HomeMy WebLinkAbout9853-08 Approving the second addendum to lease for certain additional public improvements between SB Redev Authority and SB Redev CommORDINANCE No.
Passed by the Common Council of the City of South Bend, Indiana
June 23,
Attest:
Attest:
June 26
Presented by me to the Mayor of the City of South Bend, Indiana
June 25,
20 08
20 08
City Clerk
President of Common Council
City Clerk
Approved and signed by me
20 0 $
w~ ~
Mayer
ORDINANCE NO. L gs~-~ ~g
AN ORDINANCE OF THE COMMON COUNCIL
OF THE CITY OF SOUTH BEND, INDIANA,
APPROVING A SECOND ADDENDUM TO LEASE FOR CERTAIN
ADDITIONAL PUBLIC IMPROVEMENTS BETWEEN THE SOUTH
BEND REDEVELOPMENT AUTHORITY AND THE SOUTH BEND
REDEVELOPMENT COMMISSION
STATEMENT OF PURPOSE AND INTENT
The South Bend Redevelopment Commission (the "Commission"), governing
body of the South Bend Department of Redevelopment and the South Bend Redevelopment
District (the "Redevelopment District"), exists and operates under the provisions of Indiana Code
36-7-14, as amended from time to time (the "Act"); and
The Commission has adopted various resolutions (i) declaring certain real estate
in the Redevelopment District, known as the South Bend Central Development Area (the
"Area"), to be a redevelopment area within the meaning of the Act, determining that it would be
of public utility and benefit to redevelop the Area pursuant to a development plan, as amended,
and (ii} designating the entire Area as an allocation area having boundaries as described in
Declaratory Resolution No. 137, as amended; and
The South Bend Redevelopment Authority (the "Authority") previously entered
into a lease by and between the Authority and the Commission dated as of November 1, 1993, as
amended by an Addendum to Lease dated as of June 3, 1994 (collectively, the "Lease"), which
Lease was heretofore approved by the Commission, and pursuant to which the Authority leases
to the Commission certain real estate and local public improvements at the Century Center; and
BDDBOI 5237694v3
The Authority at a meeting on May 21, 2008, adopted a resolution, which, among
other things, approved a proposed Second Addendum to Lease between the Authority and the
Commission to be dated as of June 1, 2008 (the "Second Addendum"), for certain additional
local public improvements Located in the Area including, without limitation, the following
improvements to the Century Center: the addition of skylight safety film, the replacement of
boilers and chillers, repairs on Island Park, the replacement of the fire alarm and security
systems, the renovation of seven (7) restrooms, the renovation of C Hall, the replacement of the
roofs, site lighting additions, exterior masonry work, and additional enhancements to the
building, grounds and streetscape including, but not limited to, street level and river level
interior and exterior signage, enhancement to the upper level offices, and enhancement to the
front of building and viewing park and related improvements, and the acquisition of an interest in
certain improvements previously financed with the issuance of the St. Joseph County, Indiana
Special Tax Bonds of 1992, which were previously refunded with the issuance of the St. Joseph
County, Indiana Special Tax Bonds of 199$ (collectively, the "2008 Project"), and directed the
Secretary-Treasurer of the Authority to file a copy of said Second Addendum, as approved, with
the Commission; and
The Commission, at a meeting on May 16, 2008, approved the form of the Second
Addendum, scheduled a public hearing on said Second Addendum to be held on June 13, 2008,
pursuant to Indiana Code 36-7-14-25.2, and authorized the publication of a notice of public
hearing on said Lease pursuant to Indiana Code 5-3-1, and authorized the Secretary of the
Commission to file with the Common Council of the City of South Bend, Indiana (the "Common
Council"), an approving ordinance for the purposes of said Common Council's finding, prior to
the Commission's execution of said Second Addendum, that the rental payments are fair and
BDDBOI 5237694v3 - 2 -
reasonable and that the use of the 2008 Project throughout the term of said Second Addendum
will serve the public purpose of the City of South Bend, Indiana (the "City"), and is in the best
interests of its residents, and for purposes of approving the Second Addendum; and
On June 13, 2008, said public hearing was held and all interested parties were
provided the opportunity to be heard at the hearing; and
The Commission, at its meeting on June 13, 2008, adopted a resolution finding,
pursuant to Indiana Code 36-7-14.5-14, that the rental payments to be paid by the Commission to
the Authority pursuant to said Second Addendum, subject to reduction as set forth in the Second
Addendum, in semiannual installments beginning on the day the 2008 Project is completed and
ready for use, or April 15, 2009, whichever is later, are fair and reasonable, and finding, pursuant
to Indiana Code 36-7-14-25.2, that the use of the 2008 Project throughout the term of the Second
Addendum will serve the public purpose of the City, and is in the best interests of its residents;
and
The Common Council desires to modify and approve said Second Addendum,
pursuant to Indiana Code 36-7-14-25.2, which provides that any lease approved by a resolution
of the Commission must be approved by an ordinance of the fiscal body of the unit;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL
OF THE CITY OF SOUTH BEND, INDIANA:
1. The Common Council hereby finds that annual rental payments in the
amount not to exceed Six Hundred Thousand and 00/100 Dollars ($600,000.00), payable in
semiannual amounts of Three Hundred Thousand and 00/100 Dollars ($300,000.00), are fair and
reasonable, and further finds that the use of the 2008 Project throughout the term of the Second
Addendum will serve the public purpose of the City and is in the best interests of its residents.
BDDBOI 5237694v3 - 3 -
2. The Common Council hereby approves said Second Addendum, as
approved by the Commission and as modified hereby, pursuant to Indiana Code 36-7-14-25.2, in
substantially the form provided at this meeting and attached hereto as Exhibit A. The Common
Council directs the Commission and the Authority to act to amend the Second Addendum as
necessary to reflect the approval provided in this Ordinance.
3. This Ordinance shall be in full force and effect from and after the time it
has been adopted by the Common Council, approved by the Mayor, and otherwise executed and
delivered in accordance with any and all laws pertaining thereto.
*****
BDDBOI 5237694v3 - 4 -
COMMON COUNCIL
OF THE CITY OF SOUTH BEND, INDIANA
ATTEST:
'ty Cle
.- f~ ~
Member of the mon Council
Presented by me to the Mayor of the City of South Bend, Indiana, on the Z-~.
day of ~ a..v~ , 2008, at `~ ~~~ o'clock __~__.m.
._- ~~~
City Cle , p~ ~.~k,~
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Approved and signed by me on the ~~ day of '~''~-~-- , 2008, at
o'clock m.
pUBlIG HEARING ~-Z3-`~~ aS ~ ~1as-~~
(3rd READING x-23-08 ~S ~u~05'~"~~"~°~~
NOT APPROVED
REFERRED v QS ~~(o~,~.~Q~
Pd'~SSED 6 "Z'~ ' ~
BDDBOI 5237694v3
~~ ~~~
Mayor, City of So th Bend, Indiana
Filed !t"1 C1~1'~C'S Office
aura 2 3 2008
Jvi'! ~'40RDE
- S - CITY CL.E=3K, S0. BEND, IN.
TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND:
Your Committee of the Whole, to whom was referred:
BILL NO.
37-08 A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,
INDIANA APPROVING A SECOND ADDENDUM TO LEASE FOR
CERTAIN ADDITIONAL PUBLIC IMPROVEMENTS BETWEEN THE
SOUTH BEND REDEVELOPMENT AUTHORITY AND THE SOUTH
BEND REDEVELOPMENT COMMISSION
Respectfully report that they have examined the matter and that in their opinion, this bill is
being recommended to the full Council with a favorable recommendation as substituted by
adding the amount $600,000.00, payable in semiannual amounts of $300,000.00
Derek D. Dieter
Chairperson, Committee of the Whole
EXHIBIT A
[FORM OF LEASE]
BDDBOI 5237694v3
SECOND ADDENDUM TO THE LEASE
DATED AS OF NOVEMBER 1, 1993
Between
SOUTH BEND REDEVELOPMENT AUTHORITY
and
SOUTH BEND REDEVELOPMENT COMMISSION
DATED AS OF JUNE 1, 2008
(Century Center 2008 Project)
BDDBOI 5233044v3
INDEX
Page
Section 1. Definitions ..................................................................................................................... 1
Section 2. Lease of 2008 Project ..................................................................................................... 2
Section 3. Rental Payments ............................................................................................................. 2
Section 4. Rental Payment Dates and Amounts .............................................................................. 2
Section 5. Abatement of Rent ......................................................................................................... 3
Section 6. Net Lease ....................................................................................................................... 4
Section 7. Nonliability of Authority ............................................................................................... 4
Section 8. Alterations ...................................................................................................................... 4
Section 9. Insurance ........................................................................................................................ 4
Section 10. Use of Insurance and Condemnation Proceeds ............................................................ 5
Section 11. Liability Insurance ....................................................................................................... 5
Section 12. General Insurance Provisions ...................................................................................... 5
Section 13. General Covenants ....................................................................................................... 5
Section 14. Option to Purchase ....................................................................................................... 6
Section 15. Defaults ........................................................................................................................ 6
Section 16. Notices ......................................................................................................................... 6
Section 17. Construction of Covenants ........................................................................................... 7
Section 18. Successors or Assigns .................................................................................................. 7
Section 19. Supplement to Lease .................................................................................................... 7
Exhibit A 2008 Project Description
BDDBOI 5233044v3
SECOND ADDENDUM TO LEASE
This Second Addendum to Lease entered into as of the ls` day of June, 2008,
between the SOUTH BEND REDEVELOPMENT AUTHORITY, a body corporate and politic
organized and existing under Indiana Code 36-7-14.5 (the "Authority") and the SOUTH BEND
REDEVELOPMENT COMMISSION, the governing body of the City of South Bend
Department of Redevelopment and the Redevelopment District of the City of South Bend,
Indiana (the "Lessee"), acting for and on behalf of the City of South Bend, Indiana, for the
purpose of amending the Lease dated as of November 1, 1993, as amended by an Addendum to
Lease dated as of June 3, 1994 both of which were recorded in the office of the St. Joseph
County Recorder as Documents 9423717 and 9423718, respectively (hereinafter collectively
referred to as the "Lease").
WITNESSETH:
Section 1. Definitions. The terms defined in this Section 1 shall for all purposes
of this Second Addendum to Lease have the meanings herein specified unless the context
otherwise requires and shall supplement the definitions contained in the Lease.
"2008 Bonds" means South Bend Redevelopment Authority Lease Rental
Revenue Bonds (Century Center 2008 Project).
"2008 Century Center Principal and Interest Account" means the account
by that name created in the Redevelopment District Bond Fund by the 2008 Lease
Resolution.
"2008 Lease Resolution" means the resolution of the Commission passed
on , 2008, establishing funds for the payment of lease rentals.
"2008 Project" means the real estate (including all right-of--way easements
contained therein) in St. Joseph County, Indiana, described as the Century Center Portion
in Exhibit A of the Lease and the local public improvements to be completed thereon by
the Authority or its agent according to the plans and specifications prepared by its
consultants, all as described in Exhibit A hereto. The above mentioned plans and
specifications 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, and only if such changes or modifications or additional construction work or
improvements do not alter the character of the 2008 Project or reduce the value thereof.
Any such additional construction work or additional improvements shall be part of the
property covered by this Second Addendum to Lease. The above-mentioned plans and
specifications have been filed with and approved by the Lessee.
"2008 Trust Agreement" means the Trust Agreement dated as of ,
2008, between the Authority and the Trustee, securing the 2008 Bonds.
"Trustee" means the financial institution selected to serve as trustee
pursuant to the 2008 Trust Agreement, and any successor trustee.
BDDBOI 5233044v3
Any term not defined herein, which is defined in the 2008 Lease Resolution, the
Lease or in the 2008 Trust Agreement, shall have the meaning as defined in such resolution,
lease or agreement.
Section 2. Lease of 2008 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
2008 Project: TO HAVE AND TO HOLD the same with all rights, privileges, easements and
appurtenances thereunto belonging, unto the Lessee for a term not to exceed twenty (20) years,
beginning on the date the 2008 Project is complete and ready for use and ending on the day prior
to such date at most twenty (20) years thereafter (the "2008 Term"). However, the term set forth
in this Second Addendum to Lease with respect to the 2008 Project shall terminate at the earlier
of (a) the exercise of the option to purchase the 2008 Project 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 2008 Project, (ii) to refund such obligations, (iii) to refund such refunding
obligations. The date the 2008 Project is complete and ready for use shall be endorsed on this
Second Addendum to Lease at the end hereof by the parties hereto as soon as the same can be
done after such completion date and such endorsement shall be recorded as an addendum to the
Lease. The Authority hereby represents that it is possessed of a good and indefeasible estate in
fee simple subject only to Permitted Encumbrances, to the real estate described as the Century
Center portion in Exhibit A of the Lease, 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 Second Addendum to Lease, the Lessee
agrees to pay rental for said premises as set forth in Section 4 hereof. Such rental shall be
paid from the 2008 Century Center Principal and Interest Account of the Redevelopment
District Bond Fund. All rentals payable under the terms of this Second Addendum to
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 2008 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; and
(b) As additional rental the Lessee agrees to pay all fees, charges and
reimbursement of expenses of the Trustee under the 2008 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 Three Hundred Thousand and 00/100 Dollars ($300,000.00) shall be
due on the day that the 2008 Project is completed and ready for use or April 15, 2009, whichever
is later. If completion is later than April 15, 2009, the first installment shall be in an amount
which provides for rental at the rate of $300,000.00 for the semiannual period in which the 2008
Project is completed and ready for use, prorated from the date of completion until the first
April 15 or October 15 following such date of completion. Thereafter such rentals shall be
BDDBOI 5233044v3 - 2 -
payable in advance in semiannual installments of $300,000.00 on April 15 and October 15 of
each year.
The last semiannual rental payment due before the expiration of this Second
Addendum to Lease shall be adjusted to provide for rental at the amount specified above for the
applicable semiannual period prorated from the date such installment is due to the date of the
expiration of this Second Addendum to Lease (without taking into account any subsequent early
termination of this Second Addendum to Lease pursuant to Section 2 hereof).
After the sale of the 2008 Bonds issued by the Authority to pay the cost of the
2008 Project and other expenses incidental thereto, the sum of the first and second semiannual
rental installments and the sum of the third and fourth semiannual rental installments, and so on,
shall be reduced to an amount equal to the multiple of One Thousand Dollars ($1,000.00) next
highest to the highest sum of principal and interest due in any year ending on a Bond maturity
date on such 2008 Bonds plus Three Thousand Dollars ($3,000), payable in equal semiannual
installments, assuming for such purposes that the semiannual rental installment payable
following completion of the 2008 Project is due on April I5, 2009. Such amount of reduced
annual rental shall be endorsed on this Second Addendum to Lease at the end hereof by the
parties hereto as soon as the same can be done after the sale of said 2008 Bonds, and such
endorsement shall be recorded as an addendum to the Lease.
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 2008
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 2008 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 2008 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 2008 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 portion of the 2008
Project shall be damaged or destroyed so as to render the damaged or destroyed portion of the
2008 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 2008 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 I4 hereof. The rental shall be abated pro rata for
BDDBOI 5233044v3 - 3 -
the period during which the damaged or destroyed portion of the 2008 Project is unfit for its
intended use.
Section 6. Net Lease. It is expressly understood and agreed that this Second
Addendum to 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 2008 Project of any nature
whatsoever shall be those of the Lessee) and that during the lease term the 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
2008 Project, including but not limited to all costs and expenses of all services, repair or
replacement of all parts of the 2008 Project or improvements of the 2008 Project.
Section 7. Nonliability of Authority. The Authority shall not be liable for
damage caused by hidden defects or failure to keep the 2008 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
2008 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 2008 Project.
Section 8. 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 2008 Project, which do not reduce the rental value of the
2008 Project.
Section 9. Insurance. The Lessee, at its own expense, will, during the full 2008
Term, keep the 2008 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 2008 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 Second Addendum to 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 2008 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 maybe used i£
(a) the insurance on the 2008 Project is not less than the amount
required by this Section,
BDDBOI 5233044v3 - 4 -
(b) the Lessee subordinates its claim for damage or destruction to
other buildings or improvements to claims for damage or destruction of the 2008 Project,
and
(c) the insurance proceeds related to damage to or destruction of the
2008 Project are payable to the Trustee.
During the full 2008 Term, 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 2008 Project or proceeds of any condemnation of the
2008 Project shall be paid to and held by the Trustee and used to pay for reconstruction or
replacement of the 2008 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 times during the full
2008 Term, 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, 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 Second
Addendum to 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 Second
Addendum to Lease. The Lessee covenants that, except for Permitted Encumbrances, it will not
encumber the 2008 Project, or permit any encumbrance to exist thereon, and that it shall use and
maintain the 2008 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 2008 Project, or the Authority's interest therein, to such encumbrances as shall be
BDDBOI 5233044v3 - 5 -
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. The Authority hereby grants Lessee the right
and option, on any rental payment date, upon thirty days' written notice to the Authority, to
purchase the 2008 Project at a price equal to the amount required to enable the Authority to
provide for the redemption of all outstanding 2008 Bonds, all premiums payable on the
redemption thereof, and accrued and unpaid interest, and to pay the cost of redeeming the 2008
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 2008 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 2008
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 2008
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 2008 Project, or under any obligation in respect to any creditors or
bondholders of the Authority.
If the Lessee has not exercised its option to purchase the 2008 Project at the
expiration of the term of the Second Addendum to Lease and upon the full discharge and
performance by the Lessee of its obligations under this Second Addendum to Lease, the
Authority shall execute a deed of the 2008 Project to the Lessee conveying good and
merchantable title 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 2008 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 Second Addendum to 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
BDDBOI 5233044v3 - 6 -
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 Second Addendum to
Lease, whether by the Authority or the Lessee, shall be binding upon the successors and assigns
of the respective parties hereto.
Section 19. Supplement to Lease. Nothing herein is meant to otherwise amend
the Lease or impede the payment of the lease rentals for the Project, as defined in the Lease.
This Second Addendum to Lease shall supplement the Lease.
*****
BDDBOI 5233044v3 - 7 -
IN WITNESS WHEREOF, the parties hereto have caused this Second Addendum
to Lease to be executed for and on their behalf as of the day and year first hereinabove written.
By:
ATTEST:
Secretary-Treasurer
By:
ATTEST:
Secretary
SOUTH BEND REDEVELOPMENT
AUTHORITY
President
SOUTH BEND REDEVELOPMENT
COMMISSION
President
BDDBO] 5233044v3 - 8 -
STATE OF INDIANA )
SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for said State, personally appeared
and ,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 Second Addendum to Lease for and on behalf of said
Authority.
WITNESS my hand and Notarial Seal this day of
2008.
(SEAL) (Written Signature)
My commission expires:
Resident of St. Joseph County, Indiana
(Printed Signature)
STATE OF INDIANA )
SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for said State, personally appeared
and ,personally known by me to be
the President and Secretary, respectively, of the South Bend Redevelopment Commission, and
acknowledged the execution of the foregoing Second Addendum to Lease for and on behalf of said
Commission.
WITNESS my hand and Notarial Seal this day of , 2008.
(SEAL) (Written Signature)
(Printed Signature)
My commission expires:
Resident of St. Joseph County, Indiana
"I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security
number in this document unless required by law." Randolph R. Rompola.
This instrument was prepared by Randolph R. Rompola, BAKER & DANIELS LLP, 202 South Michigan
Street, Suite 1400, South Bend, Indiana 46601.
BDDBOI 5233044v3 - 9 -
EXHIBIT A
2008 PROJECT DESCRIPTION
The 2008 Project consists of certain local public improvements including, without limitation, the
following improvements to the Century Center: the addition of skylight safety film, the
replacement of boilers and chillers, repairs on Island Park, the replacement of the fire alarm and
security systems, the renovation of seven (7) restrooms, the renovation of C Hall, the
replacement of the roofs, site lighting additions, exterior masonry work, and additional
enhancements to the building, grounds and streetscape including, but not limited to, street level
and river level interior and exterior signage, enhancement to the upper level offices, and
enhancement to the front of building and viewing park and related improvements, and the
acquisition of an interest in certain improvements previously financed with the issuance of the
St. Joseph County, Indiana Special Tax Bonds of 1992, which were previously refunded with the
issuance of the St. Joseph County, Indiana Special Tax Bonds of 1998.
BDDBOI 5233044v3