Exhibit 10.3a
SECOND AMENDMENT TO LEASE AGREEMENT
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THIS SECOND AMENDMENT TO LEASE AGREEMENT (this "Second
Amendment") is made and entered effective as of the
8th day of November, 2002 by and between RESEARCH PARK/GE TENANCY IN
COMMON (hereinafter "Lessor") and PEI ELECTRONICS, INC.
(hereinafter "Lessee").
W I T N E S S E T H :
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WHEREAS, on or about March 26, 2001, the parties entered
into that certain Lease Agreement (the "Lease") whereby Lessee
leased from Lessor approximately 192,485 square feet of the
property and improvements described on Exhibit A to the Lease and
defined in the Lease as the Premises (the "Existing Premises");
and
WHEREAS, on or about May 10, 2001, the parties entered into
that certain First Amendment to Lease Agreement (the "First
Amendment") whereby the parties removed a lease contingency; and
WHEREAS, the parties desire to amend the Lease again to
provide for the construction of an additional 23,000 square foot
building (the "Expansion Premises") to be located on the real
property on which the Existing Premises is located, and to
provide for an extension of the Lease with respect to the
Existing Premises, all as more particularly set out herein (the
Existing Premises and the Expansion Premises are sometimes
collectively referred to herein as the "Premises").
NOW, THEREFORE, for and in consideration of the sum of ten
dollars ($10.00), plus other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
1. Lease Defined. Unless otherwise defined herein, all
capitalized terms shall have the meaning as set forth in the
Lease. As used herein, "Lease" shall mean the Lease as amended
by the First Amendment and this Second Amendment.
2. Construction of Expansion Premises.
(a) Lessor agrees to construct the Expansion Premises
on that part of the property more particularly described on
Exhibit A attached hereto and incorporated herein by reference,
such Expansion Premises to be constructed by Lessor at Lessor's
expense and in accordance with the plans and specifications. The
Expansion Premises shall be constructed based on the
development budget attached hereto as Exhibit B.
(b) Lessor agrees to deliver the Expansion Premises
upon Substantial Completion (defined herein) thereof, and shall
use commercially reasonable efforts to so deliver the Expansion
Premises by April 30, 2003 (the "Outside Delivery Date");
provided, however, that the Plans and the budgeted amount for the
Expansion Premises are agreed to by the parties in writing on or
before the Approval Date, and the Outside Delivery Date shall
automatically be extended for each day beyond the Approval Date
it takes until the parties have agreed on the Plans and the
budgeted amount for the Expansion Premises. In addition, the
Outside Delivery Date shall be extended by an amount of time
equal to any delays caused by Lessee or its agents, contractors,
architects, or authorized representatives or by reason of
strikes, lock-outs, labor troubles, inability to procure
materials, failure of power, governmental laws, codes, rules or
regulations, riots, insurrection, adverse weather conditions,
fire or other casualty, war, acts of terrorism, or other reasons
beyond Lessor's reasonable control . As used herein, the term
"Substantial Completion" shall mean, with respect to the
Expansion Premises, the issuance of a certificate of occupancy by
the appropriate governmental authority and the completion of all
construction work to be performed by Lessor except minor
punchlist items. As used herein the term "Delivery Date" shall
mean the date that Lessor delivers the Expansion Premises upon
"Substantial Completion."
3. Lease Term. The term of this Lease with respect to
both the Expansion Premises and the Existing Premises shall be
for a period of ten (10) years from and after the Delivery Date,
such that the Lease term with respect to the entire Premises
shall be coterminous, and the term of the Lease with respect to
the Existing Premises is hereby amended accordingly.
4. Rental Rate. The rent due per paragraph 6A of the
Lease shall be as set forth on Attachment 1.
If the Delivery Date falls on a day other than the
first day of the month, the rent on Attachment 1 shall be
prorated on a daily basis for such month assuming thirty (30)
days in the month. The term "Lease Year" regarding the Expansion
Premises shall mean each twelve (12) month period commencing on
the Delivery Date provided that if the Delivery Date falls on a
day other than the first day of the month, the first Lease Year
for the Expansion Premises shall include the remaining days in
the month in which the Delivery Date occurs and the twelve (12)
month period commencing on the first day of the next month
following the month to which the Delivery Date occurs and
thereafter each Lease Year for the Expansion Premises shall mean
each twelve (12) month period commencing on the first day of the
calendar month in each year which is the same as the first day of
the calendar month after the Delivery Date. For example, if the
Delivery Date is April 1, 2003 each Lease Year will be from April
1 of each year through March 31 of the following year, and if the
Delivery Date is April 15, 2003 the first Lease Year for the
Expansion Premise will be from April 15, 2003 through April 30,
2004 and thereafter each Lease Year shall be from May 1 of the
particular calendar year to April 30 of the following calendar
year.. On and after the Delivery Date, the Lease Year of the
Existing Premises shall be modified to coincide with the Lease
Year for the Expansion Premises.
5. Cancellation Option. Provided that no event of default
has occurred under the Lease or is existing either at the time
Lessee exercises the following Termination Option or, if Tenant
has exercised the Termination Option, on the "Termination Date"
(as hereafter defined), Lessee is hereby granted the option (the
"Termination Option") to cancel this Lease with respect to both
the Existing Premises and the Expansion Premises by providing
written notice of Lessee's intention to cancel (the "Termination
Notice") on or before the end of the sixth (6th) Lease Year for
the Expansion Premises (the "Notification Date") whereupon the
Lease shall terminate effective as of the last day of the seventh
(7th) Lease Year for the Expansion Premises (the "Termination
Date"). In the event the Termination Notice is not received by
Lessor on or before the Notification Date or if an event of
default has occurred under the Lease or is existing either at the
time Lessee exercises the Termination Option or on the
Termination Date, the Termination Option shall automatically and
without notice expire.
6. Option to Renew. Lessee shall have the option to
renew (the "Renewal Option") this Lease with respect to the
entire Premises for an additional period of sixty (60) months
from and after the end of the Lease Term (the "Option Period"),
by providing written notice to Lessor on or before the date 180
days prior to the expiration of the Lease term of Lessee's
intention to extend this Lease. The base rent for the first year
of the Option Period shall be 102% times the base rent applicable
at the end of the initial Lease Term as set forth on Attachment
1, and the base rent shall be increased by two percent (2.0%) at
the commencement of each Lease Year thereafter throughout the
remainder of the Option Period. If the Renewal Option is
exercised, all other terms and conditions of the Lease, except
for this paragraph 6, shall apply with respect to the entire
Premises during the Option Period.
7. Full Force and Effect. Except as modified hereby, the
Lease remains in full force and effect, the parties hereby
ratifying, reaffirming and republishing the Lease, as amended
hereby. All terms and conditions of the Lease, as amended
hereby, shall apply with respect to the Expansion Premises. This
Second Amendment shall be governed and construed in accordance
with the laws of the State of Alabama and shall be binding upon,
and shall inure to the benefit of, Lessee and Lessor and their
respective successors and assigns.
8. Authority. The person(s) executing this Second
Amendment on behalf of Lessee hereby represents and warrants in
their individual capacity that they are fully authorized to do so
and that this Second Amendment, as executed by them on behalf of
Lessee, constitutes the legal, valid and binding obligation of
Lessee enforceable in accordance with its terms.
9. Estoppel Certificate. Upon written request of Lessor,
within ten (10) days of the date of receipt of such written
request, Lessee agrees to execute and deliver to Lessor and/or
such other party as may be designated by Lessor, without charge,
an estoppel certificate confirming (except to the extent
otherwise set forth in the estoppel certificate) (i) that the
Lease is in full force and effect and has not been assigned,
modified, supplemented, or amended, (ii) the commencement date
and expiration date of the Lease; (iii) the current annual and/or
monthly base rent due under the Lease and the date through which
such rent has been paid; (iv) that all conditions of the Lease to
be performed by Lessor have been satisfied; (v) that there are no
defaults by either Lessor or Lessee under the Lease; (vi) that no
rents have been paid more than one (1) month in advance; (vii)
that Lessee has no existing defenses or off-sets against Lessor;
(viii) that Lessee has not assigned its interest under the Lease,
in whole or in part, nor has Lessee subleased all or any part of
the Premises; (ix) that Lessee is not subject to any federal or
state bankruptcy, insolvency or other creditors' rights
proceedings; (x) that Lessee has no options to purchase the
Premises or the land on which Premises is located, or any part
thereof or interest therein; and (xi) that Lessee has no options
to extend the term of the Lease except as provided in the Lease.
IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals effective as of the 8 day of November, 2002.
LESSEE:
ATTEST: PEI ELECTRONICS, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxx
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Its: Its: Contracts Manager
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LESSOR:
WITNESS: RESEARCH PARK - GE TENANCY IN COMMON
/s/ Xxxxx Xxxxxx By: /s/ Xxxxxx Samples
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Xxxxxx Samples, its authorized owner
STATE OF ALABAMA )
COUNTY OF MADISON )
I, the undersigned Notary Public in and for said County in
said State, hereby certify that XXXXXX SAMPLES, whose name as one
of the owners of RESEARCH PARK/GE TENANCY IN COMMON is signed to
the foregoing instrument and who is known to me, acknowledged
before me on this day that, being informed of the contents of
such instrument, he, as such owner and with full authority,
executed the same voluntarily.
Given under my hand this the 8th day of November, 2002.
/s/ Xxxxxx X. Xxxxx
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Notary Public
[NOTARIAL SEAL] My commission expires: Dec. 30, 0000
XXXXX XX Xxxxxxx )
COUNTY OF Madison )
I, the undersigned Notary Public in and for said County in
said State, hereby certify that Xxxx X. Xxxxxxx, whose name as
Contracts Manager of PEI ELECTRONICS, INC., a corporation, is
signed to the foregoing instrument and who is known to me,
acknowledged before me on this day that, being informed of the
contents of such instrument, he, as such officer and with full
authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand this the 8th day of November, 2002.
/s/ Xxxxxx X. Xxxxx
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Notary Public
[NOTARIAL SEAL] My commission expires: Dec. 30, 2002
EXHIBIT B
PEI EXPANSION
CONSTRUCTION BUDGET
23,000 SF
PRESENT
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SITE/LANDSCAPE $ 178,000
PROJECT LIGHTS 12,000
SHELL 623,300
MEZZANINE 156,000
INTERIOR 270,447
AUXILLARY SYSTEMS 26,000
ENGINEERING/FEE/PERMITS 46,000
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$ 1,311,747
ATTACHMENT 1
PEI ELECTRONICS - RENTAL SCHEDULE
THE EXISTING PREMISES (192,485 sf)
LEASE YEAR* SQ. FT. RATE PER MONTHLY ANNUAL
SQ. FT. PAYMENT PAYMENT
* 192,485 $ 7.61 $ 122,067.57 $1,464,810.85 JH TS
1 192,485 $ 7.73 $ 123,992.42 $1,487,909.05
2 192,485 $ 7.84 $ 125,756.87 $1,509,082.40
3 192,485 $ 7.96 $ 127,681.72 $1,532,180.60
4 192,485 $ 8.08 $ 129,606.57 $1,555,278.80
5 192,485 $ 8.20 $ 131,531.42 $1,578,377.00
6 192,485 $ 8.32 $ 133,456.27 $1,601,475.20
7 192,485 $ 8.45 $ 135,541.52 $1,626,498.25
8 192,485 $ 8.58 $ 137,626.78 $1,651,521.30
9 192,485 $ 8.70 $ 139,551.63 $1,674,619.50
10 192,485 $ 8.83 $ 141,636.88 $1,699,642.55
PEI ELECTRONICS - RENTAL SCHEDULE
THE EXPANSION PREMISES (23,000 sf)
LEASE YEAR* SQ. FT. RATE PER MONTHLY ANNUAL
SQ. FT. PAYMENT PAYMENT
1 23,000 $ 6.65 $ 12,745.83 $152,950.00
2 23,000 $ 6.75 $ 12,937.50 $155,250.00
3 23,000 $ 6.85 $ 13,129.17 $157,550.00
4 23,000 $ 6.95 $ 13,320.83 $159,850.00
5 23,000 $ 7.05 $ 13,512.50 $162,150.00
6 23,000 $ 7.15 $ 13,704.17 $164,450.00
7 23,000 $ 7.25 $ 13,895.83 $166,750.00
8 23,000 $ 7.35 $ 14,087.50 $169,050.00
9 23,000 $ 7.45 $ 14,379.17 $171,350.00
10 23,000 $ 7.55 $ 14,470.83 $173,650.00
* Until Lease Year 1 of the Expansion Premises annual base
rent for the Existing Premises shall be $1,465,292.06 ($7.61 per
square foot) payable $122,107.67 monthly. When the first Lease
Year of the Expansion Premises commences the Lease Year of the
Existing Premises shall be modified to coincide with the Lease
Year of the Expansion Premises as provided in paragraph 4 of this
Second Amendment whereupon base rent for the Existing Period
shall be as provided above. Lease Year 1 through 10 above as it
relates to the Existing Premises means Lease Years 1 through 10
after the Lease Year for the Existing Premises has been modified
to coincide with the Lease Year for the Expansion Premises.
LEASE GUARANTY
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THIS LEASE GUARANTY (this "Guaranty") is made and entered
this 8 day of November, 2002, by INTEGRATED DEFENSE
TECHNOLOGIES, INC., a Delaware corporation ("Guarantor"), in
favor and for the benefit of RESEARCH PARK/GE TENANCY IN COMMON
("Landlord").
WITNESS:
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WHEREAS, PEI ELECTRONICS, INC. ("Tenant"), entered into a
Lease Agreement with Landlord dated March 26, 2001 (the "Original
Lease"), whereby Tenant leased from Landlord approximately
192,485 square feet of space in the building located at 000 Xxxx
Xxxxx Xxxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx (the "Leased
Premises"); and
WHEREAS, the Original Lease was amended pursuant to that
certain First Amendment to Lease Agreement dated May 10, 2001
(the "First Amendment"); and
WHEREAS, Landlord and Tenant are, contemporaneously with the
execution of this Guaranty, executing that certain Second
Amendment to Lease Agreement (the "Second Amendment"; the
Original Lease, as amended by the First Amendment and the Second
Amendment is hereinafter referred to as the "Lease"), whereby the
Landlord has agreed to construct an additional 23,000 square foot
building to be leased by Tenant (the "New Building"); and
WHEREAS, Guarantor is the parent company of Tenant and as
such has a financial interest in Tenant and therefore expects the
Second Amendment to be of direct interest and benefit to
Guarantor; and
WHEREAS, Guarantor acknowledges that Landlord would not
enter into the Second Amendment without this Guarantor from
Guarantor; and
WHEREAS, in order to induce the Landlord to execute the
Second Amendment and to construct the New Building, Guarantor has
agreed to execute this Guaranty in order to guarantee to Landlord
the payment and performance of the Tenant's obligations under the
Lease.
NOW, THEREFORE, for and in consideration of ten dollars
($10.00), the mutual promises and covenants contained herein, and
other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties, intending to be legally bound,
do hereby agree as follows:
1. Guarantor hereby irrevocably and unconditionally guarantees
to Landlord the due fulfillment by Tenant of all of Tenant's
financial and other obligations under the Lease, which
obligations shall include rent and additional rent or other sums
due Landlord by reason of its performance of unperformed Tenant
obligations under the Lease. Guarantor is guaranteeing to
Landlord, among Tenant's other obligations under the Lease, the
flow of income to Landlord set forth in the Lease (including,
without limitation, any accelerated payments), and Guarantor's
obligations hereunder shall continue and be enforceable
notwithstanding any termination of the Lease or other relief
granted to Tenant in any proceeding, whether voluntary or
involuntary, brought by or against Tenant for adjudication or
relief under any bankruptcy, reorganization, arrangement,
composition, extension or insolvency law, or by any other for
relief issued in accordance therewith.
2. A copy of any notice to Tenant concerning a default by
Tenant under the terms of the Lease (a "Default Notice") also
shall be sent to Guarantor. Landlord's failure to provide a copy
of a Default Notice to Guarantor shall not void or impair the
Guarantor's obligations hereunder; provided, however, that
Guarantor shall not be required to make payment under this
Guaranty or perform any obligation of Tenant under the Lease for
any particular claim until it shall have been provided with a
copy of the Default Notice relating to such claim. Upon receipt
of a Default Notice, Guarantor shall be provided an additional
fifteen (15) days after receipt of the Default Notice to cure
such default.
3. Guarantor hereby consents and submit irrevocably to the
jurisdiction of the state and federal courts located in the State
of Alabama with respect to the provisions of this Guaranty. The
Guarantor hereby irrevocable designates and appoints Tenant as
its attorney-in-fact or agent to accept service of process for
any action or proceeding brought hereunder and agrees that any
such service of process upon such agent shall be valid service
upon Guarantor. To the extent permitted by law, final judgment
(a certified copy of which shall be conclusive evidence of the
fact and of the amount of any indebtedness of Guarantor to
Landlord, or its successors or assigns) against Guarantor in any
such legal action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on an unsatisfied
judgment.
4. The obligations of Guarantor under the Guaranty shall not be
released or limited in any manner because of (i) Landlord's
failure to exercise, or delay in the exercise of, any right
granted hereunder or under the Lease, (ii) any modification,
extension, waiver or amendment of any provision of the Lease
made in writing or by conduct, custom or course of dealing
between Landlord and Tenant. The obligations of the Guarantor
hereunder are independent of the obligations of Tenant, and a
separate action or actions may be brought and prosecuted against
Guarantor whether action is brought against Tenant or whether
Tenant is joined in any such action or actions.
5. Subject to the second sentence of Paragraph 1 hereof, this
Guaranty shall remain in full force and effect until all of the
Tenant's obligations under the Lease have been paid in full and
such payments have become final and are not subject to being
voided or refunded under the Bankruptcy Code or other applicable
law.
6. Landlord shall be entitled to assign this Guaranty and all
of its rights, privileges, interests and remedies hereunder to
any other person, firm, entity, bank or corporation whatsoever
(including, without limitation, to the holder of any mortgage or
other security instrument covering the Leased Premises) without
notice to or consent by Guarantor, and such assignee shall be
entitled to the benefits of this Guaranty and to exercise all
such rights, interests and remedies as fully as Landlord. This
Guaranty shall inure to the benefit of Landlord, it successors
and assigns, and shall bind Guarantor, jointly and severally,
together with its heirs, legal representatives, successors and
assigns. The liability of the person(s) or entities signing this
Guaranty and the heirs, legal representatives, successors and
assigns shall not be subject to claim of off-set, counterclaim or
defense of the Tenant.
7. Guarantor warrants and represents that: (i) it is a
corporation duly organized, registered, in good standing, and
validly existing under the laws of the State of Delaware, and has
full power, authority and legal right to execute, deliver and
perform this Guaranty; (ii) this Guaranty has been duly
authorized, executed and delivered by the Guarantor; and (iii)
this guaranty constitutes a legal, valid and binding obligation
of the Guarantor enforceable in accordance with its terms.
Guarantor also warrants and represents to Landlord the Guarantor
now has and will continue to have full and complete access to any
and all information concerning the Lease, the value of the assets
owned or to be acquired by Tenant, Tenant's financial status and
its ability to pay and perform the obligations owed to Landlord
under the Lease. Guarantor further warrants and represents that
Guarantor has reviewed and approved copies of the Lease and is
fully informed of the remedies Landlord may pursue, with or
without notice to Tenant, in the event of default under the
Lease. So long as any of the Guarantor's obligations hereunder
remain unsatisfied or owing to Landlord, Guarantor shall keep
fully informed as to all aspects of Tenant's financial condition
and the performance of said obligations.
8. All obligations of Guarantor shall be satisfied in United
States dollars.
9. Guarantor waives any right to require Landlord to (a)
proceed against Tenant; (b) proceed against or exhaust any
security for any obligation under the Lease; or (c) pursue any
other remedy in Landlord's power whatsoever. Guarantor waives
any defense arising by reason of any disability or other defense
of Tenant or by reason of the cessation from any cause whatsoever
of the liability of Tenant. Until all of the obligations of the
Tenant under the Lease shall have been paid in full, Guarantor
shall have no right of subrogation, and waives any right to
enforce any remedy which Landlord now has or may hereafter have
against Tenant, and waives any benefit of, and any right to
participate in any security now or hereafter held by Landlord.
Guarantor waives all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices
of dishonor, and notices of acceptance of this Guaranty. The
Guarantor does hereby waive any rights to exemption under the
Constitution of the State of Alabama or any other state as to any
indebtedness or obligation created hereunder.
10. Guarantor: (i) agrees to indemnify and save Landlord
harmless of and from all cost, liability, damage and expense
(including attorney's fees and costs), which may arise by reason
of Tenant's default under the Lease or Tenant's insolvency,
Guarantor's default hereunder, or the collection or enforcement
of this Guaranty; (ii) acknowledges that this Guaranty is a
guarantee of payment and not of collection in respect to any
obligations which may accrue to Landlord from Tenant under the
provisions of the Lease; and (iii) covenants to and agrees with
Landlord that the validity hereunder shall in no way be
terminated, affected or otherwise impaired by reason of any
assignment or transfer of Tenant's interest in the Lease.
11. To the extent the Tenant has the right to self-insure under
the Lease and the Tenant elects to do so, Guarantor hereby
irrevocably and unconditionally guarantees the performance by
Tenant of those insurance provisions in the Lease which permit
Tenant the right to self-insure all or any part of the risks
permitted to be self-insured by Tenant under Lease.
12. Notwithstanding anything to the contrary contained herein,
Guarantor's liability hereunder for Tenant's base rent
obligation shall be limited to not more than Seven Million Five
Hundred Thousand and No/100 Dollars ($7,500,000.00).
13. All notices, consents, approvals and other communications
that may be or are required to be given by either party under
this Guaranty shall be properly given only if made in writing and
sent by (a) hand delivery, or (b) certified mail, return receipt
requested, or (c) nationally recognized overnight delivery
service (such as Federal Express, UPS Next Day Air, Purolator
Courier or Airborne Express), designated for next business day
delivery, or (d) by telecopying to the telecopy number listed
below (provided that a copy of such notice is also delivered
within 24 hours to the recipient by one of the other methods
listed herein), with all postage and delivery charges paid by the
sender and addressed to the recipient, as follows, or at such
other address (or telecopy number) as each may subsequently
designate in writing. Such notices delivered by hand, by
telecopy (subject to the provisions hereof), or overnight
delivery service shall be deemed received upon the earlier of
actual receipt or the next general business day. Such notices
sent by certified mail shall be deemed received five (5) days
after the date of mailing. Said notice addresses are as follows:
If to Landlord: Research Park/GE Tenancy In Common
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Mr. Tyrone Samples
Voice: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx LLP
Attention: Xxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Voice: (000) 000-0000
Fax: (000) 000-0000
If to Guarantor: Integrated Defense Technologies, Inc.
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Attention:
Voice: ( )
Fax: ( )
14. Guarantor acknowledges that any cause of action arising
under this Guaranty will be a cause of action arising from an
Alabama transaction and that they are guaranteeing payment and
performance of an obligation owing to an entity which is
organized under Alabama law and/or conducts business from its
offices in the State of Alabama, that it is foreseeable that this
Guaranty and the performance hereof have and will have
significant effects in the State of Alabama, and that Guarantor's
execution of this Guaranty will subject Guarantor to the
jurisdiction of the State of Alabama. Notwithstanding the
foregoing, nothing contained in this Guaranty shall prevent
Landlord from bringing any action or exercising any rights
against Tenant or the Guarantor, any security for the obligations
of the Tenant under the Lease, or Tenant's or Guarantor's
properties in any other county, state or jurisdiction.
Initiating any such action or proceeding or taking any such
action in any other state or jurisdiction shall in no event
constitute a waiver by Landlord of any of the foregoing.
Guarantor hereby waives the right of trail by jury in the event
of any litigation between Landlord and Guarantor in respect to
any matter arising out of this Guaranty.
15. Until each and every one of the covenants and agreements of
this Guaranty are fully performed, Guarantor's obligations shall
not be released, in whole or in part, by any action or thing
which might, but for this provision of this instrument, be deemed
a legal or equitable discharge of a surety or guarantor, or by
reason of any waiver, extension, modification, forbearance, or
delay or other act or omission of Landlord or Landlord's failure
to proceed promptly or otherwise, or by reason of any act taken
or omitted by Landlord, whether or not such action or failure to
act varies or increases the risk of, or affects the rights or
remedies of Guarantor or by reason of any further dealings
between Tenant, Landlord or any other guarantor. Without
limiting the foregoing, to the full extent permitted by
applicable law, Guarantor waives the benefit of any statute of
limitations or other defenses affecting its liability hereunder
or the enforcement thereof. Guarantor hereby expressly waives
and surrenders any defense to its liability hereunder based upon
any of the foregoing acts, omissions, things, agreements or
waivers or any of them; it being the purpose and intent of the
parties hereto that the covenants, agreements and all obligations
hereunder are absolute, unconditional and irrevocable.
16. This Guaranty shall be construed and enforced in accordance
with the laws of the State of Alabama. Whenever possible, each
provision of this Guaranty shall be interpreted in such manner as
to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this
Guaranty.
17. Landlord may, from time to time, without notice to Guarantor
and without affecting, diminishing or releasing the liability of
Guarantor (a) retain or obtain a security interest in any
property to secure any of Tenant's obligations guaranteed under
this Guaranty or any obligation hereunder, (b) retain or obtain
the primary or secondary liability of any party or parties, in
addition to Guarantor, with respect to any of said Tenant
obligations, (c) make changes to the terms, extend or renew for
any period (whether or not longer than the original period),
exchange or otherwise alter any of the Tenant's obligations under
the Lease, (d) release the whole or any part of the Tenant's
obligations under the Lease or compromise any liability of any
parties primarily or secondarily liable for said Tenant
obligations, (e) release its security interest, if any, in all or
any property securing any of the Tenant's obligations under the
Lease or any obligations hereunder and permit any substitution or
exchange for any such property, (f) resort to the Guarantor for
payment of any of the Tenant's obligations, or any portion
thereof, whether or not Landlord shall resorted to any property
securing any of the Tenant's obligations under the Lease or any
obligation hereunder or shall have proceeded against any party
primarily or secondary liable on any of said Tenant obligations
(any right to require Landlord to take action against any party
primarily or secondary liable under the Lease as may be required
by law is hereby expressly waived), and (g) alter, extend,
change, modify, release or cancel any covenant, agreement or
provision contained in the Lease. Any amount received by
Landlord from whatever source and applied by Landlord toward the
payment of the Tenant's obligations under the Lease shall be
applied in such order of application as Landlord from time to
time elect.
18. The obligations of Guarantor under this Guaranty shall not
be altered, limited or affected by any case, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership,
reorganization, liquidation or arrangement of Tenant or any
defense which Tenant may have by reason of order, decree or
decision or any court or administrative body resulting from any
such case. Landlord shall have the sole right to accept or
reject any plan on behalf of Guarantor proposed in such case and
to take any other action which Guarantor would be entitled to
take, including, without limitation, the decision to file or not
file a claim. Guarantor acknowledges and agrees that any payment
which accrues with respect to Tenant's obligations under the
Lease (including, without limitation, the payment of rent) after
the commencement of any such proceeding (or, if any such payment
ceases to accrue by operation of law by reason of the
commencement of such proceeding, such payment as would have
accrued if said proceedings had not been commenced) shall be
included in Guarantor's obligations hereunder because it is the
intention of the parties that said obligations should be
determined without regard to any rule or law or order which may
relieve Tenant of any of its obligations under the Lease.
Guarantor hereby permits any trustee in bankruptcy, receiver,
debtor-in-possession, assignee for the benefit of creditors or
similar person to pay Landlord, or allow the claim of Landlord in
respect thereof, any such payment accruing after the date on
which such proceeding is commenced. Guarantor hereby assigns to
Landlord Guarantor's right to receive any payment from any
trustee in bankruptcy, receiver, debtor-in-possession, assign for
the benefit of creditors or similar person by way of dividend,
adequate protection payment or otherwise. If all or any portion
of the Tenant's obligations under the Lease are paid or performed
by Tenant, the obligations of Guarantor hereunder with respect
thereto shall continue and remain in full force and effect in the
event that all or any portion of such payment(s) or
performance(s) is avoided or recovered directly or indirectly
from Landlord as a preference, fraudulent transfer or otherwise.
19. Upon written request of Landlord, within ten (10) days of
the date of receipt of such written request, Guarantor agrees to
execute and deliver to Landlord and/or such other party as may be
designated by Landlord, without charge, an estoppel certificate
confirming (except to the extent otherwise set forth in the
estoppel certificate) (i) that this Guaranty is in full force and
effect and has not been assigned, modified, supplemented, or
amended, (ii) that Lessee has no existing defenses or off-sets
against Landlord; and (iii) that Lessee is not subject to any
federal or state bankruptcy, insolvency or other creditors'
rights proceedings.
20. In the event of any dispute or litigation with regard to a
default by Tenant under the Lease or default by Guarantor under
this Guaranty, or with regard to the enforcement or validity of
the Lease or this Guaranty, Guarantor shall be obligated to pay
all charges, costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred by Landlord in connection
therewith whether or not any action or proceeding is commenced
regarding such dispute and whether or not such litigation is
prosecuted to judgment, including, without limitation any costs
and expenses (including attorneys' fees) incurred in connection
with the enforcement or collection of any judgment against Tenant
and/or Guarantor.
21. No remedy conferred in this Guaranty upon or reserved to
Landlord is intended to be exclusive of any other available
remedy given under this Guaranty or hereafter existing at law or
in equity. No waiver, amendment, release or modification of this
Guaranty shall be established by conduct, custom or course of
dealing, but instead shall be established solely by an instrument
in writing duly executed by Landlord and Guarantor.
IN WITNESS WHEREOF, this Guaranty was executed by Guarantor
under seal this 8th day of November, 2002.
GUARANTOR:
INTEGRATED DEFENSE
TECHNOLOGIES, INC.
ATTEST:
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------- ----------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxx
------------------------- --------------------
Title: Notary, State of Alabama Title: V.P.
------------------------ -------------------
STATE OF Alabama
COUNTY OF Madison
I, Xxxxxx X. Xxxxx, a notary public in and for said county
in said state, hereby certify that Xxxxxxx X. Xxxxxxx, whose name
as VP of INTEGRATED DEFENSE TECHNOLOGIES, INC., a Delware corporation,
is signed to the foregoing instrument and who is known to me,
acknowledged before me on this day, that, being informed of the
contents of such instrument, as such officer and with full authority,
[s]he executed the same voluntarily on the day the same bears date for
and as the act of said corporation.
Given under my hand and official seal this 8th day of November, 2002.
/s/ Xxxxxx X. Xxxxx
-------------------
Notary Public
[Notarial Seal] My Commission Expires: Dec. 30, 2002
