HomeMy WebLinkAboutNo. 0924 reducing the annual rental on the lease for the SBCDA public improvement project and approving the execution of an addendum to the leaseRESOLUTION NO. 924
RESOLUTION OF THE SOUTH BEND REDEVELOPMENT
COMMISSION REDUCING THE ANNUAL RENTAL ON THE LEASE
FOR THE SOUTH BEND CENTRAL DEVELOPMENT AREA PUBLIC
IMPROVEMENT PROJECT AND APPROVING THE EXECUTION OF AN
ADDENDUM TO THE LEASE
WHEREAS, the South Bend Redevelopment Authority (the "Authority ")
previously entered into a Lease between the Authority and the South_
Bend Redevelopment Commission (the "Commission ") dated as of November
1, 1989 (the "Lease "), pursuant to which the Authority will lease
certain land and public improvements (the "Project ") to the
Commission; and
WHEREAS, bids were received on March 27, 1990, for the sale of
Four Million Eight Hundred Ninety -Five Thousand Dollars ($4,895,000)
of South Bend Redevelopment Authority Lease Rental Revenue Bonds
(South Bend Central Development Area Public Improvement Project) (the
"Bonds ") to finance the Project; and
WHEREAS, the lowest and best bid was received from John Nuveen &
Co. Incorporated (on behalf of itself and certain other underwriters)
( "Nuveen "), as the bidder offering the lowest net interest cost to
the Authority, determined by computing the total interest on all of
the Bonds from the date thereof to their maturities and deducting
therefrom the premium bid, if any, or adding thereto the amount of
any discount, if any, with a net interest rate of 7.3541 %, which bid
was accepted; and
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a ,
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WHEREAS, the award of the sale of
the Bonds will permit a
reduction in the annual rental payments
on the Lease pursuant to
Section 4 of the Lease; and
WHEREAS, the Commission desires to
approve and execute an
addendum to the Lease (the "Addendum "), a
copy of which is attached
hereto as Exhibit "A ", reflecting such lower annual Lease payments
and making certain other amendments to the
Lease; and
NOW, THEREFORE, BE IT RESOLVED BY THE
SOUTH BEND REDEVELOPMENT
COMMISSION, AS FOLLOWS:
1. The Lease shall be amended to
reduce the annual rental
payments as set forth in Exhibit "A" hereto. The Commission herby
approves all other amendments to the Lease
set forth in Exhibit "A"
hereto.
2. All remaining terms, covenants and conditions as set forth
in the Lease shall remain in full force and
effect.
3. The President and Secretary of
the Commission are hereby
authorized and directed to execute and
attest, respectively, the
Addendum and the Amended and Restated
Lease attached hereto as
Exhibit "B ".
4. This resolution shall be in full
force and effect after its
adoption by the Commission.
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ADOPTED at a meeting of the South Bend Redevelopment Commission
held on April 6, 1990, at the office of the Commission, 1200
County -City Building, 227 West Jefferson Boulevard, South Bend,
Indiana 46601.
ATTEST:
Roman Piasecki, Se etary
04 -05 -90
Kn
SOUTH BEND REDEVELOPM NT COMMISSIO
BY
a Nim z, President
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ADDENDUM TO LEASE
SOUTH BEND REDEVELOPMENT AUTHORITY
TO
SOUTH BEND REDEVELOPMENT COMMISSION
(South bend Central Development Area
Public Improvement Project)
THIS ADDENDUM, made and entered into this �f *�' day of April,
1990, by and between the South Bend Redevelopment Authority, a body
corporate and politic organized and existing under Indiana Code
36 -7 -14.5 (hereinafter with its successors and assigns referred to as
the "Authority "), and the South Bend Redevelopment Commission, the
governing body of the South Bend Department of Redevelopment and the
Redevelopment District of South Bend, Indiana (hereinafter called the
"Lessee "),
WITNESSETH:
In consideration of the mutual covenants herein contained it is
agreed that the Lease (South Bend Central Development Area Public
Improvement Project) previously entered into between said parties as
of the first day of November, 1989, shall be amended as follows:
1. The following definitions in Section 1 of the Lease are
amended to read as follows:
"`Permitted Encumbrances' means those items listed in Exhibit A
hereto and any future (a) liens for taxes not then delinquent, (b)
this Lease and the Trust Agreement, leases, subleases and other
agreements permitted pursuant to Section 13 hereof, (c) utility,
access and other easements and rights -of way, restrictions and
exceptions that Lessee certifies will not interfere with or impair
the Project, (d) any mechanics', laborers', materialmen's, suppliers'
or vendors' lien or right in respect thereof if payment is not yet
due and payable and (e) such minor defects, irregularities,
encumbrances, easements, rights -of -way and clouds on title as do not,
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in the opinion of the Trustee, materially impair the Authority's
interest in or Lessee's use of the Project.
"Project' means,.. the real estate (including all right -of -way
easements contained therein) in South bend, Indiana, and improvements
to be made thereon by the Authority or its agent according to plans
and specifications prepared by the project engineers (a list of which
is described in Exhibit B hereto) , all as described in Exhibit C
hereto. The above mentioned plans and specifications and the Project
may be changed and additional construction work may be performed and
improvements may be purchased by the Authority, but only with the
approval of the Lessee (which approval shall not be withheld by the
Lessee in the event of the inability of the Authority to acquire
timely and at a reasonable price all of those real property interests
constituting part of the Project which must be obtained by eminent
domain), and only if such changes or modifications or additional
construction work or improvements do not alter the character of the
Project or reduce the value thereof. Any such additional
construction work or additional improvements shall be part of the
property covered by this Lease. The above - mentioned plans and
specifications have been filed with and approved by the Lessee.
"Lease Resolution' means the resolution of the Commission passed
on February 16, 1990, establishing funds for the payment of lease
rentals."
AW
2. Section 4 of the Lease shall be amended to read in its
entirety as follows:
"Rental Payment Dates and Amounts." The first semiannual rental
installment in the amount of One Hundred Nineteen Thousand Five
Hundred Dollars ($119,500) shall be due on the day that the Project
is completed and ready for use, or January 31, 1993, whichever is
later. If completion is later than January 31, 1993, the first
installment shall be in an amount which provides for rental at the
rate specified in Exhibit B for the semiannual period in which the
Project is completed and ready for use, prorated from the date of
completion until the first July 31 or January 31 following such date
of completion. Thereafter such rentals shall be payable in advance
in semiannual installments on July 31 and January 31 of each year as
provided for in the attached lease payment schedule as Exhibit D.
The last semiannual rental payment due before the expiration of this
Lease shall be adjusted to provide for rental at the rate specified
in Exhibit D for the applicable semiannual period prorated from the
date such installment is due to the date of the expiration of this
Lease (without taking into account any subsequent early termination
of this Lease pursuant to Section 2 hereof).
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"The Lease will not take any action or fail to take any action
that would result in the loss of the exclusion from gross income for
federal tax purposes of interest on the Bonds pursuant to Section 103
(a) of the Internal Revenue Code of 1986, as amended (the "Code "), as
in effect on the date of delivery of the Bonds, nor will the Lessee
act in any manner which would adversely affect such exclusion. The
Lessee further covenants that it will not make any investment or do
any other act or thing during the period that any Bond is outstanding
hereunder which would cause any Bond to be an "arbitrage bond" within
the meaning of Section 148 of the Code and the regulations thereunder
as in effect on the date of delivery of the Bonds. All officers,
members, employees and agents or the Lessee are authorized and
directed to provide certifications of facts and estimates that are
material to the reasonable expectations of the Lessee as of the date
the Bonds are issued and to enter into covenants on behalf of the
Lessee evidencing the Lessee's commitments made herein."
3. The last paragraph of Section 14 shall be amended to read as
follows:
"If the Lessee has not
exercised
its option to purchase
the
Project at the expiration of
the term of
the Lease and upon the
full
discharge and performance by
the Lessee
of its obligations under
this
Lease, the Authority shall
execute a
deed of the Project to
the
Lessee conveying all of its interest. thereto, subject only
to
Permitted Encumbrances."
4. Exhibit "A" of the Lease shall be amended to read as
follows:
"Permitted Encumbrances"
All encumbrances identified in the Title Commitment originally
issued by Lawyers Title Insurance Corporation on March 6, 1990,
Commitment No. 58972, in favor of the South Bend Redevelopment
Commission, as amended and in effect from time to time during the
term of the Lease."
5. Exhibit "D" of the Lease shall be amended to read as
follows:
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Lease Payment Schedule
South Bend Redevelopment Authority
$4,895,000 TIF Lease Rental Bonds of 1990
Semi - Annual
Lease Payments Amounts
1 -31 -93
119,500
7 -31 -93
179,500
1 -31 -94
179,500
7 -31 -94
179,500
1 -31 -95
179,500
7 -31 -95
199,500
1 -31 -96
199,500
7 -31 -96
228,000
1 -31 -97
228,000
7 -31 -97
232,000
1 -31 -98
232,000
7 -31 -98
245,500
1 -31 -99
245,500
7 -31 -99
253,000
1 -31 -00
253,000
7 -31 -00
254,500
1 -31 -01
254,500
7 -31 -01
252,500
1 -31 -02
252,500
7 -31 -02
258,000
1 -31 -03
258,000
7 -31 -03
262,500
1 -31 -04
262,500
7 -31 -04
266,000
1 -31 -05
266,000
7 -31 -05
301,000
1 -31 -06
301,000
7 -31 -06
300,500
1 -31 -07
300,500
7 -31 -07
303,500
1 -31 -08
303,500
7 -31 -08
300,500
1 -31 -09
300,500
7 -31 -09
299,000
1 -31 -10
299,000
7 -31 -10
299,000
1 -31 -11
299,000
7 -31 -11
298,000
1 -31 -12
298,000
(and each 7 -31 and
1 -31 thereafter
during the term of
this lease)
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6. (a) The real estate description set forth in item (4) of
Exhibit "C" of the Lease, relating to the Riverbank Lighting Project,
shall be amended by changing the word "east" in the 9th line of the
first paragraph of the real estate description to the word "west ".
(b) The real estate description set forth in item (7) of
Exhibit "C" of the Lease, relating ' to the Rink Riverside Walkway
Project, shall be amended by to in its entirety as follows:
That part of the Northwest quarter of Section 12, Township 37,
North, Range 2 East and that part of Lots 7, 8, and 9 in the Original
Plat of the Town of Lowell, now a part of the City of South bend as
recorded in the records of St. Joseph County, Indiana, which is
described as:
Beginning at the point of intersection of the North line of
Colfax Avenue and the West line of Sycamore Street; thence, North
along West line a distance of 10 feet; thence West (assumed bearing)
along a line 10 feet North and parallel to the North line of Colfax
Avenue, a distance of 100 feet; thence Northwesterly along a line of
10 feet, more or less, Easterly of the Easterly Bank of the St.
Joseph River a distance of 89 feet; thence West along a projected
line perpendicular with the St. Joseph River a distance of 5 feet;
thence Northwesterly along a parallel line 5 feet Easterly of the
Easterly bank of the St. Joseph River a distance of 40 feet, more or
less; thence East along a line perpendicular with the St. Joseph
River a distance of 10 feet; thence Northwesterly along a parallel
line 15 feet more or less Easterly of the Easterly Bank of the St.
Joseph River a distance of 11 feet, more or less; thence West 10 feet
along a line perpendicular to the St. Joseph River; thence
Northwesterly to a point on the North lot line of Lot 7, a distance
of 10 feet more or less, East of the Easterly bank of the St. Joseph
River; thence West (assumed bearing) along said North lot line a
distance of 10 feet, more or less, to the Easterly bank of the St.
Joseph River; thence Southeasterly along said Easterly bank to the
projected north line of Colfax Avenue; thence East along said North
line and its projection back to the point of beginning.
7. The parties hereto acknowledge that all remaining terms,
covenants and conditions as set forth in 5the Lease between the
parties hereto and executed as of the first day of November, 1989
shall remain in full force and effect.
I
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IN WITNESS WHEREOF, the parties hereto have caused this Addendum
to Lease to be executed for and on their behalf on the day and year
first hereinabove written.
ATTE
Geo
ATTEST<
Roman Piasecki, Secretary
SOUTH BEND REDEVELOPMENT AUTHORITY
BY: qLd-cd,
:Ko iephV Wroblewski, President
ry- 'treasurer
SOUTH BEND REDEVELOPMENT COMMISSION
B
<!g7! . Pre ent
0
STATE OF INDIANA )
SS:
COUNTY OF ST_ .TOSFPH )
Before me, the undersigned, a Notary Public in and for said
State, personally appeared Joseph Wroblewski and George McCullough,
personally known by me to be the President and Secretary- Treasurer,
respectively, of the South Bend Redevelopment Authority, and
acknowledged the execution of the foregoing Addendum to Lease for and
on behalf of said Authority.
WITNESS my hand and Notarial Seal this 6 t ;__ day of
April , 1990.
(W1` tten Signature)
Cheryl K. Phipps
(Printed Signature)
(SEAL)
My Commission Expires: January 7, 1991
I am a resident of St. Joseph County, Indiana.
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STATE OF INDIANA )
SS:
COUNTY OF 0,T_ .TngFPH )
Before me, the
undersigned
A Notary Public in and for said
State,
personally appeared
F. Jay Nimtz and Roman Piasecki, personally
known
by me to be the President and
Secretary, respectively, of the
South
bend Redevelopment
Commission,
and acknowledged the execution
of the
foregoing Addendum
to lease for
and on behalf of said Commission.
WITNESS my hand and
A� ri 1 1990.
Notarial Seal this
6th
/i t � -;Z
(Written Signa tire)
Cheryl K Phipps
(Printed Signature)
day of
(SEAL)
My Commission expires: January 7, 1991
I am a resident of St. Joseph County, Indiana.
This instrument was prepared by Thomas A. Pitman, Baker & Daniels,
300 North meridian Street, Indianapolis, Indiana 46204
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AMENDED AND RESTATED LEASE
Between
SOUTH BEND
REDEVELOPMENT AUTHORITY
and
SOUTH BEND REDEVELOPMENT COMMISSION
DATED AS OF NOVEMBER 1, 1989
(SOUTH BEND CENTRAL DEVELOPMENT AREA
PUBLIC IMPROVEMENT PROJECT)
1
2
3
3
4
5
5
5
5
6
6
6
7
7
8
8
8
8
INDEX
Section
1.
Definitions
Section
2.
Lease of Project
Section
3.
Rental Payments
Section
4.
Rental Payment Dates
Section
5.
Abatement of Rent
Section
6.
Net Lease
Section
7.
Nonliability of Authority
Section
8.
Alterations
Section
9.
Insurance
Section
10.
Use of Insurance and
Condemnation Proceeds
Section
11.
Liability Insurance
Section
12.
General Insurance Provisions
Section
13.
General Covenants
Section
14.
option to Purchase
Section
15.
Defaults
Section
16.
Notices
Section
17.
Construction of Covenants
Section
18.
successors or Assigns
Exhibit
A
Permitted Encumbrances
Exhibit
B
Project Engineers
Exhibit
C
Project Descriptions
Exhibit
D
Lease Payment Schedule
1
2
3
3
4
5
5
5
5
6
6
6
7
7
8
8
8
8
LEASE
This Lease entered into as of the 1st day of November, 1989
between SOUTH BEND REDEVELOPMENT AUTHORITY, a body corporate and
politic organized and existing under Indiana Code 36 -7 -14.5 (the
"Authority) and SOUTH BEND REDEVELOPMENT COMMISSION, the governing
body of the South Bend Department of Redevelopment and the
Redevelopment District of South Bend, Indiana (the "Lessee "), acting
for and on behalf of the City of South Bend, Indiana.
WITNESSETH:
Section 1. Definitions. The terms defined in this Section
1 shall for all purposes of this Lease have the meanings herein
specified unless the context otherwise requires.
"Act" means Indiana Code 36 -7 -14.5, as the same from time to
time may be amended or supplemented.
"Authority" means the South Bend Redevelopment Authority, a
body corporate and politic organized and existing under the Act, or
if said Authority shall be abolished, the authority, board, body,
instrumentality or agency succeeding to the principal functions
thereof.
"Bonds" means South Bend Redevelopment Authority Lease Rental
Revenue Bonds (South Bend Central Development Area Public Improvement
Project) .
"Lease" means this Lease as the same may be amended, modified
or supplemented by any amendments or modifications hereof or
supplements hereto entered into in accordance with the provisions
hereof.
"Lessee" means the South Bend Redevelopment Commission, the
governing body of the South Bend Department of Redevelopment and the
Redevelopment District of South Bend, Indiana, or if said Commission
shall be abolished, the commission, board, body or agency succeeding
to the principal functions thereof.
"Lease Resolution" means the resolution of the Commission
passed on February 16, 1990, establishing funds for the payment of
lease rentals.
"Permitted Encumbrances" means those items listed in Exhibit A
hereto and any future (a) liens for taxes not then delinquent, (b)
this Lease and the Trust Agreement, leases, subleases and other
agreements permitted pursuant to Section 13 hereof, (c) utility,
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twenty -two (22) years, beginning on the date the Project is complete
and ready for use, and ending on the day prior to such date
twenty -two (22) years thereafter. However, the term of this Lease
shall terminate at the earlier of (a) the exercise of the option to
purchase by Lessee and payment of the option price, or (b) the
payment or defeasance of all obligations of Lessor incurred (i) to
finance the cost of the leased property, (ii) to refund such
obligations, (iii) to refund such refunding obligations, or (iv) to
improve the leased property. The date the Project is complete and
ready for use shall be endorsed on this Lease at the end hereof by
the parties hereto as soon as the same can be done after such
completion and such endorsement shall be recorded as an addendum to
this Lease. The Authority hereby represents that it is possessed of,
or will acquire, a good and indefeasible estate in fee simple or an
insurable right -of -way easement subject only to Permitted
Encumbrances, to the above - described real estate, and the Authority
warrants and will defend the same against all claims whatsoever not
suffered or caused by the acts or omissions of the Lessee.
Section 3. Rental Payments. (a) During the term of this
Lease, the Lessee agrees to pay rental for said premises as set forth
in Section 4 hereof. Such rental shall be paid from the South Bend
Central Development Area Public Improvement Project Principal and
Interest Account of the Redevelopment District Bond Fund. All
rentals payable under the terms of this Lease shall be paid to the
Trustee or to such other bank or trust company as may from time to
time succeed the Trustee under the Trust Agreement. All payments so
made shall be considered as payments to the Authority of the rentals
payable hereunder. The Lessee shall receive credit for any Bond
maturing within seven (7) days of the date of the lease rental
payment, at the face value thereof, which the Lessee acquires and
delivers to the Trustee as a part of its lease rental payment; (b) as
additional rental the Lessee agrees to pay all fees, charges and
reimbursement of expenses of the Trustee under the Trust Agreement
and all prudent charges and expenses of the Authority incurred in the
performance of its obligations hereunder.
Section 4. Rental Payment Dates and Amounts. The first
semiannual rental installment in the amount of One Hundred Nineteen
Thousand Five Hundred Dollars ($119,500) shall be due on the day that
the Project is completed and ready for use, or January 31, 1993,
whichever is later. If completion is later than January 31, 1993,
the first installment shall be in an amount which provides for rental
at the rate specified in Exhibit B for the semiannual period in which
the Project is completed and ready for use, prorated from the date of
completion until the first July 31 or January 31 following such date
of completion. Thereafter such rentals shall be payable in advance
in semiannual installments on July 31 and January 31 of each year as
provided for in the attached lease payment schedule at Exhibit D.
The last seminannual rental payment due before the expiration
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access and other easements and rights -of -way, restrictions and
exceptions that Lessee certifies will not interfere with or impair
the Project, (d) any mechanics', laborers', materialmen's, suppliers'
to or vendors' lien or right in respect thereof if payment is not yet
due and payable and (e) such minor defects, irregularities,
encumbrances, easements, rights -of -way and clouds on title as do not,
in the opinion of the Trustee, materially impair the Authority's
interest in or Lessee's use of the Project.
"Project" means the real estate (including all right -of -way
easements contained therein) in South Bend, Indiana, and improvements
to be made thereon by the Authority or its agent according to plans
and specifications prepared by the project engineers (a list of which
is described in Exhibit B hereto), all as described in Exhibit C
hereto. The above mentioned plans and specifications and the Project
may be changed and additional construction work may be performed and
improvements may be purchased by the Authority, but only with the
approval of the Lessee (which approval shall not be withheld by the
Lessee in the event of the inability of the Authority to acquire
timely and at a reasonable price all of those real property interests
constituting part of the Project which must be obtained by eminent
domain), and only if such changes or modifications or additional
construction work or improvements do not alter the character of the
Project or reduce the value thereof. Any such additional
construction work or additional improvements shall be part of the
property covered by this Lease. The above - mentioned plans and
specifications have been filed with and approved by the Lessee.
"Redevelopment District Bond Fund" means the Redevelopment
District Bond Fund of Lessee authorized by Indiana Code 36- 7 -14 -27
and the Lease Resolution.
"South Bend Central Development Area Public Improvement
Project Principal and Interest Account" means the account by that
name created in the Redevelopment District Bond Fund by the Lease
Resolution.
"Trust Agreement" means the Trust Agreement dated as of
November 1, 1989, between the Authority and the Trustee, securing the
Bonds.
"Trustee" means First Interstate Bank of Northern Indiana,
N.A., 112 West Jefferson Boulevard, South Bend, Indiana, as Trustee
pursuant to the Trust Agreement, and any successor trustee.
Any term not defined herein, which is defined in the Lease
Resolution or in the Trust Agreement, shall have the meaning as
defined in such resolution or agreement.
Section 2. Lease of Project. In consideration of the
rentals and other terms and conditions herein specified the Authority
does hereby lease, demise and let to the Lessee the Project: TO HAVE
AND TO HOLD the same with all rights, privileges, easements and
appurtenances thereunto belonging, unto the Lessee for a term of
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of this Lease shall be adjusted to provide for rental at the rate
specified in Exhibit D for the applicable semiannual period prorated
from the date such installment is due to the date of the expiration
of this Lease (without taking into account any subsequent early
termination of this Lease pursuant to Section 2 hereof) .
The Lessee will not take any action or fail to take any action
that would result in the loss of the exclusion from gross income for
federal tax purposes of interest on the Bonds pursuant to Section
103(a) of the Internal Revenue Code of 1986, as amended (the "Code "),
as in effect on the date of delivery of the Bonds, nor will the
Lessee act in any manner which would adversely affect such
exclusion. The Lessee further covenants that it will not make any
investment or do any other act or thing during the period that any
Bond is outstanding hereunder which would cause any Bond to be an
"arbitrage bond" within the meaning of Section 148 of the Code and
the regulations thereunder as in effect on the date of delivery of
the Bonds. All officers, members, employees and agents of the Lessee
are authorized and directed to provide certifications of facts and
estimates that are material to the reasonable expectations of the
Lessee as of the date the Bonds are issued and to enter into
covenants on behalf of the Lessee evidencing the Lessee's commitments
made herein.
Section 5. Abatement of Rent. In the event that all or a
CO portion of the Project shall be damaged or destroyed so as to render
the damaged or destroyed portion of the Project unfit for its
intended use, it shall then be the obligation of the Authority to
restore and reconstruct the damaged or destroyed portion of the
Project as promptly as may be done, unavoidable strikes and other
causes beyond the control of the Authority excepted, if, in the
opinion of an independent registered architect, registered engineer,
construction manager or contractor selected by the Lessee and
acceptable to the Trustee, (i) the cost of such restoration or
reconstruction does not exceed the amount of the proceeds received by
the Authority from the insurance provided for in Section 9 hereof
plus other moneys available therefor and (ii) such restoration or
reconstruction can be completed within the period of time covered by
the rental value insurance provided for in Section 9 hereof. If
either or both conditions shall not exist, the proceeds received from
the insurance provided for in Section 9 hereof shall be applied to
the option to purchase price provided for in Section 14 hereof. The
rental shall be abated pro rata for the period during which the
damaged or destroyed portion of the Project is unfit for its intended
use.
Section 6. Net Lease. It is expressly understood and
agreed that this Lease shall be what is known as a net lease (i_e.,
the rent being absolutely net to the Authority and that all other
expenses in connection with the Project of any nature whatsoever
shall be those of the Lessee) and that during the lease term the
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Lessee shall be obligated to pay as its expenses without
reimbursement from the Authority all costs of taxes and assessments,
if any, and maintenance, operation and use in connection with or
relating to the Project, including but not limited to all costs and
expenses of all services, repair or replacement of all parts of the
Project or improvements of the Project.
Section 7. Nonliability of Authority. The Authority shall
not be liable for damage caused by hidden defects or failure to keep
the Project in repair and shall not be liable for any damage done or
occasioned by or from plumbing, gas, water, or other pipes or the
bursting or leaking of plumbing or heating fixtures in connection
with said premises, nor for damage occasioned by water, snow or ice.
The Authority shall not be liable for any injury to the Lessee or any
sublessee of the Lessee or any other person which injury occurs on,
in or about the Project howsoever arising. The Authority shall not
be liable for damage to the Lessee's property or to the property of
any sublessee of the Lessee or of any other person which may be
located in, upon or about the Project.
Section B. Alterations. Lessee shall have the right,
without the consent of the Authority, to make all alterations,
modifications and additions and to do all improvements it deems
necessary or desirable to the Project, which do not reduce the rental
value of the Project.
Section 9. Insurance. The Lessee, at its own expense, will,
during the full term of the Lease, keep the Project insured against
physical loss or damage, however caused, with such exceptions as are
ordinarily required by insurers of properties of a similar type, in
good and responsible insurance companies acceptable to the
Authority. Such insurance shall be in an amount at least equal to
the greater of (i) the option to purchase price or (ii) one hundred
percent (100 %) of the full replacement cost of such Project as
certified by a registered architect, a registered engineer, or
professional appraisal engineer, selected by the Authority with the
approval of the Trustee, on the effective date of this Lease and on
or before the first day of April of each year thereafter; provided
that such certification shall not be required so long as the amount
of such insurance shall be in an amount at least equal to the option
to purchase price. Such appraisal may be based upon a recognized
index of conversion factors. In no event shall the insurance be in
an amount which causes the Lessee to be a co- insurer for the
Project. Such insurance may contain a provision for a deductible in
an amount not exceeding $25,000. Lessee agrees to pay the deductible
amount of any loss to the Authority. A blanket public institutional
property insurance form may be used if:
(a) the insurance on the Project is not less than the amount
required by this Section,
-5-
(b) the Lessee subordinates its claim for damage or
destruction to other buildings or improvements to claims
for damage or destruction of the Project, and
(c) the insurance proceeds related to damage to or
destruction of the Project are payable to the Trustee.
During the full term of this Lease, the Lessee will also, at its own
expense, maintain rental or rental value insurance in an amount at
least equal to the full rental specified in Section 4 for a period of
two (2) years against physical loss or damage of the type insured
against pursuant to the preceding requirements of this Section. Such
policies shall be for the benefit of and shall be made payable to the
Trustee.
Section 10. Use of Insurance and Condemnation Proceeds.
Proceeds of insurance against damage to or destruction of the Project
or proceeds of any condemnation of the Project shall be paid to and
held by the Trustee and used to pay for reconstruction or replacement
of the Project in accordance with plans approved by the Authority and
the Lessee, unless the Lessee elects to exercise its option to
purchase.
Section
11. Liability Insurance. The Lessee shall,
at all
ff�
times during
the full term of
this Lease, keep in effect,
public
liability and
property damage
insurance, insuring the Lessee,
the
Authority and
the Trustee in amounts customarily carried for
similar
properties.
Such insurance
may be provided under the
public
liability self
insurance program
of the City of South Bend.
Section 12. General Insurance Provisions. All insurance
policies required by Sections 9 and 11, other than insurance provided
under the public liability self insurance program of the City of
South Bend, shall be with insurance companies rated B+ or better by
A.M. Best Company (or a comparable rating service if A.M. Best
company ceases to exist or rate insurance companies), and shall be
countersigned by an agent of the insurer who is a resident of the
State of Indiana, and such policies, or copies thereof, and the
certificate of the architect or engineer referred to in Section 9
shall be deposited with the Authority and the Trustee. If, at any
time, the Lessee fails to maintain insurance in accordance with
Sections 9 and 11, such insurance may be obtained by the Authority,
or may be obtained by the Trustee, and the amount paid for such
insurance shall be added to the amount of rental payable by the
Lessee under this Lease; provided, however, that neither the
Authority nor the Trustee shall be under any obligation to obtain
such insurance, and any action or non- action of the Authority or
Trustee in this regard shall not relieve the Lessee of any
consequences of a default in failing to obtain such insurance.
Section 13. General Covenants. The Lessee shall not assign
this Lease or sublet any part of the Project herein described without
the prior written consent of the Authority; provided, however, that
the Lessee shall in no event assign this Lease or sublet any part of
the Project if such assignment or sublease will result in the loss of
the exclusion from gross income for federal tax purposes of interest
on any obligation issued by the Authority to finance the Project.
The Lessee covenants that, except for Permitted Encumbrances, it will
not encumber the Project, or permit any encumbrance to exist thereon,
and that it shall use and maintain the Project in accordance with the
laws and ordinances of the United States of America, the State of
Indiana, and all other proper governmental authorities. The
Authority agrees that it will, at the request of the Lessee, execute
and deliver to or upon the order of the Lessee such instrument or
instruments as may be reasonably required by the Lessee in order to
subject the Project, or the Authority's interest therein, to such
encumbrances as shall be specified in such request and as shall be
permitted by the provisions of this Section 13 or otherwise by the
definition of "Permitted Encumbrances ".
Section 14. Option to Purchase. Authority hereby grants
Lessee the right and option, on any rental payment date, upon thirty
days' written notice to the Authority, to purchase the Project at a
price equal to the amount required to enable the Authority to provide
for the redemption of all outstanding Bonds, all premiums payable on
the redemption thereof, and accrued and unpaid interest, and to pay
the cost of redeeming the Bonds and liquidating the Authority if it
is to be liquidated.
Upon request of the Lessee, the Authority agrees to furnish an
itemized statement setting forth the amounts required to be paid by
the Lessee on the next rental payment date in order to purchase the
Project in accordance with the preceding paragraph.
If the Lessee exercises its option to purchase, the Lessee
shall pay to the Trustee that portion of the purchase price which is
required to provide for the payment of all the Bonds, including all
premiums payable on the redemption thereof, accrued and unpaid
interest thereon and the costs of redemption thereof. Such payment
shall not be made until the Trustee gives to the Lessee a written
statement, that such amount will be sufficient to retire all Bonds
including all premiums payable on the redemption thereof and accrued
and unpaid interest.
The remainder of such purchase price, if any, shall be paid by
the Lessee to the Authority. Nothing herein contained shall be
construed to provide that the Lessee shall be under any obligation to
purchase the Project, or under any obligation in respect to any
creditors or bondholders of the Authority.
-7-
If the Lessee has not exercised its option to purchase the
Project at the expiration of the term of the Lease and upon the full
COdischarge and performance by the Lessee of its obligations under this
Lease, the Authority shall execute a deed of the Project to the
Lessee conveying all of its interest thereto, subject only to
Permitted Encumbrances.
Section 15. Defaults. If the Lessee shall (a) default in the
payment of any rentals or other sums payable to the Authority
hereunder, or in the payment of any other sum herein required to be
paid for the Authority, (b) fail to comply with the terms set forth
in the Lease Resolution, or (c) default in the observance of any
other covenant, agreement or condition hereof, and such default under
(c) shall continue for ninety (90) days after written notice to
correct the same, then, in any of such events, the Authority may
proceed to protect and enforce its rights, either at law or in
equity, by suit, action, mandamus or other proceedings, whether for
specific performance of any covenant or agreement contained herein or
for the enforcement of any other appropriate legal or equitable
remedy.
Section 16. Notices. Whenever either party shall be required
to give notice to the other under this Lease, it shall be sufficient
service of such notice to deposit the same in the United States mail,
in an envelope duly stamped, registered and addressed to the other
party at its last known place of business. A copy of any notice
shall be mailed by first -class mail to the Trustee at its last known
place of business.
Section 17. Construction of Covenants. All provisions
contained herein shall be construed in accordance with the provisions
of the Act and to the extent of inconsistencies, if any, between the
covenants and agreements in this Lease and the provisions of the Act,
the provisions of said Act shall be deemed to be controlling and
binding upon the parties.
Section 18. Successors or Assigns. All covenants of this
Lease, whether by the Authority or the Lessee, shall be binding upon
the successors and assigns of the respective parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Lease
to be executed for and on their behalf as of the day and year first
hereinabove written.
SOUTH BEND REDE ELOPM NT JAUTHORITY
By:
ose Wroblewski, President
ATTEST:
George McCullough, Secretary jTreasurer
SOUTH BEND REDEVELOPMENT COMMISSION
By:
F. Jay Nim , Presi ent
7CT:
Roman Piasecki, Secretary~
3 -29 -90
C
om
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for said
State, personally appeared Joseph Wroblewski and George McCullough,
personally known by me to be the President and Secretary- Treasurer,
respectively, of the South Bend Redevelopment Authority, and
acknowledged the execution of the foregoing Lease for and on behalf
of said Authority.
WITNESS my hand and Notarial Seal this 6th day of Aprii
1990.
(SEAL)
My commission expires:
January 7, 1991
I am a resident of
Tnca.,h County, Indiana.
-10-
(Writt n Signatu e
Ch'-rvl Tt Phipps
(Printed Signature)
(Written Signature)
(Printed Signature
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for said
State, personally appeared F. Ja Nimtz and Roman Piasecki,
personally known by me to be ythe President and Secretary,
respectively, of the South Bend Redevelopment Commission, and
acknowledged the execution of the foregoing Lease for and on behalf
of said Commission.
WITNESS my hand and Notarial Seal this hrh day of Aprj 1 ,
1990.
�t Chc t
(Writte Signature)
Co Cheryl K. Phipps
(Printed Signature)
(Written Signature)
(Printed Signature)
(SEAL)
My commission expires:
January 7, 1991
I am a resident of
St. Joseph County, Indiana.
-This instrument was prepared by Richard L. Hill, Parker & Jaicomo, 205
West Jefferson Boulevard, South Bend, Indiana 46601.
-11-
EXHIBIT "A"
PERMITTED ENCUMBRANCES
"All encumbrances identified in the Title Commitment originally
issued by Lawyers Title Insurance Corporation on March 6, 1990,
Commitment No. 58972, in favor of the South Bend Redevelopment
Commission, as amended and in effect from, time to time during the
term of the Lease."
19
cwwr
EXHIBIT D
LEASE PAYMENT SCHEDULE
South Bend Redevelopment Authority
$4,895,000 TIF Lease Rental Bonds of 1990
:�M
C�wr
Semi - Annual
Lease Payments Amounts
1/31/93
119,500
7/31/93
179,500
1/31/94
179,500
7/31/94
179400
1/31/95
179,500
7/31/95
199,500
1/31/95
199,500
7/31/96
2289000
1/31/97
228,000
7/31/97
232,000
1/31/98
2329000
7/31/98
245400
1/31/99
245,500
7/31/99
253,000
1/31/00
753,000
7/31/00
254,500
1/31/01
254,500
7/31/01
252,500
1/31/02
252,500
7/31/02
258,000
1/31/03
258,000
7/31/03
262,500
1/31/04
262,500
1/31%05
266,000
7/31/05
301,000
1/31/06
3010000
7/31/06
300,300
1/31/07
300,500
7/31/07
303,500
1 /31/08
303,500
7/31/08
300,500
1/31/09
309,500
7/31/09
290,000
1/31/10
7/31/10
299,400
299- 1000
1/31/11
299,000
7/31/11
298,000
1/31/12
298,000
(and each 7 -31 and
1 -31 thereaftar
during the term of
this lease)