EXHIBIT 10.47
FOURTH AMENDMENT TO INITIAL LEASE
This Fourth Amendment to Initial Lease (this "AMENDMENT") is made and
entered into this 30th day of November, 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 (the "EXPANSION AREA"); 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
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings respectively ascribed to them in the Third Amendment; and
WHEREAS, the Third Amendment terminated the Expansion Lease as of the
date thereof for all relevant purposes; and
WHEREAS, the Initial Lease has previously terminated as to, and Tenant
has previously surrendered to Landlord, the Surrendered Space and Additional
Termination Area #1 (such areas, the "VACATED SPACE"); and
WHEREAS, Tenant has previously surrendered to Landlord Additional
Xxxxxxxxxxx Xxxx #0, Xxxxxxxxxx Xxxxxxxxxxx Xxxx #0 and Additional Termination
Area #5 pursuant to Section 5 of the Third Amendment by the notice to Landlord
attached hereto as EXHIBIT A and such areas constitute Relinquished Areas within
the meaning of the Third Amendment (such areas, the "SURRENDERED TERMINATION
AREAS"); and
WHEREAS, Tenant desires to lease from Landlord, and Landlord desires to
lease to Tenant, the Vacated Space; and
WHEREAS, Tenant desires to temporarily resume occupancy of the
Surrendered Termination Areas, and Landlord desires to temporarily permit Tenant
to resume occupancy of the Surrendered Termination Areas; and
WHEREAS, Landlord and Tenant desire to amend and modify the Initial
Lease, as previously amended and modified by the Third Amendment (the Initial
Lease, as amended by the Third 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. DEMISE; CONSENT.
2.1. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Vacated Space and the Surrendered Termination Areas (the
"OCCUPANCY AREA.") for a period commencing as of the date hereof (the "OCCUPANCY
COMMENCEMENT DATE") and expiring on the last day of the calendar month in which
the sixtieth (60th) day after the date hereof occurs (such period, the "INITIAL
OCCUPANCY TERM").
2.2. Tenant shall use, occupy and lease the Occupancy Area, subject
to all of the terms, conditions and limitations contained in the Lease, except
as amended hereby.
2.3. Tenant shall have two (2) 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 ten (10) business days prior to the expiration of the Initial Occupancy
Term or the expiration of the first Renewal Period, as the case may be, (the
Initial Occupancy Term as extended by either or both of the Renewal Periods, the
"OCCUPANCY TERM") provided that (i) no Default Condition exists; and (ii) no
Bankruptcy Event has occurred.
2.4. 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 hereof shall be applicable.
2.5. Without limitation of the foregoing, for purposes of this
Amendment, the Expansion Area is intended to be leased by Landlord to Tenant,
and made subject to, the Lease as if the Expansion Area were included within the
definition of Leased Premises contained in the Initial Lease such that Tenant's
rights and obligations pursuant to the Lease as to the Vacated Space shall
include the Expansion Area for all relevant purposes.
3. RENT. Notwithstanding anything contained in the Lease to the
contrary, from and after the Occupancy Commencement Date until the expiration of
the Occupancy Term (the date of such expiration, the "OCCUPANCY EXPIRATION
DATE"), Tenant shall pay monthly Base Rent to Landlord with respect to the
Occupancy Area (the "OCCUPANCY AREA BASE RENT") of $47,240.83 per month, which
Occupancy Area Base Rent shall by payable in advance on or prior to the first
day of each month in accordance with Section 3 of the Initial Lease. The
Occupancy Area Base Rent shall be payable by Tenant to Landlord directly in
addition to, and without
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limitation of, the amounts due and owing from Tenant to Landlord pursuant to the
Third Amendment. Tenant shall be obligated to pay for all utilities. During the
Occupancy Term, no Additional Rent shall be payable from Tenant to Landlord
pursuant to the Third Amendment on account of the Occupancy Area (provided that
the foregoing shall be without limitation upon Tenant's obligations with respect
to the Office Area).
4. REPAIRS AND MAINTENANCE. Notwithstanding anything contained in the
Third Amendment to the contrary, during the Occupancy Term, Tenant shall be
obligated to (i) maintain the insurance on the Occupancy Area; and (ii) repair
and maintain such Occupancy Area in accordance with the Initial Lease until the
Occupancy Expiration Date (or sooner termination of the Lease as amended
hereby); provided, however, that Tenant shall not be obligated to perform any
structural repairs, maintenance or replacement unless occasioned by any
negligence, intentional act or willful misconduct of Tenant or its employees,
contractors or agents. Without limitation of the foregoing, Landlord shall have
no obligation to repair and maintain the Occupancy Area during the Occupancy
Term.
5. SURRENDER.
5.1. As of the Occupancy Expiration Date (or the sooner termination
of the Lease), Tenant shall vacate the Occupancy Area in the condition required
by Section 18 of the Initial Lease. Without limitation of the foregoing, Tenant
shall remove the Tenant Property on or prior to the Occupancy Expiration Date.
In the event that Tenant does not vacate the Occupancy Area on or prior to the
Occupancy Expiration Date (or the sooner termination of the Lease), Landlord
shall have all of the rights and remedies contemplated by the Initial Lease with
respect to the original Leased Premises as to the Occupancy Area, including, but
not limited to, the right to collect hold over rent, and such failure shall
constitute a Default Event.
5.2. From and after the Occupancy Expiration Date (or the sooner
termination of the Lease), the Surrendered Termination Areas shall again
constitute Relinquished Areas as contemplated by the Third Amendment.
5.3. As of the Occupancy Expiration Date, the Lease (as amended
hereby) shall terminate as to the Vacated Space and neither Tenant nor Landlord
shall have any further liability or obligation with respect to the Lease (as
amended hereby) as to the Vacated Space except for those liabilities and
obligations of Tenant and Landlord relative to the Occupancy Term that expressly
survive a termination of the Lease as to the Vacated Space (which shall
constitute Surviving Liabilities of Tenant and Surviving Liabilities of
Landlord, respectively) and Surviving Liabilities of Tenant and Surviving
Liabilities of Landlord for the applicable portion of the Vacated Space for the
period prior to the deletion of such space from the Lease pursuant to the Third
Amendment.
6. ADDITIONAL MATTERS.
6.1. During the Occupancy Term, the terms of Section 15 of the Third
Amendment shall be of no force and effect with respect to the Occupancy Area.
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6.2. Notwithstanding anything contained herein to the contrary,
Landlord hereby retains any and all rights Landlord may have pursuant to the
Third Amendment to: (i) the Termination Fee, the Expiration Deposit and the Rent
Deposit; (ii) to collect the Expiration Payments when due and owing pursuant to
the Third Amendment; (iii) to collect the Base Rent and the Occupancy Area Base
Rent in the amounts and at the times contemplated by the Third Amendment; (vi)
to exercise any and all rights Landlord may have pursuant to Section 7 and
Section 8 of the Third Amendment, which rights shall be applicable to the
Occupancy Area during the Occupancy Term and shall be superior to Tenant's
rights hereunder, except as set forth in SECTION 6.3 below; and (v) any rights
Landlord may have to pursuant to Section 9 of the Third Amendment.
6.3. If the Lease is terminated pursuant to the Third Amendment, the
rights of Tenant hereunder to the Occupancy Area shall be simultaneously
terminated; provided, however, that Landlord shall have no right to terminate
Tenant's rights hereunder pursuant to Section 7.1 of the Third Amendment during
the Occupancy Term. Nothing contained herein shall be construed to reinstate the
Expansion Lease.
7. 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.
8. 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.
9. 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/ XXXXXXX X. XXXXXXXX
----------------------------------
Name: XXXXXXX X. XXXXXXXX
--------------------------------
Title: EXECUTIVE VICE PRESIDENT
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AND CHIEF FINANCIAL OFFICER
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EXHIBIT A
BRIGHTPOINT, INC.
0000 XXXXXXXXX XXXXX
XXXXXXXXXXXX, XXXXXXX 00000-0000
October 15, 2001
Xxxxxxx X. Xxxxxxxx
Keystone Property Trust
000 Xxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxxxx Xxxxxxxxxxxx 00000
Re: 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx
Dear Xxx:
Reference is made hereby to that certain Amendment to Initial Lease and
Termination of Expansion Lease (the "Amendment") by and between Keystone
Operating Partnership, L.P. and Brightpoint, Inc. Capitalized terms used herein
and not otherwise defined shall have the meanings respectively ascribed to them
in the Amendment.
Tenant hereby surrenders Additional Xxxxxxxxxxx Xxxx #0, Xxxxxxxxxx
Xxxxxxxxxxx Xxxx #0 and Additional Termination Area #5 (the "Surrendered Areas")
to Landlord pursuant to Section 5 of the Amendment such that the Surrender Areas
shall constitute Relinquished Areas within the meaning of Section 5 of the
Amendment.
Sincerely,
BRIGHTPOINT, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
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Name: XXXXXXX X. XXXXXXXX
--------------------------------
Title: EXECUTIVE VICE PRESIDENT
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AND CHIEF FINANCIAL OFFICER
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