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HomeMy WebLinkAboutPedcor/Carmel Utilities LeaseLEASE APPROVED. AS TO FORM (Public Works) THIS LEASE is made this ~day of ~h,~[2002, by and between Pedcor Investments, A Limited Liability Company, a Wyoming limited liability company ("Landlord"), and Carmel Utilities, by and through the City of Carmel's Board of Public Works and Safety ("Tenant"). WITNESSETH ARTICLE 1 - LEASE OF PREMISES Section 1.01. Lease of Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, subject to all matters affecting title as set forth in Exhibit A-1 attached hereto and any Superior Mortgage (as defined in Section 14.01) and all of the terms and conditions hereinafter set forth, office space within the commercial office building described below and to be constructed as hereinafter provided, to be located in Carmel, Indiana, as depicted on Exhibit A-2 attached hereto (the "Elevations") (the "Building") for the Term hereinafter specified. The space in the Building hereby leased to Tenant is described in Item B of the Basic Lease Provisions in Section 1.02 hereof (the "Basic Lease Provisions") and is depicted on Exhibit A-3 attached hereto (the "Floor Plan"), exclusive of the areas reflected thereon with reference to "Stairs, Lobby 102, Elevator Shaft, Corridor 118, Corridor 122, Men's, Jan, Women's, Rear Lobby and Vest" on the first level and "Lobby 200, Elevator Shaft, Stairs, Men's, Jan, Corridor 221, Corridor 220, Women's and Rear Lobby" on the second level (the excluded areas referred to as the "Proximate Common Areas") (the "Leased Premises"). Common Areas (as defined in Item I of the Basic Lease Provisions) and areas rented to or available for rental by other tenants are not within the Leased Premises, and Tenant has no rights or interests in or to the same except as to its allocable portion of the Common Areas. It is understood that Landlord is a tenant of the Leased Premises and the Common Areas pursuant to a certain Master Lease (the "Master Lease") by and between Pedcor Office, LLC, as landlord (the "Master Lessor"), and Landlord as tenant, dated as of even date herewith, which Master Lease has been heretofore presented to Tenant. There shall be no changes to the Master Lease (except changes relating solely to leased premises other than to the Leased Premises and the Common Areas) without the prior written approval of Tenant, which approval shall not be unreasonably withheld or delayed. The Master Lease provides for the lease to Landlord of the real estate described in Exhibit A-4 attached hereto (the "Legal Description")(the "Land"). The Master Lease contemplates the construction of another building to be located on the Land as reflected as "Building 1" on Exhibit A-5 attached hereto (the "Site Plan")(the "Pedcor Building"). Section 1.02. Basic Lease Provisions. A. Building Name: [Not named at this time]. C:\WlNN~l~Temporary Interaet Files\OLK45kPublicWorksLease121802clean,doc Rentable Area: 10,000 square feet (the Building contains 20,000 square feet and the Rentable Area includes the Leased Premises and an allocable portion of the Common Areas located within the Building). Minimum Annual Rent: $155,000.00 for initial year and thereafter with annual 3% increase on prior year's annual rant. Monthly Rental Installments: 1/12th of the annual rate applicable to such calendar month for the initial twelve (12) calendar month period. Term: Forty eight (48) months with two (2) successive one (1) year options to extend and a right to terminate within the fourth (4th) year (see also Section 2.01). Commencement Date: The Commencement Date shall be the Completion Date as defined in Section 2.02 or such earlier date as Tenant takes possession or commences use of the Leased Premises as authorized herein. Permitted Use: General office purposes for the Department of Utilities. Address for Payments and notices: Landlord: Pedcor Investments, A Limited Liability Company Attn: Bruce A. Cordingley 8888 Keystone Crossing, Suite 900 Indianapolis, Indiana 46240 Tenant: Department of Utilities One Civic Square Carmel, Indiana 46033 Attn: Director of Utilities cc: City of Carmel City Attorney One Civic Square Carmel, IN 46233 Common Areas: Those areas within and outside the Building as described in Section 18.03. Tenant's Proportionate Share: 50% Exhibit Surrmnary (and all are incorporated by reference): A-1. Title Matters A-2. Elevations A-3. Floor Plan A-4. Legal Description A-5. Site Plan A-6 Parking Floor Plan A-7 Tenant Finish Specifications A-8 Budget B. Building Rules and Regulations SECTION 2 - TERM AND POSSESSION Section 2.01. Term. The term of this Lease shall be the period of time specified in Item E of the Basic Lease Provisions and shall commence on (i) the Commencement Date as provided in Item F of the Basic Lease Provisions or (ii) upon such earlier date as Tenant takes possession or commences use of the Lease Premises as authorized heroin, which if (ii) applies, such date shall constitute the "Commencement Date," and the "Expiration Date" shall be confirmed by Tenant as provided in Section 2.03 (the "Term"). It is understood and agreed, however, that this Lease shall expire at the end of the period for which the fiscal body(ies) of Tenant has/have appropriated funds for payments due under this Lease for the Term set forth herein. Option to Extend. Notwithstanding the forgoing, Landlord hereby grants to Tenant an option to extend the Term for two (2) successive, one (1) year periods. Such extension shall be upon the same terms and conditions contained in the Lease for the initial Term of four (4) years except for this provision giving the renewal option and subject to any amendments that the parties agree to in writing. Such options shall be exercised by Tenant's delivery to Landlord, written notice to extend for one (1) year. Such notice shall be delivered to Landlord no later than six (6) months prior to the expiration of the then current term, whether the initial Term or an extension term. Tenant's failure to deliver timely notice shall give Landlord the right to treat such failure as an extinguishment of the Tenant's right to extend, making the termination date the same date on which the then current term expires, or to waive the failure and allow Tenant to extend the then current Term at a date later than that contemplated by the six (6) month timeframe set forth above. In no event shall Tenant be obligated to extend this Lease. Option to Terminate. Tenant may terminate this Lease at any time after the third year provided that (i) Tenant has given Landlord three (3) months notice of its intent to terminate the Lease; and (ii) that the termination of the Lease is a result of Tenant's relocation to a building and/or facility owned by Tenant and/or a related municipal department or entity. In the event Tenant exercises an option to extend under Section 2.01 hereof, this termination right shall no longer be of any force or effect. Section 2.02. Construction of the Leased Premises. Landlord agrees to construct the Building and also appurtenant areas on the Land as shown as located outside of the Building and outside of Pedcor Building, including landscaping, an underground parking garage, parking lots, driveways and other improvements, in accordance with the Elevations, Floor Plan, Site Plan, the underground parking floor plan depicted in Exhibit A-6 attached hereto (the "Parking Floor Plan") and the tenant finish specifications attached hereto as Exhibit A-7 (the "Tenant Finish Specifications") and generally in conformance with the provision of the line item descriptions (but not necessarily the amounts) contained in the construction budget attached hereto as Exhibit A-8 (the "Budget")(all of the foregoing exhibitscollectively referred to as the "Plans and Specifications"). Tenant shall have the right to request in writing that Landlord make changes from time to time in the Plans and Specifications ("Change Order(s)"), and Landlord shall not unreasonably refuse to do so. The requests to make changes represented by the Change Order(s) shall be deemed to have been rejected by Landlord if Landlord fails to approve such Change Order(s) within thirty(30) days of Landlord's receipt thereof. So long as Landlord has apprised Tenant in writing of the costs thereof and Tenant has approved such amount and Change Order in writing, Tenant shall pay directly for the actual (which, when such term is used, includes its customary overhead and profit) cost of any such Change Orders by payment of the full amount of the cost of such Change Order within thirty (30) days of the date on which Landlord delivers notice that the Change Order has been completed. Landlord shall apply for and obtain, at its sole cost and expense, all permits, licenses and certificates necessary for the construction of the Building and for the occupancy thereof by Tenant. Landlord shall commence construction of the Building on or before ten (10) days following satisfaction of Tenant's government approval condition (see Section 18.18) and Landlord's receipt of all necessary zoning and conditional or special use approvals (the "Construction Commencement Date"). Landlord shall use its best efforts and due diligence to pursue and obtain all such approvals as quickly as possible. Landlord hereby agrees to promptly provide to Tenant from time to time and upon request, the status of all such necessary approvals. The Building and the Leased Premises shall be deemed to be fully completed at such time as (i) Landlord shall certify in writing to Tenant that such Building and Leased Premises have been completed in substantial accordance with the Final Plans and Specifications (subject to certain minor punch list items, the completion of which will not materially affect Tenant's use and occupancy of the Building and the Leased Premises), (ii) a licensed architect or engineer in good standing in the locality where the Leased Premises are located shall certify in writing to Tenant as to those same matters in (i) immediately preceding, and (iii) if required by law, a Certificate of Occupancy (whether temporary or permanent) or similar certificate or permit is issued by the appropriate governmental authority having jurisdiction over the Building and the C:[WINNTxTeraporary Internet Files\OLK45gOublicWorksLease121802clea~dcc Leased Premises allowing Tenant to use and occupy the Building and the Leased Premises for the uses permitted under Section 1.02(G) of this Lease. At such time as the last of the foregoing requirements shall have been satisfied, Landlord shall deliver possession of the Leased Premises to Tenant. The date upon which Landlord shall deliver possession of the Leased Premises to Tenant is herein called the "Completion Date." Following receipt of such notice, Tenant may, but only with Landlord's consent, enter onto the Leased Premises to prepare the Leased Premises for its occupancy, provided, however, that Tenant shall arrange its schedule so as not to interfere with or delay other work of Landlord or any permitting or inspection process being carried on at the same time; and provided further that neither Landlord nor any of Landlord's affiliates shall have any responsibility or liability whatsoever for any injury (including death) to persons or loss or damage to any of Tenant's leasehold improvements, fixtures, equipment or any other materials installed or left in the Leased Premises prior to the Commencement Date except as to injury, loss or damage caused by the gross negligence or reckless act or omission caused by the Landlord or those authorized by or under the control of Landlord. Landlord shall incorporate only new materials and equipment into the construction of the Building. Landlord guarantees the Building against defective design, workmanship and materials, latent or otherwise, for a period of one year following the Completion Date (the "Warranty Period"). Landlord shall repair or replace with new materials, at its sole cost and expense, any defective item occasioned by defective design, workmanship or materials that Tenant discovers during the Warranty Period. The Warranty Period shall be extended for an additional one (1) year as to any such new materials installed in furtherance of the repair or replacement of a defective item. Landlord shall keep Tenant apprised of the status of the construction on a monthly basis. Although Landlord shall make a good faith effort to provide the Leased Premises to Tenant for its exclusive use and possession on or before October 15, 2003, it is not known that such delivery is possible on or before such date. If the Building and the Leased Premises are not ready for Tenant's occupancy on or before November 1, 2004 (the "Outside Date"), Tenant shall have the right to terminate this Lease under delivery of notice thereof to Landlord. Upon delivery of any notice of Termination allowed hereunder, this Lease shall be of no further force or effect and Tenant will have no further liability to Landlord hereunder. Tenant shall accept occupancy of the Leased Premises within thirty (30) days of receipt of Landlord's written notice that the Leased Premises are available for Tenant's exclusive use and possession so long as such notice is received at least thirty (30) days prior to the Outside Date. Section 2.03. Tenant's Acceptance of the Leased Premises. Upon delivery of possession of the Leased Premises to Tenant as hereinbefore provided, Tenant shall execute a letter of understanding acknowledging (i) the Commencement Date and Expiration Date of this Lease and (ii) that Tenant has accepted the Leased Premises for occupancy and that the condition of the Leased Premises, including the tenant finish improvements constructed thereon, and the Building was at the time satisfactory and in conformity with the provisions of this Lease in all respects, except for latent defects, defects which are covered by warranty or guaranty and any defects as to which Tenant shall give written notice to Landlord within thirty (30) days after such delivery. Such letter of understanding shall become a part of this Lease. Landlord shall promptly thereafter correct all such defects to Tenant's reasonable satisfaction and in accordance with the Final Plans and Specifications. Landlord shall notify Tenant in writing of the date(s) and expected duration of such work to be performed as contemplated hereunder and shall be coordinated with Tenant so as not to unreasonably interfere with Tenant's Permitted Use of the Leased Premises. Section 2.04. Surrender of the Premises. Upon the expiration or earlier termination of this Lease, or upon the exercise by Landlord of its right to re-enter the Leased Premises without terminating this Lease, Tenant shall immediately surrender the Leased Premises to Landlord, together with all alterations, improvements and other property as provided elsewhere herein, in broom-clean condition and in good order, condition and repair, ordinary wear and tear and any condition that Tenant is not obligated to correct hereunder excepted, to the condition of the Leased Premises existing at the time of delivery of possession to Tenant, failing which Landlord shall notify Tenant in writing detailing the Landlord's objection(s). Tenant shall have the opportunity to cure such failure within what is a reasonable time after receipt of notification and taking into account the surrounding circumstances, but, in any event, commencement of repair must begin within thirty (30) days after receipt of such notification and proceed to completion with due diligence. If Tenant fails to have cured such failure within a reasonable time period or if Tenant fails to provide any response within ten (10) business days from receipt, Landlord may restore the Leased Premises to such condition at Tenant's expense. Upon such expiration or termination, Tenant shall remove its personal property (as described in Article 7) at its cost and expense. Tenant shall promptly repair any damage caused by any such removal and shall restore the Leased Premises to substantially the same condition existing prior to the installation of the items so removed. This provision shall survive the expiration or earlier termination of this Lease. Section 2.05, Holding Over. If Tenant holds over after the expiration or earlier termination of this Lease with consent of Landlord, Tenant shall become a tenant from month to month at the then existing rental hereunder for the Leased Premises in effect upon the date of such expiration or earlier termination (subject to adjustment as provided in Article 3 hereof and prorated on a daily basis), and otherwise upon the terms, covenants and conditions herein specified, so far as applicable. Acceptance by Landlord of rent after such expiration or earlier termination shall not constitute a consent to a holdover hereunder or result in a renewal. Notwithstanding the foregoing provision, no holding over by Tenant shall operate to extend this Lease, and Tenant shall vacate and surrender the Leased Premises to Landlord upon Tenant's being given thirty (30) days prior written notice from Landlord to vacate. The foregoing provisions of this Section 2.05 are in addition to and do not affect Landlord's right of re-entry or any other rights of Landlord hereunder or as otherwise provided by law. C:\WINNT~Temporary Internet Files\OLK45\PablicWorksLease121802cle~doc ARTICLE 3 - RENT Section 3.01. Base Rent. Commencing on the Commencement Date, Tenant shall pay to Landlord as Minimum Annual Rent for the Leased Premises the sum specified in Item C of the Basic Lease Provisions, payable in equal consecutive Monthly Rental Installments as specified in Item D of the Basic Lease Provisions, in advance, without deduction or offset, on or before the first day of each and every calendar month during the term of this Lease; provided, however, that if the Commencement Date shall be a day other than the first day of a calendar month or the Expiration Date shall be a day other than the last day of a calendar month, the Monthly Rental Installment for such first or last fractional month shall be prorated. Any portion of the monthly Rental Installments or any other sums or charges required to be paid by Tenant to Landlord under this Lease that are not paid when due shall bear a delinquency service charge equal to the rate and according to the conditions set forth in the Indiana Prompt Payment (I.C. {}5-17-5 et seq.) provisions applicable to Tenant. Section 3.02. Rental Adjustment. shall apply: Definitions. For purposes of this Section 3.02, the following definitions "Utility Expenses" shall mean the total of all of the water, gas, sewer, electrical and other utility charges for the Proximate Common Areas. "Tenant's Proportionate Share of Utility Expenses" shall be an amount equal to the Utility Expenses for a calendar month times Tenant's Proportionate Sham. B. Payment Obligation. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as additional rant for the Leased Promises, an amount equal to Tenant's Proportionate Share of Utility Expenses. Landlord will invoice Tenant monthly in arrears Tenant's Proportionate Share of Utility Expenses, and Tenant shall pay the same to Landlord for each calendar month within the Term on or before fifteen (15) days after a written invoice for same is submitted by Landlord to Tenant. Section 3.03. Contribution for Certain Tenant Finish Improvements. Landlord and Tenant agree that the Building and Leased Premises will be constructed by Landlord in accordance with the Plans and Specifications and Tenant shall incur no cost therefor or related thereto other than those amounts for Change Orders which Tenant has approved in accordance with the provisions set forth in Section 2.02. Section 3.04. Independent Covenants. The covenants to pay rent and other charges and payments under the terms of this Lease, including Minimum Annual Rent, Annual Rental Adjustment, and other charges, are independent covenants. Section 3.05. Non-Common Area Utilities.__Tenant shall pay for all gas and electric services for the Leased Premises to the providers thereof. Landlord shall, at Landlord's sole cost and expense, cause separate metering for the same to serve exclusively the Leased Premises. Water provided in the Leased Premises and in other non-common areas of the Building for kitchen facilities will be considered Utility Expenses for the Proximate Common Areas subject to apportionment pursuant to Section 3.02. ARTICLE 4 - Intentionally Omitted ARTICLE 5 - OCCUPANCY AND USE Section 5.01. Occupancy. Tenant shall use and occupy the Leased Premises for the purposes set forth in Item G of the Basic Lease Provisions and shall not use the Leased Premises for any other purpose except as requested by Tenant and agreed in writing by Landlord. Section 5.02. Covenants of Tenant Regarding Use. In connection with its use of the Leased Premises, Tenant agrees to do the following: A. Tenant shall use the Leased Premises and conduct its business thereon in a safe, careful, reputable and lawful manner. B. Tenant shall not use the Leased Premises for any unlawful purpose or act; shall not commit or permit any waste or damage to the Leased Premises or do or permit any act or thing to be done in or to the Leased Premises which is contrary to any law, regulation or order of any governmental authority, agency, department or commission; shall at its costs and expense comply with and obey all present and future laws, regulations and orders of any governmental authority, agency, department or commission, all reasonable directions of Landlord, including the rules and regulations attached hereto as Exhibit B (the "Building Rules and Regulations"), as may be reasonably modified from time to time by Landlord upon written notice to Tenant; shall not do or permit anything to be done in or about the Leased Premises which will in any way obstruct or unreasonably interfere with the rights of other tenants or occupants of the building or injure them. Landlord shall not be responsible to Tenant for the nonperformance by any other tenant or occupant of the Building of any of the Building Rules and Regulations. Landlord shall enforce the Building Rules and Regulations on a uniform, non-discriminatory manner. C. Tenant shall not overload the floors of the Leased Premises beyond their designed weight-bearing capacity, which Landlord has determined to be fifty (50) pounds per square foot live load, including an allowance for partition load. Landlord reserves the right to direct the positioning of all heavy equipment, furniture and fixtures which Tenant desires to place in the Leased Premises so as to distribute properly the weight thereof, and to require the removal of any equipment or furniture which exceeds the weight limit specified heroin. Such actions shall be exercised reasonably and shall be made with prior written notice to Tenant. D. Tenant shall not use the Leased Premises, or allow the Leased Premises to be used, for any purpose or in any manner which would, in Landlord's reasonable opinion, invalidate any policy of insurance now or hereafter carried on the Building or increase the rate of premiums payable on any such insurance policy. Should Tenant fail to comply with this covenant, Landlord may, at its option, require Tenant to stop engaging in such activity or to reimburse Landlord as additional rent for any increase in premiums charged during the term of this Lease on the insurance carded by Landlord on the Leased Premises and attributable to the use being made of the Leased Premises by Tenant. E. Tenant shall not inscribe, paint, affix or display any signs, advertisements or notices on the Building outside of the Leased Premises, except for such tenant identification information as Landlord permits to be included or shown on the directory board in the main lobby and on or adjacent to the access door or doors to the Leased Premises and as is reasonably required by Tenant's Permitted Use. Notwithstanding the foregoing and provided that Tenant complies with all zoning and other municipal regulations, Tenant may install signage on the exterior of the Building, the interior of the Building and within the Leased Premises at Tenant's cost and expense ("Tenant's Signs"). Tenant shall obtain Landlord's prior written approval of any signage intended to be permanently affixed to the Building, which approval shall not be unreasonably conditioned, withheld or delayed. Landlord specifically acknowledges and agrees that Tenant shall be allowed to post any and all signs necessary to allow Tenant to comply with any statute, law, or ordinance, including, but not limited to, any statutory notice and/or open door law requirements. F. Tenant shall promptly notify Landlord of any written notice it receives of the violation of any law or requirement of any public authority. Section 5.03. Landlord's Rights Regarding Use. In addition to the rights specified elsewhere in this Lease, Landlord shall have the following rights regarding the use of the Leased Premises or the Common Areas by Tenant, its employees, agents, customers and invitees, each of which may be exercised without notice or liability to Tenant: A. Landlord may install such signs, advertisements or notices or tenant identification information on the directory board or tenant access doors as it shall deem reasonably necessary or proper, such signs regarding Tenant's identification to first be delivered to Tenant for Tenant's reasonable approval. B. Landlord shall approve or disapprove, prior to installation, all types of drapes, shades and other window coverings used in the Leased Premises, and may control all internal lighting that may be visible from outside the Leased Premises, which approval shall not be unreasonably conditioned, withheld or delayed. C. Landlord shall approve or disapprove all sign painting and lettering used on the Leased Premises and the Building, including the suppliers thereof, which approval shall not be unreasonably conditioned, withheld or delayed. D. Landlord may grant to any person the exclusive right to conduct any business or render any service in the Building, provided that such exclusive fight shall not operate to limit Tenant from using the Leased Premises for the use permitted in Item G of the Basic Lease Provisions. Landlord acknowledges that any contractors used by Tenant must agree not to discriminate as required by Indiana law, and Landlord hereby agrees to obtain that agreement or failing such, Tenant shall be released from using such contractor. Landlord shall provide Tenant upon request, but no more often than on a quarterly basis, a list of contractors, their respective contact name and telephone numbers to which Landlord has given an exclusive fight to perform services and whether such contractor(s) has agreed in writing not to discriminate. Notwithstanding the foregoing, in the event the remainder (or any portion thereof) is not leased to Tenant or to the Carmel/Clay Park and Recreation Board or to a related entity such as Departments of the City of Carmel, Indiana or Clay Township, Indiana, Landlord shall obtain Tenant's approval prior to granting any such exclusive fights. E. Landlord may control the Common Areas in such manner as it deems necessary or proper, including by way of illustration and not limitation: requiring all persons entering or leaving the Building to identify themselves and their business in the Building; excluding or expelling any peddler, solicitor or loud or unruly person from the Building; and closing or limiting access to the Building or any part thereof, including entrances, corridors, doors and elevators, during times of emergency repairs or after regular business hours, provided that Tenant shall have access to the Leased Premises during such times as necessary to conduct Tenant's business. Prior to exercising control measures which impact Tenant's or the public's access to the Building and/or the Leased Premises, Landlord shall give Tenant thirty (30) days prior written notice and a detailed description of the control measures to be taken, the method to be used and the expected duration. Section 5.04. Access to and Inspection of the Leased Premises. Upon 72 hours' prior written notice to Tenant, Landlord, its employees and agents and any mortgagee of the Building shall have the right to enter any part of the Leased Premises at reasonable times for the purposes of examining or inspecting the same, showing the same to prospective purchasers, mortgages or tenants and making such repairs, alterations or improvements to the Leased Premises or the Building as Landlord may deem necessary or desirable. In no event shall Landlord's right to access the Leased Premises unreasonably interfere with the Tenant's use of the Leased Premises. Except for emergency situations where it is not practicable to await the arrival of a Tenant representative, a representative of Tenant shall be present to open and permit such entry into the Leased Premises at any time when such entry is necessary or permitted hereunder, Landlord and its employees and agents may enter the Leased Premises by means of a master or pass key or otherwise. In such emergency situation, Landlord shall incur no liability to Tenant for such entry, nor shall such entry constitute an eviction of Tenant or a termination of this Lease, or entitle Tenant to any abatement of rent therefore, except to the extent caused by any reckless or intentional act on the part of Landlord. Notwithstanding the foregoing and except as otherwise specifically provided herein, Landlord shall be liable to Tenant for injury, including death and/or damage caused by Landlord in an emergency situation to the extent that Landlord is reckless or intentionally causes injury and damages. ARTICLE 6 -BUILDING SERVICES Section 6.01. Services to be Provided. Provided Tenant is not in default beyond any applicable grace or cure periods provided in this Lease, Landlord shall furnish to Tenant, at Landlord's expense, the following building services (subject to payment of Tenant's Proportionate Share of Utility Expenses pursuant to Section 3.02 and Tenant's payment of utility services for the Leased Premises pursuant to Section 3.05) to the extent reasonably necessary for Tenant's comfortable use and occupancy of the Leased Premises for the Permitted Use set forth herein or as may be required by law or directed by governmental authority: A. Heating, ventilation and air-conditioning between the hours of 6:00 a.m. and 9:00 p.m. on Monday through Friday and 7:00 a.m. to 6:00 p.m. on Saturday of each week including legal holidays; B. Subject to interruptions beyond Landlord's control, electrical current not to exceed three (3) watts per square foot. At all times Tenant's use of electric current shall never exceed the capacity of the feeders to the Building or the risers or wiring installation; Tenant shall not install or use or permit the installation or use of any computer or electronic data processing equipment in the Leased Premises requiring greater electrical current than set forth above without the prior written consent of Landlord; C. Water in the Common Areas and in the kitchen facilities located in the Leased Premises, for lavatory and drinking purposes; D. Automatic elevator service; E. Cleaning and janitorial service for the Common Areas, including the supplying and installing of paper towels, toilet tissue and soap in the Common Areas on Monday through Friday of each week except legal holidays; F. Washing of windows at intervals reasonably established by Landlord; G. Replacement of all lamps, bulbs, starters and ballasts in Common Areas as required from time to time; CAWINNTXTemporary Internet File s\OLK45h?ablic W orksLe a se 121802clein~doc H. Cleaning and maintenance of the Common Areas, including the removal of rubbish and snow; I. Separate utility metering facilities for the Leased Premises for gas and electric; and J. Repair and maintenance to the extent specified elsewhere in this Lease. Section 6.02. Additional Services. If Tenant requests any other building services in addition to those identified above or any of the above building services in frequency, scope, quality or quantity substantially greater than those which Landlord determines are normally required by other tenants in the Building for general office use, then Landlord shall use reasonable efforts to attempt to furnish Tenant with such additional building services; provided, however, that Landlord shall first provide Tenant with a written estimate of the cost therefore and if Tenant provides written consent to the payment thereof, Landlord shall be free to provide such service. In the event Landlord is able to and does furnish such additional building services, the actual costs thereof and a customary and standard administrative fee shall be borne by Tenant, who shall reimburse Landlord monthly for the same as additional rent at the same time Monthly Rental Installments and other additional rent is due. If any lights, machines or equipment (including but not limited to computers) used by Tenant in the Leased Premises materially affect the temperature otherwise maintained by the Building's air-conditioning system or generate substantially mom heat in the Leased Premises than that which would normally be generated by the lights and business machines typically used by other tenants in the Building, then Landlord shall notify Tenant of such. If Tenant cannot find a way to limit the heat generated to a reasonably acceptable level, Landlord shall notify Tenant of the measures that Landlord shall be forced to take, including the right to install any machinery or equipment which Landlord considers reasonably necessary in order to restore the temperature balance between the Leased Premises and the rest of the Building, including equipment which modifies the building's air-conditioning system. Actual costs expended by Landlord to install any such necessary and reasonable machinery and equipment and any actual and additional costs of operation and maintenance occasioned thereby shall be borne by Tenant, who shall reimburse Landlord for the same as provided in this Section 6.02. Tenant shall not install or connect any electrical equipment which requires or uses electrical current in excess of three (3) watts per square foot without Landlord's prior written consent. If Landlord determines that the electricity used by the equipment to be so installed or connected exceeds the designed load capacity of the building's electrical system or is in any way incompatible therewith, then Landlord shall have the right, as a condition to granting its consent, to make necessary and reasonable modifications to the electrical system or other parts of the Building or Leased Premises, or to require Tenant to make such modifications to the equipment to be installed or connected, as Landlord considers to be reasonably necessary before such equipment may be so installed or connected. The cost of any such modifications shall be provided in writing to Tenant before the actual incurrence thereof so that Tenant may make changes that avoid such a cost. If Tenant cannot reduce or eliminate the cost projected by Landlord and Landlord incurs necessary and reasonable expenses to address the sit.uation, all actual costs shall be borne by Tenant, who shall reimburse Landlord for the same (or any portion thereof paid by Landlord) as provided in this Section 6.02. Section 6.03. Temporary Interruption of Services. Except as provided in Article 8 and 10 hereof, Tenant understands, acknowledges and agrees that any one or more of the utilities or other building services identified in Section 6.01 may be temporarily interrupted by reason of accident, emergency or other causes beyond Landlord's control, or may be discontinued or diminished temporafily by Landlord or other persons until certain repairs, alterations or improvements can be made; that Landlord does not represent or warrant the uninterrupted availability of such utilities or building services, and that any such temporary interruption shall not be deemed an eviction or disturbance of Tenant's fight to possession, occupancy and use of the Leased Premises or any part thereof, or render Landlord liable to Tenant for damages by abatement of rent or otherwise, or relieve Tenant from the obligation to perform its covenants under this Lease. Landlord shall have no liability to Tenant, including, without limitation, liability for consequential damages, afising out of, resulting from or related to any such interruption of utility service or building services, except that result directly and solely from the willful misconduct of Landlord. Notwithstanding the foregoing, in the event of a Landlord default where the failure or interruption is (i) solely and directly the result of Landlord's acts or omissions, and (ii) materially and adversely interferes with Tenant's Permitted Use and (iii) is attfibuted to Landlord's failure to correct such failure or interruption and (iv) such failure and interruption continue beyond Landlord's cure pefiod provided for herein, Tenant shall have the fight to notify Landlord in wfiting that it plans to cure the interruption and the method by which it plans to do so. If Landlord has not notified Tenant within three (3) business days of a reasonable objection to Tenant's plans, Tenant may, but is not obligated, to proceed to cure the failure at Landlords' actual and reasonable costs and expenses. Landlord agrees to pay the service providers arranged by Tenant their invoiced amounts pursuant to receipts with fully executed lien waivers contingent on receipt of payment. Landlord's objection to Tenant's plans which could be reasonably expected to result in the termination of a warranty or guarantee shall be considered a reasonable objection by Landlord. ARTICLE 7 - REPAIRS, MAINTENANCE, ALTERATIONS, IMPROVEMENTS AND FIXTURES Section 7.01. Repair and Maintenance of Building. Subject to Section 7.02 and except for any repairs made necessary by the negligence, misuse, or default of Tenant, its employees, agents, customers and invitees, Landlord shall promptly make all necessary repairs to the roof, extefior walls, extefior doors, windows, corridors and other Common Areas of the Building and the other Common Areas, including the sidewalks, landscaping, parking lot and parking garage, and Landlord shall keep the Common Areas C:\WlNN~l~Temporary Interest Files\OLK45~ublicWor ks Lease 121802cle~n3~oc in a clean, neat and operational condition. Tenant shall take good care of the Leased Premises and repair and restore any damage caused by Tenant at Tenant's sole cost and expense. Except as provided in Article 8 and Article 10 hereof, there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant's business arising from the making of any repairs, alterations or improvements in or to any portion of the Building or the Leased Premises or in or to any fixtures, appurtenances and equipment therein or thereon. Landlord hereby agrees to notify Tenant of any and all repair schedules and to schedule all repairs and maintenance in such as way that there is nominal interruption and interference with Tenant's Permitted Use of the Leased Premises. Section 7.02. Repair and Maintenance of Leased Premises. Tenant shall keep and maintain the Leased Premises in good order, condition and repair. Except for ordinary wear and tear and damage or defects which Tenant is not obligated to repair as provided elsewhere in this Lease, the cost of all repairs and maintenance of the Leased Premises shall be borne by Tenant. Section 7.03. Alterations or Improvements. Tenant may not make, or permit to be made, alterations to the Leased Premises without the prior written consent of Landlord in each instance. If Landlord allows Tenant to make any such alterations, Tenant shall make the same in accordance with all applicable laws and building codes, in a good and workmanlike manner and in quality equal to or better than the original construction of the Building and shall comply with such requirements as Landlord considers necessary or desirable, including without limitation, requirements as to the manner in which and the times at which such work shall be done and the contractor or subcontractors to be selected to perform such work (subject to public bidding and similar requirements imposed by law). Tenant's alterations shall be nonstmctural and shall be made only to the interior of the Leased Premises, and said alterations shall not affect utility services or plumbing or electrical lines in or to the Leased Premises. Before making any alterations, Tenant shall, at its expense, (a) unless such work will be undertaken by Tenant, either provide Landlord with lien waivers from each contractor, subcontractor, materialman and laborer for all work, labor and services to be performed and materials to be furnished in connection with such work or bond over the same to Landlord's reasonable satisfaction, and (b) obtain all permits, approvals and certificates required by any governmental or quasi-governmental bodies and promptly deliver duplicates of all such permits, approvals and certificates to Landlord. Upon completion of such alterations, Tenant shall obtain certificates of final approval if required by applicable law and shall promptly deliver duplicates of the same to Landlord. In addition, Tenant shall provide Landlord with evidence of insurance coverage for such alterations and detailed plans reasonably satisfactory to Landlord prior to construction of such improvements. Tenant shall promptly pay all costs attributable to such alterations. Tenant shall promptly repair any damage to the Leased Premises or the Building caused by any such alterations. Any alterations to the Leased Premises, except movable office furniture and equipment and trade fixtures, shall become a part of the realty and the property of Landlord and shall not be removed by Tenant. Notwithstanding the foregoing, however, Tenant shall not be obligated to obtain Landlord's consent for any alterations or improvements which do not, in any one instance, cost in excess of Ten Thousand Dollars ($10,000.00), or when added to any such prior alteration or improvement, aggregate in excess of Twenty Thousand Dollars ($20,000.00); provided, however, that the Landlord shall be entitled to require that Tenant remove such alterations or improvements upon expiration or earlier termination of the Term of this Lease. Prior Landlord written consent, however, shall be required for any Tenant improvements outside of the confines of the Leased Premises and for any improvements that may affect the structural integrity of the Building. Section 7.04. Trade Fixtures. Any trade fixtures installed on the Leased Premises by Tenant at its own expense, such as movable partitions, counters, shelving, showcases, mirrors and the like, may, and, at the request of Landlord, shall be removed on the expiration or earlier termination of this Lease, provided that Tenant is not then in default, that Tenant bears the cost of such removal, and further that Tenant repairs at its own expense any and all damage to the Leased Premises resulting from such removal. Any trade fixtures or other items of Tenant's property that remain in the Leased Premises on the expiration or earlier termination of this Lease shall be deemed abandoned by Tenant, and such items may be retained by Landlord, without accountability, in such manner as Landlord shall determine at Tenant's expense for disposal. This provision shall survive the expiration or earlier termination of this Lease. ARTICLE 8 - FIRE OR OTHER CASUALTY: CASUALTY INSURANCE Section 8.01. Substantial Destruction of the Building or the Leased Premises. If either the Building or the Leased Premises should be substantially destroyed or damaged (which as used herein, means destruction or material damage to at least one- third (1/3) of the Building or the Leased Premises) by fire or other casualty, then Landlord or Tenant may, at its option, terminate this Lease by giving written notice of such termination to the other party within thirty (30) days after the date of such casualty. In such event, rent shall be apportioned to and shall cease as of the date of such casualty. If neither party exercises this option, then the Leased Premises shall be promptly reconstructed and restored, at Landlord's expense, to substantially the same condition as prior to the casualty, subject to the availability of insurance proceeds; provided, however, that Landlord's obligation hereunder shall be limited to the reconstruction of such of the tenant finish improvements as were originally required to be made by Landlord in accordance with Exhibit B, and further provided that, if Tenant has made any additional improvements pursuant to Section 7.03, Tenant shall be responsible to reimburse Landlord for the cost of reconstructing the same only in the event that Tenant provides to Landlord in writing the desire to have Landlord reconstruct such. In the event of any reconstruction, rent shall be abated in accordance with Section 8.03 below; and this Lease shall continue in full force and effect for the balance of the Term. In the event that neither Landlord or Tenant elects to terminate this Lease under the immediately foregoing paragraph, and the Leased Premises are not restored or repaired within two hundred seventy (270) days from the date of the casualty, either Landlord or Tenant shall have the right to terminate this Lease upon thirty (30) days written notice to the other. Section 8.02. Partial Destruction of the Leased Premises. If the Leased Premises should be damaged by fire or other casualty, but not substantially destroyed or damaged to the extent provided in Section 8.01, then so long as sufficient insurance proceeds are available for Landlord's use in reconstruction and restoration, such damaged part of the Leased Premises shall be reconstructed and restored, at Landlord's expense, to substantially the same condition as it was prior to the casualty; provided, however, that Landlord's obligation hereunder shall be limited to the reconstruction of such of the tenant finish improvements as were originally required to be made by Landlord in accordance with Exhibit B, and further provided that, if Tenant has made any additional improvements pursuant to Section 7.03 and after the destruction has elected by written request delivered to Landlord, to have additional improvements made, Tenant shall reimburse Landlord for the cost of reconstructing the same. In such event, if the damage is expected to prevent Tenant from carrying on its business to an extent exceeding 25% of its normal business activity in the Leased Premises, rent shall be abated in the proportion which the approximate area of the damaged part bears to the total area in the Leased Premises in accordance with Section 8.03 below; and this Lease shall continue in full force and effect for the balance of the Term. Section 8.03. Abatement of Rent. Any abatement of rent under this Article 8 shall be for the period from the date of the casualty to the date of substantial completion of the reconstruction repairs; provided, however, that should Tenant reoccupy a portion of the Leased Premises during the period the repair work is taking place and prior to the date of substantial completion of said repair work, the rent allocable to such reoccupied portion, based upon the proportion which the reoccupied area bears to the total area of the Leased Premises, shall be payable by Tenant from the date of such occupancy. Section 8.04. Casualty Insurance. Landlord shall at all times during the Term of this Lease carry, at its own expense, a policy of insurance which insures the Building and the Leased Premises (including the structural components thereof such as roof, floors, walls, windows, supports, mechanical and electrical systems), against loss or damage by fire or other casualty (namely, the perils against which insurance is afforded by a standard fire insurance policy and extended coverage endorsement, including, without limitation, business interruption coverage) in amounts considered to be commercially reasonable in buildings similar to the Building and its locale; provided, however, that Landlord shall not be responsible for, and shall not be obligated to insure against, any loss of or damage to any personal property of Tenant or which Tenant may have in the Building or the Leased Premises or any trade fixtures installed by or paid for by Tenant on the Leased Premises or any additional improvements which Tenant may construct on the Leased Premises, and Landlord shall not be liable for any loss or damage to such property, regardless of cause, including the negligence of Landlord and its employees, agents, customers and invitees. If the tenant finish improvements installed by Landlord or Tenant pursuant to Exhibit B which are in excess of the Building standard tenant finish improvements, or any alternations or improvements made by Tenant pursuant to Section 7.03, or any other act or omission of Tenant, result in an increase in the premiums charged during the term of this Lease on the casualty insurance carried by Landlord on the Building, then the cost of such increase in insurance premiums shall be borne by Tenant, who shall reimburse Landlord for the same as additional rent after being separately billed therefore. Landlord's insurer shall be licensed in the State of Indiana to provide insurance of the type required herein and shall be rated with a rating comparable to A-X as set forth by A.M. Best or, any company with a lesser rating, shall be first approved by Tenant in writing, such approval not to be unreasonably conditioned, delayed or withheld. The insurer must agree that it will cancel, terminate or materially change the policy only after it has given Landlord and Tenant written notice of the anticipated cancellation, termination or material change at least thirty (30) days in advance of the time at which the cancellation, termination or material change becomes effective. ARTICLE 9 - GENERAL PUBLIC LIABILITY, INDEMNIFICATION AND INSURANCE Section 9.01 A. Tenant's Responsibility. Tenant shall assume the risk of, be responsible for, have the obligation to insure against, and indemnify Landlord and hold it harmless from any and all liability for any loss of or damage or injury to any person (including death resulting therefrom) or property occurring in, on or about the Leased Premises, regardless of cause, except for any loss or damage from fire or casualty as provided in Section 8.04 and except for that caused by the sole negligence of Landlord and its employees, agents, customers and invitees; and Tenant hereby releases Landlord from any and all liability for the same. Tenant's obligation to indemnify Landlord hereunder shall include the duty to defend against any claims asserted by reason of such loss, damage or injury and to pay any judgments, settlements, costs, fees and expenses, including attorneys' fees, incurred in connection therewith. Notwithstanding anything herein to the contrary, Tenant shall bear the risk of any loss or damage to its property as provided in Section 8.04. This provision shall survive the expiration or earlier termination of this Lease. Section 9.01. B. Landlord's Responsibility. Landlord shall assume the risk of, be responsible for, have the obligation to insure against, and indemnify Tenant, its fiscal bodies and officers, and hold it and them harmless from any and all liability for any loss of or damage or injury to any person (including death resulting therefrom) or property occurring in, on or about the Common Areas, regardless of cause, except for any loss or damage from fire or casualty as provided in Article 8 and except for that caused by the sole negligence of Tenant and its employees, agents, customers and invitees; and Landlord hereby releases Tenant from any and all liability for the same. Landlord's obligation to indemnify Tenant hereunder shall include the duty to defend against any claims asserted by reason of such loss, damage or injury and to pay any judgments, settlements, costs, fees and expenses, including attorneys' fees, incurred in connection therewith. Notwithstanding anything herein to the contrary, Landlord shall bear the risk of any loss or damage to its property as provided in Article 8. This provision shall survive the expiration or earlier termination of this Lease. Section 9.02. Tenant's Insurance. Tenant, in order to enable it to meet its obligation to insure against the liabilities specified in this Lease, shall at all times during the term of this Lease carry, at its own expense, for the protection of Tenant, as the named insured, and Landlord and Master Lessor, as the additional insureds, as their interests may appear, one or more policies of general public liability and property damage insurance, issued by one or more insurance companies acceptable to Landlord (subject to public bidding and similar requirements imposed by law), with the following minimum coverages: A. Workers Compensation - minimum statutory amount. Comprehensive General Liability Insurance, including Blanket, Contractual Liability, Broad Form Property Damage, Personal Injury, Completed Operations, Products Liability, Fire Damage. - Not less than $1,000,000 Combined Single Limit for both bodily injury and property damage, with excess Liability umbrella coverage of not less than $5,000,000. C. Fire and Extended Coverage, Vandalism and Malicious Mischief, and Sprinkler Leakage insurance, for the full cost of replacement of Tenant's property. The insurance policy or policies for the insurance required in B and C above shall name Landlord as an additional insured and shall provide that they may not be cancelled on less than thirty (30) days prior written notice to Landlord. Tenant shall furnish Landlord with certificates of Insurance evidencing all required coverage. Should Tenant fail to carry such insurance and furnish Landlord with such certificates of insurance within five (5) days after a request to do so, Landlord shall have the right to obtain such insurance and collect the cost thereof from Tenant as additional rent. The insurer must agree that it will cancel, terminate or materially change the policy only after it has given Landlord and Tenant written notice of the anticipated cancellation, termination or material change at least thirty (30) days in advance of the time at which the cancellation, termination or material change becomes effective. Landlord and Tenant waive and release any and all rights of recovery, claim, action or cause of action that either may now or later have against the other or the other's agents, officers and employees, by virtue of (i) any loss or damage that may occur to the Building, improvements to the Building or personal property within the Building by reason of fire, the elements or other risks covered under policies of all risk property insurance available in the area where the Building is located or (ii) any diminution in the rent derived from the operation of the Building or in the revenue derived from the conduct of business within the Building that may occur by reason of fire, the elements or other risks covered under policies of time element insurance available in the area where the Building is located, regardless of cause or origin, including, without limitation, the negligence of Landlord or Tenant or any of their respective representatives, agents, employees, contractors and invitees. ARTICLE 10 - EMINENT DOMAIN If the whole or any part of the Leased Premises shall be taken for public or quasi- public use by a governmental or other authority having the power of eminent domain or shall be conveyed to such authority in lieu of such taking, and if such taking or conveyance shall cause the remaining part of the Leased Premises to be untenantable and inadequate for use by Tenant for the purpose for which they were leased, then Tenant may, at its option, terminate this Lease. If a part of the Leased Premises shall be taken or conveyed but the remaining part is tenantable and adequate (conforms to other leased space in Building) for Tenant's use, then this Lease shall be terminated as to the part taken or conveyed as of the date Tenant surrenders possession; Landlord shall make such repairs, alterations and improvements as may be necessary to render the part not taken or conveyed tenantable, the cost of which will not exceed what is customary for tenant finish costs in other space in the Building. The rent shall be reduced in proportion to the part of the Leased Premises so taken or conveyed. All compensation awarded for such taking or conveyance shall be the property of Landlord without any deduction therefrom for any present or future estate of Tenant, and Tenant hereby assigns to Landlord all its right, title and interest in and to any such award, except that Tenant shall be entitled to any award expressly made to Tenant for the cost of removal of Tenant's equipment and fixtures and moving expenses. ARTICLE 11 - LIENS If any mechanic's lien is filed, or if, because of any act or omission of Tenant or any person claiming by, through, or under Tenant, any other lien shall be filed against the Leased Premises or the Building or against other property of Landlord (whether or not such lien is valid or enforceable as such), Tenant shall, at its own expense, cause the same to be discharged of record, provide a bond or other reasonable security within thirty-five (35) days after the date of filing thereof, and shall also indemnify Landlord and hold it harmless from any and all claims, losses, damages, judgments, settlements, costs and expenses, including attorneys' fees, resulting therefrom or by reason thereof. In the event Tenant shall fail to discharge the lien, bond over or post reasonable security, Landlord may, but shall not be obligated to, pay the claim upon which such lien is based so as to have such lien released of record; and, if Landlord does so, then Tenant shall pay to Landlord, as additional rent, upon demand, the amount of such claim, plus all other necessary and reasonable costs and expenses incurred in connection therewith. This section shall survive the expiration or earlier termination of this Lease. ARTICLE 12 - RENTAL, PERSONAL PROPERTY AND OTHER TAXES Tenant shall pay before delinquency any and all taxes, assessments, fees or charges, including any sales, gross income, rental, business occupation or other taxes, levied or imposed upon Tenant's business operations in the Leased Premises and any personal property or similar taxes levied or imposed upon Tenant's trade fixtures, leasehold improvements or personal property located within the Leased Premises. In the C:\WlNNTxTemporary Internet Files\OLK45XPublicWorksLease121802cle]~loc event any such taxes, assessments, fees or charges are charged to the account of, or are levied or imposed upon the property of Landlord, Landlord shall promptly notify Tenant in writing. Tenant shall have the option but not the obligation, to contest, at its sole cost and expense and only upon posting security with Landlord reasonably satisfactory to Landlord against liability resulting from such contest, the imposition of such taxes, assessments, fees or changes. To the extent that Tenant elects not to contest or is unsuccessful in its effort to remove the taxes, assessments, fees or charges, Tenant shall reimburse Landlord for the same as additional rent. Landlord shall pay any and all real estate taxes assessed against the Building and the Leased Premises when due and payable and shall not seek reimbursement from Tenant for any such amounts. ARTICLE 13 - ASSIGNMENT, SUBLETTING AND MORTGAGING Assignment and Sublease. Tenant shall not assign this Lease in whole or in part or sublet the Leased Premises in whole or in part without the prior written consent of Landlord, which consent may not be unreasonably withheld or delayed; provided, however, Landlord's consent shall not be necessary for any assignment of this Lease to another department of Tenant or a municipal entity or political subdivision related to Tenant. Landlord may, in its sole discretion, refuse to give its consent to any proposed assignment or subletting for any mason, including, but not limited to Landlord's determination that its interest in the Lease or the Leased Premises would be adversely affected by (i) the financial condition, creditworthiness or business reputation of the proposed assignee or subtenant, or (ii) the proposed use of the Leased Promises by, or business of, the proposed assignee or subtenant. ARTICLE 14 - SUBORDINATION; NOTICE TO SUPERIOR LESSORS AND MORTGA GEES Section 14.01. Subordination. This Lease, and all rights of Tenant hereunder, are and shall be subject and subordinate to all mortgages which may now or hereafter affect the land upon which the Building and Common Areas will be located as described in Exhibit B (the "Land") and/or the Building and/or any of such mortgages, whether or not such mortgages shall also cover other lands and/or buildings and/or leases, to each and every advance made or hereafter to be made under such mortgages, and to all renewals, modifications, replacements and extensions of such mortgages and spreaders and consolidations of such mortgages. This Section shall be self-operative and no further instrument of subordination shall be required. In confirmation of such subordination, Tenant shall promptly execute, acknowledge and deliver any instrument that Landlord or the holder of any such mortgage or any of their respective successors in interest may reasonably request to evidence such subordination. Any mortgage to which this lease is, at the time referred to, subject and subordinate is herein called "Superior Mortgage" and the holder of a Superior Mortgage is herein called a "Superior Mortgagee." The term "mortgage" and "mortgagee" shall refer to any mortgage affecting the Land and/or the Building and any holder of said mortgage, whether or not said mortgage is prior or subordinate to this Lease. Notwithstanding anything in the foregoing to the contrary, any mortgagee may elect unilaterally to subordinate its mortgage to this lease and such subordination shall be binding upon Tenant upon the recording of a mortgage containing a declaration of such subordination. Tenant agrees to execute any reasonable documents deemed necessary or desirable by said mortgagee to evidence said subordination of mortgage within ten (10) days after written demand. Notwithstanding any of the foregoing, Tenant shall retain all rights to continue in possession of the Leased Premises as provided in this Lease. Landlord shall use commercially reasonable efforts to obtain a Non-Disturbance Agreement from the mortgagee in a form and with content reasonably satisfactory to Tenant. Landlord shall bear all reasonable costs associated with Tenant's compliance with this Article 14, including reasonable attorneys' fees. Section 14.02. Notice. Except with respect to a termination hereof as a result of the failure of Tenant to make an appropriation for payment of rent hereunder, if any act or omission of Landlord would give Tenant the right, immediately or after lapse of a period of time, to cancel or terminate this Lease, or to claim a partial or total eviction, Tenant shall not exercise such right (a) until it has given written notice of such act or omission to each Superior Mortgagee whose name and address previously shall have been furnished to Tenant, and (b) until a reasonable period for remedying such act or omission shall have elapsed following the receipt of such notice and following the time when such Superior Mortgagee shall have become entitled under such Superior Mortgage or to remedy the same (which reasonable period shall in no event be less than the period to which Landlord would be entitled under this lease or otherwise, after similar notice, to effect such remedy), provided such Superior Mortgagee shall with due diligence give Tenant notice of its intention to remedy such act or omission. Section 14.03. Attornment and Non-Disturber. If any Superior Mortgagee shall succeed to the rights of Landlord under this Lease, whether through possession or foreclosure action or delivery of a new lease or deed, then at the request of such party so succeeding to Landlord's rights (herein called "Successor Landlord") and upon such Successor Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn to and recognize such Successor Landlord as Tenant's Landlord under this Lease and shall promptly execute and deliver any instrument that such Successor Landlord may reasonably request to evidence such attomment. Upon such attornment this Lease shall continue in full force and effect as a direct lease between the Successor Landlord and Tenant upon all of the terms, conditions and covenants of this Lease except that the Successor Landlord, including, in the context of clauses (a) through (f) below, any mortgagee succeeding to Landlord's rights, shall not (a) be liable for any previous act or omission of Landlord under this Lease; (b) be subject to any offset, not expressly provided for in this Lease, which theretofore shall have accrued to Tenant against Landlord; (c) be bound by any previous modification of this Lease or by any previous C:\WlNNTxTemporary Internet Files\OLK45~PublicWorksLease 121802c1~idoc prepayment of more than one month's rent, unless such modification or prepayment shall have been expressly approved in writing by the holder of the Superior Mortgage through or by reason of which the Successor Landlord shall have succeeded to the fights of Landlord under this Lease; (d) be obligated to repair, replace, rebuild or restore the Leased Promises or the Building or any part thereof, beyond such repair, replacement, mbdilding or restoration as can reasonably be accomplished from the net proceeds of insurance actually received by or made available to the Successor Landlord; (e) be obligated to repair, replace or restore the Leased Premises, the Building, or any part thereof, in the event of partial condemnation, beyond such repair, replacement, rebuilding or restoration as can reasonably be accomplished from the net proceeds of any award actually received by or made available to the Successor Landlord as consequential damages allocable to the part of the Leased Premises or the Building not taken; or (f) be obligated to perform any work in the Leased Premises or the Building, or any part thereof, or to prepare them for occupancy. ARTICLE 15. - DEFAULTS AND REMEDIES Section 15.0lA. Defaults by Tenant. The occurrence of any one or more of the following events shall be a default under and breach of this Lease by Tenant: A. Tenant shall fail to pay any Monthly Rental Installment of Minimum Annual Rent or the Annual Rental Adjustment or any other amounts due Landlord from Tenant as additional rent or otherwise within fifteen (15) days after such payment is due. B. Tenant shall fail to perform or observe any term, condition, covenant or obligation required to be performed or observed by it under this Lease for a period of thirty (30) days after notice thereof from Landlord; provided, however, that if the term, condition, covenant or obligation to be performed by Tenant is of such nature that the same cannot reasonably be performed within thirty (30) day period, such default shall be deemed to have been cured if Tenant commences such performance within said thirty (30) day period and thereafter diligently undertakes to complete the same and does so complete the required action within a time deemed to be reasonable by Landlord. C. Tenant shall vacate or abandon the Leased Promises for any period, or fail to occupy for a period of thirty (30) days the Leased Premises or any substantial portion thereof. D. A trustee or receiver shall be appointed to take possession of substantially all of Tenant's assets in, on or about the Leased Premises or of Tenant's interest in this Lease (and Tenant does not regain possession within sixty (60) days after such appointment); Tenant makes an assignment for the benefit of creditors; or substantially all of Tenant's assets in, on or about the Leased Premises or Tenant's interest in this Lease are attached or levied under execution (and Tenant does not discharge the same within sixty (60) days thereafter). C:\WINNT~Temporary Internet Files\OLK45XPablicWorksLease121802clo~oc E. A petition in bankruptcy, insolvency or for reorganization or arrangement is filed by or against Tenant (or any guarantor under this Lease) pursuant to any federal or state statute and, with respect to any such petition filed against it, Tenant (or any guarantor under this Lease) fails to secure a stay or discharge thereof within sixty (60) days after the filing of the same. Section 15.01 B. Defaults by Landlord. It shall be a default under and breach of this Lease by Landlord if it shall fail to perform or observe any term, condition, covenant or obligation required to be performed or observed by it under this Lease for a period of thirty (30) days after notice thereof from Tenant; provided, however, that if the term, condition, covenant or obligation to be performed by Landlord is of such nature that the same cannot reasonably be performed without such thirty (30) day period, such default shall be deemed to have been cured if Landlord commences such performance within said thirty (30) day period and thereafter diligently undertakes to complete the same, and further provided that Landlord shall not be in default if Landlord's failure to perform or observe some term, condition, covenant or obligation under the Lease is due to causes beyond the reasonable control of Landlord. Section 15.02 A. Remedies of Landlord. Upon the occurrence of any event of default set forth in Section 15.01, Landlord shall have the following rights and remedies, in addition to those allowed by law, any one or more of which may be exercised without further notice to or demand upon Tenant: A. Landlord may re-enter the Leased Premises and cum any default of Tenant, in which event Tenant shall reimburse Landlord as additional rent for any costs and expenses which Landlord may incur to cure such default; and Landlord shall not be liable to Tenant for any loss or damage which tenant may sustain by reason of Landlord's action, regardless of whether caused by Landlord's negligence or otherwise. Landlord may terminate this Lease as of the date of such default, in which event: (i) neither Tenant nor any person claiming under or through Tenant shall thereafter be entitled to possession of the Leased Promises, and Tenant shall immediately thereafter surrender the Leased Promises to Landlord; (ii) Landlord may re-enter the Leased Promises and dispossess Tenant or any other occupants of the Leased Premises by fome, summary proceedings, ejectment or otherwise, and may remove their effects, without prejudice to any other remedy which Landlord may have for possession or arrearages in rant; and (iii) notwithstanding the termination of this Lease, Landlord may declare all rant which would have been due under this Lease for the balance of the Term for which an appropriation has been made under Section 2.01 to be immediately due and payable, whereupon Tenant shall be obligated to pay the same to Landlord, together with all loss or damage which Landlord may sustain by mason of such termination, it being expressly understood and agreed that the liabilities and remedies specified in this Subsection (B)(1) of Section 15.02 shall survive the termination of this Lease; or Landlord may, without terminating this Lease, m-enter the Leased Premises and m-let all or any part of the Leased Promises for a term different from that which would otherwise have constituted the balance of the Term of this Lease and for rent and on terms and conditions different from those contained herein (including but not limited to periods of free or reduced rent, relocation allowances, and additional tenant finish), whereupon Tenant shall be obligated to pay to Landlord as liquidated damages the differences between the rant provided for herein and that provided for in any lease covering a subsequent re-letting of the Leased Promises, for the period which would otherwise have constituted the balance of the term of this Lease, together with all of Landlord's reasonable costs and expenses for preparing the Leased Promises for re- letting, including all repairs, tenant finish improvements, advertising, brokers' and attorneys' fees, and all loss or damage which Landlord may sustain by mason of such re-entry and m-letting. The failure of Landlord to m-let the Leased Premises shall not affect Tenant's liability for damages. C. Landlord may sue for injunctive relief or to recover damages for any loss resulting from the broach. D. Mention in this Lease of any particular remedy shall not preclude Landlord from any other remedy in law or in equity. E. Landlord agrees that, for each event of default hereunder, it shall mitigate its damages in a commercially reasonable manner. Section 15.02.B Remedies of Tenant. Upon the occurrence of a default by Landlord as set forth above, Tenant shall use reasonable efforts to mitigate its damages. Tenant shall have the right to sue Landlord for injunctive relief or to recover damages for any loss resulting from the broach and/or any remedy allowed by applicable law. Section 15.03. Limitation of Landlord's Liability. If Landlord shall fail to perform or observe any term, condition, covenant or obligation required to be performed or observed by it under this Lease and if Tenant shall, as a consequence thereof, recover a money judgment against Landlord, Tenant agrees that so long as Landlord's interest in the Building does not fall below seventy-five percent (75%) of the higher of the cost or appraised value thereof, it shall look solely to Landlord's right, title and interest in and to the Building for the collection of such judgment, that being the sole asset to which Tenant may look for payment of any such judgment; and Tenant further agrees that no other assets of Landlord, wherever situated, shall be subject to levy, execution or other process for the satisfaction of Tenant's judgment and that Landlord shall not be liable for any deficiency. The references to "Landlord" in this Lease shall be limited to mean and include only the owner or owners, at the time, of the fee simple interest in the Land and Building or the owner of a leasehold interest in the Building. In the event of a sale or transfer of such interests (except a mortgage or other transfer as security for a debt), the "Landlord" named herein, or, in the case of a subsequent transfer, the Landlord, shall, after the date of such transfer, be automatically released from all personal liability for the performance of observance of any term, condition, covenant or obligation required to be performed or observed by Landlord hereunder; and the transferee shall be deemed to have assumed all of such terms, conditions, covenants and obligations. Section 15.04. Non-Waiver of Defaults. Either party's failure or delay to exercise or enforce at any time any of the rights or remedies or other provisions of this Lease shall not be construed to be a waiver thereof, nor affect the validity or any part of this Lease or such party's right thereafter to exercise or enforce each and every such right or remedy or other provision. No waiver of any default and breach of the Lease shall be deemed to be a waiver of any other default and breach. The receipt by Landlord of less than the full rent due shall not be construed to be other than a payment on account of rent then due, nor shall any statement on Tenant's check or any letter accompanying Tenant's check be deemed an accord and satisfaction, and Landlord may accept such payment without prejudice to Landlord's right to recover the balance of the rent due or to pursue any other remedies provided in this Lease. No act or omission by Landlord or its employees or agents during the term of this Lease shall be deemed an acceptance of a surrender of the leased Premises, and no agreement to accept such a surrender shall be valid unless in writing and signed by Landlord. Section 15.05. Attorneys' Fees. In the event that either party defaults in the performance or observance of any of the terms, conditions, covenants or obligations contained in this Lease and the other party employs attorneys to enforce all or any part of this Lease, collect any rent due or to become due or recover possession of the Leased Premises, the defaulting party shall agree to reimburse the other party for the attorneys' fees incurred thereby, whether or not suit is filed. ARTICLE 16 - Intentionally Deleted ARTICLE 17 - NOTICE AND PLACE OF PAYMENT Section 17.01. Notices. Any notice required or permitted to be given under this Lease or by law shall be deemed to have been given if it is written and delivered in person, by overnight delivery or mailed by registered or certified mail, postage prepaid, to the party who is to receive such notice at the address specified in Item H of the Basic Lease Provisions. When so mailed, the notice shall be deemed to have been given as of the date it was mailed. The address specified in Item H of the Basic Lease Provisions may be changed by giving written notice thereof to the other party. Section 17.02. Place of Payment. All rant and other payments required to be made by Tenant to Landlord shall be delivered or mailed to Landlord's management agent at the address specified in Item H of the Basic Lease Provisions or any other address Landlord may specify from time to time by written notice given to Tenant. ARTICLE 18 - MISCELLANEOUS GENERAL PROVISIONS Section 18.01. Intentionally Omitted Section 18.02. Insolvency or Bankruptcy. In no event shall this Lease be assigned or assignable by operation of law, and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency or reorganization proceedings. Section 18.03. Common Areas. The term "Common Areas," as used in this Lease, refers to the Proximate Common Areas, all of which are to be located within the Building, the areas to be located within the Building and described in the Parking Floor Plan and the areas outside of the Building and the Pedcor Building as shown in the Site Plan, all of which are designed for use in common by all tenants of the Building and their respective employees, agents, customers, invitees and others, and includes, by way of illustration and not limitation, entrances and exits, hallways and stairwells, elevators, restrooms, sidewalks, driveways, parking areas, parking garages, landscaped areas and other areas as may be designated by Landlord as part of the Common Areas inside and outside of the Building. Tenant shall have the non-exclusive right, in common with others, to the use of the Common Areas, subject to such nondiscriminatory roles and regulations as may be adopted from time to time by Landlord including those set forth in Section 5.02 of this Lease and the Building Rules and Regulations. Tenant's right to use the Common Areas is limited solely to the uses and purposes therefore as designated by Landlord from time to time. Further, Landlord shall have the right to change the location and size of the Common Areas from time to time as Landlord shall see fit in its reasonable discretion, including without limitation, the removal of property and facilities from the Common Areas; provided, however, that no such alteration or removal will materially impair Tenant's access to or use of the Leased Premises. Section 18.04. Choice of Law. This Lease shall be governed by and construed pursuant to the laws of the State of Indiana. Section 18.05. Successors and Assigns. Except as otherwise provided in this Lease, all of the covenants, conditions and provisions of this Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. Section 18.06. Name. Landlord has the right to name the Building. In such case, Tenant shall not, without the written consent of Landlord, use the name for any purpose other than as the address of the business to be conducted by Tenant in the Leased Premises, and in no event shall Tenant acquire any rights in or to such names. Landlord reserves the right to change the name and/or address of the Building at any time. Section 18.07. Examination of Lease. Submission of this instrument for examination or signature to Tenant does not constitute a reservation of or option for Lease, and it is not effective as a Lease or otherwise until execution by and delivery to both Landlord and Tenant. Section 18.08. Time. Time is of the essence of this Lease and each and all of its provisions. Section 18.09. Defined Terms and Marginal Headings. The words "Landlord" and "Tenant" as used herein shall include the plural as well as the singular. If more than one person is named as Tenant, the obligations of such persons are joint and several. The marginal headings and titles to the articles of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part hereof. Section 18.10. Prior Agreements. This Lease and the letter of understanding executed pursuant to Section 2.03 hereof contain all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose. No provision of this Lease may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors in interest. Section 18.11. Payment of and Indemnification for Leasing Commissions. The parties hereby acknowledge, represent and warrant that no real estate broker or brokers have been involved in the negotiation and execution of this Lease and that no broker or person is entitled to any leasing commission or compensation as a result of the negotiation or execution of this Lease. Each party hereby indemnifies and holds the other party harmless from any and all liability for the breach of any such representation and warranty on its part and shall pay any compensation to any broker or person who may be deemed or held to be entitled thereto. Section 18.12. Severability of Invalid Provisions. If any provision of this Lease shall be held to be invalid, void or unenforceable, the remaining provisions hereof shall not be affected or impaired, and such remaining provisions shall remain in full force and effect. Section 18.13. Estoppel Certificate. Tenant shall, within ten (10) business days following receipt of a written request from Landlord, execute, acknowledge and deliver to Landlord or to any lender, purchaser or prospective lender or purchaser designated by Landlord a written statement in such form as Landlord may, request, subject to Tenant's approval, which approval shall not be unreasonably withheld or delayed, certifying (i) that this lease is in full force and effect and unmodified (or, if modified, stating the nature of such modification), (ii) the date to which rent has been paid, and (iii) that there are not, to Tenant's knowledge, any uncured defaults (or specifying such defaults if any are claimed). Any such statement may be relied upon by any prospective purchaser or C:~WlNNTxTemporary interact Files\OLK45L~ablicWorksLease 121802cle~]toc mortgagee of all or any part of the building. Tenant's failure to deliver such statement within such period shall be conclusive upon Tenant that this Lease is in full force and effect and unmodified, and that there are no uncured defaults in Landlord's performance hereunder. Tenant shall have the reciprocal right to obtain such statement from Landlord upon the terms provided in this Section. Section 18.14. Services Performed by Landlord. Any services which Landlord is required to furnish pursuant to the provisions of this Lease may, at Landlord's option, be furnished from time to time, in whole or in part, by employees of Landlord, by the managing agent of the property, or by one or more third persons, provided that Landlord remains responsible for providing such services. Landlord represents and warrants that it and all of its officers, employees, agents, contractors, subcontractors and other persons shall comply with all existing and future laws of the United States, the State of Indiana and the City of Carmel, Indiana prohibiting discrimination against any employee, applicant for employment or other persons in the provisions of any goods and services provided by this Lease, with respect to the hire, tenure, terms, conditions or privileges of employment and to any other matter directly or indirectly related to employment or subcontracting because of race, religion, color, sex, handicap, national origin, ancestry, age, disable veteran status and/or Vietnam era veteran status. Tenant reserves the right to collect a penalty as provided in IC 5-16-6-1 for any person so discriminated against. Landlord agrees to comply with all present and future federal, state and local laws, executive orders, rules, regulations, codes and ordinances which may be applicable to Landlord's performance of its obligations under this Lease, and all relevant provisions thereof are incorporated herein by reference. Landlord agrees to indemnify and hold harmless Tenant from any loss, damage and/or liability resulting from any such violation of such laws, orders, roles, regulations, codes and ordinances. This indemnification obligation shall survive the expiration or termination of this Lease. Section 18.15. Force Majeure. Except as set forth in Section 2.02, either party shall be excused for the period of any delay in the performance of any obligation hereunder when such delay is occasioned by causes beyond its control, including, war, invasion or hostility; work stoppages, boycotts, slowdowns or strikes; shortages of materials, equipment, labor or energy; man-made or natural casualties; unusually severe weather conditions which could not have been reasonably anticipated; acts or omissions of governmental or political bodies; or civil disturbances or riots. Section 18.16. Covenant of Title and Quiet Enjoyment. Landlord shall, on or before the date on which Tenant is permitted to install its property within the Leased Premises, have good and marketable title to the land on which the Building and Leased Premises will exist and the right to make this Lease for the Term set forth herein. At such time, Landlord shall deliver to Tenant complete and exclusive possession of the Leased Premises, and if Tenant shall perform all of the covenants and agreements herein provided to be performed on Tenant's part, Tenant shall, at all times during the Lease Term, have the peaceable and quiet enjoyment of possession of the Leased Premises without any manner of hindrance from Landlord or any persons lawfully claiming under Landlord. Section 18.17. Parking. As shown on the Plans and Specifications referenced in Section 2.02, Landlord shall construct and maintain standard size parking outside the Building as provided in the Plans and Specifications and at least twenty four (24) standard size parking spaces within the Building in the underground parking garage. At no additional cost to Tenant, Tenant will be allowed exclusive use of twelve (12) designated spaces in the underground parking garage. These underground spaces will be reserved for Tenant's use by appropriate signage or other means of identification, installed by Landlord at Landlord's expense prior to the Commencement Date and maintained by Landlord. Tenant shall be allowed to leave Tenant-owned vehicles in the designated underground parking garage overnight provided that such vehicles fit in the designated parking spaces. At Tenant's request, Landlord shall take reasonable efforts to ensure that such parking spaces reserved for Tenant's use are not used by any visitors to the Building or to any other building which may be connected to the parking garage. Section 18.18. Governmental Approvals. This Lease is contingent upon Tenant obtaining any and all municipal, governmental or other required approvals and consents necessary for this Lease. In the event such approvals and consents are not obtained by February 15, 2003, this Lease shall terminate and neither party shall have rights or obligations hereunder Section 18.19. Payment Drop Box. Landlord shall allow Tenant to install, at Tenant's expense, a payment drop box either in the first floor Common Area of the Building or on or around the exterior of the Building provided that Tenant obtains Landlord's prior approval of the size, style and location of such payment box, which approval shall not be unreasonably withheld or delayed. Section 18.20. Counterparts and Facsimile Signatures. This Lease may be executed in counterparts, each of which shall constitute an original. A facsimile copy of a signature page shall be treated as an original for all purposes. ARTICLE 19 - Intentionally Omitted ARTICLE 20 - HAZARDOUS MATERIALS Tenant shall not (either with or without negligence) cause or permit the escape, disposal or release of any biologically or chemically active or other hazardous substances or materials. Tenant shall not allow the storage or use of such substances or materials in any manner not sanctioned by law or by the highest standards prevailing in the industry for the storage and use of such materials or substances except to use in the ordinary course of Tenant's business, and then only after written notice is given to Landlord of the identity of such substances or materials. Without limitation, hazardous substances and materials shall include those described in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state or local laws and the regulations adopted under these acts. If any lender or governmental agency shall ever require testing to ascertain whether or not there has been any release of hazardous materials, then the reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand as additional charges if such requirement applies to the Leased Premises, but only if it is found that Tenant contributed to any such release. In addition, Tenant shall execute reasonable affidavits, representations and the like from time to time at Landlord's request concerning Tenant's actual knowledge and belief regarding the presence of hazardous substances or materials on the Leased Premises. In all events, Tenant shall indemnify Landlord in the manner elsewhere provided in this Lease from any release of hazardous materials on the Leased Premises occurring while Tenant is in possession, if caused by Tenant or persons acting under Tenant. The covenants provided in this Article shall survive the expiration or earlier termination of the Term. Notwithstanding the foregoing, Tenant shall not have any responsibility or liability under this Article for, resulting from, or in any way related to, any conditions existing, or events occurring, or any Hazardous Materials existing or generated, at, in, on, under or in connection with the Leased Premises or the Building prior to the Commencement Date of this Lease. Landlord shall indemnify Tenant in the manner elsewhere provided in this Lease from any damage caused by any environmental condition existing on the Land prior to Tenant's acceptance of occupancy hereunder, and Landlord represents that it is unaware of the existence of any such environmental condition. (Signature Pages Follow) IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year first above written. LANDLORD: PEDCOR INVESTMENT~ A LIMITED LIABILITY COMPANY// By: ~ )~// Brace A. Cordingley, President STATE OF INDIANA ) )SS: COUNTY OF MARION ) Before me, a Notary Public in and for said County and State, personally appeared Bruce A. Cordingley, by me known and by me known to be the President of Pedcor Investments, A Limited Liability Company, who acknowledged the execution of the foregoing "Lease." My Commission Expires: My County of Residence: Notary Public Signature Notary 'Public Printed Name M:~vlS~,edcorOffiee~PublieWorksLease 121702clean.doc 31 TENANT CARMEL UTILITIES, BY AND THROUGH THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY .,~rhes Brainard, l~residing Officer Date: v /~/~ ~/~, By: Date: By: Date: Mary Ann Burke, Member ATTEST: J By: ~Jolmson, ~rdr~ay, IAMC Clerk- ~Jel~nty Clerk for Treasurer STATE OF INDIANA ) ) SS: country oF ~.~c~ ) Before me, a Notary Public in and for said~.xq~Yo~t~ e~pers°nally appeared James Brained, ~ Loft Watson a~d~iana Cor~ay, vy me known and by me known to be the members of the City of Camel, In~ana Bo~d of Public Works and Safety, and the Clerk-Treasurer, respectively, who acknowledged the execution of the My Commission Expires: g~ ~ ~Pubhc Si~atu~ ~ g~ ~ 5~Public Printed Name My County of Residence: ~ .~. ~.. llllllllllliBx C:\WINNTxTemporary lnternet Files\OLK45~ublicWorksLease 121802cle~°c