HomeMy WebLinkAboutNo. 2202 approving a form of lease for 117/119 E. Wayne Street and authorizing the execution/delivery thereof and other related matters40paq's
RESOLUTION NO. 2202
A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION
APPROVING A FORM OF LEASE FOR 117/119 E. WAYNE STREET AND
AUTHORIZING THE EXECUTION AND DELIVERY THEREOF AND OTHER
RELATED MATTERS
WHEREAS, the South Bend Redevelopment Commission (the "Commission"), the
governing body of the Department of Redevelopment of the City of South Bend, Indiana (the
"City") and the City of South Bend, Indiana, Redevelopment District, exists and operates under
the provisions of Indiana Code § 36-7-14, as amended (the "Act"); and
WHEREAS, the Commission owns the parking facility located at 121 E. Wayne Street in
the City and leases the retail space commonly known as 117/119 E. Wayne Street in the City (the
"Premises") in accordance with the Act; and
WHEREAS, on December 2, 2005, the Commission approved a letter of intent from
Brenda Markin on behalf of herself and a company she will be creating (the "Tenant") to lease
the Premises to the Tenant; and
WHEREAS, a form of Lease between the Commission and the Tenant has been prepared
and submitted to the Commission; and
WHEREAS, the Commission desires to approve the form of Lease, subject to final
negotiations with the Tenant, and to authorized the President or Vice-President and the Secretary
to execute and attest, respectively, on behalf of the Commission, said Lease with such changes as
may be approved by said officers;
NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND
REDEVELOPMENT COMMISSION AS FOLLOWS:
I . The Commission hereby approves the form of the Lease presented to the
Commission at this meeting, and the Secretary of the Commission is instructed to include a copy
of said Lease with the minutes of this meeting.
2. The Commission hereby authorizes and directs the President or Vice-President of
the Commission to negotiate, execute and deliver, and the Secretary to attest, the Lease on behalf
of the Commission in the form approved by the Commission, with such changes either in farm or
substance as may be approved by the President or Vice-President and Secretary, upon the advice
legal council, with such approval to be conclusively evidenced by such execution.
3. This Resolution shall take effect immediately upon its adoption by the
Commission.
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r V.
ADOPTED at a meeting of the South Bend Redevelopment Commission held on
January 3, 2006 at 1308 County-City Building, 227 W. Jefferson Boulevard, South Bend, Indiana
46601.
ATTEST:
Sig tore
C�rezor .1;.oes, Secretary
t�fie and Title
C7
SOUTH BEND REDEVELOPMENT
COMMISSION
Signature
Marcia I. Jones, President
Printed Name and Title
isC.-Documents and Settings Vwilliam Ucal Settings I Tentp �G WViewer1RC Resolution Approving a Form of Lease (State Cafe)(version 2).doc
0, J� LEASE
THIS LEASE (the "Lease ") is made by and between the City of South Bend, Indiana, Department of
Redevelopment, acting by and through the South Bend Redevelopment Commission (the "Landlord ") and Brenda C.
Markin d/b /a The State Caf6 & Catering (the "Tenant ") as of the date of last execution hereof by Landlord or Tenant
(the "Effective Date ").
WITNESSETH:
ARTICLE I.
BASIC LEASE PROVISIONS
1.1. Basic Lease Provisions. The following basic provisions of this Lease ( "Basic Lease Provisions ")
constitute an integral part of this Lease and are set forth in this Section 1.1 for the convenience of the parties. Each
reference in this Lease to a Basic Lease Provision shall be construed to incorporate all of the terms provided for
under such provisions.
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(a) Leased Premises:
Defined in Section 2.1 hereof, consisting of
approximately 2,844 square feet of "Floor Area."
(b) Term:
Initial Term of Sixty (60) Months, with one (1) option of
Sixty (60) months to extend the Initial. Term., all as
provided for in Sections 3.1 and 332 hereof.
(c) Tenant's Use:
The Premises will be used as a cafd that may display art
work and other related or compatible retail products,
either alternatively or in conjunction with such use, as a
catering or another type of restaurant facility.
(d) Tenant's Trade Name:
The State Cafe & Catering (or such other trade name
taken by Tenant).
(e) Landlord's Address:
1200 County -City Building
227 West Jefferson Boulevard
South Bend, Indiana 46601
(f) Tenant's Address:
54485 Oak Road
P.O. Box 3355
South Bend, Indiana 46628
Attn: Brenda C. Markin
Phone: (574) 234 -0030
Facsimile: (574) 234 -5855
(g) Lease Month:
A "Lease Month" shall mean a calendar month,
beginning on the Commencement Date as defined in
Section 3.1 (such that if the Commencement Date is not
the first day of a calendar month, then, for purposes of
the definition of the Initial Term, the first Lease Month
shall be deemed to be the first day of the first calendar
month following the Commencement Date).
(h) Security Deposit:
$1,185.00 payable in cash or by certified check.
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(i)
The Building:
St. Joseph/Wayne Parking Garage, commonly referred
Initial Term
to as 121 E. Wayne Street, South Bend, Indiana, as more
1 -8 $5.00
$14,220.00
particularly described in Exhibit A, attached hereto and
9 -20 $6.00
$17,064.00
made a part hereof, and depicted in Exhibit B, attached
21 -32 $7.00
$19,908.00
hereto and made a part hereof.
(j)
Effective Date:
The date of last execution hereof by Landlord or Tenant.
(k)
Delivery Datc:
The date to which possession is delivered to the Tenant
The Base Rent for any Lease Month during an Extended Term (or extension of the Initial Term) shall be the greater
of $9.00 per square foot or the prevailing market rate for space similar to the Premises as determined
as determined in Section 4.1.
(1)
Commencement Date:
The date on which the "Initial Term" commences as
determined in Section 3.1.
(m)
Landlord's Work Completion Date.
The date on which the Landlord substantially completes
the Landlord's Work as determined in Section 4.1.
1.2. Base Rent:
Lease Month PSF
Annual Calculation
Monthly
Initial Term
1 -8 $5.00
$14,220.00
$1,185.00
9 -20 $6.00
$17,064.00
$1,422.00
21 -32 $7.00
$19,908.00
$1,659.00
33-44 $8.00
$22,752.00
$1,896.00
45-60 $9.00
$25,596.00
$2,133.00
The Base Rent for any Lease Month during an Extended Term (or extension of the Initial Term) shall be the greater
of $9.00 per square foot or the prevailing market rate for space similar to the Premises as determined
by an
independent appraiser.
ARTICLE II.
PREMISES.
2.1. Premises. Landlord is the owner of the Building. Landlord, in consideration of the Rent, as
hereinafter defined, to be paid and the covenants to be performed by Tenant, hereby leases to Tenant, and Tenant
hereby leases from Landlord, that certain premises located in the Building and depicted on Exhibit C (the
"Premises "), subject to the terms and conditions of this Lease. Landlord reserves the right, with respect to the
Building, to modify, increase or decrease: the number, location, dimension, size, and height of buildings and other
improvements in the Building; and the identity and type of other tenants. Tenant's interest in the Premises is and
shall be subject to all easements, restrictions, liens, encumbrances, rights -of -way, or other matters now or hereafter
of record affecting the Premises or the Building.
2.2. Common Areas. Tenant shall have the right, in common with the Landlord and all other tenants in
the Building, to use the areas in and around the Building designated by Landlord from time to time as common
areas, including, without limitation, the sidewalks, the west alley way, washrooms and the refuse area (the
"Common Areas "), subject to the rules and instructions set forth by the Landlord from time to time. Landlord shall
operate the Common Areas for their intended purposes in such a manner as Landlord shall determine to be necessary
or appropriate, including, without limitation, that Landlord at any time may close or change any part of the Common
Areas as it determines to be necessary or appropriate. Notwithstanding the foregoing, Tenant shall be responsible
for (i) operating and maintaining the washrooms, (ii) snow and ice removal, window washing, awning maintenance
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and igther exterior building maintenance that is not a structural or roof repair in nature, sidewalk cleaning, and (iii) if
security is requested by Tenant and agreed to by Landlord, all security expenses.
2.3. {Quiet Enip3ment. Landlord warrants that it is the owner in fee simple of the Building, and that it
has full right and authority to enter into this Lease, subject to all easements, restrictions, liens, encumbrances, rights -
of -way and other matters 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, subject to the terms and
conditions of this Lease, 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.
ARTICLE III.
TERM.
3.1. Initial Term. The "Initial Term" shall: (a) commence on the date (the "Commencement Date ")
that is the earlier of: (i) that date which is one hundred and twenty (120) days after the Delivery Date (as defined in
Section 4.1), (ii) the date on which Tenant opens its business in the Premises to the public, or (iii) May 1, 2006; and
(b) end on that date which is Sixty (60) Lease Months after the Commencement Date, unless earlier terminated in
accordance with the provisions of this Lease (the "Termination Date "). Tenant hereby covenants that within five (5)
days after the Commencement Date, it shall execute the Commencement Certificate attached hereto as Exhibit E and
made a part hereof, and deliver it to Landlord.
3.2. Extension Options. Provided that no Event of Default, as hereinafter defined, or any facts which
with the giving of notice or passage of time, or both, would constitute an Event of Default, exists at the time of the
exercise of any option to extend the Term hereof or exists at the end of the Initial Term or any Extended Term,
Tenant may renew this Lease and extend the Initial Term hereof for up to one (1) additional period of sixty (60)
months (each such sixty (60) month period being referred to as an "Extended Term "), with the consent of the
Landlord, on the same terms and provisions as provided in this Lease (except that the Base Rent due in such
Extended Terms shall be as provided in Section 1.2), by delivering written notice of the exercise of such option to
extend to Landlord not later than one hundred and eighty (180) days before the expiration of the then - current Term
of this Lease. If Tenant fails to exercise any of its options to extend the Term hereof in the time periods set forth in
this Section 3.2, all then- unexercised options to extend shall immediately terminate and have no further force or
effect, without further notice from Landlord. Any reference in this Lease to the "Term" shall mean the Initial Term
as it may be extended pursuant to this Section 3.2.
3.3. Holdina Over. If Tenant fails to surrender the Premises upon the expiration of the Term or earlier
termination of the Lease (it being agreed that Tenant shall not be permitted to so hold over without Landlord's
written consent), Tenant shall pay Landlord for each day of such holding over a sum equal to one hundred and
twenty -five percent (125 %) of the Base Rent payable during the preceding Lease Month prorated for the number of
days for such holding over, plus Tenant's share of all other amounts which Tenant would have been required to pay
hereunder had this Lease been in effect (the "Holdover Rent "). If Tenant holds over without Landlord's written
consent for a period in excess of thirty (30) days without any action from Landlord to dispossess Tenant, Tenant
shall be deemed to occupy the Premises on a tenancy from month -to -month at the Holdover Rent, and all other
terms and provisions of this Lease shall be applicable to such period. At any time, either party may terminate such
tenancy from month -to -month upon written notice delivered to the other parry at least thirty (30) days in advance.
Tenant hereby waives any and all notice to which Tenant may otherwise be entitled under the laws of the State of
Indiana (the "State ") as a prerequisite to a suit against Tenant for unlawful detention or possession of the Premises.
Tenant shall Indemnify, as hereinafter defined, Landlord from any Loss, as hereinafter defined, resulting from such
hold over, including without limitation any liability incurred by Landlord to any succeeding tenant of the Premises.
ARTICLE IV.
CONSTRUCTION
4.1. Landlord's Work. Landlord shall perform the work described in Exhibit D, attached hereto and
0 made a part hereof (the "Landlord's Work") substantially in accordance with the plans and specifications for
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r Landlord's Work, as such plans and specifications may be modified by Landlord as appropriate to complete
Landlord's Work (the "Plans "). The "Delivery Date" shall be the date upon which the Landlord grants Tenant
occupancy of the Premises, subject to allowing the Landlord access to the Premises to complete the Landlord's
Work. Landlord's Work shall be substantially completed in accordance with the Plans in a manner that shall not
prevent Tenant from using the Premises for the purpose of: (a) conducting its normal business operations; or (b)
completing Tenant's Work, as hereinafter defined. After the Landlord's Work has been substantially completed, the
Landlord shall deliver written notice to Tenant that the Landlord's Works has been substantially completed, the date
of which completion and delivery of such notice shall not be later thirty -five (35) days after the Delivery Date unless
otherwise agreed to by the Tenant (the "Landlord's Work Completion Date ").
4.2. Tenant's Work.
(a) Plans. Within forty-five (45) days after the Effective Date, Tenant shall submit to Landlord two
(2) copies of the complete plans and specifications (the "Tenant's Plans ") for the work Tenant deems necessary to
prepare the Premises for occupancy by the Tenant (the "Tenant's Work "), if any. Within fifteen (15) business days
after Landlord's receipt of Tenant's Plans, Landlord shall notify Tenant of any failures of the Tenant's Plans to meet
with Landlord's approval. Tenant shall, within ten (10) days after receipt of any such notice, cause the Tenant's
Plans to be revised to the extent necessary to obtain Landlord's approval and to be resubmitted for Landlord's
approval. When Landlord has approved the original or revised Tenant's Plans, Landlord shall initial and return one
(1) set of approved Tenant's Plans (the "Approved Plans ") to Tenant. Tenant shall not commence Tenant's Work
until Landlord has approved Tenant's Plans, which approval shall not be unreasonably withheld.
Landlord's review and approval of Tenant's Plans shall not be deemed to be an assumption of responsibility
by Landlord for the accuracy, sufficiency, or propriety of Tenant's Plans, pursuant to applicable laws, rules,
ordinances, or regulations. If the Approved Plans are changed as a result of conditions placed on Tenant as a
prerequisite to obtaining a permit, Tenant shall submit such changes to Landlord for approval, and Tenant shall not
proceed further with the affected portions of Tenant's Work until Landlord has approved the changes. Such changes
as are approved by Landlord shall become part of the Approved Plans.
(b) Performance. Tenant shall, in a manner consistent with the Approved Plans: (i) install its
leasehold improvements and equipment; and (ii) complete all other Tenant's Work. Prior to performing Tenant's
Work, Tenant shall: (i) obtain all permits, licenses, and approvals required for Tenant to perform Tenant's Work; and
(ii) deliver to Landlord: (A) copies of such permits, licenses, and approvals; and (B) evidence reasonably
satisfactory to Landlord that Tenant has procured workers' compensation, builder's risk, general liability, and
personal and property damage insurance as Landlord reasonably may require. Tenant shall: (i) perform Tenant's
Work: (A) in accordance with the Approved Plans and all permits, licenses and approvals; and (B) in a good and
workmanlike manner and in compliance with all applicable laws, statutes, and/or ordinances, and any applicable
governmental rules, regulations, guidelines, orders, and/or decrees (the "Laws "); (ii) ensure that all contractors,
subcontractors, laborers, and suppliers performing work or supplying materials are paid in full; and (iii) observe and
perform all of its obligations under this Lease (except its obligation to pay Rent as provided herein) at all times after
the Delivery Date through the Commencement Date.
(c) Abatement for Construction. Landlord shall abate the Base Rent for the period beginning with the
Delivery Date through and including the Commencement Date to allow Tenant an opportunity to improve the
Premises and commence its business operations (the "Construction Abatement ") in consideration of Landlord's
rights under Section b.3 (a , subject to the terms and conditions of this Section 4.2(c), effective only upon satisfaction
of the last to occur of the following conditions: (i) Tenant opens its business in the Premises to the public; (ii)
Landlord has inspected the Premises and confirmed that Tenant has completed Tenant's Work substantially in
accordance with the Approved Plans, subject to identified "punch- list" items that do not prevent Tenant from safely
operating the Premises for the purpose of conducting its normal business operations; and (iii) Tenant has delivered
to Landlord final lien waivers and copies of paid invoices with respect to all work performed by Tenant. The Base
Rent abated shall be valued the same as the Base Rent the first Lease Month, as set forth at Section 1.2, and
notwithstanding any other provision of this Lease, shall, if not abated pursuant to this Section 4.2(c), be due and
payable one hundred eighty (180) days from the Delivery Date.
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4, ARTICLE V.
RENT.
5.1. Rent. Commencing on the Commencement Date, Tenant shall pay to Landlord, in lawful United
States currency without notice, demand, deduction, set -off, counterclaim or recoupment, and without relief from
valuation or appraisement laws, the Base Rent, as set forth in Section 1.2, and the Additional Rent (as hereinafter
dcfined) (collectively, the "Rent "). If the Commencement Date is not the first day of a calendar month, the Base
Rent for that period from the Commencement Date to the date immediately preceding the first Lease Month shall be
prorated at a rate based on the Base Rent for the first Lease Month. Base Rent and Additional Rent shall be paid in
equal monthly installments commencing on the Commencement Date and thereafter during the entire Term on or
before the first day of each calendar month, in advance. Tenant's obligations under this Section 5.1 shall survive the
Termination Date.
5.2. Additional Rent. Commencing on the Delivery Date, Tenant shall pay, as additional rent (the
"Additional Rent "), all other sums, charges, and payments required to be paid by Tenant under this Lease, whether
or not the same are designated as Additional Rent including, but not limited to, the Tax Expenses, Utility Charges
(excepting such Utility Charges attributable to the Premises from the Delivery Date to the Landlord's Work
Completion Date), and Disposal Charges. If any sum or charge is not paid at the time provided in this Lease, then it
shall be collectible as Additional Rent with the next monthly installment of Base Rent; provided that nothing
contained herein shall be deemed to suspend or delay the payment of such sum or charge, or to limit any right or
remedy of Landlord with respect to its nonpayment.
5.3. Late Charge. Any amount of Rent that is overdue shall bear interest at the lesser o£ (a) the
maximum rate payable by Tenant under State law; or (b) the rate of eighteen percent (18 %) per annum from the date
when such amount is due and payable under this Lease until the date paid. If any amount of Rent is paid more than
five (5) days after its due date, then Landlord shall be entitled to a late payment fee of One Hundred Dollars
($100.00) in addition to the interest charge set forth in this Section 5.3.
5.4. Tax Expenses. Tenant shall pay to Landlord, as Additional Rent, an estimate of all taxes and
assessments of any nature levied or assessed from the Delivery Date through the Term, on, against, or with respect
to the Building as a result of Tenant's occupancy or business of the Premises (the "Taxes "). The Tenant shall pay
all such Additional Rent pursuant to Section 5. 1, with the estimated Taxes for the period from the Delivery Date to
the Commencement Date being due on the Commencement Date. After the close of each tax year during the Term,
Landlord shall deliver to Tenant a written statement setting forth the actual Taxes allocable to the Premises for the
preceding tax year. If the estimated payments made by Tenant are less than the actual Taxes allocable to the
Premises, Tenant shall pay the difference to Landlord within twenty (20) business days after delivery of Landlord's
written statement to Tenant. If the Delivery Date or the date on which the Term ends is on a day other than the
beginning or end of a tax year, Tenant's liability for the Taxes shall be prorated on a per diem basis with reference to
the tax year. Tenant shall also pay to Landlord, as Additional Rent, any and all costs and expenses incurred by
Landlord in connection with an appeal of the Taxes (which expenses with the Taxes shall be referred to as "Tax
Expenses "). The Tenant shall properly pay any tax levied on, against or with respect to Tenant's leasehold interest
in the Premises and any sales, income or other taxes or assessments, which if not properly paid, may cause
encumber (x) the Premises, (y) its improvements or equipment the removal of which may cause damage to the
Premises, or (z) any removable equipment or assets of the Tenant in a manner that may significantly affect the
Tenant's meet its obligations under this Lease. The provisions of this Section 5.4 and obligations of Tenant
hereunder shall survive the Termination Date.
5.5. Utilities. Commencing on the Landlord's Work Completion Date, Tenant shall: (a) promptly pay
all charges for sewer, water, gas, electricity, telephone, and other utility services used in, on, at, or from, the
Premises beginning as of the Delivery Date (all of which utilities shall be separately metered to the Premises or
estimated as to Tenant's portion) (the "Utility Charges "); and (b) deliver to Landlord, upon demand, receipts or other
satisfactory evidence of payment of the Utility Charges or if paid by Landlord such charges shall be paid by Tenant
to Landlord as Additional Rent.
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00 r 5.6. Trash Removal. Commencing on the Delivery Date, Tenant shall: (a) promptly pay all charges
related to the storage and removal of trash, garbage, rubbish and refuses from the Premises beginning as of the
Delivery Date (which storage and removal costs shall be separately billed for the Premises or estimated as to
Tenant's portion) (the "Disposal Charges "); and (b) deliver to Landlord, upon demand, receipts or other satisfactory
evidence of payment of the Disposal Charges or if paid by Landlord such charges shall be paid by Tenant to
Landlord as Additional Rent.
ARTICLE VI..,
ALTERATIONS AND MAINTENANCE OF AND REPAIRS TO THE PREMISES
6.1. Landlord Repairs. Landlord shall, at its expense: (a) keep the foundations and roof of the
Premises in good order, repair and condition, (b) maintain the exterior walls of the Premises in a structurally sound
condition, and (c) replace any heating, ventilating, and cooling equipment and systems serving the Premises as of
the Delivery Date (the "HVAC Systems") unable to be repaired; provided however that to the extent there is damage
caused by any act or omission of Tenant or its employees, agents, contractors, invitees, or licensees, the Tenant shall
be solely responsible for said damage. Except as provided in this Section 6. 1, Tenant receives the Premises "as is"
and Landlord shall not be obligated- to make repairs, replacements or improvements of any kind to or for the
Premises, or any equipment contained therein, all of which such repairs, replacements, or improvements shall be the
responsibility of Tenant.
6.2. Tenant Repairs. Except for repairs to be performed by Landlord pursuant to Section 6. 1, Tenant
shall: (a) keep the Premises clean, neat, and safe, and in good order, repair and condition, including, without
limitation, that Tenant shall make all maintenance, repairs, alterations, additions, or replacements to the Premises as
may be required by any Law, or by fire underwriters or underwriters' fire prevention engineers; (b) keep all glass in
windows, doors, fixtures, skylights, 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; (c) paint and decorate the Premises as
necessary or appropriate to comply with the terms and conditions of this Section 6.2; and (d) keep clean and neat,
and in good order and condition all Common Areas, to the extent such areas are used by the Tenant. Tenant shall
enter into a maintenance contract with a reputable company approved by Landlord (the "Maintenance Contract "),
pursuant to which Maintenance Contract such company shall institute a regularly scheduled program of preventive
maintenance and repair of the HVAC Systems that: (i) complies with the requirements of the applicable
manufacturers', suppliers', and contractors' warranties; and (ii) keeps and maintains such items in good order,
condition, and repair at all times; provided that: (y) the Maintenance Contract shall require regular reports to be
given to Tenant detailing the preventive and other maintenance and repair performed with respect to the HVAC
Systems (the "Maintenance Reports "); and (z) Tenant promptly shall forward copies of all Maintenance Reports to
Landlord.
63. Tenant Alterations.
(a) Alterations. Tenant, at its sole cost and expense, may install in the Premises such improvements
and equipment as Tenant reasonably determines to be necessary or appropriate to conduct its business. Tenant, at its
cost and expense, also may make non- structural alterations or improvements to the interior of the Premises if. (i)
Tenant delivers to Landlord written notice describing the proposed alteration or improvement with particularity, and
provides to Landlord copies of any plans and specifications for the alteration or improvement and (ii) on the
Termination Date, Tenant surrenders the part of the Premises altered or improved in as good a condition as on the
date that Tenant accepts the Premises. Tenant shall not, without the prior written consent of Landlord, make any:
(1) alterations, improvements, or additions of or to the exterior of the Premises; or (2) except as described above,
structural or other alterations, improvements, or additions of or to any part of the Premises. All alterations,
improvements, or additions to the Premises, exclusive of moveable equipment, shall become the sole property of
Landlord on the Termination Date.
(b) Permits. Before making any alterations, improvements, or additions, Tenant shall: (i) obtain all
permits, licenses, and approvals necessary for the completion of the improvements, alterations, or additions; and (ii)
0 deliver to Landlord: (A) copies of such permits, licenses, and approvals; and (B) evidence reasonably satisfactory to
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Landlord that Tenant has procured workers' compensation, builder's risk, general liability, and personal and property
damage insurance as Landlord reasonably may require. Tenant shall at Tenant's cost and expense: (1) complete the
construction of any alterations, improvements, or additions in a good and workmanlike manner, and in compliance
with all Laws and all permits, licenses and approvals; and (2) assure that all contractors, subcontractors, laborers,
and suppliers performing work or supplying materials are paid in full.
(c) Liens. Tenant shall not suffer or cause the filing of any mechanic's or other lien against the
Premises or the Building. Tenant shall further not enter into any contract or agreement that provides explicitly or
implicitly that a lien may be attached against the Premises, the Building or any improvements If any mechanic's or
other lien is filed against the Premises, 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 for the performance of Landlord's Work, then Tenant
shall: (i) cause such lien to be discharged of record within twenty (20) days after notice of the filing by bonding or
as provided or required by law; or (ii) provide evidence satisfactory to Landlord that the lien is being contested by
proceedings adequate to prevent foreclosure of the lien, together with indemnity satisfactory to Landlord (in an
amount equal to at least one hundred fifty percent (150 %) of the claimed lien) to Landlord within thirty (30) days
after notice of the filing thereof. All liens suffered or caused by Tenant shall attach to Tenant's interest only.
Nothing in this Lease shall be deemed or construed to: (1) constitute consent to, or request of, any party for the
performance of any work for, or the furnishing of any materials to, Tenant; or (2) 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 the Premises or the Building or Landlord's interest therein.
6.4. Signs. Tenant shall not affix or maintain upon the exterior of the Premises or make visible from
the exterior any sign, advertising placard, name, insignia, trademark, or descriptive material, without the prior
written approval of Landlord, which approval shall not be withheld unreasonably. No such materials may be
displayed or attached which are against any applicable law or regulation.
ARTICLE VII.
USE.
7.1. Use of the Premises. At all time during the Term, Tenant shall:
(a) Use the Premises solely for Tenant's Use, as defined in Section l.I(c), doing business under
Tenant's Trade Name, as defined in Section 1.1(d), and for no other use or purpose;
(b) Operate the business located on the Premises at times customary to the area and acceptable to the
Landlord, provided that such operation may be interrupted for such reasonable periods approved by Landlord, which
approval shall not be unreasonably withheld, as may be necessary to inspect, repair, restore, or remodel the
Premises;
(c) Conduct the business located on the Premises at all times in a high grade and reputable manner so
as to help establish and maintain a high reputation for the Building.
During the Term, Tenant will be considered to "Operate" or be "Operating" in the Premises so long as Tenant is
open for business in compliance with this Section 7.1.
7.2. Covenant to Open. Tenant covenants that it will open and begin Operating in the Premises by the
Commencement Date or a date which is not later than sixty (60) days after the Commencement Date.
7.3. Compliance with Law. Tenant shall promptly comply with all federal, state and local Laws and
ordinances and lawful orders and regulations affecting the Premises, and the health, cleanliness, safety, construction,
occupancy and use of same, in effect from time to time. Tenant shall promptly and fully comply with all federal,
state and local Laws and ordinances in effect from time to time prohibiting discrimination or segregation by reason
of race, color, religion, disability, gender or national origin or otherwise.
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a 7.4. Operation by Tenant. Tenant covenants and agrees that it: will not place or maintain any
merchandise or vending machines outside the building on the Premises; will store garbage, trash, rubbish and other
refuse in the dumpster in the west alley or in rat -proof and insect -proof containers with adequate screening to hide
such garbage, trash, rubbish and refuse from view on the Premises and the Building, and will remove the same
frequently and regularly, all at Tenant's cost; will not permit any sound system to be audible or objectionable
advertising medium to be visible outside the Premises; will not commit or permit waste or a nuisance upon the
Premises; will not permit or cause objectionable odors to emanate or be dispelled from the Premises; will not
distribute advertising matter to, in or upon any portion of the Building; will not permit the loading or unloading or
the parking or standing of delivery vehicles outside any area designated therefor, nor permit any use of vehicles
which will interfere with the use of any portion of the Building; will not use any portion of the Building for
promotional activities, to include without limitation rides, carnival type shows, outdoor shows, automobile or other
entertainment or product shows not apparently compatible with the operation of the Tenant's business as described
in Section 1.1 {c) as determined in the Landlord's sole discretion; will comply with all Laws, recommendations,
ordinances, rules and regulations of governmental, public, private and other authorities and agencies, including those
with authority over insurance rates, with respect to the use or occupancy of the Premises, and including, but not
limited to, the Occupational Safety and Health Act ( "OSHA ") and the Americans With Disabilities Act ( "ADA "), as
the same may be amended from time to time. 'Tenant covenants and agrees that it will not serve liquor or any other
alcoholic beverages in or from the Premises unless Tenant first obtains the written consent of Landlord, which may
be granted or withheld in Landlord's sole and absolute discretion.
7.5. Storage. Tenant shall store in the building on the Premises only merchandise and products which
Tenant intends to sell at, in, or from the Premises within a reasonable time after receipt thereof.
7.6. Sales and Use. Tenant shall not permit, allow, or cause to be conducted in the Premises: (a) a
public or private auction; or (b) a sale that would indicate to the public that Tenant (i) is bankrupt, (ii) is going out of
business, or (iii) has lost or is preparing to terminate its possession of the Premises. The Premises shall not be used
except in a manner consistent with the general high standards of the neighborhood, zmd shall not be used in a
disreputable or immoral manner or in violation of federal, state or local Laws or ordinances. Tenant shall not
operate the Premises either in whole or in part as a clearance, outlet, off -price, or discount store, provided that
nothing in this Section 7.6 is intended to affect Tenant's pricing policies.
7.7. Emissions and Hazardous Materials.
(a) Emissions. Tenant shall not, without the prior written consent of Landlord:
i. make, or permit to be made, any use of the Premises or any portion thereof which emits, or
permits the emission of, an unreasonable amount of dust, sweepings, dirt, cinders, fumes or odors into the
atmosphere, the ground or any body of water, whether natural or artificial (including without limitation rivers,
streams, lakes, ponds, darns, canals, sanitary or storm sewers, or flood control channels), which is in violation of any
Laws;
ii. create, or permit to be created, any sound level which will interfere with the quiet enjoyment of
any real property by any tenant or occupant of the Building, or which will create a nuisance or violate any Laws;
iii. transmit, receive, or permit to be transmitted or received, any electromagnetic, microwave or other
radiation which is harmful or hazardous to any person or property in, on or about the Premises or the Building, or
which interferes with the operation of any electrical, electronic, telephonic or other equipment wherever located,
whether on the Premises or the Building;
iv. create, or permit to be created, any ground vibration that is discernible outside the Premises; or
V. produce, or permit to be produced, any intense glare, light or heat except within an enclosed or
screened area and then only in such manner that the glare, light or heat shall not be discernible outside the Premises.
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(b) Hazardous Materials. Tenant shall be permitted to use and store those Hazardous Materials, as
defined below, that are used in the normal course of Tenant's Use at the Premises, so long as such Hazardous
Materials are used, stored, handled and disposed of in compliance with applicable Law. Subject to the exception
contained in the preceding sentence, Tenant shall not, without the prior written consent of Landlord, cause or permit,
knowingly or unknowingly, any Hazardous Material to be brought or remain upon, kept, used, discharged, leaked, or
emitted in or about, or treated at, the Premises or the Building. As used in this Lease, "Hazardous Material(s)" shall
mean any hazardous, toxic, infectious or radioactive substance, material, matter or waste which is or becomes
regulated by any federal, state or local Law, ordinance, order, rule, regulation, code or any other governmental
restriction or requirement, and shall include, but not be limited to, asbestos, petroleum products, and the terms
"Hazardous Substance" and "Hazardous Waste" as defined in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. Sec. 9601 et seq. ( "CERCLA "), and the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Sec. 6901 et seq. ( "RC RA "), and the term "Hazardous
Chemical" as defined in OSHA (hereinafter "Environmental Laws ").
In addition to, and in no way limiting, Tenant's duties and obligations under this Lease, should Tenant .
breach any of its duties and obligations as set forth in this Section 7.7(b), or if the presence of any Hazardous
Material(s) on the Premises results in contamination of the Premises, the Building, any land other than the Building,.
the atmosphere, or any water or waterway (including without limitation groundwater), or if contamination of the
Premises or of the Building by any Hazardous Material(s) otherwise occurs for which Tenant is otherwise legally
liable to Landlord for damages resulting therefrom, Tenant shall Indemnify, as hereinafter defined, Landlord from
and against any Loss, as hereinafter defined, arising during or after the Term as a result of such contamination. The
term "Loss," in this Section 7.7(b) includes, without limitation, costs and expenses incurred in connection with any
investigation of site conditions or any cleanup, remediation, removal, fines, monitoring, or restoration work required
or imposed by any federal, state or local governmental agency or political subdivision because of the presence of
Hazardous Material(s) on or about the Premises or the Building, or because of the presence of Hazardous Material(s)
anywhere else which came or otherwise emanated from Tenant or the Premises. The indemnification contained in
this Section 7.7(b) shall survive the Termination Date,
7.8. Inspections. Tenant shall permit Landlord and its employees, agents and contractors to enter the
Premises at reasonable times (or at any time in the event of an emergency) for the purpose of. (a) inspecting the
Premises; (b) making repairs, replacements, additions, or alterations to the Premises, or to the building in which the
Premises is located; and (c) showing the Premises to prospective purchasers, lenders, and tenants. During the last
one hundred and eighty (180) days of the Term, Landlord may put a "For Lease" sign in the storefront window of
the Premises.
7.9. Parking Spaces. Landlord shall reserve and provide six (6) parking spaces in the St.
Joseph/Wayne Parking Garage in the Building, for Tenant's use in connection with Tenant's operation and use of
the Premises. Tenant may not sell, assign, sublet or otherwise make available any or all of such parking spaces for
any other purpose or use.
ARTICLE VIIL
INSURANCE AND INDEMNIFICATION
8.1: Tenant's Liability insurance. Tenant, at its expense, shall maintain during the Term, commercial
general liability insurance on the Premises covering Tenant as the named insured and identifying Landlord as an
"additional insured" with terms satisfactory to Landlord and with companies qualified to do business in the State, for
limits of not less than $700,000.00 for bodily injury, including death resulting therefrom, and personal injury for any
one (1) person in any one (1) occurrence, $5,000,000.00 for such injuries for all persons for any one (1) occurrence,
$1,000,000.00 property damage insurance, or a combined single Iimit in the amount of $6,000,000.00.
Notwithstanding the foregoing, Tenant shall, at all times, maintain said general liability insurance naming Landlord
as an "additional insured" for bodily injury, including death resulting thereform and personal injury with limits
sufficient to cover the Landlord's exposure to liability for said injuries, which amounts are set forth at Indiana Code
§ 3413 -3 -4, as the same may be amended, superseded or recodified from time to time.
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' 8.2. Hazardous Materials Coverage. Notwithstanding the above mentioned commercial general
liability insurance policy limit for Tenant, if Tenant does or intends to bring, possess, use, store, treat or dispose any
Hazardous Material in or upon the Premises or the Building, Tenant shall purchase additional public liability
insurance and supply Landlord with certificates of insurance reflecting the additional insurance, with coverage of no
less than $5,000,000.00 and purchase environmental impairment liability insurance with coverage of not less than
$5,000,000.00 with a deductible of not greater than $50,000.00 to insure that anything contaminated with or by the
Hazardous Material be removed from the Premises and/or the Building, and that the Premises and/or the Building be
restored to a clean, neat, attractive, healthy, sanitary and non- contaminated condition.
8.3. Dram Shop Coverage. In addition to the insurance required under this Article VIII, for any such
period of time as Tenant shall serve liquor or other alcoholic beverages in or from the Premises, Tenant agrees to
maintain minimum limits of coverage of at least $2,000,000 covering "liquor law" liability (sometimes also known
as "dram shop" insurance) which shall insure Tenant, as the named insured, and Landlord, as the additional insured,
and all those claiming by, through or under Landlord, against any and all claims, demands or actions for personal or
bodily injury to, or death of, one person or multiple persons in one or more accidents, and for damage to property, as
well as for damages due to loss of means of support, loss of consortium, and the like so that at all times Landlord
will be fully protected against claims that may arise by reason of or in. connection with the sale and dispensing of
liquor and alcoholic beverages in and from the Premises..
8.4. Tenant's Additional Insurance. Tenant shall comply with the provisions of the applicable worker's
compensation laws, and shall insure its liability thereunder. Tenant, at its expense, shall maintain plate glass
insurance covering all exterior plate glass or windows in the Premises
8.5. Policies. All policies of insurance required by this Article to be maintained by Tenant shall: (a) be
in a form, and maintained with an insurer, reasonably satisfactory to Landlord; and (b) provide that such policies
shall not be subject to cancellation, termination, or change without written notice to Landlord at least thirty (30)
days in advance. Tenant shall deposit with Landlord the policy or policies Hof insurance required to be maintained by
Tenant pursuant to this Article VII I, or proper certificates of such insurance, duly executed by the insurance
company or the general agency writing such policies and effective not later than the Commencement Date. Tenant
shall deposit appropriate renewal or replacement policies or certificates with Landlord not less than ten (10) days
prior to the expiration of any such policy or policies. Tenant shall also furnish Landlord with certificates evidencing
such coverages from time to time upon Landlord's request. If Tenant shall fail to timely procure or renew any of the
insurance required under this Article VIII, Landlord may obtain replacement coverage and the cost of same plus a
$500.00 fee shall be deemed Additional Rent payable by Tenant with the next installment of Rent thereafter
becoming due and payable.
8.5. Indemnity.
(a) Definition of "Loss." The term "Loss," as used throughout this Lease, shall mean any and all
claims, demands, damages, expenses, fees, costs, fines, penalties, suits, proceedings, actions, causes of action, and
losses of any and every kind and nature (including, without limitation, sums paid in settlement of claims and for
attorney's fees and court costs).
(b) Definition of "Indemnify." The term "Indemni — " as used throughout this Lease, shall mean that
Tenant shall indemnify Landlord, save it harmless and, at Landlord's option and with attorneys approved in writing
by Landlord, defend Landlord, and its contractors, agents, employees, members, managers, officers, and
mortgagees, if any, from any Loss arising out of the condition specified in the particular indemnity provision.
(c) General Indemnity. Except for loss, injury or damage caused solely by the willful misconduct of
Landlord, its employees, contractors, or agents, Tenant covenants to Indemnify Landlord for any .Loss in connection
with or arising from any use or condition of the Premises or occasioned wholly or in part by any act or omission of
Tenant, its agents, contractors, employees, licensees, invitees or visitors, occurring on or about the Premises and in
the case of Tenant, its agents, contractors or employees occurring on or about the Building. Except for loss, injury
or damage caused by the negligent acts or willful misconduct of Tenant, its employees, contractors, invitees,
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licensees, visitors or agents, Landlord covenants to Indemnify Tenant, and save it harmless, from and against any
and all claims, actions; damages, injuries, accidents, liability and expense, including reasonable attorneys' fees, in
connection with or arising from, or occasioned wholly or in part by, any act or omission of Landlord, its agents,
contractors or employees occurring on or about the Building, excluding the Premises.
(d) Covenant to Hold Harmless. Landlord shall be defended and held harmless by Tenant from any
liability or claims for damages to any person or any property in or upon the Premises unless caused by the willful act
of Landlord, including but not limited to the person and property of Tenant and its officers, agents, employees, and
shall pay all expenses incurred by Landlord in defending any such claim or action, including without limitation
attorney fees of Landlord and any judgment or court costs. All property kept, stored or maintained in the Premises
shall be so kept, stored or maintained solely at the risk of Tenant
The Landlord shall not be liable for damage caused by hidden defects or failure to keep said Premises in
repair (excepting any such failures relating to the Landlord's obligations under Section 6.1 of this Lease), and shall
not be liable for any damage done or occasioned by or from plumbing, gas, water, steam, or other pipes, or
sewerage, or the bursting or leaking of plumbing or of any plumbing or heating fixtures or waste or soil pipe existing
in connection with the Building or Premises, nor for damage occasioned by water, nor for any damages arising from
negligence of co- tenants or other occupants of the Building, or the agents, employees or servants of any of them, or
of any owners or occupants of adjacent or contiguous property.
The Landlord shall not be liable for any injury to the Tenant; its employees and agents or any other person,
occurring on said Premises, irrespective of whether said injury is caused by a defect in said Premises or by reasons
of said Premises becoming out of repair or arising from any other cause whatsoever, and the Landlord shall not be
liable for damage to Tenant's property or to the property of any other person which may be located in or upon said
Premises and the Tenant agrees to indemnify and save harmless the Landlord from any and all claims arising out of
injuries to persons or property occurring on said Premises.
8.7. Release of Subro ation. Each party hereto does hereby release and discharge the other party from
any liability, which the released party would have had (but for this section) to the releasing party; arising out of or in
connection with any accident or occurrence or casualty: (a.) which is or would be covered by a fire and extended -
coverage policy with vandalism and malicious mischief endorsement or by a sprinkler leakage or water damage
policy, regardless of whether or not such coverage is being carried by the releasing party, and (b.) to the extent of
recovery under any other casualty, which accident, occurrence or casualty may have resulted in whole or in part
from any act or neglect of the released party, its officers, agents or employees; and insofar as Tenant is the releasing
party, it will also release the other tenants in the Building from any such liability as if the other tenants were each a
released party under this section. Notwithstanding anything contained in this Lease to the contrary, Landlord shall
not be liable for any damage to person or party arising from the negligent act or omission or willful misconduct of
any other tenant or occupant of the Building, and Tenant hereby expressly waives any claim for such damages.
8.8. The Tenant will not allow said Premises to be used for any purpose that will increase the rate of
insurance thereon, nor to be occupied in whole or in part by any other person.
ARTICLE IX.
CASUALTY AND CONDEMNATION.
9.1. Casual
(a) Insubstantial Damage. If the Premises is damaged by fire or any other casualty (the "Casual
Damage "), and the estimated cost to repair such Casualty Damage is less than twenty -five percent (25 %) of the
estimated cost to replace the Premises, then Landlord shall repair such Casualty Damage so long as sufficient
insurance proceeds recovered as a result of such Casualty Damage remain after: (i) Landlord's mortgagee has
withheld any amount of the proceeds to which it is entitled, if any; and (ii) deduction for any expenses incurred in
collecting the insurance proceeds. Notwithstanding anything to the contrary set forth herein, in no event shall
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Landlord be required to repair or replace: (1) the improvements to the Premises made by Tenant; or (2) any trade
fixtures, equipment, or inventory of Tenant (or any other person or entity) located on, in, or about the Premises.
(b) Substantial Damage. If (i) there is Casualty Damage to the Premises, and the cost to repair such
Casualty Damage is equal to or greater than twenty -five percent (25 %) of the estimated cost to replace the Premises;
(ii) there is Casualty Damage to the building of which the Premises is a part, and the cost to repair such Casualty
Damage is equal to or greater than twenty -five percent (25 1/6) of the cost to replace such building; or (c) there is
Casualty Damage to the buildings (taken in the aggregate) in the Building, and the cost to repair such Casualty
Damage is equal to or greater than twenty-five percent (25 %) of the cost to replace such buildings; then Landlord
may elect either to: (1) repair or rebuild the Premises, the building of which the Premises is a part, or the aggregate
buildings in the Building, as applicable; or (2) terminate this Lease upon delivery of written notice to Tenant within
ninety (90) days after the occurrence of the Casualty Damage.
(c) Partial Abatement of Rent. 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.
(d) Repair of Tenant Improvements. If Landlord is required or elects to repair the Premises, then
Tenant shall repair or replace: (i) the alterations, improvements, and additions to the Premises made by Tenant;
and/or (ii) any equipment of Tenant located on, in, or about the Premises.
(e) Notice. Tenant shall give Landlord prompt written notice of any Casualty Damage in or to the
Premises or the Common Areas of which Tenant has knowledge.
9.2. Condemnation. If: (a) all or a substantial part of the Premises is taken or condemned for public or
quasi- public use under any statute or by the right of eminent domain; or (b) all or a substantial part of the Premises
is conveyed to a public or quasi- public body under threat of condemnation (collectively, the "Condemnation "); and
the Condemnation renders the Premises unsuitable for use for Tenant's Use, then, at the option of either Landlord or
Tenant exercised within ninety (90) days after the Condemnation occurs: (i) this Lease shall terminate as of the date
possession of all or such part of the Premises is taken by, or conveyed to, the condemning authority; (ii) all Base
Rent shall be apportioned as of the date that possession of all or such part of the Premises is taken by, or conveyed
to, the condemning authority; and (iii) all obligations hereunder, except those due or mature, shall cease and
terminate. If there is a Condemnation with respect to: (A) more than twenty-five percent (25 %) of the square
footage of the building of which the Premises is a part; or (B) more than twenty-five percent (25 %) of the aggregate
square footage of the Building; then Landlord, at its option, exercised within ninety (90) days after the
Condemnation occurs, may elect to terminate this Lease as of the date possession of such square footage is taken by,
or conveyed to, the condemning authority, and: (i) all Base Rent shall be apportioned as of the date that possession
of such square footage is taken by, or conveyed to, the condemning authority; and (ii) all obligations hereunder,
except those due or mature, shall cease and terminate. All compensation awarded or paid for the Condemnation (the
"Condemnation Proceeds") shall belong to and be the sole property of Landlord; provided that Landlord shall not be
entitled to the amount of any Condemnation Proceeds awarded or paid solely to Tenant for loss of business or costs
and expenses of relocation and removing improvements and equipment. If neither Landlord nor Tenant elects to
terminate this Lease pursuant to this Section 9.2, then Landlord shall be responsible for the performance of all work
necessary to make the Premises usable by Tenant; provided that Landlord shall not be obligated to incur costs for
such work in excess of the Condemnation Proceeds awarded or paid to Landlord and remaining after: (y) Landlord's
mortgagee has withheld any amount of the proceeds to which it is entitled, if any; and (z) deduction for any
expenses incurred in collecting the Condemnation Proceeds. If neither Landlord nor Tenant elects to terminate this
Lease pursuant to this Section 9.2, or if any Condemnation is temporary in nature, then Base Rent shall be abated
proportionately (based upon the proportion that the that area Premises taken by, or conveyed to, the condemning
authority bears to the total space in the Premises) for each day that the Premises or any part thereof is unusable by
reason of the Condemnation.
ARTICLE X.
SURRENDER,
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' 10.1. Surrender of Leased Premises. Except as herein otherwise expressly provided in this Article X,
Tenant shall surrender and deliver up the Premises, together with all property affixed to the Premises, to Landlord at
the expiration or other termination of this Lease or of Tenant's right to possession hereunder, without fraud or delay,
in good order, condition and repair except for reasonable wear and tear after the last necessary repair, replacement,
or restoration is made by Tenant, free and clear of all liens and encumbrances, and without any payment or
allowance whatsoever by Landlord on account of any improvements made by Tenant.
10.2. Removal of Certain Property. All furniture and business equipment furnished by or at the expense
of Tenant shall be removed by or on behalf of Tenant at or prior to the expiration or other termination of this Lease
or of Tenant's right of possession hereunder, but only if, and to the extent, that the removal thereof will not cause
physical injury or damage to the Premises or necessitate changes or repairs to the same. Tenant repair and restore
any injury or damage to the Premises arising from such removal so as to return the Premises the condition described
in Section 10.1 above, or alternatively, Tenant shall pay or cause to be paid to Landlord one hundred ten percent
(110 %) of the cost of repairing or restoring injury or damage with such costs to be considered Additional Rent and
shall be deemed due and payable as of the date on which surrender by Tenant is required under this Lease.
10.3. Property Not Removed. Any personal property of Tenant which shall remain in or upon the
Premises after Tenant has surrendered possession of the Premises shall be deemed to have been abandoned by
Tenant, and at the option of Landlord, such property: (a) shall be retained by Landlord as its property; (b) shall be
disposed of by Landlord in such manner as Landlord shall determine, without accountability to any person; or (c)
shall be removed by Tenant within three (3) business days at Tenant's expense upon written request from Landlord
or such Tenant fails to remove such property within such timeframe Landlord may remove such property at Tenant's
expenses, charging Tenant one hundred ten percent (110 %) of the costs incurred by Landlord to remove said items,
which funds shall be due immediately upon notification of Tenant of such charges. Landlord shall not be
responsible for any loss or damage occurring to any property owned by Tenant remaining in the Premises after
Tenant surrenders possession thereof.
10.4. Survival of Terms. The terms of this Article X and other terms of this Lease referred to herein
shall survive any termination of this Lease.
ARTICLE XI.
DEFAULT.
11.1. Events of Default. Each and all of the following events shall be deemed an "Event of Default" by
Tenant under this Lease:
(a) Nmpognent. Tenant's failure to pay Base Rent, Additional Rent, or other sums or charges that
Tenant is obligated to pay by any provision of this Lease within five (5) days after notice to the Tenant that the same
is due, provided that Landlord shall not be obligated to give Tenant notice of late payments more than one (1) time
in any twelve (12) month period, and on the second time a payment is late it shall be an immediate Event of Default
without notice or grace period.
(b) Any failure to maintain the insurance coverages required to be maintained by Tenant under this
Lease.
(c) All Other Lease Violations. Tenant's failure to perform or observe any other covenant, condition,
or agreement of this Lease, which failure is not cured within thirty (30) days after the giving of notice thereof by
Landlord specifying the items in default unless such default is of such nature that it cannot be cured within such
thirty (30) day period, in which case no Event of Default shall occur so long as the Tenant shall commence the
curing of the default within such thirty (30) day period and shall thereafter diligently prosecute the curing of same;
provided, however, if the Tenant shall default in the performance of any such covenant or agreement of this Lease
more than onetime in any twelve (12) month period notwithstanding that such default shall have been cured by
Tenant, the second and further defaults in said twelve (12) month period may be deemed by Landlord, in its sole
discretion, an Event of Default without the ability for cure.
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' (d) Falsification of Information. If Tenant, any guarantor of Tenant's obligations under this Lease, or
any agent of Tenant falsifies any report in any material respect or misrepresents other information in any material
respect required to be furnished to Landlord pursuant to this Lease.
(e) Merger or Consolidation. If Tenant is merged or consolidated with any other entity, or there is a
transfer of a controlling interest in Tenant, other than as permitted in Section 13.1(b) of this Lease.
(f) Tenant's or Guarantor's Death Dissolution or Liquidation. The death of Tenant or any guarantor
of Tenant's obligations under this Lease; or the commencement of steps or proceedings toward the dissolution,
winding up, or other termination of the existence of Tenant or of any guarantor of Tenant's obligations (including
administrative dissolutions), or toward the liquidation of either of their respective assets.
(g) Bankruptcy. The commencement of a case under any chapter of the United States Bankruptcy
Code by or against Tenant or any guarantor of Tenant's obligations hereunder, or the filing of a voluntary or
involuntary petition proposing the adjudication of Tenant or any such guarantor as bankrupt or insolvent, or the
reorganization of Tenant or any such guarantor, or an arrangement by Tenant or any such guarantor with its
creditors, unless the petition is filed or case commenced by a party other than Tenant or any such guarantor and is
withdrawn or dismissed within thirty (30) days after the date of its filing.
(h) Assignment or Attachment. The making of an assignment by Tenant or any guarantor of Tenant's
obligations hereunder for the benefit of its creditors, or if in any other manner Tenant's interest in this Lease passes
to another by operation of law, including, without limitation, by attachment, execution, or similar legal process,
which is not discharged or vacated within thirty (30) days, except as permitted under this Lease.
(i) Appointment of Receiver or Trustee. The appointment of a receiver or trustee for the business or
property of Tenant or any guarantor of Tenant's obligations hereunder, unless such appointment shall be vacated
within ten (10) days after its entry.
f0) Inabilitv to Pay. The admission in writing by Tenant or any guarantor of Tenant's obligations
under this Lease of its inability to pay its debts when due.
(k) Breach by Guarantor. The breach by any guarantor of this Lease of any of that guarantor's
obligations under its guaranty for this Lease.
(1) As Otherwise Provided. The occurrence of any other event described as a default elsewhere in the
Lease or any amendment thereto, regardless of whether such event is defined as an "Event of Default."
11.2. Remedies. Upon the occurrence of an Event of Default, Landlord, without notice to Tenant in any
instance (except where expressly provided for below or by applicable law) may do any one or more of the following:
(a) Satisfy Tenant Obligations. Landlord may perform, on behalf of and at the expense of Tenant, any
obligation of Tenant under this Lease which Tenant has failed to perform and of which Landlord has given Tenant
notice (entering upon the Premises for such purpose, if necessary), the cost of which performance by Landlord, plus
interest thereon at the lesser of (i) the highest rate permitted by law, or (ii) eighteen percent (18 %) per annum from
the date of such expenditure, and reasonable cost and expense incurred by Landlord, shall be deemed Additional
Rent and shall be payable by Tenant to Landlord with the first Rent installment thereafter becoming due and
payable. The performance by Landlord of any Tenant obligation under this Section 11.2(a) shall not be construed
either as a waiver of the Event of Default or of any other right or remedy of Landlord with respect to such Event of
Default or as a waiver of any term or condition of this Lease. Notwithstanding the provisions of this Section 11.2(a)
and regardless of whether an Event of Default shall have occurred, Landlord may exercise the remedy described in
this Section 11.2(a) without any notice to Tenant if Landlord, in its good faith judgment, believes that if or the
Premises would be materially injured by failure to take rapid action or if the unperformed obligation of Tenant
constitutes an emergency.
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` (b) Termination of Lease. Landlord may terminate this Lease, by written notice to Tenant, without
any right by Tenant to reinstate its right by payment of Rent due or other performance of the terms and conditions
hereof. Upon such termination, Tenant shall immediately surrender possession of the Premises to Landlord, and
Landlord shall, in addition to all other rights and remedies that Landlord may have, immediately become entitled to
receive from Tenant: (i) an amount equal to the aggregate of all Base Rent and Additional Rent which then remains
due to Landlord but unpaid by Tenant; (ii) reasonable costs and expenses incurred by Landlord in connection with a
re -entry or taking of possession of the Premises; (iii) reasonable costs and expenses incurred by Landlord in
connection with making alterations and repairs for the purpose of reletting the Premises; (iv) reasonable attorneys'
fees; (v) the unamortized value of the Construction Allowance, if any.
(c) _Termination of Possessory Rights. Landlord may terminate Tenant's rights to possession of the
Premises without terminating this Lease or Tenant's obligations hereunder and Tenant shall continue to be obligated
to pay all Base Rent and Additional Rent which then remains due to Landlord but unpaid by Tenant and Tenant shall
continue to be obligated for future Base Rent and Additional .Rent as the same comes due under this Lease.
(d) Acceleration of Rent. Landlord may, whether it terminates the Lease or Tenant's possessory rights
to the Premises, accelerate and declare immediately due all of the Base Rent and Additional Rent (as reasonably
estimated by Landlord) that otherwise would have been due from the date of the Event of Default through the stated
expiration date of the Initial Term or any Extended Term, the option for which has been exercised.
(e) Rent Minus Fair Market Value. Landlord may declare immediately due and payable from Tenant,
in addition to any damages or other amounts becoming due from Tenant under any other provision of this Lease, an
amount equal to the difference between the Base Rent and Additional Rent reserved in this Lease from the date of
the Event of Default through the stated expiration date of the Initial Term or any Extended Term, the option for
which has been exercised, and the then -fair market value of the Premises for the same period.
(f) Other Remedies. Pursue any legal or equitable remedy allowed by applicable laws of the State.
11.3. Failure to Surrender. If Tenant fails to surrender the Premises upon expiration of the Term or
earlier termination of the Lease pursuant to Section I1.2(b), or termination of Tenant's possession rights, the
provisions of Section 3.3 shall apply, and Landlord may, without further notice and with or without process of law,
enter upon and re -enter the Premises and possess and repossess itself thereof, by force, summary proceedings,
ejectment or otherwise, and may dispossess Tenant and remove Tenant and all other persons and property from the
Premises and may have, hold and enjoy the Premises and the right to receive all rental and other income of and from
the same.
11.4. Reimbursement of Landlord's Costs in Exercising Remedies. Landlord may recover from Tenant,
and Tenant shall pay to Landlord upon demand, such reasonable and actual costs and expenses as Landlord may
incur in recovering possession of the Premises, placing the same in good order and condition and repairing and
altering the same for reletting, and all other reasonable and actual costs and expenses, commissions and charges
incurred by Landlord in reletting and otherwise exercising any remedy provided herein or as a result of any Event of
Default by Tenant hereunder (including, without limitation, reasonable attorneys' fees).
11.5. Remedies Are Cumulative. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy herein or by law provided, but each shall be cumulative and in
addition to every other right or remedy given herein or now or hereafter existing at law or in equity or by statute.
11.6. Counterclaim. If Landlord commences any proceedings for non payment of Rent, Tenant will not
interpose any counterclaim of any nature or description in such proceedings. This shall not, however, be construed
as a waiver of Tenant's right to assert such claims in a separate action brought by Tenant. The covenants to pay
Rent and other amounts due hereunder are independent covenants and Tenant shall have no right to hold back, offset
or fail to pay any such amounts for any reason whatsoever, except as may be specifically provided for herein to the
contrary, it being understood and acknowledged by Tenant that Tenant's only recourse is to seek an independent
is action against Landlord.
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11.7. Bankruptcy.
(a) Assumption of Lease. In the event that Tenant shall become a Debtor under Chapter 7 of the
United States Bankruptcy Code (the "Code ") or a petition for reorganization or adjustment of debts is filed
concerning Tenant under Chapters 11 or 13 of the Code, or a proceeding is filed under Chapter 7 and is transferred
to Chapters 1I or 13, the Trustee or Tenant, as Debtor and as Debtor In- Possession, may not elect to assume this
Lease unless, at the time of such assumption, the Trustee or Tenant has:
Cured or provided Landlord "Adequate Assurance," as defined below, that:
A. Within ten (10) days from the date of such assumption the Trustee or Tenant will cure all
monetary defaults under this Lease and compensate Landlord for any actual pecuniary loss
resulting from any existing default including, without limitation, Landlord's reasonable costs,
expenses, accrued interest as set forth in Section 11.2 of the Lease, and attorneys' fees incurred as
a result of the default and/or to enforce the terms hereof;
B. Within thirty (30) days from the date of such assumption the Trustee or Tenant will cure
all non- monetary defaults under this Lease; and
C. The assumption will be subject in all respects to all of the provisions of this Lease.
ii. For purposes of this Section 11.7, Landlord and Tenant hereby acknowledge that, in the context of
a bankruptcy proceeding of Tenant that this Lease is a lease of real property within a Building and, at a minimum
"Adequate Assurance" shall mean:
A. The Trustee or Tenant has and will continue to have sufficient unencumbered assets after
the payment df all secured and priority obligations and administrative expenses to assure Landlord
that the Trustee or Tenant will have sufficient funds to fulfill the obligations of Tenant under this
Lease, and to keep the Leased Premises stocked with merchandise and properly staffed with
sufficient employees to conduct a fully Operational, actively promoted business in the Leased
Premises;
B. The bankruptcy court shall have entered an order segregating sufficient cash payable to
Landlord, and/or the Trustee or Tenant shall have granted a valid and perfected first lien and
security interest and/or mortgage in property of Trustee or Tenant acceptable as to value and kind
to Landlord, to secure to Landlord the obligation of the Trustee or Tenant to cure the monetary
and/or non - monetary defaults under this Lease within the time periods set forth above; and
C. The Trustee or Tenant at the very least shall deposit a sum equal to one (1) month's Rent
to be held by Landlord (without any allowance for interest thereon) to secure Tenant's future
performance under the Lease.
(b) Assignment of Lease. If the Trustee or Tenant has assumed the Lease pursuant to the provisions
of this Section 11.7 for the purpose of assigning Tenant's interest hereunder to any other person or entity, such
interest may be assigned only after the Trustee, Tenant or the proposed assignee have complied with all of the terms,
covenants and conditions of Section 13.1 herein, including, without limitation, those with respect to Additional Rent
and the use of the Premises only as permitted in Article VII herein; Landlord and Tenant hereby acknowledging that
such terms, covenants and conditions are commercially reasonable in the context of a bankruptcy proceeding of
Tenant. Any person or entity to which this Lease is assigned pursuant to the provisions of the Code shall be deemed
without further act or deed to have assumed all of the obligations arising under this Lease on and after the date of
such assignment. Any such assignee shall upon request execute and deliver to Landlord an instrument confirming
such assignment and assumption in form acceptable to Landlord.
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(c) Adequate Protection. Upon the filing of a petition by or against Tenant under the Code, Tenant, as
Debtor and as Debtor in Possession, and any Trustee who may be appointed hereby agree to adequately protect
Landlord as follows:
i. To immediately perform each and every obligation of Tenant under this Lease until such time as
this Lease is either rejected or assumed by order of the bankruptcy court;
ii. To pay all monetary obligations required under this Lease, including, without limitation, the
payment of Base Rent and such Additional Rent charges payable hereunder which is considered reasonable
compensation for the use and occupancy of the Premises;
iii. Provide Landlord a minimum thirty (30) days' prior written notice, unless a shorter period is
agreed to in writing by Landlord, of any proceeding relating to any assumption of this Lease or any intent to
abandon the Premises, which abandonment shall be deemed a rejection of this Lease; and
iv. To perform to and for the benefit of Landlord as otherwise required under the Code.
The failure of Tenant to comply with the above shall result in an automatic rejection of this Lease and the
automatic stay under Section 362 of the Code shall automatically be terminated as to Landlord and the Premises.
(d) Accumulative Rights. The rights, remedies and liabilities of Landlord and Tenant set forth in this
Section 11.7 shall be in addition to those which may now or hereafter be accorded, or imposed upon, Landlord and
Tenant by the Code.
(e) Changes in Code. If the Code is changed or amended such that any references in this Section 11.7
to particular provisions or terms of art lose the meaning that they have as of the Effective Date, such provisions or
terms of art of this Lease shall be deemed to be amended to reflect such changes in the Code.
0 ARTICLE XIL
ESTOPPEL CERTIFICATES ATTORNMENT AND SUBORDINATION
12.1. Estoppel Certificates. Tenant and Landlord agree to execute and deliver, within ten (10) days after
request therefor by the other party, a statement, in writing, certifying to Landlord and/or any party designated by
Landlord, or Tenant and/or any party designated by Tenant, as the case may be, that: (a) this Lease is in full force
and effect; (b) the Commencement Date; (c) that Rent is paid currently without any off -set or defense thereto, (d) the
amount of Rent, if any, paid in advance; (e) that there are no known uncured defaults by Landlord or Tenant, or
stating those known and claimed, provided that, in fact, such facts are accurate and ascertainable, and (f) any other
information reasonably requested.
12.2. Attornment. In the event any proceedings are brought for the foreclosure of, or in the event of
conveyance by deed -in -lieu of foreclosure of, or in the event of exercise of the power of sale under any mortgage
made by Landlord covering the Premises, Tenant hereby attorns to the successor -in- interest of Landlord and
covenants and agrees to execute an instrument in writing reasonably satisfactory to same whereby Tenant attorns to
such successor -in- interest and recognizes such successor -in- interest as Landlord hereunder.
12.3. Subordination.
(a) Landlord shall have the right at any time and from time -to -time to create security interests in the
form of a mortgage, deed of trust or other similar lien or encumbrance (a "Mortgage ") upon or affecting Landlords
fee estate in the Premises, or any part thereof, and the rights of Tenant under this Lease shall be subject and
subordinate to any such Mortgage; provided, however, that in the event of any foreclosure or sale under any such
Mortgage or the delivery by Landlord of any deed -in -lieu of foreclosure to the holder of any such Mortgage, then
the holder of any such Mortgage agrees not to disturb Tenant's possession so long as Tenant is not in default under
is the terms of this Lease beyond any notice and/or cure periods provided for under this Lease and attoms to such
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F.• IDATAISHARETegal1WpdataiSEPlEconomic DevelopmentlBillie`slState CafelState Cafe Lease (version 5 )sloe
holder or the foreclosure purchaser as Landlord under this Lease. Said subordination shall be self - operative and no
further instrument of subordination shall be necessary unless required by any such Mortgage holder, in which event
Tenant agrees to, within ten (10) days after request by Landlord or the Mortgage holder, execute any agreement
reasonably required by such Mortgage holder to memorialize said subordination and to memorialize the terms of any
related agreements between Tenant and such Mortgage holder. Any holder of any of any such Mortgage is herein
referred to as "Landlord's Mortgagee(s)." Notwithstanding the foregoing, a Landlord's Mortgagee may at any time
subordinate its Mortgage to this Lease without Tenant's consent by notice in writing to Tenant, and thereupon this
Lease shall be deemed prior to such Mortgage without regard to their respective dates of execution and delivery and,
in that event, such Landlord's Mortgagee shall have the same rights with respect to this Lease as though it had been
executed prior to the execution and delivery of any such Mortgage and had been assigned to such Landlord's
Mortgagee.
(b) This Lease shall be subject to and subordinate to all easements, restrictions, liens, encumbrances,
rights -of -way, or other matters affecting the Premises of record.
ARTICLE XIII.
ASSIGNMENT AND SUBLETTING
13.1. Assignment and Sublettin .
(a) Tenant shall not sublet, mortgage, encumber or in any manner transfer, in whole or in part, this
Lease, the Premises or any estate or interest in said Premises or Lease. Except as expressly permitted herein, Tenant
shall not assign this Lease or any estate or interest therein or allow the occupancy thereof by any person or entity
other than Tenant, without Landlord's prior written consent, which may be granted or withheld in Landlord's sole
and absolute discretion. Consent by Landlord to one or more assignments of this Lease shall not operate to exhaust
Landlord's rights under this Article XIII. In the event that Tenant, with or without the previous consent of Landlord,
does assign or it, any manner transfer this Lease or any estate or interest therein or sublet the Premises" "or any part
thereof, or allow the occupancy thereof by any person or entity other than Tenant, Tenant shall not be released from
any of its obligations under this Lease unless a release is given, in writing, by Landlord.
(b) If this Lease is assigned or the Premises or any part thereof occupied by any entity other than
Tenant, Landlord may collect rent from the assignee or occupant and apply the same to the Rent herein reserved, but
no such assignment, occupancy or collection of Rent shall be deemed a waiver of any restrictive covenant contained
in this Section 13.1 or the acceptance of the assignee or occupant as tenant, or a release of Tenant from the
performance by Tenant of any covenants on the part of Tenant herein contained. Any sublease of the Premises shall
be void. Landlord shall have the right, at any time, to immediately remove an occupant or than Tenant from the
Premises along with any possession of said occupant, which shall be deemed to have been abandoned if not claimed
by occupant within three (3) business days of their removal, and the Landlord's acceptance of rent from the
occupant shall in no way waive any rights the Landlord may have against the occupant. The Tenant shall indemnify
the Landlord for any actions, claims or demands made by the occupant or its assigns against the Landlord. Any
assignment: (x) as to which Landlord has consented or is deemed to have consented; or (y) which is required by
reason of a final nonappealable order of a court of competent jurisdiction; or (z) which is made by reason of and in
accordance with the provisions of any law or statute, including, without limitation, the laws governing bankruptcy,
insolvency or receivership, shall be subject to all terms and conditions of this Lease, and shall not be effective or
deemed valid unless, at the time of such assignment:
i. Each assignee shall assume the obligations of this Lease by executing, acknowledging and
delivering to Landlord, before the effective date of such assignment, a written assumption agreement in form and
substance reasonably satisfactory to Landlord;
ii. Landlord shall receive affidavits, made by both Tenant and its assignee through an officer or
principal of each such entity, stating the full consideration to be received by Tenant as assignor as a result of said
assignment, including, if any, payments for Tenant's improvements, proposed rent (which includes, without
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limitation, all monthly charges allocated to common area maintenance, insurance, real property taxes, and utility
charges) and any other payments;
iii. Each assignee shall have submitted to Landlord a current financial statement, audited by a
certified public accountant, showing a net worth and working capital in amounts determined by Landlord to be
sufficient to assure the future performance by such assignee of Tenant's obligations hereunder;
iv. Each assignee shall have submitted to Landlord, in writing, evidence satisfactory to Landlord of
substantial experience in operating a business similar to that offered by Tenant and permitted under Section 1.1(c) of
this Lease or a business otherwise requested by the Landlord and in operating said business in a space or volume
comparable to that contemplated under this Lease;
V. The business reputation of each assignee shall meet or exceed generally acceptable commercial
standards;
vi. The use of the Premises by each assignee shall not violate, or create any potential violation of,
applicable Laws, codes or ordinances, nor violate any other agreements affecting the Premises, Landlord or other
occupants in the Building; and
vii. Tenant shall pay Landlord the sum of $1,000.00 as reimbursement to Landlord for administrative
and legal expenses incurred by Landlord in connection with any such assignment.
(c) In the event that Tenant desires to assign this Lease, Tenant shall give notice to Landlord setting
forth the terms of the proposed assignment. Tenant shall advise Landlord of the name of the proposed assignee,
shall furnish Landlord with the information required by Landlord with respect to the proposed assignee, and
Landlord shall advise Tenant, within sixty (60) business days after receipt of such notice and all required .
information from Tenant, that Landlord either consents or refuses to consent to an assignment to the proposed
assignee.
(d) Notwithstanding the foregoing, Tenant may assign this Lease to an entity created by or on behalf
of Tenant for the purpose of operating a business described in Section 1.1(c) on the Premises; provided that any
assignment shall not be effective or deemed valid unless, at the time of such assignment:
i. Each assignee shall have assumed the obligations of this Lease by executing, acknowledging and
delivering to Landlord, before the effective date of such assignment, a written assumption agreement in form and
substance reasonably satisfactory to Landlord;
ii. Tenant shall have executed and submitted to Landlord a personal guaranty of this Lease in the
form attached hereto as Exhibit F. with such changes as deemed appropriate by Landlord at the time of the
assignment. The executed assignment and guaranty shall be recorded with reference to this Lease;
iii. Each assignee shall have delivered to Landlord evidence of its organization and existence and of
its good standing under Indiana law; and
iv. Tenant shall pay Landlord the sum of $100.00 as reimbursement to Landlord for administrative,
recording and legal expenses incurred by Landlord in connection with any such assignment.
13.2. Assignment by Landlord. Landlord, at any time 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 all of the obligations
of Landlord under the terms and conditions of this Lease; then Landlord and its successors and assigns (other than
the assignee of this Lease) shall be released from any and all liability hereunder.
ARTICLE XIV.
Is MISCELLANEOUS
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14.1. Security Deposit. Contemporaneously with the execution of this Lease, Tenant shall deposit the
Security Deposit, as defined in Section. 1.1(i) , with Landlord. Landlord: (a) shall hold the Security Deposit without
liability to Tenant for interest; and (b) may commingle the Security Deposit with its other funds. The Security
Deposit, or any portion thereof, may be applied by Landlord to cure any default by Tenant under this Lease, without
prejudice to any other remedy or remedies that Landlord may have on account of such application. Upon any such
application by Landlord, Tenant shall pay to Landlord on demand the amount applied by Landlord to cure such
default so that the Security Deposit is restored to its original amount. If Landlord conveys the Premises during the
Term: (A) Landlord may turn the Security Deposit over to Landlord's grantee or successor; and (B) Tenant shall
release Landlord from any and all liability with respect to the Security Deposit. If Tenant faithfully performs its
obligations under the terms and conditions of this Lease, then Landlord shall return to Tenant the amount of the
Security Deposit not applied by Landlord to cure defaults by Tenant, without interest, within thirty (30) days after
the latter of: (y) the Termination Date; or (z) the date that Tenant has surrendered possession to Landlord in
accordance with the terms and conditions of this Lease.
14.2. Notices. Any notice, demand, request or other instrument (any "Notice ") which may be or is
required to be given under this Lease shall be in writing and shall be deemed given and received: (a) on the date of
delivery when delivered in person (with receipt for delivery); (b) three (3) business days after deposit with the U.S.
Postal Service, when sent by United States certified or registered mail, return receipt requested, postage prepaid; or
(c) on the next business day following deposit of any such Notice with a national overnight delivery carrier (with
receipt evidencing such delivery) such as, but not limited to, Federal Express or UPS. Any Notice to be delivered in
person or by mail shall be addressed: (a) if to Landlord, at the address set forth in Section 1.1(f} hereof, or at such
other address as Landlord may designate by written notice; and (b) if to Tenant, at the address set forth in Section.
1.IW hereof, or at such other address as Tenant may designate by written notice.
14.3. Waiver. One or more waivers of any covenant or condition by Landlord shall not be construed as
a waiver of a subsequent breach of the same covenant or condition, and the consent or approval by Landlord to or of
any,act by Tenant requiring Landlord's consent or approval shall. not be deemed to rendek.unnecessary Landlord's
consent or approval to or of any subsequent similar act by Tenant, except as otherwise provided herein.
14.4. Entire Agreement. This Lease and the exhibits attached hereto set forth all the covenants,
promises, agreements, conditions and understandings between Landlord and Tenant concerning the Premises, and
there are no covenants, promises, agreements, conditions or understandings, either oral or written, between Landlord
and Tenant other than as are herein set forth. No alteration, amendment, change or addition to this Lease shall be
binding upon Landlord or Tenant unless reduced to writing and signed by each party.
14.5. Remedies Cumulative. The rights and remedies of Landlord and Tenant hereunder shall be
cumulative, and no one of them shall be deemed or construed as exclusive of any other right or remedy hereunder, at
law, or in equity. The exercise of any one such right or remedy by Landlord or Tenant shall not impair its standing
to exercise any other such right or remedy.
14.6. Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser amount than
the Rent due hereunder shall be deemed to be other than on account of the Rent first due hereunder. No
endorsement or statement on any check or letter accompanying any check or payment of Rent shall be deemed to be
an accord and satisfaction, and Landlord may accept any such check or payment without prejudice to the right of
Landlord to recover the balance of such Rent or to pursue any other right or remedy.
14.7. Relationship. Nothing contained herein, shall be deemed or construed to create between the parties
any relationship other than that of landlord and tenant.
14.8. Information. Tenant shall provide to Landlord, upon request, accurate financial statements of
Tenant and/or any guarantors of this Lease (which, in the event Tenant or a guarantor is an entity, shall be certified
by the highest - ranking financial officer of Tenant or guarantor).
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14.9.. Construction. The laws of the State in which the Premises is located shall govern the validity,
performance, and enforcement 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. 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. Whenever in this
Lease a singular word is used, it also shall include the plural wherever required by the context and vice versa. All
references in this Lease to periods of days shall be construed to refer to calendar, not business, days, unless business
days are specified. This Lease shalt be recorded, but a failure to record shall not affect the effectiveness of this
Lease. All Exhibits referenced in this Lease are attached hereto and incorporated herein by reference.
14.10. Farce Majeure. Notwithstanding anything to the contrary set forth herein, if Landlord or Tenant is
delayed in, or prevented from observing or performing any of its obligations hereunder (other than the payment of
any amount of money due hereunder) as the result o£ (a) an act or omission of the other party; or (b) any other cause
that is not within the control of the delayed or prevented party (including, without limitation, inclement weather, the
unavailability of materials, equipment, services or labor, and utility or energy shortages or acts or omissions of
public utility providers); then: (A) such observation or performance shall be excused for the period of the delay; and
(B) any deadlines for observation or- per£errnance shall be extended for the same period.
14.11. Counterparts. This Lease may be executed in separate counterparts, each of which when so
executed shall be an original, but all of which together shall constitute but one and the same instrument.
14.12. Successors and Assigns. Except as otherwise expressly provided herein, this Lease, and all of the
terms and conditions hereof, shall inure to the benefit of, and be binding upon, the respective heirs, executors,
administrators, successors, and assigns of Landlord and Tenant. All indemnities set forth herein shall survive the
Termination Date.
1.4.13. Authority. Each persen executing this Lease represents and warrants that: (a) he or she has been
authorized to execute and deliver this Lease by the entity for which he or she is signing; and (b) this Lease is the
valid and binding agreement of such entity, enforceable in accordance with its terms.
14.14. Exculpation. If there is a breach or default by Landlord under this Lease, Tenant shall look solely
to the equity interest of Landlord in the Premises and any rentals derived therefrom; provided that in no event shall
any judgment be sought or obtained against any individual person or entity comprising Landlord.
14.15. Equal Qpportuniiy Obligation. Tenant agrees not to discriminate against any employee or
applicant for employment, to be employed by Tenant with respect to his or her hire, tenure, terms, conditions or
privileges of employment or any matter directly or indirectly related to employment, because of his or her race,
color, religion, sex, handicap, national origin, or ancestry. Breach of this covenant may be regarded as a material .
breach of the Lease. Tenant- hirther agrees execute and deliver an affidavit attesting to the terms of this provision in
the form set forth at Exhibit G.
14.16. Anti- Collusion Requirement. By executing this Lease, Tenant certifies that it has not, nor has any
member, employer, representative or agent of its firm, directly or indirectly, entered into or offered to enter into any
combination, collusion, or agreement to receive or pay, that it has not received nor paid any sum of money or other
consideration for the negotiation and execution of this Lease other than that which is set out herein. Tenant further
agrees to execute and deliver an affidavit attesting to the terms of this provision in the form set forth at Exhibit G.
14.17. Entity Status. Any corporation, association, company, limited liability company, partnership,
limited partnership or other entity operating as Tenant under this Lease hereby covenants and agrees to maintain its
existence and good standing under applicable law, including but not limited to, its good standing under Indiana law
and authority to operate in Indiana.
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•
•
STATE OF INDIANA
) SS:
ST. JOSEPH COUNTY
Before me, the undersigned, a Notary Public for and in said County and State this day of January,
2006, personally appeared and known to be to be
the - and respectively, of the South Bend Redevelopment Commission
and acknowledged execution of the foregoing Lease on behalf of said Commission.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
Resident of the
My commission expires:
County, Indiana
(Notary Page of Lease)
F tD,4T41SHIREILegal4WpdatalSEPIEconomicDevelopmenilBillieslState CqfeWtate Cafe -ease (version 5).doc
Notary Public
STATE OF INDIANA
0 ) SS:
ST. JOSEPH COUNTY
•
E.
Before me, the undersigned, a Notary Public for and in said County and State this day of January,
2005, personally appeared Brenda C. Markin and acknowledged execution of the foregoing Lease.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
(SEAL)
Resident of the
My commission expires:
County, Indiana
Notary Public
Prepared by Shawn E. Peterson, Esq, Assistant City Attorney, City of South Bend, Indiana,
1400 County-City Building, South Bend, Indiana 46601
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Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
INDEX TO EXHIBITS
Legal Description of Building
Site Plan of Building
Description of Premises
Landlords Work
Form of Commencement Certificate
Exhibit F Form of Guaranty
Exhibit G Non-Debarment, Non-Collusion and Non-Discrimination Affidavit
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EXHIBIT A
Legal Description of Building
A part of the Northwest Quarter of Section 12, Township 37 North, Range 2 East of the Second
Principal Meridian, Portage Township, City of South Bend, Indiana being a part of Lots 50, 51 and
52 of original plat of South Bend, Indiana more particularly described as follows: -
BEGININNG at the intersection of Westerly right-of-way line of St. Joseph Street (85' feet right-
of-way) with the North right-of-way line of Wayne Street (82.5' right-of-way) thence South 89
Degrees 38 Minutes 12 Sections West (bearing assumed) along the North right-of-way line of
Wayne Street 148.84 feet; thence North 00 Degrees 27 Minutes 00 Seconds West, 186.0 feet;
thence North 89 Degrees 39 Minutes 34 Seconds East, 165.61 feet; thence Southwesterly 186.99
feet along a segment of a curve to the right having a radius of 912.43 feet, subtended by a chord
having a bearing of South 04 Degrees 42 Minutes 19 Seconds West and a length of 186.66 feet to
the Point of Beginning and containing 29, 835.05 square feet (0.6849 acres more or less) and is
subject to easements, restrictions, limitations and/or covenants of record.
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EXHIBIT B
Site Plan of Building and Premises
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ExxIslT c
Description of Premises
The Premises consists of Retail Areas No. 1 and No. 2, commonly referred to as 117 & 119 E. Wayne
Street, South Bend, Indiana, which comprises of 2,844 square feet located on the ground level of the St.
Joseph/Wayne Parking Garage, commonly referred to as 121 E. Wayne Street, South Bend, Indiana and more
particularly described at Exhibit A of the Lease to which this Exhibit is attached.
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EXHIBIT D
Landlord's Work
1. Installation of new storefront windows
2. Insure that Premises is up to code relative to ADA compliant restroom, emergency exits and fire-sprinklers
and provide an inspection report verifying the same.
3. Insure that HVAC and major plumbing and electrical systems are working properly, including reviewing
whether any gas leaks exist and clearing the floor drains.
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EXHIBIT E
Form of Commencement Certificate
COMMENCEMENT CERTIFICATE
This Commencement Certificate is made this._ day of -, 2006, by and between the City of
South Bend, Indiana, Department of Redevelopment ("Landlord") and Brenda C. Markin d/b/a The State Caf6 &
Catering ("Tenant"):
WITNESSETH
Landlord and Tenant are parties to that certain Lease, dated January __, 2006, for certain real estate in
South Bend, St. Joseph County, Indiana (the "Lease"). Pursuant to Section 3.1 of the Lease, Landlord and Tenant,
intending to be legally bound, hereby agree as follows:
I . The Commencement Date was the _ day of 2006.
2. The date upon which the Term shall expire shall be the _ day of _, 2011, unless
extended pursuant to the terms of the Lease.
3. Tenant is in possession of the Premises and is obligated to pay the Rent.
IN WITNESS WHEREOF, the parties hereto have duly executed this Commencement Certificate as of the
dates set forth below.
LANDLORD:
CITY OF SOUTH BEND, INDIANA,
DEPARTMENT OF REDEVELOPMENT
Executed by Landlord the By:
day of 12006.
Name:
Executed by Tenant the
day of 2006.
Its:
TENANT:
BRENDA C. MARKIN d/b/a THE STATE CAFE &
CATERING
Brenda C. Marking
F DAT41SH,4REILegallWpdatalSEPIEconomieDevelopmentlBillie'sL5tate CqfMState Cafe Lease (version 5) doe
EXHIBIT F
FORM OF GUARANTY
This Guaranty (the "Guaran "), executed by Brenda C. Markin (the "Guarantor ") in favor of the City of
South Bend, Indiana, Department of Redevelopment, a municipal having its principal office at 1200 County -City
Building, 227 W. Jefferson Boulevard, South Bend, Indiana, Indiana 46601 (the "Landlord "), WITNESSES:
RECITALS
WHEREAS, Landlord has leased to Brenda C. Marking (the "Tenant "), and Tenant has leased from
Landlord, certain premises within that certain Building commonly known as 117 & 119 E. Wayne Street, South
Bend., Indiana 46601, which premises (the "Premises ") more particularly is described in that certain Lease entered
into by and between Landlord and Tenant of even date herewith (the "Lease ");
WIIEREAS, Tenant has created a , named (the "Company ") for
purposes of operating a business at the Premises under the Lease and desires to assign the Lease to the Company;
and
WHEREAS, "Obligations" shall mean all obligations, liabilities, and indebtedness of Tenant to Landlord,
now or hereafter existing under the Lease or with respect to the Premises (including, without limitation all Rent
payable by Tenant to Landlord), together with all: (a) interest accruing thereon; and (b) costs and expenses
(including, without limitation, reasonable attorneys' fees) incurred by Landlord in the enforcement or collection
thereof; whether such obligations, liabilities, and indebtedness are direct, indirect, fixed, contingent, liquidated,
unliquidated, joint, several, or joint and several; and
WHEREAS, Landlord, as a condition to consenting to the assignment of the Lease to the Company, has
required that Guarantor enter into this Guaranty;
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
acknowledged hereby, Guarantor covenants and agrees as follows:
I. Guaranty. Guarantor absolutely and unconditionally guarantees the full and prompt payment and
performance when due of the Obligations. This Guaranty shall continue, in full force and effect throughout
the Term and thereafter, until all of the Obligations are paid and performed in full.
2. Waivers. Guarantor expressly waives: (a) presentment for payment, demand, notice of demand and
dishonor, protest, and notice of protest and nonpayment or nonperformance of the Obligations; and (b)
diligence in: (i) enforcing payment or performance of, or collecting, the Obligations; (ii) exercising the
rights or remedies under the Lease; or (iii) bringing suit against Tenant or any other party. Landlord shall
be under no obligation: (A) to notify Guarantor of. (i) its acceptance of this Guaranty; or (ii) the failure of
Tenant to timely pay or perform any of the Obligations; or (B) to use diligence in: (i) preserving the
liability of Tenant or any other party; or (ii) bringing suit to enforce payment or performance of, or to
collect, the Obligations. To the full extent allowed by applicable law, Guarantor waives all defenses: (y)
given to sureties or guarantors at law or in equity, other than the actual payment and performance of the
Obligations; and (z) based upon questions as to the validity, legality, or enforceability of the Obligations.
The payment by Guarantor of any amount pursuant to this Guaranty shall not in any way entitle Guarantor
to any right, title, or interest (whether by way of subrogation or otherwise) in and to: (X) any of the
Obligations; (Y) any proceeds thereof; or (Z) any security therefor. Guarantor unconditionally waives: (1)
any claim or other right now existing or hereafter arising against Tenant or any other party that arises from,
or by virtue of, the existence or performance of this Guaranty (including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, or to payment); and (2) any right
to participate or share in any right, remedy, or claim of Landlord.
F. IDATALSHAREILegallWpdatatSEPlEconomicDevelopmentlBillie `slState CafeWtate Cafe Lease (version S).doc
3. Right . Landlord, without: (a) authorization from, or notice to, Guarantor; and/or (b) impairing or affecting
the liability of Guarantor hereunder; from time to time, at its discretion and with or without consideration,
may: (i) alter, compromise, accelerate, or extend the time or manner for the payment or performance of any
or all of the Obligations; (ii) increase or reduce the rate of interest payable on any or all of the Obligations;
(iii) release, discharge, or increase the obligations of Tenant; (iv) add, release, discharge, or increase the
obligations of any other endorsers, sureties, guarantors, or other obligors; (v) make changes of any sort
whatever in the terms or conditions of (A) payment or performance of the Obligations, or (B) doing
business with Tenant or any other party; (vi) settle or compromise with Tenant or any other party on such
terms and conditions as Landlord may determine to be in its best interests; and (vii) apply all moneys
received from Tenant or any other party against the payment of the Obligations (regardless of whether then
due) as Landlord may determine to be in its best interests, without in any way being required to: (A)
marshal securities or assets; or (B) apply all or any part of such moneys against any particular part of the
Obligations. Landlord is not required to retain, protect, exercise due care with respect to, perfect security
interests in, or otherwise assure or safeguard any collateral or security for the Obligations. No exercise, or
failure to exercise, by Landlord of any right or remedy in any way shall: (y) affect: (i) any of the
obligations of Guarantor hereunder; or (ii) any collateral or security furnished by Guarantor; or (z) give
Guarantor any recourse against Landlord.
4. Continuing Liability. Notwithstanding the incapacity, death, disability, dissolution, or termination of
Tenant or any other party, the liability of Guarantor hereunder shall continue. The failure by Landlord to
file or enforce a claim against the estate (either in administration, bankruptcy, or other proceeding) of
Tenant or any other party shall not affect the liability of Guarantor hereunder. Guarantor shall not be
released from liability hereunder if recovery from Tenant or any other party: (a) becomes barred by any
statute of limitations; or (b) otherwise is restricted, prevented, or unavailable.
5. Action by Landlord. Landlord shall not be required to pursue any other rights or remedies before invoking
., the benefits of this Guaranty. Specifically, Landlord shall not be required to exhaust its rights and remedies
against Tenant or any other endorser, surety, guarantor, or other obligor. Landlord may maintain an action
on this Guaranty, regardless of whether: (a) Tenant is joined in such action; or (b) a separate action is
brought against Tenant.
6. Default. Guarantor absolutely and unconditionally covenants and agrees that, i£ (a) Tenant defaults for any
reason in the payment or performance of all or any part of the Obligations; and (b) Landlord exercises any
of its rights or remedies under the Lease; then Guarantor shall pay, upon demand, such amounts as may be
due to Landlord as a result of the default by Tenant and the exercise by Landlord of its rights or remedies,
without: (i) further notice of default or dishonor; and (ii) any notice with respect to any matter or
occurrence having been given to Guarantor previous to such demand.
7. Preference. 11 (a) any payment by Tenant to Landlord is held to constitute a preference under any
bankruptcy law; or (b) Landlord is required for any reason to refimd any such payment, or pay the amount
thereof to any party; then: (i) such payment by Tenant to Landlord shall not constitute a release of
Guarantor from any liability under this Guaranty; (ii) Guarantor shall pay the amount thereof to Landlord
upon demand; and (iii) this Guaranty shall continue to be effective or shall be reinstated, as the case may
be, to the extent of any such payment.
8. Subordinated Debt. Guarantor expressly agrees that: (a) all Subordinated Debt (as defined below) shall be
subordinated to the Obligations; (b) it shall not receive or accept any payment from Tenant with respect to
the Subordinated Debt at any time from and after an Event of Default; and (c) if it receives or accepts any
payment from Tenant on the Subordinated Debt in violation of this Section, then Guarantor shall: (i) hold
such payment in trust for Landlord; and (ii) immediately turn such payment over to Landlord, in the form
received, to be applied to the Obligations. For purposes of this Guaranty, "Subordinated Debt" shall mean
all obligations, liabilities, and indebtedness of Tenant to Guarantor, together with all interest accruing
thereon, whether such obligations, liabilities, and indebtedness are: (A) direct, indirect, fixed, contingent,
liquidated, unliquidated, joint, several, joint and several, or evidenced by a written instrument; or (B) now
due or hereafter to be due, now existing or hereafter owed, or now held or hereafter to be held by
Guarantor.
-2-
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9. Representations. Guarantor hereby represents and warrants to Landlord that: (a) this Guaranty is the legal,
valid, and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms and
conditions; (b) there is no action or proceeding at law or in equity, or by or before any court or
governmental instrumentality or agency, now pending against or, to the knowledge of Guarantor,
threatened against, Guarantor that may materially and adversely affect the financial condition of Guarantor;
(c) all balance sheets, earnings statements, and other financial data that have been or hereafter may be
furnished to Landlord in connection with this Guaranty do and shall represent fairly the financial condition
of Guarantor as of the dates on which, and for the periods for which, such balance sheets, earning
statements, and other data are furnished; (d) all other information, reports, and other papers and data
furnished to Landlord shall be: (i) accurate and correct in all respects at the time given; and (ii) complete,
such that Landlord is given a true and accurate reporting of the subject matter; and (e) Guarantor is
solvent.
10. Statements. Guarantor shall provide to Landlord, within ten (10) days after receipt of a written request
from Landlord, financial statements that include such information and certifications with respect to the
assets, liabilities, obligations, and income of Guarantor as Landlord reasonably may request from time to
time.
I l . Miscellaneous. The rights of Landlord are cumulative and shall not be exhausted: (a) by its exercise of any
of its rights and remedies against Guarantor under this Guaranty or otherwise; or (b) by any number of
successive actions; until and unless each and all of the obligations of Guarantor under this Guaranty have
been paid, performed, satisfied, and discharged in full. This Guaranty shall be deemed to have been made
under, and shall be governed by, the laws of the State of Indiana in all respects and shall not be modified or
amended, except by a writing signed by Landlord and Guarantor. This Guaranty shall bind Guarantor and
its successors, assigns, and legal representatives; and inure to the benefit of all transferees, credit
participants, endorsees, successors, and assigns of Landlord. If the status of Tenant changes, then this
Guaranty shall continue, and cover the Obligations of Tenant in its new status, all according to the terms
and conditions hereof. Landlord is relying, and is entitled to rely, upon each and every one of the terms and
conditions of this Guaranty. Accordingly, if any term or condition of this Guaranty is held to be invalid or
ineffective, then all other terms and conditions shall continue in fall force and effect. All capitalized terms
used but not defined herein shall have the meanings ascribed to such terms in the Lease.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the _ day of , 200
Signature:
Printed Name:
-3-
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EXHIBIT G
NON- DEBARMENT, NON- COLLUSION AND
NON - DISCRIMINATION AFFIDAVIT
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
The undersigned d/b /a The State Cafd & Catering ( "Tenant "), being duly sworn on oath, hereby certifies as
follows:
1. That the undersigned is duly authorized and is competent to certify to the statements contained
herein on behalf of Tenant.
2. That neither the Tenant nor any other entity under its control are presently debarred, suspended,
proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction
by any Federal department or agency.
3. That Tenant has not, nor has any other member, representative, or agent of the business entered
into any combination, collusion or agreement with any person relative to the price to be offered by any
person nor to prevent any person from making an offer nor to induce anyone to refrain from making an
offer and that this offer is made without reference to any other offer.
4. That Tenant hereby agrees to abide by the following nondiscrimination commitment, which shall
be made a part of any contract that Tenant may henceforth enter into with the City of South Bend, Indiana
or any of its agencies, boards or commissions:
Tenant agrees not to discriminate against any employee or applicant for employment in
the performance of this contract with privileges of employment, or any matter directly or
indirectly related to employment, because of race, religion, color, sex, handicap, national
origin or ancestry. Breach of this provision may be regarded as a material breach of the
contract.
BRENDA C. MARKIN d/b /a THE STATE CAFE &
CATERING, Tenant
Brenda C. Markin
Subscribed and sworn to before me this day of January, 2006.
My Commission Expires:
County of Residence:
(SEAL)
Notary Public
F.IDATAISHARETegallWpdatatSEPl Economic DevetopmentlBtllie'slState Cafe Mate Cafe Lease (version 5).doc
* ' COUNTY FORM 170
11
DECLARATION
This form is to be signed by the preparer of a document and recorded with each document
in accordance with IC 36-2-7.5-5(a).
1, the undersigned preparer of the attached document, in accordance with IC 36-2-7.5, do
hereby affirm under the penalties of perjury:
true.
I HAVE REVIEWED THE ATTACHED DOCUMENT FOR THE PURPOSE
OF IDENTIFYING AND, TO THE EXTENT PERMITTED BY LAW,
REDACTING ALL SOCIAL SECURITY NUMBERS.
2. 1 HAVE REDACTED, TO THE EXTENT PERMITTED BY LAW, EACH
SOCIAL SECURITY NUMBER IN THE ATTACHED DOCUMENT.
1, the undersigned, affirm under penalties of perjury, that the foregoing declarations are
Signature of Declarant
Printed Name of Declarant
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RECORDED AS PRESENTED ON
02/01/2000 11:33:41AN
TERRI J. RETHLAXE
ST. JOSEPH COUNTY
RECORDER
REC. FEE: $88.00
PAQESI 40
By and Between
SOUTH BEND REDEVELOPMENT COMMISSION
and
BRENDA C. MARKING
January 3, 2006
F. D.4T,4LSH-4RF-1Legaii WpdatatSEPIEconomicDevelopmenttRiffie'slState Cafe Wtate Cafe Lease (version 5).doc
F. IDA TA I.SHAREILegall WpdatalSEPlEconomic DevelopmentlBallte'sWtate Cafe Wate Cafe Lease (version 5).doc
ARTICLE L Basic Lease Provisions .............................................................. ............................... 1
1.1.
Basic Lease Provision ...................................................................... ...............................
1
1.2.
Base Rent ......................................................................................... ...............................
2
ARTICLEII.
Premises ................................................................................... ...............................
2
2.1.
Premises ........................................................................................... ...............................
2
2.2.
Common Areas ................................................................................ ...............................
2
2.3.
Quiet Enjoyment .............................................................................. ...............................
3
ARTICLEIII. Term ....................................................................................... ...............................
3
3.1.
Initial Term ...................................................................................... ...............................
3
3.2.
Extension Options ............................................................................ ...............................
3
3.3.
Holding Over ................................................................................... ...............................
3
ARTICLEIV.
Construction ........................................................................... ...............................
3
4.1.
Landlord's Work . ............................................................................................................
3
4.2.
Tenant's Work .................................................................................. ...............................
4
ARTICLEV.
Rent .......................................................................................... ...............................
5
5.1.
Rent ................................................................................................... ..............................5
5.2.
Additional Rent ................................................................................ ...............................
5
5.3.
Late Charge .............................. ............................... .........
5
5.4.
Tax Expenses ................................................................................... ...............................
5
5.5.
Utilities .............................................................................................. ..............................5
5.6.
Trash Removal ................................................................................. ...............................
6
ARTICLE VI. Alterations and Maintenance of and Repairs to the Premises .............::................
6
6.1.
Landlord Repairs .............................................................................. ...............................
6
6.2.
Tenant Repairs ................................................................................. ...............................
6
6.3.
Tenant Alterations ............................................................................ ...............................
6
6.4.
Signs .................................................................................................. ..............................7
ARTICLEVII. Use ........................................................................................ ...............................
7
7.1.
Use of the Premises .......................................................................... ...............................
7
7.2.
Covenant to Open ............................................................................ ...............................
7
7.3.
Compliance with Law ...................................................................... ...............................
7
7.4.
Operation by Tenant ........................................................................ ...............................
8
7.5.
Storage ..............................................................................................
7.6.
...:..........................8
Sales
and Uses .................................................................................. ...............................
8
7.7.
Emissions and Hazardous Materials ................................................ ...............................
8
7.8.
Inspections .......................................................................................
9
7.9.
...............................
Parking Spaces
................................................................................. ...............................
9
ARTICLE VIII. Insurance and Indemnification ............................................ ...............................
9
8.1.
Tenant's Liability Insurance ............................................................. ...............................
9
8.2.
Hazardous Materials Coverage ...................................................... ...............................
10
8.3,
Dram Shop Coverage .................................................................... ...............................
10
8.4.
Tenant's Additional Insurance ....................................................... ...............................
10
8.5.
Policies ............................................................................................. .............................10
8.6.
Indemnity .........................................................................................
8,7,
.............................10
Release of Subrogation
.................................................................. ...............................
11
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The Tenant will not allow said Premises to be used for any purpose that will increase
the rate of insurance thereon, nor to be occupied in whole or in part by any other person . .....
}l
ARTICLE
IX. Casualty and .-.----.._.----..--..-----,--...--------.--ll
9.1'
---.-------------.------------_.---------.---_---------.-.---ll
9~2.
---'-'`-----'-''-'--'—'---'_--------.--.--,~...._,----..-.--'l2
ARTICLEX.
Surrender ....................................................................................... ........................
l2
lCil.
Surrender oJ Leased Premises ...................................................................................
I3
10.2.
Removal mfCertain ------.-_,----..,.-.------_~'._.-.--....,,---'l3
10.3'
Property Not Removed .............................................................................................
l3
10.4.
Survival of Terms .....................................................................................................
l3
ARTICLEX0. Default .................................................................................................................
l3
11.1.
Events of Default ......................................................................................................
l]
11.2.
Remedies ...................................................................................................................
14
I1.3.
Failure bo Surrender ..................................................................................................
l5
11/4.
Reimbursement of Landlord's Costs in Exercising Remedies ..................................
I5
U.S.
Remedies Are Cumulative ........................................................................................
15
I1.6i
Counterclaim -.---,.----...--.----_.---_------`--------.-~.--_----,I5
11.7.
.............................. .................................................................................
l8
ARTICLE XID and ----------.-------'l7
12L1.
Estoppel Certificates .................................................................................................
l7
12.2.
Att)nnmcn± ...............................................................................................................
l7
12,3.
----`.----.-----`--.-.-_--_--._--_--.-.,--_-_`.-----.-.-,17
ARTICU^EJ0II. and Subletting '------_--------_.------------.------'l@
l3.l.
nzu�
----�------ -----'--�'-------------'---------'-'—~-------'-----'
18
—�'
]3.2L
Assignment 6y Landlord ...........................................................................................
l9
ARTICLEX[V. Miscellaneous .-----....----.--._----_--__---.-..--.---_--------l9
14L1.
Security Deposit --..~-.-------------------.-.-.-..--.-._----...-.-.----,,20
14.2.
Notices ......................................................................................................................
20
14'3,
Waiver .......................................................................................................................
%0
14.4L
Entire Agreement -.------_-----''._----_---------..---.---_--------20
14L5.
Remedies Cumulative ...............................................................................................
2O
14/6.
Accord and Satisfaction ...........................................................................................
20
14J.
Relationship ..-----.-'-------.------------.-^----'_-.`_.--..-.--,----,---.2O
I4`8.
Information . ..............................................................................................................
20
14.9.
-----------------'---------.----.---.---_--__--------2I
I4`I0L
Force Moieoze ...........................................................................................................
2l
I4`1I'
--.----,-,._.,-.,-_~-,-..-.,.—,-.-.-~---..------..--.----,---.2l
14`12'
Successors and --------------.----------.----------------.---'2l
14L13,
Authority .-_._.-.—.---------`-----'----------`----._-------_--..-'2l
l4`l4`
Exculpation . ..............................................................................................................
Zl
14'I5'
Equal Opportunity Obligation -.-.,~.--.-^-.._--~.-----~.-_`---.-.—_-....-~'2l
14.16.
Aou-«.uuuu/uo Requirement ---------_---_-_..-- .............................................
0
F-u,4T4�SHuREU,egm 's�Stateoafe �Stateoafe Lease (versiom5).doc
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Prescribed by the
State Board of Accounts
(2005)
Declaration
County Form 170
This form is to be signed by the preparer of a document and recorded with each document in accordance
with IC 36- 2- 7.5 -5 (a).
1, the undersigned preparer of the attached document,. in accordance with IC 36- 2 -7.5, do hereby affirm
under the penalties of perjury:
1. I have reviewed the-attached document for the purpose of identifying and, to the extent permitted
by law, redacting all Social Security numbers;
2. I have redacted, to the extent permitted by Jaw, each Social Security number in the attached
document.
I, the undersigned, affirm under the penalties of perjury, that the foregoing declarations are true.
+i� of D e arant
Printed Name of Declarant