otherwise, and then only to the extent of liabilities or obligations
accruing subsequent to the date that Mortgagee or such purchaser has
acquired the interest of Landlord in the Leased Premises.
7. Nothing contained in this Agreement shall be construed as limiting the
right of Tenant to offset claims against the Landlord against the
rents, as expressly provided in Section 20 of the Lease.
8. All notices required under this Agreement shall be deemed to be
properly served if such notices are in writing, and are delivered
personally or sent by certified mail, return receipt requested, to
Tenant at: __________________________, Attention: _______________; to
Landlord____________ at: __________________________, Attention:
_______________; and to Mortgagee at:
__________________________, Attention:________________. Any party
hereto may change its address for purposes of
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notice by delivering notice to the other parties in the manner set
forth in this Section. The date of service for notice sent by certified
mail shall be the date on which such notice is deposited with the
United States Postal Service.
The provisions of this Agreement are binding upon, and shall
inure to the benefit of, the successors and assigns of Mortgagee, Landlord, and
Tenant.
IN WITNESS WHEREOF, Mortgagee, Landlord, and Tenant have
executed this Agreement as of the day and year first written above.
MORTGAGEE:
------------------------------
By:
-------------------------------------
Printed:
--------------------------------
Title:
----------------------------------
TENANT:
---------------------------------
By:
-------------------------------------
Printed:
--------------------------------
Title:
----------------------------------
LANDLORD:
-------------------------------
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-------------------------------------
By:
--------------------------------------
Printed:
---------------------------------
Title:
-----------------------------------
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EXHIBIT H
ESTOPPEL CERTIFICATE
TO: _________________________ (the "Mortgagee") and __________________________
(the "Landlord")
THIS IS TO CERTIFY THAT:
1. The undersigned is the tenant (the "Tenant") under that certain lease dated
_______________, 199_ (the "Lease"), by and between Landlord and Tenant, with
respect to that certain premises commonly known as ____________________, and to
which the Lease refers to as the "Leased Premises".
2. The Lease: (a) is valid and in full force and effect on the date hereof; (b)
represents the entire agreement between Tenant and Landlord with respect to the
Leased Premises; (c) is the only agreement between Landlord and Tenant affecting
or relating to the Leased Premises; and (d) has not been modified, changed,
altered, assigned, supplemented, or amended in any respect, except as indicated
below (if none, state "none").
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3. Tenant has no outstanding options or rights of first refusal to purchase the
Leased Premises or any part thereof, or all or any part of the real property of
which the Leased Premises is a part, except or the option to purchase the Leased
Premises set forth in Exhibit M to the Lease.
4. Tenant has accepted and now occupies the Leased Premises, and is and has been
conducting its business in the Leased Premises since _______________, 199_. The
term of the Lease has commenced on _______________, 199_, and the expiration
date of the term of the Lease (other than unexercised options to extend the
Lease) will occur on _______________, 199_.
5. Tenant has not sublet the Leased Premises or any part thereof, or assigned
any of its rights under the Lease, except as indicated below (if none, state
"none"). _____________________________________
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6. Tenant has paid rent for the Leased Premises for the period up to and
including _______________, 199_. The current base rent payable by Tenant is
$________ per month. No such rent has been paid more than one month in advance
of its due date, except as indicated below (if none, state "none"). ___________
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7. All conditions under the Lease to be performed by Landlord have been
satisfied; no event has occurred, and no condition exists that, with the giving
of notice or the lapse of time or both, will constitute a default under the
Lease; and Tenant has no existing defenses, offsets, or credits against the
enforcement of the Lease by Landlord or the payment of rent for the Leased
Premises, except as indicated below (if none, state "none").
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8. No actions, whether voluntary or otherwise, are pending against Tenant (or
any general partner of Tenant if Tenant is a partnership) under the bankruptcy
laws of the United States or any state thereof, except as indicated below (if
none, state "none"). ____________________________________________________
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9. Tenant's current notice address is: _______________________________________
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10. The undersigned is authorized by all necessary action of Tenant to execute
this Estoppel Certificate on behalf of Tenant.
Dated this ____ day of __________, 199_.
TENANT:
-----------------------------
By:
---------------------------------
Printed:
----------------------------
Title:
------------------------------
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EXHIBIT I
PERMITTED ENCUMBRANCES
1. Taxes for 1998 payable 1999, now a lien, not yet due and payable.
2. Subject to the following, as disclosed by preliminary survey, Project
No. 98036, by Xxxx Xxxxxxx & Xxxxxx, Inc.:
(a) Existing fence lying 0.3 feet west of subject tract's surveyed
eastline;
(b) An overlap of 1.58 feet along the north side of tract
adjoining the Xxxxxx X. Xxxxx et al property (Book 266, page
482).
3. Primary and Secondary Plats for Airtech Park.
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EXHIBIT J
OPTION TO EXPAND
During the first five years of the Initial Lease Term (the
"Option Period"), Tenant shall have the option to: (a) require Landlord to
construct a single expansion of the Building (the "Building Expansion") on that
certain parcel of real estate comprised of approximately 13.33 acres and
depicted and/or described on Exhibit A, attached hereto and incorporated herein
by reference (the "Expansion Parcel"); and (b) lease from Landlord the Building
Expansion and the Expansion Parcel (the "Expansion Premises"); all on the
following terms and conditions (the "Expansion Option"):
1. BUILDING EXPANSION. The Building Expansion shall contain a
minimum of 140,176 square feet of distribution/warehouse space; provided that
the square footage of the distribution/warehouse space contained in the Building
Expansion shall not exceed the maximum square footage of the
distribution/warehouse space that can be constructed on the Expansion Parcel:
(a) in accordance with usual and customary site development and construction
standards and techniques; and (b) in compliance with all Applicable Laws.
2. EXERCISE OF OPTION. Tenant may exercise its Expansion
Option at any time during the Option Period, so long as Tenant is not in default
hereunder, by providing written notice thereof to Landlord. If Tenant fails to
exercise its Expansion Option in accordance with the terms and conditions of
this Exhibit on or before the date on which the Option Period expires, then the
Expansion Option shall terminate and shall have no further force or effect,
without further notice from Landlord.
3. EXPANSION RENT. Tenant shall pay to Landlord an initial
base rent (the "Expansion Rent") for the Expansion Premises during the term of
the Expansion Lease in an amount that provides to Landlord a return on the total
investment of Landlord in the Expansion Premises, including, without limitation:
(a) land acquisition costs for the Expansion Parcel at the current market cost
of land when Tenant exercises its Expansion Option in accordance with the terms
and conditions of this Exhibit (including closing and due diligence costs); (b)
leasing commissions; (c) design, construction, and development costs; and (d)
costs to finance the acquisition, construction, and development (including loan
commissions and fees for the construction loan, debt service on the construction
loan until 45 days after the Expansion Completion Date (as defined in Section 9
of this Exhibit), and the loan commissions and fees for the first permanent
loan) (the "Landlord Investment"); with such return on the Landlord Investment
being equal to the market "cap rate" required by institutional real estate
investors at the time of the Expansion Completion Date from comparable
distribution/warehouse projects leased to tenants of creditworthiness comparable
to Tenant; provided that, in no case shall such return on the total investment
be less than 11.4% per annum. The initial Expansion Rent, as determined in
accordance with the terms and conditions of this Section and Sections 4 and 6 of
this Exhibit, shall be increased whenever, during the Initial Lease Term or any
Extension Term, Base Rent
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increases for the Leased Premises, on a compounded basis, to reflect a 2% annual
increase. The Expansion Rent shall be payable in equal monthly installments and
in accordance with the terms and conditions set forth in Section 3 of the Lease.
4. MARKET CAP RATE. If Tenant exercises the Expansion Option in
accordance with the terms and conditions of this Exhibit, then, on or before the
date that is one month after the date on which Tenant exercises the Expansion
Option, Landlord shall deliver to Tenant written notice setting forth its good
faith determination of the market "cap rate" as described in Section 3 of this
Exhibit (the "Market Cap Rate Notice"). Within 15 days after Landlord delivers
the Market Cap Rate Notice to Tenant, Tenant shall deliver to Landlord written
notice accepting or rejecting Landlord's determination of the market "cap rate".
If Tenant fails to so notify Landlord, then Tenant shall be deemed to have
accepted Landlord's determination as the market "cap rate" for the purposes of
this Exhibit. If Tenant rejects Landlord's determination of the market "cap
rate" in accordance with the terms and conditions of this Exhibit, then, within
15 days thereafter, Landlord and Tenant jointly shall appoint a Qualified
Appraiser. If Landlord and Tenant are unable to agree
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upon the Qualified Appraiser within the specified period, then, within 15 days
thereafter: (a) Landlord and Tenant each shall appoint a Qualified Appraiser;
and (b) the Qualified Appraisers appointed by Landlord and Tenant jointly shall
appoint an additional Qualified Appraiser to constitute the Appraiser Panel.
Within one month after the date on which the Qualified Appraiser or the
Appraiser Panel, as the case may be, is appointed, the Qualified Appraiser or
the Appraiser Panel, as the case may be, shall determine the market "cap rate"
as described in Section 3 hereof. The determination of the Qualified Appraiser
or the Appraiser Panel, as the case may be, shall be the market "cap rate" for
the purposes of this Exhibit. All costs and fees incurred to have the Qualified
Appraiser or the Appraiser Panel determine the market "cap rate" shall be split
equally between Landlord and Tenant; provided that, if: (a) market "cap rate",
as determined by the Qualified Appraiser or the Appraiser Panel, as the case may
be, is equal to or greater than Landlord's determination of the market "cap
rate"; and (b) Tenant rescinds the exercise of the Expansion Option; then Tenant
shall pay all such costs and fees.
5. EXPANSION CONSTRUCTION. Landlord, at its cost and expense,
shall construct the Building Expansion in accordance with: (a) plans and
specifications jointly prepared by Landlord and Tenant and a construction
schedule prepared by Landlord and approved by Tenant, all as approved by
Landlord's mortgage lender or lien holder (the "Expansion Plans"); and (b) the
terms and conditions set forth in Subsections 6(a) through and including 6(k) of
the Lease and Section 7 of the Lease. Landlord and Tenant shall cooperate and
act with reasonable diligence to complete such plans and specifications promptly
after Tenant exercises its Expansion Option in accordance with the terms and
conditions of this Exhibit. The general contractor for construction of the
Building Expansion (the "Expansion Contractor") shall be: (a) selected by
Landlord; and (b) subject to the prior written approval of Tenant, which
approval shall not be withheld or delayed unreasonably; provided that, so long
as Xxxxxxxx Construction, Inc., or its successor or assign ("BCI"), is
controlled by its majority shareholder on the date hereof, BCI is approved by
Tenant to be the Expansion Contractor. Landlord shall keep, at its primary place
of business, a complete set of: (a) books and records of accounts with respect
to the Building Expansion; and (b) the Expansion Plans (collectively, the
"Records"). The Records shall be open to inspection and review by Tenant and its
employees and agents at all reasonable times, and upon reasonable notice, during
ordinary business hours.
6. EXPANSION CONTRACT. On or before the date that is one month
after the date on which Tenant exercises the Expansion Option, Landlord and the
Expansion Contractor shall execute a construction contract under which the
Expansion Contractor, as the general contractor, shall construct the Building
Expansion: (a) on a "fixed price" basis, which will include an allowance for
tenant improvements; and (b) in accordance with the Expansion Plans (the
"Expansion Contract"). As the Expansion Plans are completed, the Expansion
Contractor shall: (a) obtain pricing estimates from subcontractors and suppliers
for the work detailed in the Expansion Plans; (b) provide to Tenant copies of
such estimates; and (c) establish the "fixed price" under the Expansion
Contract.
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7. EXPANSION CONFIRMATION. As preliminary amounts of Landlord
Investment and initial Expansion Rent become available, Landlord shall provide
to Tenant written notice of such preliminary amounts. When: (a) the "fixed
price" is established under the Expansion Contract; (b) a firm estimate of the
Landlord Investment is available; and (c) the market "cap rate" has been
established in accordance with the terms and conditions of Section 4 of this
Exhibit, Landlord shall notify Tenant in writing of the "fixed price", the firm
estimate of the Landlord Investment, the market "cap rate", and the initial
Expansion Rent. Within 15 days after Landlord delivers such notice to Tenant,
Tenant shall deliver to Landlord written notice confirming or rescinding the
exercise of the Expansion Option. If Tenant fails to so notify Landlord, then
Tenant shall be deemed to have confirmed the exercise of the Expansion Option.
If Tenant rescinds the exercise of the Expansion Option, then Tenant shall pay:
(a) all costs and expenses of preparing the Expansion Plans; and (b) all other
reasonable out-of-pocket costs and expenses incurred by Landlord with respect to
the Expansion Plans, the Building Expansion or the exercise by Tenant of the
Expansion Option.
8. EXPANSION LEASE. If Tenant confirms (or is deemed to
confirm) the exercise of the Expansion Option, then, within 30 days after such
confirmation (or deemed confirmation), Landlord and Tenant shall execute a lease
of the Expansion Premises on the same terms and conditions as set forth in the
Lease, to the extent applicable (the "Expansion Lease"), including: (a) such
modifications to the form of the Lease as may be required to reflect the terms
and conditions of this Exhibit and the obligations of Landlord and Tenant
hereunder; and (b) terms and conditions providing that the Lease and the
obligations of Tenant under the Expansion Lease are cross-defaulted with one
another; provided that, at the option of Landlord, Landlord and Tenant within
such period shall execute instead of the Expansion Lease an amendment to the
Lease that: (a) expands the Building to include the Building Expansion and
expands the Leased Premises to include the Expansion Parcel; (b) changes the
Base Rent for the Building Expansion to the Expansion Rent (as hereinafter
defined); and (c) includes such modifications to the Lease as may be required to
reflect the terms and conditions of this Exhibit and the obligations of Landlord
and Tenant hereunder.
9. LEASE TERMS. Upon execution by landlord and Tenant of the
Expansion Lease, the Lease Term and the Expiration Date automatically shall be
extended so that the remaining Lease Term is 20 years after the date that
construction of the Building Expansion is substantially completed, as determined
in accordance with the terms and conditions set forth in Subsections 6(c), 6(d),
7(d) and 7(e) of the Lease (the "Expansion Completion Date"). The term of the
Expansion Lease shall be for a period commencing on the Expansion Completion
Date, and ending on the date that the extended Lease Term expires, so that the
Expansion Lease is coterminous with (ends on the same date as) the extended
Lease Term. No act or agreement executed by Landlord or Tenant shall be
necessary to effect an extension of the Lease Term pursuant to the terms and
conditions of this Section; provided that each party shall execute upon request
by the other an amendment to the Lease that memorializes such extension of the
Lease Term. If the Expansion Completion Date occurs before the date that is five
years after the
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Commencement Date, then, during the period from the date that is the original
Expiration Date to the date that is the extended Expiration Date, Base Rent for
the original Leased Premises shall be the Base Rent that would be in effect
under Exhibit B for the First Extension Term, and, if the Expansion Completion
Date occurs on or after the date that is five years after the Commencement Date,
then, during the period from the date that is the original Expiration Date to
the date that is the extended Expiration Date, Base Rent for the original Leased
Premises shall be the Base Rent that would be in effect under Exhibit B for the
First Extension Term and then for the Second Extension Term. If the Expansion
Completion Date occurs before the date that is five years after the Commencement
Date, then the length of the First Extension Term automatically shall be reduced
by the length of the period from the date that is the original Expiration Date
to the date that is the extended Expiration Date. If the Expansion Completion
Date occurs on or after the date that is five years after the Commencement Date,
then: (a) the First Extension Term shall be deemed to have expired before the
extended Expiration Date; (b) the length of the Second Extension Term
automatically shall be reduced by the length of the period from the date that
would have been the expiration of the First Extension Term to the date that is
the extended Expiration Date; and (c) Tenant shall have the option to extend the
Lease Term for a Fifth Extension Term. Tenant shall have no option to extend the
Lease Term for a Fifth Extension Term, unless the Expansion Completion Date
occurs on or after the date that is five years after the Commencement Date.
10. UNDERWRITING CONDITION. The obligations of Landlord under
this Exhibit are contingent upon the ability and willingness of Landlord's
mortgage lenders or lien holders to underwrite and extend to Landlord
construction and permanent loans at market rates of interest, for market loan
terms, and with market amortization periods, based on the creditworthiness of
Tenant at the time that Tenant exercises its Expansion Option in accordance with
the terms and conditions of this Exhibit. If the creditworthiness of Tenant is
adequate for Landlord to obtain such loans, then the contingency set forth in
this Section shall be satisfied, notwithstanding the inability of Landlord to
obtain such loans for any other reason.
11. MISCELLANEOUS PROVISIONS. All capitalized words that are
used in this Exhibit and that are not defined herein shall have the meanings
ascribed to such words in the Lease. Notwithstanding any term or condition of
the Lease, if: (a) the Lease is assigned to a party that is not a wholly-owned
subsidiary of BPI; or (b) the Leased Premises is sublet in whole or in part to
such a party; then the Expansion Option shall terminate and shall have no
further force or effect, without further notice from Landlord.
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PARCEL DESCRIPTION
LAND DESCRIPTION
A part of the land of Six Points Associates, LLC, recorded in Volume 3, pages
84-93 and a part of the land of Six Points Associates, LLC recorded in Deed Book
337, pages 610-611 in the Office of the Recorder in Xxxxxxxxx County, Indiana
and a part of the Southeast quarter of Section 30, the Southwest quarter of
Section 29, the Northwest quarter of Section 32 and the Northeast quarter of
Section 31 all in Township 15 North, Range 2 East of the Second Principal
Meridian in Guilford Township, Xxxxxxxxx County, Indiana more particularly
described as follows:
Commencing at the Southeast corner of said Northeast quarter of Section 31, a
Xxxxxxxxx County disk found per County Surveyor; thence along the South line of
said Northeast quarter of Section 31, South 89 degrees 38 minutes 49 seconds
West (assumed bearing) 86.51 feet; thence North 00 degrees 19 minutes 50 seconds
East 85.31 feet; thence continue North 00 degrees 19 minutes 50 seconds East
2387.15 feet to the POINT OF BEGINNING; thence continue North 00 degrees 19
minutes 50 seconds East 1194.98 feet; thence South 89 degrees 52 minutes 01
seconds East 1084.14 feet; thence South 00 degrees 07 minutes 59 seconds West
988.42 feet to the South line of said Southwest quarter of Section 29; thence
along said South line South 89 degrees 52 minutes 01 seconds East 331.39 feet to
the East line of the West half of said Northwest quarter of Section 32; thence
along said East line South 00 degrees 21 minutes 12 seconds West 710.48 feet;
thence North 89 degrees 40 minutes 10 seconds West 254.50 feet; thence parallel
with said East line North 00 degrees 21 minutes 12 seconds east 499.03 feet;
thence North 89 degrees 40 minutes 10 seconds West 1164.14 feet to the POINT OF
BEGINNING, containing 34.362 acres.
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EXHIBIT K
PARK ASSESSMENT
The Park Assessments for Airtech Park to provide service pursuant to the
Declaration of Covenants & Easements shall be $0.05 for years 1-3 of the Lease.
Such assessments shall not increase by more than $0.01 per year for the
remainder of the Lease Term.
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EXHIBIT L
PERMITTED USES
See the following I-2 Office/Warehouse Distribution, Article 2.13. of the
town of Plainfield, Indiana Zoning Code.
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EXHIBIT M
OPTION TO PURCHASE
So long as Tenant is not in default hereunder, Tenant shall
have a one-time option to purchase the Leased Premises for the Fair Market Value
(as defined below) upon the expiration of the Initial Lease Term and on the
following terms and conditions (the "Purchase Option"):
1. EXERCISE OF OPTION. Tenant shall exercise the Purchase
Option by providing written notice thereof to Landlord at least one year prior
to the expiration of the Initial Lease Term (the "Exercise Date"). If Tenant
fails to exercise the Purchase Option on or before the Exercise Date, then the
Purchase Option shall terminate and have no further force or effect, without
notice from Landlord. Notwithstanding anything to the contrary set forth herein,
Tenant simultaneously may exercise the Purchase Option and its option to extend
the Lease Term for one or more Extension Terms.
2. CLOSING OF PURCHASE. If Tenant exercises the Purchase
Option on or before the Exercise Date and otherwise in accordance with the terms
and conditions of this Exhibit, then, on the date that the Initial Lease Term
expires: (a) Tenant shall pay to Landlord in cash or by wire transfer an amount
equal to the Fair Market Value of the Leased Premises; (b) Landlord shall convey
the Leased Premises to Tenant by warranty deed, subject only to Real Estate
Taxes and Park Assessments, the Permitted Encumbrances and any rights, interests
or matters arising under, by or through Tenant or to which Tenant has consented;
(c) Landlord and Tenant shall execute and deliver such other documents and
instruments as are customary at the time, or required by the Applicable Laws at
the time, to close a sale and purchase of commercial real estate in the
Indianapolis metropolitan area, including, without limitation, a vendor's
affidavit and non-foreign affidavit in the customary forms; (d) Landlord, at its
cost and expense, shall deliver to Tenant an owner's policy of title insurance
insuring that fee title to the Leased Premises is vested in Tenant, subject only
to Real Estate Taxes and Park Assessments, the Permitted Encumbrances and any
rights, interests or matters arising under, by or through Tenant or to which
Tenant has consented; and (e) Real Estate Taxes and Park Assessments shall be
prorated as of such date, and allocated between Landlord and Tenant. Real Estate
Taxes shall be prorated on the basis of when the Real Estate Tax first became a
lien on the Leased Premises.
3. FAIR MARKET VALUE. The "Fair Market Value" of the Leased
Premises shall be the amount on or about the Exercise Date that an independent
third-party purchaser would pay for the Leased Premises in a negotiated
arms-length transaction, presuming that the Leased Premises is leased for the
per annum rates of minimum rent on and after the Exercise Date for comparable
office and distribution/warehouse space in buildings at comparable locations in
the Park or within a radius of ten miles from the Leased Premises. If Tenant
exercises the Purchase Option in accordance with the terms and conditions of
this Exhibit, then, on or before the date that is one month after the date on
which Tenant exercises the Purchase Option, Landlord shall deliver to
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Tenant written notice setting forth its good faith determination of the Fair
Market Value of the Leased Premises (the "Fair Market Value Notice"). Within 15
days after Landlord delivers the Fair Market Value Notice to Tenant, Tenant
shall deliver to Landlord written notice accepting or rejecting Landlord's
determination of the Fair Market Value. If Tenant fails to so notify Landlord,
then Tenant shall be deemed to have accepted Landlord's determination as the
Fair Market Value for the purposes of this Exhibit. If Tenant rejects Landlord's
determination of the Fair Market Value in accordance with the terms and
conditions of this Exhibit, then, within 15 days thereafter, Landlord and Tenant
jointly shall appoint a Qualified Appraiser. If Landlord and Tenant are unable
to agree upon the Qualified Appraiser within the specified period, then, within
15 days thereafter: (a) Landlord and Tenant each shall appoint a Qualified
Appraiser; and (b) the Qualified Appraisers appointed by Landlord and Tenant
jointly shall appoint an additional Qualified Appraiser to constitute the
Appraiser Panel. Within one month after the date on which the Qualified
Appraiser or the Appraiser Panel, as the case may be, is appointed, the
Qualified Appraiser or the Appraiser Panel, as the case may be, shall determine
the Fair Market Value of the Leased Premises. The determination of the Qualified
Appraiser or the Appraiser Panel, as the case may be, shall be the Fair Market
Value for the purposes of this Exhibit. Within 15 days after the Qualified
Appraiser or the Appraiser Panel, as the case may be, determines the Fair Market
Value, Tenant shall deliver to Landlord written notice confirming or rescinding
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the exercise of the Purchase Option. If Tenant fails to so notify Landlord,
then: (a) Tenant shall be deemed to have confirmed the exercise of the Purchase
Option; and (b) Landlord and Tenant shall close the purchase and sale of the
Leased Premises in accordance with the terms and conditions of Section 2 of this
Exhibit. All costs and fees incurred to have the Qualified Appraiser or the
Appraiser Panel determine the Fair Market Value shall be split equally between
Landlord and Tenant; provided that, if: (a) the Fair Market Value of the Leased
Premises, as determined by the Qualified Appraiser or the Appraiser Panel, as
applicable, is equal to or greater than Landlord's determination of the Fair
Market Value of the Leased Premises, as set forth in the Fair Market Value
Notice; and (b) Tenant rescinds the exercise of the Purchase Option; then Tenant
shall pay all such costs and fees.
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LEASE GUARANTY
This LEASE GUARANTY (the "Guaranty"), made as of the 18th day
of September, 1998, by BRIGHTPOINT, INC. (the "Guarantor"), in favor of Airtech
Parkway Associates, LLC (the "Landlord"), WITNESSES:
RECITALS
WHEREAS, Landlord and Brightpoint North America, Inc., an
Indiana corporation (the "Tenant") entered into a Lease, dated September 18,
1998 (the "Lease"), with respect to the Building and Improvements to be
constructed by Landlord on the Parcel;
WHEREAS, Tenant is a wholly-owned subsidiary of Guarantor, and
the financial wherewithal of Guarantor may be required to pay and perform the
obligations of Tenant under the Lease;
WHEREAS, as a condition to entering into the Lease with
Tenant, Landlord has required that Guarantor make and deliver this Guaranty with
respect to the payment and performance by Tenant of its obligations under the
Lease; and
WHEREAS, this Guaranty is made by Guarantor for the purpose of
fulfilling such condition;
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are acknowledged hereby, the parties agree as
follows:
1. Absolute Guaranty. Guarantor hereby absolutely and
unconditionally guarantees to Landlord, and its successors and assigns, the full
and prompt payment when due of any and all Rent and the full and prompt
performance when due of any and all obligations of Tenant under the Lease (the
"Lease Obligations"), together with the full and prompt payment of: (a) any and
all claims, liabilities, damages, losses, costs, and expenses (including,
without limitation, attorneys' and paralegals' fees and court costs) arising
from, or in connection with, any failure of Tenant fully and promptly to pay any
Rent or to perform any Lease Obligations; and (b) any and all costs and expenses
(including, without limitation, attorneys' and paralegals' fees and court costs)
incurred by Landlord to collect or enforce, or in connection with collecting or
enforcing, all or any part of the Rent or the Lease Obligations (collectively,
together with Rent and the Lease Obligations, the "Liabilities"); such payment
or performance to be made by Guarantor upon a Tenant Default. Guarantor hereby
further absolutely and unconditionally agrees that Guarantor shall pay to
Landlord upon demand any and all reasonable costs and expenses (including,
without limitation, attorneys' and paralegals' fees and court costs) incurred by
Landlord to enforce, or in connection with enforcing, this Guaranty or to
collect, or in connection with collecting, any amounts payable by Guarantor
hereunder.
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In addition to its other rights and remedies, Landlord shall have the right to
obtain an injunction, specific performance and other equitable remedies to
enforce payment and performance by Guarantor of the Liabilities. Guarantor shall
be released or relieved from its obligations under this Guaranty if, and to the
extent that, Tenant is released or relieved from its obligations under the
Lease.
2. Term of Guaranty. This Guaranty shall: (a) be an absolute
and unconditional guaranty; and (b) remain in full force and effect during the
entire Lease Term, and thereafter so long as any of the Liabilities remain
unsatisfied, even if the Lease has been terminated. Neither an assignment of the
Lease nor any subletting of the Leased Premises or any part thereof (whether or
not by operation of law) shall release, relieve, compromise, impair, or waive
any liability or obligation of Guarantor hereunder; provided that: (a) if: (i)
there is a Merger or Asset Sale; and (ii) the Transfer Conditions are satisfied
with respect to the Merger or Asset Sale; or (b) if: (i) there is a Stock Sale;
(ii) the Transfer Conditions are satisfied with respect to the Stock Sale; and
(iii) the Purchaser of the stock of Tenant agrees to, and does enter into, a
Guaranty
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Agreement on the same terms and conditions as this Guaranty; then this Guaranty
shall terminate with respect to the payment of Rent and the performance of Lease
Obligations that first become due after the Transfer Conditions are satisfied.
Notwithstanding any such termination, Guarantor shall remain obligated under
this Guaranty with respect to the payment of Rent and the performance of Lease
Obligations that first become due before the Transfer Conditions are satisfied.
The validity of this Guaranty, and the liabilities and obligations of Guarantor
hereunder, shall not be released, relieved, compromised, impaired, waived, or
affected by, or as a result of: (a) any action or omission of Landlord with
respect to Tenant; (b) any release, compromise, impairment, or waiver of any
rights or remedies of Landlord; (c) any delay or omission in the enforcement of
any of the rights or remedies of Landlord (whether or not under the Lease); or
(d) any Insolvency Default (whether or not the Lease is terminated as a result
of the Insolvency Default or for any other reason).
3. Rights of Landlord. From time to time, and without notice
to Guarantor, Landlord may: (a) retain or obtain the primary or secondary
liability or obligation of any party or parties for, or with respect to, any or
all of the Liabilities or any or all of the liabilities or obligations of
Guarantor hereunder (the "Other Obligor"); (b) modify, amend, alter, or change
the Lease or the Liabilities, or extend or renew the Lease or the Liabilities,
for any period (whether or not longer than the original period); (c) release,
relieve, compromise, impair, or waive any or all of the Liabilities, the
liabilities or obligations of Guarantor hereunder, or the liabilities or
obligations of any Other Obligor; (d) release, relieve, compromise, impair, or
waive any security interest or lien in any or all property to secure payment or
performance of any or all of the Liabilities or of any or all of the liabilities
or obligations of Guarantor hereunder (the "Security"), and permit any
substitution or exchange for any or all of the Security; and (e) resort to
Guarantor for payment or performance of any or all of the Liabilities (whether
or not Landlord shall have: (i) resorted to any of the Security; (ii) made a
demand on or proceeded against Tenant or any Other Obligor; or (iii) sought or
obtained a judgement with respect to any or all of the Liabilities). No such
action or omission by Landlord shall affect in any manner whatsoever the
liabilities or obligations of Guarantor hereunder. Landlord may apply any amount
received by Landlord from Tenant, Guarantor, any Other Obligor, or any other
party toward the payment and performance of the Liabilities in such order of
application as Landlord may elect from time to time. As amounts become payable
hereunder, Landlord may collect and enforce this Guaranty with respect to those
amounts, without affecting in any manner whatsoever the liabilities or
obligations of Guarantor hereunder with respect to amounts that subsequently may
become payable hereunder. Guarantor may enforce this Guaranty even if the full
amount payable hereunder at the time of enforcement is not known, and, in the
event of such enforcement, Guarantor may collect amounts as they become known
until Guarantor has collected the full amount payable hereunder.
4. Exercise of Rights. No delay or omission by Landlord in the
exercise of any right or remedy shall operate as a waiver thereof, and no final
or partial exercise by Landlord of any right or remedy shall preclude other or
further exercises thereof or the exercise of any other right or remedy.
Guarantor hereby expressly waives: (a) any and
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all notices of the acceptance of this Guaranty; (b) any and all notices of the
existence, creation, modification, amendment, alteration, change, extension, or
renewal of the Lease, the Liabilities, or any part thereof (whether or not such
notice is required to be given to Tenant under the terms and conditions of the
Lease); (c) presentment, demand, notice of dishonor, protest, and any and all
other notices whatsoever (except for any notices required under the Lease and
the requirement of Landlord to make a written demand on Guarantor); (d) any and
all benefit of valuation, appraisement, or other exemption laws or rights
thereof (whether now or hereafter in force or effect) in the jurisdiction of the
court in which Landlord enforces this Guaranty; (e) the invalidity or
unenforceability of the Liabilities, or any part thereof; (f) any and all
diligence in enforcement, collection, perfection, or protection of, or
realization upon: (i) the Liabilities or any part thereof; (ii) any of the
liabilities and obligations of Guarantor hereunder; (iii) any of the liabilities
or obligations of any Other Obligor; or (iv) any of the Security; (g) any and
all rights of subrogation for, or with respect to, any of the liabilities and
obligations of Guarantor hereunder, until all of the Liabilities have been
satisfied in full; and (h) the right to assert the invalidity or
unenforceability of the Lease due to: (i) reorganization, arrangement,
bankruptcy, or insolvency; or (ii) any reason other than reorganization,
arrangement, bankruptcy, or insolvency, except to the extent that such other
reasons could be asserted successfully by Tenant.
5. Miscellaneous. This Guaranty shall be binding upon
Guarantor and its successors and assigns, and shall be governed by the laws of
the State of Indiana. This Guaranty shall be enforced in the courts of the State
of Indiana or in the federal courts of the United States of America located in
the State of Indiana. If any provision of this Guaranty is invalid under, or
prohibited by, the laws of the jurisdiction of the court in which Landlord
enforces this Guaranty, then the invalid or prohibited provision shall be
ineffective to the extent it is invalid or prohibited, and all other provisions
of this Guaranty shall remain enforceable. All capitalized terms that are used,
but not defined, herein shall have the meanings ascribed to such terms in the
Lease. Without notice to Guarantor, Landlord may assign, transfer, or pledge the
Lease, the Liabilities, or any part thereof (whether as a final disposition of
the Lease, the Liabilities, or any part thereof, as security for liabilities or
obligations of Landlord or any other party, or for any other purpose) so long as
the assignment, transfer or pledge was made in accordance with the terms and
conditions of Section 22 of the Lease, and all assignees, transferees, and
pledgees, and their successors and assigns, shall have the full rights of
Landlord to enforce this Guaranty and to collect amounts due hereunder so long
as the assignment, transfer or pledge was made in accordance with the terms and
conditions of Section 22 of the Lease; provided that Landlord may retain
unimpaired rights to enforce this Guaranty on behalf of any assignee,
transferee, or pledgee, or on its own behalf with respect to any part of the
Lease or the Liabilities not assigned, transferred, or pledged.
6. Authority. The person executing and delivering this
Guaranty on behalf of Guarantor represents and warrants that: (a) he or she
fully is empowered by all necessary action to execute and deliver this Guaranty
on behalf of Guarantor; and (b) this Guaranty is the valid and binding
obligation of Guarantor.
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GUARANTOR:
BRIGHTPOINT, INC.
By: /s/ Xxxxxx X. Xxxxx
_____________________________
Printed: Xxxxxx X. Xxxxx
________________________
Title: Vice President
__________________________
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COMPLETION GUARANTY
This COMPLETION GUARANTY (the "Guaranty"), made as of the 18th
day of September, 1998, by XXXXXXX X. XXXXXXXX (the "Guarantor"), in favor of
BRIGHTPOINT NORTH AMERICA, INC. (the "Tenant"), WITNESSES:
RECITALS
WHEREAS, Airtech Parkway Associates, LLC (the "Landlord") and
Tenant entered into a Lease, dated September 18, 1998 (the "Lease"), with
respect to the Building and Improvements to be constructed by Landlord on the
Parcel;
WHEREAS, as a condition to entering into the Lease, Tenant has
required that Guarantor make and deliver this Guaranty; and
WHEREAS, this Guaranty is made by Guarantor for the purpose
of fulfilling such condition;
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are acknowledged hereby, the parties agree as
follows:
1. Absolute Guaranty. Guarantor hereby absolutely and
unconditionally guarantees to Tenant, and its successors and assigns, that, if:
(a) Landlord fails to satisfy the requirements for substantial completion of the
Building and Improvements, as set forth in Subsections 6(a), 6(b), 6(c), and
6(d) of the Lease (collectively, the "Completion Requirements"); and (b) such
failure is not corrected within any applicable cure periods set forth in the
Lease; then, subject to the same terms and conditions as are set forth in
Subsection 26(g) of the Lease, Guarantor promptly shall cause the Completion
Requirements to be satisfied (the "Construction Obligations"); provided that,
notwithstanding anything to the contrary set forth herein, Guarantor shall be
released or relieved from the Construction Obligations if, and to the extent
that, Landlord is released or relieved from its obligations under the Lease to
satisfy the Completion Requirements. Guarantor hereby further absolutely and
unconditionally guarantees to Tenant and its successors and assigns the full and
prompt payment when due of any Delay Payments that became due and payable under
the Lease (the "Payment Obligations"). Guarantor hereby further absolutely and
unconditionally agrees that Guarantor shall pay to Tenant upon demand any and
all reasonable costs and expenses (including, without limitation, attorneys' and
paralegals' fees and court costs) incurred by Tenant to enforce, or in
connection with enforcing, this Guaranty (the "Enforcement Costs"). Tenant shall
have the right to obtain an injunction, specific performance, or other equitable
remedies to enforce the satisfaction by Guarantor of the Construction
Obligations; provided that, except for satisfaction of the Payment Obligations,
Guarantor shall have no liability to Tenant for any damages, losses, costs, or
expenses arising from, or in connection with, any failure of the Construction
Obligations to be satisfied.
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2. Term of Guaranty. This Guaranty shall: (a) be an absolute
and unconditional guaranty of satisfaction of the Completion Requirements and
the Payment Obligations; and (b) remain in full force and effect until the
Substantial Completion Date, when this Guaranty automatically shall terminate;
provided that, if the Lease has been terminated before the Substantial
Completion Date, then this Guaranty automatically shall terminate simultaneously
with the termination of the Lease. Neither a conveyance or transfer of fee title
to the Leased Premises, nor an assignment or transfer of the interest of
Landlord under the Lease (whether or not by operation of law) shall release,
relieve, compromise, impair, or waive any liability or obligation of Guarantor
hereunder. Except as provided in Section 1 of this Guaranty, the validity of
this Guaranty, and the liabilities and obligations of Guarantor hereunder, shall
not be released, relieved, compromised, impaired, waived, or affected by, or as
a result of: (a) any action or omission of Tenant with respect to Landlord; (b)
any release, compromise, impairment, or waiver of any rights or remedies of
Tenant;
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or (c) any delay or omission in the enforcement of any of the rights or remedies
of Tenant (whether or not under the Lease).
3. Rights of Tenant. From time to time, and without notice to
Guarantor, Tenant may: (a) retain or obtain the primary or secondary liability
or obligation of any party or parties for, or with respect to, satisfaction of
any or all of the Completion Requirements or the Construction Obligations (the
"Other Obligor"); (b) modify, amend, alter, or change the Lease, or extend or
renew the Lease, for any period (whether or not longer than the original
period); (c) release, relieve, compromise, impair, or waive satisfaction of any
or all of the Completion Requirements or the Construction Obligations, or the
liabilities or obligations of any Other Obligor; (d) release, relieve,
compromise, impair, or waive any security interest or lien in any or all
property to secure satisfaction of any or all of the Completion Requirements or
the Construction Obligations (the "Security"), and permit any substitution or
exchange for any or all of the Security; and (e) resort to Guarantor for
satisfaction of any or all of the Construction Obligations or the Payment
Obligations (whether or not Tenant shall have: (i) resorted to any of the
Security; (ii) made a demand on or proceeded against Tenant or any Other
Obligor; or (iii) sought or obtained a judgement with respect to any or all of
the Construction Obligations or the Payment Obligations). No such action or
omission by Tenant shall affect in any manner whatsoever the liabilities or
obligations of Guarantor hereunder, except as provided in Section 1 of this
Guaranty. Tenant may apply any amount received by Tenant as Enforcement Costs in
such order of application as Tenant may elect from time to time. As Enforcement
Costs become payable hereunder, Tenant may collect and enforce this Guaranty
with respect to those Enforcement Costs, without affecting in any manner
whatsoever the liabilities or obligations of Guarantor hereunder with respect to
Enforcement Costs that subsequently may become payable hereunder.
4. Exercise of Rights. No delay or omission by Tenant in the
exercise of any right or remedy shall operate as a waiver thereof, and no final
or partial exercise by Tenant of any right or remedy shall preclude other or
further exercises thereof or the exercise of any other right or remedy.
Guarantor hereby expressly waives: (a) any and all notices of the acceptance of
this Guaranty; (b) any and all notices of the existence, creation, modification,
amendment, alteration, change, extension, or renewal of the Lease (whether or
not such notice is required to be given by Tenant under the terms and conditions
of the Lease); (c) presentment, demand, notice of dishonor, protest, and any and
all other notices whatsoever (except for any notices required under the Lease
and the requirement of Tenant to make a written demand on Guarantor); (d) any
and all benefit of valuation, appraisement, or other exemption laws or rights
thereof (whether now or hereafter in force or effect) in the jurisdiction of the
court in which Tenant enforces this Guaranty; (e) the invalidity or
unenforceability of the Liabilities, or any part thereof; (f) the right to
assert the invalidity or unenforceability of the Lease due to: (i)
reorganization, arrangement, bankruptcy, or insolvency; or (ii) any reason other
than reorganization, arrangement, bankruptcy, or insolvency, except to the
extent that such other reasons could be asserted successfully by Landlord; (g)
any and all diligence in enforcement, collection, perfection, or protection of,
or realization upon: (i) satisfaction
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of any or all of the Completion Requirements or the Construction Obligations;
(ii) any of the liabilities or obligations of any Other Obligor; or (iii) any of
the Security; and (h) any and all rights of subrogation for, or with respect to,
any of the liabilities and obligations of Guarantor hereunder until all of the
Completion Requirements, Payment Obligations, and Construction Obligations have
been satisfied in full.
5. Miscellaneous. This Guaranty shall be binding upon
Guarantor and its successors and assigns, and shall be governed by the laws of
the State of Indiana. This Guaranty shall be enforced in the courts of the State
of Indiana or in the federal courts of the United States of America located in
the State of Indiana. If any provision of this Guaranty is invalid under, or
prohibited by, the laws of the jurisdiction of the court in which Tenant
enforces this Guaranty, then the invalid or prohibited provision shall be
ineffective to the extent it is invalid or prohibited, and all other provisions
of this Guaranty shall remain enforceable. All capitalized terms that are used,
but not defined, herein shall have the meanings ascribed to such terms in the
Lease. If Tenant assigns the Lease, as permitted under Section 14 of the Lease,
then, without notice to Guarantor, Tenant may assign this Guaranty and all of
the Construction Obligations to the assignee, and the assignee (and, as limited
in Subsection 26(f) of the Lease, its successors and assigns) shall have the
full rights of Tenant to enforce this Guaranty and to collect amounts due
hereunder; provided that Tenant may retain unimpaired rights to enforce this
Guaranty on behalf of such assignee.
6. Authority. Guarantor represents and warrants that this
Guaranty is the valid and binding obligation of Guarantor.
GUARANTOR:
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
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CORRECTION GUARANTY
This CORRECTION GUARANTY (the "Guaranty"), made as of the 18th
day of September, 1998, by XXXXXXXX CONSTRUCTION, INC. (the "Guarantor"), in
favor of BRIGHTPOINT NORTH AMERICA, INC. (the "Tenant"), WITNESSES:
RECITALS
WHEREAS, Airtech Parkway Associates, LLC (the "Landlord") and
Tenant entered into a Lease, dated September 18, 1998 (the "Lease"), with
respect to the Building and Improvements to be constructed by Landlord on the
Parcel;
WHEREAS, Guarantor is the general contractor for construction
of the Building and Improvements under a No Lien Construction Agreement, dated
September 18, 1998 (the "Construction Agreement");
WHEREAS, as a condition to entering into the Lease, Tenant has
required that Guarantor make and deliver this Guaranty; and
WHEREAS, this Guaranty is made by Guarantor for the purpose
of fulfilling such condition;
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are acknowledged hereby, the parties agree as
follows:
1. Absolute Guaranty. Guarantor hereby absolutely and
unconditionally guarantees to Tenant, and its successors and assigns, that, if:
(a) Landlord fails to correct or complete any Punch-List item, Latent Defect, or
Warranty Item, or to enforce any Contractor Warranty, as the case may be; and
(b) such failure is not corrected within any applicable cure periods set forth
in the Lease; then, subject to the same terms and conditions as are set forth in
Subsection 26(g) of the Lease, Guarantor promptly shall: (a) correct or complete
such Punch-List item, Latent Defect, or Warranty Item, or enforce or honor such
Contractor Warranty, as the case may be; or (b) in the case of Punch-List items
or Latent Defects, cause such Punch-List item or Latent Defect to be corrected
by a subcontractor or supplier (the "Correction Obligations"); provided that,
notwithstanding anything to the contrary set forth herein, Guarantor shall be
released or relieved from the Correction Obligations if, and to the extent that,
Landlord is released or relieved from its obligations under the Lease to correct
any Punch-List item, Latent Defect, or Warranty Item, or to enforce any
Contractor Warranty, as the case may be. Guarantor hereby further absolutely and
unconditionally guarantees that, if: (a) Landlord or Guarantor fails to satisfy
any of the Correction Obligations; and (b) thereafter Tenant performs that
Correction Obligation in accordance with the terms and conditions of Section 20
of the Lease; then Guarantor shall pay to Tenant on demand all
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reasonable costs and expenses incurred by Tenant to perform that Correction
Obligation. Guarantor hereby further absolutely and unconditionally agrees that
Guarantor shall pay to Tenant upon demand any and all reasonable costs and
expenses (including, without limitation, attorneys' and paralegals' fees and
court costs) incurred by Tenant to enforce, or in connection with enforcing,
this Guaranty (the "Enforcement Costs"). Tenant shall have the right to: (a)
obtain an injunction, specific performance, or other equitable remedies to
enforce the satisfaction by Guarantor of the Correction Obligations; and (b) as
a third-party beneficiary, to enforce the terms and conditions of the
Construction Agreement that the require correction of Punch-List items, Latent
Defects, or Warranty Items, or the enforcement of Contractor Warranties, as the
case may be. Guarantor also hereby absolutely and unconditionally guarantees to
Tenant the payment of any amounts relating to the liability of Guarantor under
this Guaranty arising from consequential damages in connection with Guarantor's
failure to satisfy any
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Correction Obligation within 15 days after the time provided to Landlord to
satisfy such Correction Obligation (the "Payment Obligations")
2. Term of Guaranty. This Guaranty shall: (a) be an absolute
and unconditional guaranty of satisfaction of the Correction Obligations and the
Payment Obligations; and (b) remain in full force and effect until the
expiration of the Warranty Period, when this Guaranty automatically shall
terminate; provided that, if the Lease has been terminated before the expiration
of the Warranty Period, then this Guaranty automatically shall terminate
simultaneously with the termination of the Lease. Notwithstanding anything to
the contrary set forth herein, if, at the expiration of the Warranty Period, the
Lease remains in full force and effect, and there are: (a) Punch-List items that
have not been corrected or completed; or (b) Latent Defects or Warranty Items
that have been identified to Landlord in accordance with the terms and
conditions of Section 10 of the Lease and that have not been corrected or
completed; then this Guaranty shall remain in force and effect with respect to
such Punch-List items, Latent Defects, or Warranty Items, until such Punch-List
items, Latent Defects, or Warranty Items are corrected or completed, when this
Guaranty automatically shall terminate. Neither a conveyance or transfer of fee
title to the Leased Premises, nor an assignment or transfer of the interest of
Landlord under the Lease (whether or not by operation of law) shall release,
relieve, compromise, impair, or waive any liability or obligation of Guarantor
hereunder. Except as provided in Section 1 of this Guaranty, the validity of
this Guaranty, and the liabilities and obligations of Guarantor hereunder, shall
not be released, relieved, compromised, impaired, waived, or affected by, or as
a result of: (a) any action or omission of Tenant with respect to Landlord; (b)
any release, compromise, impairment, or waiver of any rights or remedies of
Tenant; or (c) any delay or omission in the enforcement of any of the rights or
remedies of Tenant (whether or not under the Lease).
3. Rights of Tenant. From time to time, and without notice to
Guarantor, Tenant may: (a) retain or obtain the primary or secondary liability
or obligation of any party or parties for, or with respect to, satisfaction of
any or all of the Correction Obligations (the "Other Obligor"); (b) modify,
amend, alter, or change the Lease, or extend or renew the Lease, for any period
(whether or not longer than the original period); (c) release, relieve,
compromise, impair, or waive satisfaction of any or all of the Correction
Obligations, or the liabilities or obligations of any Other Obligor; (d)
release, relieve, compromise, impair, or waive any security interest or lien in
any or all property to secure satisfaction of any or all of the Correction
Obligations (the "Security"), and permit any substitution or exchange for any or
all of the Security; and (e) resort to Guarantor for satisfaction of any or all
of the Correction Obligations (whether or not Tenant shall have: (i) resorted to
any of the Security; (ii) made any demand on or proceeded against Landlord or
any Other Obligor; or (iii) sought or obtained a judgement with respect to any
or all of the Correction Obligations or the Payment Obligations). No such action
or omission by Tenant shall affect in any manner whatsoever the liabilities or
obligations of Guarantor hereunder, except as provided in Section 1 of this
Guaranty. Tenant may apply any amount received by Tenant as Enforcement Costs in
such order of application as Tenant may elect from time to time.
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As Enforcement Costs become payable hereunder, Tenant may collect and enforce
this Guaranty with respect to those Enforcement Costs, without affecting in any
manner whatsoever the liabilities or obligations of Guarantor hereunder with
respect to Enforcement Costs that subsequently may become payable hereunder.
4. Exercise of Rights. No delay or omission by Tenant in the
exercise of any right or remedy shall operate as a waiver thereof, and no final
or partial exercise by Tenant of any right or remedy shall preclude other or
further exercises thereof or the exercise of any other right or remedy.
Guarantor hereby expressly waives: (a) any and all notices of the acceptance of
this Guaranty; (b) any and all notices of the existence, creation, modification,
amendment, alteration, change, extension, or renewal of the Lease (whether or
not such notice is required to be given by Tenant under the terms and conditions
of the Lease); (c) presentment, demand, notice of dishonor, protest, and any and
all other notices whatsoever; (d) any and all benefit of valuation,
appraisement, or other exemption laws or rights thereof (whether now or
hereafter in force or effect) in the jurisdiction of the court in which Tenant
enforces this Guaranty; (e) the invalidity or unenforceability of the Correction
Obligations or the Payment Obligations; (f) any and all diligence in
enforcement, collection, perfection, or protection of, or realization upon: (i)
satisfaction of any or all of the Correction Obligations; (ii) any of the
liabilities or obligations of any Other Obligor; or (iii) any of the Security;
and (g) any and all rights of subrogation for, or with respect to, any of the
liabilities and obligations of Guarantor hereunder until all of the Correction
Obligations and the Payment Obligations have been satisfied in full, and the
Warranty Period has expired.
5. Miscellaneous. This Guaranty shall be binding upon
Guarantor and its successors and assigns, and shall be governed by the laws of
the State of Indiana. This Guaranty shall be enforced in the courts of the State
of Indiana or in the federal courts of the United States of America located in
the State of Indiana. If any provision of this Guaranty is invalid under, or
prohibited by, the laws of the jurisdiction of the court in which Tenant
enforces this Guaranty, then the invalid or prohibited provision shall be
ineffective to the extent it is invalid or prohibited, and all other provisions
of this Guaranty shall remain enforceable. All capitalized terms that are used,
but not defined, herein shall have the meanings ascribed to such terms in the
Lease. If Tenant assigns the Lease, as permitted under Section 14 of the Lease,
then, without notice to Guarantor, Tenant may assign this Guaranty and all of
the Correction Obligations to the assignee, and the assignee (and, as limited in
Subsection 26(f) of the Lease, its successors and assigns) shall have the full
rights of Tenant to enforce this Guaranty and to collect amounts due hereunder;
provided that Tenant may retain unimpaired rights to enforce this Guaranty on
behalf of such assignee. Notwithstanding anything to the contrary set forth
herein, once the Landlord originally named herein: (a) conveys fee simple title
to the Building and Improvements to another person or entity not controlling,
controlled by, or under common control with, the original Landlord; and (b)
delivers to Tenant notice of such conveyance; Tenant thereafter shall give and
deliver to Guarantor a copy of any notice, statement, invoice, demand, request,
or consent given or delivered by Tenant to Landlord with respect to: (a) the
correction of any Punch-List item, Latent Defect, or Warranty Item, or the
enforcement of any Contractor Warranty, as the case
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may be; (b) the failure to correct any Punch-List item, Latent Defect, or
Warranty Item, or the failure to enforce any Contractor Warranty, as the case
may be; or (c) the failure to satisfy any Payment Obligation. Until such a
conveyance, and the delivery of such a notice, by the Landlord originally named
herein, Guarantor agrees that any notice, statement, invoice, demand, request,
or consent given to Landlord pursuant to the terms and conditions of the Lease
with respect to any matter covered by this Guaranty shall be deemed to be notice
to the Guarantor. Any such notice, statement, invoice, demand, request, or
consent shall be: (a) given or delivered to Guarantor in accordance with the
terms and conditions of Section 25 of the Lease; and (b) shall be addressed as
follows: c/o Browning Investments, Inc., Capital Center North Tower, 000 X.
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attn: Xxxxx X. Xxxxxx.
6. Authority. The person executing and delivering this
Guaranty on behalf of Guarantor represents and warrants that: (a) he or she
fully is empowered by all necessary action to execute and deliver this Guaranty
on behalf of Guarantor; and (b) this Guaranty is the valid and binding
obligation of Guarantor.
GUARANTOR:
XXXXXXXX CONSTRUCTION, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Printed: Xxxxxxx X. Xxxxxxxx
------------------------
Title: President
--------------------------
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COMPLETION GUARANTY FOR BUILDING EXPANSION
This COMPLETION GUARANTY FOR BUILDING EXPANSION (the
"Guaranty"), made as of the 18th day of September, 1998, by XXXXXXX X. XXXXXXXX
(the "Guarantor"), in favor of BRIGHTPOINT NORTH AMERICA, INC. (the "Tenant"),
WITNESSES:
RECITALS
WHEREAS, Airtech Parkway Associates, LLC (the "Landlord") and
Tenant entered into a Lease, dated September 18, 1998 (the "Lease"), with
respect to the Building and Improvements to be constructed by Landlord on the
Parcel;
WHEREAS, the Lease includes an option of Tenant to expand the
Leased Premises;
WHEREAS, as a condition to entering into the Lease, Tenant has
required that Guarantor make and deliver this Guaranty; and
WHEREAS, this Guaranty is made by Guarantor for the purpose of
fulfilling such condition;
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are acknowledged hereby, the parties agree as
follows:
1. Absolute Guaranty. Guarantor hereby absolutely and
unconditionally guarantees to Tenant, and its successors and assigns, that, if:
(a) Landlord fails to satisfy the requirements for substantial completion of the
Building Expansion, as will be set forth in the Expansion Lease (collectively,
the "Completion Requirements"); and (b) such failure is not corrected within any
applicable cure periods set forth in the Expansion Lease; then, subject to the
same terms and conditions as will be set forth in the Expansion Lease, Guarantor
promptly shall cause the Completion Requirements to be satisfied (the
"Construction Obligations"); provided that, notwithstanding anything to the
contrary set forth herein, Guarantor shall be released or relieved from the
Construction Obligations if, and to the extent that, Landlord is released or
relieved from its obligations under the Expansion Lease to satisfy the
Completion Requirements. Guarantor hereby further absolutely and unconditionally
guarantees to Tenant and its successors and assigns the full and prompt payment
when due of any delay payments that may became due and payable under the
Expansion Lease (the "Payment Obligations"). Guarantor hereby further absolutely
and unconditionally agrees that Guarantor shall pay to Tenant upon demand any
and all reasonable costs and expenses (including, without limitation, attorneys'
and paralegals' fees and court costs) incurred by Tenant to enforce, or in
connection with enforcing, this Guaranty (the
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"Enforcement Costs"). Tenant shall have the right to obtain an injunction,
specific performance, or other equitable remedies to enforce the satisfaction by
Guarantor of the Construction Obligations; provided that, except for
satisfaction of the Payment Obligations, Guarantor shall have no liability to
Tenant for any damages, losses, costs, or expenses arising from, or in
connection with, any failure of the Construction Obligations to be satisfied.
2. Term of Guaranty. This Guaranty shall: (a) be an absolute
and unconditional guaranty of satisfaction of the Completion Requirements and
the Payment Obligations; and (b) remain in full force and effect until the
substantial completion date with respect to the Building Expansion, when this
Guaranty automatically shall terminate; provided that, if the Expansion Lease
has been terminated before the substantial completion date with respect to the
Building Expansion, then this Guaranty automatically shall terminate
simultaneously with the termination of the Expansion Lease. Neither a conveyance
or transfer of fee title to the Expansion Parcel or the Leased Premises, nor an
assignment or transfer of the interest of Landlord under the Expansion Lease
(whether or not by operation of law) shall release, relieve, compromise,
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impair, or waive any liability or obligation of Guarantor hereunder. Except as
provided in Section 1 of this Guaranty, the validity of this Guaranty, and the
liabilities and obligations of Guarantor hereunder, shall not be released,
relieved, compromised, impaired, waived, or affected by, or as a result of: (a)
any action or omission of Tenant with respect to Landlord; (b) any release,
compromise, impairment, or waiver of any rights or remedies of Tenant; or (c)
any delay or omission in the enforcement of any of the rights or remedies of
Tenant (whether or not under the Expansion Lease).
3. Rights of Tenant. From time to time, and without notice to
Guarantor, Tenant may: (a) retain or obtain the primary or secondary liability
or obligation of any party or parties for, or with respect to, satisfaction of
any or all of the Completion Requirements or the Construction Obligations (the
"Other Obligor"); (b) modify, amend, alter, or change the Expansion Lease or the
Lease, or extend or renew the Expansion Lease or the Lease, for any period
(whether or not longer than the original period); (c) release, relieve,
compromise, impair, or waive satisfaction of any or all of the Completion
Requirements or the Construction Obligations, or the liabilities or obligations
of any Other Obligor; (d) release, relieve, compromise, impair, or waive any
security interest or lien in any or all property to secure satisfaction of any
or all of the Completion Requirements or the Construction Obligations (the
"Security"), and permit any substitution or exchange for any or all of the
Security; and (e) resort to Guarantor for satisfaction of any or all of the
Construction Obligations or the Payment Obligations (whether or not Tenant shall
have: (i) resorted to any of the Security; (ii) made a demand on or proceeded
against Tenant or any Other Obligor; or (iii) sought or obtained a judgement
with respect to any or all of the Construction Obligations or the Payment
Obligations). No such action or omission by Tenant shall affect in any manner
whatsoever the liabilities or obligations of Guarantor hereunder, except as
provided in Section 1 of this Guaranty. Tenant may apply any amount received by
Tenant as Enforcement Costs in such order of application as Tenant may elect
from time to time. As Enforcement Costs become payable hereunder, Tenant may
collect and enforce this Guaranty with respect to those Enforcement Costs,
without affecting in any manner whatsoever the liabilities or obligations of
Guarantor hereunder with respect to Enforcement Costs that subsequently may
become payable hereunder.
4. Exercise of Rights. No delay or omission by Tenant in the
exercise of any right or remedy shall operate as a waiver thereof, and no final
or partial exercise by Tenant of any right or remedy shall preclude other or
further exercises thereof or the exercise of any other right or remedy.
Guarantor hereby expressly waives: (a) any and all notices of the acceptance of
this Guaranty; (b) any and all notices of the existence, creation, modification,
amendment, alteration, change, extension, or renewal of the Expansion Lease or
the Lease (whether or not such notice is required to be given by Tenant under
the terms and conditions of the Expansion Lease or the Lease); (c) presentment,
demand, notice of dishonor, protest, and any and all other notices whatsoever
(except for except for any notices required under the Expansion Lease or the
Lease and the requirement of Tenant to make a written demand on Guarantor); (d)
any and all benefit of valuation, appraisement, or other exemption laws or
rights thereof (whether now or hereafter in force or effect) in the jurisdiction
of the court in which Tenant enforces this Guaranty; (e) the invalidity or
unenforceability of the Liabilities, or any part thereof; (f) the right to
assert the invalidity or unenforceability of the Expansion Lease or the Lease
due to: (i) reorganization, arrangement, bankruptcy, or insolvency; or (ii) any
reason other than reorganization, arrangement, bankruptcy, or insolvency, except
to the extent that
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such other reasons could be asserted successfully by Landlord; (g) any and all
diligence in enforcement, collection, perfection, or protection of, or
realization upon: (i) satisfaction of any or all of the Completion Requirements
or the Construction Obligations; (ii) any of the liabilities or obligations of
any Other Obligor; or (iii) any of the Security; and (h) any and all rights of
subrogation for, or with respect to, any of the liabilities and obligations of
Guarantor hereunder until all of the Completion Requirements, Payment
Obligations, and Construction Obligations have been satisfied in full.
5. Miscellaneous. This Guaranty shall be binding upon
Guarantor and its successors and assigns, and shall be governed by the laws of
the State of Indiana. This Guaranty shall be enforced in the courts of the State
of Indiana or in the federal courts of the United States of America located in
the State of Indiana. If any provision of this Guaranty is invalid under, or
prohibited by, the laws of the jurisdiction of the court in which Tenant
enforces this Guaranty, then the invalid or prohibited provision shall be
ineffective to the extent it is invalid or prohibited, and all other provisions
of this Guaranty shall remain enforceable. All capitalized terms that are used,
but not defined, herein shall have the meanings ascribed to such terms in the
Lease. If Tenant assigns the Lease, as permitted under Section 14 of the Lease,
then, without notice to Guarantor, Tenant may assign this Guaranty and all of
the Construction Obligations to the assignee, and the assignee (and, as limited
in Subsection 26(f) of the Lease, its successors and assigns) shall have the
full rights of Tenant to enforce this Guaranty and to collect amounts due
hereunder; provided that Tenant may retain unimpaired rights to enforce this
Guaranty on behalf of such assignee.
6. Authority. Guarantor represents and warrants that this
Guaranty is the valid and binding obligation of Guarantor.
GUARANTOR:
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxx
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