EXHIBIT 10(p)
OFFICE SPACE LEASE
Tenant: Lincoln National Corporation
Lessor: CBD Investment Group
Effective Date: September 1, 1994
ARTICLE # PAGE #
PREMISES 1 ------------------------- 1
TERM 2 ------------------------- 1
USE 3 ------------------------- 2
RENT 4 ------------------------- 2
SERVICE AND UTILITIES 5 ------------------------- 6
COMMON AREAS 6 ------------------------- 8
ALTERATIONS 7 ------------------------- 8
REPAIRS AND MAINTENANCE 8 ------------------------- 9
PRIOR LEASE 9 ------------------------- 10
CASUALTY 10 ------------------------ 10
INDEMNITY AND INSURANCE 11 ------------------------ 11
LAWS AND REGULATIONS 12 ------------------------ 13
CONDEMNATION 13 ------------------------ 13
INSOLVENCY 14 ------------------------ 14
LESSOR'S REMEDIES FOR
TENANT'S DEFAULT 15 ------------------------ 14
ENTRY AND INSPECTION 16 ------------------------ 15
ASSIGNMENT AND TRANSFER
BY TENANT 17 ------------------------ 16
ASSIGNMENT AND TRANSFER BY LESSOR 18 ------------------------ 16
TENANT'S CERTIFICATE 19 ------------------------ 17
SUCCESSORS 20 ------------------------ 18
WAIVER 21 ------------------------ 18
RIGHT TO CONSTRUCT FIFTH FLOOR 22 ------------------------ 18
RIGHT OF FIRST REFUSAL 23 ------------------------ 19
SIGNS 24 ------------------------ 20
QUIET ENJOYMENT 25 ------------------------ 21
SEVERABILITY 26 ------------------------ 21
GOVERNING LAW 27 ------------------------ 21
HEADINGS 28 ------------------------ 21
ENTIRE AGREEMENT 29 ------------------------ 21
TIME 30 ------------------------ 21
INCLUSIVE LANGUAGE 31 ------------------------ 21
NOTICES 32 ------------------------ 21
ARBITRATION OF DISPUTES 33 ------------------------ 22
EMERGENCY REPAIRS 34 ------------------------ 23
SATELLITE DISH 35 ------------------------ 23
RESTRICTED ALTERATIONS 36 ------------------------ 24
CONSENT 37 ------------------------ 24
VACATE 38 ------------------------ 24
HAZARDOUS OR TOXIC CHEMICAL,
WASTE OR OTHER SUBSTANCES 39 ------------------------ 25
PROVISIONS REGARDING PARKING
FACILITIES 40 ------------------------ 25
RENEWAL OPTIONS 41 ------------------------ 27
TENANT'S REMEDIES FOR LESSOR'S
DEFAULT 42 ------------------------ 27
SHORT FORM LEASE 43 ------------------------ 28
BROKERS 44 ------------------------ 28
LESSOR'S AUTHORITY 45 ------------------------ 28
29180
EXHIBIT A LEASE DATA SHEET
1. Lease Execution Date: December 1, 1994
2. Parties: Lessor CBD Investment Group
7500 West Jefferson Boulevard
P. O. Box 12925
Fort Wayne, Indiana 46866
Tenant Lincoln National Corporation
200 East Berry Street
Fort Wayne, Indiana 46802
3. Suite: Entire Building Renaissance Square
(Exc. Lincoln National 200 East Berry Street
Foundation, Inc. Portion) Fort Wayne, Indiana
Area: 208,759.56 square feet
4. Term:
Twenty (20) Years
Effective Date - December 1, 1994
Termination Date - November 30, 2014
5. *Rent:
Premises:
(a) Total Annual $1,805,770.20
(b) Total Monthly $ 150,480.85
(c) Annual Rate Per Square Foot $ 8.65 (triple net)
Parking Facilities:
(d) Total Annual $ 365,285.76
(e) Total Monthly $ 30,440.48
(f) No. Spaces 584
Combined Rent - Premises and Parking Facilities
(g) Total Annual $2,171,055.96
(h) Total Monthly $ 180,921.33
*Rent subject to periodic adjustment as described in Lease.
6. Payee: CBD Investment Group
Wire Union Federal Savings Bank of Indianapolis;
Routing Number 274070484;
Credit CBD Investment Group
Account Number 560000653
7. Lessor's Taxpayer Identification Number: 35-1682861
8. Parking Facilities
Location No. Spaces Rent/Space/Mo.
No. & Adjacent to
Renaissance Square 87 53.06
Lot - SEC Clinton/Wayne 101 42.45
Lot - SWC Barr/Jefferson 93 31.83
Lot - E. of Hist. Museum 73 37.14
*Town Center Garage 230 68.98
*Parking rent to be increased from time to time as described in Lease.
Term of Parking Facilities: Twenty (20) years.
9. Not applicable.
10. Not applicable.
11. Not applicable.
12. Renewal Option(s): (a) number of periods: two.
(b) years of each period: five.
(c) Notice by February 28, 2014 (1st renewal).
(d) Notice by February 28, 2019 (2d renewal).
(e) Escalation base year: Not Applicable.
13. Escalation - Operating Expenses: Not applicable - triple net lease.
14. Escalation - Taxes: Not applicable - triple net lease.
CBD INVESTMENT GROUP LINCOLN NATIONAL CORPORATION
By: Union Holding Co., Inc.
Partner
By: __________________________
By:___________________________________
Richard D. Waterfield, President P. Kenneth Dunsire, Executive Vice
President
Lessor Tenant
9213
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LEASE
THIS LEASE is made and entered into on the date set forth at Item 1 on
Exhibit A, attached hereto and made a part hereof (hereinafter referred to as
the Lease Data Sheet), by and between the parties set forth at Item 2 on the
Lease Data Sheet.
ARTICLES
ARTICLE 1. PREMISES. For and in consideration of the rental hereinafter
specified and in further consideration of all the covenants and agreements
herein contained, the Lessor leases to the Tenant and the Tenant hereby leases
from the Lessor space, which size has been determined using current BOMA
Standards, as set forth at Item 3 on the Lease Data Sheet, hereinafter called
Premises, and also the Parking Facilities as hereafter described and defined.
The Premises and the Parking Facilities are described on the exhibit
attached hereto, marked Exhibit A-1, and by reference made a part hereof.
ARTICLE 2. TERM.
(A) The term of this Lease shall be for a period of twenty (20) years.
The term of the Lease shall commence on the Effective Date as shown on the
Lease Data Sheet. The Lease will terminate at 12:00 o'clock midnight twenty
(20) years from the Effective Date, unless this Lease shall be earlier
terminated as provided by this Lease.
Should the Tenant hold over and remain in possession of the Premises or
the Parking Facilities after the expiration of the applicable Lease Term or
any extension thereof, it shall not be deemed or be construed to be a renewal
or extension of this Lease, but shall operate to create a month-to-month
tenancy which may be terminated by the Lessor or the Tenant at the end of any
month upon thirty (30) days' prior written notice. Such holding over shall
be on the terms and conditions specified in this Lease; provided, that in the
event that Tenant holds over, rent during such hold-over period shall be 1.5
times the rent in effect at termination of the Lease. This shall not be
construed to permit or authorize holding over by Tenant.
(B)
Definitions:
"Lease Date" - the date that this Lease is signed by both parties.
"Adjustment Dates" - March 1, 2002; March 1, 2005; March 1, 2008;
and March 1, 2011.
"Effective Date" - December 1, 1994.
"Termination Date" - The last day of November, 2014.
"Lease Year" - each twelve month period beginning with the
Effective Date.
(C) Tenant has been and is an occupant of the Premises and Parking
Facilities, is familiar with them, and has had an opportunity to fully inspect
all portions thereof. Upon the Effective Date, Tenant shall be deemed to have
accepted the Premises. Tenant agrees that it will accept the Premises "as
is". Except as otherwise expressly set forth in this Lease, Lessor does not
make, nor has it made, any representation or warranty respecting the Premises,
or the Parking Facilities, or the condition thereof, including without
limitation, any warranties of habitibility or fitness for use, all of which
are expressly waived by Tenant.
(D) This Lease includes the fixtures located in the Premises.
ARTICLE 3. USE.
(A) Tenant represents and covenants that the Premises shall be used only
for the purpose of a business office and related uses reasonably deemed
necessary by Tenant to conduct its business.
(B) The Tenant shall not use or occupy or permit the leased property to
be used or occupied, nor do or permit anything to be done in or on the leased
property, in any manner which will in any way violate any certificate of
occupancy affecting the leased property, or make void or voidable any
insurance then in force with respect thereto, or which will make it impossible
to obtain fire or other insurance required to be furnished hereunder, or which
will cause or be likely to cause structural damage to the building or any part
thereof or which will constitute a public or private nuisance, and shall not
use or occupy or permit the Premises or the Parking Facilities to be used or
occupied in any manner which will violate any present or future laws or
regulations of any governmental authority. Tenant shall have the right within
the Premises to enforce a "no smoking" policy and to post appropriate signs
or notices regarding same.
ARTICLE 4. RENT.
(A) The Premises. The total annual rental for the Premises during the
term of this Lease, is shown at Item 5 on the Lease Data Sheet, and Tenant
covenants and agrees to pay such rental in equal monthly installments in the
dollar amount shown at Item 5 of the Lease Data Sheet, each in advance on the
first day of each month, commencing on the Effective Date.
(i) The total annual rent and monthly rent for the space in the
Premises is calculated as follows:
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1st Floor
17,941.62 s.f. x $8.65 = $155,195.02
2nd Floor
50,524 s.f. x $8.65 = $437,032.60
3rd Floor
50,621 s.f. x $8.65 = $437,871.65
4th Floor
50,494 s.f. x $8.65 = $436,773.10
Garden Level
37,212.94 s.f. x $8.65 = $321,891.93
Penthouse
1,966 s.f. x $8.65 = $17,005.90
Totals 208,759.56 s.f. x $8.65 = $1,805,770.20
divided by: 12 = $150,480.85
(B) The rent for the Premises shall be subject to adjustment, from time
to time during the term of the Lease, and any renewal thereof. The first
rental adjustment shall occur on March 1, 2002, and subsequent rental
adjustments shall be made on the first day of March during 2005, 2008, 2011
(the "Adjustment Dates"), and on the first day of any renewal period of this
Lease. Upon each Adjustment Date, the annual rate of rent per square foot
shall be increased as follows:
(i) Determine "prevailing market rental" which is defined to be an
average of the net rental per square foot then in effect and
charged to new partial floor tenants (on a triple net basis) in
Fort Wayne Bank Building, Summit Square, and Standard Federal
Building in downtown Fort Wayne, Indiana.
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(ii) If either the Fort Wayne Bank Building, Summit Square, or Standard
Federal Building are no longer used for commercial offices at the
time of calculation, then Norwest Center shall be substituted. If
there are not at least three of the above four buildings used for
commercial offices, then the calculation shall be based upon the
three most desirable downtown Fort Wayne office buildings then
providing first class office space, as determined by the parties,
and in the absence of agreement, then as determined pursuant to the
arbitration provisions of Article 33 of this Lease.
(iii)Multiply the result times two-thirds. In no event shall rent
be adjusted to an amount less than the rent specified at the
beginning of this Lease.
(C) Parking Facilities. This Lease includes the rental by Lessor
to Tenant of certain Parking Facilities, and Tenant agrees to pay rent for
same as shown in Item 5 on the Lease Data Sheet, in addition to the rent above
provided with respect to the Premises. The Parking Facilities are described
on Exhibit A-1. Parking rent shall be calculated and paid in advance on a
monthly basis based upon the number of spaces and monthly rent per space.
Parking rent payments will commence on the Effective Date.
(i) The total annual rent and monthly rent for the Parking Facilities
is calculated as follows:
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Location No. SpacesMonthly Rent/Space Monthly Total Rent
Surface Lot - North
and adjacent to
Renaissance Square 87 x 53.06 = 4,616.22
Surface Lot - SEC
Clinton and Wayne 101 x 42.45 = 4,287.45
Surface Lot - SWC
Barr and Jefferson 93 x 31.83 = 2,960.19
Surface Lot - Berry
East of Historical
Museum 73 x 37.14 = 2,711.22
Town Center Garage 230 x 68.98 = 15,865.40
Totals 584 30,440.48
Total Annual Parking Rent $365,285.76
(ii) Parking rent for the 230 spaces in Town Center Garage will be
increased at the rate of 2% per year, commencing on September 1, 1995,
and on September 1 of each year thereafter, until February 28, 2002.
(iii) Commencing March 1, 2002, parking rent for all parking spaces
shall be subject to adjustment on each Adjustment Date. On each
Adjustment Date, rent for such spaces shall be increased to market rates
prevailing for comparable parking spaces at that time, taking into
consideration the volume of spaces being rented; provided, that in no
event shall any such rent be less than the rent specified for such spaces
on the last day of February, 2002.
(D) Late Charges. Tenant agrees that if any monthly payment of rent due
under this Article 4 has not been paid to Lessor within fifteen (15) days
after it is due, there shall be due and owing, in addition to all other rent
due hereunder, a late charge equal to One and One-Half Per Cent (1.5%) of all
rent due for the month. Repeated late payments shall, at the election of
Lessor, be an event of default under the terms of this Lease.
(E) All sums due to Lessor shall be due and payable without relief from
valuation or appraisement laws, with attorney fees, and with interest at
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Eighteen Per Cent (18%) per annum after default. All rental is payable at the
financial institution of Lessor shown at Item 6 of the Lease Data Sheet, or
such other institution as Lessor may hereafter designate in writing. Lessor's
Taxpayer I.D. Number is shown at Item 7 on the Lease Data Sheet.
(F) This is a fully net Lease and Lessor shall not be required to
provide any services, make any payment or do any act or thing with respect to
the Premises, or the four surface parking lots that are a part of the Parking
Facilities, or the buildings and improvements thereon, or appurtenances
thereto, and the rent reserved herein shall be paid to Lessor without any
claim on the part of Tenant for diminution, setoff or abatement, and nothing
shall suspend, abate or reduce any rent to be paid hereunder, except that rent
can be abated, deducted or set off if Lessor fails to perform its obligations
as provided in this Lease.
ARTICLE 5. SERVICES AND UTILITIES. For the purposes of this Article 5,
the term "Premises" shall be defined as the entire Renaissance Square
Building, including that portion occupied by other tenants. As a part of the
consideration for this Lease, Tenant agrees to pay the following costs and
perform the following obligations for the entire building, even though Tenant
will not occupy the entire building.
(A) Tenant agrees to pay all operating expenses with respect to the
Premises. Tenant shall be responsible to furnish, at its own expense, all
necessary heat and air conditioning, all electric current, natural gas, water
and sewerage, janitorial services including trash removal and vacuuming of
carpet, building management, and all necessary building security. Tenant
further agrees to secure and maintain common areas that are used by or
available to other tenants.
(B) The heating and air conditioning shall be well maintained using good
quality parts and equipment.
(C) The Tenant shall not be liable to Lessor whenever the failure to
supply such services and utilities shall be due to necessary repairs or
improvements to the building or machinery therein deemed desirable by Tenant,
or any reason beyond Tenant's control including strikes, power shortages,
power failures, or other emergencies or governmental regulations having a
direct effect on the supplying of such services or utilities. Nonetheless,
Tenant agrees to make every reasonable effort to restore such services and to
maintain such standards as quickly and efficiently as possible in the event
of a stoppage excused hereunder. Furthermore, Tenant agrees that any repairs
or alterations shall be reasonably calculated to avoid repeated breakdowns of
a similar nature in the future.
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(D) Whenever Tenant shall be in default of its obligations hereunder,
and if such default shall not be excused by the previous paragraphs, Lessor
may give Tenant written notice to correct or begin to correct said default
within five (5) working days. If Tenant has not begun to correct or corrected
said default within fifteen (15) working days, Lessor may correct same and add
the cost thereon to future rents due.
(E) Lessor will cause tax invoices for the Premises and the four surface
parking lots to be furnished to Tenant at least fourteen (14) days prior to
due dates. Tenant agrees to pay, promptly when due, all real estate taxes,
personal property taxes, and all other taxes, assessments or charges of any
kind which may be or become a lien upon or assessed against the Premises or
the four surface parking lots (other than liens occasioned by acts of Lessor),
or for the payment of which Lessor or Tenant are or shall become liable by
reason of their estate or interest in the Premises or any part thereof, or by
reason of any right or interest under this Lease, or by reason of or in any
manner connected with or arising out of the possession, ownership, or use of
the Premises. Subject to Lessor having furnished invoices within the required
time, Tenant further agrees to pay any penalty, interest or other charge that
may be assessed because of failure to make timely payment when due. Upon
request, Tenant will furnish Lessor with proof of payment of such charges.
If Tenant shall fail to pay any amount required as aforesaid on or before the
last day upon which it may be paid without the imposition of interest or
penalty, Lessor may at its election pay the same with any interest or
penalties lawfully imposed and any amounts so paid by Lessor shall become
immediately due and payable by Tenant as additional rent. This clause is not
intended to indemnify Lessor against liability for its own state or federal
income taxes.
Tenant at its expense may contest by appropriate legal proceedings
conducted in good faith and with due diligence, the amount, validity or
application of any of the above impositions provided that (a) the proceedings
shall not interfere with the payment of rent, (b) neither the Premises or any
interest therein or any rent would be in any danger of being sold, forfeited
or lost, (c) Lessor would not be in any danger of civil or criminal liability
for failure to comply (d) in the case of any unpaid taxes, such proceedings
shall suspend delivery of a tax deed for the Premises or any part thereof, and
(e) failure of Tenant to comply would not affect the validity of any insurance
required to be maintained with regard to the Premises. Lessor will cooperate
with Tenant, at Tenant's expense, in pursuing any such contest.
ARTICLE 6. COMMON AREAS.
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(A) The parties agree that the Tenant and Tenant's customers, employees
and/or visitors, shall have the right throughout the term hereof to use, in
common with others entitled to similar use thereof, all of the interior common
areas of the building of which the Premises are a part, including all
hallways, rest rooms, loading dock, stairways, doorways and skybridge for
ingress and egress to and from the Premises and the exterior common areas to
the total premises, streets, service drives and sidewalks for ingress and
egress to and from the Premises and to and from the public streets and
highways; provided, that this shall be interpreted to refer only to the
loading dock and common areas located on the garden level and first floor,
together with ingress and egress, to the extent applicable to Lincoln National
Foundation, Inc. ("Lincoln Foundation") Lease.
(B) The Tenant shall adequately maintain and repair in good and usable
condition throughout the term of this Lease all such common areas, shall be
responsible for snow and ice removal in all exterior common areas, and shall
maintain adequate illumination of all common areas both exterior and interior.
(C) The obligations of Tenant under this Article 6 shall be defined to
include the entire Renaissance Square building, even though Tenant will not
occupy all of the building.
ARTICLE 7. ALTERATIONS. Any alteration, addition, or improvement made
by the Tenant, and any fixtures installed as part thereof, shall become the
property of the Lessor upon the expiration or other sooner termination of this
Lease (the term "fixtures" does not include light fixtures in the Board Room
on the fourth floor). The Tenant shall keep the Premises free from any and
all liens arising out of any work performed, materials furnished, or
obligations incurred by Tenant. Tenant may make alterations, additions or
improvements; provided, that no such alteration, addition, or improvement
shall weaken or endanger the structural soundness of the Premises or violate
any law, ordinance, order, governmental rule or regulation.
ARTICLE 8. REPAIRS AND MAINTENANCE. For the purposes of this Article 8,
the term "Premises" shall be defined as the entire Renaissance Square
Building, including that portion occupied by other tenants. As a part of the
consideration for this Lease, Tenant agrees to pay the following costs and
perform the following obligations for the entire building, even though Tenant
will not occupy the entire building.
(A) Tenant agrees at its expense to make all necessary repairs or
replacements to the Premises and to keep the same in a state of good repair;
to perform all maintenance and to maintain the Premises in a good, clean and
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safe condition, and to make any replacements or restoration that may from time
to time be necessary upon the Premises. Tenant agrees to do these things in
a good and workmanlike manner and to promptly pay all costs and expenses
incurred for same as and when due. Tenant's obligations to repair, maintain,
replace and restore the Premises extends to all parts of the Premises,
interior and exterior, above or below the ground, and including the sky bridge
and areas appurtenant to the Premises that are under the control of Tenant.
(B) The repair, maintenance and replacement obligations of Tenant under
this Lease include all equipment and facilities located within or used as a
part of the Premises including, without limitation, the equipment listed on
Exhibit C, attached hereto.
Between one hundred eighty (180) days and ninety (90) days before
termination of the Lease Term and again not less than fifteen (15) days prior
to such termination, Lessor may at its expense inspect the equipment and
facilities listed on Exhibit C to determine that they are in good repair and
working order. If any material defects, other than normal wear and tear, are
discovered, Tenant shall correct same at its expense prior to termination of
the initial Lease Term or extended term, as applicable.
As consideration for Tenant undertaking full responsibility for the
equipment and facilities described on Exhibit C, and the exterior walls, roof,
skylight and structural portions of the Premises, Tenant shall be entitled to
an annual rent credit in the sum of Twenty Thousand Dollars ($20,000.00), to
be credited against and deducted from the regular monthly rental during the
last month of each Lease Year during the initial term and any renewals of this
Lease.
Any dispute between the parties regarding the rights provided in this
subparagraph shall be resolved in accordance with the arbitration provisions
of this Lease.
(C) Tenant agrees to perform all required repairs, maintenance,
restoration or replacement to the Premises, whether necessitated by normal
use, passage of time, or for any other reason or cause whatever, foreseen or
unforeseen. Tenant shall not commit physical waste upon the Premises.
(D) At the end of the Lease Term, Tenant agrees to return the Premises
to Lessor in as good condition as when received, reasonable wear and tear
excepted.
(E) If at any time during the term of this Lease and any renewal or
extension thereof there shall be a default in or other noncompliance with any
of the duties imposed upon Tenant by this Article, and so long as any such
default continues for five working days after written notice has been sent to
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Tenant and Tenant has not reasonably commenced to cure such default within
those five working days, Lessor may at its election remedy or attempt to
remedy any such default or other noncompliance and expend any reasonable sums
necessary therefor at the cost and expense of the Tenant, and the sums so
expended shall be added to future rents with the next installment due and
payable to Lessor.
ARTICLE 9. PRIOR LEASE.
Reference is made to an existing lease between the parties dated February
14, 1991 (the "Prior Lease"), which Prior Lease encompasses a part of the same
Premises and Parking Facilities included in this Lease. It is the intent of
the parties that the Prior Lease will terminate on the Effective Date, and
will be replaced by this Lease. The parties therefore agree that upon the
Effective Date, the Prior Lease shall be deemed to be terminated. Any prepaid
or unpaid rent under the Prior Lease at the time of cancellation shall be
credited to or paid by Tenant, as the case may be. There shall be no
duplication of rent liability under the two leases. Notwithstanding
termination of the Prior Lease, Tenant shall continue to be responsible for
its obligations under the Prior Lease for the time prior to the Effective Date
of this Lease.
ARTICLE 10. CASUALTY. For the purposes of this Article 10, the term
"Premises" shall be defined as the entire Renaissance Square Building,
including that portion occupied by other tenants. As a part of the
consideration for this Lease, Tenant agrees to pay the following costs and
perform the following obligations for the entire building, even though Tenant
will not occupy the entire building.
(A) If any building, fixture or other improvement or personal property
now or hereafter situated on or part of the Premises should at any time during
the term of this Lease be damaged or destroyed by fire or otherwise, the
Tenant shall at its sole cost and expense restore and rebuild the Premises as
nearly as possible to the condition they were in immediately prior to such
damage or destruction, and such restoration and rebuilding, prosecuted with
reasonable diligence, shall be completed as soon as reasonably possible. The
manner of disbursement of any insurance proceeds shall be satisfactory to both
Lessor and Tenant. No damage or destruction of the Premises or any part
thereof or any of the fixtures or other property therein shall be grounds for
the termination of this Lease or relieve the Tenant from any obligation
created or imposed by virtue of this Lease, including, without limitation,
Tenant's obligation to pay rent and all other charges on the part of Tenant
to be paid, and the Tenant's obligations to perform all other covenants and
agreements required to be performed by Tenant under this Lease.
Notwithstanding the foregoing, if 75% or more of Renaissance Square is
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destroyed within 12 months of the end of the lease term, or within 12 months
of the end of a renewal term, Tenant may elect to terminate the Lease on
condition that Tenant shall assign all insurance proceeds to Lessor and, if
the insurance proceeds received by Lessor are less than sufficient to
reimburse Lessor for the full replacement cost of the damaged property, Tenant
shall pay Lessor any difference; and on the further condition that Tenant
shall notify Lessor in writing of its election within ten (10) days after such
destruction occurs.
ARTICLE 11. INDEMNITY AND INSURANCE. For the purposes of this Article
11, the term "Premises" shall be defined as the entire Renaissance Square
Building, including that portion occupied by other tenants. As a part of the
consideration for this Lease, Tenant agrees to pay the following costs and
perform the following obligations for the entire building, even though Tenant
will not occupy the entire building.
(A) All Tenant's personal property of any kind that may be on or about
the Premises shall be at the sole risk of Tenant and with the exception of
loss or damage caused by Lessor's intentional acts, Lessor shall have no
liability to Tenant for any loss or damage thereto.
(B) The entire Renaissance Square building and the Skybridge shall be
at the sole risk of Tenant, and with the exception of loss or damage caused
by Lessor's intentional acts, Lessor shall have no liability to Tenant for any
loss or damage thereto.
(C) Tenant will indemnify and save harmless Lessor and its partners from
and against any and all loss or liability arising from injury or claim of
injury during the term of this Lease to person or property of any kind arising
from or in connection with the occupation, possession, use, management or
control of the Premises and the four surface lots that are a part of the
Parking Facilities, including the buildings and improvements thereon, the
skybridge, facilities, and equipment therein, and adjoining sidewalks, or
arising out of Tenant's failure to perform Tenant's obligations under this
Lease. The covenants of Tenant to indemnify Lessor shall not apply to willful
or negligent acts of Lessor; provided, that this shall not be construed to
relieve Tenant from its obligations to maintain insurance for the benefit of
Lessor as otherwise provided in this Lease.
(D) At all times during the term of this Lease Tenant shall:
(i) Keep the buildings and improvements now erected and those which may
hereafter be erected on or be a part of the Premises or the four
surface lots that are a part of the Parking Facilities, and all
personal property thereon, insured in the name of Lessor and
Tenant, as their interest may appear, with insurance companies
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satisfactory to Lessor, against loss or damage by all risk of
physical loss, including flood and earthquake, in an amount
representing not less than 100% of the insurable replacement cost
(agreed to be $25,000,000.00 on the Effective Date), subject to
reasonable deductibles. Five years after the Effective Date, and
each five years thereafter, Lessor shall notify Tenant of insurable
replacement cost as of that date, and Tenant shall cause the
insurance amount to be adjusted accordingly;
(ii) Effect and maintain with insurance companies satisfactory to
Lessor, boiler insurance, if the same shall be appropriate, in the
amount of $1,000,000.00, and also general liability insurance on
the Premises and the four surface lots that are a part of the
Parking Facilities for the benefit of Lessor and Tenant and
covering any liability that Lessor or Tenant may have regarding the
Premises or the four surface lots that are a part of the Parking
Facilities for a total of $20,000,000.00 in respect to any one
accident, occurrence or disaster, and $2,000,000.00 in respect of
injuries, liability or damage to any person, and $1,000,000.00 in
respect to property damage; and
(iii)In the event of restoration, alterations or construction in the
Premises or the four surface lots that are a part of the
Parking Facilities that may be made by Tenant in excess of
$100,000.00 per job, also provide and keep in force for the
benefit of the Lessor, contingent liability and builder's risk
insurance in the usual form and in insurance companies
satisfactory to the Lessor as to the amount of each policy
and the identity of the respective insurers. Tenant agrees to
deliver to Lessor if requested certificates from insurance
companies with respect to the insurance coverages provided for
herein, at the commencement of the term of this Lease and from
time to time thereafter as new policies are issued. Tenant
agrees to satisfy the conditions of such policies.
(E) Lessor and Tenant each hereby waive all rights of recovery against
the other on account of loss or damage occasioned to such waiving party for
its property or the property of others under its control to the extent that
such loss or damage is insured against for the benefit of the waiving party
under any insurance policy which may be in force at the time of such loss or
damage.
ARTICLE 12. LAWS AND REGULATIONS.
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Tenant agrees at its own cost and expense to promptly comply with and
observe all laws, ordinances, statutes, regulations and orders of any
governmental body or authority, which may be applicable to the Premises or the
activities of Tenant in or about the Premises, or the use of the Premises.
ARTICLE 13. CONDEMNATION. If the whole or any part of the Renaissance
Square Building shall be taken by any public authority under the power of
eminent domain, then the term of this Lease shall cease on the part so taken
on the date possession shall be required for public use. Any rent prepaid in
advance of such date shall be refunded to Tenant, and if the amount taken is
material then Lessor and Tenant shall each have the right to terminate this
Lease upon written notice to the other, which notice shall be delivered within
thirty (30) days following the date notice is received of such taking. In the
event that neither party hereto shall terminate this Lease, Lessor shall make
all necessary repairs to the Premises and the Building in which they are
located to render and restore the same to a complete architectural unit and
Tenant shall continue in possession of the portion of the Premises not taken
under the power of eminent domain, under the same terms and conditions as are
herein provided, except that the rent reserved herein shall be reduced in
direct proportion to the amount of the Premises so taken. All damages awarded
for such taking shall belong to and be the property of the Lessor, whether
such damages be awarded as compensation for diminution in value of the
leasehold or to the fee of the Premises or the Building, provided, however,
Lessor shall not be entitled to any portion of the award made to Tenant for
removal and reinstallation of trade fixtures, loss of its business, or moving
expenses.
ARTICLE 14. INSOLVENCY. If either party to the Lease (herein called the
First Party) shall file a Petition in voluntary bankruptcy or be adjudged
bankrupt in involuntary proceedings, or make an assignment for benefit of
creditors or like arrangement or composition, or file a petition in the
federal court for reorganization, or otherwise seek relief pursuant to the
provisions of any state or federal insolvency or bankruptcy law, or to be
placed in the hands of a receiver or trustee, then the remaining party may,
at its election, terminate this Lease by written notice to the First Party;
provided, however, if the order of Court creating such disability shall not
be final by reason of pendency of such proceedings, or appeal from such order,
then the remaining party shall not have the right to terminate this Lease so
long as the First Party performs its obligations hereunder.
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ARTICLE 15. LESSOR'S REMEDIES FOR TENANT'S DEFAULT. In the event of
failure to pay any rent when due, and after fifteen (15) days' written notice
from Lessor, then Lessor, besides any other rights or remedies it may have by
law or otherwise, shall have the immediate right of re-entry and may remove
all persons and property from the Premises. Such property may be removed and
stored at the cost of and for the account of Tenant. Tenant shall have the
right to immediate access to any such property upon payment to Lessor of all
costs of removal and/or storage of such property. Should Lessor elect to
re-enter as herein provided, or should Lessor take possession pursuant to
legal proceedings or pursuant to any notice provided for by law, Lessor may
either terminate this Lease or may, from time to time, without terminating
this Lease, relet said Premises or any part thereof for such term or terms
(which may be for a term extending beyond the term of this Lease) and at such
rental or rentals and upon such other terms and conditions as Lessor in the
exercise of Lessor's sole discretion may deem advisable with the right to make
alterations and repairs to said Premises. Upon each such reletting (a) Tenant
shall be immediately liable to pay to Lessor, in addition to any indebtedness
other than rent due hereunder, the cost and expense of such reletting and of
such alterations and repairs incurred by Lessor, and the amount if any by
which the rent reserved in this Lease for the period of such reletting (up to
but not beyond the term of this Lease) exceeds the amount agreed to be paid
as rent for the Premises for such period of such reletting; or (b) at the
option of Lessor rents received by Lessor from such reletting shall be applied
first, to the payment of any indebtedness, other than rent due hereunder from
Tenant to Lessor; second, to the payment of any costs and expenses of such
reletting and of such alterations and repairs; third, to the payment of rent
due and unpaid hereunder; and the residue, if any, shall be held by Lessor and
applied in payment of future rent as the same may become due and payable
hereunder.
In the event of default by Tenant under any of the other terms and
conditions of this Lease (other than failure to pay rent), then Lessor may
give Tenant written notice of such default, and Tenant shall correct same
within thirty (30) days thereafter. If Tenant fails to correct such a
default, then the Arbitrator in any arbitration proceedings shall have the
authority to award Lessor any or all of the remedies as above enumerated in
this Article 15; provided, that default shall not be declared so long as
Tenant is making a reasonable effort to correct the problem. Should Lessor
at any time terminate this Lease for any breach, in addition to any other
remedy Lessor may have, Lessor may recover from Tenant all damages Lessor may
incur by reason of such breach, including the cost of recovering the Premises,
and including the rent reserved and charged in this Lease for the remainder
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of the stated term, all of which amounts shall be immediately due and payable
along with attorney's fees from Tenant to Lessor, and Lessor shall have no
obligation to relet.
Lessor's remedies are intended to be cumulative and, in addition to those
above set forth, Lessor shall have such other remedies as may be provided at
law or in equity.
ARTICLE 16. ENTRY AND INSPECTION.
(A) Lessor or Lessor's agents shall have the right to enter the Premises
and the Parking Facilities at all reasonable times for any of the following
purposes: to inspect the Premises; to make such repairs or additions as the
Lessor is obligated or may elect to make; and to show the Premises to a
prospective mortgagee. Any such entry shall be done at such hours and in such
manner as not to unreasonably interfere with Tenant's normal business
operations. In addition, except in the event of an emergency, Lessor shall
get Tenant's prior consent to any such entry and such consent shall not be
unreasonably withheld.
(B) Lessor or Lessor's agents may show the Premises to any prospective
tenant at any reasonable time beginning nine (9) months prior to the end of
the lease term after obtaining Tenant's consent. Such consent will not be
unreasonably withheld.
ARTICLE 17. ASSIGNMENT AND TRANSFER BY TENANT. Tenant shall not make
any assignment of this Lease nor sublet the Premises or the Parking
Facilities, or any part thereof, except to subsidiary or affiliate companies
of Tenant (meaning companies subject to common control with Tenant or
controlled by Tenant) without the prior written consent of the Lessor, which
consent will not be unreasonably withheld. Without limitation, Lessor may
reasonably withhold consent to any assignment or subletting if same would
cause Lessor to be in violation of any lease or if the proposed use by the
assignee or sublessee would be other than as permitted by this Lease. If the
rental to be paid by any permitted assignee or sublessee is higher than the
rent provided in this Lease, Lessor and Tenant shall each be entitled to
one-half of any such excess rent. Any assignment or sublease shall not
relieve or release Tenant from liability under this Lease.
ARTICLE 18. ASSIGNMENT AND TRANSFER BY LESSOR.
(A) Tenant agrees that Lessor may at any time, and from time to time,
transfer and assign its interest in this Lease either in connection with a
sale and transfer of title to the real estate in which the Premises are
situated or for the purpose of mortgaging, pledging or hypothecating said
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Lease as security for a mortgage loan on the real estate where the Premises
are located. Tenant agrees to subordinate this Lease to such mortgage, or to
agree to an attornment in event of foreclosure, if required by the mortgagee,
provided the mortgagee is a bank, insurance company, or other financial or
lending institution and further provided the holder thereof shall agree that
in the event of foreclosure the right of Tenant to possession hereunder shall
remain undisturbed so long as Tenant is not in default in the performance or
observance of the terms, covenants and conditions of this Lease. Lessor
agrees that any mortgage placed upon the Premises after the date of this Lease
shall be subject to the requirement that the proposed Mortgagee shall agree
to an attornment and nondisturbance agreement with Tenant, subject to Tenant
performing its obligations under this Lease.
(B) Lessor agrees to give timely and proper notice of any such transfer
through a duly authorized officer of Lessor. If such transfer will
necessitate a change in to whom the rent is paid, Lessor will give to Tenant
written notice of such change of payee with an original signature of Lessor
on such notice.
(C) Lessor agrees to request any mortgagee which is prior to this Lease
to execute a non-disturbance agreement recognizing Tenant's right to
possession in the event of foreclosure upon request of Tenant, and cause the
same to be recorded in the office in which such mortgages are recorded.
(D) In the event of a sale or conveyance by Lessor of Lessor's Building,
the same shall operate to release Lessor from any future liability upon any
of the covenants or conditions, express or implied, herein contained in favor
of Tenant, and in such event Tenant agrees to look solely to the
successor-in-interest of Lessor for performance of such covenants and
conditions; provided, that Lessor shall remain responsible for any default
that occurred prior to such sale or conveyance. This Lease shall not be
affected by any such sale, and Tenant agrees to recognize and attorn to
Lessor's successor-in-interest as the landlord hereunder; provided, that
Lessor's successor-in-interest agrees to recognize and not disturb Tenant's
right to possession so long as Tenant is not in default under the terms of the
Lease.
ARTICLE 19. TENANT'S CERTIFICATE. From time to time after the Effective
Date and when requested by Lessor, tenant shall execute and deliver to Lessor
within fifteen (15) days following such request a written certificate:
(a) Expressing the Effective Date and termination date hereof;
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(b) Certifying that this Lease is in full force and effect and to
the best of Tenant's knowledge has not been assigned, modified or amended
(except by such writings as shall be described);
(c) Stating that all conditions under this Lease to be performed
by Lessor have to Tenant's best knowledge been so performed or have been
waived by Tenant (or stating which conditions remains unsatisfied);
(d) Stating that there are no defenses and offsets as are then
claimed by Tenant to Tenant's best knowledge (except as set forth on
attached Exhibit, if any);
(e) Stating the amount of any advance rentals then paid by Tenant;
(f) Stating the date to which rentals have been paid.
Lessor, Lessor's mortgage lenders and any purchasers of the Premises or any
of the Parking Facilities shall be entitled to rely upon such certificate.
Tenant shall not be required to furnish a Tenant's Certificate as provided in
this Article 19 more often than twice 0in any consecutive twelve-month period.
ARTICLE 20. SUCCESSORS. All rights and liabilities herein given to or
imposed upon either of the parties to this Lease shall extend to, be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
ARTICLE 21. WAIVER. The failure of Lessor or Tenant to insist upon
strict performance of any of the covenants or conditions of this Lease shall
not be construed as a waiver for the future of any such covenants or
conditions, but the same shall be and remain in full force and effect.
ARTICLE 22. RIGHT TO CONSTRUCT FIFTH FLOOR. Tenant is granted the
right, during the initial term or any renewal of this Lease, to construct a
fifth floor on the Renaissance Square Building. Upon completion of any such
construction such additional space shall become a part of the Premises subject
to the terms of this Lease.
(a) In the event of such construction, Tenant shall thereafter be
responsible for the maintenance, repair, and replacement of all of the
building, including the part constructed by Tenant.
(b) Prior to commencing such construction, Tenant shall furnish
detailed plans and specifications for same to Lessor, for inspection by
Lessor and its representatives, and construction shall not commence until
Lessor shall have indicated its written approval for same, which approval
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shall not be unreasonably withheld. Lessor shall have forty-five (45)
working days within which to respond, and failure to do so shall be
deemed approval. If Lessor gives approval, such approval shall not be
construed to subject Lessor to liability of any kind with respect to such
construction, or to waive or alter any of Lessor's rights under this
Lease.
(c) Any such construction shall be at Tenant's sole risk, and
Tenant shall indemnify Lessor and save it harmless against any loss or
liability arising in connection therewith.
(d) In conducting such construction, Tenant shall comply with all
applicable laws, rules or regulations, shall be responsible for obtaining
all licenses or permits, and shall obtain and furnish builder's risk,
general liability, and workmen's compensation insurance, insuring Lessor
and Tenant as their interests may appear, upon such terms and in such
amounts as Lessor may reasonably require. Any damage to the remainder
of the Premises caused in connection with such construction shall be
promptly repaired by Tenant at its sole cost. In no event shall Tenant
permit such construction to damage or lessen the structural soundness and
integrity of the remainder of the building. Tenant will use all
reasonable means not to interfere with rights or business of other
tenants during construction.
(e) Any improvements constructed shall become a part of the
Premises for all purposes under this Lease. Upon termination of the
Lease all improvements constructed pursuant to this Article shall revert
to Lessor.
(f) Tenant agrees that if it commences construction of a fifth
floor on the Premises, such construction shall be fully completed on or
before the end of the Lease Term.
(g) If Tenant constructs a fifth floor on the Premises, Tenant
shall not be obligated to pay rent for same during the first ten (10)
years after a Certificate of Occupancy is issued for the newly
constructed space, but shall commence paying rent, and shall continue to
pay rent so long as this Lease remains in effect thereafter. Such rent
shall be calculated in the same manner as herein provided with respect
to other space in the Premises, based upon the number of square feet,
determined in accordance with BOMA standards.
ARTICLE 23. RIGHT OF FIRST REFUSAL. If, at any time during the term of
this Lease, Lessor desires to sell its interest in the Renaissance Square
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Building and/or one or more of the four surface parking lots that are a part
of the Parking Facilities (the "Real Estate") Lessor shall first offer to sell
the Real Estate to Tenant on the same terms and conditions as proposed in
writing by any other bona fide third party purchaser. Lessor shall submit a
copy of the written offer from such other purchaser and Tenant shall have a
period of ten (10) days from receipt in which to exercise its right to
purchase the Real Estate on the same terms and conditions. To exercise its
right of first refusal, Tenant shall advise Lessor in writing, stating that
Tenant unconditionally agrees to purchase the Real Estate on all of the
identical terms and conditions set forth in the submitted offer. If the offer
includes the Renaissance Square Building, Tenant shall also agree to pay an
additional One Hundred Thousand Dollars ($100,000.00) in cash at closing, over
and above the purchase price stated in the submitted, proposed offer. If the
submitted proposed offer includes only surface parking lots, Tenant shall, in
addition to accepting the other terms of such offer, agree to pay a premium
of Ten Thousand Dollars ($10,000.00) over the proposed purchase price if the
lot is North of and adjacent to Renaissance Square or the SEC Clinton/Wayne
lot, and a premium of Five Thousand Dollars ($5,000.00) if the offer pertains
to one of the other surface parking lots. If Tenant does not provide written
indication of its intent to exercise its right of first refusal, then Lessor
shall be entitled to complete the sale of the Real Estate to the original
proposed purchaser. None of the foregoing provisions regarding a right of
first refusal shall be applicable to:
(i) Lessor's granting of any mortgage, deed of trust, security
interest, collateral assignment, or similar interest with respect to the
Real Estate or this Lease;
(ii) Any sale, at a foreclosure sale or by a deed in lieu of
foreclosure, to a bona fide Mortgagee or to the bona fide holder of any
such mortgage, deed of trust, security interest, collateral assignment,
or a similar interest or to any other bona fide purchaser;
(iii) Any sale or other transfer of a partnership or other interest
in Lessor or in any Partner of Lessor; or
(iv) Any sale or other transfer of the Leased Premises after the
initial term of the Lease. The provisions hereof shall not preclude
preliminary discussions, whether oral or in writing, and negotiations
between Lessor and any prospective purchaser concerning terms and
conditions for the sale or other transfer of Lessor's interest in the
Real Estate.
If Tenant declines its right of first refusal with respect to any proposed
offer, and that proposed sale does not close for any reason, then Tenant shall
continue to have its right of first refusal to a subsequent proposed offer for
the same property.
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ARTICLE 24. SIGNS. Tenant may, at its sole cost and expense, install
signs on the Renaissance Square Building, grounds, and skybridge. No such
signs shall be installed until the plans and specifications for same have been
submitted to Lessor, and Lessor has given its written consent, which consent
shall not be unreasonably withheld. Lessor shall notify Tenant of its consent
or denial of consent within thirty (30) days after receipt of plans and
specifications; provided, that if Lessor does not respond within such thirty
(30) days, it will be deemed to have given its consent. In no event, however,
shall the placement of signs conflict with the rights of any other tenant in
Renaissance Square. Notwithstanding the foregoing, the parties agree that
Tenant may not change the name of Renaissance Square. Tenant shall not
without Lessor's permission alter or modify any of the four exterior monuments
at Renaissance Square. Tenant may place an electric or permanent sign on the
Skybridge, and if so, any such sign shall remain as a part of the Premises
upon expiration of this Lease. Lessor reserves the right to place temporary
signs on the Skybridge from time to time; provided, that such signs shall not
interfere with signs placed by Tenant; and further provided that Lessor shall
first obtain Tenant's consent, which shall not be unreasonably withheld.
ARTICLE 25. QUIET ENJOYMENT. Lessor hereby warrants peaceful and quiet
possession of the Premises against all parties claiming adverse interest
thereto or under Lessor.
ARTICLE 26. SEVERABILITY. The invalidity of any provision or clause
herein contained shall not serve to render the balance of this Lease
ineffective or void and the same shall be construed as if such had not been
herein set forth.
ARTICLE 27. GOVERNING LAW. Any interpretation of this Lease, or any
other determination of the rights or liabilities of the parties hereto shall
be governed by the law of the State of Indiana.
ARTICLE 28. HEADINGS. The captions and table of contents are inserted
solely as a matter of convenience and for reference and shall not constitute
a part of this Lease, shall not affect its meaning or effect, nor shall they
define, limit, or describe the scope or intent of this Lease.
ARTICLE 29. ENTIRE AGREEMENT. This Lease shall constitute the entire
agreement of the parties hereto. This Lease cannot be changed, modified, or
discharged orally, but only by an agreement in writing, signed by the party
against whom enforcement of the change, modification or discharge is sought.
ARTICLE 30. TIME. Time is of the essence for all the provisions of this
Lease
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ARTICLE 31. INCLUSIVE LANGUAGE. Use of inclusive language in this Lease
shall be construed to mean by example, and not to be limiting.
ARTICLE 32. NOTICES.
(A) Any notice which Lessor is required or desires to give Tenant shall
be deemed sufficiently given or rendered if it is in writing and is sent by
Registered, Certified or overnight mail, addressed to Tenant at: 1300 South
Clinton Street, Fort Wayne, Indiana, 46801, attention: Assistant Vice
President-Director Facilities; together with a copy to the attention of
Manager, Investment Section, Law Division, 200 East Berry Street, Fort Wayne,
Indiana, 46802.
(B) Any notice which Tenant desires or is required to give to Lessor
shall be deemed sufficiently given or rendered if it is in writing and is sent
by Registerd, Certified or overnight mail addressed to Lessor, P. O. Box
12925, 7500 West Jefferson Boulevard, Fort Wayne, Indiana, 46866, attention:
Mr. Richard D. Waterfield, with a copy to Howard L. Chapman, Esq., 215 East
Berry Street, Fort Wayne, Indiana, 46802.
(C) The proper address or person designated for receipt of any notices
may be changed by Tenant or by Lessor upon written notice to the other party
of such change in the manner above provided.
(D) Notices shall be deemed to have been received and effective three
(3) business days after mailing.
ARTICLE 33. ARBITRATION OF DISPUTES. In the event of any dispute,
controversy or claim between the parties involving this Lease, or the breach
thereof, or involving the Premises or the Parking Facilities, or involving the
rights and obligations of the parties arising from the tenancy created, either
before, during, or after termination of this Lease, the parties agree to
submit the dispute, at the election of either party, to binding arbitration.
Arbitration shall be the sole means of resolving such disputes.
(A) Arbitration shall be commenced by either party filing a written
demand with any appropriate office of the American Arbitration Association
(AAA). If the AAA no longer exists, the parties shall use any successor to
AAA and, if none, then such other organization as the parties may agree upon
and, in the absence of such agreement, then such organization as may be
selected by the Judge of the Circuit Court of Allen County, Indiana, upon
request of either party.
(B) The selection of the Arbitrator and the arbitration proceedings
shall be conducted in accordance with the Commercial Rules and Regulations of
the American Arbitration Association.
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(C) Any arbitration hearing shall be conducted in Allen County, Indiana.
(D) The Arbitrator shall be authorized to employ such experts as he may
deem necessary to assist with the arbitration, and the costs of such experts
shall be included as a part of the costs of arbitration.
(E) Each party shall bear its own costs in connection with any
arbitration proceedings, including its attorney fees; provided, that the costs
and fees of the Arbitrator shall be borne equally by the parties.
(F) At any arbitration hearing, the party that requested arbitration
shall carry the burden of proof and shall present its evidence first. The
Arbitrator may provide such remedy as he may deem appropriate; provided, that
the Arbitrator shall have no authority to award penalties or damages in the
nature of punitive damages, the right to claim such punitive damages being
expressly waived by both parties. The Arbitrator shall render a written
decision setting out the reasons for his conclusions.
(G) The decision of the Arbitrator shall be final, conclusive, and
binding on all parties. The parties shall faithfully observe, abide by and
perform the terms of any award by the Arbitrator. If any party shall
wrongfully refuse to submit any dispute to arbitration, or to comply with the
decision of the Arbitrator, the other party shall be entitled to recover its
costs, including reasonable attorney fees, in enforcing these arbitration
provisions.
ARTICLE 34. EMERGENCY REPAIRS. If an emergency situation occurs and
is in need of immediate remedy, either party may take appropriate steps to
make needed repairs. If it is later determined that the other party was
responsible for the cost of such repairs under the terms of this Lease, then
the responsible party shall reimburse the other party for such costs..
ARTICLE 35. SATELLITE DISH. Notwithstanding anything to the contrary
contained in the Lease, Tenant may erect a satellite dish or similar type
structure (item) on top of the Building provided the following: (1) it shall
provide and install such item at its sole cost and expense; (2) it shall
submit to the Lessor for its review and approval its plans and specifications
of such an item and the desired location and placement for the erection
thereof and shall install such item in a good and workmanlike manner and in
accordance with the reasonable directions of Lessor relative thereto; (3) it
shall have obtained all the necessary permits and approvals which may be
required from all lawful authorities (including those responsible for
overseeing historic structures) to erect and install such item. Tenant may
continue to keep and maintain said item on the Building and shall be
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responsible to pay for all costs associated with the maintenance and operation
of such item and shall insure against all damages and liabilities arising
therefrom throughout the term of this Lease. If Lessor has not notified
Tenant regarding its written approval or refusal to approve plans and
specifications as above provided within thirty (30) business days after
receipt from Tenant, they shall be deemed approved by Lessor.
Any such item erected by Tenant shall be removed by Tenant in a good and
workmanlike manner upon the expiration or sooner termination of this Lease.
Lessor further covenants to exercise best efforts and fully cooperate, at
Tenant's sole cost and expense, to secure the permits which may be required
for the item.
Such a dish shall not be placed on the elevator tower roof nor the
Penthouse roof, or installed in such a way as to adversely affect the
architectural appearance of the building. Tenant shall indemnify Landlord and
save it harmless against any loss or liability arising from or in connection
with such satellite dish. Upon removal, Tenant shall restore the Premises to
their prior condition.
ARTICLE 36. RESTRICTED ALTERATIONS. Tenant agrees that if it alters,
disturbs, removes, or damages those portions of the Premises itemized on
Exhibit F to this Lease, then upon termination of the Lease, such items will
be restored to their original condition by Tenant at its sole expense.
Tenant may make alterations to the First Floor and Garden Level, and
shall not be required to restore such areas to their original condition;
provided, that upon termination of the Lease Tenant shall, in any event, leave
the First Floor and Garden Level in such condition that they are rentable in
a manner consistent with a standard, high-quality office building in Fort
Wayne, Indiana, including rest rooms.
Provisions of this Article shall not be interpreted to apply to interior
space rented by the Lincoln Foundation in Renaissance Square.
ARTICLE 37. CONSENT. Whenever the consent or approval of Lessor and/or
Tenant is required under the terms of this Lease, Lessor and Tenant agree that
such consent or approval shall not be unreasonably withheld.
ARTICLE 38. VACATE. Tenant shall have the right to vacate the premises
at any time and to remove its property therefrom without affecting its right
to use and occupy the Premises or its liability for rental payments as
provided in this Lease, and such vacation or removal will not be deemed a
violation of any covenant or obligation under this Lease nor give rise of
itself to any right of action by Lessor thereunder, so long as Tenant
continues to pay rent and otherwise fulfill all of its obligations under this
Lease.
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ARTICLE 39. HAZARDOUS OR TOXIC CHEMICAL, WASTE OR OTHER SUBSTANCES.
Lessor represents that, to the best of Lessor's knowledge, neither Lessor, nor
any affiliate, subsidiary, agent or employee of Lessor, has ever caused or
permitted any hazardous or toxic chemical, waste or other substance to be
placed, held, located or disposed on, under or at the Leased Premises or in
the building, and that no concentrations of asbestos are present in the
building or the Premises. For purposes of the foregoing sentence,
"concentrations of asbestos" means either material containing more than 1%
asbestos or the excess of (1) the standards issued by the United States
Environmental Protection Agency ("EPA"), or (2) the "action level" established
by the U.S. Department of Labor, Occupational Health and Safety Administration
("OSHA"), or (3) standards established by applicable state regulatory agency
rules.
Tenant covenants and represents that, to the best of Tenant's knowledge,
neither Tenant, nor any affiliate, subsidiary, agent or employee of Tenant,
has ever caused or permitted any hazardous or toxic chemical, waste or
substance to be placed, held, located or disposed of on, under or at the
Premises, and that no such substances (including asbestos) have been or will
be placed in the Premises or Parking Facilities by Tenant except as may be
used in conducting Tenant's normal business and maintenance, but in any event
in compliance with law. Tenant shall, in its occupation and use of the
Premises and the Parking Facilities, comply with all environmental laws,
orders, rules or regulations and will indemnify Lessor against any loss or
liability caused by Tenant's violation of same.
ARTICLE 40. PROVISIONS REGARDING PARKING FACILITIES. The parties make
the following agreements regarding the Parking Facilities:
(a) The term of the Lease for all Parking Facilities shall be the
same as the term of the Lease.
(b) The Lease for the surface parking lot at the southwest corner
of Barr and Jefferson Streets shall be subject to early termination at
Tenant's election. Any early termination shall occur on an anniversary
of the Effective Date. Tenant may terminate the Lease on that lot by
giving written notice to Lessor not less than sixty (60) days prior to
the first anniversary of the Effective Date, or at least sixty (60) days
prior to any subsequent anniversary date. In the event of such early
termination, Tenant's right of first refusal with respect to such lot (as
set forth in Article 23 of this Lease) shall also terminate.
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(c) Tenant will pay all repair, maintenance, replacement and other
costs in connection with the four surface parking lots that are a part
of the Parking Facilities. Without limitation, Tenant shall be
responsible for maintenance of gates, plants, resurfacing, striping,
cleaning, snow removal and security. Tenant will make timely payment of
all taxes and assessments that may be imposed on such parking lots.
Subject to timely receipt of invoices from Lessor, Tenant shall pay any
penalties or charges imposed because of late payment of taxes or
assessments. Tenant will not be required to pave the surface lot at the
southwest corner of Barr and Jefferson Streets. If any governmental
authority shall subsequently require that lot to be paved, such paving
shall be at the cost of Lessor.
(i) Tenant will perform the aforesaid services and obligations
for all portions of the four surface parking lots and will honor
the rights of other persons who may be entitled to park on such
lots. This includes 9 spaces on the Museum Lot for benefit of the
Historical Museum. Tenant will receive no rentals for said
Historical Museum spaces.
(ii) At such time as any spaces described in (i) above become
available to Tenant, Tenant shall commence paying rent for same, as
per Exhibit A (the Lease Data Sheet), item 8, and Lessor shall be
relieved of further obligation to reimburse Tenant for the pro-rata
share of expenses allocable to such spaces.
(d) Town Center Garage. Lessor shall make a total of 230 parking
spaces in Town Center Garage available to Tenant. Town Center Garage is
located west of Renaissance Square, being on the Northwest corner of
Clinton and Wayne Streets in Fort Wayne, Indiana.
(i) 230 parking spaces allocated to Tenant shall be reserved to
Tenant as follows: Tenant shall have all of the sixth and seventh floors
of the Garage and approximately one-half of the fifth floor of the
Garage. The portion of the fifth floor allocated to Tenant shall, to the
extent practical, consist of contiguous spaces.
(ii) Tenant may at its cost identify the spaces reserved to it in
the Garage
(g) Diagrams of the four surface parking lots that are a part of the
Parking Facilities are attached as Exhibits H-1, H-2, H-3, and H-4, and made
a part of this Lease.
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ARTICLE 41. RENEWAL OPTIONS.
(A) The Tenant shall, if it is not in default, have the option to extend
this Lease for a successive period of five (5) years by giving written notice
of its intent to renew to Lessor not less than nine (9) months prior to the
termination of the original Lease Term. If the option to renew is exercised,
all provisions and covenants of this Lease shall be in full force and effect
during such renewal term. At the beginning of such renewal term, the rent
shall be subject to adjustment as provided in Article 4(B) of this Lease. If
the renewal option is exercised, the rent for all Parking Facilities during
such renewal shall be increased to market rates prevailing for comparable
parking spaces at the time that the renewal period begins; provided, that in
no event shall any such rent during the renewal period be less than the rent
in effect at the time of the termination of the original Lease Term.
(B) The Tenant shall, if it has exercised its first five year renewal
option and if it is not in default, have a second option to extend this Lease
for a successive period of five (5) years by giving written notice of its
intent to renew to Lessor not less than nine (9) months prior to the
termination of the prior renewal period. If the option to renew is exercised,
all provisions and covenants of the Lease shall be in full force and effect
during such renewal term. At the beginning of such renewal term, the rent
shall be subject to adjustment as provided in Article 4(B) of this Lease. If
the renewal option is exercised, the rent for all parking facilities during
such renewal shall be increased to market rates prevailing for comparable
parking spaces at the time that the renewal period begins; provided, that in
no event shall any such rent during the renewal period be less than the rent
in effect at the time of termination of the prior renewal period.
ARTICLE 42. TENANT'S REMEDIES FOR LESSOR'S DEFAULT. In the event of
default by Lessor under any of the terms and conditions of this Lease to be
performed by Lessor, then Tenant may give Lessor written notice of such
default, and Lessor shall correct same, or commence reasonable efforts to
commence same, within thirty (30) days thereafter. If Lessor fails to correct
such a default, then the Arbitrator in any arbitration proceeding shall have
the authority to award Tenant any or all remedies that might be provided at
law or in equity; provided that default shall not be declared so long as
Lessor is making a reasonable effort to correct the problem. In addition to
all remedies provided by law and all remedies provided elsewhere in this
Lease, the Arbitrator shall have the authority to award Tenant the following
remedies:
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1. The right to proportionate abatement of rent;
2. The right to cure such default and to deduct the costs of such
performance from rents subsequently payable under this Lease until
such costs have been fully reimbursed to Tenant; or
3. If the Arbitrator finds that Lessor is in default, has failed to
correct the default, and has not made or is not making a reasonable
effort to correct the default, then the Arbitrator may permit
Tenant to cancel and terminate this Lease by written notice to
Lessor.
ARTICLE 43. SHORT FORM LEASE. At either Tenant's or Lessor's election,
the parties agree to execute and record a Short Form of this Lease.
ARTICLE 44. BROKERS. Tenant warrants that it has had no dealings with
any real estate broker or agent in connection with the negotiation of this
Lease. Tenant knows of no real estate broker or agent who is or might be
entitled to a commission in connection with this Lease. Lessor shall be
responsible for any commissions or fees due to any broker with whom Lessor may
have had dealings.
ARTICLE 45. LESSOR'S AUTHORITY. Lessor covenants and represents that
it is the owner of the Premises and the four surface parking lots that are a
part of the Parking Facilities, and that Lessor has the capacity and authority
to enter into and execute this Lease. Lessor covenants and represents that
it is authorized to make this lease with respect to parking spaces in Town
Center Garage.
EXECUTED at Fort Wayne, Indiana, this day of _____________, 1994.
CBD INVESTMENT GROUP LINCOLN NATIONAL CORPORATION
By: Union Holding Co., Inc.
Partner
By: ____________________________ By:_______________________________________
Richard D. Waterfield, President P. Kenneth Dunsire, Executive Vice
LESSOR
TENANT
8655
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EXHIBIT A-1
PREMISES
The Premises are located in Renaissance Square, an office building
located on the South half of the block located in downtown Fort Wayne,
Indiana, which block is bounded on the North by Berry Street, on the East by
Barr Street, on the South by Wayne Street, and on the West by Clinton Street.
The address of Renaissance Square is 200 East Berry Street, Fort Wayne,
Indiana, 46802. The Premises include the entire Renaissance Square building
(including the Skybridge) with the exception of portions occupied by other
tenants (approximately 16,450 square feet on the first floor, and 11,181
square feet on the Garden Level, leased to The Lincoln National Foundation,
Inc.). Renaissance Square is legally described as Lots 119 to 124 inclusive
in the Original Plat of Fort Wayne, Indiana.
THE PARKING FACILITIES
1. Surface Lot - North of and adjacent to Renaissance Square - 87 spaces.
Legal description: Lots 113 to 118 inclusive in the Original Plat of
Fort Wayne, Indiana.
2. Surface Lot - Southeast corner Clinton & Wayne - 101 spaces. Legal
description: Lots 173, 174, 175, and 176 in the Original Plat of Fort
Wayne, Indiana.
3. Surface Lot - Southwest corner Barr & Jefferson - 93 spaces. Legal
description: Lots 178, 179, and 180 in Hanna's Addition to Fort
Wayne, Indiana.
4. Surface Lot on Berry, East of Historical Museum - 73 spaces. Legal
description: Lots 64 and 65, Final Plat of County Addition, plus Lot
272 and part of Lot 1 in Final Plat of Samuel Hanna's First Addition,
Fort Wayne, Indiana (the "Museum Lot").
5. Town Center Garage - Northwest corner of Wayne and Clinton Streets -
230 spaces.
9227
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EXHIBIT C
CBD/LINCOLN NATIONAL LEASE
Renaissance Square
Property Management Responsibilities
Preventative Maintenance Check List
1. HVAC System:
Chillers
Boilers
Controls
Fan Coil Units
2. Elevators:
3. Electrical:
Switch gear
Each floor's electrical panels
4. Fire Protection System:
Pumps
Detectors
Electrical panels/Pull stations
5. Sewage Ejector
9236
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EXHIBIT F
CBD/LINCOLN NATIONAL LEASE
RESTRICTED ALTERATIONS
1. Public restrooms located on the second, third and fourth floors on
either side of the elevators north of the Atrium.
2. The Atrium areas, including roof, openings in floor, railings, and
surrounding walls, and doors required by Code.
3. Exterior of Renaissance Square Building and Skybridge.
In the event Tenant removes any plumbing, wiring, Halon system, or other
facilities, they will be capped at the wall for easy access and re-attachment
at the time of Lease end. Tenant will maintain records, to be available to
Lessor, as to all such locations.