EXHIBIT 10.46
AMENDMENT TO INITIAL LEASE
AND
TERMINATION OF EXPANSION LEASE
This Amendment to Initial Lease and Termination of Expansion Lease
(this "AMENDMENT") is made and entered into this 28th day of September, 2001 by
and between KEYSTONE OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
("LANDLORD"), and BRIGHTPOINT, INC., a Delaware corporation ("TENANT").
RECITALS
WHEREAS, Corporate Drive Associates, LLC, an Indiana limited liability
company and predecessor-in-interest to Landlord ("CDA"), and Tenant previously
executed and entered into that certain Lease dated June 6, 1995, as amended by
that certain Amendment to Lease dated October 3, 1995 and that certain Second
Amendment to Lease dated July 17, 1996 (as amended, the "INITIAL LEASE") for the
property commonly known as 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx (the
"ORIGINAL BUILDING"); and
WHEREAS, CDA and Tenant previously executed and entered into that
certain Lease (Building Expansion) dated July 17, 1996 (the "EXPANSION LEASE")
pursuant to which the Original Building was expanded by approximately 77,680
square feet and leased to Tenant (such area, the "EXPANSION AREA").
WHEREAS, Landlord and Tenant desire to amend and modify the Initial
Lease and the Expansion Lease (collectively, the "LEASES") on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged hereby, Landlord and Tenant agree as
follows:
1. RECITALS; DEFINED TERMS. The foregoing recitals are hereby
incorporated into the body of this Amendment as if more fully re-written and
re-stated herein. Capitalized terms used herein and not otherwise defined shall
have the meanings respectively ascribed to them in the Initial Lease or the
Expansion Lease, as applicable.
2. EXPANSION LEASE TERMINATION. By executing this Amendment, Landlord
and Tenant hereby terminate the Expansion Lease and Tenant hereby surrenders the
Expansion Area as of the Initial Termination Date (defined below).
3. SURRENDER OF SURRENDERED SPACE AND MODIFICATION OF INITIAL LEASE. By
executing this Amendment, Landlord and Tenant hereby amend the Initial Lease as
of the Initial Termination Date to reconfigure the initial Leased Premises (as
defined in the Initial Lease) to reflect that Tenant hereby surrenders all of
the initial Leased Premises other than the approximately 80,000 square foot area
of space depicted as the cross hatched area on EXHIBIT A attached hereto and
made a part hereof (the remaining portion of the initial Leased Premises, the
"REVISED LEASED PREMISES") as of September 30, 2001 (the "INITIAL TERMINATION
DATE"). Within five (5) business days after Tenant's receipt of Mortgagees'
Approvals (as hereinafter defined), Tenant shall pay a lease termination fee to
Landlord in the amount of One Million Five Hundred Fifteen Thousand Four Hundred
Sixty-Two and No/100 Dollars ($1,515,462) (the
"TERMINATION FEE") as consideration for the termination of the Expansion Lease
as to the Expansion Area and all the initial Leased Premises other than the
Revised Leased Premises (the initial Leased Premises that are subject to
surrender and termination pursuant to this SECTION 3, the "SURRENDERED Space").
Tenant shall deliver the Surrendered Space and Expansion Area to Landlord as of
the Initial Termination Date in its current "as-is" broom clean condition
notwithstanding the terms of Section 18 of the Initial Lease and Tenant shall
not be obligated to remove any of its fixtures, Tenant Property and alterations
from the Surrendered Space. From and after the Initial Termination Date,
Landlord and Tenant shall have no further liability and obligation, pursuant to
the Expansion Lease or the Initial Lease as to the Surrendered Space, except for
the Surviving Liabilities of Tenant (defined below) and Surviving Liabilities of
Landlord (defined below). Notwithstanding the aforementioned, Tenant may, at
Tenant's sole option after written notice to Landlord, remove the fixtures and
other property installed by Tenant and described on EXHIBIT B attached hereto
and made a part hereof (the "TENANT PROPERTY") any time before the sooner to
occur of (i) the date upon which Tenant is obligated to vacate and surrender
Additional Termination Area #2 (the "OFFICE AREA"); (ii) Tenant's receipt of an
Accelerated Termination Notice (as hereinafter defined); (iii) a Default Event
(as hereinafter defined); (iv) a Bankruptcy Event (as hereinafter defined); or
(v) the date upon which Tenant vacates and surrenders the Office Area as a
Relinquished Area. Tenant shall repair, at Tenant's sole cost, any damage caused
to the Surrendered Space in the removal of such Tenant Property by Tenant. If
Tenant fails to repair any such damage, Landlord may elect (in its sole
discretion and without obligation), in addition to any other rights and remedies
Landlord may have hereunder, at law or in equity, to repair such damage on
behalf of Tenant and at Tenant's sole cost. Tenant shall reimburse Landlord for
any and all costs that Landlord may incur to repair such damage, together with
interest on such costs at the "prime" or "reference" rate then announced by
Xxxxx Fargo Bank, N.A. plus three percent (3%) (the "DEFAULT RATE"). Tenant
shall promptly remove any mechanic's liens resulting from the removal of any
Tenant Property by Tenant and shall indemnify and hold Landlord harmless from
any and all claims, judgments, liabilities, costs and expenses (including,
without limitation, any reasonable attorneys' fees and court costs) ("LOSSES"),
incurred by Landlord as a result of, or in connection with, such mechanic's
liens. The terms of the preceding three sentences shall survive the termination
of the Expansion Lease and the Initial Lease and shall constitute Surviving
Liabilities of Tenant.
4. TERM. Notwithstanding anything contained in the Leases or herein to
the contrary, (i) the Lease Term of the Expansion Lease and the Surrendered
Space shall expire on the Initial Termination Date; and (ii) the Lease Term of
the Initial Lease shall expire on June 30, 2003 (the "REVISED EXPIRATION DATE")
as to the Revised Leased Premises unless Tenant fails to affirm the Initial
Lease (as amended hereby) by delivering the Lease Affirmation Notices (as
hereinafter defined) contemplated by SECTION 5 below such that the Initial Lease
terminates prior to such date as provided in SECTION 5 below. The Initial Lease
shall in all events terminate as of the Revised Expiration Date as to any and
all portions of the Revised Leased Premises that then remain subject to the
Initial Lease and for all other relevant purposes, whereupon (a) any and all
Expiration Payments (as hereinafter defined) not previously deducted by Landlord
from the Landlord Escrow (as hereinafter defined) shall be deducted and retained
by Landlord from the Landlord Escrow; and (b) neither party shall have any
further liability or obligation pursuant to the Initial Lease except for the
Surviving Liabilities of Tenant and the Surviving Liabilities of Landlord.
Tenant shall have no further option to renew or extend the Lease Term of either
the
2
Expansion Lease or the Initial Lease, any such options being herein expressly
and irrevocably waived by Tenant.
5. EARLY EXPIRATION OPTION. The Revised Leased Premises is comprised of
the five (5) separate areas identified on EXHIBIT A attached hereto and made a
part hereof as tenant spaces 1-5 (each an "ADDITIONAL TERMINATION AREA"). If
Tenant does not deliver a Lease Affirmation Notice as to any Additional
Termination Area, Landlord and Tenant hereby agree that the Initial Lease shall
terminate as to such Additional Termination Area on the date hereinafter set
forth (each an "EARLY EXPIRATION DATE") for the applicable Additional
Termination Area and the early lease expiration fee specified for the applicable
Additional Termination Area (each an "EXPIRATION PAYMENT") shall be released
from the Landlord Escrow to Landlord as of such date:
AREA EARLY EXPIRATION DATE EXPIRATION PAYMENT
---- --------------------- ------------------
Additional Termination Area #1 October 31, 2001 $200,000.00
Additional Xxxxxxxxxxx Xxxx #0 January 31, 2002 $110,000.00
Additional Xxxxxxxxxxx Xxxx #0 June 30, 2002 $125,000.00
Additional Xxxxxxxxxxx Xxxx #0 September 30, 2002 $140,000.00
Additional Xxxxxxxxxxx Xxxx #0 December 31, 2002 $170,000.00
Within five (5) business days after Tenant's receipt of the Mortgagees'
Approvals, Tenant shall escrow with Landlord the sum of Seven Hundred Forty-Five
Thousand and No/100 ($745,000) (the "EXPIRATION DEPOSIT"). The Expiration
Deposit shall be held in escrow (the "LANDLORD ESCROW") by Landlord pursuant to
the escrow agreement by and between Landlord and Tenant attached hereto as
EXHIBIT C which has been entered into as of an even date herewith. The
Expiration Deposit shall be fully non-refundable to Tenant and has been made to
act: (i) as security for Tenant's obligations pursuant to the Initial Lease
(including its obligation to make the Expiration Payments when the same become
due and owing); (ii) as consideration for Tenant's right to terminate all or
some portion of the Initial Lease prior to the Revised Expiration Date by
failing to deliver one or more Lease Affirmation Notices; and (iii) as
consideration for the agreement by Landlord to reduce the Lease Term of the
Initial Lease. The Expiration Deposit shall be earned by Landlord, and deducted
from the Landlord Escrow, as of the sooner to occur of: (i) a Bankruptcy Event
(as hereinafter defined); (ii) a Default Event (as hereinafter defined); (iii)
an Acceleration Event (as hereinafter defined); or (iv) as to the applicable
Expiration Payment, the Early Expiration Date applicable to an Additional
Termination Area if Tenant fails to timely deliver a Lease Affirmation Notice.
Tenant shall have no right to object to the deduction of the Expiration Deposit
(or any Expiration Payment) from the Landlord Escrow by Landlord. Tenant may
elect, in its sole discretion, to terminate the Initial Lease prior to the
Revised Expiration Date as to any Additional Termination Area by failing to
deliver written notice to Landlord (a "LEASE AFFIRMATION NOTICE") not less than
ninety (90) days prior to the applicable Early Expiration Date except as to
Additional Termination Area #1 which shall only require fifteen (15) days prior
written notice. The delivery by Tenant of a Lease Affirmation Notice shall not
be effective if Tenant is in default pursuant to the Initial Lease or Landlord
has
3
delivered written notice to Tenant alleging a default pursuant to the Initial
Lease (either of the foregoing, a "DEFAULT CONDITION") either as of the date
Tenant delivers a Lease Affirmation Notice to Landlord or the applicable Early
Expiration Date. If (i) Tenant fails to deliver a Lease Affirmation Notice as to
any Additional Termination Area, or (ii) a Default Condition exists either as of
the date upon which Tenant delivers a Lease Affirmation Notice or the applicable
Early Expiration Date, the Initial Lease shall terminate as to such Additional
Termination Area as of the applicable Early Expiration Date and Landlord shall
deduct the applicable Expiration Payment from the Landlord Escrow as of such
date. The provisions of SECTION 6 below relative to an increase in Base Rent
shall apply if Tenant timely and effectively delivers a Lease Affirmation
Notice. If the Initial Lease terminates as to an Additional Termination Area on
the applicable Early Expiration Date, neither Landlord nor Tenant shall have any
further liability or obligation with respect to the Initial Lease as to such
Additional Termination Area, except for those liabilities and obligations of
Tenant and Landlord that expressly survive a termination of the Initial Lease as
to the applicable Additional Termination Area and relate to the period prior to
the applicable Early Expiration Date, which liabilities and obligations shall
survive the termination of the Initial Lease and shall constitute Surviving
Liabilities of Tenant and Surviving Liabilities of Landlord, respectively.
Tenant shall deliver each Additional Termination Area to Landlord as of the
applicable Early Expiration Date (or the Revised Expiration Date to the extent
the applicable Additional Termination Area remains subject to the Initial Lease
until such date) in the condition required by Section 18 of the Initial Lease
(it being acknowledged that all of the Additional Termination Areas are in the
condition required by Section 18 of the Initial Lease other than the Office Area
as of the date hereof), except that (i) Tenant shall not be obligated to remove
fixtures, alterations and improvements installed prior to the Initial
Termination Date; and (ii) Tenant shall only be obligated to repair any damage
caused after the Initial Termination Date or remove any fixtures, alterations
and improvements installed after the Initial Termination Date to the extent such
damage or improvements were caused or made by Tenant or any agent, employee or
invitee of Tenant (a "TENANT PARTY"). Those Additional Termination Areas that
remain subject to the Initial Lease at any time and have not been terminated and
removed therefrom on the applicable Early Expiration Date are referred to herein
as the "REMAINING LEASED PREMISES." As to the Office Area only, and without
limitation upon Landlord's right to deduct the applicable Expiration Payment
from the Landlord Escrow on the original Early Expiration Date, Tenant may elect
to extend the Early Expiration Date for the Office Area until March 31, 2002 by
delivery of written notice to Landlord on or prior to January 15, 2002 provided
that (i) no Default Condition exists; and (ii) Tenant shall be obligated to pay
an additional $40,000 in monthly Base Rent directly to Landlord on or prior to
the first day of each month (the "SUPPLEMENTAL BASE RENT") ($5,000 of which is
contemplated by SECTION 6 below and $35,000 of which is a holdover premium)
during the period from and after February 1, 2002 until the sooner to occur of
(i) March 31, 2002; or (ii) the surrender of the Office Area such that it
constitutes a Relinquished Area (as hereinafter defined), which Supplemental
Base Rent shall not be deducted from the Rent Escrow (as hereinafter defined),
but rather shall be paid directly by Tenant to Landlord. If Tenant elects to
extend the Early Expiration Date for the Office Area, Tenant shall have no
further right to deliver a Lease Affirmation Notice with respect to the Office
Area and any previous delivery of such a Lease Affirmation Notice shall be null
and void. At any time prior to an Early Expiration Date, Tenant may elect to
surrender an Additional Termination Area to Landlord by delivery of written
notice to Landlord (any such Additional Termination Area, a "RELINQUISHED
AREA"). Tenant shall deliver each Relinquished Area in the
4
condition required by Section 18 of the Initial Lease (it being acknowledged by
Landlord that all of the Additional Termination Areas other than the Office Area
are in the condition required by Section 18 of the Initial Lease as of the date
hereof), except that (i) Tenant shall not be obligated to remove fixtures and
alterations installed prior to the Initial Termination Date; and (ii) Tenant
shall only be obligated to repair any damage caused after the Initial
Termination Date or remove any fixtures, alterations and improvements installed
after the Initial Termination Date to the extent such damage or improvements
were caused or made by Tenant or any Tenant Party. Tenant shall have no further
right to use or occupy any Relinquished Area prior to the termination of the
Initial Lease as to such Relinquished Area unless it obtains the prior written
consent of Landlord, and Tenant shall have no further right to deliver a Lease
Affirmation Notice as to such area. The election by Tenant to relinquish any
Additional Termination Area to Landlord shall be without limitation upon its
obligations to pay Base Rent or make the Expiration Payment with respect to such
Relinquished Area.
6. RENT. Notwithstanding anything contained in the Initial Lease to the
contrary, from and after October 1, 2001, the Base Rent payable by Tenant to
Landlord with respect to the Revised Leased Premises pursuant to the Initial
Lease shall be payable in advance on or prior to the first day of each month and
shall be in an amount determined by aggregating the monthly Base Rent set forth
below for each of the Additional Termination Areas (including any Relinquished
Areas) that are then part of the Remaining Leased Premises. The monthly Base
Rent for each Additional Termination Area is as follows (which amounts are
subject to adjustment pursuant to SECTION 6.2 below):
AREA MONTHLY BASE RENT
---- -----------------
Additional Xxxxxxxxxxx Xxxx #0 $80,000.00
Additional Xxxxxxxxxxx Xxxx #0 $ 5,000.00
Additional Xxxxxxxxxxx Xxxx #0 $ 5,000.00
Additional Xxxxxxxxxxx Xxxx #0 $10,000.00
Additional Xxxxxxxxxxx Xxxx #0 $10,000.00
By way of illustration, if the Remaining Leased Premises is comprised of all of
the Additional Termination Areas other than Additional Termination Area #1 and
no Lease Affirmation Notices have been provided by Tenant, monthly Base Rent
payable by Tenant to Landlord would be $30,000. The monthly Base Rent may be
increased by $35,000 per month if and to the extent that Tenant elects to extend
the Early Expiration Date with respect to the Office Area.
6.1. RENT ESCROW. Within five (5) business days after Tenant's receipt
of Mortgagee's Approval, Tenant shall deposit in escrow with Landlord the sum of
Four Hundred Fifteen Thousand and No/100 Dollars ($415,000) (the "RENT
DEPOSIT"). The Rent Deposit shall be non-refundable to Tenant and has been made
to act: (i) as security for Tenant's obligations hereunder, including, but not
limited to, Tenant's obligation to pay Base Rent; (ii) as fixed and liquidated
damages in the event of a default by Tenant pursuant to the Initial Lease; and
(iii) as consideration for the agreement by Landlord to reduce the rental
obligations of Tenant pursuant
5
to the Initial Lease. The Rent Deposit shall be held in escrow by Landlord (the
"RENT ESCROW") pursuant to the escrow agreement by and between Landlord and
Tenant attached hereto as EXHIBIT D which has been executed and entered into as
of an even date herewith. From and after October 1, 2001, the Base Rent payable
by Tenant to Landlord pursuant to the Initial Lease (as amended hereby) shall be
deducted and retained by Landlord from the Rent Deposit then held in the Rent
Escrow on or prior to the first day of each month during the remaining Lease
Term, provided, however, that any Supplemental Base Rent shall be payable by
Tenant to Landlord directly rather than deducted from the Rent Escrow. If at any
time from and after the date hereof, the Base Rent payable from Tenant to
Landlord exceeds the Rent Deposit then held in the Rent Escrow, Tenant shall be
obligated to pay monthly Base Rent to Landlord on or prior to the first day of
each month during the balance of the Lease Term in accordance with Section 3 of
the Initial Lease (as amended hereby). If the Initial Lease is terminated for
any reason on or prior to the Revised Expiration Date (including, but not
limited to, a termination resulting from an Acceleration Event, a Default Event
or a Bankruptcy Event), the Rent Deposit shall be immediately payable in full to
Landlord and shall be deducted by Landlord from the Rent Escrow as fixed and
liquidated damages in the event of a Default Event or a Bankruptcy Event and as
consideration for the reduction in the rental rates herein provided to Tenant.
Tenant hereby expressly and specifically waives any and all rights Tenant may
have in and to the Rent Deposit.
6.2. BASE RENT ADJUSTMENT; ADDITIONAL RENT. If Tenant timely and
effectively delivers a Lease Affirmation Notice such that any Additional
Termination Area remains subject to the Initial Lease from and after the
applicable Early Expiration Date, the monthly Base Rent for the applicable
Additional Termination Area shall be increased from and after the delivery of
such Lease Affirmation Notice. The monthly Base Rent for the applicable
Additional Termination Area shall be increased to the following:
PERIOD MONTHLY BASE RENT
------ -----------------
Additional Xxxxxxxxxxx Xxxx #0 $40,000.00
Additional Xxxxxxxxxxx Xxxx #0 $25,000.00
Additional Xxxxxxxxxxx Xxxx #0 $30,000.00
Additional Xxxxxxxxxxx Xxxx #0 $45,000.00
Additional Xxxxxxxxxxx Xxxx #0 $85,000.00
For the period from and after the date hereof until the sooner to occur of (i)
the Early Expiration Date as to the Office Area (as the same may be extended),
and (ii) the Revised Expiration Date, Tenant shall remain obligated to pay its
pro rata share of 53.7% (determined by dividing the new rent of $40,000 by the
old rent of $74,538) of any and all Additional Rent owing from Tenant to
Landlord pursuant to the Initial Lease and the Expansion Lease (which obligation
shall survive the termination of the Expansion Lease and the Initial Lease),
including, but not limited to, any amounts owing from Tenant to Landlord with
respect to Real Estate Taxes, Park Assessments and insurance costs. From and
after the sooner to occur of (i) the Early Expiration Date with respect to the
Office Area (as the same may be extended); and (ii) the Revised Expiration Date,
6
Tenant shall have no obligation to pay Additional Rent to Landlord and the
Initial Lease shall be a so-called "gross lease" for all relevant purposes.
Tenant acknowledges and agrees that, prior to the Initial Termination Date, (i)
Tenant was obligated to pay certain categories of Additional Rent to Landlord
pursuant to the Leases on an "as-incurred" basis, including, but not limited to,
Real Estate Taxes, Park Assessments and insurance costs; and (ii) certain of
such Additional Rent amounts have not yet been paid by, or invoiced to, Tenant.
Notwithstanding anything contained herein to the contrary, Tenant shall remain
obligated to, and shall, reimburse Landlord for one hundred percent (100%) of
such costs and expenses (including, but not limited to, Real Estate Taxes and
Park Assessments) for calendar year 2001 allocable to the period prior to the
Initial Termination Date promptly, and in any event within thirty (30) days,
after presentation of invoices therefor, which obligation shall survive the
Initial Termination Date and the termination of the Initial Lease and shall
constitute a Surviving Liability of Tenant and a Surviving Liability of
Landlord.
7. ACCELERATED TERMINATION.
7.1. ACCELERATION EVENTS. At any time from and after January 1,
2002, Landlord may elect, in its sole discretion, to terminate the Initial Lease
as to all of the Remaining Leased Premises by delivering not less than ten (10)
days prior written notice to Tenant (an "ACCELERATED TERMINATION NOTICE")
provided that (i) Landlord has executed and entered into a term sheet, letter of
intent or comparable agreement to lease, or a lease or license agreement for,
all or some portion of the original Leased Premises pursuant to the Initial
Lease and/or the Expansion Lease (the "ORIGINAL LEASED PREMISES"); or (ii)
Landlord has executed and entered into a term sheet, letter of intent or
comparable agreement to sell, or a purchase and sale agreement for the sale of,
the Original Leased Premises (either of the foregoing, an "ACCELERATION EVENT").
Any Accelerated Termination Notice shall specify a Revised Expiration Date at
least sixty (60) days after the delivery of such notice and Tenant shall vacate
and surrender the Remaining Leased Premises to Landlord on or before such
Revised Expiration Date (the date Tenant vacates and surrenders any Additional
Termination Area, whether pursuant to this SECTION 7.1 or pursuant to SECTION 5
above, is herein called the "SURRENDER DATE" for such Additional Termination
Area), in the condition required by Section 18 of the Initial Lease (it being
acknowledged by Landlord that all of the Additional Termination Areas are in the
condition required by Section 18 of the Initial Lease other than the Office Area
as of the date hereof), except that (i) Tenant shall not be obligated to remove
any fixtures, improvements and alterations from the applicable Additional
Termination Areas that were installed prior to the Initial Termination Date; and
(ii) Tenant shall only be obligated to repair any damage occurring after the
Initial Termination Date or remove any fixtures, improvements or alterations
made after the Initial Termination Date to the extent such damage or
improvements were caused or made by Tenant or any Tenant Party.
7.2. LEASE AND SALE PAYMENTS. As consideration for the agreement by
Tenant to allow Landlord to terminate the Initial Lease on or prior to the
Revised Expiration Date on the basis of an Acceleration Event, Landlord has
provided Tenant with a limited right to participate in certain "excess" proceeds
of a Sale Transaction on a Lease Transaction (each as hereinafter defined)
subject to all of the terms, conditions and limitations hereinafter set forth.
In the event that: (x) Landlord elects to terminate the Initial Lease on the
basis of an Acceleration Event (but not a Default Event or a Bankruptcy Event)
by delivering an Accelerated Termination Notice on
7
or prior to the sooner to occur of the Revised Expiration Date or the earlier
termination of the Initial Lease (whether pursuant to SECTION 5 above or on
account of a Default Event, a Bankruptcy Event or otherwise) (any such election
by Landlord, a "LANDLORD TERMINATION ELECTION"); and (y) Landlord executes and
enters into a lease agreement for all or some portion of the Revised Leased
Premises with a bona fide, third party tenant within one (1) year after the
effective date of such termination (such an event, a "LEASE TRANSACTION"),
Landlord shall be obligated to pay Tenant a lease participation payment equal to
(i) five percent (5%) of the Excess Lease Proceeds (as hereinafter defined), if
any, between $5.75 per square foot, per annum and $6.25 per square foot, per
annum and (ii) fifteen percent (15%) of any Excess Lease Proceeds that result
from a rental rate of $6.25 per square foot, per annum or more (any such
participation payment, a "LEASING PAYMENT"). The maximum amount of any Leasing
Payment shall be equal to the aggregate amount of the Expiration Payments not
previously deducted from the Landlord Escrow by Landlord pursuant to SECTION 5
above. Landlord shall have no obligation to pay Tenant any Leasing Payment
except to the extent any Lease Transaction generates Excess Lease Proceeds.
Landlord shall pay any Leasing Payment owing to Tenant in connection with a
Lease Transaction at such time as the tenant commences payment of base rent
pursuant to its lease. For purposes of this Amendment, "EXCESS LEASE PROCEEDS"
shall mean the amount (if any) by which base rent (excluding additional rent,
stop amounts and amortization of tenant improvements, equipment or specialized
improvements) exceeds $5.75 per square foot, per annum during the period from
and after the commencement date of such lease through December 31, 2006, which
excess amounts shall be discounted to present value at twelve percent (12%) per
annum. In the event that: (i) Landlord makes a Landlord Termination Election;
and (ii) Landlord sells, transfers, conveys and assigns the Original Leased
Premises to a bona fide, third party purchaser (e.g. not an affiliate or venture
partner of Landlord) within one (1) year after the effective date of such
termination (a "SALE TRANSACTION"), Landlord shall be obligated to pay Tenant a
sale participation payment (a "SALE PAYMENT") equal to five percent (5%) of any
Excess Sale Proceeds (as hereinafter defined). Landlord shall have no obligation
to pay Tenant any Sale Payment unless any Sale Transaction generates any Excess
Sale Proceeds. Landlord shall pay any Sale Payment owing to Tenant upon the
closing of any Sale Transaction. For purposes of this Amendment, "EXCESS SALE
PROCEEDS" shall mean any amount by which the net proceeds of sale to Landlord
from a Sale Transaction exceed $9.5 Million. The maximum amount of any Sale
Payment shall be equal to the aggregate amount of the Expiration Payments not
previously deducted by Landlord from the Landlord Escrow pursuant to SECTION 5
above. No Leasing Payment or Sale Payment shall ever be payable unless Landlord
has made a Landlord Termination Election and enters into, within one (1) year
after such election, a Sale Transaction involving Excess Sale Proceeds or a
Lease Transaction involving Excess Lease Proceeds. The terms of this SECTION 7.2
shall survive any termination of the Initial Lease.
7.3. DEFAULT EVENT. Landlord may also elect, in its sole discretion,
to terminate the Initial Lease as to any Remaining Leased Premises by delivering
written notice to Tenant in the event of any Default Event (as hereinafter
defined). If Landlord delivers a notice to Tenant terminating the Initial Lease
on the basis of a Default Event, the termination of the Initial Lease shall be
effective as of the date Landlord delivers such notice (which date shall be the
Revised Expiration Date for all relevant purposes) and Tenant shall not be
entitled to the benefit of any notice or cure period contemplated by the Initial
Lease. For purposes of this Amendment, the term Default Event shall mean:
8
(i) Tenant's failure to pay the Termination Fee, the Expiration
Deposit and the Rent Deposit within five (5) business days
after Tenant's receipt of Mortgagees' Approvals;
(ii) If a Tenant Default shall occur prior to January 31, 2002, and
remain uncured or Tenant's failure to observe or perform on or
after February 1, 2002, any other term, condition or covenant
of the Initial Lease (as amended hereby) to be observed or
performed by Tenant; or
(iii) Tenant's failure to timely pay Supplemental Base Rent or any
Base Rent owing pursuant to SECTION 6.2 above.
Any Default Event shall constitute a default pursuant to the Initial Lease. If
Landlord elects to terminate the Initial Lease on the basis of an Acceleration
Event or a Default Event, or the Initial Lease is otherwise terminated on or
prior to the Revised Expiration Date for any reason, (i) Landlord shall be
entitled to immediately collect and draw from the Landlord Escrow any and all
Expiration Payments that have not previously been collected by Landlord as of
the effective date or such termination such that Landlord has received all of
the Expiration Payments originally deposited in the Landlord Escrow by Tenant;
(ii) Landlord shall be further entitled to immediately collect and draw from the
Rent Escrow the entire amount of the Rent Deposit then remaining in the Rent
Escrow such that Landlord has collected all of the Rent Deposit originally
deposited by Tenant in the Rent Escrow (which amount shall be fixed and
liquidated damages on account of such default and consideration for the rental
abatements provided herein); (iii) Tenant shall deliver, as of the effective
date of such termination, any portion of the Remaining Leased Premises in the
condition required by Section 18 of the Initial Lease (it being acknowledged
that the Additional Termination Areas other than the Office Area are in the
condition required by Section 18 of the Initial Lease as of the date hereof),
except that (a) Tenant shall not be obligated to remove any fixtures,
improvements and alterations from the applicable Additional Termination Areas
that were installed prior to the Initial Termination Date; and (b) Tenant shall
only be obligated to repair any damage occurring after the Initial Termination
Date or remove any fixtures, improvements or alterations made after the Initial
Termination Date to the extent such damage or improvements were caused or made
by Tenant or any Tenant Party; and (iv) neither party shall have any further
liability or obligation pursuant to the Initial Lease except for those
liabilities and obligations of Landlord and Tenant as to the Remaining Leased
Premises that expressly survive a termination of the Initial Lease and relate to
the period prior to the termination of the Initial Leases which liabilities and
obligations shall survive the termination of the Initial Lease and shall
constitute Surviving Liabilities of Tenant and Surviving Liabilities of
Landlord, respectively. Without limitation of the foregoing, if Tenant fails to
timely pay any or all of the Termination Fee, the Rent Deposit and the
Expiration Deposit, Tenant shall be obligated to pay such amounts and Landlord
shall be entitled to collect any such unpaid amounts from Tenant, together with
interest at the Default Rate, without limitation, upon any other rights and
remedies Landlord may have at law, in equity or pursuant to the Initial Lease.
8. BANKRUPTCY EVENT. In the event of any Bankruptcy Event involving
Tenant, the Initial Lease shall terminate without further action of the parties
and without necessity of any election, written or otherwise, by Landlord. For
purposes of this Amendment, the term "BANKRUPTCY EVENT" shall mean:
9
(a) The sale of Tenant's leasehold interest hereunder pursuant to
execution;
(b) The adjudication of Tenant as a bankrupt or insolvent;
(c) The making by Tenant of a general assignment for the benefit of
creditors;
(d) The appointment of a trustee or receiver for Tenant's property
in a reorganization, arrangement, bankruptcy or other insolvency
proceeding;
(e) Tenant's filing of a voluntary petition in bankruptcy or for
reorganization or arrangement or the filing of an involuntary
petition in bankruptcy or for reorganization or arrangement
against Tenant or any Tenant Affiliate; or
(f) Tenant's filing of an answer admitting bankruptcy or insolvency
or agreeing to reorganization or arrangement.
A Bankruptcy Event shall also constitute a default pursuant to the Initial Lease
(as amended hereby). Without limitation of the foregoing, upon the occurrence of
any Bankruptcy Event, (a) any and all Expiration Payments not previously
collected by Landlord from the Landlord Escrow shall be immediately released to
Landlord from, and shall be collected by Landlord from, the Landlord Escrow
without necessity of any further action by Landlord or Tenant; and (b) Landlord
shall be further entitled to immediately collect and draw from the Rent Escrow
the entire amount of the Rent Deposit then remaining in the Rent Escrow such
that Landlord has collected all of the Rent Deposit originally deposited by
Tenant in the Rent Escrow (which amount shall be fixed and liquidated damages on
account of Tenant's default and consideration for the rental abatements provided
herein). In the event of any Bankruptcy Event (i) Tenant shall deliver, as of
the effective date of such termination, any Remaining Leased Premises as of such
date in the condition required by Section 18 of the Lease (it being acknowledged
that all of the Additional Termination Areas other than the Office Area are in
the condition required by Section 18 of the Initial Lease as of the date hereof)
except that (i) Tenant shall not be obligated to remove fixtures, alterations
and improvements installed prior to the Initial Termination Date; and (ii)
Tenant shall only be obligated to repair any damage, or restore the Remaining
Premises, to the extent any damage or alteration results from the actions of
Tenant or any Tenant Party after the Initial Termination Date; and (iii) neither
party shall have any further liability or obligation pursuant to the Initial
Lease except for those liabilities and obligations of Landlord and Tenant as to
the Remaining Leased Premises that survive a termination of the Initial Lease
and relate to the period prior to the termination of the Initial Lease, which
liabilities and obligations shall survive the termination of the Initial Lease,
as Surviving Liabilities of Tenant and Surviving Liabilities of Landlord,
respectively.
9. TAX RECAPTURE. Tenant acknowledges and agrees that Tenant and the
Leased Premises have been provided certain tax incentives by the State of
Indiana and Xxxxxx County (the "COUNTY"), including, but not limited to, an
abatement or reduction in Real Estate Taxes (the "TAX ABATEMENTS"), that were
contingent, in whole or in part, on the continued use and occupancy of the
Original Building and the Expansion Area by Tenant and/or the provision by
Tenant of a certain number of jobs to residents of the State of Indiana or the
County. The Tenant hereby covenants and agrees to be liable for, and pay prior
to the delinquency thereof, any
10
recapture of the Tax Abatements or any other recapture of Real Estate Taxes
relative to the period from and after the commencement date of the Initial Lease
until November 30, 2001, whether by the State or the County and in whatsoever
form (including any increase in future Real Estate Taxes). Tenant shall defend,
indemnify and hold Landlord harmless from and against any and all actions,
costs, claims, losses, expenses, and/or damages, sustained by Landlord as a
result of any recapture of the Tax Abatements by the State of Indiana or the
County or any other recapture of Real Estate Taxes for the period from and after
the commencement date of the Initial Lease until November 30, 2001. Landlord
shall defend, indemnify and hold Tenant harmless from and against any and all
actions, costs, claims, losses, expenses, and/or damages, sustained by Tenant as
a result of any recapture of the Tax Abatements by the State of Indiana or the
County or any other recapture of Real Estate Taxes for the period from and after
December 1, 2001. The rights and obligations of this SECTION 9 shall survive the
termination or expiration of the Initial Lease and shall constitute a Surviving
Liability of Tenant and a Surviving Liability of Landlord.
10. REPAIRS AND MAINTENANCE. Notwithstanding anything contained in the
Initial Lease to the contrary (including, without limitation, the terms of
SECTION 11), with respect to any Additional Termination Area, from and after the
sooner to occur of (i) the surrender of such space by Tenant to Landlord as a
Relinquished Area in the condition required by the Initial Lease (as amended
hereby); (ii) the applicable Early Expiration Date; and (iii) the Revised
Expiration Date, Landlord shall, at Landlord's sole cost, be obligated to keep,
repair and maintain (and provide all repairs and replacements necessary to keep
and maintain) the applicable Additional Termination Area in good order and
repair, except to the extent of any damage thereto resulting directly from the
actions of Tenant or any Tenant Party which shall be repaired or restored by
Tenant (at Tenant's cost) to the extent Tenant is responsible for such damage
under the Initial Lease. As to any Additional Termination Area, Tenant shall
remain obligated to (i) maintain the insurance contemplated by the Initial
Lease; and (ii) repair and maintain such Additional Termination Area in
accordance with the Initial Lease until the sooner to occur of (x) the surrender
of such space as a Relinquished Area; (y) the applicable Early Expiration Date;
and (z) the Revised Expiration Date (or sooner termination of the Initial lease
as amended hereby). Notwithstanding anything contained in this SECTION 10 or in
any other provision of this Amendment to the contrary, Section 14(f) of the
Initial Lease remains unmodified and in full force and effect.
11. ASSIGNMENT. Landlord may withhold its consent to the assignment of
the Initial Lease or any sublease of the Revised Leased Premises in its sole and
absolute discretion.
12. SUCCESSORS AND ASSIGNS. Subject to the terms of Section 10, this
Amendment and all covenants, terms and conditions hereof shall inure to the
benefit of, and be binding upon, the respective heirs, executors,
administrators, successors and assigns of Landlord and Tenant.
13. CONFLICT. Except as amended hereby, the Leases shall be and remain
in full force and effect. In the event of any conflict between the terms of the
Leases and the terms of this Amendment, the terms of this Amendment shall
control.
14. COUNTERPARTS; FACSIMILE. This Amendment may be executed in any
number of identical counterparts, all of which, when taken together, shall
constitute the same instrument.
11
An executed facsimile copy of this Amendment shall be deemed an original for all
relevant purposes.
15. SURVIVING LIABILITIES; INDEMNITIES. Notwithstanding anything in the
Leases to the contrary:
15.1. SURRENDERED SPACE. On and after the Initial Termination Date
and Tenant's payment to Landlord of the Termination Fee, the Expiration Deposit
and Rent Deposit within the period contemplated by this Amendment after Tenant's
receipt of Mortgagees' Approvals (such date, the "RELEASE DATE"), all
liabilities and obligations of Tenant under the Initial Lease as to the
Surrendered Space and under the Expansion Lease as to the Expansion Area that
relate to the period from and after the Initial Termination Date, including,
without limitation, any Tenant indemnification in the Expansion Lease and the
Initial Lease (with respect to the Surrendered Space only) for Hazardous
Substances, shall terminate and be of no force and effect (such liabilities and
obligations, "SURRENDERED SPACE LIABILITIES"), and Landlord hereby waives and
releases Tenant from all such Surrendered Space Liabilities; provided, however,
such Surrendered Space Liabilities shall not include any liabilities and
obligations of Tenant under the Expansion Lease and the Initial Lease (with
respect to Surrendered Space only) that relate to the period on or before the
Initial Termination Date and expressly survive a termination of the Expansion
Lease or the Initial Lease (any such liabilities and obligations "SURVIVING
LIABILITIES OF TENANT"), which Surviving Liabilities of Tenant shall survive the
termination of the Expansion Lease and the Initial Lease. From and after the
Release Date, all of the liabilities and obligations of Landlord under the
Initial Lease as to the Surrendered Space and under the Expansion Lease as to
the Expansion Area that relate to the period from and after the Initial
Termination Date, including, without limitation, any Landlord indemnification
(with respect to the Surrendered Space only), shall be of no force and effect,
and Tenant hereby waives and releases Landlord from all such liabilities and
obligations; provided, however, that such liabilities and obligations shall not
include any liabilities and obligations of Landlord under the Expansion Lease or
the Initial Lease (with respect to the Surrendered Space only) that relate to
the period on or before the Initial Termination Date and expressly survive a
termination of the Expansion Lease or the Initial Lease (any such liabilities
and obligations, "SURVIVING LIABILITIES OF LANDLORD"), which Surviving
Liabilities of Landlord shall survive the termination of the Expansion Lease and
the Initial Lease.
15.2. INSURANCE ON RELINQUISHED AREA. On and after any Surrender
Date with respect to a Relinquished Area or Additional Termination Area, Tenant
shall no longer be required to maintain the insurance coverages under Section 14
of the Initial Lease including, without limitation, the general public
liabilities insurance as required under Section 14(b) of the Initial Lease, with
respect to such Relinquished Area. From and after the date upon which Tenant
relinquishes any Additional Termination Area and it becomes a Relinquished Area,
all liabilities and obligations of Tenant under the Initial Lease with respect
to such Relinquished Area that relate to the period from and after the Surrender
Date, including, without limitation, any Tenant indemnification in the Initial
Lease for Hazardous Substances, shall be of no force and effect and shall be
considered part of the Surrendered Space Liabilities and Landlord shall release
Tenant from all such liabilities and obligations with respect to such
Relinquished Area from and after such Surrender Date, provided, however, that
any liabilities and obligations of Tenant with respect to such Relinquished Area
that survive the termination or expiration of the
12
Initial Lease by its terms shall remain in force and effect, shall not be
released by Landlord and shall constitute Surviving Liabilities of Tenant which
shall survive the termination of the Initial Lease. Landlord shall maintain
commercial general liability insurance in normal and customary amounts with
respect to the Surrendered Space and any Relinquished Area until the sooner to
occur of the termination of the Initial Lease or the Revised Expiration Date,
which insurance shall identify Tenant as an additional insured.
15.3. INDEMNIFICATIONS. Tenant shall indemnify and hold harmless
Landlord, its agents, employees, officers, directors, members, partners and
shareholders, from and against any and all Losses arising out of (a) the
Surviving Liabilities of Tenant; (b) any breach or default under this Amendment
by Tenant; or (c) the actions of Tenant or any Tenant Party in (i) the
Surrendered Space from and after the Initial Termination Date and (ii) any
Additional Termination Area from and after the sooner to occur of the
termination the Initial Lease as to such area or the date upon which such area
constitutes a Relinquished Area. The foregoing indemnification shall constitute
a Surviving Liability of Tenant which shall survive the termination of the
Initial Lease. Landlord shall indemnify and hold harmless Tenant, its agents,
employees, officers, directors, members, partners and shareholders, from and
against any and all Losses arising out of (a) the Surviving Liabilities of
Landlord; (b) the use, occupancy or operation of any Relinquished Area from and
after the surrender of such Relinquished Area by Tenant, except to the extent
resulting from the actions of Tenant or any Tenant Party; (c) the actions of
Landlord or its agents and employees in the Surrendered Space from and after the
Initial Termination Date; (d) the failure by Landlord to obtain the Mortgagees'
Approvals; and (e) any breach or default by Landlord pursuant to this Amendment.
The foregoing indemnity shall not extend to or include any Losses resulting from
damage to the Tenant Property irrespective of by whom the same was caused. The
foregoing indemnity shall survive the termination of the Initial Lease and shall
constitute a Surviving Liability of the Landlord which shall survive the
termination of the Initial Lease.
16. MORTGAGEES' APPROVALS. For purposes of this Amendment, "Mortgagees'
Approvals" shall mean the written approval of Nationwide Life Insurance Company
(and either a written approval of West Coast Life Insurance Company ("WEST") in
its capacity as a mortgagee or evidence that West is no longer a mortgagee as a
result of its disposition by Nationwide or otherwise) and the delivering of such
Mortgagees' Approvals to Tenant (unless such written approvals are not required
because the loan is paid in full in which case the Mortgagees' Approvals shall
be deemed obtained when Landlord delivers reasonable evidence thereof to
Tenant).
[Signature Page to Follow]
13
IN WITNESS WHEREOF, Landlord and Tenant have entered into this
Amendment as of the date first above written.
LANDLORD:
KEYSTONE OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: Keystone Property Trust
Its: Sole General Partner
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Name: XXXXXXX X. XXXXXXXX
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
------------------------------
TENANT:
BRIGHTPOINT, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: XXXXXX X. XXXXX
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
------------------------------
AND GENERAL COUNSEL
------------------------------
S-1
EXHIBIT A
REVISED LEASED PREMISES
(see attached)
[Graphic omitted -- drawing of the leased premises at 0000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxx which included identification of portions of the property
subject to the lease termination.]
A-1
EXHIBIT B
TENANT PROPERTY
1. Racking system
2. Platform mezzanine to the South of the racking system
B-1
EXHIBIT C
EARLY EXPIRATION ESCROW INSTRUCTIONS
These Early Expiration Escrow Instructions ("INSTRUCTIONS") are entered
into as of this 28th day of September, 2001 by and between KEYSTONE OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership ("ESCROWEE"), and BRIGHTPOINT,
INC., a Delaware corporation ("TENANT").
R E C I T A L S
WHEREAS, Corporate Drive Associates, LLC, an Indiana limited liability
company and predecessor-in-interest to Escrowee ("CDA"), and Tenant previously
executed and entered into that certain Lease dated June 6, 1995, as amended by
that certain Amendment to Lease dated October 3, 1995 and that certain Second
Amendment to Lease dated July 17, 1996 (as amended, the "INITIAL LEASE"); and
WHEREAS, CDA and Tenant previously executed and entered into that
certain Lease (Building Expansion) dated July 17, 1996 (the "EXPANSION LEASE");
and
WHEREAS, Escrowee and Tenant amended and modified the Initial Lease and
the Expansion Lease pursuant to that certain Amendment to Leases (the
"AMENDMENT") dated as of an even date herewith (the Initial Lease and the
Expansion Lease, as amended by the Amendment, the "LEASE"); and
WHEREAS, the Amendment requires that Tenant pay into an escrow
maintained by Escrowee (the "ESCROW") the Expiration Deposit in the amount of
Seven Hundred Forty-Five Thousand and No/100 Dollars ($745,000), which
Expiration Deposit shall be earned by and released to Escrowee on the terms
described in the Amendment; and
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings respectively ascribed to them in the Amendment.
NOW THEREFORE, in consideration of the mutual covenants contained in
these Instructions, and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the parties hereby affirm
the foregoing recitals and agree as follows:
1. Deposit.
(a) Expiration Deposit. Pursuant to the terms and provisions of the
Amendment, Tenant has deposited (or shall deposit when and if required by the
Amendment) with Escrowee into the Escrow the Expiration Deposit in the amount of
Seven Hundred Forty-Five Thousand and No/100 Dollars ($745,000), which sum,
together with the interest earned thereon, is herein referred to as the "FUNDS."
(b) Investment of the Funds. All interest earned on the Funds shall be
retained by Escrowee.
C-1
2. Purpose of the Early Expiration Escrow.
The Expiration Deposit shall be fully non-refundable to Tenant and has
been made to act: (i) as security for Tenant's obligations pursuant to the
Initial Lease (including its obligation to make the Expiration Payments when the
same become due and owing); (ii) as consideration for Tenant's right to
terminate all or some portion of the Initial Lease prior to the Revised
Expiration Date by failing to deliver one or more Lease Affirmation Notices; and
(iii) as consideration for the agreement by Escrowee to reduce the Lease Term of
the Initial Lease.
3. Draw Requests.
The Expiration Deposit has been earned by Escrowee as of the execution
of the Amendment and Escrowee may deduct from the Escrow upon its unilateral
election, as of the sooner to occur of: (i) a Bankruptcy Event; (ii) a Default
Event; (iii) an Acceleration Event; or (iv) as to the applicable Expiration
Payment, the Early Expiration Date applicable to an Additional Termination Area
if Tenant fails to timely deliver a Lease Affirmation Notice. Escrowee shall
have the unilateral right, exercisable in its sole discretion, to deduct all or
some portion of the Funds from the Escrow without notice to Tenant and
irrespective of any contrary demand by Tenant. Tenant shall have no right to
object to the deduction of the Funds (or any Expiration Payment) from the Escrow
by Escrowee. Tenant has no right to object or otherwise prevent the deduction of
all or some portion of the Expiration Deposit by Escrowee.
4. Commingling of Funds. Escrowee is not holding the Funds in trust or
in a separate account, and Escrowee shall have the right to commingle the Funds
with its other funds.
5. Limited Liability. Without limitation of any obligations Escrowee
may have pursuant to the Lease or the Amendment, Escrowee's obligations
hereunder are limited to the retention and disbursement of Funds at its
unilateral direction. Escrowee shall not be liable to Tenant hereunder except to
the extent of any willful misconduct on the part of Escrowee in the performance
of its obligations hereunder.
C-2
6. Counterpart. These Instructions may be executed in counterparts,
each of which shall constitute an original but all of which together shall
constitute one and the same instrument.
ESCROWEE:
KEYSTONE OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Keystone Property Trust
Its: Sole General Partner
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Name: XXXXXXX X. XXXXXXXX
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
------------------------------
TENANT:
BRIGHTPOINT, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: XXXXXX X. XXXXX
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
------------------------------
AND GENERAL COUNSEL
------------------------------
C-3
EXHIBIT D
RENT ESCROW INSTRUCTIONS
These Rent Escrow Instructions ("INSTRUCTIONS") are entered into as of
this 28th day of September, 2001 by and between KEYSTONE OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership ("ESCROWEE"), and BRIGHTPOINT, INC., a
Delaware corporation ("TENANT").
R E C I T A L S
WHEREAS, Corporate Drive Associates, LLC, an Indiana limited liability
company and predecessor-in-interest to Escrowee ("CDA"), and Tenant previously
executed and entered into that certain Lease dated June 6, 1995, as amended by
that certain Amendment to Lease dated October 3, 1995 and that certain Second
Amendment to Lease dated July 17, 1996 (as amended, the "INITIAL LEASE"); and
WHEREAS, CDA and Tenant previously executed and entered into that
certain Lease (Building Expansion) dated July 17, 1996 (the "EXPANSION LEASE");
and
WHEREAS, Escrowee and Tenant amended and modified the Initial Lease and
the Expansion Lease pursuant to that certain Amendment to Leases (the
"AMENDMENT") dated as of an even date herewith (the Initial Lease and the
Expansion Lease, as amended by the Amendment, the "LEASE"); and
WHEREAS, the Amendment requires that Tenant pay into an escrow
maintained by Escrowee (the "ESCROW") the Rent Deposit in the amount of Four
Hundred Fifteen Thousand and No/100 Dollars ($415,000), which Rent Deposit shall
be earned by and released to Escrowee on the terms described in the Amendment;
and
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings respectively ascribed to them in the Amendment.
NOW THEREFORE, in consideration of the mutual covenants contained in
these Instructions, and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the parties hereby affirm
the foregoing recitals and agree as follows:
1. Deposit.
(a) Expiration Deposit. Pursuant to the terms and provisions of the
Amendment, Tenant has deposited (or shall deposit when and if required by the
Amendment) with Escrowee into the Escrow the Rent Deposit in the amount of Four
Hundred Fifteen Thousand and No/100 Dollars ($415,000), which sum, together with
the interest earned thereon, is herein referred to as the "FUNDS."
(b) Investment of the Funds. All interest earned on the Funds shall
be retained by Escrowee.
D-1
2. Purpose of the Rent Escrow.
The Rent Deposit shall be fully non-refundable to Tenant and has been
made to act: (i) as security for Tenant's obligations pursuant to the Lease,
including, but not limited to, Tenant's obligation to pay Base Rent; (ii) as
fixed and liquidated damages in the event of a default by Tenant pursuant to the
Lease; and (iii) as consideration for the agreement by Escrowee to reduce the
rental obligations of Tenant pursuant to the Lease.
3. Draw Requests.
The Rent Deposit has been earned by Escrowee as of the execution of the
Amendment and Escrowee may deduct Funds from the Escrow either: (x) to pay
monthly Base Rent; or (y) upon its unilateral election, as of the sooner to
occur of: (i) a Bankruptcy Event; (ii) a Default Event; or (iii) an Acceleration
Event. Escrowee shall have the unilateral right, exercisable in its sole
discretion, to deduct all or some portion of the Funds from the Escrow without
notice to Tenant and irrespective of any contrary demand by Tenant. Tenant shall
have no right to object to the deduction of the Funds from the Escrow by
Escrowee. Tenant has no right to object or otherwise prevent the deduction of
all or some portion of the Rent Deposit by Escrowee.
4. Commingling of Funds. Escrowee is not holding the Funds in trust or
in a separate account, and Escrowee shall have the right to commingle the Funds
with its other funds.
5. Limited Liability. Without limitation of any obligations Escrowee
may have pursuant to the Lease or the Amendment, Escrowee's obligations
hereunder are limited to the retention and disbursement of Funds at its
unilateral direction. Escrowee shall not be liable to Tenant hereunder except to
the extent of any willful misconduct on the part of Escrowee in the performance
of its obligations hereunder.
D-2
6. Counterpart. These Instructions may be executed in counterparts,
each of which shall constitute an original but all of which together shall
constitute one and the same instrument.
ESCROWEE:
KEYSTONE OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Keystone Property Trust
Its: Sole General Partner
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Name: XXXXXXX X. XXXXXXXX
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
------------------------------
TENANT:
BRIGHTPOINT, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: XXXXXX X. XXXXX
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
------------------------------
AND GENERAL COUNSEL
------------------------------
D-3
