EXHIBIT 10.1
DP Industrial, LLC,
STANDARD INDUSTRIAL LEASE For Landlord Use Only:
(NET-NET-NET) Building #: 285
L/A: GJS
Lease Preparation Date: May 28, 2004
Landlord: DP Industrial, LLC, a Delaware limited liability company, located at
0000 Xxxxxxxxx Xxxxxxxxx, X. X. Xxx 0000, Xxxx, Xxxxxx 00000
Tenant: Brightpoint North America, L.P., a Delaware limited partnership, with
its principal business offices located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000.
Trade Name (dba): Brightpoint North America, L.P.
1. LEASE TERMS
1.01. Premises: The Premises referred to in this Lease contain
approximately 159,500 square feet as shown on Exhibit "A" attached, together
with the non-exclusive right to use the Common Areas as set forth in Section
4.02., subject to the terms and conditions of this Lease, including the
Expansion Option contained in Section 43, any conditions and restrictions, and
Rules and Regulations of the Project (subject to the provisions of Section 24.01
hereof) in effect from time to time. The address of the Premises is: 0000
Xxxxxxx Xxxxx, Xxxx, Xxxxxx.
1.02. Project: The Project in which the Premises are located consist of
approximately fourteen and 77/100ths (14.77) acres of land and the building in
which the Premises are located including approximately 159,500 square feet
located on such land, as shown in Exhibit "A." Subject to Tenant's failure to
exercise the Expansion Option pursuant to the terms and conditions of Section
43, Landlord and Tenant acknowledge and agree that the Project herein described
is the Premises hereby leased by Landlord to Tenant.
1.03. Tenant's Notice Address: Tenant's Notice Address is the address
of the Leased Premises as defined in Section 1.01 unless otherwise specified
here: 000 Xxxxxxx Xxxxxxx, Xxxxxxxxxx, XX. 00000.
1.04. Landlord's Notice Address: P. O. Xxx 0000, Xxxx, Xxxxxx 00000, or
in the case of a notice sent by overnight carrier to Landlord, Landlord's notice
address is 0000 Xxxxxxxxx Xxxx., Xxxx, Xxxxxx 00000.
1.05. Tenant's Permitted Use: Storage, warehousing, assembly, light
manufacturing, service and distribution of wireless communication equipment and
related products in compliance with all applicable laws, Rules and Regulations
of the Project (subject to the provisions of Section 24.01 hereof) and this
Lease.
1.06. Lease Term: The Lease Term is for five (5) years and three (3)
months commencing on October 1, 2004 ("Lease Commencement Date") and expiring
five (5) years and three (3) months thereafter ("Initial Lease Term");Tenant
shall also have an Extension Option as provided for in Section 41, below.
1.07. Base Monthly Rent: Base Monthly Rent for the Initial Lease Term
shall be paid in accordance with the following schedule:
Period Base Monthly Rent Amount
----------------------------------------- --------------------------------------------------
October 1, 2004 through December 31, 2004 $0.00
January 1, 2005 through June 30, 2007 $47,052.50
July 1, 2006 through December 31, 2009 $47,052.50 plus a one time mid term CPI adjustment
not to exceed four percent (4%) per annum.
"CPI" defined: As used herein, "CPI" shall mean the Consumer Price
Index for the average of "all items" shown on the U.S. City Average for Urban
Wage Earners and Clerical Workers (including single Workers), all items, groups,
sub-groups and special groups of items as promulgated by the Bureau of Labor
Statistics of the U.S. Department of Labor. The CPI increase commencing July 1,
2006, as provided above shall not exceed four percent (4%) per annum and be
calculated by reference to the percentage change in the CPI for that month which
is three (3) months prior to July 1, 2006. In no event, however, shall the Base
Monthly Rent during the second thirty (30) month period (July 1, 2006 through
December 31, 2009) be less than the Base Monthly Rent of $47,052.50. Landlord
will give Tenant notice of such increase by written invoice, however, failure of
Landlord to give such notice shall not be construed as a waiver of the increase
and any such increase amount shall accrue to the Rent.
1.08. Security Deposit: [WAIVED])
1.09. Proportionate Share: Tenant's Proportionate Share as of the Lease
Commencement date is One Hundred percent (100%) based upon the total square
footage of the building within which the Premises are located in the Project and
the square footage of the Premises, but is subject to change if the Premises are
expanded pursuant to Section 43, below.
1.10. [INTENTIONALLY DELETED]
1.11. Tenant is entitled to vehicle parking spaces as provided in and
subject to the provisions of Section 8. of the Lease.
1.12. Tenant Improvements: Tenant Improvements to be performed in the
Premises, if any, will be performed in accordance with the terms and provisions
entitled "Landlord's Work" contained in Exhibits "B". Upon receipt of
construction plans approved by Tenant, Landlord will provide a mutually
agreeable construction schedule. Within fifteen (15) days after the completion
of the Tenant Improvements, representatives of Landlord and Tenant agree to
conduct a "walk through" inspection of the Premises and reasonably agree on any
remaining punchlist items to be completed after the Lease Commencement Date. Any
such remaining punchlist items shall be completed by Landlord within a
commercially reasonable period of time after the Lease Commencement Date.
Landlord represents and warrants that Landlord shall perform Landlord's Work in
a good and workmanlike fashion, in substantial conformance with the provisions
of Exhibits "B" attached, in compliance with all applicable laws and
regulations, and using new materials, and reasonably free of construction
defects. Upon receipt from Tenant of notice of any portion of Landlord's Work
which does not conform to the foregoing representation and warranty within the
two (2) year period commencing on the Lease Commencement Date, Landlord agrees
to promptly correct the same. Tenant understands and agrees that Tenant must
provide written notice to Landlord within the two (2) year period specified
above and that the representation and warranty shall expire on the second (2nd)
anniversary of the Lease Commencement Date. Except as expressly set forth
hereinabove in this Section 1.12, nothing contained in this Lease, including any
Exhibits hereto, shall be interpreted or is intended in any way as a
representation or warranty by Landlord as to the quantity, quality, or fitness
of the Premises or Landlord's Work, including, without limitation, a fitness for
any particular purpose, each of which is expressly disclaimed by Landlord
hereunder. Thereafter during the Lease Term, except as set forth in this Section
1.12 above, Landlord will be under no obligation to alter, change, decorate or
improve the Premises.
Tenant has the option to complete the Tenant Improvements utilizing
their own vendor(s). Tenant will have up to twenty-four (24) months from
execution of this lease agreement to complete the Tenant Improvements. Prior to
commencement of the construction, Tenant will submit construction plans to the
Landlord for review and approval, which shall not be unreasonably withheld. Upon
completion of the Tenant Improvements, Tenant will submit an invoice to the
Landlord for reimbursement of the construction and management expenses (Exhibit
B). The Landlord will make the reimbursement payment within thirty (30) days of
receipt.
1.13. Guaranty: Tenant's obligations under this Lease shall be
unconditionally guaranteed by Brightpoint, Inc., an Indiana corporation,
pursuant to the terms of the Guaranty (Lease) in the form of Exhibit G attached
hereto and incorporated herein by this reference.
2. DEMISE AND POSSESSION
2.01. Landlord leases to Tenant and Tenant leases from Landlord the
Premises described in 1.01. By entering the Premises, subject to the provisions
of Section 1.12 above, Tenant acknowledges that it has examined the Premises and
accepts the Premises in their condition delivered on the Lease Commencement
Date. Subject to Tenant's failure to exercise its Expansion Option pursuant to
Section 43 hereof, Landlord expressly reserves its right to lease any other
space available in the Project to whom ever it wishes; provided, however, that
Landlord shall not lease any portion of the Project to any Person or entity
which conducts junk yard or smelting operations or in violation of applicable
zoning ordinances.
2.02. [INTENTIONALLY DELETED]
3. BASE MONTHLY RENT
3.01. Base Monthly Rent: On the first day of every calendar month of
the Lease Term commencing on the Lease Commencement Date, Tenant will pay,
without deduction or offset, prior notice or demand, Base Monthly Rent and
Additional Rent at the place designated by Landlord, except as otherwise set
forth herein. In the event that the Lease Term commences or ends on a day other
than the first day of a calendar month, a prorated amount of Base Monthly Rent
and Additional Rent shall be due on the first day of the first month following
the Lease Commencement Date or the final month of the Lease Term, as applicable,
and shall be calculated using the actual number of days in the particular a
month. In the event this Lease is to commence upon a date not ascertained on
execution, both parties agree to complete and execute a Commencement Date
Certificate in the form of Exhibit "E" within ten (10) days of the Lease
Commencement Date, if applicable.
3.02. [INTENTIONALLY DELETED]
3.03. Any installment of rent or any other charge payable which is not
paid within ten (10) days after it becomes due will be considered past due and
Tenant will pay to Landlord as Additional Rent a late charge equal to the
product of twelve percent (12%) per annum of such installment for each month or
fractional month transpiring from the date due until paid. A twenty-five dollar
($25.00) handling charge will be paid by Tenant to Landlord for each returned
check and, thereafter, Tenant will pay all future payments of rent or other
charges due by money order or cashier's check. If Tenant shall be served with
three (3) or more demands during the term of the Lease for the payment of past
due rent, any payments tendered thereafter to cure any default by Tenant shall
be made only by cashier's check.
3.04. The amount of the Base Monthly Rent includes projected
construction of Tenant's Improvements as indicated on Exhibits "B" attached. In
the event that Tenant requests Landlord to construct additional improvements,
such costs or expenses upon itemized notice by Landlord, shall be paid by Tenant
to Landlord.
4. COMMON AREAS
4.01. Definitions: "Common Areas": "Common Area" is defined as all
areas and facilities outside the Premises and within the exterior boundary line
of the Project that are provided and designated by Landlord for the
non-exclusive use of Landlord, Tenant and other lessees of the Project, if
applicable, and their respective employees, agents, customers and invitees.
Common Areas include, but are not limited to: all parking areas, loading and
unloading areas, trash areas, roadways, sidewalks, walkways, parkways,
driveways, corridors, landscaped areas and any restrooms used in common by
lessees.
4.02. Tenant, its employees, agents, customers and invitees have the
non-exclusive right (in common with other Tenants, Landlord, and any other
person granted use by Landlord) to use of the Common Areas. Tenant agrees to
abide by and conform to, and to cause its employees, agents, customers and
invitees to abide by and conform to all reasonable rules and regulations
established by Landlord subject to provisions of paragraph 24.
4.03. Landlord has the right, provided Tenant's use, enjoyment or
ingress or egress is not unreasonably interfered with, to: 1) make changes to
the Common Areas, including without limitation, changes in the location, size,
shape and number of driveways, entrances, parking spaces, parking areas,
ingress, egress, direction of driveways, entrances, corridors parking areas and
walkways; 2) close temporarily any of the Common Areas for maintenance purposes
so long as reasonable access to the Premises remains available; 3) add
additional buildings and improvements to the Common Areas; 4) use the Common
Areas while engaged in making additional improvements, repairs or alterations to
the Project or any portion thereof; do and perform any other acts or make any
other changes in, to or with respect to the Common Areas and Project as Landlord
may, in the exercise of sound business judgment, deem to be appropriate;
provided, however, that none of the foregoing shall materially or unreasonably
interfere with the Tenant's use or enjoyment of the Premises, the conduct of
Tenant's business from the Premises, or the Tenant's ingress or egress from the
Premises, except in the case of emergency or as required by governmental
authority.
4.04. As long as Tenant leases all of the Project as the Premises under
this Lease, Sections 4.01, 4.02 and 4.03 shall be waived and suspended unless an
expansion pursuant to Section 43. requires Landlord to access or use the Common
Area, provided any such access or use will not unreasonably interfere with
Tenant's use or enjoyment of the Premises.
5. ADDITIONAL RENT
5.01. All charges payable by Tenant other than Base Monthly Rent are
called "Additional Rent". Unless this lease provides otherwise, Additional Rent
is to be paid with the next monthly installment of Base Monthly Rent and is
subject to the provisions of 3.03. The term "rent" whenever used in this Lease
means Base Monthly Rent and Additional Rent.
5.02. Operating Costs
A. Except as excluded by 5.02 B. below, the term, "Operating Costs,"
means all costs and expenses of ownership, operation, maintenance, management,
repair and insurance incurred by Landlord for or with respect to the Project,
including, but not limited to, the following: (1) all supplies, materials, labor
and equipment, used in or related to the operation and maintenance of the
Project; (2) all utilities
related to the Common Areas, including but not limited to: water, electricity,
gas, telecommunications, heating, lighting, sewer, cable, and waste disposal
related to the maintenance or operation of the Project; (3) in addition to
Tenant's obligations under Article 13 of Lease, all air-conditioning and
ventilating costs related to the maintenance, repair, or operation of the
Project; (4) all labor, payroll, and employee costs incurred in managing,
maintaining, repairing, operating and insuring the Project, including, without
limitation, clerical, supervisory, and janitorial staff; (5) all maintenance,
maintenance supervision, management, environmental monitoring and service
agreements, including but not limited to, janitorial, security and trash
removal, related to the maintenance or operation of the Project; (6) all legal
and accounting costs and fees related to the ownership, maintenance, management,
and operation of the Project; (7) all insurance premiums, deductibles, and other
costs of fire, casualty, and liability coverage, rent abatement and earthquake
insurance and any other type of insurance related to the Project; (8) all
operation, maintenance and repair costs to the Common Areas, including but not
limited to, sidewalks, walkways, parkways, parking areas, loading and unloading
areas, trash areas, roadways, driveways, corridors, and landscaped area,
including for example, costs of resurfacing and re-striping parking areas; (9)
all maintenance and repair costs of the Project, including, without limitation,
building exteriors, restrooms used in common by tenants, signs and directories
of the Project, painting, caulking, asphalt maintenance and repair, and roof
maintenance and repair; (10) amortization (along with reasonable financing
charges) of capital improvements made to the Project which may be required by
any government authority, law, rule, code, or regulation, or which will improve
the operating efficiency of the Project; (11) and a two percent (2.0%) fee for
Landlord's management of the Project (2.0% of the Base Monthly Rent payable in
each calendar year). Notwithstanding anything contained in this Section 5.02A to
the contrary, Operating Costs shall not include: (i) leasing commissions,
attorneys fees and other expenses incurred in connection with leasing; (ii) cost
incurred in renovating or otherwise improving vacant space; (iii) costs and
fines or penalties incurred due to violation by Landlord of any law or
ordinance; (iv) any depreciation or amortization payments on mortgages; (v)
interest on debt or amortization payments on mortgages; (vi) all items and
services for which Tenant or other tenants reimburse Landlord outside of
Operating Costs; (vii) for repairs of other work due to fire, wind storm or
other casualty or condemnation, excluding the deductible to the extent not
covered by insurance; (viii) repairs that are the specific obligation of the
Landlord hereunder and not made reimbursable by Tenant hereby; (ix) any costs
and expenses to build the Expansion Premises; (x) Real Project Taxes; and (xi)
any costs or items considered capital of replacement improvements and equipment,
over and above the $90,361.00 referred to in Paragraph 5.02D. below, under
generally acceptable accounting principles consistently applied ("Capital
Items"), except for Capital Items performed or acquired to reduce Operating
Costs amortized over the useful life of such Capital Items consistent with
generally accepted accounting principals, with such amounts included as part of
the Operating Costs as and when so amortized.
B. Subject to the provisions of Paragraph 5.02A. above, Tenant shall
pay to Landlord Tenant's Proportionate Share of the Operating Costs as indicated
in 1.09. If there is a change in the square footage of either the Project or the
Premises during the term of this Lease the Proportionate Share of the Tenant
shall be adjusted accordingly. Such payment shall be paid by Tenant with and in
addition to the monthly payment of Base Monthly Rent. In the event Tenant elects
to pay Tenant's Prorata Share of actual Operating Costs as provided in Paragraph
5.02A. above, Tenant shall, if Landlord so elects, pay to Landlord on a monthly
basis, in advance, the amount which Landlord reasonably estimates to be Tenant's
Proportionate Share of the Operating Costs. In the event of such election by
Landlord, Landlord shall periodically determine Tenant's share of the actual
Operating Costs, and in the event that the amount which Tenant has paid to
Landlord on account of the estimated Operating Costs is less than his share of
such actual Operating Costs, Tenant shall pay such difference to Landlord on the
next rent payment date. In the event Tenant elects to pay Tenant's Prorata Share
of actual Operating Costs as provided in Paragraph 5.02A. above, in the event
that Tenant has paid to Landlord more than his share of such actual Operating
Costs, the amount of such difference shall be credited against Tenant's payments
of Operating Costs next due or if such period is at the end of the Lease term
the amount of any overpayment shall be
promptly refunded to Tenant. In the event Tenant elects to pay Tenant's Prorata
Share of actual Operating Costs as provided in Paragraph 5.02A. above, no later
than May 1 of each year during the Lease Term, Landlord shall provide Tenant
with an itemized statement which provides a detailed accounting of all Operating
Costs for the prior year (the "Annual Statement").
C. Systems Replacement Fee. Commencing on the Commencement Date of this
Lease and continuing for the Term of this Lease, Tenant shall pay to Landlord,
as part of Additional Rent, a non-variable monthly fee ("Systems Replacement
Fee") in the amount set forth in Section 5.02B, to compensate Landlord for the
useful life depletion of the following systems (the "Systems"); replacement of
the roof membrane, but not maintenance and repairs which are part of Operating
Expenses herein; asphalt for the parking lot, roadways, parkways and driveways
(including asphalt replacement or overlay) but excluding repairs, patching and
slurry sealing which are part of Operating Expenses herein; complete HVAC unit
replacement, but not repairs, maintenance, which are part of Tenant obligation
pursuant to Section 13.03 herein or Operating Expenses under Section 5.02. The
Systems Replacement Fee does not include insurance deductibles with respect to
the foregoing because of casualty or other insurable event and such deductibles
shall remain a part of Operating Expenses herein. The Systems Replacement Fee
shall not be subject to reconciliation by Landlord pursuant to Section 5.02A
above. Therefore, Tenant shall not be liable for the costs and expenses incurred
by Landlord for such Systems replacement which are in excess of the Systems
Replacement Fee, nor shall Landlord be liable for reimbursements to Tenant to
the extent the Systems Replacement Fee paid is more than the costs and expenses
actually incurred by Landlord to replace such Systems.
D. Failure by Landlord to provide Tenant with a statement by April 1st
of each year shall not constitute a waiver by Landlord of its right to collect
Tenant's share of Operating Costs or estimates for a particular calendar year,
Landlord's right to charge Tenant for such expenses in subsequent years is not
waived. Landlord confirms that Tenant has paid $90,361 to date as a System
Replacement Fee. Any charges to Tenant in the future for its pro-rata share of
expenses arising from the required replacement of any systems as stated in
paragraph 5.02 C shall only be made after the Tenant's pro-rata share exceeds
$90,361.
E. Tenant shall have sixty (60) days after receipt of each Annual
Statement to request in writing the opportunity to review Landlord's calculation
of and supporting records for the sums indicated thereon. Upon timely request
for review, Tenant may perform such review at a mutually convenient time at
Landlord's or its agent's offices, and such review shall be limited to such
information and supporting documents as kept and maintained by Landlord or its
agents in the ordinary course of business. Notwithstanding such review or any
dispute by Tenant as to the correctness of any statement, Tenant shall still pay
when due the amount shown as owing on the Annual Statement. If after such review
Tenant believes that any such calculations are in error and Landlord and Tenant
are unable to agree on the amount to be paid by Tenant, Tenant and Landlord
shall each designate a certified public accountant of their choosing and the two
accountants so chosen shall designate a third certified public accountant to
serve as arbitrator of the dispute. The arbitrator's decision as to the amount
to be paid by Tenant shall be binding upon the parties. Tenant shall bear all of
the expenses of review and arbitration incurred in determining the amount to be
paid by Tenant unless such review discloses an error accepted by Landlord or
determined by arbitration of more then five percent (5%) in which case Landlord
shall pay the costs of the arbitrator, if any, in the reasonable, out-of-pocket
expenses incurred by Tenant for its review.
5.03. Taxes
A. "Real Project Taxes" are: (i) any fee, license fee, license tax,
business license fee, commercial rental tax, levy, charge, assessment, penalty
or tax imposed by any taxing authority against the Project; (ii) any tax or fee
on Landlord's right to receive, or the receipt of, rent or income from the
Project or against Landlord's business of leasing the Project, (iii) any tax or
charge for fire protection,
streets, sidewalks, road maintenance, refuse or other services provided to the
Project by any governmental agency; (iv) any tax imposed upon this transaction,
or based upon a re-assessment of the Project due to a change in ownership or
transfer of all or part of Landlord's interest in the Project; (v) any charge or
fee replacing, substituting for, or in addition to any tax previously included
within the definition of real property tax; and (vi) with Tenant's prior
consent, which consent shall not be unreasonably withheld, the Landlord's cost
of any tax protest relating to any of the above. Real Project Taxes do not,
however, include Landlord's federal or state income, franchise, inheritance or
estate taxes.
B. Tenant shall pay to Landlord Tenant's Proportionate Share of the
Real Project Taxes that are due and payable during the Lease Term as indicated
in 1.09. Such payment shall be paid by Tenant annually upon being invoiced for
such taxes in addition to the monthly payment of Base Monthly Rent. Tenant
shall, if Landlord so elects and Tenant agrees, pay to Landlord on a monthly
basis, in advance, the amount which Landlord reasonably estimates to be Tenant's
Proportionate Share of the Real Project Taxes. In the event of such election by
Landlord, Landlord shall periodically determine Tenant's share of the actual
Real Project Taxes, and in the event that the amount which Tenant has paid to
Landlord on account of the Real Project Taxes is less than his share of such
actual Real Project Taxes, Tenant shall pay such difference to Landlord on the
next rent payment date. In the event that Tenant has paid to Landlord more than
his share of such actual Real Project Taxes, the amount of such difference shall
be credited against Tenant's payment of Real Project Taxes next due. If the
Lease term is expired then Landlord shall promptly refund any overpayment to
Tenant. If Tenant does not agree to the advance monthly payments specified
above, Tenant shall pay to Landlord on a quarterly basis, not later than thirty
(30) days in advance of each required quarterly installment, Tenant's
Proportionate Share of the Real Project Taxes. Landlord agrees that Tenant shall
have the right, at Tenant's sole cost and expense and upon written notice to
Landlord, to contest the legality or validity of any of the taxes which are to
be paid by Tenant pursuant to the foregoing provisions. In the event of any such
contest, failure on the part of Tenant to pay any such tax, prior to the
delinquency date thereof shall not constitute a default hereunder if Tenant
posts a bond, in a reasonable amount required by Landlord, but not to exceed one
hundred fifty percent (150%) of the disputed assessment. Tenant, upon the final
determination of such contest, shall immediately pay and discharge any judgment
rendered against it, together with all costs and charges incidental thereto.
Landlord further agrees at the request of Tenant, to execute, or join in the
execution of any instrument or documents necessary in connection with any such
contest, but at no expense to Landlord. Upon request of Tenant, Landlord shall
provide Tenant with copies of all invoices or statements which comprise the Real
Project Taxes.
C. Personal Property Taxes: Tenant will pay all taxes charged against
trade fixtures, furnishing, equipment or any other personal property belonging
to Tenant. Tenant will have personal property taxes billed separately from the
Project. If any of Tenant's personal property is taxed with the Project, Tenant
will pay Landlord the taxes for the personal property upon demand by Landlord.
5.04. Based on Tenant's Proportionate Share defined in 1.09, Tenant
agrees to pay as Additional Rent to Landlord its share of any parking charges,
utility surcharges, occupancy taxes, or any other costs resulting from the
statutes or regulations, or interpretations thereof, enacted by any governmental
authority in connection with the use or occupancy of the Project or the parking
facilities serving the Project, or any part thereof.
5.05. Landlord by completing this paragraph may elect to have Tenant
pay a monthly estimate of the Additional Rent due from Tenant of 6.73 cents per
square foot. Landlord shall make adjustments to this estimate based upon actual
costs and projected future costs. Landlord shall periodically determine the
balance between actual Additional Rent and Additional Rent paid by Tenant and
make adjustments in accordance with 5.02 and 5.03 above.
5.06. Tenant or its designee, at its sole cost and expense, shall have
the option in its name (or in the name of Landlord if required), to pursue
administrative and judicial procedures as may be necessary to contest and appeal
any assessment or valuation, and pay under protest any billing of real estate
taxes or assessments all or part of which are borne by Tenant under the terms of
this Lease. Landlord agrees to cooperate in all reasonable ways to further any
such procedure by Tenant or its designee. All contest proceedings shall be
conducted in good faith and with due diligence by Tenant or its designee and by
counsel, if any. A condition to Tenant's right to contest any real estate taxes
or assessments hereunder, Tenant shall provide reasonable assurances to Landlord
that the contesting of such taxes or assessments shall not result in any
interest, penalties, fines, or other charges against Landlord, the building or
the Project and that such contest shall not operate to permit any governmental
body or other party to levy against any part of the Project or otherwise bring
enforcement actions against Landlord with respect to such taxes or assessments.
If Landlord receives a refund, credit, or reduction of any portion of real
estate taxes or assessments all or part of which were borne by Tenant under the
terms of this Lease, then Landlord shall, at Tenant's option, either pay to
Tenant its pro rata share of such refund within thirty (30) days from its
receipt of same or credit Tenant's pro rata share of such refund to Tenant's
next monthly payment of Rent.
6. [INTENTIONALLY DELETED]
7. USE OF PREMISES: QUIET CONDUCT
7.01. The Premises may be used and occupied only for Tenant's Permitted
Use as shown in 1.05 and for no other purpose, without obtaining Landlord's
prior written consent, which consent shall not be unreasonably withheld or
delayed. Tenant will comply with all laws, ordinances, orders and regulations
affecting the Premises. Landlord represents that (i) the Premises are currently
zoned "IC" (industrial/commercial) ("Current Zoning Classification") and (ii) to
the best of Landlord's actual knowledge without any duty of inquiry, there are
currently no covenants, restrictions, or agreements affecting the Project and
there are no requirements imposed by the Current Zoning Classifications which
would prevent Tenant from utilizing the Premises for Tenant's Permitted Use
specified in Section 1.05 above. Tenant will not perform any act or carry on any
practices that may injure the Project or the Premises or be a nuisance or
menace, if there is another lessee of the Project, subject to Tenant's Expansion
Option under Section 43, Tenant shall not disturb the quiet enjoyment of other
lessees in the Project including but not limited to equipment which causes
vibration, use or storage of chemicals, or heat or noise which is not properly
insulated. Tenant will not cause, maintain or permit any outside storage on or
about the Premises. In addition, Tenant will not allow any condition or thing to
remain on or about the Premises which diminishes the appearance or aesthetic
qualities of the Premises and/or the Project or the surrounding property. The
keeping of a dog or other animal on or about the Premises is expressly
prohibited. So long as Tenant is not in default (after applicable grace, notice
and cure periods) under the terms of this Lease, Tenant shall have quiet
enjoyment of the Premises during the entire Lease Term.
7.02. As used in this section, the term "Hazardous Waste" means:
A. Those substances defined as "hazardous substances", "hazardous
materials", "toxic substances", "regulated substances", or "solid waste" in the
Toxic Substance Control Act, 15 U.S.C. Section 2601 et. seq., as now existing or
hereafter amended ("TSCA"), the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601 et. seq., as now
existing or hereafter amended ("CERCLA"), the Resource, Conservation and
Recovery Act of 1976, 42 U.S.C. Section 6901 et. seq., as now existing or
hereafter amended ("RCRA"), the Federal Hazardous Substances Act, 15 U.S.C.
Section 1261 et. seq., as now existing or hereafter amended ("FHSA"), the
Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et. seq., as
now existing or hereafter amended ("OSHA"), the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et. seq., as now existing or
hereafter amended
("HMTA"), and the rules and regulations now in effect or promulgated hereafter
pursuant to each law referenced above;
B. Those substances defined as "hazardous waste", "hazardous material",
or "regulated substances" in Nev. Rev. Xxxx. xx 000, 0000 Xxx. Xxxx. ch. 598 and
1989 Nev. Stat. ch 363, or in the regulations now existing or hereafter
promulgated pursuant thereto or in the Uniform Fire Code, 1988 edition;
C. Those substances listed in the United States Department of
Transportation table (49 CFR Section 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto); and
D. Such other substances, mixtures, materials and waste which are
regulated under applicable local, state or federal law, or which are classified
as hazardous or toxic under federal, state or local laws or regulations (all
laws, rules and regulations referenced in paragraphs (a), (b), (c) and (d) are
collectively referred to as "Environmental Laws").
7.03. Tenant's Covenants. Tenant does not intend to and Tenant will
not, nor will Tenant allow any other person (including partnerships,
corporations and joint ventures), during the term of this Lease to manufacture,
process, store, distribute, use, discharge or dispose of any Hazardous Waste in,
under or on the Project, the Common Areas, or any property adjacent thereto.
Notwithstanding the foregoing, Tenant shall be entitled to process, store,
distribute, and dispose of Hazardous Waste that arises in the normal course of
Tenant's business relating to its permitted uses under the Lease, provided that
all such activities are done in full compliance with all Environmental Laws and
all other governmental and administrative laws, rules, regulations, and
requirements.
A. Tenant shall notify Landlord promptly in the event of any spill or
release of Hazardous Waste into, on, or onto the Project regardless of the
source of spill or release, whenever Tenant knows or suspects that such a
release occurred.
B. Tenant will not be involved in operations at or near the Project
which could lead to the imposition on the Tenant or the Landlord of liability or
the creation of a lien on the Project, under the Environmental Laws.
C. Tenant shall, upon twenty-four (24) hour prior notice by Landlord,
permit Landlord or Landlord's agent access to the Project to conduct an
environmental site assessment with respect to the Project.
7.04. Indemnity. Tenant for itself and its successors and assigns
undertakes to protect, indemnify, save and defend Landlord, its agents,
employees, directors, officers, shareholders, affiliates, consultants,
independent contractors, successors and assigns (collectively the "Indemnitees")
harmless from any and all liability, loss, damage and expense, including
reasonable attorneys' fees, claims, suits and judgments that Landlord or any
other Indemnitee, whether as Landlord or otherwise, may suffer as a result of,
or with respect to:
A. The violation by Tenant or Tenant's agents, employees, invitees,
licensees or contractors of any Environmental Law after the earlier of (i) the
date of the granting of possession or occupancy of the Premises to Tenant, or
(ii) the Lease Commencement Date, including the assertion of any lien thereunder
and any suit brought or judgment rendered regardless of whether the action was
commenced by a citizen (as authorized under the Environmental Laws) or by a
government agency;
B. To the extent caused, directly or indirectly by Tenant or Tenant's
agents, employees, invitees, licensees or contractors, any spill or release of
or the presence of any Hazardous Waste affecting the Project whether or not the
same originates or emanates from the Project or any contiguous real estate,
including any loss of value of the Project as a result of a spill or release of
or the presence of any Hazardous Waste;
C. To the extent caused, directly or indirectly by Tenant or Tenant's
agents, employees, invitees, licensees or contractors, any other matter
affecting the Project within the jurisdiction of the United States Environmental
Protection Agency, the
Nevada State Environmental Commission, the
Nevada
Department of Conservation and Natural Resources, or the
Nevada Department of
Commerce, including costs of investigations, remedial action, or other response
costs whether such costs are incurred by the United States Government, the State
of
Nevada, or any Indemnitee;
D. To the extent caused, directly or indirectly by Tenant or Tenant's
agents, employees, invitees, licensees or contractors, liability for clean-up
costs, fines, damages or penalties incurred pursuant to the provisions of any
applicable Environmental Law; and
E. To the extent caused, directly or indirectly by Tenant or Tenant's
agents, employees, invitees, licensees or contractors, liability for personal
injury or property damage arising under any statutory or common-law tort theory,
including, without limitation, damages assessed for the maintenance of a public
or private nuisance, or for the carrying of an abnormally dangerous activity,
and response costs.
7.05. Remedial Acts. In the event of any spill or release of or the
presence of any Hazardous Waste affecting the Project, caused by Tenant, its
employees, agents, invitees, licensees, or contractors, whether or not the same
originates or emanates from the Project or any contiguous real estate, and/or if
Tenant shall fail to comply with any of the requirements of any Environmental
Law, Landlord may, without notice to Tenant, at its election, but without
obligation so to do, gives such notices and/or cause such work to be performed
at the Project and/or take any and all other actions as Landlord shall deem
necessary or advisable in order to remedy said spill or release of Hazardous
Waste or cure said failure of compliance and any amounts paid as a result
thereof, together with interest at the rate equal to the product of the variable
Prime Rate "Prime", plus four percent (4%) per annum as charged by Bank of
America,
Nevada; times the amount of such installment amount due, or twelve
percent (12%) per annum of such installment or the sum of twenty-five dollars
($25.00), whichever is greater, for each month or fractional month transpiring
from the date due until paid.
7.06. Settlement. Landlord upon giving Tenant ten (10) days prior
notice, shall have the right in good faith to pay, settle or compromise, or
litigate any claim, demand, loss, liability, cost, charge, suit, order, judgment
or adjudication under the belief that it is liable therefor, whether liable or
not, without the consent or approval of Tenant unless Tenant within said ten
(10) day period shall protest in writing and simultaneously with such protest
deposit with Landlord collateral satisfactory to Landlord sufficient to pay and
satisfy any penalty and/or interest which may accrue as a result of such protest
and any judgment or judgments as may result, together with attorney's fees and
expenses, including, but not limited to, environmental consultants.
7.07. Landlord Compliance With Environmental Laws. Landlord hereby
represents and warrants to Tenant that as of the date of execution of this Lease
and the Lease Commencement Date, (i) to Landlord's "knowledge" (as such term is
hereinafter defined), the Project is in compliance with all Environmental Laws
and Landlord has received no notice of any existing federal, state, county or
municipal environmental, pollution, health, safety, fire, or building code
violations from governmental authorities having jurisdiction with respect
thereto, (ii) to Landlord's knowledge, there is no reportable amount of
Hazardous Waste on, in, or under the Project, (iii) Landlord has not been named
as a party in
any proceeding or lawsuit for violation of Environmental Laws with respect to
the Project, and (iv) to Landlord's knowledge, the Project is not currently
subject to investigation for alleged violations of Environmental Laws. The term
"knowledge" as used in this Section 7.07 shall mean the actual knowledge of
employees of Xxxxxxx Properties, a
Nevada corporation, without inquiry or
investigation and without the inclusion of imputed, implied, or constructive
knowledge, except with respect to reports or investigations commissioned on
behalf of such company or Landlord. Landlord agrees to defend, indemnify, and
hold harmless Tenant, its officers, directors, employees and agents and any
assigns, subtenants, or successors to Tenant's interest in the Premises from and
against any and all losses, claims, damages, penalties, and liability including
reasonable out-of-pocket litigation costs and reasonable attorneys' fees and
expenses, which Tenant may suffer as a result of, or with respect to, a breach
by Landlord of Landlord's representations and warranties specified in this
Section 7.07 above.
7.08. Survival. The representations, warranties, covenants, and
obligations of the parties contained in this Article 7. shall survive the
expiration or earlier termination of this Lease.
8. PARKING
8.01. Tenant and Tenant's customers, suppliers, employees, and invitees
have the non-exclusive right to park in common with other lessees in the parking
facilities as designated by Landlord. Tenant agrees not to overburden the
parking facilities and agrees to cooperate with Landlord and other lessees in
the use of the parking facilities. Landlord reserves the right to, on an
equitable basis, assign specific spaces with or without charge to Tenant as
Additional Rent, make changes in the parking layout from time to time, and to
establish reasonable time limits on parking. So long as Tenant is the sole
tenant within the Project, and subject to the following provisions, Tenant shall
have the exclusive use of the vehicle parking spaces within the exterior
boundaries of the Project delineated on Exhibit A, and Landlord covenants and
agrees not to make material changes or alterations to such parking areas
specified herein except as required by law, rule, regulation or governmental or
administrative authority, or in connection with the further development of the
Project. Tenant agrees that Landlord is under no obligation to enforce Tenant's
exclusive rights set forth above.
9. UTILITIES
9.01. Tenant will be responsible for and shall pay for all water, gas,
heat, light, power, sewer, electricity, or other services metered, chargeable to
or provided to the Premises from and after the earlier of the Lease Commencement
Date or Tenant's right of occupancy of the Premises separate from and in
addition to the costs outlined in Section 5.02 dealing with the utility costs
for Common Area Maintenance. Landlord reserves the right to install separate
meters for any such utility.
9.02. Landlord will not be liable or deemed in default to Tenant nor
will there be any abatement of rent for any interruption or reduction of
utilities or services not caused by any act of Landlord or any act reasonably
beyond Landlord's control. Tenant agrees to comply with energy conservation
programs implemented by Landlord by reason of enacted laws or ordinances.
9.03. Tenant will contract and pay for all telephone and such other
services for the Premises subject to the provisions of 10.03.
10. ALTERATIONS, MECHANIC'S LIENS
10.01. Tenant will not make any alterations to the Premises without
Landlord's prior written consent which consent shall not be unreasonably
withheld in accordance with the provisions of this Section 10. Landlord's
consent shall be contingent upon Tenant providing Landlord with the following
items or information, all subject to Landlord's approval: (i) Tenant's
contractor, (ii) certificates of
insurance by Tenant's contractor for commercial general liability insurance with
limits not less than $2,000,000 General Aggregate, $1,000,000 Products/Complete
Operations Aggregate, $1,000,000 Personal & Advertising Injury, $1,000,000 Each
Occurrence, $50,000 Fire Damage, $5,000 Medical Expense, $1,000,000 Auto
Liability (Combined Single Limit, including Hired/Non-Owned Auto Liability),
Workers Compensation, including Employer's Liability, as required by state
statute endorsed to show Landlord as an additional insured and for worker's
compensation as required and (iii) detailed plans and specifications for such
work. Tenant agrees that it will have its contractor execute a waiver of
mechanic's lien and that Tenant will remove any mechanic's lien placed against
the Project or provide a bond or other collateral in an amount and on such terms
as are acceptable to Landlord in Landlord's reasonable discretion (it being
agreed that Landlord may require removal of and Tenant shall immediately remove
any such liens if so required by Landlord's lenders, partners, affiliates, or
otherwise to finance, refinance, sell or transfer the Project) within twenty
(20)) days of receipt of notice of lien. In addition, before alterations may
begin, valid building permits or other permits or licenses required must be
furnished to Landlord, and, once the alterations begin, Tenant will diligently
and continuously pursue their completion. At Landlord's option, any alterations
may become part of the realty and belong to Landlord. If requested by Landlord,
Tenant will pay, prior to the commencement of the construction, an amount
determined by Landlord necessary to cover the costs of demolishing such
alterations and/or the cost of returning the Premises to its condition prior to
such alterations. As a further condition to giving such consent, Landlord may
require Tenant to provide Landlord, at Tenant's sole cost and expense, a payment
and performance bond in form acceptable to Landlord, in a principal amount not
less than one and one-half times the estimated costs of such alterations, to
ensure Landlord against any liability for mechanic's and materialmen's liens and
to ensure completion of work. Tenant, at Landlord's option, shall at Tenant's
expense remove all alterations and repair all damage to the Premises.
Notwithstanding the foregoing, Tenant may, without Landlord's prior consent,
make nonstructural changes, alterations, and additions to the interior of the
Premises (i) which increase the value of the Premises, or (ii) in an amount not
to exceed Five Thousand Dollars ($5,000) in any one instance. Such additions may
include, without limitation, installation of computer cabling, painting, and
telecommunications system. Tenant agrees not to install any equipment on or
otherwise modify, repair or alter the roof of the Premises without the
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed.
10.02. Notwithstanding anything in 10.01, Tenant may, without the
written consent of Landlord, install trade fixtures, equipment, and machinery in
conformance with the ordinances of the applicable city and county, and they may
be removed upon termination of its Lease provided the Premises are not damaged
by their removal.
10.03. Any private telephone systems and/or other related
telecommunications equipment and lines must be installed within Tenant's
Premises and, upon termination of this Lease removed and the Premises restored
to the same condition as before such installation, normal wear and tear
excepted.
10.04. Tenant will pay all costs for alterations and will keep the
Premises, the Project and the underlying property free from any liens arising
out of work performed for, materials furnished to or obligation incurred by
Tenant, or provide a bond or other collateral in an amount and on such terms as
are acceptable to Landlord in Landlord's reasonable discretion (it being agreed
that Landlord may require removal of and Tenant shall immediately remove any
such liens if so required by Landlord's lenders, partners, affiliates, or
otherwise to finance, refinance, sell, or transfer the Project).
10.05. Subject to Tenant's failure to exercise its Expansion Option
pursuant to Section 43, Landlord will have the right to construct or permit
construction of tenant improvements in or about the Project for existing and new
Tenants and to alter any public areas in and around the Project. Notwithstanding
anything which may be contained in this Lease, Tenant understands this right of
Landlord and agrees that such construction will not be deemed to constitute a
breach of this Lease by Landlord and Tenant waives any such claim which it might
have arising from such construction. To the
extent reasonably possible, Landlord agrees to conduct or permit such
construction so that such construction shall not materially and unreasonably
interfere with Tenant's ability to conduct its business on the Premises.
11. FIRE INSURANCE: HAZARDS AND LIABILITY INSURANCE
11.01. Except as expressly provided as Tenant's Permitted Use, or as
otherwise consented to by Landlord in writing, Tenant shall not do or permit
anything to be done within or about the Premises which Tenant knows or
reasonably believes will increase the existing rate of insurance on the Project
and shall, at its sole cost and expense, comply with any requirements,
pertaining to the Premises, of any insurance organization insuring the Project
and Project-related apparatus. Upon notice of such increase, Tenant agrees to
pay to Landlord, as Additional Rent, any increases in premiums on policies
resulting from Tenant's Permitted Use or other use consented to by Landlord
which increases Landlord's premiums or requires extended coverage by Landlord to
insure the Premises. Landlord agrees, to the extent reasonably possible, to
provide Tenant with a reasonable opportunity to cure such condition.
11.02. Tenant, at all times during the term of this Lease and at
Tenant's sole expense, will maintain a policy of standard fire and extended
coverage insurance with "all risk" coverage on all Tenant's Improvements and
alterations in or about the Premises to the extent of at least ninety percent
(90%) of their full replacement value and Tenant shall insure its personal
property and equipment in the normal course of Tenant's business. The proceeds
from this policy will be used by Tenant for the replacement of personal property
and equipment and the restoration of Tenant's Improvements and/or alterations.
This policy will contain an express waiver, in favor of Landlord, of any right
of subrogation by the insurer.
11.03. Tenant, at all times during the term on this Lease and at
Tenant's sole expense, will maintain a policy of commercial general liability
coverage with limits of not less than $2,000,000 combined single limit for
bodily injury and property damage insuring against all liability of Tenant and
its authorized representatives arising out of or in connection with Tenant's use
or occupancy of the Premises.
11.04. All insurance will name Landlord and/or Landlord's designated
partners and affiliates as an additional named insured and will include an
express waiver of subrogation by the insurer in favor of Landlord and Tenant and
will release Landlord from any claims for damage to any person, to the Premises,
and to the Project, and to Tenant's personal property, equipment, improvements
and alterations in or on the Premises of the Project, caused by or resulting
from risks which are to be insured against by Tenant under this Lease. All
insurance required to be provided by Tenant under this Lease will (a) be issued
by an insurance company authorized to do business in the state in which the
Premises are located and which has and maintains a rating of A/X in the Best's
Insurance Reports or the equivalent, (b) be primary and noncontributing with any
insurance carried by Landlord, and (c) contain an endorsement requiring at least
thirty (30) days prior written notice of cancellation to Landlord before
cancellation or change in coverage, scope or limit of any policy. Tenant will
deliver a certificate of insurance or a copy of the policy to Landlord within
thirty (30) days of execution of this Lease and will provide evidence of renewed
insurance coverage at each anniversary, and prior to the expiration of any
current policies; however, in no event will Tenant be allowed to occupy the
Premises before providing adequate and acceptable proof of insurance as stated
above. Tenant's failure to provide evidence of this coverage to Landlord may, in
Landlord's sole discretion, constitute a default under this Lease.
11.05. Landlord shall, subject to reimbursement as provided herein,
maintain on the building included in the Project all risk insurance coverage or
any other insurance coverage as deemed reasonably necessary by Landlord
throughout the Lease Term. Such insurance policy shall be issued by an insurance
company authorized to do business in the State of
Nevada and which has and
maintains a rating of A/IX
in the Best's Insurance Reports or equivalent, and in an amount not less than
one hundred percent (100%) of the full replacement value of the building
included in the Project.
11.06. Tenant and Landlord each waive any and all rights against the
other, or against the officers, employees, agents and representatives or the
other, for the loss of or damage to such waiving party or its property or
property of others under its control, where such loss or damage is insured
against or would have been insured against under an insurance policy required to
be in force under this Lease at the time of such loss or damage. Tenant and
Landlord shall upon obtaining the policies of insurance required hereunder, give
notice to the insurance carriers that the foregoing mutual waiver of subrogation
is contained in this Lease.
12. INDEMNIFICATION AND WAIVER OF CLAIMS
12.01. Except to the extent caused by the gross negligence or
intentional misconduct of Landlord, its employees, agents or licensees, Tenant
waives all claims against Landlord for damage to any property in or about the
Premises and for injury to any persons, including death resulting therefrom,
regardless of cause or time of occurrence. Tenant will defend, indemnify and
hold Landlord harmless from and against any and all claims, actions,
proceedings, expenses, damages and liabilities, including reasonable attorney's
fees, arising out of, connected with, or resulting from any use of the Premises
by Tenant, its employees, agents, visitors or licensees, including, without
limitation, any failure of Tenant to comply fully with all of the terms and
conditions of this Lease except for any damage or injury which is the direct
result of the gross negligence or intentional misconduct by Landlord, its
employees, agents, visitors or licensees. Landlord will defend, indemnify, and
hold Tenant, its employees, agents, visitors, or licensees harmless from and
against any and all claims, actions, proceedings, expenses, damages, and
liabilities, including reasonable attorney's fees, caused by the gross
negligence or intentional misconduct of Landlord, its employees, agents or
licensees.
13. REPAIRS
13.01. Tenant shall, at its sole expense, keep and maintain the
Premises and every part thereof (excepting common use equipment, which Landlord
agrees to repair or replace pursuant to Section 5.02 unless damages are due to
the neglect or intentional acts of Tenant or its agents, employees, visitors, or
licensees), including interior windows, skylights, doors, plate glass, any store
fronts and the interior of the Premises, in good and sanitary order, condition
and repair, normal wear and tear excepted. Tenant will, also, at its sole cost
keep and maintain all utilities, fixtures, plumbing and mechanical equipment
used by Tenant in good order and repair normal wear and tear excepted and
furnish all expendables (light bulbs, paper goods, soaps, etc.) used in the
Premises. The standard for comparison and need of repair will be the condition
of the Premises at the time of commencement of this Lease considering normal
wear and tear and all repairs will be made by a licensed and bonded contractor
approved by Landlord which shall not be unreasonably withheld or delayed.
13.02. Tenant will not make repairs to the Premises at the cost of
Landlord whether by deductions of rent or otherwise, or vacate the Premises or
terminate the Lease if repairs are not made. If during the Term, any alteration,
addition or change to the Premises is required by legal authorities, Tenant, at
its sole expense, shall promptly make the same. If Tenant has been requested in
writing to make any repairs and Tenant has either not made the repairs within 20
days or begun such repairs if they cannot be completed within such time,
Landlord reserves the right to make any such repairs not made or maintained in
good condition by Tenant normal wear and tear excepted and Tenant shall
reimburse Landlord for all such costs upon demand.
13.03. If repairs deemed necessary by Landlord or any government
authority are not made by Tenant within the prescribed time frame as reasonably
requested in writing, subject to Section 38.11 hereof, Tenant shall be in
default of this Lease.
13.04. Tenant shall, at its own expense, within thirty days of lease
commencement, contract with a vendor acceptable to Landlord for the maintenance
service of the HVAC which will be furnished to the Landlord upon request. If
Tenant fails to obtain and maintain such a maintenance service contract Landlord
shall have the right to obtain such a maintenance service contract at the
expense of Tenant.
13.05. Landlord Repairs and Maintenance. During the Lease Term,
Landlord shall maintain, repair, and replace as necessary (i) the exterior walls
and the interior and exterior structures (consisting of foundations and bearing
walls) of the Project, (ii) the Common Area of the Project, and (iii) the roof
structure of the Project, except that Landlord shall not be responsible for any
repairs, maintenance, or replacements provided herein (I) caused by Tenant's
misuse of the Premises or Tenant's or Tenant's agents', employees', invitees',
licensees', or contractors' negligence, or intentional misconduct, or by reason
of failure of Tenant to perform or observe any terms, conditions, or agreements
contained in this Lease, and (II) not covered by Landlord's insurance required
to be maintained pursuant to Section 11.05 above. Landlord shall not be
responsible to make any repairs or replacements required under this Lease except
upon written notice of the need therefor from Tenant, and the opportunity to
cure as specified in Section 30.01 below. Costs of all repairs and replacements
made by Landlord hereby shall be considered part of the Operating Costs of the
Project or will be considered in calculating reserves, as applicable, as
specified in Paragraph 5.02A above.
14. AUCTIONS, SIGNS, AND LANDSCAPING
14.01. Tenant will not conduct or permit to be conducted any sale by
auction on the Premises. Landlord will have the right to control landscaping and
approve the placement, size, and quality of signs pursuant to Exhibit "F", "Sign
Criteria". Tenant will not make alterations or additions to the landscaping and
will not place any signs nor allow the placement of any signs, which are visible
from the outside, on or about any building of the Project, nor in any landscape
area, without the prior written consent of Landlord. Landlord will have the
right in its sole discretion to withhold its consent. Any signs not in
conformity with this Lease or in accordance with the provisions of Exhibit "F"
may be removed by Landlord at Tenant's expense.
15. ENTRY BY LANDLORD
15.01. Tenant will permit Landlord and Landlord's agents to enter the
Premises upon reasonable notice, except in the case of an emergency in which
case the requirement of notice shall not apply, at all reasonable times for the
purpose of inspecting the same, or for the purpose of maintaining the Project,
or for the purpose of making repairs, alterations or additions to any portion of
the Project, including the erection and maintenance of such scaffolding,
canopies, fences and props as may be required, or for the purpose of posting
notices of nonresponsibility for alterations, additions or repairs, or for the
purpose of showing the Premises to prospective tenants during the last six
months of the Lease Term, or placing upon the Project any usual or ordinary "for
sale" signs, without any rebate of rents and without any liability to Tenant for
any loss of occupation or quiet enjoyment of the Premises thereby occasioned.
Tenant will permit Landlord at any time within sixty (60) days prior to the
expiration of this Lease, to place upon the Premises any usual or ordinary "to
let" or "to lease" signs. Tenant will not install a new or additional lock or
any bolt on any door of the Premises without the prior written consent of
Landlord, which will not be unreasonably withheld. If Landlord gives its
consent, such work shall be undertaken by a locksmith approved by Landlord, at
Tenant's sole cost. Landlord retains the right to charge Tenant for restoring
any altered doors to their condition prior to the installation of the new or
additional locks.
Landlord's entry onto the Premises pursuant to this Section 15.01 shall not
unreasonably interfere with Tenant's Permitted Use or occupancy of the Premises.
16. ABANDONMENT
16.01. Except upon not less than thirty (30) days prior written notice
to Landlord, Tenant will not vacate or abandon the Premises, which shall be
deemed to occur any time during the Lease Term if Tenant does not conduct
business for a period of fifteen (15) consecutive days and/or leaves the
Premises unoccupied for any period of time without prior notice to Landlord. If
Tenant abandons, vacates or surrenders the Premises, or is dispossessed by
process of law, or otherwise, any personal property belonging to Tenant left in
or about the Premises will, at the option of Landlord be deemed abandoned and
may be disposed of by Landlord in the manner provided for by the laws of the
state in which the Premises are located.
17. DESTRUCTION
17.01. In the case of total destruction of the Premises, or any portion
of the Premises substantially interfering with Tenant's use thereof, whether by
fire or other casualty, this Lease shall terminate except as provided in this
Article 17. If such destruction occurs prior to the second (2nd) anniversary of
the Lease Commencement Date, then Landlord shall repair such damage within two
hundred twenty-five (225) days of the date of such damage or destruction, and
this Lease shall not terminate, but shall continue in full force and effect. In
the event such destruction occurs on or after the second (2nd) anniversary of
the Lease Commencement Date, if (I) Landlord notifies Tenant in writing within
forty-five (45) days of such destruction of Landlord's election to repair said
damage, (II) Landlord reasonably estimates that such repairs can be completed
within one hundred eighty (180) days of the date of Landlord's notice, and (III)
Landlord proceeds to and does repair such damage within such one hundred eighty
(180) day period, this Lease shall not terminate, but shall continue in full
force and effect. Except as provided in Section 17.02 below, Tenant shall be
entitled to a reduction in the Base Monthly Rent in an amount equal to that
proportion of the Base Monthly Rent which the number of square feet of floor
space in the unusable portion bears to the total number of square feet of floor
space in the Premises. Said reduction shall be prorated so that the rent shall
only be reduced for those days any given area is actually unusable. In the event
the damage or destruction occurs prior to the second (2nd) anniversary of the
Lease Commencement Date or in the event Landlord elects pursuant to the
foregoing provisions to continue the Lease and restore the Premises as specified
above, and Landlord has not substantially completed such restoration within the
applicable time period specified above, then after the expiration of the
applicable time period, Tenant may provide to Landlord a notice of its intention
to terminate this Lease (a "Termination Notice"). In the event Landlord
substantially completes the restoration within thirty (30) days of receipt of a
Termination Notice, then this Lease shall not terminate. In the event Landlord
does not substantially complete the restoration within such thirty (30) day
period, then this Lease shall terminate as of the expiration of such thirty (30)
day period. All restoration obligations and time periods specified in this
Article 17 shall be subject to and extended by the provisions of Section 38.11
below. If this Lease is terminated pursuant to this Section 17 and if Tenant is
not in default hereunder, after applicable grace, notice and cure periods, rent
shall be prorated as of the date of termination, any security deposited with
Landlord shall be returned to Tenant, less any reasonable offsets and all rights
and obligations hereunder shall cease and terminate.
17.02. Notwithstanding the foregoing provisions, in the event the
Premises, or any portion thereof, shall be damaged by fire or other casualty or
risk not covered by Landlord's insurance carried or required to be carried
pursuant to Section 11.05 above and is due to the gross negligence or
intentional acts, or misconduct of Tenant, its agents, employees, servants,
contractors, subtenants, licensees, customers or business invitees, then,
without prejudice to any other rights and remedies of Landlord, this Lease shall
not terminate, the damage shall be repaired by Landlord at Tenant's cost, to the
extent not
covered by Landlord's insurance carried or required to be carried under this
Lease and there shall be no apportionment or abatement of any rent unless
Landlord carries rent loss insurance, in which case rent shall be abated to the
extent the rent loss insurance payments are actually received by Landlord. In
addition, notwithstanding the provisions of Section 17.01 above, in the event
the Premises or any portion thereof shall be damaged by fire or other casualty
due to the gross negligence or intentional acts or misconduct of Tenant, its
agents, employees, servants, contractors, subtenants, licensees, customers, or
invitees, then there shall be no apportionment or abatement of any rent during
the time period commencing on destruction of the Premises as set forth in
Section 17.01 above, unless Landlord carries rent loss insurance, in which case
rent shall be abated only to the extent the rent loss insurance payments are
actually received by Landlord.
17.03. In the event of any damage not limited to, or not including, the
Premises, such that the building of which the Premises is a part is damaged to
the extent of fifty percent (50%) or more of the cost of replacement, or the
buildings (taken in the aggregate) of the Project owned by Landlord shall be
damaged to the extent of more than fifty percent (50%) of the aggregate cost of
replacement, Landlord may elect to terminate this Lease upon giving notice of
such election in writing to Tenant within ninety (90) days after the occurrence
of the event causing the damage.
17.04. The provisions of this Section 17 with respect to Landlord shall
be limited to such repair as is necessary to place the Premises in the same
condition as the Premises were is upon commencement of this Lease, reasonable
wear and tear and any modifications or preparations made by Tenant excepted, and
when placed in such condition the Leased Property shall be deemed restored and
rendered tenantable promptly following which time Tenant, at Tenant's expense
shall perform Tenant's work required by Exhibit B (if applicable) and Tenant
shall also repair or replace its stock in trade, fixtures, furniture,
furnishings, floor coverings and equipment, and if Tenant has closed, Tenant
shall promptly reopen for business.
17.05. All insurance proceeds payable under any fire, and/or rental
insurance shall be payable solely to Landlord and Tenant shall have no interest
therein. Tenant shall in no case be entitled to compensation for damages on
account of any annoyance or inconvenience in making repairs under any provision
of this Lease unless such damage was solely caused by Landlord's intentional
misconduct or gross negligence.. Except to the extent provided for in this
Section 17, neither the rent payable by Tenant nor any of Tenant's other
obligations under any provision of this Lease shall be affected by any damage to
or destruction of the Premises or any portion thereof by any cause whatsoever.
18. ASSIGNMENT, SUBLETTING AND TRANSFERS OF OWNERSHIP
18.01. Except for a "Permitted Assignment," as defined in Section 18.02
below, Tenant will not, without Landlord's prior written consent, assign,
sublease, sell, mortgage, encumber, convey or otherwise transfer all or any part
of Tenant's leasehold estate, or permit the Premises to be occupied by anyone
other than Tenant and Tenant's employees or sublet the premises or any portion
thereof (collectively called "Transfer"). Tenant must supply Landlord with any
and all documents deemed necessary by Landlord to evaluate any proposed Transfer
and with respect to a Permitted Assignment at least thirty (30) days in advance
of Tenant's proposed Transfer date or the date of a Permitted Assignment.
18.02. Except for a "Permitted Assignment," as defined herein below,
Landlord need not consent to any Transfer for reasons including, but not limited
to, whether or not: (a) in the reasonable judgment of Landlord the transferee is
of a character or is engaged in a business which is not in keeping with the
standard of Landlord for the Project; (b) in the reasonable judgment of Landlord
any purpose for which the transferee intends to use the Premises is not in
keeping with the standards of Landlord for the Project; provided in no event may
any purpose for which transferee intends to use the Premises be in violation of
this Lease; (c) the portion of the Premises subject to the transfer is not
regular in shape with
appropriate means of entering and exiting, including adherence to any local,
county or other governmental codes, or is not otherwise suitable for the normal
purposes associated with such a Transfer; or (d) Tenant is in default under this
Lease or any other Lease with Landlord. Notwithstanding the foregoing provisions
of this Section 18.02, and provided that Tenant complies with all other
provisions of this Article 18, Landlord hereby consents to the assignment of the
Lease to (i) any wholly-owned subsidiary entity of Brightpoint, Inc., (ii) an
entity formed as a result of the merger or consolidation of Tenant with one or
more entities, and (iii) the sale by Tenant of all or substantially all of its
assets, including the Lease, to a single entity ("Asset Sale"), and such entity
specifically assumes the obligations of Tenant under this Lease and otherwise
agrees to comply with the terms and conditions of the Lease (a "Permitted
Assignment"). No Permitted Assignment shall release or otherwise affect Tenant's
or any guarantor's obligations under this Lease, or constitute an express or
implied consent to any other Transfer of all or any part of Tenant's leasehold
estate, or the occupation by anyone other than Tenant or Tenant's employees.
18.03. In the event Landlord consents to a sublease of the Premises,
Tenant will pay Landlord fifty percent (50%) of the excess, if any, of the rent
and other charges reserved in the sublease over the allocable portion of the
rent and other charges hereunder for that portion of the Premises subject to the
sublease. For the purpose of this section, the rent reserved in the Transfer
will be deemed to include any lump sum payment or other consideration given to
Tenant in consideration for the sublease. Tenant will pay or cause the
transferee to pay to Landlord this additional rent together with the monthly
installments of rent due.
18.04. Any consent to any Transfer which may be given by Landlord, or
any Permitted Assignment or the acceptance of any rent, charges or other
consideration by Landlord from Tenant or any third party, will not constitute a
waiver by Landlord of the provisions of this Lease or a release of Tenant from
the full performance by it of the covenants stated herein; and any consent given
by Landlord to any Transfer, or any Permitted Assignment will not relieve Tenant
(or any transferee of Tenant) from the above requirements for obtaining the
written consent of Landlord to any subsequent Transfer.
18.05. If a default under this Lease should occur while the Premises or
any part of the Premises are assigned, sublet or otherwise transferred
(including, without limitation, a Permitted Assignment) Landlord, in addition to
any other remedies provided for within this Lease or by law, may at its option
collect directly from the transferee all rent or other consideration becoming
due to Tenant under the Transfer or Permitted Assignment and apply these monies
against any sums due to Landlord by Tenant; and Tenant authorizes and directs
any transferee to make payments of rent or other consideration direct to
Landlord upon receipt of notice from Landlord. No direct collection by Landlord
from any transferee should be construed to constitute a novation or a release of
Tenant or any guarantor of Tenant from the further performance of its
obligations in connection with this Lease.
18.06. The issuance, transfer, assignment, hypothecations or retirement
of any stock, warrant or options or other related rights of ownership of Tenant
or any interest therein shall not constitute or be deemed to be a Transfer
within the meaning of this Article 18. and Landlord shall have no right of
consent or approval with respect thereto. No such issuance, transfer,
assignment, hypothecations or retirement shall in any way affect Tenant's or any
guarantor's obligations under this Lease.
18.07. In the event Tenant requests Landlord's consent to an
Assignment, Sub-Let or Transfer of Tenant's interest in the leased Premises, or
in the case of a Permitted Assignment, Tenant agrees to pay Landlord all
reasonable attorney's fees, not to exceed Two Thousand Dollars ($2,000.00),
incurred by Landlord for any legal services for document review of any and all
documents deemed necessary by Landlord and Tenant to Transfer Tenant's interest
in the Premises or with respect to such Permitted Assignment.
19. BREACH BY TENANT
19.01. Tenant will be in breach of this Lease if at any time during the
term of this Lease (and regardless of the pendency of any bankruptcy,
reorganization, receivership, insolvency or other proceedings in law, in equity
or before any administrative tribunal which have or might have the effect of
preventing Tenant from complying with the terms of this Lease):
A. Tenant fails to make payment of any installment of Base Monthly
Rent, Additional Rent, or of any other sum herein specified to be paid by
Tenant, and such failure is not cured within ten (10) days after Landlord's
written notice to Tenant of such failure; or
B. Tenant fails to observe or perform any of its other covenants,
agreements or obligations hereunder, and such failure is not cured within thirty
(30) days after Landlord's written notice to Tenant of such failure; provided,
however, that if the nature of Tenant's obligation is such that more than thirty
(30)days are required for performance, then Tenant will not be in breach if
Tenant commences performance within such thirty (30) day period and thereafter
diligently prosecutes the same to completion; or
C. Tenant, Tenant's assignee, subtenant, guarantor, or occupant of the
Premises becomes insolvent, makes a transfer in fraud of its creditors, makes a
transfer for the benefit of its creditors, is the subject of a bankruptcy
petition, which is not dismissed within sixty (60) days is adjudged bankrupt or
insolvent in proceedings filed against Tenant, a receiver, trustee, or custodian
is appointed for all or substantially all of Tenant's assets, fails to pay its
debts as they become due, convenes a meeting of all or a portion of its
creditors, or performs any acts of bankruptcy or insolvency, including the
selling of its assets to pay creditors; or
D. Tenant has abandoned the Premises as defined in Paragraph 16. above
without providing thirty (30) days prior written notice to Landlord as provided
therein.
E. [INTENTIONALLY OMITTED]
20. REMEDIES OF LANDLORD
20.01. Nothing contained herein shall constitute a waiver of Landlord's
right to recover damages by reason of Landlord's efforts to mitigate the damage
to it by Tenant's default; nor shall anything in this Section adversely affect
Landlord's right, as in this Lease elsewhere provided, to indemnification
against liability for injury or damages to persons or property occurring prior
to a termination of this Lease.
20.02. All cure periods provided herein shall run concurrently with any
periods provided by law.
20.03. In the event of a breach of or default by Tenant under this
Lease beyond any applicable cure period provided in Section 19.01, in addition
to any other rights or remedies provided for herein or at law or in equity,
Landlord, at its sole option, shall have the following rights:
A. The right to declare the term of this Lease ended and reenter the
Premises and take possession thereof, and to terminate all of the rights of
Tenant in and to the Premises.
B. The right, without declaring the term of this Lease ended, to
reenter the Premises and to occupy the same, or any portion there of, for and on
account of the Tenant as hereinafter provided, and Tenant shall be liable for
and pay to Landlord on demand all such expenses as Landlord may have paid,
assumed or incurred in recovering possession of the Premises, including
reasonable costs, expenses, attorney's fees and expenditures placing the same in
good order, or preparing or altering the same for
reletting, and all other reasonable expenses, commissions and charges paid by
the Landlord in connection with reletting the Premises. Any such reletting may
be for the remainder of the term of this Lease or for a longer or shorter
period. Such reletting shall be for such rent and on such other terms and
conditions as Landlord, in its sole discretion, deems appropriate. Landlord may
execute any lease made pursuant to the terms hereof either in the Landlord's own
name or in the name of Tenant or assume Tenant's interest in any existing
subleases to any tenant of the Premises, as Landlord may see fit, and Tenant
shall have no right or authority whatsoever to collect any rent from such
tenants, subtenants, of the Premises. In any case, and whether or not the
Premises or any part thereof is relet, Tenant, until the end of the Lease term
shall be liable to Landlord for an amount equal to the amount due as Rent
hereunder, less net proceeds, if any of any reletting effected for the account
of Tenant. Landlord reserves the right to bring such actions for the recovery of
any deficits remaining unpaid by the Tenant to the Landlord hereunder as
Landlord may deem advisable from time to time without being obligated to await
the end of the term of the Lease. Commencement of maintenance of one or more
actions by the Landlord in this connection shall not bar the Landlord from
bringing any subsequent actions for further accruals. In no event shall Tenant
be entitled to any excess rent received by Landlord over and above that which
Tenant is obligated to pay hereunder; or
C. The right, even though it may have relet all or any portion of the
Premises in accordance with the provisions of subsection B. above, to thereafter
at any time elect to terminate this Lease for such previous default on the part
of the Tenant, and to terminate all the rights of Tenant in and to the Premises.
20.04. Pursuant to the rights of re-entry provided above, Landlord may
remove all persons from the Premises and may, but shall not be obligated to,
remove all property therefrom, and may, but shall not be obligated to, enforce
any rights Landlord may have against said property or store the same in any
public or private warehouse or elsewhere at the cost and for the account of
Tenant or the owner or owners thereof. Tenant agrees to hold Landlord free and
harmless from any liability whatsoever for the removal and/or storage of any
such property, whether of Tenant or any third party whomsoever. Such action by
the Landlord shall not be deemed to have terminated this Lease.
20.05. If Tenant breaches this Lease and abandons the Premises before
the end of the term, or if its right of possession is terminated by Landlord
because of Tenant's breach of this Lease, then this Lease may be terminated by
Landlord at its option. On such Termination Landlord may recover from Tenant, in
addition to the remedies permitted at law:
A. The worth, at the time of the award, of the unpaid Base Monthly
Rents and Additional Rents which had been earned at the time this Lease is
terminated.
B. The worth, at the time of the award, of the amount by which the
unpaid Base Monthly Rents and Additional Rents which would have been earned
after the date of termination of this Lease until the time of award exceeds the
amount of the loss of rents that Tenant proves could be reasonably avoided;
C. The worth, at the time of the award, of the amount by which the
unpaid Base Monthly Rent and Additional Rents for the balance of the Lease Term
after the time of award exceeds the amount of such rental loss for such period
as the Tenant proves could have been reasonably avoided; and
D. Any other amount, and court costs, necessary to compensate Landlord
for all detriment proximately caused by Tenant's breach of its obligations under
this Lease, or which in the ordinary course of events would be likely to result
therefrom. The detriment proximately caused by Tenant's breach will include,
without limitation, (i) expenses for cleaning, repairing or restoring the
Premises, (ii) expenses for altering, remodeling or otherwise improving the
Premises for the purpose of reletting the Premises, (iii) brokers' fees and
commissions, advertising costs and other expenses of reletting the Premises,
(iv) costs of carrying the Premises such as taxes, insurance premiums, utilities
and security precautions, (v)
expenses of retaking possession of the Premises, (vi) reasonable attorney's fees
and court costs, (vii) any unearned brokerage commissions paid in connection
with this Lease, (viii) reimbursement of any previously waived Base Rent,
Additional Rent, free rent or reduced rental rate, and (ix) any concession made
or paid by Landlord to the benefit of Tenant in consideration of this Lease
including, but not limited to, any moving allowances, contributions or payments
by Landlord for tenant improvements or build-out allowances or assumptions by
Landlord of any of the Tenant's previous lease obligations.
20.06. In any action brought by the Landlord to enforce any of its
rights under or arising from this Lease, Landlord shall be entitled to receive
its costs and legal expenses including reasonable attorneys' fees, whether or
not such action is prosecuted to judgment.
20.07. The waiver by Landlord of any breach or default of Tenant
hereunder shall not be a waiver of any preceding or subsequent breach of the
same or any other term. Acceptance of any Rent payment shall not be construed to
be a waiver of the Landlord of any preceding breach of the Tenant.
20.08. All past due amounts owed by Tenant under the terms of this
Lease shall bear interest at twelve percent per annum unless otherwise stated.
21. SURRENDER OF LEASE NOT MERGER
21.01. The voluntary or other surrender of this Lease by Tenant, or
mutual cancellation thereof, will not work a merger and will, at the option of
Landlord, terminate all or any existing transfers, or may, at the option of
Landlord, operate as an assignment to it of any or all of such transfers.
22. ATTORNEYS FEES/COLLECTION CHARGES
22.01. In the event of any legal action or proceeding between the
parties hereto, reasonable attorneys' fees and expenses of the prevailing party
in any such action or proceeding will be added to the judgment therein. Should
Landlord be named as defendant in any suit brought against Tenant in connection
with or arising out of Tenant's occupancy hereunder, Tenant will pay to Landlord
its costs and expenses incurred in such suit, including reasonable attorney's
fees, except to the extent Landlord is named as a defendant as a result of its
alleged negligence or intentional misconduct.
22.02. If Landlord utilizes the services of any attorney at law for the
purpose of collecting any rent due and unpaid by Tenant after ten (10) days
written notice to Tenant of such nonpayment of rent or in connection with any
other breach of this Lease by Tenant, Tenant agrees to pay Landlord reasonable
attorneys' fees as determined by Landlord for such services, regardless of the
fact that no legal action may be commenced or filed by Landlord.
23. CONDEMNATION
23.01. If any portion of the Premises is taken for any public or
quasi-public purpose by any lawful government power or authority, by exercise of
the right of appropriation, reverse condemnation, condemnation or eminent
domain, or sold to prevent such taking, and if the remaining portion of the
Premises will not be reasonably adequate for the operation of Tenant's business
after Landlord completes such repairs or alterations as Landlord elects to make,
either Tenant or the Landlord may at its option terminate this Lease by
notifying the other party hereto of such election in writing within twenty (20)
days after such taking. Tenant will not because of such taking assert any claim
against the Landlord or the taking authority for any compensation because of
such taking, and Landlord will be entitled to receive the entire amount of any
award without deduction for any estate of interest of Tenant. If Landlord elects
to make repairs, Landlord will promptly proceed to restore the Premises to
substantially its same condition prior to such partial taking, allowing for any
reasonable effects of such taking, and a
proportionate allowance based on the loss of square footage will be made to
Tenant for the Base Monthly Rent and Additional Rent corresponding to the time
during which, and to the part of the Premises, which, Tenant is deprived on
account of such taking and restoration. Notwithstanding the foregoing, Tenant
shall be entitled to assert a claim against the condemning authority for
compensation for alterations made by Tenant to the Premises, for trade fixtures
or other property of Tenant acquired by the condemning authority, and for
relocation expenses, to the extent the foregoing does not reduce compensation
payable to Landlord hereunder.
24. RULES AND REGULATIONS
24.01. Tenant will faithfully observe and comply with any reasonable
Rules and Regulations promulgated by Landlord for the Project and Landlord
reserves the right to reasonably modify and amend them as it deems necessary
upon not less than thirty (30) day prior written notice to Tenant. Landlord will
not be responsible to Tenant for the nonperformance by any other Tenant or
occupant of the Project of any of said Rules and Regulations. Such Rules and
Regulations shall apply to all tenants of the Project.
24.02. In the event that Tenant fails to cure any violations of such
Rules and Regulations following ten (10) days written notice by Landlord, such
failure to cure shall be deemed a material breach of this Lease by Tenant.
25. ESTOPPEL CERTIFICATE
25.01. Each party (the "Nonrequesting Party") will execute and deliver
to the other party (the "Requesting Party") within ten (10) business days of the
Requesting Party's written demand, a statement in writing certifying that this
Lease is in full force and effect, and that the Base Monthly Rent and Additional
Rent payable hereunder is unmodified and in full force and effect (or, if
modified, stating the nature of such modification) and the date to which rent
and other charges are paid, if any, and acknowledging that there are not, to the
Non-Requesting Party's knowledge, any uncured defaults on the part of the
Requesting Party hereunder or specifying such defaults if they are claimed and
such other matters as Landlord may reasonably request. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the
Premises. The Non-Requesting Party's failure to deliver such statement within
such time shall be conclusive upon the Non-Requesting Party that (1) this Lease
is in full force and effect, without modification except as may be represented
by the Requesting Party; (2) there are no uncured defaults in the Requesting
Party's performance and (3) not more than one (1) month's rents has been paid in
advance. Tenant shall provide a copy of the demand (which shall not constitute
notice) to Landlord's counsel, Walther, Key, Maupin, Oats, Cox & LeGoy, 0000
Xxxxxxxx Xxxxxxx, Xxxx, Xxxxxx 00000, and agrees that any such demand shall only
be provided as a result of a requirement from a third party for Tenant's audit
and financing purposes.
26. SALE BY LANDLORD
26.01. In the event of a sale or conveyance by Landlord of the Project
the same shall operate to release Landlord from any liability upon any of the
covenants or conditions, expressed or implied, herein contained in favor of
Tenant arising, occurring or accruing after such sale or conveyance, and in such
event Tenant agrees to look solely to the responsibility of the successor in
interest of Landlord in and to this Lease with respect thereto. This Lease
including Tenant's rights under Sections 42 and 43 hereof will not be affected
by any such sale, and Tenant agrees to attorn to the purchaser or assignee.
27. NOTICES
27.01. All notices, statements, demands, requests, consents, approvals,
authorizations, offers, agreements, appointments, or designations under this
Lease by either party to the other will be in writing
and will be considered sufficiently given and served upon the other party if
sent by certified or registered mail, return receipt requested, postage prepaid,
delivered personally, or by a national overnight delivery service and addressed
as indicated in 1.03 and 1.04.
28. WAIVER
28.01. The failure of Landlord or Tenant to insist in any one or more
cases upon the strict performance of any term, covenant or condition of the
Lease will not be construed as a waiver of a subsequent breach of the same or
any other covenant, term or condition; nor shall any delay or omission by
Landlord or Tenant to seek a remedy for any breach of this Lease be deemed a
waiver by Landlord or Tenant of its remedies or rights with respect to such a
breach.
29. HOLDOVER
29.01. If Tenant remains in the Premises after the Lease Expiration
date with the consent of the Landlord, and has not given prior written notice to
Landlord, such continuance of possession by Tenant will be deemed to be a
month-to-month tenancy at the sufferance of Landlord terminable on thirty (30)
day notice at any time by either party. All provisions of this Lease, except
those pertaining to term and rent, will apply to the month-to-month tenancy.
Tenant will pay a new Base Monthly Rent in an amount equal to 125% of the base
monthly rent payable for the last full calendar month during the regular term of
this Lease. Upon expiration or earlier termination of this Lease, Tenant agrees
to surrender possession of the Premises and leave the same in good and clean
condition, reasonable wear and tear, condemnation or casualty excepted.
30. DEFAULT OF LANDLORD/LIMITATION OF LIABILITY
30.01. In the event of any default by Landlord hereunder, Tenant agrees
to give notice of such default, by registered mail, to Landlord at Landlord's
Notice Address as stated in 1.04. Landlord shall have thirty (30) days to cure
the default, or, if such default is not curable within such thirty (30) day
period, Landlord shall have such period of time as is reasonably necessary to so
cure such default, provided that Landlord diligently prosecutes the same to
completion. In the event of any actual or alleged failure, breach or default
hereunder by Landlord which is not cured within the allowed cure period,
Tenant's sole and exclusive remedy will be against Landlord's interest in the
Project, and Landlord's directors, officers, employees and any partner of
Landlord will not be sued, be subject to service or process, or have a judgment
obtained against him in connection with any alleged breach or default, and no
writ of execution will be levied against the assets of any partner, shareholder
or officer of Landlord provided, however, that in the event the value of the
Landlord's interest in the Project is less than Five Hundred Thousand Dollars
($500,000.00) then the maximum liability of the Landlord shall be the sum of
Five Hundred Thousand Dollars ($500,000.00). The covenants and agreements are
enforceable by Landlord and also by any partner, shareholder or officer of
Landlord.
31. SUBORDINATION
31.01. Subject to the following requirements, at the election of
Landlord or any mortgagee with a lien on the Project or any ground lessor with
respect to the Project, this Lease will be subject and subordinate at all times
to (a) all ground leases or underlying leases which may now exist or hereafter
be executed affecting the Project, and (b) the lien of any mortgage or deed of
trust which may now exist or hereafter be executed in any amount for which the
Project, ground leases or underlying leases, or Landlord's interest or estate in
any of said items is specified as security. Such subordination shall not
materially and adversely affect Tenant's rights and obligations under this
Lease, and shall be subject to the execution by such mortgagee, beneficiary, or
ground lessor of a nondisturbance agreement reasonable conforming with the terms
of this Section 31.01. In the event that any ground lease or underlying lease
terminates for any reason or any mortgage or deed of trust is foreclosed or a
conveyance in lieu of foreclosure is made for any reason, Tenant will,
notwithstanding any subordination, attorn to and become the Tenant of the
successor in interest to Landlord, at the option of such successor in interest.
Tenant covenants and agrees to execute and deliver to Landlord within ten (10
business days, any document or instrument reasonably requested by Landlord or
its ground lessor, mortgagee or beneficiary under a deed of trust evidencing the
subordination of this Lease pursuant to this Section 31.01 with respect to any
such ground lease or underlying leases or the lien of any such mortgage or deed
of trust. Tenant's failure to deliver such document or instrument within such
time shall constitute an event of default under this Lease. Landlord agrees to
exercise commercially reasonable efforts to obtain a nondisturbance and
attornment agreement with respect to the current holder of the deed of trust on
the Project within a reasonable period of time after the execution of this
Lease; provided, however, that failure of Landlord to obtain such
non-disturbance and attornment agreement shall not constitute a default by
Landlord hereunder.
32. DEPOSIT AGREEMENT
32.01. Landlord and Tenant hereby agree that Landlord will be entitled
to immediately endorse and cash Tenant's good faith rent check(s). It is further
agreed and understood that such action will not guarantee acceptance of this
Lease by Landlord, but, in the event Landlord does not accept this Lease, such
deposits will be promptly refunded in full to Tenant. This Lease will be
effective only after Tenant has received a copy fully executed by both Landlord
and Tenant.
33. GOVERNING LAW
33.01. This Lease is governed by and construed in accordance with the
laws of the State of
Nevada, and venue of any suit will be in the county where
the Premises are located unless the Premises are not located in
Nevada in which
case the venue will be Washoe County in the State of
Nevada.
34. NEGOTIATED TERMS
34.01. This Lease is the result of the negotiations of the parties and
has been agreed to by both Landlord and Tenant after prolonged discussion.
35. SEVER ABILITY
35.01. If any provision of this Lease is found to be unenforceable, all
other provisions shall remain in full force and effect.
36. BROKERS
36.01. Each party (the "Representing Party") warrants to the other
party that it has had no dealings with any broker or agent in connection with
this Lease, except Reno Property Management / Meridian Real Estate acting as
agents of Tenant, Landlord agrees to pay, hold harmless and indemnify Tenant
from and against any and all cost, expense or liability for any compensation,
commissions and charges claimed the broker identified above, and no other broker
or agent, with respect to this Lease or its negotiation.
37. QUIET POSSESSION
37.01. So long as Tenant has not defaulted under this Lease, after
applicable grace, notice, and cure periods, Tenant shall quietly have, hold and
enjoy the Premises during the Term of this Lease without disturbance from
Landlord or from any other person claiming through Landlord.
38. MISCELLANEOUS PROVISIONS
38.01. Whenever the singular number is used in this Lease and when
required by the context, the same will include the plural, and the masculine
gender will include the feminine and neuter genders, and the word "person" will
include corporation, firm, partnership, or association. If there is more than
one Tenant, the obligations imposed upon Tenant under this Lease will be joint
and several.
38.02. The headings or titles to paragraphs of this Lease are not a
part of this Lease and will have no effect upon the construction or
interpretation of any part of this Lease.
38.03. This instrument contains all of the agreements and conditions
made between the parties to this Lease. Tenant acknowledges that neither
Landlord nor Landlord's agents have made any representation or warranty as to
the suitability of the Premises to the conduct of Tenant's business. Any
agreements, warranties or representations not expressly contained herein will in
no way bind either Landlord or Tenant, and Landlord and Tenant expressly waive
all claims for damages by reason of any statement, representation, warranty,
promise or agreement, if any, not contained in this Lease.
38.04. Time is of the essence of each term and provision of this Lease.
38.05. Except as otherwise expressly stated, each payment required to
be made by Tenant is in addition to and not in substitution for other payments
to be made by Tenant.
38.06. Subject to Article 18, the terms and provisions of this Lease
are binding upon and inure to the benefit of the heirs, executors,
administrators, successors and assigns of Landlord and Tenant.
38.07. All covenants and agreements to be performed by Tenant under any
of the terms of this Lease will be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent.
38.08. In consideration of Landlord's covenants and agreements
hereunder, Tenant hereby covenants and agrees not to disclose any terms,
covenants or conditions of this Lease to any other party without the prior
written consent of Landlord except to the extent required by Tenant's lenders or
as a part of a transfer that is a Permitted Assignment.
38.09. Tenant agrees it will provide to Landlord such financial
information as Landlord may reasonably request for the purpose of obtaining
construction and/or permanent financing for the Premises and Landlord agrees to
keep such information confidential except in connection with obtaining
construction and/or permanent financing.
38.10. If Tenant shall request Landlord's consent and Landlord shall
fail or refuse to give such consent, Tenant shall not be entitled to any damages
for any withholding by Landlord of its consent; Tenant's sole remedy shall be an
action for specific performance or injunction, and such remedy shall be
available only in those cases where Landlord has expressly agreed in writing not
to unreasonably withhold its consent or where as a matter of law Landlord may
not unreasonably withhold its consent.
38.11. Whenever a day is appointed herein on which, or a period of time
is appointed in which, either party is required to do or complete any act,
matter or thing, the time for the doing or completion thereof shall be extended
by a period of time equal to the number of days on or during which such party is
prevented from, or is reasonably interfered with, the doing or completion of
such act, matter or thing because of labor disputes, civil commotion, war,
warlike operation, sabotage, governmental regulations or control, fire or other
casualty, inability to obtain materials, or to obtain fuel or energy, weather or
other acts of God, or other causes beyond such party's reasonable control
(financial inability excepted);
provided, however, that nothing contained herein shall excuse Tenant from the
prompt payment of any Rent or charge required of Tenant hereunder.
38.12. No slot machine or other gambling game shall be permitted on the
Premises without the prior written consent of Landlord. The Premises shall not
be used for any "adult bookstore" or "adult motion picture theater" as said
terms are defined in NRS 278.0221, or any similar use, notwithstanding any local
zoning codes or ordinances or any other provisions of law to the contrary
permitting such use.
39. CHANGE ORDERS
39.01. In the event Tenant requests and\or approves changes in the
scope the work being provided by or through Landlord Tenant agrees to pay all
the direct and indirect costs of additional work at the time it gives such
approval. In the event that the aggregate cost of additional work provided under
this Lease is ten thousand dollars ($10,000.00) or more, or in excess of two
months rent, whichever is less, then Landlord may accept payment of one half of
the cost of additional work at the time of approval of said change order by the
Tenant, and payment of the balance to be paid at the time the additional work is
substantially completed.
40. SPECIAL PROVISIONS
40.01. Special provisions of this Lease number 41 through 43 and
Exhibits "A" (Depiction of Premises and Offices Within Premises), "A-1"
(Depiction of Future Expansion Property), "B" (Landlord's Work for Premises
Shell),"C" (Tenant Questionnaire), "D" (Rules and Regulations), "F" (Sign
Criteria), and "G" (Guarantee) are attached hereto and made a part hereof. If
none, so state in the following space:
41. OPTIONS TO EXTEND THE LEASE TERM
41.01. Tenant is hereby granted one (1) option (the "Extension Option")
to extend the Lease Term for an additional term of five (5) years (an "Extension
Term"), beginning on the day after expiration of the Initial Lease Term and
expiring five (5) years thereafter (unless terminated sooner pursuant to any
other terms or provisions of the Lease), on all of the same terms and conditions
as set forth in the Lease, but at an adjusted Base Monthly Rent as set forth in
Section 41.02 below (and without any additional options to extend the Lease Term
after the expiration of the Extension Term). The Extension Option may be
exercised by Tenant only by delivery of written notice of such exercise
("Extension Notice") to Landlord, which Extension Notice must be received by
Landlord at least one hundred eighty (180) days before the expiration of the
Initial Lease Term or first Extension Term, as applicable. If Tenant fails to
timely deliver the Extension Notice, or if this Lease is terminated pursuant to
any other terms or provisions of this Lease prior to the expiration of the
Initial Lease Term or the Extension Term, as applicable, all remaining Extension
Option shall lapse, and Tenant shall have no right to extend or further extend
the Lease Term. The Extension Option shall be exercisable by Tenant on the
express conditions that (i) at the time of delivery of the applicable Extension
Notice and at all times prior to the commencement of the Extension Term, Tenant
shall not be in default under this Lease beyond the applicable cure period, (ii)
Tenant has not previously been in default beyond the applicable cure period
(whether or not any such default has been timely cured) under this Lease on more
than three (3) occasions during the Lease Term, and (iii) except for a Permitted
Assignment, Tenant has not Transferred this Lease nor sublet all or any part of
the Premises, it being understood that the Extension Option is personal to the
original named Tenant under this Lease or successor in a Permitted Assignment.
In the event of any such Transfer or sublease, all unexercised Extension Option
shall lapse and shall be null and void and of no further force or effect. After
exercise of the Extension Option by Tenant in accordance with the foregoing
provisions, Tenant's obligation to renew shall be irrevocable by Tenant.
41.02. Base Monthly Rent during each thirty (30) month period of the
Extension Term shall be computed as follows. As used here, the term, "Index,"
shall mean the Consumer Price Index for all Urban Consumers, U.S. City Average
(1982/82=100), the term, "Extension Adjustment Month," shall mean the first
(1st) month of each Extension Term and the thirty-first (31st) month of the
Extension Term, the term, "Extension Comparison Index," shall mean the Index
published and which is in effect the three (3) months preceding the commencement
of each Extension Adjustment Month, and the term, "Beginning Index," shall mean
the Index published which is in effect during the thirty-fourth (34th) month of
the Lease Term. Base Monthly Rent for each thirty (30) month period during the
Extension Term shall be the product of the Base Monthly Rent for the
thirty-seventh (37th) through sixtieth (60th) months of the Initial Lease Term
as specified in Section 1.07 above, multiplied by a fraction, the numerator
being the applicable Extension Comparison Index and the denominator being the
Beginning Index. In no event, however, shall the Base Monthly Rent during any
thirty (30) month period of any Extension Term be less than the Base Monthly
Rent due during the immediately preceding thirty (30) month period of the Lease
Term. Landlord will give Tenant notice of each increase by written invoice;
however, failure of Landlord to give such notice shall not be construed as a
waiver of the increase and any such increased amount shall accrue as rent. If
after this Lease is executed the Index is discontinued or revised, Landlord
reserves the right to use a conversion factor formula or table as may be
published by the Bureau of Labor Statistics or a different Index in order to
obtain substantially the same result.
42. OPTION TO MOVE TO A LARGER FACILITY
42.01. At any time during the Lease Term, Tenant shall have the option
to relocate to a larger facility owned by Landlord (the "Option to Relocate")
subject to the terms and conditions specified in this Article 42. The Option to
Relocate may be exercised by Tenant upon delivery of written notice to Landlord
(the "Relocation Notice") specifying (i) the amount of square footage and
location, if known by Tenant, of the premises into which Tenant desires to
relocate (the "Relocation Premises") and (ii) the date of Tenant's desired
relocation, which shall be not less than one hundred eighty (180) days from the
date of such notice. Tenant's right to exercise the Option to Relocate is
expressly conditioned upon (i) the Relocation Premises being a minimum of 50%
larger than the Premises covered by this Lease, (ii) at the time of delivery of
Tenant's Relocation Notice and at the time of such relocation, Tenant shall not
be in default under this Lease beyond the applicable cure period, (iii) Tenant
has not previously been in default after the expiration of the applicable cure
period under this Lease on more than three (3) separate occasions during the
Lease Term, (iv) except for a Permitted Assignment, Tenant shall have not
Transferred all or any part of the Premises or Tenant's interest in the Lease,
it being understood that the Option to Relocate is personal to the original
named Tenant under the Lease or successor in a Permitted Assignment, (v)
Landlord's then owning an available facility capable of accommodating Tenant's
requested Relocation Premises, it being agreed that Landlord shall have no
obligation to locate or construct a facility or relocate or displace other
tenants of Landlord on Tenant's behalf, and (vi) Tenant's execution of a new
Lease Agreement for the Relocation Premises containing substantially the same
terms and conditions as this Lease, but providing for (I) Base Monthly Rent
equal to the fair rental value of the Relocation Premises as reasonably
determined by Landlord, and (II) a minimum lease term equal to the then
remaining Lease Term, including the Extension Options. Upon delivery of
possession of the Relocation Premises by Landlord, Tenant shall vacate the
Premises and leave the same in the condition required under the Lease upon such
vacation and restoration, and this Lease, including without limitation, the
Expansion Option, shall thereupon terminate; provided, however, that nothing in
this Article 42. is intended to or shall be deemed to release any party from, or
waive any of either party's rights with respect to, any obligations of either
party or any default by either party under the Lease prior to such vacation of
the Premises.
43. EXPANSION OF PREMISES
43.01. Tenant is hereby granted the option (the "Expansion Option") if
Landlord decides to construct or causes to be constructed an expansion of the
building in which the Premises are located which expansion shall include
approximately one hundred forty-five thousand (145,000) square feet of warehouse
space located on the South portion of the real property included in the Project
as shown on Exhibit "A-1" attached hereto as "Future Expansion" (the "Expansion
Premises"). The Expansion Option can only be initiated as follows:
A. Ninety (90) days before Landlord executes a Letter of Intent for the
Expansion Premises or six (6) months prior to Landlord's estimated beginning of
construction of the Expansion Premises, whichever occurs first, Landlord shall
provide Tenant with written notice of the financial terms and conditions on
which Landlord intends to offer the Expansion Premises to a third party ("ROFO
Notice"). Tenant's right to lease the Expansion Premises shall be for the same
Base Monthly Rent, term, and other financial terms and condition as are
specified in the ROFO Notice (the "ROFO"). The ROFO Notice shall be given as
provided in Section 27.01 above. Tenant shall have a period of ten (10) business
days from receipt of the ROFO Notice to accept or reject the ROFO. Tenant shall
accept the ROFO by delivery of written notice of acceptance to Landlord within
the foregoing ten (10) business day period and Landlord shall be free to
continue to negotiate with its perspective tenant(s) during such period. In the
event Tenant provides a written rejection, does not accept the ROFO in its
entirety, makes modifications to the ROFO terms, or otherwise fails to provide
written notice of acceptance to Landlord within the foregoing ten (10) business
day period, then Tenant shall be deemed to have rejected the ROFO and Landlord
shall be free to lease the offered portion of the Expansion Premises specified
in the ROFO Notice to any third party at any time on substantially the same or
more beneficial terms to Landlord set forth in the ROFO Notice. A reduction in
the lease term or size of the Expansion Premises of ten percent (10%) or less
shall not be deemed a substantial change in terms. A reduction in the lease rate
of seven percent (7%) or less shall not be deemed a substantial change in terms.
If a substantial change in terms shall occur, Landlord must reoffer the
Expansion Premises to Tenant in the same fashion as described herein. Tenant
shall have a period of only seven (7) business days to accept or reject the
ROFO. If Tenant provides a written rejection, does not accept the ROFO in its
entirety, makes modifications tot he ROFO terms or otherwise fails to provide
written notice of acceptance to Landlord within the foregoing seven (7) business
day period, then Tenant shall be deemed to have rejected the ROFO and Landlord
shall be free to lease the offered portion of the Expansion Premises specified
in the ROFO Notice to any third party at any time on substantially the same or
more beneficial terms to Landlord set forth in the ROFO Notice; or
B. If Landlord determines it desirable, in its sole discretion, to
build the Expansion Premises on the speculative basis and without a Letter of
Intent or proposed third party tenant, Landlord, on one (1) occasion shall first
delivery to Tenant a written notice of the commencement of construction
including the terms that it expects to lease to a third party or third parties
(the "ROFO Notice"). Tenant's right to lease the Expansion Premises shall be for
the same Base Monthly Rent, term, and other financial terms and conditions as
specified in the ROFO Notice (the "ROFO"). The ROFO Notice shall be given as
provided in Section 27.01 above. Tenant shall have a period of ten (10) business
days from receipt of the ROFO Notice to accept or reject the ROFO. Tenant shall
accept the ROFO by delivery of written notice of acceptance to Landlord within
the foregoing ten (10) business day period and Landlord shall be free to
continue to negotiate with any perspective tenants during such period. In the
event Tenant provides a written rejection, does not accept the ROFO in its
entirety, makes modifications to the ROFO terms or otherwise fails to provide
written notice of acceptance to Landlord within the foregoing ten (10) business
day period, then Tenant shall be deemed to have rejected the ROFO and Landlord
shall be free to lease or offer for lease all or any portion of the Expansion
Premises specified in the ROFO Notice to any third party at any time in
substantially the same or more beneficial terms to Landlord set forth in the
ROFO Notice. A reduction in the lease term, or offered portion of the Expansion
Premises of ten percent (10%) or less shall not be deemed a substantial change
in terms. A reduction in the lease rate of seven percent (7%) or less shall not
be deemed a substantial change in terms. If a substantial change in terms shall
occur, Landlord must reoffer the Expansion Premises to Tenant in the same
fashion as described herein.
Tenant shall have a period of only seven (7) business days to accept or reject
the ROFO. If Tenant provides a written rejection, does not accept the ROFO in
its entirety, makes modifications tot he ROFO terms or otherwise fails to
provide written notice of acceptance to Landlord within the foregoing seven (7)
business day period, then Tenant shall be deemed to have rejected the ROFO and
Landlord shall be free to lease the offered portion of the Expansion Premises
specified in the ROFO Notice to any third party at any time on substantially the
same or more beneficial terms to Landlord set forth in the ROFO Notice. Landlord
agrees that construction of the Expansion Premises shall not unreasonably
interfere with Tenant's Permitted Use or occupancy of the Premises.
The Expansion Option shall be exercisable by Tenant on the express
conditions that (i) at the time of delivery of the Expansion Notice, Tenant
shall not be in default under this Lease after expiration of the applicable cure
period, (ii) Tenant has not previously been in default after expiration of the
applicable cure period under this Lease on more than three (3) separate
occasions during the Lease Term, and (iii) Tenant has not assigned this Lease or
sublet all or any part of the Premises, it being understood that the Expansion
Option is personal to the original named Tenant under this Lease or successor in
a Permitted Assignment. In the event of any such assignment or sublease, the
Expansion Option shall lapse and be null and void and of no further force and
effect.
43.02. The Expansion Premises shall be designed and constructed by
Landlord as a connected expansion of the original building in which the Premises
are located. The final plans and specifications of the Expansion Premises (the
"Plans") shall be delivered to Tenant within ninety (90) days after the exercise
by Tenant of the Expansion Option. Tenant shall have ten (10) days to review and
specify in writing to Landlord any reasonable objections of Tenant to the Plans.
If Tenant shall disapprove the Plans, Tenant and Landlord shall cooperate in
good faith to resolve the dispute as promptly as possible. After Tenant and
Landlord have approved of the Plans, Tenant and Landlord shall agree in good
faith on the Base Monthly Rent applicable to the Expansion Premises. In the
event Tenant and Landlord are unable to agree upon the Plans and/or Base Monthly
Rent (including, without limitation, any interim adjustments) for the Expansion
Premises within thirty (30) days after Landlord's presentation of the Plans to
Tenant, then Landlord's obligations to construct and lease the Expansion
Premises to Tenant and Tenant's obligations to lease the Expansion Premises from
Landlord shall be null and void and of no further force and effect. In the event
Landlord and Tenant are unable to agree upon the Plans and/or Base Monthly Rent
as specified above, at the expiration of the applicable time period specified
above Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of
all costs incurred by Landlord pursuant to the provisions of this Article 43. In
the event Landlord and Tenant agree upon the Plans and Base Monthly Rent in
accordance with the foregoing provisions, Landlord shall then construct the
Expansion Premises in substantial conformance with the approved Plans and in
accordance with a construction schedule agreed to in good faith by Landlord and
Tenant within thirty (30) days after agreement by Landlord and by Tenant of the
Plans and Base Monthly Rent. Such construction schedule shall provide for
Landlord's substantial completion of construction of the Expansion Premises
within two hundred ten (210) days of such agreement, subject to extension for
delays caused by Tenant and force majeure events as specified in Section 38.11
above. Upon Landlord and Tenant's agreement as to the Plans, Base Monthly Rent,
and construction schedule for the Expansion Premises, Tenant's obligations to
lease the Expansion Premises shall be irrevocable.
43.03. Effective upon substantial completion of the improvements
constituting the Expansion Premises, (i) the Expansion Premises shall become,
for all purposes, a part of the Premises as defined in Section 1.01 of this
Lease, and shall be subject to all terms, covenants, and conditions hereof, (ii)
the Base Monthly Rent shall be increased to include the Base Monthly Rent
applicable to the Expansion Premises in an amount specified in Section 43.02
above, and such total amount shall become, for all purposes, the "Base Monthly
Rent" defined in Section 1.07 of this Lease, (iii) all Additional Rent shall be
adjusted to include payment for the Expansion Premises, and (iv) the Lease Term
for the Expansion Premises shall be the longer of (I) the period coterminous
with the Lease Term of the Original Premises, including any
Extension Term(s) resulting from any properly exercised Extension Options, and
(II) five (5) years. The Expansion Premises shall be deemed to be "substantially
completed" at such time as the Expansion Premises have received a Temporary
Certificate of Occupancy allowing for Tenant's functional occupancy thereof, and
Landlord has completed construction of the Expansion Premises in substantial
accordance with the approved Plans without material interference due to
uncompleted portions of the Expansion Premises or defective items. Within
fifteen (15) days after substantial completion of the improvements constituting
the Expansion Premises, representatives of Landlord and Tenant agree to conduct
a "walk through" inspection of the Expansion Premises and reasonably agree on
any remaining punchlist items to be completed after such date. Any such
remaining punchlist items shall be completed by Landlord within a commercially
reasonable period of time after such walk-through inspection. Landlord
represents and warrants that Landlord shall complete the Expansion Premises in a
good and workmanlike fashion, in substantial conformance with the approved
Plans, in compliance with all applicable laws and regulations, using new
materials, and reasonably free of construction defects. Upon receipt from Tenant
of notice of any portion of the Expansion Premises which does not conform to the
foregoing representation and warranty within the two (2) year period commencing
on the date of substantial completion, Landlord agrees to promptly correct the
same. Tenant understands and agrees that Tenant must provide written notice to
Landlord within the two (2) year period specified above and that the
representation and warranty shall expire on the second (2nd) anniversary of the
date of substantial completion. Thereafter during the Lease Term, except as set
forth in this Section 43.03 above, Landlord will be under no obligation to
alter, change, decorate or improve the Expansion Premises. Except as expressly
set forth hereinabove in this Section 43.03, nothing contained in this Lease,
including any Exhibits hereto, shall be interpreted or is intended in any way as
a representation or warranty by Landlord as to the quantity, quality, or fitness
of the Expansion Premises, including, without limitation, a fitness for any
particular purpose, each of which is expressly disclaimed by Landlord hereunder.
The date of substantial completion shall be established by Landlord and Tenant's
execution of a Commencement Date Certificate substantially in the form attached
hereto as Exhibit "E," which the parties agree to execute within ten (10) days
of such date.
44. [INTENTIONALLY DELETED]
45. [INTENTIONALLY DELETED]
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year indicated by Landlord's execution date as written below.
Individuals signing on behalf of a Tenant warrant that they have the
authority to bind their principals. In the event that Tenant is a corporation,
Tenant shall deliver to Landlord, concurrently with the execution and delivery
of this Lease, a certified copy of corporate resolutions adopted by Tenant
authorizing said corporation to enter into and perform the Lease and authorizing
the execution and delivery of the Lease on behalf of the corporation by the
parties executing and delivering this Lease. THIS LEASE, WHETHER OR NOT EXECUTED
BY TENANT, IS SUBJECT TO ACCEPTANCE AND EXECUTION BY LANDLORD, ACTING ITSELF OR
BY ITS AGENT ACTING THROUGH ITS PRESIDENT, VICE PRESIDENT, OR ITS DIRECTOR OF
LEASING AND MARKETING.
Landlord: DP Industrial, LLC, a Tenant: Brightpoint North America, L.P.,
Delaware limited liability company a Delaware limited partnership
By: DP Advisors, a Delaware limited liability
company, its Property Manager
By: /s/ Xxxxxxx X. Xxxxxxx By: J. Xxxx Xxxxxx
----------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxx
Its: Member Its: President
-----------------------------------
Date: October 1, 2004 Date: October 1, 2004
---------------------------------- ----------------------------------
(Execution Date) (Execution Date)
EXHIBIT "A"
FLOOR PLAN
(WAREHOUSE SITE PLAN)
Exhibit "A" to lease dated May 28, 2004, by
and between DP Industrial, LLC, a Delaware
limited liability company, by: DP Advisors,
a Delaware limited liability company, its
Property Manager, and Brightpoint North
America, L.P., a Delaware limited
partnership
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
DP Industrial, LLC
/s/ J. Xxxx Xxxxxx
-----------------------------------
Brightpoint North America, L.P.,
EXHIBIT "B"
TENANT IMPROVEMENTS
Landlord will provide for $135,000.00 in Tenant Improvements Allowance.
Improvements to be determined by Tenant and approved by Landlord at a future
date, provided such allowance is utilized during the initial five (5) year term
of the Lease.
Exhibit "B" to lease dated May 28, 2004, by
and between DP Industrial, LLC, a Delaware
limited liability company, by: DP Advisors,
a Delaware limited liability company, its
Property Manager, and Brightpoint North
America, L.P., a Delaware limited
partnership
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
DP Industrial, LLC
/s/ J. Xxxx Xxxxxx, President
------------------------------------
Brightpoint North America, L.P.,
By: Brightpoint North America, Inc.,
its general partner
EXHIBIT "C"
(TENANT QUESTIONNAIRE)
TENANT QUESTIONNAIRE REGARDING USE OF
PREMISES AT 0000 XXXXXXX XXXXX, XXXX, XXXXXX
Yes No
1. Will any manufacturing process be done on the subject premises? [ ] [x]
2. Do you or your company intend to use any internal combustion
engines greater than 50 HP at the subject premises? [x] [ ]
3. Do you or your company intend to use processes that involve
mixing, blending, or processing any solvents, adhesives, paints
or coatings? [ ] [x]
4. Will your operation at the premises create any dusts or smoke? [ ] [x]
5. At the subject premises, will you or your company refine any
liquids or solids? Reclaim any metals? [ ] [x]
6. Will you or your company plate or coat anything at the subject
premises? [ ] [x]
7. Will any process be used on the Premises which requires equipment
for the heating of materials (i.e., boilers, furnaces, broilers, baking
ovens, etc.)? [ ] [x]
8. Will you handle or store solvents or motor fuels on the premises? [x] [ ]
9. Will you use or store any acids at the premises? [ ] [x]
10. Will you or your company use any chemical processes at the premises? [ ] [x]
11. Will you or your company use any solvents for clean up? [ ] [x]
12. Is your business a dry cleaner, restaurant, body shop, gasoline station,
printer or part coater? [ ] [x]
13. Will you or your company use any process which requires lead or
melting or soldering with lead or lead alloys? [ ] [x]
14. Do you or your company have a Hazardous Materials Management plan? [ ] [x]
If you have marked "Yes" to any of the questions as to processes, chemicals,
including types and quantities, to be used on the Premises, please give a more
detailed explanation below and on a second page if necessary.
#2, 8 Emergency Backup Generator to be installed. It will be self contained with
all environmental factors abated. The generator will be tested twice per year.
Name of person completing form:
Xxxx Xxxxxxxxx
Company name and address:
Brightpoint North America, L.P., 000 Xxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000
Exhibit "C" to lease dated May 28, 2004, by
and between DP Industrial, LLC, a Delaware
limited liability company, by: DP Advisors,
a Delaware limited liability company, its
Property Manager, and Brightpoint North
America, L.P., a Delaware limited
partnership
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
DP Industrial, LLC
/s/ J. Xxxx Xxxxxx, President
------------------------------------
Brightpoint North America, L.P.,
By: Brightpoint North America, Inc.,
its general partner
EXHIBIT "D"
RULES AND REGULATIONS
It is further agreed that the following rules and regulations shall be and are
hereby made a part of this Lease, and the Tenant agrees that its employees and
agents, or any others permitted by the Tenant to occupy or enter said Premises,
will at all times abide by said rules and regulations and that a default in the
performance and observance thereof shall operate the same as any other defaults
herein:
1. The sidewalks, entries, and driveways shall not be obstructed by the
Tenant, or its agents, or used by them for any purpose other than
ingress and egress to and from their Premises. Landlord may remove any
such obstruction or thing (unauthorized by Landlord) without notice or
obligation to Tenant.
2. Tenant shall not place any movable objects, including antennas, outdoor
furniture, etc., in the parking areas, landscaped area or other areas
outside of said Premises, or on the roof of said Premises.
3. No person shall disturb the occupants of this or adjoining Buildings or
Premises by the use of any radio or musical instrument or by the making
of loud or improper noises.
4. Parking any type of recreational vehicles is specifically prohibited.
No vehicle of any type shall be stored in the parking areas at any
time. In the event that a vehicle is disabled, it shall be removed
within 48 hours. There shall be no "For Sale" or other advertising
signs on or about any parked vehicle. All vehicles shall be parked in
the designated parking areas in conformation with all signs and other
markings.
5. Lessee shall not use, keep or permit to be used or to be kept any foul
or noxious gas or substance in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable
to Lessor or other occupants of the Building by reason of noise, odors
and/or vibrations, or interfere in any way with other Lessees or those
having business therein. Lessee shall maintain the leased Premises free
from mice, bugs, and ants attracted by food, water or storage
materials.
6. Lessor reserves the right to exclude or expel from the complex any
person who in the judgment of the Lessor, is intoxicated or under the
influence of liquor or drugs or who shall in any manner do any act in
violation of the Rules and Regulations of the said project.
7. Lessee shall give Lessor prompt notice of any defects in the water,
lawn sprinkler, sewage, gas pipes, electrical lights and fixtures,
heating apparatus, or any other service equipment or any dangerous or
hazardous condition existing on the property.
8. No outside storage of pallets, boxes, cartons, drums or any other
containers or materials used in shipping or transport of goods is
allowed. Tenant shall place all refuse in proper receptacles provided
by Tenant at Tenant's expense on the Premises or inside enclosures (if
any) provided by Landlord for the Building, and shall keep sidewalks
and driveways outside the Building and lobbies, corridor stairwells,
ducts or shafts of the Building free of all refuse.
9. No outside storage of pallets, boxes, cartons, drums or any other
containers or materials used in shipping or transport of goods is
allowed. Tenant shall place all refuse in proper receptacles provided
by Tenant at Tenant's expense on the Premises or inside enclosures (if
any) provided by
Landlord for the Building, and shall keep sidewalks and driveways
outside the Building and lobbies, corridor stairwells, ducts or shafts
of the Building free of all refuse.
10. All moveable trash receptacles provided by the trash disposal firm must
be kept in the trash enclosure areas where provided for that purpose.
11. The Landlord reserves the right to make such other and further
reasonable rules and regulations as in its judgment may from time to
time be needful and desirable for the safety, care and cleanliness of
the Premises and for the preservation of good order therein.
12. Lessee shall not use any method of heating or air conditioning other
than that supplied by Lessor without the consent of Lessor.
13. No person shall go on the roof without Lessor's permission.
14. All goods, including material used to store goods, delivered to the
Premises of Lessee shall be immediately moved into the Premises and
shall not be left in parking or receiving areas overnight.
15. Tenants shall not do or permit anything to be done in their Premises or
bring or keep anything therein which will in any way obstruct or
interfere with the rights of other Tenants. or do, or permit anything
to be done in their Premises which shall, in the judgment of the
Landlord or its manager, in any way injure or annoy them, or conflict
with the laws relating to fire, or with the regulations of the fire
department or with any insurance policy upon the Building or any part
thereof or any contents therein or conflict with any of the of the
Rules and Ordinances of the public Building or health authorities.
16. All electrical equipment used by Tenants shall be U.L. approved.
Nothing shall be done or permitted in Tenant's Premises, and nothing
shall be brought into or kept in the Premises which would impair or
interfere with any of the Building services or the proper and economic
heating, cooling, cleaning or other servicing of the Building or the
Premises. Tenant's computers and other equipment are hereby expressly
allowed.
17. Tenants shall not install or operate any steam or gas engine or boiler,
or carry on any mechanical business in the Building. The use of oil,
gas or inflammable liquids for heating, lighting or any other purpose
is expressly prohibited. Explosives or other articles deemed extra
hazardous shall not be brought into the Building. Tenants shall not use
any other method of heating than that supplied by Landlord.
18. Tenants shall not remove any carpet, or wall coverings, window blinds,
or window draperies in their Premises without the prior written
approval from Landlord
19. No animals, birds or pets (other than seeing-eye dogs) of any kind
shall be allowed in Tenant's Premises or Building.
20. The water closets, urinals, waste lines, vents or flues of the Building
shall not be used for any purpose other than those for which they were
constructed, and no rubbish, acids, vapors, newspapers or other such
substances of any kind shall be thrown into them. The expense caused by
any breakage, stoppage or damage resulting from a violation of this
rule by any Tenant, its employees, visitors, guests or licensees, shall
be paid by Tenant.
21. All decorating, carpentry work, or any labor required for the
installation of Tenant's (a) equipment, such as an alarm system,
computer, telephone/telegraph equipment, lines, cables or
other electrical devices; or (b) furnishings or other property shall be
performed at Tenants expense, and will not require Landlord's prior
verbal or written approval. Should any such work require alterations
that affect the heating, ventilation, air conditioning, plumbing,
electrical or mechanical systems of the Building, the roof, or the
structure of the Building, Landlord's prior written approval will be
required. Structural changes are defined as changes that affect a vital
and substantial portion of the Premises, changing its characteristic
appearance, fundamental purpose of its erection or uses, or a change of
such a nature as to affect the very realty itself, extraordinary in
scope and effect, or unusual in expenditure.
22. The Premises shall not be used or permitted to be used for residential,
lodging or sleeping purposes.
23. Except as permitted by landlord, Tenant shall not xxxx upon, paint
signs upon, cut, drill into, drive nails or screws into, or in any way
deface the walls, ceilings, partitions or floors of their Premises or
of the Building, and the repair cost of any defacement, damage, or
injury caused by Tenant, its agents or employees shall be paid for by
the Tenant.
24. The cost of repairing any damage to the public partitions of the
Building or the public facilities, or to any facilities used in common
with other tenants, caused by any Tenant or the employees, licensees,
agents or invitees of the Tenant, shall be paid by such Tenant.
25. Landlord reserves the right to restrict or prohibit canvassing,
soliciting or peddling in the Building.
Exhibit "D" to lease dated May 28, 2004, by
and between DP Industrial, LLC, a Delaware
limited liability company, by: DP Advisors,
a Delaware limited liability company, its
Property Manager, and Brightpoint North
America, L.P., a Delaware limited
partnership
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
DP Industrial, LLC
/s/ J. Xxxx Xxxxxx, President
------------------------------------
Brightpoint North America, L.P.,
By: Brightpoint North America, Inc.,
its general partner
EXHIBIT "F"
SIGN CRITERIA
SECTION I. PURPOSE AND INTENT
The purpose of Xxxxxxx Properties planned sign program is to provide
minimum standards to safeguard life, health, property and the public
welfare and to provide the means for adequate identification and
advertisement of both the existing and future business by regulating
and controlling the design, location, and maintenance of all signs.
The intent of this program is to assure compatibility of proposed signs
with existing signs by providing tenants with individual identification
while maintaining overall consistency. All existing and proposed signs
must comply with the standards set forth in this planned sign program
and applicable City codes.
SECTION II. GENERAL SIGN REQUIREMENTS
1. Compliance Required
No person shall erect, re-erect, construct, enlarge, alter, repair,
move, improve, remove, convert, or equip any sign or sign structure, or
paint a new wall sign or cause or permit the same to be done, contrary
to or in violation of any of the provisions of this planned sign
program. Conformance will be strictly enforced and any installed
non-conforming or unapproved signs must be brought into conformance at
the expense of the tenant.
2. Sign Content
All signs shall be limited to tenant's trade name and/or logo or
logo-type. Wording of signs shall not include the product sold except
as part of the tenant's trade name or logo. Registered trademarks may
be allowed subject to approval by landlord.
3. Administration
a. Each tenant shall submit or cause to be submitted to the Landlord
for approval prior to fabrication at least 3 copies of detailed
sign drawings covering the location, size, layout mounting method,
design, color, and materials of the proposed sign or signs.
b. After the Landlord has approved the sign drawings, tenant shall
submit the plans to the City for approval. If any changes are made
in the Landlord approved plans by the Planning Department tenant
shall re-submit revised plans to the Landlord for review and
approval prior to fabrication and installation.
c. All permits and fees for signs and their installation shall be
obtained and paid for by the tenant or his representative.
d. Tenant shall be fully responsible for their sign and choice of
sign contractor. Tenant sign contractor shall be licensed to work
in the State of Nevada and the appropriate local jurisdiction and
shall carry workers compensation and public liability insurance in
the amount of $500,000.00 per occurrence against all damage
suffered or done to any person and/or property while engaged in
the construction or erection of signs.
e. Tenant shall be responsible for the fulfillment of all
requirements and specifications of this document and any
appropriate City Code.
f. All submittals should be addressed to your leasing agent:
DP Partners
Xxxx Xxxxxx Xxx 0000
Xxxx, Xxxxxx 00000
4. Prohibited Signs
The following signs shall not be permitted:
a. Signs which incorporate in any manner any flashing, moving or
intermittent lighting or which emit noise;
b. Signs which by color, wording, design, location, or illumination
resemble or conflict with any traffic control device or with safe
and efficient flow of traffic;
c. Signs that create a safety hazard by obstructing clear view of
pedestrian and vehicular traffic;
d. Flags, banners and pennants when used for advertising purposes.
National or state flags displayed in an appropriate manner shall not
be prohibited;
e. Signs projecting into the public right-of-way;
f. Any proposed sign that would adversely affect conforming residential
development or conforming tenant signing.
g. Portable signs;
h. Signs which project above a parapet or the highest point of a roof.
5. Proper Maintenance Required
All signs, together with all of their supports, braces, guys and
anchors, shall be properly maintained with respect to appearance,
structural and electrical features. The display surfaces of all signs
shall be kept neatly painted or posted at all times. All signs shall be
subject to maintenance provisions as follows:
a. All signs shall be refinished to remove rust or other corrosion due
to the elements and any cracked or broken aces and malfunctioning
lamps shall be replaced within thirty (30) days following
notification by Landlord.
b. Any location where business goods are no longer sold or produced or
where services are no longer provided shall have thirty (30) days
following move out to remove any remaining or derelict signs or copy
therein and restore the mounting surface to a good and satisfactory
condition.
Exhibit "F" to lease dated May 28, 2004, by
and between DP Industrial, LLC, a Delaware
limited liability company, by: DP Advisors,
a Delaware limited liability company, its
Property Manager, and Brightpoint North
America, L.P., a Delaware limited
partnership
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
DP Industrial, LLC
/s/ J. Xxxx Xxxxxx, President
------------------------------------
Brightpoint North America, L.P.,
By: Brightpoint North America, Inc.,
its general partner
EXHIBIT "G"
GUARANTY
(Lease)
This Guaranty is entered into by Brightpoint, Inc., an Indiana
corporation ("Guarantor"), for the benefit of DP Industrial LLC, a Delaware
limited liability company, ("Landlord"), with reference to the following facts:
A. Brightpoint North America, L.P., a Delaware limited partnership
("Tenant"), desires to lease from Landlord certain premises located at 0000
Xxxxxxx Xxxxx, Xxxx, Xxxxxx.
B. Guarantor desires and requests that Landlord lease such property to
Tenant as Tenant requests and in consideration thereof Guarantor hereby
guarantees and agrees as follows:
o Guarantor hereby unconditionally guarantees the prompt
payment, discharge and performance of all the obligations, duties, liabilities,
and undertakings of Tenant under any note, application, financial statement, of
other instrument executed by Tenant or entered into between Tenant and Landlord
(including, without limiting the foregoing, the Lease between Landlord and
Tenant of even date (the "Lease"), together with the full payment of any and all
sums of money which are now or may hereafter become due by Tenant to Landlord,
whether by acceleration or otherwise. (Such obligations, duties, liabilities,
undertakings and indebtedness of Tenant to Landlord are hereafter referred to as
the "Obligations"). Without limiting the foregoing, Tenant's Obligations shall
include those under the Extension Term(s), as such term is defined in this
Lease.
o Landlord may in its absolute discretion and without
prejudice to or in any way limiting or lessening the liability of Guarantor
under this Guaranty, and without further authorization from or notice to
Guarantor (even though Tenant's financial condition may have deteriorated since
the date hereof), enter into such leases and other agreements with Tenant as
Landlord, in its sole discretion, may elect, including renewals, modifications,
or extensions of any Obligations and any instrument or agreement evidencing any
Obligations; grant extensions of time or other indulgences; take or give up or
modify, vary, exchange, renew or abstain from performing or taking advantage of
any security; accept or make compositions, or other arrangements; discharge or
release any party or parties; realize on any security and otherwise deal with
Tenant and other parties, any security; or any leased property as Landlord may
deem expedient. Guarantor hereby consents to and waives notice of any
substitution, elimination or addition of any lease property and no such event or
the amendment, modification, renewal or termination of any lease or any
instrument or agreement evidencing any Obligation shall release or discharge
Guarantor from its Obligations hereunder. Guarantor waives any defenses arising
out of disability or other defenses of Tenant, by reason of cessation or for any
reason whatsoever of the liability of Tenant.
o This is a continuing Guaranty and covers all Obligations of
Tenant, whether now existing or hereafter arising, and where more than one
Tenant, the several Obligations of each as well as their joint Obligations,
including those incurred or to be incurred by Tenant under a commitment issued
by Landlord up to such time as Landlord shall have received notice in writing by
Guarantor at Landlord's address set forth in the Lease of even date herewith, to
make no further agreement on the security of this Guarantee. In giving this
Guarantee, Guarantor expressly excuses Landlord from any requirement of
disclosure by Landlord of any information it may now have or hereafter acquire
concerning Tenant's credit, collateral, character or financial condition.
o This Guaranty covers any Obligations due or owing from time
to time and at any time from Tenant to Landlord, and no payments made by or on
behalf of Guarantor to Landlord shall be held to discharge or diminish the
continuing liability of Guarantor hereunder.
o All debts and liabilities, present and future of Tenant to
Guarantor, or any of them, are hereby subordinated to the Obligations of Tenant
to Landlord. After an event of default under the Lease by Tenant that is
continuing and has not been cured, all moneys received by Guarantor or its
representatives, successors or assigns, shall be received as trustee for
Landlord and shall be paid over to Landlord, and Guarantor further agrees, upon
any liquidation or distribution of the assets of Tenant, to assign to Landlord
upon its request all claims on account of all such debts and liabilities, to the
end that Landlord shall receive all dividends and payments on such debts and
liabilities until payment in full of all Obligations of Tenant to Landlord. This
Guaranty shall constitute such assignment in the event Guarantor shall fail or
refuse to execute and deliver such other or further assignment of such claims as
Landlord may request.
o Guarantor's Obligations under this Guaranty are joint and
several and are independent of Tenant's Obligations. A separate action may be
brought against any other guarantors, Tenant, or all, regardless of whether any
other guarantor, Tenant, or all are joined in such action.
o This Guaranty shall not be affected by Landlord's failure or
delay to enforce any of its rights. If Tenant defaults under the Lease, Landlord
can proceed immediately against Guarantor, Tenant, or all, any rights it has
under the Lease, or pursuant to applicable law. Guarantor hereby irrevocably
waives the right to require Landlord to (i) proceed against the Tenant, (ii)
proceed against or exhaust any security that Landlord holds from Tenant, or
(iii) pursue any other remedy in Landlord's power. Guarantor further irrevocably
waives any defense by reason of the disability of Tenant and any other defense
based on the termination of Tenant's liability from any cause.
o Guarantor waives the right to participate in any security
now or hereafter held by Landlord. Guarantor waives all presentments, demands
for performance, notices of default of Tenant under the Obligations, notices of
nonperformance, notices of protest and dishonor, and notice of acceptance of
this Guaranty and notice of the existence, creation, or incurring of new or
additional obligations.
o The liability of Guarantor hereunder shall not be affected
by (i) the release or discharge of Tenant in any receivership, bankruptcy, or
other proceeding, (ii) the impairment, limitation, or modification of the
liability of Tenant or the estate of Tenant in bankruptcy, or of any remedy for
the enforcement of Tenant's liability under this Lease resulting from the
operation of any present or future provision of any federal or state bankruptcy
or insolvency law or other statute or from the decision of any court, (iii) the
rejection or disaffirmance of the Lease in any such proceedings, (iv) the
assignment or transfer of the Lease by Landlord, (v) any disability or other
defense by Tenant, (vi) the cessation from any cause whatsoever of the liability
of Tenant, (vii) the exercise by Landlord of any of its rights or remedies
reserved under the Lease or by law, or (viii) the termination of the Lease.
o No assignment, sublease or other Transfer (as such term is
defined in the Lease), or Permitted Assignment (as such term is defined in the
Lease) of Tenant's interest in the Premises or Lease or any portion thereof
shall affect, terminate, or release Guarantor's obligations under this Guaranty
unless expressly agreed in writing by Landlord.
o Guarantor hereby covenants and agrees to deliver such public
financial statements and estoppel and other certificates and documentation as
may be reasonably requested by Landlord and its successors for purposes of the
sale, financing, refinancing of the Lease, or the Premises or Project (each, as
defined in the Lease).
o Where Tenant is a corporation, partnership, limited
liability company, or other entity or association or a receiver, trust or other
fiduciary, Landlord is not to be concerned to see or inquire into the powers of
Tenant or its directors, officers, partners, members, managers, associates or
other agents acting or purporting to act on its behalf, Guarantor hereby
representing that such powers exist, and agreements entered into with Landlord
in the professed exercise of such powers shall be deemed to form part of the
obligations guaranteed, even though the incurring of such obligations be in
excess of the powers of Tenant or of the directors, partners, officers, members,
managers, associates or other agents thereof, or shall be in any way irregular
or defective or informal.
o Guarantor agrees to pay all reasonable attorneys' fees,
costs and expenses which may be incurred by Landlord in the enforcement of this
Guaranty or any of the Obligations of Tenant or of Guarantor where Landlord
prevails.
o This Guaranty shall inure to the benefit of Landlord, its
successors and assigns and shall bind the heirs, administrators, executors,
successors and assigns of Guarantor, and shall be construed as the joint and
several obligations of Guarantor where there is more than one.
o This Guaranty shall be construed in accordance with the laws
of the State of Nevada. This Guaranty and all of the rights and obligations
hereunder shall be governed by and construed in accordance with the laws of the
State of Nevada in effect from time to time. The parties hereby agree that all
litigation resulting under this Guaranty shall be under the sole and exclusive
jurisdiction of the Second Judicial District Court in and for the County of
Washoe, State of Nevada, and the parties hereby submit to exclusive
jurisdiction, service of process, and venue thereunder.
o This Guaranty is in addition to and not exclusive of the
guarantee of any other guarantor and of any and all prior guarantees by any
Guarantor of obligations of Tenant to Landlord.
o This writing is intended by Guarantor as a final, complete
and exclusive expression of Guarantor's agreement. No course of dealings, course
of performance, or trade usage, and no parole evidence of any nature, shall be
used to supplement or modify any terms. There is no condition to the
effectiveness of this Guaranty.
o Guarantor hereby jointly and severally represent and warrant
to Landlord that Guarantor is aware of and has read the Lease and understand
that their obligations as the Guarantor of the Lease may subject their assets to
liability.
o Each individual executing this Guaranty on behalf of
Guarantor individually represents and warrants to Landlord (i) that he or she
has the full power and authority to legally bind Guarantor to the terms hereof,
and (ii) this Guaranty has been duly authorized by all necessary corporate or
other action by Guarantor.
BRIGHTPOINT, INC., AN INDIANA CORPORATION
By /s/ J. Xxxx Xxxxxx
-----------------------------------------
Name: J. Xxxx Xxxxxx
---------------------------------
Title: President
--------------------------------
Dated: September 28, 2004
