Pedcor Office/CRC/$33.230/ lease agreement for common area of Old Town Shops/ LEASE
This Lease(the"Lease'),by and between Pedcor Office,LLC(the"Landlord") and The City
of Carmel Redevelopment Commission (the "Tenant"), is executed this $9M day of
WOV6nt4f12. • 2006.
1. Definitions. Capitalized terms used In this Lease shall have the meanings ascribed to such terms
in this Section.
Acceptance Agreement shall mean an agreement establishing that:(a)Tenant has accepted the Premises,
subject to completion of'punch-lisr items Identified in such agreement;and(b)the Term has commenced.
Acquisition Property shall mean the first floor of the Building.
Alterations shall mean alterations,improvements,additions,changes,or modifications to or of the Premises.
Appraiser Panel shall mean a panel of three Qualified Appraisers,appointed as follows:(a)one by Landlord;
(b)one by Tenant; and (c)one by the Qualified Appraisers appointed by Landlord and Tenant.
Back Space shall mean the portion of the Building delineated on Exhibit A-2 as"back space',and comprised
of the Permanent Restroom Space and the Public Restroom Space.
Base Rent shall mean the annual base rent for the Premises for: (a)the initial Term,which:(i)includes an
amount sufficient to reimburse Landlord the cost of Landlord's Work on an amortized basis;and (ii)shall be.
$33,230.00 per annum ($2,769.17 per month), unless and until the Base Rent for the Initial Term is reduced
pursuant to Subsection 4(b); and (b)the Extension Terms, as set forth on Exhibit B-2.
Building shall mean that certain mixed-use building designated on Exhibit A-1 as the 'Building".
CAM Share shall mean, for any given calendar year, an amount equal to: (a) the amount of Operating
Expenses for such calendar year;multiplied by(b)the Pro Rata Share;provided that,if the Real Estate Taxes
decrease as a result of Tenant, being a tax exempt entity,leasing the Premises,then,to the extent that it is
attributable to Real Estate Taxes, the CAM Share shall be equitably reduced.
CAM Share Offset shall mean all amounts incurred by Tenant and reasonably allocated to maintaining and
Insuring the Premises Common Areas.
Cancellation Date shall mean the date that is 120 days prior to the expiration of the Initial Term or the then
current Extension Term.
Casualty Damage shall mean damage to, or destruction of, the Premises or the Building by fire or other
casualty.
City Agency shall mean an agency or instrumentality of the City of Carmel, Indiana.
Commencement Date shall mean the date that is_days after the Substantial Completion Date.
Commission shall mean the State Ethics Commission.
Common Areas shall mean: (a)the areas In and around the Building designated by Landlord from time to
time as common areas(including,without lim Ration,lobbies,hallways,stairs,elevators,sidewalks,driveways,
parking areas, and green areas); and (b)the Premises Common Areas.
Common Restroom Space shall mean that portion of the third floor of the Building delineated on Exhibit A-2
as the 'common restroom space'.
Communications Equipment shall mean satellite dishes,antennae,receivers, and other communications
equipment.
Complete Condemnation shall mean the occurrence of a Condemnation that renders: (a) the Premises
unsuitable for the continued operation of Tenant's business;or(b)the Building unsuitable for continued use
as an office building.
Complete Destruction shall mean Casualty Damage to such an extent that the cost of repair and/or
restoration of the Premises or the Building would exceed 50% of the cost to replace the Premises or the
Building, respectively, In its entirety at the time of the Casualty Damage.
Condemnation shall mean that all or a part of the Premises or the Building is: (a)taken or condemned for
public or quasi-public use under any statute or by the right of eminent domain;or(b)conveyed to a public or
quasi-public body under threat of condemnation.
Condem nation Date shall mean, in the event of a Condemnation,the date on which possession of all or a
part of the Premises or the Building is taken by,or conveyed to,the condemning authority.
Conversion Notice shall mean a written notice from Landlord to Tenant requiring Tenant to undertake the
Restroom Conversion.
Conversion Notice Period shall mean the period: (a) beginning on the date that is 180 days prior to the
expiration of the Initial Term or the then current Extension Term;and (b)ending on the date that is 150 days
prior to the expiration of the Initial Term or the then current Extension Term.
Corridor Space shall mean that portion of the Building delineated on Exhibit A-2 as the "premises corridor
space".
Cosmetic Alterations shall mean minor interior decorating or cosmetic Alterations that do not affect the
Structure.
Cure Period shall mean a period of 30 days from the date that Tenant delivers to Landlord written notice of
a failure by Landlord to perform any of its obligations under this Lease; provided that, if such failure is of a
nature that it reasonably cannot be corrected within such 30 days,then the Cure Period shall continue so long
as Landlord: (a) commences to correct such failure within such 30 days; and (b) diligently pursues such
correction to completion.
Decision Notice shall mean a written notice from Tenant accepting or rejecting Landlord's determination of
the Fair Market Rental.
Declarant shall mean Pedcor Residential, LLC.
Declaration shall mean that certain Declaration of Covenants and Easements (Parcel 16) executed by the
Declarant and recorded In the Office of the Hamilton County Recorder as Instrument No.
•
as amended by that certain First Amendment to Declaration of Covenants and Easements (Parcel 16)
executed by the Declarant and recorded in the Office of the Hamilton County Recorder as Instrument
No.
Default Rate shall mean the prime rate,as reported in the Wall Street Journal or Its successor publication,
plus 5%.
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Division Amendment shall mean an amendment to the Declaration in the form attached to the Declaration;
provided that such form shall be revised as specified In Subsection 1 B(h).
Ending Date shall mean the earlier of:(a)the date that is 15 years after the first day of the first full calendar
month following the Commencement Date;or (b)the termination of this Lease in accordance with its terms
and conditions.
Event of Default shall have the meaning set forth in Subsection 19(a).
Extension Terms shall mean three additional consecutive periods of ten years each,with the first Extension
Term commencing at the expiration of the Initial Term.
Fair Market Rental shall mean the per annum rate of base or minimum rent on or about the Notice Date for
premises comparable to the Premises in the Carmel, Indiana, area, excluding amounts attributable to
amortization of brokerage fees,tenant finish costs, or tenant inducements paid or provided by landlords.
Fair Market Rental Notice shall mean written notice from Landlord setting forth Landlord's good faith
determination of the Fair Market Rental.
Fair Market Value shall mean the fair market value for the purchase and sale of the Acquisition Property,
subject to, and with all benefits of,the Declaration.
Fair Market Value Determination Date shall mean the date that is 90 days prior to the expiration of the Initial
Term or the then current Extension Term.
Front Space shall mean the portion of the Building delineated on Exhibit A-2 as 'front space°.
Hazardous Substances shall mean wastes, materials, or substances that are or become: (a) hazardous,
toxic,or radioactive; and (b)regulated by any Law.
Immediate Family shall mean a person's spouse and unemancipated children.
Initial Term shall mean the initial term of this Lease, as provided in Subsection 3(a).
Insurable Tenant Property shall mean property located in,on,or about the Premises in which Tenant has
an insurable interest.
Interested Party shall mean:(a)a person who has an interest of 3%or more in Landlord;or(b)any member
of the Immediate Family of a person who has an interest of 3% or more in Landlord.
Landlord's Work shall mean that work described on Exhibit C-1, which work shall include the Venting
Facilities.
Landlord's Work Plans shall mean the plans and specifications listed on Exhibit C-2.
Laws shall mean all applicable laws, statutes, and/or ordinances, and any applicable governmental rules,
regulations,guidelines,orders,and/or decrees.
Mortgagee Cure Period shall mean a period of 30 days, commencing on the date that the Cure Period
expires, during which any mortgage lender to which Tenant is obligated to deliver notice pursuant to
Section 20 shall have the option to cure the failure by Landlord to perform any of its obligations under this
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Lease; provided that, if such failure is of a nature that it reasonably cannot be corrected within such 30 days,
then the Mortgagee Cure Period shall continue so long as any such mortgage lender: (a) commences to
correct such failure within such 30 days; and(b)diligently pursues such correction to completion.
Mortgage Lien shall mean the lien of any mortgage,or any other method of financing or refinancing, now or
hereafter encumbering the Real Estate,the Building, and/or the Premises.
Notice Date shall mean the date on which Tenant gives notice pursuant to Section 3 of its intention to extend
the Term for an Extension Term.
Operating Expenses shall have the meaning set forth in Section 11.
Overdue Rent shall mean any payment of Rent that Is overdue by five days or more.
Partial Condemnation shall mean a Condemnation that does not constitute a Complete Condemnation.
Partial Destruction shall mean Casualty Damage that does not constitute a Complete Destruction.
Permanent Restroom Space shall mean the portion of the Back Space delineated on Exhibit A-2 as
restroom space.
Permanent Restrooms shall mean the restroom facilities located In the Permanent Restroom Space.
Permitted Uses shall mean use of:(a)the Front Space for commercial purposes,which:(5)may include retail,
service, or office uses (in connection with which Tenant may permit the installation of brochure racks and
informational displays as contemplated in the Side Agreement); but (Ii) shall exclude use as a restaurant
requiring venting for food preparation or installation of a grease trap; (b)the Back Space as the Permanent
Restrooms and the Public Restrooms; provided that, beginning at any time after the fifth anniversary of the
Commencement Date, Tenant may use the Public Restroom Space for the same purposes as are permitted
for the Front Space; (c) the Corridor Space as a public corridor, (d) Stairway Space as a stairway; and
(e) Common Restroom Space as restroom facilities serving the owners and tenants of the Building and the
other buildings in the project of which the Building is a part.
Premises shall mean certain premises within the Building,which premises:(a)is comprised of approximately
1,621 square feet on the first and third floors of the Building;and(b)consists of the Front Space,the Back
Space, the Corridor Space, the Stairway Space, and the Common Restroom Space.
Premises Common Areas shall mean the Corridor Space,the Stairway Space,and the Common Restroom
Space.
Principal shall mean,with respect to Landlord:(a)an officer,director,owner,partner,key employee,or other
person with primary managementorsupervisory responsibilities;or(b)a person who has critical influence on,
or substantive control over, Landlord's operations.
Pro-Rata Share shall mean a fraction:(a)the numerator of which is one; and(b)the denominator of which
Is the number of floors in the Building.
Public Restroom Space shall mean the portion of the Back Space delineated on Exhibit A-2 as the "public
restroom space".
Public Restrooms shall mean the restroom facilities located in the Public Restroom Space.
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Purchase Obligation shall mean the obligation of Tenant to acquire the Acquisition Property for an amount
equal to the Fair Market Value.
Qualified Appraiser shall mean a qualified, independent MAI appraiser with a minimum of five years of
appraisal experience in Hamilton County, Indiana.
Real Estate shall mean the parcel of real estate upon which the Building is located.
Real Estate Taxes shall mean ad valorem property taxes and assessments levied on,against,or with respect
to the Real Estate.
Rent shall mean Base Rent, and all other amounts payable by Tenant under this Lease.
Restroom Conversion shall mean the conversion of the Permanent Restrooms into the Separate Restroorns.
Restroom Use Easements shall have the meaning set forth in the Declaration.
Rules shall mean all reasonable written rules and regulations delivered from time to time by Landlord to
Tenant; provided that such rules and regulations are of general applicability to all tenants of the Building.
Second Cancellation Period shall mean the period:(a)commencing on the date on which either(I)Landlord
and Tenant agree on a determination of the Fair Market Value; or(ii)the Appraiser Panel delivers notice to
Landlord and Tenant of Its determination of the Fair Market Value;and (b)ending on the date that is 15 days
thereafter.
Selection Date shall mean
Separate Restrooms shall mean separate men's and women's restrooms:(a)each of which shall house a
sufficient number of toilets and sinks so that, when aggregated with the toilets and sinks housed in the
restroom located within the Common Restroom Space, there are enough toilets and sinks to fulfill the
requirements for men's and women's restrooms in a building the size of the Building and the adjacent building
commonly known as 'Unit 4° combined; and (b)that comply with all Laws (including without limitation,the
requirements of the American's with Disabilities Act and all applicable building codes).
Side Agreement shall mean that certain'Agreement'executed by and between Landlord,Tenant,Declarant,
and Hamilton County Convention and Visitor's Bureau.
Signs shall mean signs, insignias,advertisements, notices,decorations, and window coverings.
Stairway Space shall mean that portion of the Building delineated on Exhibit A-2 as the "premises stairway
space".
State shall mean the State of Indiana.
Stated Ending Date shall be the date on which the Term Is scheduled to end.
Structure shall mean the structural elements of the Building,Including the foundations, roof, exterior walls,
and interior structural walls. The Structure shall not Include the windows and doors of the Premises.
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Substantial Completion Date shall mean the date on which Landlord has: (a)completed Landlord's Work;
and (b)delivered possession of the Premises to Tenant, subject to completion of"punch-list"Items that do
not affect materially the ability of Tenant to use the Premises for the purpose of: (i)conducting Its business
operations; or(ii)completing the installation of Its fixtures and equipment.
Tenant Finish Selections shall mean the specifications and final selections to be:(a)completed by Tenant;
and (b)delivered to Landlord on or before the Selection Date.
Tenant Finish Work shall mean that work described on Exhibit D-1.
it
Term shall mean the Initial Term and any Extension Terms with respect to which Tenant has exercised its
option.
Title Insurer shall mean Hamilton Title Security, LLC.
Unamortized Work Costs shall mean,with respect to any calendar year during the Term,the amount of the
cost of Landlord's Work that remains unamortized as of December 31, as set forth on Exhibit B-1.
Utility Charges shall mean all charges for sewer,water,gas,electricity,telephone,and other utility services
used in, on, at,or from, and separately metered to,the Premises.
Venting Facilities shall mean the facilities for venting the plumbing that is located in the Premises, to the
extent that such facilities are located outside the Premises.
2. Lease. Landlord hereby leases to Tenant,and Tenant hereby leases from Landlord,the Premises;
provided that, notwithstanding such lease of the Premises, Tenants use of the Premises Common Areas
shall: (a) not be exclusive to Tenant; and (b) be in common with all other tenants in the Building.
3. Term.
(a) Initial Term. The Initial Term shall:(i)commence on the Commencement Date;and
(ii) end on the Ending Date.
(b) Extension Terms. Provided thatthere is no continuing Event of Default,Tenant shall
have the option to extend the term of this Lease by the Extension Terms. To exercise its
option to extend the term of this Lease for an Extension Term,Tenant shall deliver written
notice to Landlord of its intention to extend the term of the Lease for that Extension Term at
least 150 days prior to the date on which that Extension Term will commence. If Tenant fails
to deliver any such notice to Landlord in accordance with the terms and conditions of this
Subsection, then the option.of Tenant to extend the term of this Lease for any of the
remaining Extension Terms shall terminate.
(c) Holdover Possession. If Tenant holds over and remains in possession of the
Premises after the Ending Date,with the consent of Landlord, then such holding over and
continued possession shall create a tenancy from month to month, upon and subject to the
same terms and conditions of this Lease In effect on the Ending Date, except for the length
of the term of this Lease. .Af any time,either party may terminate such tenancy from month
to month upon written notice delivered to the other party at least 30 days in advance. If
Tenant holds over and remains In possession of the Premises after the Ending Date,without
the consent of Landlord,then Tenant shall pay to Landlord,for each day that it holds over,
150% of the Base Rent In effect on the Ending Date, computed on a daily basis
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4. Rent.
(a) Base Rent. Tenant shall pay annual amounts of Base Rent to Landlord during the
Term. Base Rent shall be payable: (i) in equal monthly Installments; and (ii)in advance on
or before the first day of each full and partial calendar month during the Term;provided that:
(i)if the Commencement Date or the Ending Date is a date other than the first day or the last
day of a calendar month, respectively,then the Base Rent payable for such partial calendar
month shall be the amount of the monthly Base Rent in effect on the Commencement Date
or the Ending Date,respectively, computed on a daily basis; and (II)the Base Rent for any
partial calendar month at the commencement of the Term shall be payable on the first day
of the first full calendar month during the Term.
(b) Work Costs. On or before December 31 of each calendar year during the Term,the
Unamortized Work Costs shall be due and payable by Tenant;provided that, if the Term will
continue for the next calendar year, then Tenant may elect to defer payment of the
Unamortized Work Costs until the following December 31,which election shall be deemed
to have been made unless Tenant delivers to Landlord written notice to the contrary on or
before December 15. W hen Tenant pays the Unamortized Work Costs,then,if the Term will
continue for the next calendar year, Base Rent shall be reduced as provided on Exhibit 8-1,
which reduction shall be effective as of the January tat first following such payment by
Tenant.
(c) Payment. Tenant shall pay all Rent promptly, without: (i) prior demand;
(ii)deductions or setoffs of any nature;or(iii) relief from valuation and appraisement laws.
Interest shall accrue on any Overdue Rent at the Default Rate. Landlord shall have no
obligation to accept less than the full amount of any Rent owed by Tenant; provided that, if
Landlord accepts less than the full amount of Rent owed, then: (I) Landlord may apply the
sums received toward any of the obligations of Tenant, in Landlord's discretion; and
(ii) Tenant shall remain liable for the remaining amount of any such Rent.
5. Improvements.
(a) Landlord's Work. Landlord, at its cost,shall:(I)perform, or cause to be performed;
and(ii)furnish all materials necessary to complete;Landlord's Work in accordance with the
Landlord's Work Plans. Landlord shall com plete Landlord's Work in a good and workmanlike
manner,and in compliance with all Laws,as the Laws are applicable to use of the Premises
for the Permitted Uses. During the Term:(I)Landlord shall not remove the Venting Facilities,
so that,at all times,the Venting Facilities are available to serve the Premises;and(U)Tenant
shall be permitted to use the Venting Facilities.
(b) Tenant Finish Work. As part of Landlord's Work, Landlord shall: (i) complete, or
cause to be completed;and(II)furnish all materials necessaryto complete;the Tenant Finish
Work in accordance with the Tenant Finish Selections; provided that, if the Tenant Finish
Selections are not finalized by the Selection Date, then all dates for the performance of
Landlord's Work shall be extended by the period of delay In the performance of Landlord's
Work caused by the delay in finalizing the Tenant Finish Selections, Notwithstanding
anything to the contrary set forth herein: (i) the cost of the Tenant Finish Work shall be
allocated between Landlord and Tenant as provided in Exhibit D-2; and (H) the terms and
conditions of Exhibit D-2 shall control over the terms and conditions with respect to the
payment of"Excess Interior Work Costs"set forth in that certain"Project Agreement"of even
date herewith executed by and between Landlord and Tenant.
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(a) Substantial Completion. The Premises shall be deemed to be substantially
completed and ready for occupancy on the Substantial Completion Date. On the
Commencement Date, Landlord and Tenant shall execute the Acceptance Agreement;
provided that Landlord shall correct all such"punch-list"Items promptly after execution of the
Acceptance Agreement.
(d) Tenant's Work. Tenant shall be responsible for all other work necessary to prepare
the Premises for occupancy by Tenant that Is not expressly included as Landlord's Work.
6. Use. The Premises may be used and occupied solely for the Permitted Uses, and for no other
purposes whatsoever without the prior written consent of Landlord. Tenant covenants and agrees that:
(a) Waste and Nuisance. Tenant shall not:(I)permit any waste or nuisance to occur in
the Premises;or(H) use or permit the use of the Premises for any unlawful purpose.
(b) Compliance with Laws. Tenant shall:(i)comply with the Laws,the Rules, and the •
Declaration; and (ii) cause its employees, agents, contractors, invitees, and licensees to
comply with the Laws,the Rules, and the Declaration.
(c) Prohibited Uses. Notwithstanding anything to the contrary set forth herein,Tenant
shall not use,or permit use of, the Premises for any of the uses set forth on Exhibit E.
(d) Hazardous Substances. Tenant shall not:(i)use the Premises for the treatment or
disposal of any Hazardous Substances;or(ii)store or use any Hazardous Substance in the
Premises, except for such storage and usage of those types and amounts of Hazardous
Substances as may be necessary for general office use; provided that Tenant shall not
stockpile Hazardous Substances. All storage, usage, and transportation of Hazardous
Substances shall be conducted in compliance with all Laws and Rules,and Tenant shall take
all necessary and appropriate safety precautions in connection with such storage,usage,and
transportation.
7. Utilities. Tenant shall:(a)pay all Utility Charges;and (b)deliver to Landlord upon demand receipts
or other satisfactory evidence of payment of the Utility Charges; provided that, the cost of any utilities not
separately metered to the Premises shall be included in Operating Expenses for purposes of determining the
CAM Share. Tenant shall not install in the Premises any equipment that may exceed the capacity of any utility
facilities;provided that(a)if any equipment installed by Tenant requires additional utility facilities,then Tenant
shall Install such additional utility facilities at its expense and in compliance with the Laws; and (b) prior to
Installing any such additional utility facilities,Tenant shall obtain Landlord's written approval of the plans and
specifications for such facilities.
8. Maintenance.
(a) Landlord Repairs. Landlord, at its expense, shall be responsible for keeping and
maintaining:(i)the Structure in good order and repair,and in a structurally sound condition;
and (h)the Venting Facilities and the utility connections to the Premises in good order and
repair. Except as provided In this Subsection,Landlord shall not be responsible for making
repairs, replacements or improvements of any kind to or for the Premises,all of which such
repairs, replacements,or Improvements shall be the responsibility of Tenant.
(b) Tenant Repairs. Except for repairs to be performed by Landlord pursuant to
Subsection 8(a) or Section 9, Tenant shall keep the Premises (including the Premises
Common Areas)clean, neat, and safe, and in good order, repair and condition, including,
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without limitation, that Tenant shall: (i) make all repairs, alterations, additions, or
replacements to the Premises as may be required by any Law, or by fire underwriters or
underwriters' fire prevention engineers; (il) keep all glass in windows, doors, fixtures, and •
other locations clean and In good order,repair,and condition,and replace glass that may be
damaged or broken with glass of the same quality; (Hi) contract directly for any janitorial or
cleaning services that it deems to be necessary or appropriate to comply with the terms and
conditions of this Subsection; (Iv) maintain all utilities from the point of connection to the
Premises; and (v) paint and decorate the Premises as necessary or appropriate to comply
with the terms and conditions of this Subsection.
9, Common Areas. Tenant shall have the right, in common with all other tenants in the Building and
subject to the Laws,the Rules, and the Declaration,to use the Common Areas. Landlord shall:(a)provide:
(i)heating,ventilating,and air conditioning;(ii)electricity;and(iii)water;as applicable,for the Common Areas
(including the Premises Common Areas);and(b)operate,manage,maintain,repair,and Insure the Common
Areas (other than the Premises Common Areas) in such a manner as Landlord shall determine to be
necessary or appropriate,Including,without limitation,that Landlord at any time,and from time to time,may:
(a)change,modify,add to, or subtract from the sizes, locations,shapes,and arrangements of the Common
Areas(other than the Premises Common Areas,but including the buildings,entrances,exits, parking areas,
and parking aisle alignments); (b) restrict parking by Tenant's employees to designated parking areas; and •
(c)take such other actions with respect to the Common Areas(other than the Premises Common Areas)as
Landlord determines to be necessary or appropriate. Notwithstanding the foregoing,Landlord shall not take
any actions with respect to the Common Areas that will:(a)materially and substantially Interfere with access
to the Premises;or(b)violate the terms and conditions of the Declaration.
10. CAM Share.
(a) Payment. Tenant shall pay the CAM Share upon receipt of written demand from
Landlord. Notwithstanding anything to the contrary set forth herein,Tenant may offset the
CAM Share Offset against payments of CAM Share payable by Tenant.
(b) Estimation. Notwithstanding anything to the contrary set forth herein,Landlord may:
(i)estimate(or re-estimate)the amount of the CAM Share for any whole or partial calendar
year during the Term; and (ii) require Tenant to pay equal monthly Installments of the
estimated(or re-estimated)CAM Share,in advance on or before the first day of each full and
partial calendar month during such calendar year;provided that,the amount payable for any
partial calendar month shall be prorated based upon the number of days in such partial
calendar month;provided that,in such event,Tenant may estimate(or re-estimate)the CAM
Share Offset and offset against such monthly installments equal monthly amounts of the
estimated (or re-estimated) CAM Share Offset.
(c) Settling. By April 1 of each calendar year, Landlord and Tenant each shall deliver
to the other written statements showing the computation of the actual:(i)CAM Share payable
by Tenant with respect to the previous whole or partial calendar year; and (H) CAM Share
Offset; respectively. If the total of the monthly CAM Share payments made by Tenant for
such calendar year is more than the actual CAM Share payable by Tenant with respect to
such calendar year, then Landlord shall credit the excess against future CAM Share
payments to be made by Tenant; provided that, if: (i) there are no future CAM Share
payments to be made by Tenant; and (li)there is no continuing Event of Default under this
Lease;then Landlord shall refund the excess to Tenant within 30 days. If the total of the
monthly CAM Share payments made by Tenant for such calendar year Is less than: (I)the
actual CAM Share payable by Tenant with respect to such calendar year;less (ii)the actual
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CAM Share Offset;then Tenant shall pay the amount of such deficiency within 30 days after
delivery to Tenant of the statement required by this Subsection.
(d) Survival. The obligations of Tenant under this Section shall survive expiration of the
Term or the earlier termination of this Lease.
11. Operating Expenses.
(a) Inclusions. "Operating Expenses" shall mean and include all reasonable or
customary costs and expenses incurred by Landlord in discharging its obligations under
Subsection 8(a), including,without limitation: (i)wages,salaries, and benefits of personnel
(not to exceed the amount fairly and equitably allocated to the Building based on the
proportion of the working time such personnel spent at the Building to the working time spent
at other premises);(ii)charges under maintenance and service contracts;(iii) premiums for
Insurance required:(A)to satisfy the obligations of Landlord under Section 15;and/or(B)by
a mortgage lender; (iv)charges,costs,and expenses to provide any utilities benefitting the
Premises that are not separately metered to the Prem ises;(v)Real Estate Taxes;and(vi)all
assessments levied or assessed pursuant to the Declaration. Notwithstanding anything to
the contrary set forth herein, but subject to the definition of CAM Share, though Tenant,as
a tax exempt entity, is not subject to real estate, sales and use,or other similar state,local,
or federal taxes,If Landlord pays such taxes as part of the customary costs and expenses
to discharge its obligations under this Lease,then the amount of such taxes paid by Landlord
shall constitute Operating Expenses for purposes of determining the CAM Share payable by
Tenant.
(b) Exclusions. "Operating Expenses"shall not include:(i)any amount for depreciation
of the Premises or the Building;(li)any capital improvement to the Premises or the Building,
except to the extent that such capital improvements form the basis for any assessments
levied or assessed pursuant to the Declaration and included within Operating Expenses
pursuant to Subsection 11(a)(vi);(iii)leasing commissions;(Iv)legal fees in connection with:
(A) a financing or refinancing by Landlord; (B) preparation or negotiation of leases; or
(C) exercising or enforcing Landlord's rights and remedies under leases; (v) income taxes
imposed upon Landlord; (vi) any payment required under the terms of any mortgage;
(vii) penalties assessed against Landlord for any late payment; or (viii) any marketing or
advertising costs of Landlord.
(c) No Doubling. Notwithstanding that Landlord may include a particular cost or expense
in Operating Expenses pursuant to Subsection 11(a), Landlord shall not include such cost
or expense more than once. By way of exam pie, if a cost or expense Is:(a)Included within
an assessment levied or assessed pursuant to the Declaration; and (b)such assessment
pursuant to the Declaration is included in Operating Expenses;then Landlord may not also
include such cost or expense separately in Operating Expenses, thereby effectively
recovering such cost or expense twice.
12. Property Taxes. Tenant shall: (a) pay, before any penalty or interest attaches, all taxes levied or
assessed against or with respect to:(I)the conduct of Tenant's business in,on,at,or from the Premises;and
(ii)Tenant's trade fixtures,equipment,Inventory,and other personal property located upon the Premises;and
(b)furnish to Landlord, upon written request, duplicate receipts evidencing payment of such taxes.
13. Alterations.
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II
(a) Alterations. Tenant shall not make any Alterations, except for: CO Cosmetic
Alterations;and(ii)installations by Tenant,at its cost and expense,of such trade fixtures and
other personal property as Tenant determines to be necessary or appropriate to conduct its
business. Any Alterations made, or caused to be made, by Tenant shall: (i) be completed:
(A)in a good and workmanlike manner;and (B)except in the case of Cosmetic Alterations,
pursuant to plans,and by a contractor, reasonably approved by Landlord; and (ii)not affect
the Structure. On the Ending Date,all Alterations shall become the sole property of Landlord;
provided that trade fixtures installed by Tenant shall remain the property of Tenant.
(b) Signs. Tenant shall not affix,or cause to be affixed, to the Building or the exterior
of the Premises(including,without limitation,the windows and doors),any Signs without the
prior written consent of Landlord; provided that Landlord hereby consents to the Signs
depicted and/or described on Exhibit F.
(c) Communications. Tenant shall not Install any Communications Equipment on the
Building without the prior written consent of Landlord;provided that Landlord hereby consents
to the installation of the Communications Equipment described on Exhibit G.
14. Liens. Tenant shall not suffer or cause the filing of any mechanic's lien against the Building,or any
part thereof. If any mechanic's lien is filed against the Building,or any part thereof,for work claimed to have
been done for, or materials claimed to have been furnished to, Tenant, other than Landlord's Work, then
Tenant shall cause such mechanic's lien to be discharged of record within 30 days after notice of the filing by
bonding, or as provided or required by law. All liens suffered or caused by Tenant shall attach only to the
interest of Tenant in the Premises. Nothing in this Lease shall be deemed or construed to: (a) constitute
consent to,or request of,any party for the performance of any work for,or the furnishing of any materials to,
Tenant; or (b) give Tenant the right or authority to contract for, authorize, or permit the performance of any
work, or the furnishing of any materials, that would permit the attaching of a mechanic's lien to Landlord's
interest In the Building.
15. Insurance.
(a) Casualty. Landlord shall be responsible for maintaining during the Term fire and
extended coverage insurance on the Building for the full replacement value thereof;provided
that Landlord shall not be responsible to insure against(or liable for),any loss of,or damage
to, any. (i) personal property. (A) owned by Tenant; and/or (b) located in, on,or about the
Premises;(ii)trade fixtures installed by Tenant;or(Iii)Alterations made by Tenant; in each
case unless such loss or damage occurs as a result of the intentional actor wilful misconduct
of Landlord or Its em ployees,agents,or contractors. Tenant,at its cost and expense,shall
maintain during the Term fire and'all-risks coverage Insurance with respect to any Insurable
Tenant Property; provided that: (i)all Insurable Tenant Property; and (ii)any other property
that Landlord Is not obligated to insure;shall be kept In,at,or upon the Premises at Tenant's
sole risk.
(b) Liability.
(i) Landlord. To the extent that such insurance is not maintained by
the Declarant or an owners' association pursuant to the Declaration,
Landlord shall maintain during the Term general public liability and property
damage insurance covering any and all claims for Injuries to, or death of,
persons,and damage to,or loss of, property,occurring in,on,or about the
Common Areas (including the Premises Common Areas) in the amounts
specified on Exhibit H-1.
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(ii) Tenant. Tenant, at its cost and expense,shall maintain during the
Term general public liability and property damage insurance covering any
and all claims for Injuries to, or death of, persons, and damage to, or loss
of,property,occurring in,on,or aboutthe Premises(excluding the Premises
Common Areas) in the amounts specified on Exhibit H-2.
(iii) Policies. Each Insurance policy maintained by Landlord and Tenant
pursuant to this Subsection must: (A) be Issued by an insurance company
reasonably acceptable to Tenant or Landlord, respectively; and (B) name
Tenant or Landlord, respectively, as additional insureds.
(c) Worker's Compensation. Tenant shall comply with the provisions of the applicable
worker's compensation laws, and shall insure its liability thereunder.
(d) Copies. Landlord and Tenant each shall deposit with the other proper certificates
with respect to the policies of insurance required to be maintained pursuant to this Section,
which certificates shall be:(i)duly executed by the insurance company or the general agency
writing such policies;and (ii)effective not later than the first day of the Initial Term. Landlord
and Tenant each shall deposit appropriate renewal or replacement certificates with the other
party not less than ten days prior to the expiration of any such policies. Each policy of
insurance maintained by Landlord or Tenant pursuant to this Section shall provide that the
company issuing such policy shall not cancel,or change the terms of,such policy without first
giving the other party written notice at least 30 days in advance of such cancellation or
change.
(e) Subrogation. Landlord and Tenant waive and release any and all rights of recovery
that either may have against the other party for any loss or damage,whether or not caused
by any alleged negligence of the other party or Its employees, agents,or contractors,to the
extent that such loss or damage is or would be covered by any insurance required to be
maintained under this Lease (or otherwise maintained). Each policy of Insurance required
under this Lease (or otherwise maintained) shall contain an endorsement to such effect,
waiving the insurer's right of subrogation against the other party.
16. Casualty.
(a) Termination. If there is Complete Destruction, then: (i) either Landlord or Tenant
may elect to terminate this Lease by delivery of written notice to the other party within 30 days
after the occurrence of the Complete Destruction;and (ii)this Lease shall terminate on the
date that is 15 days after delivery of such notice. Notwithstanding the foregoing,if Landlord
delivers notice to Tenant within 30 days after the occurrence of the Complete Destruction that
Landlord will:(i)repair and/or restore the Premises in accordance with Subsection 16(b);and
(ii) complete such repair and/or restoration within six months after the occurrence of the
• Complete Destruction;then Tenantshall not have the right to terminate this Lease due to the
Complete Destruction(and any notice of termination as a result of the Complete Destruction
given by Tenant prior to the date on which Landlord timely delivers such notice shall be
deemed to be null and void and of no force or effect). If there is Partial Destruction that
occurs: (i)when 20% or less of the Initial Term remains; or(ii) during an Extension Term;
then: (i) Landlord shall have the right to terminate this Lease by delivery of written notice to
Tenant within 30 days after the occurrence of the Partial Destruction;and(Ii)this Lease shall
terminate on the date that is 15 days after delivery of such notice. If there is a termination
of this Lease pursuant to this Subsection,then all obligations hereunder,except those due
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or mature,shall cease and terminate as of the date of the Complete Destruction or the Partial
Destruction, as the case may be.
(b) Restoration. If:(i)in the event of Complete Destruction,neither Landlord nor Tenant
exercises its right to terminate this Lease within the 30 day period; or (ii) there is Partial
Destruction, and Landlord does not, or is not entitled to, terminate this Lease pursuant to
Subsection 16(a);then: (i)this Lease shall continue in full force and effect;and (ii)Landlord
shall repair and/or restore the Premises to substantially the same condition as
existed prior to the Complete Destruction or the Partial Destruction, as the case may be;
provided that Landlord shall not be obligated to repair or replace any: (A) trade fixtures
installed by Tenant;or(B)Alterations made by Tenant;all of which shall be the obligation of
Tenant to repair or replace.
(c) Abatement. Base Rent shall be abated proportionately(based upon the proportion
that the unusable space In the Premises due to the Casualty Damage bears to the total
space in the Premises) for each day that the Premises or any part thereof Is unusable by
reason of any Casualty Damage. All proceeds paid with respect to any Casualty Damage
under any insurance policy maintained by Landlord shall belong to,and be the sole property
of, Landlord.
17. Condemnation.
(a) Termination. If there is a Complete Condemnation,then this Lease shall terminate
as of the Condemnation Date. If there is a Partial Condemnation that occurs: (i)when 20%
or less of the Initial Term remains; or(II)during an Extension Term;then: (i)Landlord shall
have the right to terminate this Lease by delivery of written notice to Tenant within 30 days
after the occurrence of the Partial Condemnation; and (ii)this Lease shall terminate on the
date that is 15 days after delivery of such notice. If there is a termination of this Lease
pursuant to this Subsection,then all obligations hereunder,except those due or mature,shall
cease and terminate as of the Condemnation Date.
(b) Restoration. If there Is a Partial Condemnation, and Landlord does not, or is not
entitled to, terminate this Lease pursuant to Subsection 17(a), then: (i) this Lease shall
continue In full force and effect with respect to the remainder of the Premises; and
(ii)Landlord promptly shall perform such repairs and/or replacements to the remainder of the
Premises as are necessary so that the remainder of the Premises may be used by Tenant;
provided that Landlord shall not be obligated to repair or replace any: (A) trade fixtures
installed by Tenant;or(B)Alterations made by Tenant;all of which shall be the obligation of
Tenant to repair or replace.
(c) Abatement. If this Lease remains in effect after any Condemnation, then: (I) until
repairs and/or replacements to the remainder of the Premises are completed, Base Rent
shall be abated proportionately(based upon the proportion that the unusable space in the
Premises due to the Condemnation bears to the total space in the Premises);(ii)after such
repairs and/or replacements are completed, Base Rent shall be abated proportionately
(based upon the proportion that the that area of the Premises taken by,or conveyed to,the
condemning authority bears to the total space in the Premises). All compensation awarded
or paid with respect to any Condemnation shall belong to and be the sole property of
Landlord;provided that Landlord shall not be entitled to any award made solely to Tenant for
loss of business or costs and/or expenses of relocation and removing trade fixtures.
18. First Floor.
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(a) No Public Restrooms. Tenant shall undertake the Restroom Conversion If, during
•
the Term,Tenant no longer uses the Public Restroom Space for the operation of the Public
Restrooms.
(b) Conversion Notice. If Tenant falls to extend the term of this Lease for an Extension
Term (or if there are no Extension Terms remaining), then Landlord shall have the right to
require Tenant to undertake the Restroom Conversion(if the Restroom Conversion has not
previously occurred pursuant to Subsection 18(a)); provided that, to exercise such right,
Landlord shall deliver the Conversion Notice to Tenant during the Conversion Notice Period.
If Landlord delivers the Conversion Notice to Tenant during the Conversion Notice Period,
then Tenant shall undertake the Restroom Conversion.
(c) Purchase Obligation. If: (I) the Restroom Conversion has not previously occurred
pursuant to Subsection 18(a); and (Ii) Landlord does not deliver a Conversion Notice to
Tenant during the Conversion Notice Period;then the Purchase Obligation shall be triggered;
provided that, Landlord may cancel the Purchase Obligation by delivering written notice of
such cancellation to Tenant on or before the Cancellation Date. If Landlord timely cancels
the Purchase Obligation,then Tenant shall undertake the Restroom Conversion.
(d) Fair Market Value. If: (i) the Purchase Obligation Is triggered pursuant to
Subsection 18(c);and(ii)Landlord does not cancel the Purchase Obligation on or before the
Cancellation Date; then Landlord and Tenant shall have until the Fair Market Value
Determination Date to determine the Fair Market Value;provided that,if Landlord and Tenant
are unable to agree on the Fair Market Value prior to the Fair Market Value Determination
Date,then:(i)within 15 days after the Fair Market Value Determination Date,the Appraiser
Panel shall be appointed;and(ii)within 30 days after the date on which the Appraiser Panel
is appointed,the Appraiser Panel shall determine the Fair Market Value,which determination
shall be binding upon Landlord and Tenant.
(e) Second Cancellation Right. During the Second Cancellation Period, Landlord shall
have the right to cancel the Purchase Obligation by delivery of written notice to Tenant. If
Landlord timely cancels the Purchase Obligation,then Tenant shall undertake the Restroom
Conversion.
(1) Panel Costs. All costs and fees incurred to have the Appraiser Panel determine the
Fair Market Value shall be split equally between Landlord and Tenant,regardless of whether
Landlord exercises Its right to cancel the Purchase Obligation.
• (g) Closing. If Landlord does not exercise its right to cancel the Purchase Obligation,
then the closing with respect to the Acquisition Property shall occur within 30 days after the
expiration of the Second Cancellation Period.
(h) Closing Documents. At the closing with respect to the Acquisition Property,Landlord
and/or Tenant,as the case may be,shall execute and/or deliver,as applicable,the following
documents:
(i) a fully executed limited warranty deed conveying to Tenant
marketable,indefeasible fee simple title to the Acquisition Property,free and
clear of any and all liens, encumbrances, easements, restrictions,
covenants, and other title defects, except for those: (A) to which title was
subject at the time that Tenant conveyed title to the Real Estate to
•
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Landlord's affiliate;and(B)otherwise accepted by Tenant in its reasonable
discretion
(H) a vendor's affidavit in form and substance required for the Title
Insurer to delete the standard °pre-printed"exceptions; •
(Iii) an affidavit that Landlord is not a 'foreign person", in form and
substance required by the Internal Revenue Code of 1986, as amended,
and the rules and regulations promulgated thereunder;
(iv) an affidavitthat,tothe bestof Landlord's knowledge,the Acquisition
Property is not"property" under IRPTL;
(v) the Division Amendment,the form of which shall be revised so that
CRC receives an assignment of the rights granted to Landlord under the
Declaration to: (1) undertake the Restroom Conversion; and (2)terminate
the Restroom Easements,to the extent applicable to the Public Restrooms
and the Permanent Restrooms.
(vi) copies of such resolutions, consents, authorizations, and other
evidence as Landlord or Tenant, as the case may be, or the Title Insurer
reasonably may request to establish that: (A) the persons executing and
delivering the foregoing documents are authorized and empowered by all
necessary action of Landlord or Tenant, as the case may be; and (B)the
execution and delivery of the foregoing documents,and the performance by
Landlord or Tenant, as the case may be, of its obligations hereunder and
under the foregoing documents have been authorized by Landlord or
Tenant,as the case may be;and
(vii) such other customary documents and Instruments as Landlord or
Tenant, as the case may be,or the Title Insurer reasonably may request in
connection with the closing.
(i) Closing Costs. All costs and expenses: (i)incurred in connection with obtaining a
title commitmentthat reasonably is satisfactory to Tenant,an owner's policy of title insurance
that conforms to the title commitment,and an ALTA survey;and(H)otherwise charged by the
Title Insurer In connection with closing on the acquisition by Tenant of the Acquisition
Property;shall be split equally between Landlord and Tenant.
(j) Restroom Easements. Notwithstanding anything to the contrary set forth In the
Declaration:
(i)
Prior to the Stated Ending Date, no termination by Landlord of any
of the Restroom Use Easements shall take effect.
(ii) Prior to the Stated Ending Date, Landlord shall not undertake the
Restroom Conversion.
(iii) The Restroom Use Easements, to the extent applicable to the
Permanent Restrooms, shall become permanent and perpetual (and
thereafter Landlord shall have no right to terminate the Restroom Use
Easements, to the extent applicable to the Permanent Restrooms):
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(A) from and after the date on which Tenant
•
undertakes the Restroom Conversion . pursuant to
Subsection 16(a).
(B) from and after the date on which Landlord timely
delivers a Conversion Notice to Tenant,thereby triggering
the obligation of Tenant to undertake the Restroom
Conversion;or
(C) from and after the date on which Landlord timely
cancels the Purchase Obligation, thereby triggering the
obligation of Tenant to undertake the Restroom
Conversion.
(k) Remedies. Notwithstanding the terms and conditions of Sections 19 and 20, the
following remedies shall be available if Landlord or Tenant is in default with respect to Its
obligations under this Section:
(i) With respect to such a default by Tenant, Landlord shall have
available to it all rights or remedies available at law or in equity(Including the
right to enjoin the action that is the subject of the default or specifically
enforce the performance of the applicable obligation); and
(li) With respect to such a default by Landlord,then Tenant may elect
either: (A) the right to enjoin the action that Is the subject of the default or
specifically enforce the performance of the applicable obligation; or(B)to
have the default treated for all purposes as an election to cancel the
Purchase Obligation.
(I) Continuing Obligations. The rights and obligations of the parties under this Section
shall be continuing rights and obligations that survive the Ending Date.
19. Defaults and Remedies.
(a) Events of Default. Each of the following shall be deemed to be an"Event of Default":
(i) Tenant's failure to pay any amount of Rent when due;provided that,
in the case of the first two such failures in any given 12 month period,such
failure shall not constitute an Event of Default unless such failure continues
for ten days after Landlord delivers written notice thereof to Tenant;
(ii) Tenant's failure to observe or perform any term or condition of this
Lease to be observed or performed by Tenant with respect to maintaining
insurance, and the continuance of such failure for ten days after Landlord
delivers written notice to Tenant of such failure;
(III) Tenant's failure to observe or perform any other term or condition
of this Lease to be observed or performed by Tenant,and the continuance
of such failure for 30 days after Landlord delivers written notice to Tenant of
such failure; provided that, if such failure is of a nature that it reasonably
cannot be corrected within such 30 days, then such failure shall not
constitute an Event of Default so long as Tenant:(A)commences to correct
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•
such failure within such 30 days; and (B)diligently pursues such correction
to completion.
(iv) Any of the following occurs: (A)Tenant: (1) becomes insolvent or
bankrupt; or (2) makes a general assignment for the benefit of creditors;
(B)a receiver is appointed for Tenant's property; (C) a petition is filed with
respect to Tenant In bankruptcy or for reorganization; or(D)the leasehold
interest of Tenant hereunder is sold pursuant to execution;
'(b) Remedies. If there is an Event of Default,then, in addition to exercising any other
rights or remedies available at law or in equity, and without further notice or demand,
Landlord may:
(i) elect to terminate this Lease.
(ii) if Tenant has failed to perform any of its obligations under this
Lease, enjoin the failure or specifically enforce the performance of such
obligation.
(iii) if Tenant has failed to perform any of its obligations under this
Lease, other than the obligation to pay Rent perform the obligation that
Tenant has failed to perform (entering upon the Premises for such purpose,
if necessary);provided that the performance by Landlord of such obligation
shall not be construed to be a waiver of the Event of Default.
(iv) immediately: (A) re-enter, and take possession of, the Premises;
(B)remove all persons and property from the Premises;and(C)store such
property at the sole cost and expense,and for the account,of Tenant; all in
compliance with the Laws.
Notwithstanding the foregoing, with respect to a default under Section 18, the terms and
conditions of Subsection 18(k)shall apply in lieu of the remedies set forth In this Subsection.
(c) Re-Letting. If Landlord re-enters,and/or takes possession of,the Premises after an •
Event of Default,then Landlord:(i)may terminate this Lease;or(II)from time to time without
terminating this Lease, may:(A)make reasonable alterations and repairs for the purpose of
re-letting the Premises; and (B) re-let the Premises, or any part thereof, for such periods
(which may extend beyond the Term), at such rental, and upon such other terms and
conditions as Landlord deems to be advisable. Upon each re-letting,all rentals received from
the re-letting shall be applied in the following order: (I) to damages that Landlord incurs:
(A) by reason of Events of Default; or (B) in connection with exercising its rights and
remedies with respect to Events of Default; (ii)to the payment of Rent owed by Tenant;and
(iii)the remainder,if any,shall be held by Landlord and applied in payment of future Rent as
it becomes due and payable. If the rentals received from such re-letting during any month
are less than the full amount of Rent payable during that month, then Tenant shall pay the
deficiency to Landlord. Such deficiency shall be calculated and paid monthly. No re-entry
and/or taking of possession by Landlord of the Premises shall be construed to be: (i) an
election to terminate this Lease; or (ii) an acceptance of a surrender of the Premises; in
either case unless a written notice of termination or acceptance of surrender is delivered by
Landlord to Tenant. Notwithstanding any re-letting without termination,Landlord,at any time
after such re-letting, may elect to terminate this Lease due to the Event of Default that led to
the re-letting.
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(d) No Waiver. Neither (i) a waiver by Landlord of any Event of Default; nor (ii) an
exercise by Landlord of any right or remedy with respect to an Event of Default; shall be
deemed either to: (I)constitute a waiver of any subsequent Event of Default; (il)release or
relieve Tenant from performing any of Its obligations under this Lease;or(Hi)constitute an
amendment or modification of this Lease. If Landlord accepts any payments of Rent during
the continuance of an Event of Default,then such acceptance shall not be construed as a
waiver of:(I)such Event of Default;or(H)any right or remedy of Landlord with respect to such
Event of Default. The rights and remedies hereunder are cumulative, and no: (i) right or
remedy shall be deemed to be, or construed as, exclusive of any other right or remedy
hereunder, at law,or in equity; or(ii)failure to exercise any right or remedy shall operate to
prevent the subsequent exercise of such right or remedy.
(e) Damages. Landlord may recover from Tenant all damages that Landlord incurs by
reason of any Event of Default and/or in connection with exercising its rights and remedies
with respect to any Event of Default,together with interest thereon at the Default Rate. If,at
any time, Landlord terminates this Lease due to an Event of Default, then, in addition to:
(i) any other rights and remedies that Landlord may have; and (H) all other damages;
Landlord may recover from Tenant all damages that Landlord incurs by reason of such Event
of Default,including,without limitation,the value at the time of termination of the excess of:
(I)the amount of Rent for the remainder of the Term;over(ii)the rental value of the Premises
for the remainder of the Term. All such amounts shall be due and payable by Tenant
immediately upon receipt of written demand from Landlord; and the obligation of Tenant to
pay such amounts shall survive the termination of this Lease.
20. Landlord Default. Except in the case of a default by Landlord under Section 18, Landlord shall not
be deemed to be in default under this Lease for a failure to perform any of its obligations hereunder, and
Tenant shall not exercise any right or remedy that it may have at law or in equity with respect to such failure,
until such time as: (a) Landlord has received notice of such failure from Tenant; and (b) such failure has
continued past the Cure Period. If Tenant delivers to Landlord any notice of a failure to perform,then Tenant
also shall deliver to each mortgage lender a copy of such notice; provided that Tenant shall be obligated to
deliver such a notice only to those mortgage lenders for which Landlord has provided to Tenant a name and
address. Notwithstanding anything to the contrary set forth herein,except In the case of a default by Landlord
under Section 18,if Landlord does not cure any failure prior to the expiration of the Cure Period,then Tenant
shall not exercise any right or remedy that it may have at law or in equity with respect to such failure until the
expiration of the Mortgagee Cure Period.
21. State Required Provisions.
(a) Nondiscrimination. In connection with the performance of this Lease,Landlord shall
not discriminate against any employee, or applicant for employment, with respect to hire,
tenure, terms, conditions, or privileges of employment or any matter directly or indirectly
related to employment, because of race, age, color, religion, sex,disability, national origin,
or ancestry. No notice or cure period shall apply with respect to the obligation of Landlord
hereunder, and a default under this Subsection shall be an immediate default by Landlord
under this Lease.
(b) Conflict of Interest. Landlord is affirmatively obligated to disclose to Tenant that an
Interested Party is or has become an employee of the State; provided that,such obligation
extends only to those facts that Landlord knows or reasonably could know. If any Interested
Party is an employee of the State,then Tenant may cancel this Lease;provided that,Tenant
shall not cancel this Lease if Landlord provides to Tenant an opinion by the Commission
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O]19O6;16OtLPMasa-P¢dmr b CRC c6.wpd
stating that the existence of this Lease,and the State's employment of the Interested Party,
does not violate any Law with respect to the ethical conduct of the State's employees.
Tenant may take action,including cancellation of thls Lease,consistent with an opinion of the
Commission provided by Landlord.
(c) Cancellation. If Tenant's Executive Director makes a written determination that
funds are not appropriated or otherwise available to support continuation of this Lease,this
Lease shall be cancelled. A determination by Tenant's Executive Director that funds are not
appropriated or otherwise available to support continuation of performance shall be final and
conclusive.
(d) Ethics. Landlord certifies that neither it nor its Principals currently are debarred,
suspended,proposed for debarment,declared ineligible,or voluntarily excluded from entering
into this Lease by any federal or state department or agency. Landlord and its agents shall
abide by all ethical requirements that apply to persons who have a business relationship with
Tenant,as set forth in Ind.Code§4-2-6 et seq.,the regulations promulgated thereunder,and
Executive Order 04-08,dated April 27,2004. If Landlord or its agents violate any applicable
ethical standards, then: (i) Tenant may terminate this Lease immediately upon notice to
Landlord; and (ii) Landlord may be subject to penalties under Ind. Code §4-2-6-12.
(e) Non-Collusion. The undersigned attests under penalties of perjury that:(i)he or she
Is an officer of Landlord; (ii) he or she has not, and,to the best of his or her knowledge, no
other member, employee, representative, agent, or officer of Landlord has, directly or
indirectly entered into or offered to enter into any combination, collusion, or agreement to
receive or pay money or other consideration for the execution of this Lease other than that
specified herein;and(Iii)he or she has not received or paid any money or other consideration
of the execution of this Lease other than that specified herein.
22. Surrender. On the Ending Date,Tenant shall surrender the Premises to Landlord,together with all
property affixed to the Premises,broom clean,and in good order,condition,and repair,except for:(a)ordinary
wear and tear; (b)the effects of Casualty Damage that Landlord is obligated to repair or replace; and (c)the
effects of a Condemnation; provided that Tenant (a) shall not be required to surrender any of, and shall
remove, Tenant's trade fixtures, personal property, and signs; and (b) promptly shall repair any damage to
the Premises caused by removal of such trade fixtures, personal property, and/or signs. Notwithstanding
anything to the contrary set forth herein,all Alterations shall:(a)become the property of Landlord; and (b)be
surrendered with the Premises. Any property not removed from the Premises within ten days after the Ending
Date shall be deemed to be abandoned,and Landlord shall have the right to remove,store,or dispose of such
property in such manner as Landlord deems to be appropriate in its sole discretion,without liability to Tenant.
The obligations of Tenant under this Section shall survive the Ending Date.
•
23. Subordination. This Lease is and shall be subordinate to: (a) all Mortgage Liens; and (b) all
advances made,or hereafter to be made,upon the security thereof. No actor agreement by Tenant shall be
necessary to effect such subordination; provided that,within 15n days after receiving a written request from
Landlord,Tenantshall execute and deliver a subordination agreementln form and substance:(a)substantially
similar to the form attached hereto as Exhibit I; or(b)as reasonably requested by Landlord or any mortgage
lender;provided that such subordination agreement shall provide that neither:(i)the rights of Tenant under
this Lease; nor(ID the possession of the Premises by Tenant; shall be disturbed so long as Tenant is not in
default hereunder. If any proceedings are brought for the foreclosure of any Mortgage Lien,then Tenantshall:
(a) attorn to the purchaser upon any sale resulting directly or Indirectly from such proceedings; and
(b)recognize the purchaser as Landlord hereunder. Within 15 days after receiving a written request from
Landlord, Tenant shall execute and deliver an estoppel certificate in form and substance: (a) substantially
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•
similar to the form attached hereto as Exhibit J;or(b)as reasonably requested by Landlord or any purchaser,
mortgage lender, or lien holder.
•
24. Quiet Enjoyment. Landlord represents and warrants that:(a)as of the Commencement Date,It will
be the fee simple owner of the Real Estate; and (b) it has full right and authority to enter into this Lease,
subject to all restrictions of record. Landlord agrees that, if Tenant observes all of the terms and conditions
of,and performs all of its obligations under,this Lease,then,at all times during the Term,Tenant shall have
the peaceable and quiet enjoyment of possession of the Premises, without any manner of hindrance from
parties claiming under,by, or through Landlord.
25. Notice. Any notice required or permitted to be given by either party to this Lease shall be In writing,
and shall be deemed to have been given when:(a)delivered in person to the other party;(b)sent by facsimile,
with electronic confirmation of receipt;or(c)sent by national overnight delivery service,with confirmation of
receipt, addressed as follows:to Landlord at 770 3r°Avenue Southwest, Carmel, Indiana 46032, Facsimile:
317-587-0340,Attn:Kathleen D.Back;and to Tenant at City of Carmel, Indiana, One Civic Square,Carmel,
Indiana 46032, Facsimile:317-844-3498,Attn:Les Olds,with a copy to:Karl P.Haas,Esq.,W allack Somers
&Haas,One Indiana Square,Suite 1500,Indianapolis,Indiana 46204,Facsimile:317-231-9900. Either party
may change Its address for notice from time to time by delivering notice to the other party as provided above.
All payments of Rent shall be delivered to Landlord at the address set forth in,or specified in accordance with,
this Section.
•
26. Assignment. Tenant shall not:(a)assign this Lease or any interest herein;(b)sublet all or any part
of the Premises;or(c)or permit any other party,(including,without limitation,concessionaires or licensees)
to: (i) operate on, in, at, or from;or(ii)occupy, all or any part of the Premises; in any case without the prior
written consent of Landlord; provided that Tenant may:(a) assign this Lease to a City Agency;or(b)sublet
the Back Space to a City Agency; in either case without the prior written consent of Landlord, so long as
Tenant provides Landlord with:(a)notice of such assignment or subletting;and (b)a copy of the assignment
document or the sublease,as applicable. The consent of Landlord to any assignment or subletting shall not
constitute a waiver of the requirement for such consent to any subsequent assignment or subletting.
Notwithstanding any assignment or subletting: (a) Tenant shall remain fully liable to perform all of Its
obligations under this Lease;and(b)a consent by Landlord to any assignment or subletting shall not release
Tenant from such performance;provided that,in the case of an assignment or subletting to a City Agency that
assumes the obligations of Tenant hereunder in writing,Tenant shall be released from performance of any
obligations that first arise after the date of such assignment or subletting. Any transfer of this Lease by
operation of law (Including, without limitation, a transfer as a result of a change of control, merger,
consolidation,or liquidation of Tenant)shall constitute an assignment for purposes of this Lease. Landlord,
at anytime and from time to time,may assign its Interest in this Lease,and,if:(a)Landlord assigns its interest
in this Lease;and(b)the assignee assumes in writing all of the obligations of Landlord under this Lease;then
Landlord and its successors and assigns (other than the assignee of this Lease) shall be released from
performance of any obligations that first arise after the date of such assignment.
27. Indemnity. Tenant shall indemnify and hold harmless Landlord from and against all claims,
judgments, liabilities, losses,costs, and expenses(including,without limitation, reasonable attorneys'fees)
arising from, or in connection with: (a) injuries to, or death of, persons, or damage to, or loss of, property,
occurring in, on, or about the Premises, except to the extent caused by: (i) fire or other casualty for which
Landlord is required to maintain Insurance pursuant to Section 15; (ii) the gross negligence or willful
misconduct of Landlord; or (Iii) the failure by Landlord to perform any of its obligations under this Lease;
provided that the obligation of Tenant to indemnify and hold harmless Landlord pursuant to this clause shall
be subject to the terms and conditions of Subsection 15(e);(b)the condition,use,or control of the Premises;
(c) a default by Tenant under this Lease and/or the exercise by Landlord of its rights and remedies with
respect to such default; and (c)any: (i)storage or usage of any Hazardous Substances in,on, or about the
Premises; or (ii) transportation of any Hazardous Substances to or from the Premises; in either case by
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0r1r05;160r:LZ:Leass—Pedmr to CRC.vo.wpd
•
Tenant(or its employees,agents,contractors,invitees,or licensees). Subject to Subsection 15(e),Landlord
•
shall indemnify and hold harmless Tenantfrom and against all claims,judgments,liabilities,losses,costs,and
expenses (Including, without limitation, reasonable attorneys' fees) arising from, or in connection with: (a)
Landlord's gross negligence or willful misconduct; or(b) a default by Landlord under this Lease and/or the
exercise by Tenant of its rights and remedies with respect to such default. •
28. Miscellaneous.
(a) Prior Agreements. All prior representations and agreements by or between Landlord
and Tenant with respect to the subject matter of this Lease are merged into,and expressed li
in,this Lease. This Lease shall not be amended, modified, or supplemented, except by a
written agreement executed by both Landlord and Tenant. This Lease may be executed in
separate counterparts, each of which shall be an original, but all of which together shall
constitute but one and the same Instrument.
(b) Construction of Lease. Whenever in this Lease a singular word is used, it also shall
include the plural wherever required by the context and vice versa. This Lease shall be
construed in accordance with the laws of the State of Indiana . The captions of this Lease
are for convenience only and do not in any way limit or alter the terms and conditions of this
Lease. The invalidity or unenforceability of any term or condition of this Lease shall not affect
the other terms and conditions, and this Lease shall be construed in all respects as if such
invalid or unenforceable term or condition had not been contained herein. All exhibits
referenced herein are attached hereto and incorporated herein by reference.
(c) Successors. This Lease,and all of the terms and conditions hereof, shall: (i) inure
to the benefit of; and (ii) be binding upon; the respective heirs, executors, administrators,
successors,and assigns of Landlord and Tenant. All indemnities set forth in this Lease shall
survive the Ending Date.
(d) Authority. Each person executing this Lease represents and warrants that: (i)he or
she has been authorized to execute and deliver this Lease by the entity for which he or she
is signing;and (ii)this Lease is the valid and binding agreement of such entity,enforceable
in accordance with its terms.
(e) Exculpation. If there is a breach or default by Landlord with respect to any term or
condition of this Lease,then Tenant shall look solely to the equity interest of Landlord in the
Building and the Real Estate; provided that, in no event shall any deficiency judgment be
sought or obtained against any individual person or entity comprising Landlord.
(f) Time Periods. All references in this Lease to periods of days shall be construed to
refer to calendar,not business,days,unless business days are specified. Notwithstanding
anything to the contrary set forth herein, if either party is delayed in, or prevented from
observing or performing any of its obligations hereunder,or satisfying any term or condition
hereunder, in any case as the result of: (i)an act or omission of the other party; or(H) any
other cause that is not within the reasonable control of such party (including, without
limitation,inclementweather,the unavailability of materials,equipment,services or labor,and
utility or energy shortages or acts or omissions of public utility providers); then:
(i)observation,performance,or satisfaction shall be excused for the period of such delay or
prevention; and (ii) the dates, and other deadlines for observation, performance, and
satisfaction shall be extended for the same period.
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0717DB;1601:L2Aaaso-Podmr to CRC.v8.wpd
(g) Incorporation. All terms and conditions of the Side Agreement are incorporated into
this Lease by reference as if such terms and conditions had been expressly set forth herein.
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071706;1607;t2;leaso—PoS r to CRC.v6.wpd
IN WITNESS WHEREOF,Landlord and Tenant have executed this Lease on the day and
year set forth above.
LANDLORD:
PEDCOR OFFICE, C
By: C-
�'
Printed: "c-c./Y 4 - °!�
Title: /7"z f`
TENANT:
TH CITY OF CARMEL
R-e. - •' NT COMMISSION/
B �/�
Ronald E. Carter, President
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