EXHIBIT 10.48
FIFTH AMENDMENT TO INITIAL LEASE
This Fifth Amendment to Initial Lease (this "AMENDMENT") is made and
entered into this 8th day of February, 2002 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; and
WHEREAS, Landlord and Tenant previously executed and entered into that
certain Amendment to Initial Lease and Termination of Expansion Lease (the
"THIRD AMENDMENT") dated September 28, 2001 and that certain Fourth Amendment to
Initial Lease dated November 30, 2001 (the "FOURTH AMENDMENT"); and
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings respectively ascribed to them in the Fourth Amendment; and
WHEREAS, Landlord and Tenant desire to amend and modify the Initial
Lease, as previously amended and modified by the Third Amendment and the Fourth
Amendment (the Initial Lease, as amended by the Third Amendment and the Fourth
Amendment, the "LEASE") 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. The foregoing recitals are hereby incorporated into the
body of this Amendment as if more fully re-written and re-stated herein.
2. EXTENSION OF INITIAL OCCUPANCY TERM.
2.1. The Initial Occupancy Term is hereby extended as to the
Occupancy Area until June 30, 2002, subject to the terms of SECTION 2.4 below.
2.2. Section 2.3 of the Fourth Amendment is hereby deleted. Tenant
shall have three (3) options to extend the Initial Occupancy Term (each, a
"RENEWAL OPTION") for a period of thirty (30) days each (each a "RENEWAL
PERIOD") by delivery of written notice to Landlord not less than thirty (30)
days prior to the expiration of the Initial Occupancy Term, the first Renewal
Period or the second Renewal Period, as the case may be, (the Initial Occupancy
Term as extended by any or all of the Renewal Periods, the "OCCUPANCY TERM")
provided that (i) no Default Condition exists (as defined in the Third
Amendment); and (ii) no Bankruptcy Event (as defined in the Third Amendment) has
occurred.
2.3. From and after the expiration of the Occupancy Term,
Landlord's consent to the resumption by Tenant of its use and occupancy of the
Surrendered Termination Areas shall be deemed revoked and of no further force
and effect and the provisions of Section 5 of the Fourth Amendment shall be
applicable.
2.4. Notwithstanding the terms of Section 6.3 of the Fourth
Amendment, Landlord may elect, in its sole discretion, to terminate the Lease as
to the Remaining Leased Premises (as defined in the Third Amendment) and the
Occupancy Area if an Acceleration Event (as defined in the Third Amendment) has
occurred by delivery of an Accelerated Termination Notice (as defined in the
Third Amendment) to Tenant. In the event Landlord delivers an Accelerated
Termination Notice to Tenant, the Lease shall terminate as of the date specified
by Landlord in the Accelerated Termination Notice, which date must be after June
30, 2002. Notwithstanding anything contained herein or in Section 7.1 of the
Third Amendment to the contrary, Landlord shall have no obligation to provide
ten (10) days prior written notice to Tenant of, or for purposes of, an
Accelerated Termination Notice for purposes of this SECTION 2.4 or Section 7.1
of the Third Amendment (it being acknowledged that Landlord may deliver an
Accelerated Termination Notice at any time if the conditions of Section 7.1 of
the Third Amendment have been satisfied, which notice shall specify either or
both of a Revised Expiration Date (as defined in the Third Amendment) and an
Occupancy Expiration Date at least sixty (60) days after the delivery date of
such notice and in all events after June 30, 2002).
3. RENT. Tenant shall be obligated to pay Occupancy Area Base Rent with
respect to the Occupancy Area during the Occupancy Term in accordance with, and
in the amounts specified by, Section 3 of the Fourth Amendment.
4. ADDITIONAL MATTERS. Except as provided in Section 2.4 above, the
terms of Section 6 of the Fourth Amendment shall remain in full force and
effect.
5. SUCCESSORS AND ASSIGNS. 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.
6. CONFLICT. Except as amended hereby, the Lease shall be and remain in
full force and effect. In the event of any conflict between the terms of the
Lease and the terms of this Amendment, the terms of this Amendment shall
control.
7. COUNTERPARTS; FACSIMILE. This Amendment may be executed in any
number of identical counterparts, all of which, when taken together, shall
constitute the same instrument. An executed facsimile copy of this Amendment
shall be deemed an original for all relevant purposes.
[Signature Page to Follow]
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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. BUTTE
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Name: XXXXXXX X. BUTTE
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Title: VICE PRESIDENT
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TENANT:
BRIGHTPOINT, INC., a Delaware corporation
By: /s/ J. XXXX XXXXXX
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Name: J. XXXX XXXXXX
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Title: PRESIDENT AND CHIEF OPERATING OFFICER
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