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INDUSTRIAL LEASE
between
IP PROPERTIES,
A WYOMING LIMITED LIABILITY COMPANY
(Landlord)
and
Brightpoint North America, Inc.,
an Indiana Corporation
(Tenant)
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TABLE OF CONTENTS
INDUSTRIAL LEASE
Article Title Page
------- ----- ----
1 Definitions 1
2 Premises 2
3 Term 2
4 Rental; Adjustments 2
5 Security Deposit 5
6 Use of Premises 6
7 Utilities and Services 7
8 Maintenance and Repairs 8
9 Alterations, Additions and Improvements 9
10 Indemnifications and Insurance 10
11 Damage or Destruction 12
12 Condemnation 12
13 Relocation 13
14 Assignment and Subletting 13
15 Default and Remedies 14
16 Attorneys' Fees; Costs of Xxxx 00
00 Xxxxxxxxxxxxx xxx Xxxxxxxxxx 00
00 Quiet Enjoyment 17
19 Parking 17
20 Rules and Regulations 18
21 Estoppel Certificates 18
22 Entry by Landlord 18
Landlord's Lease Undertakings-Exculpation from
23 Personal Liability; Transfer of Landlord's Interest 18
24 Surrender; Holdover Tenancy 19
25 Notices 19
26 Brokers 20
27 Electronic Services 20
28 Miscellaneous 21
29 Floor Load Limits 00
0
00 Xxxxxxxx'x Xxxx 00
00 Uniform Commercial Code 23
EXHIBITS
Exhibit A Floor Plan
Exhibit B Work Letter Agreement
Exhibit C Suite Acceptance Agreement
Exhibit D Tenant Operations Inquiry
Schedule 1
to Exhibit D List of Permissible Hazardous Materials and Quantities for Tenant
Exhibit E List of Additional Insureds
Exhibit F Rules and Regulations
Exhibit G Guaranty
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INDUSTRIAL LEASE
INDIANAPOLIS INDUSTRIALS
[FORM GROSS LEASE/MULTI-TENANT]
THIS LEASE ("Lease"), dated __________________________________, is made
and entered into by and between IP PROPERTIES, a Wyoming Limited Liability
Company ("Landlord") and Brightpoint North America, Inc., an Indiana
Corporation ("Tenant") upon the following terms and conditions:
ARTICLE I - DEFINITIONS
Unless the context otherwise specifies or requires, the following terms
shall have the meanings specified herein;
1.01 BUILDING. The term "Building" shall mean that certain
office/warehouse building located at: 0000 Xxxxxxxx Xxxx., Xxxxxxxxxxxx,
Xxxxxxx 00000, together with any related site land, improvements, parking
facilities, common areas, driveways, sidewalks and landscaping. If the
Building is in a development containing one or more other buildings, such
buildings together with all related site land, improvements, parking
facilities, common areas, driveways, sidewalks and landscaping, and together
with the Building, shall be referred to herein as the "Project".
1.02 PREMISES. The term "Premises" shall mean Space No. 6049 in the
Building, as more particularly outlined on the drawing attached hereto as
Exhibit A and incorporated herein by reference.
1.03 RENTABLE AREA OF THE PREMISES. The term "Rentable Area of the
Premises" shall mean 23,990 square feet, which Landlord and Tenant have
stipulated as the Rentable Area of the Premises. Tenant acknowledges that the
Rentable Area of the Premises includes the usable area, without deduction for
columns or projections, multiplied by a load factor to reflect a share of
certain areas, which may include lobbies, corridors, mechanical, utility,
janitorial, boiler and service rooms and closets, restrooms and other public,
common and service areas of the Building.
1.04 LEASE TERM. The term "Lease Term" or "Term" shall mean the period
between the Commencement Date and the Expiration Date (as such terms are
hereinafter defined), unless sooner terminated or renewed as otherwise provided
in this Lease.
1.05 COMMENCEMENT DATE. The term "Commencement Date" shall mean April 1,
1998.
1.06 EXPIRATION DATE. The term "Expiration Date" shall mean December 31,
1999.
1.07 BASE RENT. Subject to adjustment as provided in Article 4, the term "
Base Rent" shall mean eighteen thousand nine hundred ninety two and
08/100 Dollars ($18,992.08) per month.
1.08 TENANT'S PERCENTAGE SHARE. The term "Tenant's Percentage Share"
shall mean 27.3 percent (27.3%) with respect to Operating Expenses (as
hereinafter defined), 27.3 percent (27.3%) with respect to Property Taxes (as
hereinafter defined), 27.3 percent (27.3%) with respect to Insurance Expenses
(as hereinafter defined) and 27.3 percent (27.3%) with respect to Tenant's law
compliance obligations under Section 6.02(C) of this Lease and for all other
purposes under this Lease. Landlord may reasonably redetermine Tenant's
Percentage Share from time to time to reflect reconfigurations, additions or
modifications to the Building.
1.09 SECURITY DEPOSIT. The term "Security Deposit" shall mean $0.00.
1.10 TENANT'S PERMITTED USE. The term "Tenant's Permitted Use" shall
mean general office and storage of wireless/cellular equipment and related
products and no other use.
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1.11 LANDLORD'S ADDRESS FOR NOTICES. The term "Landlord's Address for
Notices" shall mean Xxxxxxx Properties of Indiana Ltd., 0000 Xxxx 00xx Xxxxxx,
Xxxxx X, Xxxxxxxxxxxx, Xxxxxxx 00000, with a copy to Xxxxxxx Properties Ltd.,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Property
Management.
1.12 TENANT'S ADDRESS FOR NOTICES. The term "Tenant's Address for
Notices" shall mean
Attention: Xx. Xxxxx Xxxxx, Brightpoint, Inc., Corporate Headquarters 0000
Xxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 with copy to Xx. Xxxx X. Xxxx,
Xxxxx and Xxxxxxx, 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx
00000-0000.
1.13 BROKER. The term "Broker" shall mean Xxxxxxx Properties of Indiana
Ltd. and Xxxxxxxx Investments, Inc.
1.14 GUARANTOR. The term "Guarantor" shall mean (N/A).
ARTICLE II - PREMISES
2.01 LEASE OF PREMISES. Landlord hereby leases the Premises to Tenant,
and Tenant hereby leases the Premises from Landlord, upon all of the terms,
covenants and conditions contained in this Lease. On the Commencement Date
described herein, Landlord shall deliver the Premises to Tenant in the
condition described in Section 2.02 below and in substantial conformance with
the Work Letter Agreement attached hereto as Exhibit B, if any.
2.02 ACCEPTANCE OF PREMISES. Tenant acknowledges that Landlord has not
made any representation or warranty with respect to the condition of the
Premises or the Building or with respect to the suitability or fitness of
either for the conduct of Tenant's Permitted Use or for any other purpose,
except that Landlord shall ensure that any existing heating, ventilating and
air conditioning ("HVAC") equipment serving the Premises is in good working
order and repair as of the Commencement Date (and Tenant shall thereafter keep
such equipment in good working order and repair as provided in Section 8.02
hereof). Prior to Tenant's taking possession of the Premises, Landlord or its
designee and Tenant will walk the Premises for the purpose of reviewing the
condition of the Premises (and the condition of completion and workmanship of
any tenant improvements which Landlord is required to construct in the Premises
pursuant to this Lease); after such review, Tenant shall execute a Suite
Acceptance Letter in the form and content of Exhibit C attached hereto,
accepting the Premises. Except as is expressly set forth in this Section 2.02
or the Work Letter Agreement attached hereto, if any, or as may be expressly
set forth in said Suite Acceptance Letter, Tenant agrees to accept the Premises
in its "as is" physical condition without any agreements, representations,
understandings or obligations on the part of Landlord to perform any
alterations, repairs or improvements (or to provide any allowance for same).
SEE ADDENDUM TO LEASE ITEM #2
2.03 COMMON AREAS. Tenant and Tenant's employees and invitees may use the
common areas of the Building, and the Project, if applicable, on a
non-exclusive basis in common with all other parties to whom the right to use
such common areas has been or is hereafter granted. Tenant shall not interfere
in any way with the use of the common areas by such other parties, and Tenant's
use of the common areas shall be subject to the other provisions of this Lease.
Landlord shall administer, operate, clean, maintain and repair the common
areas of the Building, and the Project, if applicable, and the costs and
expenses thereof shall be included in the definition of "Operating Expenses"
set forth below. If the Building is in a Project containing one or more other
buildings, Landlord may designate separate common areas for the Building, for
the Project as a whole ("Project Common Areas"), and for other portions of the
Project ("Other Common Areas"). In such case, Tenant and Tenant's employees
and invitees shall not use the Other Common Areas.
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ARTICLE III - TERM
3.01 Except as otherwise provided in this Lease, the Lease Term shall be
for the period described in Section 1.04 of this Lease, commencing on the
Commencement Date described in Section 1.05 of this Lease and ending on the
Expiration Date described in Section 1.06 of this Lease.
ARTICLE IV - RENTAL; ADJUSTMENTS
4.01 DEFINITIONS. As used herein,
(A) "Base Year" shall mean the 1998 calendar year.
(B) "Property Taxes" shall mean the aggregate amount of all real
estate taxes, assessments (whether they be general or special), sewer
rents and charges, transit taxes, taxes based upon the receipt of rent
and any other federal, state or local governmental charge, general,
special, ordinary or extraordinary (but not including delinquent taxes or
income or franchise taxes, capital stock, inheritance, estate, gift, or
any other taxes imposed upon or measured by Landlord's gross income or
profits, unless the same shall be imposed in lieu of real estate taxes or
other ad valorem taxes), which Landlord shall pay or become obligated to
pay in connection with the Building or the Project, if applicable, or any
part thereof. Property Taxes shall also include all fees and costs,
including attorneys' fees, appraisals and consultants' fees, incurred by
Landlord in seeking to obtain a reassessment, reduction of, or a limit on
the increase in, any Property Taxes, regardless of whether any reduction
or limitation is obtained. Property Taxes for any calendar year shall be
Property Taxes which are due for payment or paid in such year. Property
Taxes shall include any tax, assessment, levy, imposition or charge
imposed upon Landlord and measured by or based in whole or in part upon
the Building or the Project, if applicable, or the rents or other income
from the Building or the Project, if applicable, to the extent that such
items would be payable if the Building or the Project, if applicable, was
the only property of Landlord subject to same and the income received by
Landlord from the Building or the Project, if applicable, was the only
income of Landlord. Property Taxes shall also include any personal
property taxes imposed upon the furniture, fixtures, machinery,
equipment, apparatus, systems and appurtenances of Landlord used solely
in connection with the Building or the Project, if applicable.
(C) "Operating Expenses" shall mean all costs, fees, disbursements
and expenses paid or incurred by or on behalf of Landlord in the
operation, ownership, maintenance, administration, insurance, management,
replacement and repair of the Building or the Project, if applicable,
(excluding Property Taxes and Insurance Expenses). If the Building is
part of a Project containing one or more other buildings: (i) Landlord
may reasonably allocate expenses (or categories thereof) incurred in
connection with the Project Common Areas between such buildings (based on
the relative square footage thereof or such other factors as Landlord
reasonably deems appropriate), in which case the amount allocated to the
Building shall be added to "Operating Expenses" for the Building for such
year, or (ii) Landlord may determine expenses (or categories thereof)
incurred in connection with the Project Common Areas as a whole, in which
case Tenant's Percentage Share of "Operating Expenses" shall be based on
the Rentable Area of the Premises as a percentage of the total rentable
area in all buildings in the Project (excluding single tenant buildings
for which the tenants maintain the Other Common Areas applicable thereto)
and Tenant shall pay Tenant's Percentage Share of Operating Expenses for
the Project.
Operating Expenses shall not include costs of alteration of the
premises of tenants of the Building or the Project, if applicable,
depreciation charges, interest and principal payments on mortgages,
ground rental payments, real estate brokerage and leasing commissions,
expenses incurred in enforcing obligations of tenants of the Building or
the Project, if applicable, salaries and other compensation of executive
officers of the managing agent of the Building or the Project, if
applicable, senior to the Building manager, costs of any special service
provided to any one tenant of the Building or the Project, if applicable,
but not
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to tenants of the Building or the Project, if applicable, generally, and
costs of marketing or advertising the Building or the Project, if
applicable. SEE ADDENDUM TO LEASE ITEM #4
(D) "Insurance Expenses" shall mean all costs, fees, disbursements
and expenses paid or incurred by or on behalf of Landlord for premiums
for hazard, "all risk", casualty, rent interruption and liability
insurance and all other insurance, obtained by Landlord in connection
with or relating to the Building or the Project, if applicable.
4.02 BASE RENT. During the Lease Term, Tenant shall pay to Landlord as
rental for the Premises the Base Rent described in Section 1.07 above, subject
to the following annual adjustments (herein called the "Rent Adjustments"):
(A) INTENTIONALLY OMITTED
(B) During each calendar year during the Lease Term, the Base Rent
payable by Tenant to Landlord, as adjusted pursuant to this Lease, shall
be increased by Tenant's Percentage Share of the dollar increase, if any,
in Property Taxes for such year over Property Taxes for the Base Year
(the "Tax Adjustment").
(C) During each calendar year during the Lease Term, the Base Rent
payable by Tenant to Landlord, as adjusted pursuant to this Lease, also
shall be increased by Tenant's Percentage Share of the dollar increase,
if any, in Operating Expenses for such year over Operating Expenses for
the Base Year (the "Operating Expense Adjustment").
(D) During each calendar year during the Lease Term, the Base Rent
payable by Tenant to Landlord, as adjusted pursuant to this Lease, also
shall be increased by Tenant's Percentage Share of the dollar increase,
if any, in Insurance Expenses for such year over Insurance Expenses for
the Base Year (the "Insurance Adjustment").
(E) The Tax Adjustment, the Operating Expense Adjustment and the
Insurance Adjustment are hereinafter referred to collectively as the
"Tax, Operating Expense and Insurance Adjustments").
4.03 ADJUSTMENT PROCEDURE; ESTIMATES. The Tax, Operating Expense and
Insurance Adjustments specified in Sections 4.02(B), 4.02(C) and 4.02(D) shall
be determined and paid as follows:
(A) During each calendar year subsequent to the Base Year,
Landlord shall give Tenant written notice of Landlord's estimate of any
increased Tax Adjustment, Operating Expense Adjustment and Insurance
Adjustment amounts for that calendar year. During each calendar year
during the Lease Term, Landlord shall give Tenant written notice of
Landlord's estimate of any increased Operating Expense Adjustment amount
for that calendar year. On or before the first day of each calendar
month during the calendar year, Tenant shall pay to Landlord one-twelfth
(1/12th) of such estimated amounts; provided, however, that, not more
often that quarterly, Landlord may, by written notice to Tenant, revise
its estimate for such year, and subsequent payments by Tenant for such
year shall be based upon such revised estimate.
(B) Within one hundred twenty (120) days after the close of each
calendar year in which any Rent Adjustment is made or as soon thereafter
as is practicable, Landlord shall deliver to Tenant a statement of that
year's Property Taxes, Operating Expenses and Insurance Expenses, and the
actual Tax, Operating Expense and Insurance Expense Adjustments to be
made pursuant to Sections 4.02(B), 4.02(C) and 4.02(D) for such calendar
year, as determined and certified by Landlord (the "Landlord's
Statement") and such Landlord's Statement shall be binding upon Tenant,
except as provided in Section 4.04 below. If the amount of the actual
Tax Adjustment, Insurance Adjustment or Operating Expense Adjustment is
more than the estimated payments for the Tax Adjustment, Insurance
Adjustment or Operating Expense Adjustment for such calendar year made by
Tenant, Tenant shall pay the deficiency to Landlord within 20 days of
receipt of Landlord's Statement. If the amount of the actual Tax
Adjustment, Insurance
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Adjustment or Operating Expense Adjustment is less than the estimated
payments for such calendar year made by Tenant, any excess shall be
credited against Rent (as hereinafter defined) next payable by Tenant
under this Lease or, if the Lease Term has expired, any excess thereof
shall be paid to Tenant. No delay in providing the statements described
in this Section 4.03(B) shall act as a waiver of Landlord's right to
payment under Sections 4.02(B), 4.02(C) or 4.02(D) above.
Notwithstanding the foregoing, Tenant's right to receive any credit or
payment pursuant to the preceding sentences of this Section 4.03(B) is
conditioned on this Lease either then being in full force and effect and
Tenant not being in default under this Lease on the date such credit or
payment is due or if the Term shall have expired, Tenant not having been
in default on the date of such expiration unless such default is first
cured by the withholding of all or part of such payment.
(C) If this Lease shall terminate on a day other than the end of a
calendar year, the amount of the Tax, Operating Expense and Insurance
Adjustments to be paid pursuant to Sections 4.02(B), 4.02(C) and 4.02(D)
that is applicable to the calendar year in which such termination occurs
shall be prorated on the basis of the number of days from January 1 of
the calendar year to the termination date bears to 365. The termination
of this Lease shall not affect the obligations of Landlord and Tenant
pursuant to Sections 4.03(B) and 4.03(C) to be performed after such
termination.
4.04 REVIEW OF LANDLORD'S STATEMENT. Provided this Lease is in full
force and effect and that Tenant is not then in default under this Lease and
provided further that Tenant strictly complies with the provisions of this
Section 4.04, Tenant shall have the right, once each calendar year, to
reasonably review supporting data for any portion of a Landlord's Statement
that Tenant claims is incorrect, in accordance with the following procedure:
(A) Tenant shall, within thirty (30) business days after any such
Landlord's Statement is delivered, deliver a written notice to Landlord
specifying the portions of the Landlord's Statement that are claimed to
be incorrect, and Tenant shall simultaneously pay to Landlord all amounts
due from Tenant to Landlord as specified in the Landlord's Statement.
Except as expressly set forth in subsection (C) below, in no event shall
Tenant be entitled to withhold, deduct, or offset any monetary obligation
of Tenant to Landlord under the Lease (including, without limitation,
Tenant's obligation to make all payments of Base Rent including the CPI
Adjustment and all payments of Tenant's Tax, Operating Expense and
Insurance Adjustments) pending the completion of and regardless of the
results of any review of records under this Section 4.04. The right of
Tenant under this Section 4.04 may only be exercised once for any
Landlord's Statement, and if Tenant fails to meet any of the above
conditions as a prerequisite to the exercise of such right, the right of
Tenant under this Section 4.04 for a particular Landlord's Statement
shall be deemed waived.
(B) Tenant acknowledges that Landlord maintains its records for
the Building or the Project, if applicable, at Landlord's manager's
corporate offices and Tenant agrees that any review of records under this
Section 4.04 shall be at the sole expense of Tenant and shall be
conducted by an independent firm of certified public accountants of
national standing. Tenant acknowledges and agrees that any records
reviewed under this Section 4.04 constitute confidential information of
Landlord, which shall not be disclosed to anyone other than the
accountants performing the review and the principals of Tenant who
receive the results of the review. The disclosure of such information to
any other person, whether or not caused by the conduct of Tenant, shall
constitute a material breach of this Lease.
(C) Any errors disclosed by the review shall be promptly corrected
by Landlord, provided, however, that if Landlord disagrees with any such
claimed errors, Landlord shall have the right to cause another review to
be made by an independent firm of certified public accountants of
national standing. In the event of a disagreement between the two
accounting firms, the review that discloses the least amount of deviation
from the Landlord's Statement shall be deemed to be correct. In the
event that the results of the review of records (taking into account, if
applicable, the results of any additional review caused by Landlord)
reveal that Tenant has overpaid obligations for a preceding period, the
amount of such overpayment shall be credited against Tenant's subsequent
installment obligations to pay the estimated Tax, Operating Expense and
Insurance Adjustments, if any, or paid to Tenant. In the event that such
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results show that Tenant has underpaid its obligations for a preceding
period, Tenant shall be liable for Landlord's actual accounting fees, and
the amount of such underpayment shall be paid by Tenant to Landlord with
the next succeeding installment obligation of estimated Tax, Operating
Expense and Insurance Adjustment.
4.05 PAYMENT. Concurrently with the execution hereof, Tenant shall pay
Landlord Base Rent for the first calendar month of the Lease Term. Thereafter
the Base Rent described in Section 1.07, as adjusted in accordance with Section
4.02, shall be payable in advance on the first day of each calendar month. If
the Commencement Date is other than the first day of a calendar month, the
prepaid Base Rent for such partial month shall be prorated in the proportion
that the number of days this Lease is in effect during such partial month bears
to the total number of days in the calendar month. All Rent, and all other
amounts payable to Landlord by Tenant pursuant to the provisions of this Lease,
shall be paid to Landlord, without notice, demand, abatement, deduction or
offset, in lawful money of the United States at Landlord's office in the
Building or to such other person or at such other place as Landlord may
designate from time to time by written notice given to Tenant. No payment by
Tenant or receipt by Landlord of a lesser amount than the correct Rent due
hereunder shall be deemed to be other than a payment on account; nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment be deemed to effect or evidence an accord and satisfaction; and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law or in
equity provided.
4.06 LATE CHARGE; INTEREST. Tenant acknowledges that the late payment of
Base Rent or any other amounts payable by Tenant to Landlord hereunder (all of
which shall constitute additional rental to the same extent as Base Rent) will
cause Landlord to incur administrative costs and other damages, the exact
amount of which would be impracticable or extremely difficult to ascertain.
Landlord and Tenant agree that if Landlord does not receive any such payment on
or before five (5) days after the date the payment is due, Tenant shall pay to
Landlord, as additional rent, (a) a late charge equal to five percent (5%) of
the overdue amount to cover such additional administrative costs; and (b)
interest on the delinquent amounts at the lesser of the maximum rate permitted
by law if any or twelve percent (12%) per annum from the date due to the date
paid.
4.07 ADDITIONAL RENT. Any amounts due Landlord shall sometimes be
referred to in this Lease as "Rent" or "Base Rent".
4.08 ADDITIONAL TAXES. In addition to the Rent and other charges to be
paid by Tenant hereunder, Tenant shall reimburse Landlord upon demand for all
taxes payable by or imposed upon Landlord, subject to the limitations set forth
elsewhere in this Article IV, upon or with respect to: any fixtures or
personal property located in the Premises; any leasehold improvements made in
or to the Premises by or for Tenant; the Rent payable hereunder, including,
without limitation, any gross receipts tax, license fee or excise tax levied by
any governmental authority; the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy of any portion of the
Premises (including, without limitation, any applicable possessory interest
taxes); or this transaction or any document to which Tenant is a party creating
or transferring an interest or an estate in the Premises.
ARTICLE V - SECURITY DEPOSIT
5.01 INTENTIONALLY OMITTED
ARTICLE VI - USE OF PREMISES
6.01 TENANTS PERMITTED USE. Tenant shall use the Premises only for
Tenant's Permitted Use as set forth in Section 1.10 above and shall not use or
permit the Premises to be used for any other purpose. Tenant shall, at its
sole cost and expense, obtain all governmental licenses and permits required to
allow Tenant to conduct Tenant's Permitted Use. Landlord disclaims any
warranty that the Premises are suitable for Tenant's use and Tenant
acknowledges that it has had a full opportunity to make its own determination
in this regard.
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6.02 COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS.
(A) Tenant shall cause the Premises to comply in all material
respects with all laws, ordinances, regulations and directives of any
governmental authority having jurisdiction including, without limitation,
any certificate of occupancy and any law, ordinance, regulation,
covenant, condition or restriction affecting the Building or the Premises
which in the future may become applicable to the Premises (collectively
"Applicable Laws") to the extent that such Applicable Laws result from
Tenant's specific use of the Premises as set forth in Section 1.10.
(B) Tenant shall not use the Premises, or permit the Premises to
be used, in any manner which: (a) violates any Applicable Law; (b)
causes or is reasonably likely to cause damage to the Building or the
Project, if applicable, or the Premises; (c) violates a requirement or
condition of any fire and extended insurance policy covering the Building
or the Project, if applicable, and/or the Premises, or increases the cost
of such policy; (d) constitutes or is reasonably likely to constitute a
nuisance, annoyance or inconvenience to other tenants or occupants of the
Building or the Project, if applicable, or their equipment, facilities or
systems; (e) interferes with, or is reasonably likely to interfere with,
the transmission or reception of microwave, television, radio, telephone
or other communication signals by antennae or other facilities located in
the Building or the Project, if applicable; or (f) violates the Rules and
Regulations described in Article XX. Upon the commencment date, Landlord
shall deliver the Premises to Tenant in such condition that the same
shall not be in violation of any applicable building codes, laws or
regulations.
(C) In addition to any other amounts payable by Tenant to Landlord
hereunder, Tenant shall pay to Landlord, as and when billed to Tenant and
as additional rental, Tenant's Percentage Share of the cost of any
improvements, capital expenditures, repairs or replacements to the
Building or the Project, if applicable, or any equipment or machinery
used in connection with the Building or the Project, if applicable, if
any such item is required under any Applicable Law as of the date of this
Lease and throughout the Lease Term; provided, however, that any such
costs which are properly charged to a capital account (together with
reasonable financing charges) shall be amortized for purposes of this
Lease over the shorter of (i) their useful lives, or (ii) three (3)
years, and only the annual amortization amount (prorated based on the
number of days of the Lease term in the calendar year) shall be payable
by the Tenant with respect to any calendar year.
6.03 HAZARDOUS MATERIALS.
(A) No Hazardous Materials (as defined herein) shall be Handled
(as defined herein) upon, about, above or beneath the Premises or any
portion of the Building or the Project, if applicable, by or on behalf of
a Responsible Party (as defined herein) unless the Hazardous Materials
are listed in Exhibit D hereto and then only in the quantities listed in
the exhibit. Any such Hazardous Materials so Handled, or the presence or
migration of which is a result of the act or omission of a Responsible
Party, shall be known as Tenant's Hazardous Materials. Notwithstanding
the foregoing, Landlord acknowledges that, due to Tenant's permitted use
of the Premises, as indicated in Paragraph 6.01 of this Lease, Tenant
will occasionally Handle Hazardous Materials on the Premises which are in
transit to their final destination; however, such presence and Handling
of Hazardous Materials shall be in compliance with all applicable
federal, state, local and environmental laws and regulations and the
following guidelines: (i) no nuclear or explosive materials will be
Handled by Tenant on the Premises, except such radioactive isotopes as
Tenant may Handle from time to time; provided that such Handling shall be
in accordance with the U.S. Department of Transportation regulations and
the International Airtransport Association Dangerous Goods regulations;
(ii) all Hazardous Materials will be Handled in a well-marked area which
is segregated from other storage and handling areas and is used
exclusively for hazardous materials; (iii) Hazardous Materials will be
Handled in such a way that any such Materials which are incompatible or
reactive to each other shall be kept separate at all times such Materials
are on the Premises; (iv) Hazardous Materials shall only be Handled on
the Premises for a maximum period of twenty-four (24) hours; (v) Tenant
shall provide written documents or other written evidence to Landlord
upon execution of the Lease that all personnel
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who are responsible for the Handling or other contact with Hazardous
Materials have been properly trained, in accordance with any applicable
laws and/or regulations, to handle spills of Hazardous Materials and that
the required, appropriate spill response equipment is maintained on site;
(vi) Tenant will provide Landlord with written evidence that it is
maintaining the appropriate insurance coverage for the occasional
presence of such Hazardous Materials on the Premises upon execution of
this Lease; and (vii) Tenant will provide Landlord with written evidence
that all of its employees whose responsibilities include driving Tenant's
trucks or other vehicles are licensed in accordance with state, federal
and local laws and regulations to transport and Handle Hazardous
Materials. Also, notwithstanding the foregoing, normal quantities of
those Tenant Hazardous Materials customarily used in the conduct of
general administrative and executive office activities (e.g., copier
fluids and cleaning supplies) may be Handled at the Premises without
Landlord's prior written consent.
(B) Tenant's Hazardous Materials shall be Handled at all times in
compliance with the manufacturer's instructions therefore and all
applicable Environmental Laws (as defined herein). Tenant's Hazardous
Materials shall not be disposed of, released, discharged or permitted to
spill, leak or migrate upon about, above or beneath the Premises or any
portion of the Building.
(C) Tenant agrees to maintain only the Hazardous Materials listed
in Schedule 1 to Exhibit D in or at the Premises or the Building an only
in the quantities listed in Schedule 1 to Exhibit D. Tenant further
agrees that changes to the type and quantities of such Tenant's Hazardous
Materials may be done only with the prior written consent of the
Landlord, which consent shall not be unreasonably withheld. Tenant
further agrees that Landlord shall have the right to inspect the Building
to verify the types and quantities of the materials stored therein.
(D) Notwithstanding the obligation of Tenant to indemnify Landlord
pursuant to this Lease, Tenant shall, at its sole cost and expense,
promptly take all actions required by any Regulatory Authority, or
necessary for Landlord to make full economic use of the Premises or any
portion of the Building or the Project, if applicable, which requirements
or necessity arises from the Handling, presence or migration of Tenant's
Hazardous Materials upon, about, above or beneath the Premises or any
portion of the Building or Project, if applicable. Such actions shall
include, but not be limited to, the investigation of the environmental
condition of the Premises or any portion of the Building, or the Project,
if applicable, the preparation of any feasibility studies or reports and
the performance of any cleanup, remedial, removal or restoration work.
Tenant shall take all actions necessary to restore the Premises or any
portion of the Building or the Project, if applicable, to the condition
existing prior to the introduction of Tenant's Hazardous Materials,
notwithstanding any less stringent standards or remediation allowable
under applicable Environmental Laws. Tenant shall nevertheless obtain
Landlord's written approval prior to undertaking any actions required by
this Section, which approval shall not be unreasonably withheld so long
as such actions would not potentially have a material adverse long-term
or short-term effect on the Premises or any portion of the Building or
the Project, if applicable.
(E) Tenant shall immediately notify Landlord of; (i) its knowledge
of any disposal, release, discharge, spill, leak on, about, above, or
beneath, or any migration to or from the Premises or the Building of
Hazardous Materials, (ii) any inspection, enforcement, cleanup or other
regulatory action taken or threatened by any Regulatory Authority with
respect to any Hazardous Materials on, about, above, beneath or from the
Premises or the Building or the migration thereof from or to other
property, (iii) any demands or claims made or threatened by any party
relating to any loss or injury claimed to have resulted from any
Hazardous Materials on, about, above, beneath or from the Building, and
(iv) any matters where Tenant is required by Law to give a notice to any
Regulatory Authority concerning Hazardous Materials on or from the
Premises or the Building. Landlord shall have the right but not the
obligation to notify Regulatory Authorities concerning actual and claimed
violations of this Article.
(F) Tenant agrees to execute affidavits, representations and the
like from time to time at Landlord's request stating Tenant's best
knowledge and belief regarding the presence of Hazardous Materials in the
Premises or in or at the Building.
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(G) "Environmental Laws" means and includes all now and hereafter
existing statutes, laws, ordinances, codes, regulations, rules, rulings,
orders, decrees, directives, policies and requirements by any federal,
state or local governmental authority regulating, relating to, or
imposing liability or standards of conduct concerning public health and
safety or the environment.
(H) "Hazardous Materials" means: (a) any material or substance:
(i) which is defined or becomes defined as a "hazardous substance,"
"hazardous waste," "infectious waste," "chemical mixture or substance,"
or "air pollutant" under Environmental Laws; (ii) containing petroleum,
crude oil or any fraction thereof; (iii) containing polychlorinated
biphenyls (PCB's); (iv) containing asbestos; (v) which is radioactive;
(b) any other material or substance displaying toxic, reactive, ignitable
or corrosive characteristics, as all such terms are used in their
broadest sense, and are defined, or become defined by Environmental Laws;
or (c) materials which cause a nuisance upon or waste to the Premises or
any portion of the Building or the Project, if applicable.
(I) "Handle," "handle," "Handled," "handled," "Handling," or
"handling" shall mean any installation, handling, generation, storage,
treatment, use, disposal, discharge, release, manufacture, refinement,
emission, abatement, removal, transportation, or any other activity of
any type in connection with or involving Hazardous Materials.
(J) "Responsible Party" shall mean Tenant, its subtenants and its
assignees, and their respective contractors, clients, officers,
directors, employees, agents, and invitees, or any of them, as the case
may be.
(K) "Regulatory Authority" shall mean any federal, state or local
governmental agency, commission, board or political subdivision.
ARTICLE VII - UTILITIES AND SERVICES
7.01 SERVICES. Landlord shall permit Tenant to use any existing utility
service connection into the Premises and Tenant, at its sole expense, shall
arrange with the appropriate utility company to install all necessary
connections and without fail to maintain in continuous operation during the
entire term of the Lease, all such utility service, whether or not Tenant is in
actual possession of the Premises. Tenant shall pay to the appropriate utility
company or other provider directly, or at Landlord's election as provided in
Section 7.02 below, to Landlord, for all water, gas, heat, electricity, light,
power, sweeping and other janitorial services, rubbish and trash disposal, pest
and rodent control, sewer, steam, fire protection, alarm or other security
services and any other utilities and services supplied in, about or related to
the Premises, together with any taxes thereon, connection charges and deposits,
and also shall pay for all electrical light bulbs, lamps and tubes in
connection therewith. Landlord reserves the right during the Term of this
Lease to grant easements or public utility purposes on, over, or below the
Premises without any abatement in rent, provided that said easements do not
unreasonably interfere with the normal operation of the business conducted by
Tenant in the Premises. Landlord shall not be required to pay for any service,
supplies or upkeep in connection with the Premises. Tenant shall arrange for
and pay for all telephone and other communication services and equipment,
including any additions or alterations to the existing telephone service boards
and conduit, which shall be completed without interference to the service
and/or equipment of other tenants in the Building or the Project, if
applicable, and which shall be appropriately labeled upon the termination of
this Lease.
7.02 SEPARATE METERING. If any utilities are not separately metered for
the Premises, Landlord may: require that Tenant make reasonable arrangements
to share such utilities with the other parties whose premises are on such meter
and require that Tenant pay Landlord a share of such utilities based on the
Rentable Area of the Premises as a percentage of the total rentable area of
occupied space that is jointly metered. In such case, either Landlord or
Tenant may elect to install separate meters (but the costs of installing,
maintaining and reading such meters shall be borne by Tenant). Landlord may
reasonably estimate in advance any amounts payable by Tenant to Landlord
hereunder and Tenant shall pay such amounts within twenty (20) days after the
same are billed, subject to
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periodic adjustment (and additional payment by Tenant or credit or refund by
Landlord) after the actual amounts have been determined.
7.03 INSTALLATION, CONNECTION AND USE OF UTILITY EQUIPMENT. Tenant shall
install and connect all equipment and lines required to supply such utilities
to the extent not already available at or serving the Premises, or at
Landlord's option shall repair, alter or replace any such existing items (or
Tenant shall share the costs thereof for any equipment shared with other
tenants), subject to the terms of Section 2.02 hereof. Tenant shall maintain,
repair and replace all such items, operate the same, and keep the same in good
working order, condition and repair, as provided in Section 8.02. Tenant shall
not install any equipment or fixtures, or use the same, so as to exceed the
safe and lawful capacity of any utility equipment or lines serving the same.
The installation, alteration, replacement or connection of any utility
equipment and lines shall be subject to the requirements for Alterations of the
Premises set forth in Article 9. Tenant shall ensure that any supplemental
HVAC equipment is installed and all HVAC equipment is operated at all times in
a manner to prevent roof leaks, damage or noise due to vibrations or improper
installation, maintenance or operation. Tenant shall at all times keep the
Premises sufficiently heated to avoid freezing of pipes.
7.04 INTERRUPTION OF SERVICES. Landlord shall not be liable for any
failure to furnish, stoppage of, or interruption in furnishing any of the
services or utilities described in Section 7.01, when such failure is caused by
accident, breakage, repairs, strikes, lockouts, labor disputes, labor
disturbances, governmental regulation, civil disturbances, acts of war,
moratorium or other governmental action, or any other cause beyond Landlord's
reasonable control, and, in such event, Tenant shall not be entitled to any
damages nor shall any failure or interruption xxxxx or suspend Tenant's
obligation to pay Base Rent and additional rent required under this Lease or
constitute or be construed as a constructive or other eviction of Tenant.
Further, in the event any governmental authority or public utility promulgates
or revises any law, ordinance, rule or regulation, or issues mandatory controls
or voluntary controls relating to the use or conservation of energy, water,
gas, light or electricity, the reduction of automobile or other emissions, or
the provision of any other utility or service, Landlord may take any reasonably
appropriate action to comply with such law, ordinance, rule, regulation,
mandatory control or voluntary guideline and Tenant's obligations hereunder
shall not be affected by any such action of Landlord. The parties acknowledge
that safety and security devices, services and programs provided by Landlord,
if any, while intended to deter crime and ensure safety, may not in given
instances prevent theft or other criminal acts, or ensure safety of persons or
property. The risk that any safety or security device, service or program may
not be effective, or may malfunction, or be circumvented by a criminal, is
assumed by Tenant with respect to Tenant's property and interests, and Tenant
shall obtain insurance coverage to the extent Tenant desires protection against
such criminal acts and other losses, as further described in this Lease.
Tenant agrees to cooperate in any reasonable safety or security program
developed by Landlord or required by Law.
Any amounts which Tenant is required to pay to Landlord pursuant to this
Article VII shall be payable upon demand by Landlord and shall constitute
additional rent or Rent under this Lease.
ARTICLE VIII - MAINTENANCE AND REPAIRS
8.01 LANDLORD'S OBLIGATIONS.
(A) During the Lease Term, Landlord shall, at its expense,
maintain only the foundation and the structural soundness of the exterior
walls (excluding all windows, plate glass, doors and pest control and
extermination) of the portion of the Building containing the Premises in
good working order, repair and condition except for reasonable wear and
tear. Landlord also shall maintain, at its expense, subject to
reimbursement as part of Operating Expenses, the roof, downspouts and
fire safety sprinkler system of the Building. If Tenant determines that
any such repair or maintenance by Landlord is required, Tenant shall
promptly give written notice to Landlord of the need for such repair or
maintenance and unless Landlord in good faith disagrees with such
determination by Tenant, Landlord shall proceed with reasonable
promptness to perform such maintenance. Landlord shall not be liable to
Tenant, except as otherwise expressly provided in this Lease, for any
damage or inconvenience. Tenant shall not be entitled to any
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abatement or reduction of Rent by reason of any repairs, alterations or
additions made by Landlord under this Lease. Landlord shall use
reasonable efforts in fullfilling its obligations under this Lease to
minimize the interference with Tenant's operations, however Landlord
shall have no liability for any such interference unless resulting from
the willful actions of Landlord.
(B) Tenant shall, at its sole cost, pay for any damage to the
foundation and/or external walls of the Building, or the Project, if
applicable, caused by any act, omission, negligence or fault of Tenant or
any employee, agent or contractor of Tenant.
8.02 TENANT'S OBLIGATIONS. During the Lease Term, Tenant shall, at its
risk and at its sole cost and expense, maintain all other parts of the Building
and other improvements in or on the Premises in good working order, repair and
condition (including all necessary replacements), including, but not limited
to, HVAC systems, all glass elements, doors (including dock doors), dock
bumpers, light bulbs, light fixtures, Landlord shall perform lawn and other
common area maintenance (including, without limitation, exterior painting and
maintenance of any HVAC system serving the common areas of the Building or
serving the Premises as well as other premises in the Building) and in such
instance Tenant agrees to pay Landlord for lawn and other common area
maintenance (including, without limitation, exterior painting and HVAC
maintenance) based on Tenant's Percentage Share with respect to Operating
Expenses, as provided in Article IV hereof (or, with respect to HVAC
maintenance, based on the ratio of the Rentable Area of the Premises to the
rentable area of all premises served by said HVAC system). Tenant shall take
good care of all property and its fixtures, including all landscaping, and
suffer no waste. Tenant shall engage a certified pest control firm to perform
regular (not less frequent than monthly but more frequent if Landlord
determines the need therefor) extermination for pests including, but not
limited to, roaches, rodents and termites. Should Tenant neglect to keep and
maintain the Premises as required herein, the Landlord shall have the right,
but not the obligation, to have the work done and any reasonable costs plus a
ten percent (10%) overhead charge therefor shall be charged to Tenant as
additional rental and shall become payable by Tenant with the payment of the
rental next due under this Lease. In connection with Tenant's maintenance and
repair of the HVAC systems, Tenant shall provide Landlord during the Term of
this Lease and any renewal hereof with a duplicate original of a maintenance
contract, in form and substance acceptable to Landlord, with an HVAC
maintenance firm acceptable to Landlord. Further, Tenant shall be responsible
for, and upon demand by Landlord shall promptly reimburse Landlord for, any
damage to any portion of the Project, if applicable, the Building or the
Premises caused by (a) Tenant's activities in the Building or the Premises; (b)
the performance or existence of any alterations, additions or improvements made
by Tenant in or to the Premises; (c) the installation, use, operation or
movement of Tenant's property in or about the Building or the Premises; or (d)
any act or omission by Tenant or its officers, partners, employees, agents,
contractors or invitees.
8.03 REPAIR DAMAGE. Tenant shall, at its own cost and expense, repair
or replace any damage or injury to all or any part of the Premises, the
Building and the Project, if applicable, caused by Tenant or Tenant's agents,
employees, invitees, licensees or visitors; provided, however, if Tenant fails
to make such repairs or replacements promptly, Landlord may, at its option,
make such repairs or replacements and Tenant shall reimburse the cost, plus a
ten percent (10%) overhead charge therefor, to Landlord on demand.
8.04 NO WASTE. Tenant shall not commit or allow any waste or damage to
be committed on any portion of the Premises.
8.05 LANDLORD'S RIGHTS. Landlord and its contractors shall have the
right, at all reasonable times and upon prior oral or telephonic notice to
Tenant at the Premises, other than in the case of any emergency in which case
no notice shall be required, to enter upon the Premises to make any repairs to
the Premises or the Building reasonably required or deemed reasonably necessary
by Landlord and to erect such equipment, including scaffolding, as is
reasonably necessary to effect such repairs. During the pendency of such
repairs, Landlord shall use reasonable efforts to minimize any material
interruption of Tenant's business; provided, that if such repairs by Landlord
are required to remedy an emergency situation or to cure a breach or default by
Tenant under this Lease, Landlord shall not be obligated to minimize such
interference.
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ARTICLE IX - ALTERATIONS, ADDITIONS AND IMPROVEMENTS
9.01 LANDLORD'S CONSENT; CONDITIONS. Tenant shall not make or permit to
be made any alterations, additions, or improvements in or to the Premises
("Alterations") without the prior written consent of Landlord, which consent,
with respect to non-structural alterations, shall not be unreasonably withheld.
Notice is required to Landlord, but not Landlord's approval, for minor,
non-structural alterations of less than $5,000.00 each. Landlord may impose as
a condition to making any Alterations such requirements as Landlord in its sole
discretion deems necessary or desirable including without limitation: Tenant's
submission to Landlord, for Landlord's prior written approval, of all plans and
specifications relating to the Alterations; Landlord's prior written approval
of the time or times when the Alterations are to be performed; Landlord's prior
written approval of the contractors and subcontractors performing work in
connection with the Alterations; employment of union contractors and
subcontractors who shall not cause labor disharmony; Tenant's receipt of all
necessary permits and approvals from all governmental authorities having
jurisdiction over the Premises prior to the construction of the Alterations;
Tenant's delivery to Landlord of such bonds and insurance as Landlord shall
reasonably require; and Tenant's payment to Landlord of all costs and expenses
incurred by Landlord because of Tenant's Alterations, including but not limited
to costs incurred in reviewing the plans and specifications for, and the
progress of, the Alterations. Tenant is required to provide Landlord written
notice of whether the Alterations include the Handling of any Hazardous
Materials and whether these materials are of a customary and typical nature for
industry practices. Upon completion of the Alterations, Tenant shall provide
Landlord with copies of as-built plans. Neither the approval by Landlord of
plans and specifications relating to any Alterations nor Landlord's supervision
or monitoring of any Alterations shall constitute any warranty by Landlord to
Tenant of the adequacy of the design for Tenant's intended use or the proper
performance of the Alterations.
9.02 PERFORMANCE OF ALTERATIONS WORK. All work relating to the
Alterations shall be performed in compliance with the plans and specifications
approved by Landlord, all applicable laws, ordinances, rules, regulations and
directives of all governmental authorities having jurisdiction and the
requirements of all carriers of insurance on the Premises and the Building, the
Board of Underwriters, Fire Rating Bureau, or similar organization. All work
shall be performed in a diligent, first class manner and so as not to
unreasonably interfere with any other tenants or occupants of the Building.
All costs incurred by Landlord relating to the Alterations shall be payable to
Landlord by Tenant as additional rent upon demand. No asbestos-containing
materials shall be used or incorporated in the Alterations. No lead-containing
surfacing material, solder, or other construction materials or fixtures where
the presence of lead might create a condition of exposure not in compliance
with Environmental Laws shall be incorporated in the Alterations.
9.03 LIENS. Tenant shall pay when due all costs for work performed and
materials supplied to the Premises. Tenant shall keep Landlord, the Premises
and the Building free from all liens, stop notices and violation notices
relating to the Alterations or any other work performed for, materials
furnished to or obligations incurred by or for Tenant and Tenant shall protect,
indemnify, hold harmless and defend Landlord, the Premises and the Building of
and from any and all loss, cost, damage, liability and expense, including
attorneys' fees, arising out of or related to any such liens or notices.
Further, Tenant shall give Landlord not less then seven (7) business days prior
written notice before commencing any Alterations in or about the Premises to
permit Landlord to post appropriate notices of non-responsibility. Tenant
shall also secure, prior to commencing any Alterations, at Tenant's sole
expense, a completion and lien indemnity bond, or other security reasonably
satisfactory to Landlord, for such work. During the progress of such work,
Tenant shall, upon Landlord's request, furnish Landlord with sworn contractor's
statements and lien waivers covering all work theretofore performed. Tenant
shall satisfy or otherwise discharge all liens, stop notices or other claims or
encumbrances within thirty five (35) days after Landlord notifies Tenant in
writing that any such lien, stop notice, claim or encumbrance has been filed.
If Tenant fails to pay and remove such lien, claim or encumbrance within such
thirty (35) days, Landlord, at its election, may pay and satisfy the same and
in such event the sums so paid by Landlord, with interest from the date of
payment at the rate set forth in Section 4.06 hereof for amounts owed Landlord
by Tenant shall be deemed to be additional rent due and payable by Tenant at
once without notice or demand.
9.04 REMOVAL OF ALTERATIONS. All Alterations shall become a part of the
Premises and shall become the property of Landlord upon the expiration or
earlier termination of this Lease, unless Landlord shall, by written
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notice given to Tenant, require Tenant to remove some or all of Tenant's
Alterations, (whether installed during the Term of this Lease or any previous
occupancy of the Premises by Tenant) in which event Tenant shall promptly
remove the designated Alterations and shall promptly repair any resulting
damage, all at Tenant's sole expense. All business and trade fixtures,
machinery and equipment, furniture, movable partitions and items of personal
property owned by Tenant or installed by Tenant at its expense in the Premises
shall be and remain the property of Tenant; upon the expiration or earlier
termination of this Lease, Tenant shall, at its sole expense, remove all such
items and repair any damage to the Premises or the Building caused by such
removal. If Tenant fails to remove any such items or repair such damage
promptly after the expiration or earlier termination of the Lease, Landlord
may, but need not, do so with no liability to Tenant, and Tenant shall pay
Landlord the cost thereof upon demand. Notwithstanding the foregoing to the
contrary, in the event that Landlord gives its consent, pursuant to the
provisions of Section 9.01 of this Lease, to allow Tenant to make an Alteration
in the Premises, Landlord agrees, upon Tenant's written request, to notify
Tenant in writing at the time of the giving of such consent whether Landlord
will require Tenant, at Tenant's cost, to remove such Alteration at the end of
the Lease Term. The wiring installed by Tenant as a part of the Work, as
defined in the Work Letter Agreement, which is attached as Exhibit B need not
be removed by Tenant upon the Expiration Date as defined in Article 1.06. At
the expiration of this Lease, Tenant may remove all modular work station and
furniture.
ARTICLE X - INDEMNIFICATION AND INSURANCE
10.01 INDEMNIFICATION.
(A) Tenant agrees to protect, indemnify, hold harmless and defend
Landlord and any Mortgagee, as defined herein, and each of their respective
partners, directors, officers, agents and employees, successors and assigns,
regardless of any negligence imputed to Landlord as owner of the Building,
Premises or underlying real property, from and against:
(i) any and all loss, cost, damage, liability or expense as
incurred (including but not limited to actual attorneys' fees and
legal costs) arising out of or related to any claim, suit or
judgment brought by or in favor of any person or persons for
damage, loss or expense due to, but not limited to, bodily injury,
including death, or property damage sustained by such person or
persons which arises out of, is occasioned by or is in any way
attributable to the use or occupancy of the Premises or any portion
of the Building or the Project, if applicable, by Tenant or the
acts or omission of Tenant or its agents, employees, contractors,
clients, invitees or subtenants except that caused by the
negligence or willful misconduct of Landlord or its agents or
employees. Such loss or damage shall include, but not be limited
to, any injury or damage to, or death of, Landlord's employees or
agents or damage to the Premises or any portion of the Building or
the Project, if applicable.
(ii) any and all environmental damages which arise from: (i)
the Handling, presence or migration of any Tenant's Hazardous
Materials, as defined in Section 6.03 or (ii) the breach of any of
the provisions of this Lease. For the purpose of this Lease,
"environmental damages" shall mean (a) all claims, judgments,
damages, penalties, fines, costs, liabilities, and losses
(including without limitation, diminution in the value of the
Premises or any portion of the Building or the Project, if
applicable, damages for the loss of or restriction on use of
rentable or usable space or of any amenity of the Premises or any
portion of the Building or the Project, if applicable, and from any
adverse impact of Landlord's marketing of space); (b) all
reasonable sums paid for settlement of claims, attorneys' fees,
consultants' fees and experts' fees; and (c) all costs incurred by
Landlord in connection with investigation or remediation relating
to the Handling of Tenant's Hazardous Materials, whether or not
required by Environmental Laws, necessary for Landlord to make full
economic use of the Premises or any portion of the Building or the
Project, if applicable, or otherwise required under this Lease. To
the extent that Landlord is held strictly liable by a court or
other governmental agency of competent jurisdiction under any
Environmental Laws, Tenant's obligation to Landlord and the other
indemnities under the foregoing indemnification shall likewise be
without regard to fault on Tenant's part with respect
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to the violation of any Environmental Law which results in
liability to the indemnitee. Tenant's obligations and liabilities
pursuant to this Section 10.01 shall survive the expiration or
earlier termination of this Lease.
(iii) any and all testing or investigation as may be requested
by any governmental agency or lender for the purpose of
investigating the presence of Tenant's Hazardous Materials that may
not be in compliance with Environmental Laws.
(B) Notwithstanding anything to the contrary contained herein, nothing
shall be interpreted or used to in any way affect, limit, reduce or abrogate
any insurance coverage provided by any insurers to either Tenant or Landlord.
(C) Notwithstanding anything to the contrary contained in this Lease,
nothing herein shall be construed to infer or imply that Tenant is a partner,
joint venturer, agent, employee, or otherwise acting by or at the direction of
Landlord.
10.02 PROPERTY INSURANCE.
(A) At all times during the Lease Term, Tenant shall procure and
maintain, at its sole expense, "all-risk" property insurance, for damage or
other loss caused by fire or other casualty or cause including, but not limited
to, vandalism and malicious mischief, theft, water damage of any type,
including sprinkler leakage, bursting of pipes, explosion, in an amount not
less than one hundred percent (100%) of the replacement cost covering (a) all
leasehold improvements in and to the Premises and (b) Tenant's trade fixtures,
equipment, business records and other personal property from time to time
situated in the Premises, including, without limitation, all floor and wall
coverings. The proceeds of such insurance shall be used for the repair or
replacement of the property so insured, except that if not so applied or if
this Lease is terminated following a casualty, the proceeds applicable to the
leasehold improvements shall be paid to Landlord and the proceeds applicable to
Tenant's personal property shall be paid to Tenant.
(B) At all times during the Lease Term, Tenant shall procure and
maintain business interruption insurance in such amount as will reimburse
Tenant for direct or indirect loss of earnings attributable to all perils
insured against in Section 10.02(A).
(C) Landlord shall, at all times during the Lease Term, procure and
maintain "all-risk" property insurance in the amount not less than ninety
percent (90%) of the insurable replacement cost covering the Building in which
the Premises are located and such other insurance as may be required by a
Mortgagee or otherwise desired by Landlord.
10.03 LIABILITY INSURANCE.
(A) At all times during the Lease Term, Tenant shall procure and
maintain, at its sole expense, commercial general liability insurance applying
to the use and occupancy of the Premises and the business operated by Tenant.
Such insurance shall have a minimum combined single limit of liability of at
least Two Million Dollars ($2,000,000) per occurrence and a general aggregate
limit of at least Two Million Dollars ($2,000,000). All such policies shall be
written to apply to all bodily injury, property damage, personal injury losses
and shall be endorsed to include Landlord and its agents, beneficiaries,
partners, employees, and any deed of trust holder or mortgagee of Landlord or
any ground lessor as additional insureds. (A list of the current persons and
entities to be named as additional insureds is attached hereto as Exhibit E).
Such liability insurance shall be written as primary policies, not excess or
contributing with or secondary to any other insurance as may be available to
the Landlord or additional insureds with respect to Tenant's obligations under
this Lease.
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(B) Prior to the sale, storage, use or giving away of alcoholic
beverages on or from the Premises by Tenant or another person, Tenant, at its
own expense, shall obtain a policy or policies of insurance issued by a
responsible insurance company and in a form acceptable to Landlord saving
harmless and protecting Landlord and the Premises against any and all damages,
claims, liens, judgments, expenses and costs, including actual attorneys' fees,
arising under any present or future law, statute, or ordinance of the State of
Indiana or other governmental authority having jurisdiction of the Premises, by
reason of any storage, sale, use or giving away of alcoholic beverages on or
from the Premises. Such policy or policies of insurance shall have a minimum
combined single limit of One Million ($1,000,000) per occurrence and shall
apply to bodily injury, fatal or nonfatal; injury to means of support; and
injury to property of any person. Such policy or policies of insurance shall
name the Landlord and its agents, beneficiaries, partners, employees and any
mortgagee of Landlord or any ground lessor of Landlord as additional insureds.
(A list of the current persons and entities to be named as additional insureds
is attached hereto as Exhibit E).
(C) Landlord shall, at all times during the Lease Term, procure and
maintain commercial general liability insurance for the Building and Common
Area in which the Premises are located. Such insurance shall have minimum
combined single limit of liability of at least Two Million Dollars ($2,000,000)
per occurrence, and a general aggregate limit of at least Two Million Dollars
($2,000,000).
10.04 WORKERS' COMPENSATION INSURANCE. At all times during the Lease
Term, Tenant shall procure and maintain Workers' Compensation Insurance in
accordance with the laws of the State of Indiana, and Employer's Liability
insurance with a limit not less than One Million Dollars ($1,000,000) Bodily
Injury Each Accident; One Million Dollars ($1,000,000) Bodily Injury By Disease
- Each Person; and One Million Dollars ($1,000,000) Bodily Injury by Disease -
Policy Limit.
10.05 AUTOMOBILE LIABILITY INSURANCE. INTENTIONALLY OMITTED
10.06 PLATE GLASS INSURANCE. At any time during the Lease Term when
there is plate glass in or on the Premises, Tenant shall procure and maintain,
at its sole expense, plate glass insurance covering all the plate glass of the
Premises in amounts satisfactory to Landlord.
10.07 WAREHOUSEMAN'S INSURANCE. INTENTIONALLY OMITTED
10.08 POLICY REQUIREMENTS. All insurance required to be maintained by
Landlord or Tenant shall be issued by insurance companies authorized to do
insurance business in the State of Indiana and rated not less than A-VIII in
Best's Insurance Guide or a Standard and Poor's claims paying ability rating of
not less than AA. A certificate of insurance (or, at Landlord's option, copies
of the applicable policies) evidencing the insurance required under this
Article X shall be delivered to Landlord not less than thirty (30) days prior
to the Commencement Date. No such policy shall be subject to cancellation or
modification without thirty (30) days prior written notice to Landlord and to
any deed of trust holder, mortgagee or ground lessor designated by Landlord to
Tenant. Tenant shall furnish Landlord with a replacement certificate with
respect to any insurance not less than thirty (30) days prior to the expiration
of the current policy. Tenant shall have the right to provide the insurance
required by this Article X pursuant to blanket policies, but only if such
blanket policies expressly provide coverage to the Premises and the Landlord as
required by this Lease.
10.09 WAIVER OF CLAIMS. Except for claims arising from Landlord's
negligent acts that are not covered by Tenant's insurance hereunder, Tenant
waives all claims against Landlord for injury or death to persons, damage to
property or to any other interest of Tenant sustained by Tenant or any party
claiming through Tenant resulting from: (i) any occurrence in or upon the
Premises, (ii) leaking of roofs, bursting, stoppage or leaking of water, gas,
sewer or steam pipes or equipment, including sprinklers, (iii) wind, rain,
snow, ice, flooding, freezing, fire, explosion, earthquake, excessive heat or
cold, fire or other casualty, (iv) the Building, Premises, systems or equipment
therefor being defective, out of repair, or failing, subject to the other terms
of this Lease, and (v) vandalism, malicious mischief, theft or other acts or
omissions of any other parties including, without limitation, other tenants,
contractors and invitees. To the extent that Tenant is required to or does
carry insurance hereunder, Tenant agrees that Tenant's property loss risks
shall be borne by such insurance, and Tenant agrees to look solely to
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and seek recovery only from its insurance carriers in the event of such losses;
for purposes hereof, any deductible amount shall be treated as though it were
recoverable under such policies.
10.10 WAIVER OF SUBROGATION. Each party hereby waives any right of
recovery against the other for injury or loss due to hazards covered by
insurance or required to be covered, to the extent of the injury or loss
covered thereby. Any policy of insurance to be provided by Tenant or Landlord
pursuant to this Article X shall contain a clause denying the applicable
insurer any right of subrogation against the Landlord or Tenant as applicable.
10.11 FAILURE TO INSURE. If Tenant fails to maintain any insurance which
Tenant is required to maintain pursuant to this Article X, Tenant shall be
liable to Landlord for any loss or cost resulting from such failure to
maintain. Tenant may not self-insure against any risks required to be covered
by insurance without Landlord's prior written consent.
ARTICLE XI - DAMAGE OR DESTRUCTION
11.01 TOTAL DESTRUCTION. Except as provided in Section 11.03 below, this
Lease shall automatically terminate if the Building is totally destroyed.
11.02 PARTIAL DESTRUCTION OF PREMISES. If the Premises are damaged by
any casualty and, in Landlord's opinion, the Premises (exclusive of any
Alterations made to the Premises by Tenant) can be restored to its pre-existing
condition within one hundred fifty (150) days after the date of the damage or
destruction using only the insurance proceeds made available to Landlord,
Landlord shall, upon written notice from Tenant to Landlord of such damage,
except as provided in Section 11.03, promptly and with due diligence use
available insurance proceeds to repair any damage to the Premises (exclusive of
any Alterations to the Premises made by Tenant, which shall be promptly
repaired by Tenant at its sole expense) and, until such repairs are completed,
the Rent shall be abated from the date of damage or destruction in the same
proportion that the rentable area of the portion of the Premises which is
unusable by Tenant in the conduct of its business bears to the total rentable
area of the Premises. If such repairs cannot, in Landlord's opinion, either
(i) be made within said one hundred fifty (150) day period, or (ii) be
completed using only the insurance proceeds made available to Landlord, then
Landlord may, at its option, exercisable by written notice given to Tenant
within thirty (30) days after the date of the damage or destruction, elect to
make the repairs within a reasonable time after the damage or destruction, in
which event this Lease shall remain in full force and effect but the Rent shall
be abated as provided in the preceding sentence; if Landlord does not so elect
to make the repairs, then either Landlord or Tenant shall have the right, by
written notice given to the other within sixty (60) days after the date of the
damage or destruction, to terminate this Lease as of the date of the damage or
destruction.
11.03 EXCEPTIONS TO LANDLORD'S OBLIGATIONS. Notwithstanding anything to
the contrary contained in this Article XI, Landlord shall have no obligation to
repair the Premises if either: (a) the Building in which the Premises are
located is so damaged as to require repairs to the Building exceeding twenty
percent (20%) of the full insurable value of the Building; or (b) Landlord
elects to demolish the Building in which the Premises are located; or (c) the
damage or destruction occurs less than two (2) years prior to the Expiration
Date, exclusive of option periods. In addition, Landlord's obligation to
repair as set forth in this Article XI shall be limited to the extent of
insurance proceeds made available to Landlord. Further, Tenant's Rent shall
not be abated if either (i) the damage or destruction is repaired within five
(5) business days after Landlord receives written notice from Tenant of the
casualty, or (ii) Tenant, or any officers, partners, employees, agents or
invitees of Tenant, or any assignee or subtenant of Tenant, is, in whole or in
part, responsible for the damage or destruction.
11.04 WAIVER. The provisions contained in this Lease shall supersede any
contrary laws (whether statutory, common law or otherwise) now or hereafter in
effect relating to damage, destruction, self-help or termination.
ARTICLE XII - CONDEMNATION
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12.01 TAKING. If the entire Premises or so much of the Premises or the
common areas as to render the balance unusable by Tenant for its use under
section 1.10, shall be taken by condemnation, sale in lieu of condemnation or in
any other manner for any public or quasi-public purpose (collectively
"Condemnation"), and if Landlord, at its option, is unable or unwilling to
provide substitute premises containing at least as much rentable area as
described in Section 1.02 above, then this Lease shall terminate on the date
that title or possession to the Premises is taken by the condemning authority,
whichever is earlier.
12.02 AWARD. In the event of any Condemnation, the entire award for such
taking shall belong to Landlord. Tenant shall have no claim against Landlord
or the award for the value of any unexpired term of this Lease or otherwise.
Tenant shall be entitled to independently pursue a separate award in a separate
proceeding for Tenant's relocation costs directly associated with the taking,
provided such separate award does not diminish Landlord's award.
12.03 TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or entitle Tenant to any abatement of the Rent payable to
Landlord under this Lease; provided, further, that any award for such temporary
taking shall belong to Tenant to the extent that the award applies to any time
period during the Lease Term and to Landlord to the extent that the award
applies to any time period outside the Lease Term.
ARTICLE XIII - RELOCATION
13.01 RELOCATION. INTENTIONALLY OMITTED
ARTICLE XIV - ASSIGNMENT AND SUBLETTING
14.01 RESTRICTION. Without the prior written consent of Landlord, Tenant
shall not, either voluntarily or by operation of law, assign, encumber, or
otherwise transfer this Lease or any interest herein, or sublet the Premises or
any part thereof, or permit the Premises to be occupied by anyone other than
Tenant or Tenant's employees (any such assignment, encumbrance, subletting,
occupation or transfer is hereinafter referred to as a "Transfer"). For
purposes of this Lease, the term "Transfer" shall also include (a) if Tenant is
a partnership, the withdrawal or change, voluntary, involuntary or by operation
of law, of a majority of the partners, or a transfer of a majority of
partnership interests, within a twelve month period, or the dissolution of the
partnership, (b) if Tenant is a closely held corporation (i.e. whose stock is
not publicly held and not traded through an exchange or over the counter) or a
limited liability company, the dissolution, merger, consolidation, division,
liquidation or other reorganization of Tenant, or within a twelve month period:
(i) the sale or other transfer of more than an aggregate of 50% of the voting
securities of Tenant (other than to immediate family members by reason of gift
or death) or (ii) the sale, mortgage, hypothecation or pledge of more than an
aggregate of 50% of Tenant's net assets and (c) any change by Tenant in the
form of its legal organization under applicable state law (such as, for
example, a change from a general partnership to a limited partnership or from a
corporation to a limited liability company). An assignment, subletting or
other action in violation of the foregoing shall be void and, at Landlord's
option, shall constitute a material breach of this Lease. Notwithstanding
anything contained in this Article XIV to the contrary, Tenant shall have the
right to assign the Lease or sublease the Premises, or any part thereof, to an
"Affiliate" without the prior written consent of Landlord, but upon at least
twenty (20) days' prior written notice to Landlord, provided that said
Affiliate is identical to the use in Section 1.10 of the Lease, and provided
further that said Affiliate is not in default under any other lease for space
in a property that is managed by Xxxxxxx Properties Ltd. or any of its
affiliates. For purposes of this provision, the term "Affiliate" shall mean
any corporation or other entity controlling, controlled by, or under common
control with (directly or indirectly) Tenant, including, without limitation,
any parent corporation controlling Tenant or any subsidiary that Tenant
controls. The term "control," as used herein, shall mean the power to direct
or cause the direction of the management and policies of the controlled entity
through the ownership of more than ten percent (10%) of the voting securities
in such controlled entity. Notwithstanding anything contained
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in this Article XIV to the contrary, Tenant expressly covenants and agrees not
to enter into any lease, sublease, license, concession or other agreement for
use, occupancy or utilization of the Premises which provides for rental or other
payment for such use, occupancy or utilization based in whole or in part on the
net income or profits derived by any person from the property leased, used,
occupied or utilized (other than an amount based on a fixed percentage or
percentages of receipts or sales), and that any such purported lease, sublease,
license, concession or other agreement shall be absolutely void and ineffective
as a conveyance of any right or interest in the possession, use, occupancy or
utilization of any part of the Premises.
14.02 NOTICE TO LANDLORD. If Tenant desires to assign this Lease or any
interest herein, or to sublet all or any part of the Premises, then at least
thirty (30) days but not more than one hundred eighty (180) days prior to the
effective date of the proposed assignment or subletting, Tenant shall submit to
Landlord in connection with Tenant's request for Landlord's consent:
(A) A statement containing (i) the name and address of the
proposed assignee or subtenant; (ii) such financial information with
respect to the proposed assignee or subtenant as Landlord shall
reasonably require; (iii) the type of use proposed for the Premises; and
(iv) all of the principal terms of the proposed assignment or subletting;
and
(B) Four (4) originals of the assignment or sublease on a form
approved by Landlord and four (4) originals of the Landlord's Consent to
Sublease or Assignment and Assumption of Lease and Consent.
14.03 LANDLORD'S RECAPTURE RIGHTS. At any time within twenty (20)
business days after Landlord's receipt of all (but not less than all) of the
information and documents described in Section 14.02 above, Landlord may, at
its option by written notice to Tenant, elect to: (a) sublease the Premises or
the portion thereof proposed to be sublet by Tenant upon the same terms as
those offered to the proposed subtenant; (b) take an assignment of the Lease
upon the same terms as those offered to the proposed assignee; or (c) terminate
the Lease in its entirety or as to the portion of the Premises proposed to be
assigned or sublet, with a proportionate adjustment in the Rent payable
hereunder if the Lease is terminated as to less than all of the Premises. If
Landlord does not exercise any of the options described in the preceding
sentence, then, during the above-described twenty (20) business day period,
Landlord shall either consent or deny its consent to the proposed assignment or
subletting. This provision does not apply to any transfer to Affiliates, as
provided in Section 14.01.
14.04 LANDLORD'S CONSENT; STANDARDS. Landlord's consent to a proposed
assignment or subletting shall not be unreasonably withheld; but, in addition
to any other grounds for denial, Landlord's consent shall be deemed reasonably
withheld if, in Landlord's good faith judgment: (i) the proposed assignee or
subtenant does not have the financial strength to perform its obligations under
this Lease or any proposed sublease; (ii) the business and operations of the
proposed assignee or subtenant are not of comparable quality to the business
and operations being conducted by other tenants in the Building; (iii) the
proposed assignee or subtenant intends to use any part of the Premises for a
purpose not permitted under this Lease; (iv) either the proposed assignee or
subtenant, or any person which directly or indirectly controls, is controlled
by, or is under common control with the proposed assignee or subtenant occupies
space in the Building or the Project, if applicable, or is negotiating with
Landlord to lease space in the Building or the Project, if applicable; (v) the
proposed assignee or subtenant is disreputable; or (vi) the use of the Premises
or the Building by the proposed assignee or subtenant would, in Landlord's
reasonable judgment, impact the Building in a negative manner including but not
limited to significantly increasing the pedestrian traffic, parking capacity
and requirements, and truck traffic in and out of the Building or requiring any
alterations to the Building to comply with applicable laws; (vii) the subject
space is not regular in shape with appropriate means of ingress and egress
suitable for normal renting purposes; (viii) the transferee is a government (or
agency or instrumentality thereof) or (ix) Tenant has failed to cure a default
at the time Tenant requests consent to the proposed Transfer.
14.05 ADDITIONAL RENT. If Landlord consents to any such assignment or
subletting, all sums or other economic consideration received by Tenant in
connection with such assignment or subletting, whether denominated as rental or
otherwise, exceeds, in the aggregate, the total sum which Tenant is obligated
to pay Landlord under this Lease (prorated to reflect obligations allocable to
less than all of the Premises under a sublease) shall be paid to
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Landlord promptly after receipt as additional Rent under the Lease without
affecting or reducing any other obligation of Tenant hereunder.
14.06 LANDLORD'S COSTS. If Tenant shall Transfer this Lease or all or
any part of the Premises or shall request the consent of Landlord to any
Transfer, Tenant shall pay to Landlord as additional rent Landlord's costs
related thereto, including Landlord's reasonable attorneys' fees and a minimum
fee to Landlord of Five Hundred Dollars ($500.00).
14.07 CONTINUING LIABILITY OF TENANT. Notwithstanding any Transfer,
including an assignment or sublease to an affiliate, Tenant shall remain as
fully and primarily liable for the payment of Rent and for the performance of
all other obligations of Tenant contained in this Lease to the same extent as
if the Transfer had not occurred; provided, however, that any act or omission
of any transferee, other than Landlord, that violates the terms of this Lease
shall be deemed a violation of this Lease by Tenant.
14.08 NON-WAIVER. The consent by Landlord to any Transfer shall not
relieve Tenant, or any person claiming through or by Tenant, of the obligation
to obtain the consent of Landlord, pursuant to this Article XIV, to any further
Transfer. In the event of an assignment or subletting, Landlord may collect
rent from the assignee or the subtenant without waiving any rights hereunder
and collection of the rent from a person other than Tenant shall not be deemed
a waiver of any of Landlord's rights under this Article XIV, an acceptance of
assignee or subtenant as Tenant, or a release of Tenant from the performance of
Tenant's obligations under this Lease. If Tenant shall default under this
Lease and fail to cure within the time permitted, Landlord is irrevocably
authorized, as Tenant's agent and attorney-in-fact, to direct any transferee to
make all payments under or in connection with the Transfer directly to Landlord
(which Landlord shall apply towards Tenant's obligations under this Lease)
until such default is cured.
ARTICLE XV - DEFAULT AND REMEDIES
15.01 EVENTS OF DEFAULT BY TENANT. The occurrence of any of the
following shall constitute a material default and breach of this Lease by
Tenant:
(A) The failure by Tenant to pay Base Rent or make any other
payment within five (5) business days after notice that is required to be
made by Tenant hereunder as and when due. Notice to be given no more
than twice during any given calendar year.
(B) The abandonment of the Premises by Tenant for fourteen (14)
consecutive days (with or without the payment of Rent).
(C) The making by Tenant of any assignment of this Lease or any
sublease of all or part of the Premises, except as expressly permitted
under Article XIV of this Lease.
(D) The failure by Tenant to observe or perform any other
provision of this Lease to be observed or performed by Tenant, other than
those described in Sections 15.01(A), 15.01(B) or 15.01 (C) above, if
such failure continues for thirty (30) days after written notice thereof
by Landlord to Tenant; provided, however, that if the nature of the
default is such that it cannot be cured within the thirty (30) day
period, no default shall be deemed to exist if Tenant commences the
curing of the default promptly within such thirty (30) day period and
thereafter diligently prosecutes the same to completion and achieves the
same within sixty (60) days after the occurrence of such default. The
thirty (30) day notice described herein shall be in lieu of, and not in
addition to, any notice required under law now or hereafter in effect
requiring that notice of default be given prior to the commencement of an
unlawful detainer or other legal proceeding.
(E) The making by Tenant or its Guarantor of any general
assignment for the benefit of creditors, the filing by or against Tenant
or its Guarantor of a petition under any federal or state bankruptcy or
insolvency laws (unless, in the case of a petition filed against Tenant
or its Guarantor the same is dismissed
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within sixty (60) days after filing); the appointment of a trustee or
receiver to take possession of substantially all of Tenant's assets at
the Premises or Tenant's interest in this Lease or the Premises, when
possession is not restored to Tenant within sixty (60) days; the
attachment, execution or other seizure of substantially all of Tenant's
assets located at the Premises or Tenant's interest in this Lease or the
Premises, if such seizure is not discharged within sixty (60) days; or
the death or the dissolution of Tenant or any one or more of the
Guarantors, if any.
(F) Any material misrepresentation herein, or material
misrepresentation or omission in any financial statements or other
materials provided by Tenant or any Guarantor in connection with
negotiating or entering into this Lease or in connection with any
Transfer under Section 14.01.
15.02 LANDLORD'S RIGHT TO TERMINATE UPON TENANT DEFAULT. In the event of
any default by Tenant as provided in Section 15.01 above, Landlord shall have
the right without notice or demand to Tenant (Tenant hereby irrevocably waiving
all notices and demands, statutory or otherwise, including without limitation,
any notice otherwise required in connection with any forcible entry and
detainer action), to terminate this Lease or to terminate Tenant's right to
possession of the Premises without terminating this Lease, and in either event
Landlord shall be entitled to receive from Tenant:
(A) The worth at the time of award of any unpaid Rent which had
been earned at the time of such termination; plus
(B) The worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the time
of award exceeds the amount of such rental loss Tenant proves could have
been reasonably avoided; plus
(C) The worth at the time of award of the amount by which the
unpaid Rent for the balance of the term after the time of award exceeds
the amount of such rental loss that Tenant proves could be reasonably
avoided; plus
(D) Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom; and
(E) At Landlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by
applicable law.
As used in subparagraphs (A) and (B) above, "worth at the time of award"
shall be computed by allowing interest on such amounts at the then highest
lawful rate of interest, but in no event to exceed one percent (1%) per annum
plus the rate established by the Federal Reserve Bank of Chicago on advances
made to member banks under Sections of the Federal Reserve Act ("discount
rate") prevailing at the time of the award. As used in paragraph (C) above,
"worth at the time of award" shall be computed by discounting such amount by
(i) the discount rate of the Federal Reserve Bank of Chicago prevailing at the
time of award plus (ii) one percent (1%).
15.03 MITIGATION OF DAMAGES. If Landlord terminates this Lease or
Tenant's right to possession of the Premises, Landlord shall have no obligation
to mitigate Landlord's damages except to the extent required by applicable
law. If Landlord has not terminated this Lease or Tenant's right to possession
of the Premises, Landlord shall have no obligation to mitigate under any
circumstances and may permit the Premises to remain vacant or abandoned. If
Landlord is required to mitigate damages as provided herein: (i) Landlord
shall be required only to use reasonable efforts to mitigate, which shall not
exceed such efforts as Landlord generally uses to lease other space in the
Building, (ii) Landlord will not be deemed to have failed to mitigate if
Landlord or its affiliates lease any other portions of the Building, Project or
other projects owned by Landlord or its affiliates in the same geographic area,
before reletting all or any portion of the Premises, and (iii) any failure to
mitigate as described herein with respect to any period of time shall only
reduce the Rent and other amounts to which Landlord is entitled hereunder by
the reasonable rental value of the Premises during such period. In recognition
that the value of the
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Building depends on the rental rates and terms of leases therein, Landlord's
rejection of a prospective replacement tenant based on an offer of rentals below
Landlord's published rates for new leases of comparable space at the Building at
the time in question, or at Landlord's option, below the rates provided in this
Lease, or containing terms less favorable than those contained herein, shall not
give rise to a claim by Tenant that Landlord failed to mitigate Landlord's
damages.
15.04 LANDLORD'S RIGHT TO CONTINUE LEASE UPON TENANT DEFAULT. In the
event of a default of this Lease and abandonment of the Premises by Tenant, if
Landlord does not elect to terminate this Lease as provided in Section 15.02
above, Landlord may from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease. Without limiting the
foregoing, Landlord may continue this Lease in effect after Tenant's default
and abandonment and recover Rent as it becomes due. In the event Landlord
re-lets the Premises, to the fullest extent permitted by law, the proceeds of
any reletting shall be applied first to pay to Landlord all costs and expenses
of such reletting (including without limitation, costs and expenses of retaking
or repossessing the Premises, removing persons and property therefrom, securing
new tenants, including expenses for redecoration, alterations and other costs
in connection with preparing the Premises for the new tenant, and if Landlord
shall maintain and operate the Premises, the costs thereof) and receivers' fees
incurred in connection with the appointment of and performance by a receiver to
protect the Premises and Landlord's interest under this Lease and any necessary
or reasonable alterations; second, to the payment of any indebtedness of Tenant
to Landlord other than Rent due and unpaid hereunder; third, to the payment of
Rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of other or future obligations of Tenant to
Landlord as the same may become due and payable, and Tenant shall not be
entitled to receive any portion of such revenue.
15.05 RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to be
performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense. If Tenant shall fail to pay any sum of money, other
than Rent, required to be paid by it hereunder or shall fail to perform any
other act on its part to be performed hereunder, Landlord may, subject to
notice, cure and grace periods as provided in this Lease, but shall not be
obligated to, make any payment or perform any such other act on Tenant's part
to be made or performed, without waiving or releasing Tenant of its obligations
under this Lease. Any sums so paid by Landlord and all necessary incidental
costs, together with interest thereon at the lesser of the maximum rate
permitted by law if any or twelve percent (12%) per annum from the date of such
payment, shall be payable to Landlord as additional rent on demand and Landlord
shall have the same rights and remedies in the event of nonpayment as in the
case of default by Tenant in the payment of Rent.
15.06 DEFAULT UNDER OTHER LEASES. If the term of any lease, other than
this Lease, heretofore or hereafter made by Tenant for any space in the
Building or the Project, if applicable, shall be terminated or terminable after
the making of this Lease because of any default by Tenant under such other
lease, such fact shall empower Landlord, at Landlord's sole option, to
terminate this Lease by notice to Tenant or to exercise any of the rights or
remedies set forth in Section 15.02.
15.07 NON-WAIVER. Nothing in this Article shall be deemed to affect
Landlord's rights to indemnification for liability or liabilities arising prior
to termination of this Lease or Tenant's right to possession of the Premises
for personal injury or property damages under the indemnification clause or
clauses contained in this Lease. No acceptance by Landlord of a lesser sum
than the Rent then due shall be deemed to be other than on account of the
earliest installment of such rent due, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such
installment or pursue any other remedy in the Lease provided. The delivery of
keys to any employee of Landlord or to Landlord's agent or any employee thereof
shall not operate as a termination of this Lease or a surrender of the
Premises, unless Landlord in writing both accepts such surrender and
acknowledges such termination.
15.08 CUMULATIVE REMEDIES. The specific remedies to which Landlord may
resort under the terms of the Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it may be lawfully
entitled in case of any breach or threatened breach by Tenant of any provisions
of the Lease. In addition to the other remedies provided in the Lease,
including the right to terminate this Lease or to terminate
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Tenant's right of possession of the Premises and reenter and repossess the
Premises and remove all persons and property from the Premises without
terminating this Lease as provided in Section 15.02, Landlord shall be entitled
to a restraint by injunction of the violation or attempted or threatened
violation of any of the covenants, conditions or provisions of the Lease or to a
decree compelling specific performance of any such covenants, conditions or
provisions.
15.09 DEFAULT BY LANDLORD. Landlord's failure to perform or observe any
of its obligations under this Lease shall constitute a default by Landlord
under this Lease only if such failure shall continue for a period of thirty
(30) days (or the additional time, if any, that is reasonably necessary to
promptly and diligently cure the failure) after Landlord receives written
notice from Tenant specifying the default. The notice shall give in reasonable
detail the nature and extent of the failure and shall identify the Lease
provision(s) containing the obligation(s). If Landlord shall default in the
performance of any of its obligations under this Lease (after notice and
opportunity to cure as provided herein), Tenant may pursue any remedies
available to it under the law and this Lease, except that, in no event, shall
Landlord be liable for punitive damages, lost profits, business interruption,
speculative, consequential or other such damages. In recognition that Landlord
must receive timely payments of Rent and operate the Building, Tenant shall
have no right of self-help to perform repairs or any other obligation of
Landlord, and shall have no right to withhold, set-off, or xxxxx Rent.
ARTICLE XVI - ATTORNEYS' FEES: COSTS OF SUIT
16.01 ATTORNEYS FEES. If either Landlord or Tenant shall commence any
action or other proceeding against the other arising out of, or relating to,
this Lease or the Premises, the prevailing party shall be entitled to recover
from the losing party, in addition to any other relief, its actual attorneys'
fees irrespective of whether or not the action or other proceeding is
prosecuted to judgment and irrespective of any court schedule of reasonable
attorneys' fees. In addition, Tenant shall reimburse Landlord, upon demand,
for all reasonable attorneys' fees incurred in collecting Rent, resolving any
actual default by Tenant, securing indemnification as provided in Article X and
paragraphs, 16.02, 24.01 and 26.01 herein or otherwise seeking enforcement
against Tenant, its sublessees and assigns, of Tenant's obligations under this
Lease.
16.02 INDEMNIFICATION. Should Landlord be made a party to any litigation
instituted by Tenant against a party other than Landlord, or by a third party
against Tenant, Tenant shall indemnify, hold harmless and defend Landlord from
any and all loss, cost, liability, damage or expense incurred by Landlord,
including attorneys' fees, in connection with the litigation, unless a final
non-appealable judgment is rendered against Landlord in such litigation.
ARTICLE XVII - SUBORDINATION AND ATTORNMENT
17.01 SUBORDINATION. This Lease, and the rights of Tenant hereunder, are
and shall be subject and subordinate to the interest of (i) all present and
future ground leases and master leases of all or any part of the Building; (ii)
present and future mortgages and deeds of trust encumbering all or any part of
the Building or the underlying real estate; (iii) all past and future advances
made under any such mortgages or deeds of trust; and (iv) all renewals,
modifications, replacements and extensions of any such ground leases, master
leases, mortgages and deeds of trust; provided, however, that any lessor under
any such ground lease or master lease or any mortgagee or beneficiary under any
such mortgage or deed of trust ( any such lessor, mortgagee or beneficiary is
hereinafter referred to as a "Mortgagee") shall have the right to elect, by
written notice given to Tenant, to have this Lease made superior in whole or in
part to any such ground lease, master lease, mortgage or deed of trust (or
subject and subordinate to such ground lease, master lease, mortgage or deed of
trust but superior to any junior mortgage or junior deed of trust). Upon
demand, Tenant shall execute, acknowledge and deliver any instruments
reasonably requested by Landlord or any such Mortgagee to effect the purposes
of this Section 17.01. Such instruments may contain, among other things,
provisions to the effect that such Mortgagee (hereafter, for the purposes of
this Section 17.01, a "Successor Landlord") shall (i) not be liable for any act
or omission of Landlord or its predecessors, if any, prior to the date of such
Successor Landlord's succession to Landlord's interest under this Lease; (ii)
not be subject
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to any offsets or defenses which Tenant might have been able to assert against
Landlord or its predecessors, if any, prior to the date of such Successor
Landlord's succession to Landlord's interest under this Lease; (iii) not be
liable for the return of any security deposit under the Lease unless the same
shall have actually been deposited with such Successor Landlord; (iv) be
entitled to receive notice of any Landlord default under this Lease plus a
reasonable opportunity to cure such default prior to Tenant having any right or
ability to terminate this Lease as a result of such Landlord default; (v) not be
bound by any rent or additional rent which Tenant might have paid for more than
the current month to Landlord; (vi) not be bound by any amendment or
modification of the Lease or any cancellation or surrender of the same made
without Successor Landlord's prior written consent; (vii) not be bound by any
obligation to make any payment to Tenant which was required to be made prior to
the time such Successor Landlord succeeded to Landlord's interest and (viii) not
be bound by any obligation under the Lease to perform any work or to make any
improvements to the demised Premises. Any obligations of any Successor Landlord
under its respective lease shall be non-recourse as to any assets of such
Successor Landlord other than its interest in the Premises and improvements.
SEE ADDENDUM TO LEASE ITEM #5
17.02 ATTORNMENT. If requested to do so, Tenant shall attorn to and
recognize as Tenant's landlord under this Lease any superior Mortgagee or other
purchaser or person taking title to the Building by reason of the termination
of any superior lease or the foreclosure of any superior mortgage or deed of
trust, and Tenant shall, upon demand, execute any documents reasonably
requested by any such person to evidence the attornment described in this
Section 17.02. SEE ADDENDUM TO LEASE ITEM #5
17.03 MORTGAGEE AND GROUND LESSOR PROTECTION. Tenant agrees to give any
Mortgagee, by registered or certified mail, a copy of any notice of default
served upon Landlord by Tenant, provided that prior to such notice Tenant has
been notified in writing (by way of service on Tenant of a copy of Assignment
of Rents and Leases, or otherwise) of the address of such Mortgagee (hereafter
the "Notified Party"). Tenant further agrees that if Landlord shall have
failed to cure such default within twenty (20) days after such notice to
Landlord (or if such default cannot be cured or corrected within that time,
then such additional time as may be necessary if Landlord has commenced within
such twenty (20) days and is diligently pursuing the remedies or steps
necessary to cure or correct such default), then the Notified Party shall have
an additional thirty (30) days within which to cure or correct such default (or
if such default cannot be cured or corrected within that time, then such
additional time as may be necessary if the Notified Party has commenced within
such thirty (30) days and is diligently pursuing the remedies or steps
necessary to cure or correct such default). Until the time allowed, as
aforesaid, for the Notified Party to cure such default has expired without
cure, Tenant shall have no right to, and shall not, terminate this Lease on
account of Landlord's default. SEE ADDENDUM TO LEASE ITEM #5
ARTICLE XVIII - QUIET ENJOYMENT
18.01 Provided that Tenant performs all of its obligations hereunder,
Tenant shall have and peaceably enjoy the Premises during the Lease Term free
of claims by or through Landlord, subject to all of the terms and conditions
contained in this Lease.
ARTICLE XIX - PARKING
19.01 Tenant, its employees and invitees, are hereby granted the
non-exclusive privilege to use parking spaces in Lakeside Building - Corporate
Center Lakeside - Building A. Tenant shall abide by all rules and regulations
regarding the use of the parking area as may now exist or as may hereinafter be
promulgated by Landlord. Landlord reserves the right to modify, restripe and
otherwise change the location of drives, parking spaces and parking area in
Lakeside Building - Corporate Center Lakeside - Building A. Landlord may, but
shall have no obligation to, designate certain parking spaces for trucks,
handicapped persons or designated tenants as Landlord, in its sole discretion,
may deem necessary for the professional and efficient operation of the parking
area and the Building or the Project, if applicable. Landlord shall have the
right to reasonably restrict the number and location of truck/tractor trailers
for the overall benefit of all tenants, it being agreed by Tenant that it is
not the intent of this Lease to provide unrestricted parking for truck/tractor
trailers. Tenant agrees not to overburden the parking
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facilities and agrees to cooperate with Landlord and other tenants in the use of
the parking facilities. Tenant will reimburse Landlord upon demand for any
damage caused to the parking surfaces or facilities caused by Tenant's or any of
its employees', agents' or invitees' trucks/tractor trailers or any other
vehicles. Landlord reserves the right in its absolute discretion to determine
whether parking facilities are becoming crowded and, in such event, to allocate
parking spaces among Tenant and other tenants. At no time shall the parking of
any vehicle be permitted in the fire lanes or handicapped parking areas
servicing the Building or the Project, if applicable. SEE ADDENDUM TO LEASE
ITEM #3
ARTICLE XX - RULES AND REGULATIONS
20.01 The Rules and Regulations attached hereto as Exhibit F are hereby
incorporated by reference herein and made a part hereof. Tenant shall abide
by, and faithfully observe and comply with the Rules and Regulations and any
reasonable and non-discriminatory amendments, modifications and/or additions
thereto as may hereafter be adopted and published by written notice to tenants
by Landlord for the safety, care, security, good order and/or cleanliness of
the Premises, the Building and/or the Project, if applicable. Landlord shall
not be liable to Tenant for any violation of such rules and regulations by any
other tenant or occupant of the Building or the Project, if applicable.
ARTICLE XXI - ESTOPPEL CERTIFICATES
21.01 Tenant agrees at any time and from time to time upon not less than
twenty (20) days' prior written notice from Landlord to execute, acknowledge
and deliver to Landlord a statement in writing addressed and certifying to
Landlord, to any current or prospective Mortgagee or any assignee thereof, to
any prospective purchaser of the land, improvements or both comprising the
Building, and to any other party designated by Landlord, that this Lease is
unmodified and in full force and effect (of if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications); that Tenant has accepted possession of the Premises, which are
acceptable in all respects, and that any improvements required by the terms of
this Lease to be made by Landlord have been completed to the satisfaction of
Tenant; that Tenant is in full occupancy of the Premises; that no rent has been
paid more than thirty (30) days in advance; that the first month's Base Rent
has been paid; that Tenant is entitled to no free rent or other concessions
except as stated in this Lease; that Tenant has not been notified of any
previous assignment of Landlord's or any predecessor landlord's interest under
this Lease; the dates to which Base Rent, additional rental and other charges
have been paid; that Tenant, as of the date of such certificate, has no charge,
lien or claim of setoff under this Lease or otherwise against Base Rent,
additional rental or other charges due or to become due under this Lease; that
Landlord is not in default in performance of any covenant, agreement or
condition contained in this Lease; or any other matter relating to this Lease
or the Premises or, if one or more of the above statements are true, the facts
relating to such statements, specifying each such default. If there is a
Guaranty under this Lease, said Guarantor shall confirm the validity of the
Guaranty by joining in the execution of the Estoppel Certificate or other
documents so requested by Landlord or Mortgagee. In addition, in the event
that such certificate is being given to any Mortgagee, such statement may
contain any other provisions customarily required by such Mortgagee including,
without limitation, an agreement on the part of Tenant to furnish to such
Mortgagee, written notice of any Landlord default and a reasonable opportunity
for such Mortgagee to cure such default prior to Tenant being able to terminate
this Lease. Any such statement delivered pursuant to this Section may be
relied upon by Landlord or any Mortgagee, or prospective purchaser to whom it
is addressed and such statement, if required by its addressee, may so
specifically state. If Tenant does not execute, acknowledge and deliver to
Landlord the statement as and when required herein, Landlord is hereby granted
an irrevocable power-of-attorney, coupled with an interest, to execute such
statement on Tenant's behalf, which statement shall be binding on Tenant to the
same extent as if executed by Tenant (and such grant shall not be in limitation
of Landlord's other remedies for such failure by Tenant). Landlord must
provide a similar Estoppel Certificate if so requested by Tenant.
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ARTICLE XXII - ENTRY BY LANDLORD
22.01 Landlord may enter the Premises at all reasonable times and with
reasonable notice except in the case of an emergency to: inspect the same;
exhibit the same to prospective purchasers, Mortgagees or tenants; determine
whether Tenant is complying with all of its obligations under this Lease;
supply janitorial and other services to be provided by Landlord to Tenant under
this Lease; post notices of non-responsibility; and make repairs or
improvements in or to the Building or the Premises; provided, however, that all
such work shall be done as promptly as reasonably possible and so as to cause
as little interference to Tenant as reasonably possible. Tenant hereby waives
any claim for damages for any injury or inconvenience to, or interference with,
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises or
any other loss occasioned by such entry. As provided for in clause (xii) of
Section 28.19 of this Lease, Landlord shall at all times have the right, but
not the obligation, to obtain from Tenant and retain a key with which to unlock
all of the doors in, on or about the Premises (excluding Tenant's vaults, safes
and similar areas designated by Tenant in writing in advance), and if such key
is not provided, Landlord shall have the right to use any and all means by
which Landlord may deem proper to open such doors to obtain entry to the
Premises, and any entry to the Premises obtained by Landlord by any such means,
or otherwise, shall not under any circumstances be deemed or construed to be a
forcible or unlawful entry into or a detainer of the Premises or an eviction,
actual or constructive, of Tenant from any part of the Premises. Such entry by
Landlord shall not act as a termination of Tenant's duties under this Lease.
If Landlord shall be required to obtain entry by means other than a key
provided by Tenant, the cost of such entry shall by payable by Tenant to
Landlord as additional rent.
ARTICLE XXIII
LANDLORD'S LEASE UNDERTAKINGS-EXCULPATION FROM PERSONAL LIABILITY;
TRANSFER OF LANDLORD'S INTEREST
23.01 LANDLORD'S LEASE UNDERTAKINGS. Notwithstanding anything to the
contrary contained in this Lease or in any exhibits, Riders or addenda hereto
attached (collectively the "Lease Documents"), it is expressly understood and
agreed by and between the parties hereto that: (a) the recourse of Tenant or
its successors or assigns against Landlord with respect to the alleged breach
by or on the part of Landlord of any representation, warranty, covenant,
undertaking or agreement contained in any of the Lease Documents or otherwise
arising out of Tenant's use of the Premises or the Building or the Project, if
applicable (collectively, "Landlord's Lease Undertakings") shall extend only to
Landlord's interest in the real estate of which the Premises demised under the
Lease Documents are a part ("Landlord's Real Estate") and not to any other
assets of Landlord or its members; and (b) except to the extent of Landlord's
interest in Landlord's Real Estate, no personal liability or personal
responsibility of any sort with respect to any of Landlord's Lease Undertakings
or any alleged breach thereof is assumed by, or shall at any time be asserted
or enforceable against, Landlord, Xxxxxxx Capital Management Corporation,
HRC-LLC, Inc., Xxxxxxx Properties Ltd., or Xxxxxxx Properties of Indiana Ltd.,
or against any of their respective directors, officers, employees, agents,
constituent partners, beneficiaries, trustees or representatives.
23.02 TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer of
Landlord's interest in the Building, Landlord shall be automatically freed and
relieved from all applicable liability with respect to performance of any
covenant or obligation on the part of Landlord, provided any deposits or
advance rents held by Landlord are turned over to the grantee and said grantee
expressly assumes, subject to the limitations of this Section 23, all the
terms, covenants and conditions of this Lease to be performed on the part of
Landlord, it being intended hereby that the covenants and obligations contained
in this Lease on the part of Landlord shall, subject to all the provisions of
this Section 23, be binding on Landlord, its successors and assigns, only
during their respective periods of ownership.
ARTICLE XXIV - SURRENDER; HOLDOVER TENANCY
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24.01 CONDITION OF PREMISES AND REMOVAL OF PROPERTY. At the expiration
or earlier termination of this Lease or Tenant's right to possession of the
Premises, Tenant shall: (a) surrender possession of the Premises in
broom-clean condition and good repair, free of debris, and otherwise in the
condition required under Section 8.02, ordinary wear and tear excepted, (b)
ensure that all signs, movable trade fixtures and personal property (except
items originally provided by Landlord) have been removed from the Premises as
required under Section 9.04 hereof (subject to Article XXIX hereof), (c) ensure
that all Alterations required to be removed from the Premises pursuant to
Section 9.04 have been removed from the Premises, (d) ensure that any damage
caused by such removal has been repaired in a good and workmanlike manner as
required under Section 9.04 hereof (and Landlord may deny permission to remove
items where such removal may damage the structural integrity of the Building),
and (e) ensure that all actions required under the Rules and Regulations set
forth in Exhibit F to this Lease have been taken. Tenant understands that
"ordinary wear and tear" does not mean Tenant shall be relieved of performing
its obligations under this Lease relating to maintenance, repairs and
replacements as provided for in the Lease. The cost and expense of any repairs
necessary to restore the condition of the Premises shall be borne by Tenant,
and if Landlord undertakes to restore the Premises, it shall have a right of
reimbursement against Tenant.
24.02 ABANDONED PROPERTY. If Tenant shall fail to perform any repairs
or restoration, or fail to remove any items from the Premises as required
hereunder, Landlord may do so at Tenant's expense as provided in Sections 9.04
and 15.04 hereof and Tenant shall pay Landlord's charges therefor upon demand.
All property removed from the Premises by Landlord hereunder may be handled,
discarded or stored by Landlord at Tenant's expense, and Landlord shall in no
event be responsible for the value, preservation or safekeeping thereof. All
such property shall at Landlord's option be conclusively deemed to have been
conveyed by Tenant to Landlord as if by xxxx of sale without payment by
Landlord. If Landlord arranges for storage of any such property, Landlord
shall have a lien against such property for costs incurred in removing and
storing the same.
24.03 HOLDOVER TENANCY. If Tenant holds possession of the Premises after
the expiration or termination of the Lease Term without the consent of
Landlord, by lapse of time or otherwise, Tenant shall become a tenant at
sufferance upon all of the terms contained herein, except as to Lease Term and
Rent. During such holdover period, Tenant shall pay to Landlord a monthly
rental equivalent to two hundred percent (200%) of the Rent Payable by Tenant
to Landlord with respect to the last month of the Lease Term. The monthly rent
payable for such holdover period shall in no event be construed as a penalty or
as liquidated damages for such retention of possession. Without limiting the
foregoing, Tenant hereby agrees to indemnify, defend and hold harmless
Landlord, its beneficiary, and their respective agents, contractors and
employees, from and against any and all claims, liabilities, actions, losses,
damages (including without limitation, direct, indirect, incidental and
consequential) and expenses (including, without limitation, court costs and
reasonable attorneys' fees) asserted against or sustained by any such party and
arising from or by reason of such retention of possession, which obligations
shall survive the expiration or termination of the Lease Term.
ARTICLE XXV - NOTICES
25.01 All notices which Landlord or Tenant may be required, or may desire,
to serve on the other may be served, as an alternative to personal service, by
mailing the same by registered or certified mail, postage prepaid, or may be
sent by overnight courier, addressed to Landlord at the address for Landlord
set forth in Section 1.11 above and to Tenant at the address for Tenant set
forth in Section 1.12 above, or, from and after the Commencement Date, to
Tenant at the Premises whether or not Tenant has departed from, abandoned or
vacated the Premises, or addressed to such other address or addresses as either
Landlord or Tenant may from time to time designate to the other in writing.
Any notice shall be deemed to have been given and served three (3) days after
when delivered personally or otherwise at the time the same was posted, except
that any notice given by overnight courier shall be deemed given on the first
business day following the date such notice is delivered by such courier
provided such courier verifies delivery proof.
ARTICLE XXVI - BROKERS
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26.01 The parties recognize as the broker(s) who procured this Lease the
firm(s) specified in Section 1.13 and agree that Landlord shall be solely
responsible for the payment of any brokerage commissions to said Broker(s), and
that Tenant shall have no responsibility therefor unless written provision to
the contrary has been made a part of this Lease. If Tenant or Landlord has
dealt with any other person or real estate broker in respect to leasing,
subleasing or renting space in the Building or the Project, if applicable,
Tenant or Landlord, as applicable shall be solely responsible for the payment
of any fee due said person or firm and Tenant shall protect, indemnify, hold
harmless and defend Landlord from any liability in respect thereto.
ARTICLE XXVII ELECTRONIC SERVICES
27.01 TENANT'S LINES. Tenant may, in a manner consistent with the
provisions and requirements of this Lease, install, maintain, replace, remove
or use any communications or computer or other electronic service wires, cables
and related devices (collectively the "Lines") at the Building in or serving
the Premises, provided: (a) Tenant shall obtain Landlord's prior written
consent, which consent may be conditioned as required by Landlord, (b) if
Tenant at any time uses any equipment that may create an electromagnetic field
exceeding the normal insulation ratings of ordinary twisted pair riser cable or
cause radiation higher than normal background radiation, the Lines therefor
(including riser cables) shall be appropriately insulated to prevent such
excessive electromagnetic fields or radiation, and (c) Tenant shall pay all
costs in connection therewith. Landlord reserves the right to require that
Tenant remove any Lines which are installed in violation of these provisions.
Tenant shall not, without the prior written consent of Landlord in each
instance, grant to any third party a security interest or lien in or on the
Lines, and any such security interest or lien granted without Landlord's
written consent shall be null and void.
27.02 DEFINITION OF ELECTRONIC SERVICES. As used herein "Electronic
Services Provider" means a business which provides telephone, telegraph, telex,
video, other telecommunications or other services which permit Tenant to
receive or transmit information by the use of electronics and which require the
use of wires, cables, antennas or similar devices in or on the Building. The
services of Electronic Services Providers are sometime referred to herein as
"Electronic Services."
27.03 NO RIGHT TO SPECIFIC SERVICES. Landlord shall have no obligation (i)
to install any Electronic Services equipment or facilities, (ii) to make
available to Tenant the services of any particular Electronic Services
Provider, (iii) to allow any particular Electronic Services Provider access to
the Building, (iv) to continue to grant access to an Electronic Services
Provider once such provider has been given access to the Building. Landlord
may (but shall not have the obligation to): (x) install new Lines at the
property, (y) create additional space for Lines at the property, and (z) adopt
reasonable and uniform rules and regulations with respect to Lines.
27.04 LIMITATION OF LANDLORD'S RESPONSIBILITY. Tenant acknowledges and
agrees that all Electronic Services desired by Tenant shall be ordered and
utilized at the sole expense of Tenant. Unless Landlord otherwise requests or
consents in writing, all of Tenant's Electronic Services equipment shall be and
remain solely in the Tenant's premises and the telephone closet(s) on the
floor(s) on which the Tenant's premises is located, in accordance with rules
and regulations adopted by Landlord from time to time. Unless otherwise
specifically agreed to in writing, Landlord shall have no responsibility for
the maintenance of Tenant's Electronic Services equipment, including Lines; nor
for any Lines or other infrastructure to which Tenant's Electronic Services
equipment may be connected. Tenant agrees that, to the extent any Electronic
Services are interrupted, curtailed or discontinued, Landlord shall have no
obligation or liability with respect thereto and it shall be the sole
obligation of Tenant at its own expense to obtain substitute service. Except to
the extent arising from the intentional or grossly negligent acts of Landlord
or Landlord's agents or employees, Landlord shall have no liability for damages
arising from, and Landlord does not warrant that Tenant's use of any Lines will
be free from the following (collectively called "Line Problems"): (x) any
eavesdropping or wire-tapping by unauthorized parties, (y) any failure of any
Lines to satisfy Tenant's requirements, or (z) any shortages, failures,
variations, interruptions, disconnections, loss or damage caused by the
installation, maintenance, replacement, use or removal of Lines by or for other
tenants or occupants at the property. Under no circumstances shall any Line
Problems be deemed an actual or constructive eviction of Tenant, render
Landlord liable to Tenant for abatement of Rent, or relieve Tenant from
performance of Tenant's
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obligations under this Lease. Landlord in no event shall be liable for damages
by reason of loss of profits, business interruption or other consequential
damage arising from any Line Problems.
27.05 NECESSARY SERVICE INTERRUPTIONS. Landlord shall have the right,
upon reasonable prior notice to Tenant, to interrupt or turn off Electronic
Services facilities in the event of emergency or as necessary in connection
with maintenance, repairs or construction at the Building or installation of
Electronic Services equipment for other Tenants of the Building or on account
of violation by the Electronic Services Provider or owner of the Electronic
Services equipment of any obligation to Landlord or in the event that Tenant's
use of the Electronic Services infrastructure of the Building materially
interferes with the Electronic Services of other tenants of the Building.
27.06 REMOVAL OF EQUIPMENT, WIRING AND OTHER FACILITIES. Any and all
Electronic Services equipment installed in the Tenant's Premises or elsewhere
in the Building by or on behalf of Tenant, including Lines, or other facilities
for Electronic Services reception or transmittal, shall be removed prior to the
expiration or earlier termination of the Lease term, by Tenant at its sole cost
or, at Landlord's election, by Landlord at Tenant's sole cost, with the cost
thereof to be paid as additional rent. Landlord shall have the right, however,
upon written notice to Tenant given no later than thirty (30) days prior to the
expiration or earlier termination of the Lease term (except that the notice
period shall extend to thirty (30) days beyond the date of termination of the
Lease if it is terminated by either party due to a default by the other), to
require Tenant to abandon and leave in place, without additional payment to
Tenant or credit against rent, any and all Electronic Services Lines and
related infrastructure, or selected components thereof, whether located in the
Tenant's premises or elsewhere in the Building.
27.07 NEW PROVIDER INSTALLATIONS. In the event that Tenant wishes at any
time to utilize the services of an Electronic Services Provider whose equipment
is not then servicing the Building, no such Electronic Services Provider shall
be permitted to install its Lines or other equipment within the Building
without first securing the prior written approval of the Landlord. Landlord's
approval shall not be deemed any kind of warranty or representation by
Landlord, including, without limitation, any warranty or representation as to
the suitability, competence, or financial strength of the Electronic Services
Provider. Without limitation of the foregoing standard, unless all of the
following conditions are satisfied to Landlord's satisfaction, it shall be
reasonable for Landlord to refuse to give its approval: (i) Landlord shall
incur no current expense or risk or future expense whatsoever with respect to
any aspect of the Electronic Services Provider's provision of its Electronic
Services, including without limitation, the costs of installation, materials
and services; (ii) prior to commencement of any work in or about the Building
by the Electronic Services Provider, the Electronic Services Provider shall
supply Landlord with such written indemnities, insurance, financial statements,
and such other items as Landlord reasonably determines to be necessary to
protect its financial interests and the interests of the Building relating to
the proposed activities of the Electronic Services Provider; (iii) the
Electronic Services Provider agrees to abide by such rules and regulations,
Building and other codes, job site rules and such other requirements as are
reasonably determined by Landlord to be necessary to protect the interests of
the Building, the Tenants in the Building and Landlord, in the same or similar
manner as Landlord has the right to protect itself and the Building with
respect to proposed alterations as described in Article IX of this Lease; (iv)
Landlord reasonably determines that, considering other potential uses for space
in the Building, there is sufficient space in the Building for the placement of
all of the provider's equipment, conduit, Lines and other materials; (v) the
Electronic Services Provider agrees to abide by Landlord's requirements, if
any, that provider use existing Building conduits and pipes or use Building
contractors (or other contractors approved by Landlord); (vi) Landlord receives
from the Electronic Services Provider such compensation as is reasonably
determined by Landlord to compensate it for space used in the Building for the
storage and maintenance of the Electronic Services Provider's equipment, for
the fair market value of a Electronic Services Provider's access to the
Building, for the use of common or core space within the Building and the costs
which may reasonably be expected to be incurred by Landlord; (vii) the provider
agrees to deliver to Landlord detailed "as built" plans immediately after the
installation of the provider's equipment is complete; and (viii) all of the
foregoing matters are documented in a written license agreement between
Landlord and the provider, the form and content of which is reasonably
satisfactory to Landlord."
27.08 LIMIT OF DEFAULT OR BREACH. Notwithstanding any provision of the
proceeding paragraphs to the contrary, the refusal of Landlord to grant its
approval to any prospective Electronic Services Provider shall not be deemed a
default or breach by Landlord of its obligation under this Lease unless and
until Landlord is adjudicated to
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have acted recklessly or maliciously with respect to Tenant's request for
approval, and in that event, Tenant shall still have no right to terminate the
Lease or claim an entitlement to rent abatement, but may as Tenant's sole and
exclusive recourse seek a judicial order of specific performance compelling
Landlord to grant its approval as to the prospective provider in question. The
provisions of this paragraph may be enforced solely by Tenant and Landlord, are
not for the benefit of any other party, and specifically but without
limitation, no telephone or other Electronic Services Provider shall be deemed
a third party beneficiary of this Lease.
27.09 INSTALLATION AND USE OF WIRELESS TECHNOLOGIES. Tenant shall not
utilize any wireless Electronic Services equipment (other than usual and
customary cellular telephones), including antennae and satellite receiver
dishes, within the Tenant's premises, within the Building or attached to the
outside walls or roof of the Building, without Landlord's prior written
consent. Such consent may be conditioned in such a manner so as to protect
Landlord's financial interests and the interests of the Building, and the other
tenants therein, in a manner similar to the arrangements described in the
immediately preceding paragraphs.
27.10 LIMITATION OF LIABILITY FOR EQUIPMENT INTERFERENCE. In the event
that Electronic Services equipment, Lines and facilities or satellite and
antennae equipment of any type installed by or at the request of Tenant within
the Tenant's premises, on the roof, or elsewhere within or on the Building
causes interference to equipment used by another party, Tenant shall cease
using such equipment, Lines and facilities or satellite and antennae equipment
until the source of the interference is identified and eliminated and Tenant
shall assume all liability related to such interference. Tenant shall
cooperate with Landlord and other parties, to eliminate such interference
promptly. In the event that Tenant is unable to do so, Tenant will substitute
alternative equipment which remedies the situation. If such interference
persists, Tenant shall, at Landlord's sole discretion, remove such equipment.
ARTICLE XXVIII - MISCELLANEOUS
28.01 ENTIRE AGREEMENT. This Lease contains all of the agreements and
understandings relating to the leasing of the Premises and the obligations of
Landlord and Tenant in connection with such leasing. Landlord has not made,
and Tenant is not relying upon, any warranties, or representations, promises or
statements made by Landlord or any agent of Landlord, except as expressly set
forth herein. This Lease supersedes any and all prior agreements and
understandings between Landlord and Tenant and alone expresses the agreement of
the parties.
28.02 AMENDMENTS. This Lease shall not be amended, changed or modified
in any way unless in writing executed by Landlord and Tenant. Landlord shall
not have waived or released any of its rights hereunder unless in writing and
executed by Landlord.
28.03 SUCCESSORS. Except as expressly provided herein, this Lease and
the obligations of Landlord and Tenant contained herein shall bind and benefit
the successors and assigns of the parties hereto.
28.04 FORCE MAJEURE. Landlord shall incur no liability to Tenant with
respect to, and shall not be responsible for any failure to perform, any of
Landlord's obligations hereunder if such failure is caused by any reason beyond
the control of Landlord including, but not limited to, strike, labor trouble,
governmental rule, regulations, ordinance, statute or interpretation, or by
fire, earthquake, civil commotion, or failure or disruption of utility
services. The amount of time for Landlord to perform any of Landlord's
obligations shall be extended by the amount of time Landlord is delayed in
performing such obligation by reason of any force majeure occurrence whether
similar to or different from the foregoing types of occurrences.
28.05 SURVIVAL OF OBLIGATIONS. Any obligations of Tenant accruing prior
to the expiration of the Lease shall survive the expiration or earlier
termination of the Lease, and Tenant shall promptly perform all such
obligations whether or not this Lease has expired or been terminated.
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28.06 LIGHT AND AIR. No diminution or shutting off of any light, air or
view by any structure now or hereafter erected shall in any manner affect this
Lease or the obligations of Tenant hereunder, or increase any of the
obligations of Landlord hereunder.
28.07 GOVERNING LAW. This Lease shall be governed by, and construed in
accordance with, the laws of the State of Indiana.
28.08 SEVERABILITY. In the event any provision of this Lease is found to
be unenforceable, the remainder of this Lease shall not be affected, and any
provision found to be invalid shall be enforceable to the extent permitted by
law. The parties agree that in the event two different interpretations may be
given to any provision hereunder, one of which will render the provision
unenforceable, and one of which will render the provision enforceable, the
interpretation rendering the provision enforceable shall be adopted.
28.09 CAPTIONS. All captions, headings, titles, numerical references and
computer highlighting are for convenience only and shall have no effect on the
interpretation of this Lease.
28.10 INTERPRETATION. Tenant acknowledges that it has read and reviewed
this Lease and that it has had the opportunity to confer with counsel in the
negotiation of this Lease. Accordingly, this Lease shall be construed neither
for nor against Landlord or Tenant, but shall be given a fair and reasonable
interpretation in accordance with the meaning of its terms and the intent of
the parties.
28.11 INDEPENDENT COVENANTS. Each covenant, agreement, obligation or
other provision of this Lease to be performed by Tenant are separate and
independent covenants of Tenant, and not dependent on any other provision of
the Lease.
28.12 NUMBER AND GENDER. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include the appropriate number and gender, as the context may require.
28.13 TIME IS OF THE ESSENCE. Time is of the essence of this Lease and
the performance of all obligations hereunder.
28.14 JOINT AND SEVERAL LIABILITY. If Tenant comprises more than one
person or entity, or if this Lease is guaranteed by any party, all such persons
shall be jointly and severally liable for payment of rents and the performance
of Tenant's obligations hereunder. If Tenant comprises more than one person or
entity and fewer than all of the persons or entities comprising Tenant abandon
the Premises, Landlord, at its sole option, may treat the abandonment by such
person or entities as an event of default and exercise with respect to such
persons the rights and remedies provided in Article XV without affecting the
right or obligations of the persons or entities comprising Tenant which have
not abandoned the property.
28.15 EXHIBITS. Exhibits A (Outline of Premises), B (Work Letter
Agreement), C (Suite Acceptance Letter), D (Tenant Operations Inquiry), E (List
of Additional Insureds), F (Rules and Regulations), and G (Guaranty), and
Schedule 1 to Exhibit D (List of Permissible Hazardous Materials and
Quantities) are incorporated into this Lease by reference and made a part
hereof.
28.16 OFFER TO LEASE. The submission of this Lease to Tenant or its
broker or other agent, does not constitute an offer to Tenant to lease the
Premises. This Lease shall have no force and effect until (a) it is executed
and delivered by Tenant to Landlord and (b) it is fully reviewed and executed
by Landlord; provided, however, that, upon execution of this Lease by Tenant
and delivery to Landlord, such execution and delivery by Tenant, shall, in
consideration of the time and expense incurred by Landlord in reviewing the
Lease and Tenant's credit, constitute an offer by Tenant to lease the Premises
upon the terms and conditions set forth herein (which offer to Lease shall be
irrevocable for ten (10) business days following the date of delivery).
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28.17 WAIVER; NO COUNTERCLAIM; CHOICE OF LAWS. To the extent permitted
by applicable law, Tenant hereby waives the right to a jury trial in any action
or proceeding regarding this Lease and the tenancy created by this Lease. It
is mutually agreed that in the event Landlord commences any summary proceeding
for non-payment of Rent, Tenant will not interpose any counterclaim of whatever
nature or description in any such proceeding. In addition, Tenant hereby
submits to local jurisdiction in the State of Indiana and agrees that any
action by Tenant against Landlord shall be instituted in the State of Indiana
and that Landlord shall have personal jurisdiction over Tenant for any action
brought by Landlord against Tenant in the State of Indiana. To the extent
permitted by applicable law, Tenant hereby waives any and all rights of
redemption granted by any present or future laws.
28.18 ELECTRICAL SERVICE TO THE PREMISES. Anything set forth in Section
7.01 or elsewhere in this Lease to the contrary notwithstanding, electricity to
the Premises shall not be furnished by Landlord, but shall be furnished by the
approved electric utility company serving the Building. Landlord shall permit
Tenant to receive such service directly from such utility company at Tenant's
cost (except as otherwise provided herein) and shall permit Landlord's wire and
conduits, to the extent available, suitable and safely capable, to be used for
such purposes.
28.19 RIGHTS RESERVED BY LANDLORD. Landlord reserves the following
rights exercisable without notice (except as otherwise expressly provided to
the contrary in this Lease) and without being deemed an eviction or disturbance
of Tenant's use or possession of the Premises or giving rise to any claim for
set-off or abatement of Rent: (i ) to change the name or street address of the
Building; (ii) to install, affix and maintain all signs on the exterior and/or
interior of the Building; (iii) to designate and/or approve prior to
installation, all types of signs, window shades, blinds, drapes, awnings or
other similar items, and all internal lighting that may be visible from the
exterior of the Premises; (iv) to change the arrangement of entrances, doors,
corridors, elevators and/or stairs in the Building, provided no such change
shall materially adversely affect access to the Premises; (v) to grant any
party the exclusive right to conduct any business or render any service in the
Building, provided such exclusive right shall not operate to prohibit Tenant
from using the Premises for the purposes permitted under this Lease; (vi) to
prohibit the placement of vending or dispensing machines of any kind in or
about the Premises other than for use by Tenant's employees; (vii) to prohibit
the placement of video or other electronic games in the Premises; (viii) to
have access for Landlord and other tenants of the Building to any mail chutes
and boxes located in or on the Premises according to the rules of the United
States Post Office; (ix) to close the Building after normal business hours,
except that Tenant and its employees and invitees shall be entitled to
admission at all times under such rules and regulations as Landlord prescribes
for security purposes; (x) to install, operate and maintain security systems
which monitor, by close circuit television or otherwise, all persons entering
or leaving the Building; (xi) to install and maintain pipes, ducts, conduits,
wires and structural elements located in the Premises which serve other parts
or other tenants of the Building; but Landlord will use reasonable efforts to
minimize interference with Tenant's operations, however, Landlord shall have no
liability for any such interference unless resulting from the willful actions
of Landlord; and (xii) to retain at all times master keys or pass keys to the
Premises.
28.20 TENANT OPERATIONS INQUIRY. As a material inducement to Landlord to
enter into this Lease (i) Tenant has completed Exhibit D hereto, and (ii)
Tenant represents and warrants to Landlord that Exhibit D is true and correct
in all material respects and is not misleading.
28.21 GUARANTY. Simultaneously with execution and delivery of this
Lease, the Guarantors shall execute and deliver to Landlord the Guaranty in the
form and content of Exhibit G hereto.
ARTICLE XXIX - FLOOR LOAD LIMITS
29.01 FLOOR LOAD LIMITS. Tenant shall not place a load upon any floor of
the Premises exceeding the floor load per square foot area which it was
designed to carry and which is allowed by law. Landlord reserves the right to
prescribe the weight and position of all safes, business machines and
mechanical equipment in the Building. Such installations shall be placed and
maintained by Tenant, at Tenant's expense, in settings sufficient, in
Landlord's judgment, to absorb and prevent vibration, noise and annoyance to
occupants of the Building, the Project, if applicable, or any adjacent
property.
ARTICLE XXX - LANDLORD'S LIEN
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30.01 LANDLORD'S LIEN. INTENTIONALLY OMITTED
ARTICLE XXXI - UNIFORM COMMERCIAL CODE
31.01 UNIFORM COMMERCIAL CODE. INTENTIONALLY OMITTED
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IN WITNESS WHEREOF, the parties hereto have executed this lease as of the
date first above written.
LANDLORD:
---------
IP PROPERTIES, a Wyoming
Limited Liability Company
By: HRC-LLC, INC., a Wyoming
TENANT: corporation, its manager
------- By: /s/
Brightpoint North America, Inc. -----------------------------
an Indiana Corporation
------------------------------------ Its: Vice President
By: /s/ Xxxxxx X. Xxxxx -----------------------------
-------------------------------
Its: Vice President
-------------------------------
*ATTEST:
------------------------------------
------------------------------------
* Completion necessary only if Tenant's
organizational documents require dual signature.
37
ADDENDUM TO LEASE, dated March 31, 1998 between IP PROPERTIES, a
Wyoming Limited Liability Company, (hereinafter referred to as "Landlord"), and
Brightpoint North America, Inc., an Indiana Corporation (Hereinafter referred
to as "Tenant")
1. When Landlord's or Tenant's consent is required throughout this Lease,
said consent shall not be unreasonably withheld or delayed.
2. LATENT DEFECTS
--------------
Notwithstanding anything to the contrary contained herein, Tenant shall
not be required to take any corrective action with respect to any
condition or design which constitutes a latent defect in the Premises by
virtue of Tenant's acceptance of the Premises. If any latent defect
materially adversely affects Tenant's quiet enjoyment of the Premises,
constitutes a dangerous condition or is required to be correctedby law,
then Landlord will promptly undertake the corrective action at Landlord's
cost and such cost shall not become a part of the operating expenses of
the Building as relative to expenses for which Tenant is obligated to pay
its percentage share. Nothing contained in this paragraph shall be
construed to impose on Tenant or subject Tenant to any liability to any
third party for injury to property or persons arising out of latent
defects unless such latent defects were created by Tenant or its employees
, agents or contractors in the course of repair work or physical
improvements or alterations to the Premises performed by Tenant or its
employees, agents or contractors, in which case Tenant shall promptly
undertake the appropriate corrective action, at Tenant's sole cost and
expense. Nothing contained in this paragraph shall be construed to
impose on Landlord or subject Landlord to any liability to any third party
for injury to property or persons arising out of latent defects unless
such latent defects were created by Landlord or its agents, employees or
contractors.
3. Landlord shall provide 110 parking spaces in the area shown on Schedule 1
to this Addendum to Lease for Tenant's exclusive use for the duration of
the Lease, but Landlord shall have no duty to enforce such exclusive use
by Tenant.
4. OPERATING EXPENSE EXCLUSIONS. Notwithstanding anything herein to the
contrary, the following shall not be included as part of the Operating
Expenses:
1) The cost of repairs or restoration necessitated by condemnation.
2) Franchise taxes and income taxes of Landlord.
3) The cost of any item or items for which Landlord is reimbursed by
insurance or reimbursed by other tenants of the Building.
4) The cost of any electric current furnished separately to any other
tenant through metering.
5) Any cost stated in Operating Expenses representing an amount paid to
a corporation or entity which is controlled by or under common
control with Landlord which is in excess of the amounts
which would be paid in the absence of such relationship.
6) The cost of installing, operating and maintaining any specialty such
as observatory, broadcasting facility, luncheon club, athletic or
recreational club, theater or cafeteria.
7) The cost of correcting defects in construction of the Building, or
other part of the Premises.
8) Any insurance premium to the extent that Landlord is entitled to be
reimbursed therefor by Tenant pursuant to this Lease or by any other
occupant of the Building.
9) The cost of any architectural additions to the Building that result
in a larger building.
10) Capital expenditures for depreciable Building improvements,
structural repairs, tenant improvements or initial landscaping.
11) Expenditures and capital outlays to bring the Building into
compliance with the ADA or other similar act.
12) Any expenses resulting from the gross negligence of Landlord, its
agents, servants or employees.
13) Any bad-debt loss, rent loss or reserves for bad debts or rent loss.
14) All interest or penalties incurred as a result of Landlord's gross
negligence failing to pay any
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Operating Expenses, Insurance Expense or Property Taxes as the
same shall become due, unless such delay shall be caused by
Tenant or Tenant's agents.
15) Any and all costs associated with the operation of Landlord as
a limited liability company or other legal entity, as the same
are distinguished from the costs of operation of the Building
or Premises.
16) All charges for complying with laws, codes, regulations, or
ordinances relating to Hazardous Materials.
17) Any xxxx up of the cost of utilities as billed by the utility
service beyond a reasonable charge for administration, if
administration is actually performed.
5. NON-DISTURBANCE
---------------
At Tenant's written request, Landlord agrees to use diligent, commercially
reasonable efforts to obtain a Non-Disturbance Agreement from the holder
of any future Mortgage. Such Non-Disturbance Agreement may be embodied in
the Mortgagee's customary form of Subordination and Non-Disturbance
Agreement. If, after exerting diligent, commercially reasonable efforts,
Landlord is unable to obtain a Non-Disturbance Agreement from any such
holder, Landlord shall have no further obligation to Tenant with respect
thereto.
6. If there is a conflict between this Lease and the Rules and Regulations in
Exhibit F of this Lease, the Lease shall prevail.
7. The terms and conditions of this Lease shall be in full force and effect
upon Tenant taking possession of the Premises. However, the base rent due
and payable shall not begin until the Commencement Date as defined in
Section 1.05 of this Lease.
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EXHIBIT A
FLOOR PLAN OR LAYOUT OF PREMISES
(Approximately 23,990 Sq. Ft.)
(Office 20,112 Sq. Ft.)
(Warehouse 3,878 Sq. Ft.)
TENANT: BRIGHTPOINT NORTH AMERICA, INC., AN INDIANA CORPORATION
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EXHIBIT B
WORK LETTER AGREEMENT
[TENANT PERFORMS WORK]
This Work Letter Agreement ("Work Letter") is executed simultaneously with
that certain Lease (the "Lease") between Brightpoint North America, Inc., an
Indiana Corporation, as "Tenant", and IP PROPERTIES, a Wyoming Limited
Liability Company, as "Landlord", relating to demised premises ("Premises") at
the building commonly known as INDIANAPOLIS INDUSTRIALS (the "Building"), which
Premises are more fully identified in the Lease. Capitalized terms used
herein, unless otherwise defined in this Work Letter, shall have the respective
meanings ascribed to them in the Lease.
For and in consideration of the agreement to lease the Premises and the
mutual convenants contained herein and in the Lease, Landlord and Tenant hereby
agree as follows:
1. WORK. Tenant, at its sole cost and expense, shall perform, or cause
to be performed, the work (the "Work") in the Premises provided for in the
Approved Plans (as defined in Paragraph 2 hereof). Subject to Tenant's
satisfaction of the conditions specified in this Work Letter Agreement, Tenant
shall be entitled to Landlord's Contribution (as defined in Paragraph 8[b]
below.
2. PRE-CONSTRUCTION ACTIVITIES.
(a) On or before March 15, 1998, Tenant shall submit the following
information and items to Landlord for Landlord's review and approval:
(i) A detailed critical path construction schedule containing the major
components of the Work and the time required for each, including the scheduled
commencement date of construction of the Work, milestone dates and the
estimated date of completion of construction.
(ii) An itemized statement of estimated construction cost, including fees
for permits and architectural and engineering fees.
(iii) Evidence satisfactory to Landlord in all respects of Tenant's
ability to pay the cost of the Work as and when payments become due.
(iv) The names and addresses of Tenant's contractors (and said
contractor's subcontractors) and materialmen to be engaged by Tenant for the
Work (individually, a "Tenant Contractor," and collectively, "Tenant's
Contractors"). Landlord has the right to approve or disapprove all or any one
or more of Tenant's Contractors. Landlord may, at its election, designate a
list of approved contractors for performance of those portions of work
involving electrical, mechanical, plumbing, heating, air conditioning or life
safety systems, from which Tenant must select its contractors for such
designated portions of work.
(v) Certified copies of insurance policies or certificates of insurance
as hereinafter described. Tenant shall not permit Tenant's Contractors to
commence work until the required insurance has been obtained and certified
copies of policies or certificates have been delivered to Landlord.
(vi) Payment and performance bonds for all of Tenant's Contractors naming
Landlord (or an agent, designee or representative appointed by Landlord's
written notice to Tenant given prior to Tenant's procurement of paid bonds) as
dual obligee.
(vii) The Plans (as hereinafter defined) for the Work, which Plans shall
be subject to Landlord's approval in accordance with Paragraph 2(b) below.
Tenant will update such information and items by notice to Landlord of any
changes.
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(b) As used herein the term "Approved Plans" shall mean the Plans (as
hereinafter defined), as and when approved in writing by Landlord. As used
herein, the term "Plans" shall mean the full and detailed architectural and
engineering plans and specifications covering the Work (including, without
limitation, architectural, mechanical and electrical working drawings for the
Work). The Plans shall be subject to Landlord's approval and the approval of
all local governmental authorities requiring approval of the work and/or the
Approved Plan. Landlord shall give its approval or disapproval (giving general
reasons in case of disapproval) of the Plans within three (3) days after their
delivery to Landlord. Landlord agrees not to unreasonably withhold its
approval of said Plans; provided, however, that Landlord shall not be deemed to
have acted unreasonably if it withholds its approval of the Plans because, in
Landlord's reasonable opinion: the Work as shown in the Plans is likely to
adversely affect Building systems, the structure of the Building or the safety
of the Building and/or its occupants; the Work as shown on the Plans might
impair Landlord's ability to furnish services to Tenant or other tenants; the
Work would increase the cost of operating the Building; the Work would violate
any governmental laws, rules or ordinances (or interpretations thereof); the
Work contains or uses hazardous or toxic materials or substances; the Work
would adversely affect the appearance of the Building; the Work might adversely
affect another tenant's premises; or the Work is prohibited by any mortgage or
trust deed encumbering the Building. The foregoing reasons, however, shall not
be exclusive of the reasons for which Landlord may withhold consent, whether or
not such other reasons are similar or dissimilar to the foregoing. If Landlord
notifies Tenant that changes are required to the final Plans submitted by
Tenant, Tenant shall, within three (3) business days thereafter, submit to
Landlord, for its approval, the Plans amended in accordance with the changes so
required. The Plans shall also be revised, and the Work shall be changed, all
at Tenant's cost and expense, to incorporate any work required in the Premises
by any local governmental field inspector. Landlord's approval of the Plans
shall in no way be deemed to be (i) an acceptance or approval of any element
therein contained which is in violation of any applicable laws, ordinances,
regulations or other governmental requirements, or (ii) an assurance that work
done pursuant to the Approved Plans will comply with all applicable laws (or
with the interpretations thereof) or satisfy Tenant's objectives and needs.
(c) No Work shall be undertaken or commenced by Tenant in the Premises
until (i) Tenant has delivered, and Landlord has approved, all items set forth
in Paragraph 2(a) above, (ii) all necessary building permits have been applied
for and obtained by Tenant, and (iii) proper provision has been made by Tenant
for payment in full of the cost of the Work, which is satisfactory to Landlord
and which, if applicable, shall be in the form of the construction escrow
referred to in Paragraph 9 hereof or an irrevocable and unconditional letter of
credit issued by a bank acceptable to Landlord, which letter of credit shall be
satisfactory in all respects by Landlord.
(d) Tenant agrees to use its best efforts to obtain or cause to be
obtained a "no-lien" contract from each of Tenant's Contractors. Each such
no-lien Tenant's Contract shall be recorded in the Office of the Recorder of
Deeds of the county in which the Premises is located within 10 days after the
execution of such contract, and all subcontractors under each of such contracts
shall be given a notice of such no-lien contract before any labor or materials
is furnished by such subcontractor. If Tenant is unable to obtain or cause to
be obtained a no-lien contract from any proposed Tenant Contractor, Tenant
shall give written notice of such fact to Landlord and Landlord shall have the
right to disapprove the Tenant Contract with such Tenant Contractor, which
disapproval shall be deemed to be reasonable in all respects.
3. DELAYS. In the event Tenant fails to deliver or deliver in sufficient
and accurate detail the information required under Paragraph 2 above on or
before the respective dates specified in said Paragraph 2, or in the event
Tenant, for any reason, fails to complete the Work on or before the
Commencement Date, Tenant shall be responsible for Rent and all other
obligations set forth in the Lease from the Commencement Date regardless of the
degree of completion of the Work on such date, and no such delay in completion
of the Work shall relieve Tenant of any of its obligations under the Lease.
4. CHARGES AND FEES. INTENTIONALLY OMITTED
5. CHANGE ORDERS. All changes to the Approved Plans requested by Tenant
must be approved by Landlord in advance of the implementation of such changes
as part of the Work. All delays caused by Tenant-initiated change orders,
including, without limitation, any stoppage of work during the change order
review process,
42
are solely the responsibility of Tenant and shall cause no delay in the
commencement of the Lease or the Rent and other obligations therein set forth.
All increases in the cost of the Work resulting from such change orders shall
be borne by Tenant.
6. STANDARDS OF DESIGN AND CONSTRUCTION AND CONDITIONS OF TENANT'S
PERFORMANCE. All work done in or upon the Premises by Tenant shall be done
according to the standards set forth in this Paragraph 6, except as the same
may be modified in the Approved Plans approved by or on behalf of Landlord and
Tenant.
(a) Tenant's Approved Plans and all design and construction of the Work
shall comply with all applicable statutes, ordinances, regulations, laws, codes
and industry standards, including, but not limited to, requirements of
Landlord's fire insurance underwriters.
(b) Tenant shall, at its own cost and expense, obtain all required
building permits and occupancy permits. Tenant's failure to obtain such
permits shall not cause a delay in the commencement of the Lease Term or the
obligation to pay Rent or any other obligations set forth in the Lease.
(c) Tenant's Contractors shall be licensed contractors, possessing good
labor relations, capable of performing quality workmanship and working in
harmony with Landlord's contractors and subcontractors and with other
contractors and subcontractors in the Building. All work shall be coordinated
with any other construction or other work in the Building in order not to
adversely affect construction work being performed by or for Landlord or its
tenants.
(d) Landlord shall have the right, but not the obligation, to perform, on
behalf of and for the account of Tenant, subject to reimbursement by Tenant,
any work which pertains to patching of the Work and other work in the Building.
(e) Tenant shall use only new, first-class materials in the Work, except
where explicitly shown in the Approved Plans, All Work shall be done in a good
and workmanlike manner. Tenant shall obtain contractors' warranties of at
least one (1) year duration from the completion of the Work against defects in
workmanship and materials on all work performed and equipment installed in the
Premises as part of the Work.
(f) Tenant and Tenant's Contractors shall make all efforts and take all
steps appropriate to assure that all construction activities undertaken comport
with the reasonable expectations of all tenants and other occupants of a
fully-occupied (or substantially fully occupied) first-class office building
and do not unreasonably interfere with the operation of the Building or with
other tenants and occupants of the Building. In any event, Tenant shall comply
with all reasonable rules and regulations existing from time to time at the
Building. Tenant and Tenant's Contractors shall take all precautionary steps
to minimize dust, noise and construction traffic, and to protect their
facilities and the facilities of others affected by the Work and to properly
police same. Construction equipment and materials are to be kept within the
Premises and delivery and loading of equipment and materials shall be done at
such locations and at such time as Landlord shall direct so as not to burden
the construction or operation of the Building. If and as required by Landlord,
the Premises shall be sealed off from the balance of the office space on the
floor(s) containing the Premises so as to minimize the dispersement of dirt,
debris and noise.
(g) Landlord shall have the right to order Tenant or any of Tenant's
Contractors who violate the requirements imposed on Tenant or Tenant's
Contractors in performing work to cease work and remove its equipment and
employees from the Building. No such action by Landlord shall delay the
commencement of the Lease or the obligation to pay Rent or any other
obligations therein set forth.
(h) Utility costs or charges for any service (including HVAC, hoisting or
freight elevator and the like) to the Premises shall be the responsibility of
Tenant from the date Tenant is obligated to commence or commences the Work and
shall be paid for by Tenant at Landlord's standard rates then in effect.
Tenant shall apply and pay for all utility meters required. Tenant shall pay
for all support services provided by Landlord's contractors at Tenant's request
or at Landlord's discretion resulting from breaches or defaults by Tenant under
this Work Letter Agreement. All use of freight elevators is subject to
scheduling by Landlord and the rules and regulations of the
3
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Building. Tenant shall arrange and pay for removal of construction debris and
shall not place debris in the Building's waste containers. If required by
Landlord, Tenant shall sort and separate its waste and debris for recycling
and/or environmental law compliance purposes.
(i) Tenant shall permit access to the Premises, and the Work shall be
subject to inspection, by Landlord and Landlord's architects, engineers,
contractors and other representatives, at all times during the period in which
the Work is being constructed and installed and following completion of the
Work.
(j) Tenant shall proceed with its work expeditiously, continuously and
efficiently, and shall use its best efforts to complete the same on or before
sixty (60) days after the date Landlord tenders possession of the Premises to
Tenant for the construction of the Work. Tenant shall notify Landlord upon
completion of the Work and shall furnish Landlord and Landlord's title
insurance company with such further documentation as may be necessary under
Paragraphs 8 and 9 below.
(k) Tenant shall have no authority to deviate in a material manner as
reasonably determined by Landlord from the Approved Plans in performance of the
Work, except as authorized by Landlord and its designated representative in
writing. Tenant shall furnish to Landlord "as-built" drawings of the Work
within thirty (30) days after completion of the Work.
(l) Landlord shall have the right at Landlord's sole expense to run
utility lines, pipes, conduits, duct work and component parts of all mechanical
and electrical systems where necessary or desirable through the Premises, to
repair, alter, replace or remove the same, so long as Tenant's work is not
materially disrupted and to require Tenant to install and maintain proper
access panels thereto.
(m) Tenant shall impose on and enforce all applicable terms of this Work
Letter Agreement against Tenant's architect and Tenant's Contractors.
7. INSURANCE AND INDEMNIFICATION.
(a) In addition to any insurance which may be required under the Lease,
Tenant shall secure, pay for and maintain or cause Tenant's Contractors to
secure, pay for and maintain during the continuance of construction and
fixturing work within the Building or Premises, insurance in the following
minimum coverages and the following minimum limits of liability:
(i) Worker's Compensation and Employer's Liability Insurance with limits
of not less than $500,000.00, or such higher amounts as may be required from
time to time by any Employee Benefit Acts or other statutes applicable where
the work is to be performed, and in any event sufficient to protect Tenant's
Contractors from liability under the aforementioned acts.
(ii) Comprehensive General Liability Insurance (including Contractors'
Protective Liability) in an amount not less than $1,000,000.00 per occurrence,
whether involving bodily injury liability (or death resulting therefrom) or
property damage liability or a combination thereof with a minimum aggregate
limit of $2,000,000.00, and with umbrella coverage with limits not less than
$5,000,000.00. Such insurance shall provide for explosion and collapse,
completed operations coverage and broad form blanket contractual liability
coverage and shall insure Tenant's Contractors against any and all claims for
bodily injury, including death resulting
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therefrom, and damage to the property of others and arising from its operations
under the contracts whether such operations are performed by Tenant's
Contractors or by anyone directly or indirectly employed by any of them.
(iii) Comprehensive Automobile Liability Insurance, including the
ownership, maintenance and operation of any automotive equipment, owned, hired,
or non-owned in an amount not less than $500,000.00 for each person in one
accident, and $1,000,000.00 for injuries sustained by two or more persons in
any one accident and property damage liability in an amount not less than
$1,000,000.00 for each accident. Such insurance shall insure Tenant's
Contractors against any and all claims for bodily injury, including death
resulting therefrom, and damage to the property of others arising from its
operations under the contracts, whether such operations are performed by
Tenant's Contractors, or by anyone directly or indirectly employed by any of
them.
(iv) "All-risk" builder's risk insurance upon the entire Work to the full
insurable value thereof. This insurance shall include the interests of
Landlord and Tenant (and their respective contractors and subcontractors of any
tier to the extent of any insurable interest therein) in the Work and shall
insure against the perils of fire and extended coverage and shall include
"all-risk" builder's risk insurance for physical loss or damage including,
without duplication of coverage, theft vandalism and malicious mischief. If
portions of the Work are stored off the site of the Building or in transit to
said site are not covered under said "all-risk" builder's risk insurance, then
Tenant shall effect and maintain similar property insurance on such portions of
the Work. Any loss insured under said "all-risk" builder's risk insurance is
to be adjusted with Landlord and Tenant and made payable to Landlord, as
trustee for the insureds, as their interests may appear.
All policies (except the worker's compensation policy) shall be endorsed to
include as additional insured parties the parties listed on, or required by,
the Lease, Landlord's contractors, Landlord's architects, and their respective
beneficiaries, partners, directors, officers, employees and agents, and such
additional persons as Landlord may designate. The waiver of subrogation
provisions contained in the Lease shall apply to all insurance policies (except
the workmen's compensation policy) to be obtained by Tenant pursuant to this
paragraph. The insurance policy endorsements shall also provide that all
additional insured parties shall be given thirty (30) days' prior written
notice of any reduction, cancellation or non-renewal of coverage (except that
ten (10) days' notice shall be sufficient in the case of cancellation for
non-payment of premium) and shall provide that the insurance coverage afforded
to the additional insured parties thereunder shall be primary to any insurance
carried independently by said additional insured parties. Additionally, where
applicable, each policy shall contain a cross-liability and severability of
interest clause.
(b) Without limitation of the indemnification provisions contained in the
Lease, to the fullest extent permitted by law Tenant agrees to indemnify,
protect, defend and hold harmless Landlord, the parties listed, or required by,
the Lease to be named as additional insureds, Landlord's contractors,
Landlord's architects, and their respective beneficiaries, partners, directors,
officers, employees and agents, from and against all claims, liabilities,
losses, damages and expenses of whatever nature arising out of or in connection
with the Work or the entry of Tenant or Tenant's Contractors into the Building
and the Premises, including, without limitation, mechanic's liens, the cost of
any repairs to the Premises or Building necessitated by activities of Tenant or
Tenant's Contractors, bodily injury to persons (including, to the maximum
extent provided by law, claims arising under the Indiana Structural Work Act)
or damage to the property of Tenant, its employees, agents, invitees, licenses
or others. It is understood and agreed that the foregoing indemnity shall be
in addition to the insurance requirements set forth above and shall not be in
discharge of or in substitution for same or any other indemnity or insurance
provision of the Lease.
8. LANDLORD'S CONTRIBUTION; EXCESS AMOUNTS.
(a) Upon completion of the Work, Tenant shall furnish Landlord with full
and final waivers of liens and contractors' affidavits and statements, in such
form as may be required by Landlord, Landlord's title insurance company and
Landlord's construction or permanent lender, if any, from all parties
performing labor or supplying materials or services in connection with the Work
showing that all of said parties have been compensated in full and waiving all
liens in connection with the Premises and Building. Tenant shall submit to
Landlord a detailed breakdown of Tenant's total construction costs, together
with such evidence of payment as is reasonably satisfactory to Landlord.
(b) Upon completion of the Work and Tenant's satisfaction of all
requirements set forth in this Work Letter Agreement, Landlord shall make a
dollar contribution in the amount of $0.00 (Landlord's Contribution") (which is
$0.00 per square foot of Rentable Area of the Premises) for application to the
extent thereof to the cost of the Work. If the cost of the Work exceeds
Landlord's Contribution, Tenant shall have sole responsibility for the payment
of such excess cost. If the cost of the Work is less than Landlord's
Contribution, Tenant shall not be entitled to any payment or credit for such
excess amount. Notwithstanding anything herein to
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the contrary, Landlord may deduct from Landlord's Contribution any amounts due
Landlord or its architects or engineers under this Work Letter before disbursing
any other portion of Landlord's Contribution. Landlord shall be entitled to a
payment of 5% of the actual cost of the construction costs as submitted by
Tenant's contractor performing the work. This payment is for Landlord's
coordination of the activities associated with completion of Tenant's space,
including, but not limited to, the plan review and coordination of Tenant's
contractors and Landlord's contractors, if applicable.
9. CONSTRUCTION ESCROW. INTENTIONALLY OMITTED
10. MISCELLANEOUS.
(a) If the Plans for the Work require the construction and installation of
more fire hose cabinets or telephone/electrical closets than the number
regularly provided by Landlord in the core of the Building in which the
Premises are located, Tenant agrees to pay all costs and expenses arising from
the construction and installation of such additional fire hose cabinets or
telephone/electrical closets.
(b) Time is of the essence of this Work Letter Agreement.
(c) Any person signing this Work Letter Agreement on behalf of Landlord
and Tenant warrants and represents he has authority to sign and deliver this
Work Letter Agreement and bind the party on behalf of which he has signed.
(d) If Tenant fails to make any payment relating to the Work as required
hereunder, Landlord, at its option, may complete the Work pursuant to the
Approved Plans and continue to hold Tenant liable for the costs thereof and all
other costs due to Landlord. Tenant's failure to pay any amounts owed by
Tenant hereunder when due or Tenant's failure to perform its obligations
hereunder shall also constitute a default under the Lease and Landlord shall
have all the rights and remedies granted to Landlord under the Lease for
nonpayment of any amounts owed thereunder or failure by Tenant to perform its
obligations thereunder.
(e) Notices under this Work Letter shall be given in the same manner as
under the Lease.
(f) The liability of Landlord hereunder or under any amendment hereto or
any instrument or document executed in connection herewith (including, without
limitation, the Lease) shall be limited to and enforceable solely against
Landlord's interest in the Building.
(g) The headings set forth herein are for convenience only.
(h) This Work Letter sets forth the entire agreement of Tenant and
Landlord regarding the Work. This Work Letter may only be amended if in
writing, duly executed by both Landlord and Tenant.
(i) All amounts due from Tenant hereunder shall be deemed to be Rent due
under the Lease.
11. ON-SITE PROJECT MANAGER.
As a condition of Tenant's right to commence and perform the Work, Tenant
shall engage the services of an on-site project manager approved in advance by
and reasonably acceptable to Landlord, who will be charged with the task of
performing daily supervision of the Work. Such on-site manager shall be
familiar with all rules and regulations and procedures of the Building and all
personnel of the Building engaged directly or indirectly in the management,
operation and construction of the Building. Such on-site project manager shall
be accountable and responsible to Tenant and to Landlord and, where necessary,
shall serve as a liaison between Landlord and Tenant with respect to the Work.
The entire cost and expense of the on-site project manager shall be borne and
paid for by Tenant (subject to Tenant's right to use all or any part of
Landlord's Contribution to reimburse Tenant for the same.)
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12. EXCULPATION OF LANDLORD AND XXXXXXX.
Notwithstanding anything to the contrary contained in this Work Letter
Agreement, it is expressly understood and agreed by and between the parties
hereto that:
(a) The recourse of Tenant or its successors or assigns against Landlord
with respect to the alleged breach by or on the part of Landlord of any
representation, warranty, convenant, undertaking or agreement contained in this
Work Letter Agreement (collectively, "Landlord's Work Letter Undertakings")
shall extend only to Landlord's interest in the real estate of which the
Premises demised under this Lease Documents are a part (hereinafter,
"Landlord's Real Estate") and not to any other assets of Landlord or its
members;
(b) Except to the extent of Landlord's interest in Landlord's Real Estate,
no personal liability or personal responsibility of any sort with respect to
any of Landlord's Work Letter Undertakings or any alleged breach thereof is
assumed by, or shall at any time be asserted or enforceable against, Landlord,
Xxxxxxx Capital Management Corporation, HRC-LLC, Inc., Xxxxxxx Properties Ltd.,
or Xxxxxxx Properties of Indiana Ltd., or against any of their respective
directors, officers, employees, agents, constituent partners, beneficiaries,
trustees or representatives.
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of this
31st day of March, 1998.
LANDLORD:
IP PROPERTIES, a Wyoming
Limited Liability Company
By:
HRC-LLC, INC., a Wyoming
corporation, its manager
By: /s/
-------------------------
Its: Vice President
-------------------------
TENANT:
Brightpoint North America, Inc.,
an Indiana Corporation
By: /s/ Xxxxx Xxxxx
-------------------------------
Its: Vice President
-------------------------------
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EXHIBIT C
SUITE ACCEPTANCE AGREEMENT
BUILDING NAME/ADDRESS: 0000 XXXXXXXX XXXX., XXXXXXXXXXXX, XXXXXXX 00000
TENANT NAME: BRIGHTPOINT NORTH AMERICA, INC. AN INDIANA CORPORATION
TENANT CODE: SUITE NUMBER: 6049
----------------------------------
MANAGEMENT'S TENANT CONTACT: XX. XXXXX XXXXX PHONE:
--------------------
Gentlemen:
As a representative of the above referenced tenant, I/we have physically
inspected the suite noted above and its improvements with Xxx Xxxxxxx, a
representative of Xxxxxxx Properties of Indiana Ltd. (name of HPL Corporation).
I/we accept the suite improvements as to compliance with all the requirements
indicated in our lease, also including the following verified information
below:
Lease Commencement Date: 4/1/98, Occupancy Date 4/1/98**
Lease Rent Start Date*:4/1/98, Actual Rent Start*: 4/1/98
Lease Expiration Date: 12/31/99, Actual Expiration Date: 12/31/99
Date Keys Delivered:
------------------------------
Items requiring attention: Tenant accepts Premises in "as-is" condition.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
*If these dates are not the same, attach documentation.
** Occupancy before the April 1, 1998 commencement date is under the same
terms and conditions as defined in the
Lease.
NOTE: This inspection is to be made prior to tenant move-in.
Very truly yours,
Brightpoint North America, Inc.
an Indiana Corporation
By: /s/ Xxxxx Xxxxx
----------------------------------
Its: Vice President
----------------------------------
Date: 3/30/98
----------------------------------
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Distribution
Tenant
Tenant Lease File
Leasing Manager: _____________________________
HPL Document Control: _____________________________
Regional Construction Manager: _____________________________
Regional Engineering Manager: _____________________________
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EXHIBIT D
TENANT OPERATIONS
INQUIRY FORM
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SCHEDULE 1 TO EXHIBIT D
LIST OF PERMISSIBLE
HAZARDOUS MATERIALS AND QUANTITIES
CHEMICAL/PRODUCT MAXIMUM QUANTITY
---------------- ----------------
NONE NONE
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EXHIBIT E
ADDITIONAL INSUREDS
Additional insureds pursuant to the requirements outlined in Article X of the
Lease:
IP Properties, a Wyoming Limited Liability Company;
HRC-LLC, Inc., a Wyoming corporation;
Xxxxxxx Capital Management Corporation, an Illinois corporation;
Xxxxxxx Properties Ltd., an Illinois corporation;
Xxxxxxx Properties of Indiana Ltd., an Indiana corporation;
and their respective members, owners, agents and employees.
The Insurance Certificate should be sent to:
Xxxxxxx Properties of Indiana Ltd.
0000 Xxxx 00xx Xxxxxx, Xxxxx X
Xxxxxxxxxxxx, XX 00000
Attn: Property Manager
52
EXHIBIT F
RULES AND REGULATIONS
0.0.1 No storage outside the Premises of any material, pallets, disabled
vehicles, showcases or other items will be permitted, including but not limited
to trash, except in containers approved by Landlord. Tenant, its officers,
agents, servants and employees shall not allow anything to remain in any common
area passageway, hallway, stairway, sidewalk, court, corridor, ramp, entrance,
exit, loading area, or other area outside the Premises, or permit such areas to
be used at any time except for ingress or egress of Tenant, its officers,
agents, servants, employees, patrons, licensees, customers, visitors or
invitees. Common utility closets, telephone closets, and other such closets,
rooms and areas shall be used only for the purposes and in the manner
designated by Landlord, and may not be used by Tenant, or its contractors,
agents, employees, or other parties without Landlord's prior written consent.
0.0.2 The movement of furniture, equipment, machines, merchandise or
materials within, into or out of the Premises or the Building not in the
ordinary course of Tenant's business as permitted herein, shall be restricted
to time, method and routing of movement as determined by Landlord upon request
from Tenant and Tenant shall assume all liability and risk to property, the
Premises, the Building and, if applicable, the Project in such movement. The
movement of furniture, equipment, machines, merchandise or materials within,
into or out of the Premises in the ordinary course of Tenant's permitted
business shall also be at Tenant's sole risk and responsibility and shall be
conducted in such a fashion as not to cause damage or injury to the Premises or
the Building or to disturb other occupants thereof. Tenant shall not move
furniture, machines, equipment, merchandise or materials within, into or out of
the Premises or the Building not in the ordinary course of Tenant's permitted
business without having first obtained a written permit from Landlord
twenty-four (24) hours in advance. Safes and other heavy fixtures, equipment
or machines intended to be kept permanently in the Premises shall be moved into
the Premises or the Building only with Landlord's written consent and placed
where directed by Landlord.
0.0.3 Landlord will not be responsible for lost or stolen personal
property, equipment, money or any article taken from Premises, regardless of
how or when loss occurs.
0.0.4 Tenant, its officers, agents, servants and employees shall not
install or operate any refrigerating or HVAC apparatus or carry on any
mechanical operation without written permission of Landlord. Tenant shall give
Landlord prompt notice of all damage to or defects in HVAC equipment, plumbing,
electric facilities or any part of appurtenance of the Premises.
0.0.5 Tenant, its officers, agents, servants or employees shall not use
the Premises for housing, lodging or sleeping purposes or for the cooking or
preparation of food without written permission of Landlord.
0.0.6 Tenant, its officers, agents, servants, employees, patrons,
licensees, customers, visitors or invitees shall not bring into the Premises or
keep on Premises any fish, fowl, reptile, insect or animal without the prior
written consent of the Landlord.
0.0.7 No locks shall be placed on any door in the Building without the
prior written consent of Landlord. Landlord will furnish two keys to each lock
on doors in the Premises and Landlord, upon request of Tenant, shall provide
additional duplicate keys at Tenant's expense. Tenant, its officers, agents,
servants and employees shall, before leaving the Premises unattended, close and
lock all doors and shut off all lights, business equipment and machinery.
Damage resulting from failure to do so shall be paid by Tenant.
0.0.8 Tenant, its officers, agents, servants or employees shall do no
painting or decorating in the Premises; or xxxx, paint or cut into, drive nails
or screw into nor in any way deface any part of the Premises or the Building
without the prior written consent of Landlord. If Tenant desires signal,
communication, alarm or other utility or service connection installed or
changed, such work shall only be done at expense of Tenant, with the written
approval and under the direction of Landlord. Tenant, without the prior
written consent of Landlord, shall not lay linoleum or other similar floor
covering within the Premises. Tenant shall not install any antenna, satellite
dish or aerial wires, radio or television equipment or any other type of
equipment inside or outside of the Building,
53
without Landlord's prior approval in writing. No showcases, awnings or other
articles or projections shall be affixed to any part of the exterior of the
Building, without the prior written consent of Landlord.
0.0.9 Tenant, its officers, agents, servants and employees shall not
permit the operation of any musical or sound-producing instruments or device
which may be heard outside the Premises, or which may emanate electrical waves
or x-rays or other emissions which will be hazardous to health, well-being or
condition of persons or property.
0.0.10 All plate and other glass now in the Premises or Building which is
broken through cause attributable to Tenant, its officers, agents, servants,
employees, patrons, licensees, customers, visitors or invitees shall be
replaced by and at expense of Tenant under the direction of Landlord.
0.0.11 The plumbing facilities (including, without limitation, toilet
rooms, urinals, wash bowls, drains and sewers) shall not be used for any other
purpose than that for which they are constructed, and no foreign substance of
any kind shall be thrown therein, and the expense of any breakage, stoppage or
damage resulting from a violation of this provision shall be borne by Tenant,
who shall, or whose officers, employees, agents, servants, patrons, customers,
licensees, visitors or invitees shall, have caused it. Landlord shall not be
responsible for any damage due to stoppage, backup or overflow of the drains or
other plumbing fixtures.
0.0.12 All contractors and/or technicians performing work for Tenant
within the Premises, Building or Project shall be referred to Landlord for
written approval before performing such work. This shall apply to all work
including, but not limited to, installation of telephones, telegraph equipment,
electrical devices and attachments, and all installations affecting floors,
walls, windows, doors, ceilings, equipment or any other physical feature of the
Building, the Premises or the Project. None of this work shall be done by
Tenant without Landlord's prior written approval.
0.0.13 Neither Tenant nor any officer, agent, employee, servant, patron,
customer, visitor, licensee or invitee of any Tenant shall go upon the roof of
the Building, without the written consent of the Landlord.
0.0.14 Canvassing, soliciting, distribution of hand-bills or any other
written material peddling in the Building or the Project are prohibited, and
Tenant shall cooperate to prevent the same. Tenant shall not advertise the
business, profession or activities of Tenant in any manner which violates the
letter or spirit of any code of ethics adopted by any recognized association or
organization pertaining thereto, use the name of the Building for any purpose
other than that of the business address of Tenant or use any picture or
likeness of the Building or the Project name in any letterheads, envelopes,
circulars, notices, advertisements, containers or wrapping material without
Landlord's express consent in writing.
0.0.15 Tenant shall not conduct its business and/or control its officers,
agents, employees, servants, patrons, customers, licensees and visitors in such
a manner as to commit waste or suffer or permit waste to be committed in
Premises. Tenant shall not do or permit anything in or about the Premises that
is immoral, obscene, pornographic, disreputable or dangerous to life, limb or
property, or do any act tending to injure the reputation of the Project. No
activity creating dust or fumes that may be hazardous shall be performed in the
Premises except in an environment controlled by air-handling equipment properly
and lawfully designed and utilized, which shall be maintained and operated at
all times to prevent hazardous accumulations of pollutants in the atmosphere
within the Premises or Project.
0.0.16 Tenant shall not install in the Premises any equipment which uses a
substantial amount of electricity without the advance written consent of the
Landlord. The Tenant shall ascertain from the Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into
account the capacity of the electric wiring in the Building and the Premises
and the needs of other tenants in the Building and the Project and shall not
use more than such safe capacity. The Landlord's consent to the installation
of electric equipment shall not relieve the Tenant from the obligation not to
use more electricity than such safe capacity.
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0.0.17 Tenant shall not use, or permit any other party to use, the Premises
for any distress, fire, bankruptcy, close-out, "lost our lease" or
going-out-of-business sale or auction. Tenant shall not display any signs
advertising the foregoing anywhere in or about the Premises. This prohibition
shall also apply to Tenant's creditors.
0.0.18 Tenant agrees to park in only those parking stalls designated as
tenant parking. Tenant shall hold Landlord harmless for the removal and
charges related thereto when Tenant, or its employees, park in spaces
designated as reserved parking (other than reserved for Tenant), visitor
parking, handicapped parking, or red or yellow curb areas. Tenant shall not
park or allow to be kept any vehicle on the Premises, either company or
personnel, which is not being used on a daily basis.
0.0.19 Tenant shall not maintain armed security in or about the Premises
nor possess any weapons, explosives, combustibles or other hazardous devices in
or about the Building and/or Premises.
0.0.20 All of Tenant's signs shall: (i) be professionally designed,
prepared and installed, (ii) not advertise any product, (iii) comply with any
sign criteria developed by Landlord from time to time, and (iv) be subject to
all Applicable Laws and any covenants, conditions and restrictions applicable
to the Project or Building. Tenant shall maintain all signs hereunder in good
repair and sightly first class condition. Tenant shall not use strobe or
flashing lights in or on the Premises or in any signs therefor.
0.0.21 Tenant shall conduct its labor relations and relations with
employees so as to avoid strikes, picketing, and boycotts of, on or about the
Premises or Project. If any employees strike, or if picket lines or boycotts
or other visible activities objectionable to Landlord are established,
conducted or carried out against Tenant, other occupants of the Premises or
their employees, agents, transferees or contractors in or about the Premises or
Project, Tenant shall immediately close the Premises and remove or cause to be
removed all such occupants, employees, agents, transferees and contractors
until the dispute has been settled.
0.0.22 Upon expiration or earlier termination of this Lease, in addition
to the requirements under Article 24 of this Lease, Tenant shall ensure that:
a. All interior and exterior lights and bulbs are operational.
b. All exhaust, ceiling and overhead fans are operational.
c. Warehouse floor areas are broom swept and clean of all trash and
materials.
d. Warehouse floor areas are cleaned of oils, fluids and other foreign
materials.
e. All electrical, plumbing and other utilities which are terminated are
disconnected, capped and/or terminated according to applicable building
codes and all other governmental requirements.
f. All electrical and telecommunications conduit and wiring installed by
or for Tenant specifically for Tenant's equipment is removed to the
originating panel if Landlord so requires.
g. Overhead interior and exterior doors are operational and in good
condition.
h. Any bolts secured to the floor are cut off flush and sealed with epoxy.
i. Warehouse fencing or partitions are removed if Landlord so requires.
j. All furniture, trash and debris are removed.
k. All signs and pictures, posters, signage, stickers and all similar
items of Tenant and any other occupant of the Premises are removed from
all walls, windows, doors and all other interior and exterior surfaces
of the Premises and other locations of the Project.
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l. All carpet areas are vacuumed.
m. All uncarpeted office floors are swept, and any excess wax build-up on
tile and vinyl floors is properly removed.
n. All computer cable and conduit installed by or for Tenant is removed to
point of origin.
o. All windows and miscellaneous hardware are operational and in good
condition.
p. All HVAC and mechanical systems and equipment are operational and in
good condition.
q. Ceiling tiles, grid, light lenses, air grills and diffusers are in
place with no holes or stains.
r. There are no broken windows or other glass items.
s. Bathroom walls, floors, and fixtures are clean and in good condition.
t. All plumbing fixtures are intact, operational free of leaks and in good
condition.
u. All gutters and downspouts are undamaged and operational.
x. Xxxxx (internal and external) are clean and any holes are properly and
permanently patched.
w. All keys to all locks to or within the Premises, any key cards and
parking stickers, the combination to any vaults that Landlord permits or
requires Tenant to leave on the Premises, all plans and specifications
for all leasehold improvements made to the Premises, and all reports,
studies and other materials relating to Hazardous Materials that were
ever on the Premises, shall be turned over to Landlord.
x. If Tenant is the only occupant of the Building, all lawns have recently
been mowed and edged and shrubbery trimmed; all plants, trees and
shrubbery are intact and healthy; all lawn sprinkler equipment is
operational with no water leaks; and the roof is in good condition and
repair (in accordance with NRCA guidelines) with no apparent leaks.
0.0.23 Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or landlords, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of any other tenant or landlords, nor prevent Landlord from thereafter
enforcing any such Rules and Regulations against any or all of the tenants of
the Project.
0.0.24 These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease on premises in the Building
or the Project. Tenant shall be responsible for ensuring compliance with these
Rules and Regulations as they may be amended, by Tenant's employees and as
applicable, by Tenant, any other occupant of the Premises and their respective
agents, employees, invitees, transferees and contractors.
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EXHIBIT G
GUARANTY BY A CORPORATION
FOR VALUE RECEIVED, and in consideration for, and as an inducement to IP
PROPERTIES, a Wyoming Limited Liability Company, as Landlord, to enter into the
foregoing Lease dated March 31, 1998 (the "Lease"), with Brightpoint
North America, Inc. an Indiana Corporation, as Tenant, the undersigned
corporation Brightpoint, Inc. hereby absolutely and unconditionally guarantees
to Landlord, its successors and assigns, the prompt and full payment of all
rent and all other payments to be made by Tenant under this Lease, and the full
performance and observance by Tenant of all the other terms, covenants,
conditions and agreements therein provided to be performed and observed by
Tenant, for which the undersigned shall be jointly and severally liable with
Tenant. The undersigned hereby waives any notice of nonpayment, nonperformance
or nonobservance, or proof of notice or demand. The undersigned agrees that in
the event of a default by Tenant under the Lease, Landlord may proceed against
the undersigned before, after or simultaneously with proceeding against Tenant.
This Guaranty shall not be terminated, affected, or impaired in any manner by
reason of: (1) the assertion by Landlord against Tenant of any of the rights or
remedies reserved to Landlord pursuant to the provisions of the Lease; (2) the
commencement of summary or other proceedings against Tenant; (3) the failure of
Landlord to enforce any of its rights against Tenant; or (4) the granting by
Landlord of any extensions of time to Tenant. The undersigned further
covenants and agrees that: (1) the undersigned shall be bound by all the
provisions, terms, conditions, restrictions and limitations contained in the
Lease which are to be observed or performed by Tenant thereunder, the same as
if the undersigned were named therein as Tenant; and (2) this Guaranty shall be
absolute and unconditional and shall be in full force and effect with respect
to any amendment, addition, assignment, sublease transfer or other modification
of the Lease, whether or not the undersigned shall have knowledge or have been
notified of or agreed or consented thereto. If Landlord at any time is
compelled to take action, by legal proceedings or otherwise, to enforce or
compel compliance with the terms of this Guaranty, the undersigned shall, in
addition to any other rights or remedies to which Landlord may be entitled
hereunder or as a matter of law or in equity, pay to Landlord all costs,
including reasonable attorneys' fees, incurred or expended by Landlord in
connection therewith. In the event the Lease is disaffirmed by a Trustee in
Bankruptcy for Tenant, the undersigned agrees that it shall, at the election of
Landlord, either assume the Lease and perform all of the convenants, terms and
conditions of Tenant thereunder or enter into a new lease, which said new lease
shall be in form and substance identical to the Lease. All duties and
obligations of the undersigned pursuant to this Guaranty shall be binding upon
the successors and assigns of the undersigned. For purposes of this Guaranty,
the word "Tenant" shall include the successors and assigns of the undersigned.
This Guaranty shall be governed by and construed in accordance with the laws of
the State of Indiana.
The undersigned further agrees that, to the extent that Tenant makes a
payment or payments to Landlord or Landlord receives any proceeds of
collateral, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or otherwise
is required to be repaid to Tenant, its estate, trustee, receiver or any other
party, including, without limitation, under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such payment
or repayment, the obligations of Tenant or part thereof which has been paid,
reduced or satisfied by such amount shall be reinstated and continued in full
force and effect as of the date such initial payment, reduction or satisfaction
occurred. The undersigned shall defend and indemnify Landlord of and from any
claim or loss under this paragraph including Landlord's attorneys and paralegal
fees and expenses and other expenses in the defense of any such action or suit.
The undersigned waives and shall have no right of subrogation,
indemnification, reimbursement or exoneration with respect to the liabilities
of Tenant under the Lease or any rights of contribution from any other
guarantors of such liabilities.
Dated: March 31, 1998
-------------------------------
/s/ Xxxxxx X. Xxxxx
------------------------------------------------
Signature Title: Xxxxxx X. Xxxxx
Executive Vice President and General
Counsel - Brightpoint, Inc.
Corporate Address:
0000 Xxxxxxxxx Xxxxx
------------------------------------------------
57
________________________________________________
I, ______________________________________, a Notary Public in and for the
County of ____________________________________ in the State of
_____________________________________, do hereby certify that
______________________________________________, a(n)_________________
____________________ corporation, personally known to me to be the same person
whose name is subscribed to the foregoing instrument as such respective
officer, appeared before me this day in person and acknowledged that he/she
signed and delivered such instrument as his/her own free and voluntary act and
as the free and voluntary act of said corporation, for the uses and purposes
set forth therein.
GIVEN under my hand and notarial seal this ________________ day of
________________________, 19______.
_____________________________________________
Notary Public
My Commission Expires: ____________________
