HomeMy WebLinkAbout6C(5) (oC (s)
Department of
Community Investment
Memorandum
April 24, 2014
TO: Redevelopment Commission
FROM: David Relos, Economic Resources�Q
SUBJECT: Amendment to Economic Development Memorandum of Understanding
and Equipment Lease Agreement — F Cubed, LLC
On November 8, 2012, the Commission approved Resolution No. 3105, authorizing an
Economic Development Memorandum of Understanding (MOU) with F Cubed, LLC
(F3), one of the first companies to graduate from Innovation Park. F3 is in the business
of making molecular diagnostic equipment for use in environmental monitoring, food
safety applications, and medical diagnostics. F3 is currently housed at the University of
Notre Dame's Hillcrest Hall (the old St. Joseph High School building).
As part of the MOU, F3 agreed to locate in Ignition Park when a multi-tenant building is
available, thereby being able to locate their facilities in South Bend. F3 agreed to create
13 jobs and invest capital of $2,647,550. The Commission agreed to acquire equipment
in a not-to-exceed amount of$138,000.
On November 29, 2012, the Commission approved Resolution No. 3109, approving the
disposition of the equipment acquired, and on January 10, 2013, no bids were received.
After the disposition process was complete and if no bids were received, the MOU
called for the Commission and F3 to enter into a lease for the equipment.
Additionally, to clarify certain aspects within the Equipment Lease Agreement, the MOU
will be amended and provided prior to the meeting on the 24th
Staff requests approval of the Equipment Lease Agreement and Amended MOU.
227 W.JEFFERSON BLVD. SOUTH BEND, IN 46601 I P: 574-235-9371 I FAX: 574-235-9021 I SOUTHBENDIN.GOV
EQUIPMENT LEASE AGREEMENT
THIS EQUIPMENT LEASE AGREEMENT (this "Lease") is made as of the day of
, 2014,by and between the SOUTH BEND REDEVELOPMENT COMMISSION
("Lessor"), organized and existing under Indiana Code 36-7-14, and F CUBED, LLC, an Indiana
limited liability company("Lessee"),having an office located in South Bend, Indiana.
RECITALS
A. Lessor, the governing body of the City of South Bend, Indiana, Redevelopment
District and the City of South Bend, Indiana, Department of Redevelopment, exists and operates
under the provisions of Indiana Code Section 36-7-14, as amended from time to time(the "Act").
B. Lessor desires to foster redevelopment and economic development within the City
of South Bend, Indiana(the "City").
C. Lessee is an emerging company engaged in the development of a technology
created by the University of Notre Dame (the "University") for the rapid and direct detection of
DNA to be utilized for identification of contaminated drinking water, medical diagnostics in
retail medical clinics and homeland defense (the "Technology").
D. Lessee has operations presently located at 1441 N. Michigan Street, Suite 2000 in
the City(the"South Bend Operations").
E. In order to more fully develop the Technology and expand its applications, Lessee
requires the Equipment (as defined below), to be used in connection with the South Bend
Operations.
F. Lessee anticipates being located at Innovation Park or temporarily located
elsewhere on University property but desires to locate at Ignition Park, a technology park under
development in the City which is located in the Airport Economic Development Area.
G. Lessor owns the Equipment (as defined below) described on the attached
Schedule A.
H. The Lessor and the Lessee have entered into an Economic Development
Memorandum of Understanding (the "MOU"), pursuant to which the Lessor has agreed to
provide for the acquisition and disposition of the Equipment, as defined below, pursuant to the
Act in order to support the development of the Technology by the Lessee, and the Lessee has
agreed to locate its South Bend Operations within the South Bend Rennaisance District or within
the South Bend Airport Economic Development Area (together, the "Alternate Location") as
set forth in the MOU.
I. In connection with the foregoing, Lessee now desires to lease the Equipment from
Lessor, and Lessor now desires to lease the Equipment to Lessee, upon the terms and subject to
the conditions set forth in this Lease.
BDDB01 9491441v5
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements set forth in this Lease and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lessor and Lessee agree as follows:
1. Lease of Equipment. Subject to the terms and conditions of this Lease, Lessor
agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the equipment described on the
attached Schedule A (collectively, the "Equipment"). As used in this Lease, the term
"Equipment" refers to all items and/or units of Equipment collectively and to each item or unit
of Equipment individually, as the context requires, and includes any and all Additions (as
defined below) and any amendments, modifications and additions to Schedule A to which the
parties may agree from time to time.
2. Term. The term of this Lease (the "Initial Term") shall commence on
November 22, 2012 (the "Commencement Date"). The Initial Term shall end on the date that is
seven (7) years after the Commencement Date. The parties may, but are not obligated to, renew
this Lease beyond the Initial Term (each a "Renewal Term"). Any such renewal shall be
evidenced in a writing signed by both parties at least one hundred eighty (180) days before the
expiration of the Initial Term. The Initial Term together with any Renewal Term(s) shall
hereinafter be referred to as the "Term".
3. Inspection and Acceptance. Lessee shall have a period of seven (7) calendar
days from the date of delivery of the Equipment (the "Inspection Period") to (i) inspect the
Equipment to ensure it is in good condition and repair and (ii)notify Lessor, in writing, that the
Equipment is not in good condition and repair, in which case Lessor shall have a period of
twenty-one (21) days from the date of such notice to cure the same or otherwise provide (or
cause the manufacturer to provide) Lessee with Equipment that is in good condition and repair.
If Lessee does not notify Lessor in writing during the Inspection Period that any of the
Equipment is not in good condition and repair,then Lessee shall be deemed to have inspected,be
satisfied with and accepted the Equipment in such good condition and repair.
4. Rental Payments and Other Lease Charges.
(a) Rental Payments. Lessee agrees to pay to Lessor, during the Initial
Term, as rent for the Equipment, the total sum of Seven Dollars ($7), payable on
the Commencement Date (the "Rental Payment"). The Rental Payment and any
other amounts due under this Lease by Lessee to Lessor shall be paid without
relief from valuation and appraisement laws.
(b) Late Payments. If the Rental Payment or any other amount owed
under this Lease is not paid to and received by Lessor within three (3) business
days after the date such payment is due, then in addition to all amounts payable by
Lessee as a result of Lessor's exercise of any remedies provides in this Lease,
Lessee shall immediately pay to Lessor a late payment charge equal to the greater
of one and one-half percent (1.5%) of all outstanding amounts due or the
maximum amount allowed by applicable law ("Late Payment Charge"). The
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Late Payment Charge shall accumulate and be reapplied each month that any
amount due under this Lease remains due, outstanding and unpaid by Lessee.
5. Delivery and Installation. Lessee at its expense will pay for transportation,
packing, taxes, duties, insurance, installation, testing and other charges in connection with the
delivery, installation, use and return of the Equipment. Shipping terms shall be free on board
shipping point and, as such, risk of loss shall pass from Lessor to Lessee when the Equipment is
delivered to the shipment courier for delivery to Lessee.
6. Title and Identification. This Lease is a true lease and does not convey to
Lessee any right, title, or interest in the Equipment, except as a lessee. Title to the Equipment
shall remain with Lessor at all times. All replacement parts and nonseverable additions,
attachments, accessories, modifications and repairs of or to the Equipment (collectively,
"Additions") shall be deemed part of the Equipment and shall thereupon belong to Lessor. All
of the Equipment shall remain personal property(even if any or all of the Equipment is hereafter
attached or affixed to realty). At any time during the Term, upon the written request of Lessor,
Lessee will promptly affix to any item or unit of Equipment, in a prominent place, or as directed
by Lessor, labels or other markings supplied by Lessor indicating Lessor's ownership of the
Equipment. To the extent that under the provisions of the Indiana Uniform Commercial Code, as
amended, this Lease shall be considered to be a secured transaction, Lessee hereby grants to
Lessor a purchase money security interest in the Equipment and all Additions. Lessor, in the
exercise of its sole discretion and at Lessee's expense, may file any Uniform Commercial Code
financing statements with respect to the Equipment and the lease transaction(s) evidenced by this
Lease. Lessee hereby authorizes Lessor to file, at Lessee's expense, such financing and
continuation statements, amendments and supplements thereto, and other documents which
Lessor may from time to time deem necessary to perfect, preserve and protect its right, title and
interests in or to the Equipment and all Additions. Lessee agrees, at Lessee's expense, to execute
promptly and deliver any statement or instrument reasonably requested by Lessor for the purpose
of showing or protecting Lessor's interest in the Equipment, including, without limitation,
security agreements and waivers with respect to rights in the Equipment from any owners or
mortgagees of any real estate wherein the Equipment and all Additions may be located. In the
event Lessee fails or refuses to execute any such document, Lessee hereby irrevocably authorizes
Lessor and any officer of Lessor as its attorney-in-fact, to prepare and execute any such
document in the name of and on behalf of Lessee, at Lessee's expense.
7. Disclaimer of Warranties and Limitation on Damages. LESSOR MAKES NO
WARRANTIES OTHER THAN THOSE SET OUT IN THIS LEASE. NO WARRANTIES
(OTHER THAN WARRANTY OF TITLE ,AS PROVIDED BY THE UNIFORM
COMMERCIAL CODE) SHALL BE IMPLIED OR OTHERWISE CREATED AT LAW OR IN
EQUITY, INCLUDING, BUT NOT LIMITED TO, WARRANTY OF MERCHANTABILITY
AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. AUTHORIZATION
FROM LESSOR IS REQUIRED PRIOR TO THE PERFORMANCE OF ANY
MANUFACTURER WARRANTY WORK PERFORMED ON THE EQUIPMENT. LESSOR
RESERVES THE RIGHT TO MODIFY, ALTER AND IMPROVE ANY PART OR PARTS OF
THE EQUIPMENT WITHOUT INCURRING ANY OBLIGATION TO REPLACE ANY
PARTS OR PARTS PREVIOUSLY SUPPLIED. NO DEFECT, REGARDLESS THE CAUSE
OR CONSEQUENCE, SHALL RELIEVE LESSEE FROM PERFORMANCE UNDER THIS
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LEASE, INCLUDING, WITHOUT LIMITATION, ITS OBLIGATION TO MAKE THE
RENTAL PAYMENT. LESSOR, OR THE PRODUCT MANUFACTURER, AS THE CASE
MAY BE UNDER ANY EXISTING WARRANTY, IN ITS OR THEIR REASONABLE
DISCRETION, WILL DETERMINE WHETHER A PART NEEDS TO BE REPAIRED OR
REPLACED. LESSOR SHALL NOT BE LIABLE TO LESSEE HEREUNDER UNDER ANY
CIRCUMSTANCE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT
DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR
OPPORTUNITIES.
8. Care, Maintenance, and Use of the Equipment. Lessee shall not permit the
Equipment to be used or operated in violation of any applicable law, rule or regulation. Lessee,
at its sole cost and expense, shall keep the Equipment in good operating order, repair and
condition and shall perform or cause to be performed all maintenance and repairs to the
Equipment, as and when required, all in strict accordance with the written specifications for such
Equipment. Lessee agrees that any service, maintenance or repairs which Lessee causes to be
undertaken or performed with respect to the Equipment shall be performed only by competent
persons. Lessee shall notify Lessor, in writing, within fourteen (14) calendar days of any repairs
which are not routine service or maintenance on any of the Equipment. Lessee shall keep the
Equipment only at the locations identified in the attached Schedule A (the "Equipment
Locations"), and shall not remove items of the Equipment from the Equipment Locations to
which it is designated in Schedule A (or any other place as may subsequently be permitted by the
written consent of Lessor) without the express written consent of Lessor, which consent shall not
be unreasonably withheld. Under no circumstance shall any item of the Equipment be relocated
outside of city limits of South Bend, Indiana, or on the campus of the University. Lessor shall
have the right during Lessee's normal business hours and upon no less than twenty-four (24)
hours prior notice and subject to applicable laws and regulations, to enter Lessee's premises
where the Equipment is located in order to inspect, observe, affix labels or other markings, to
confirm that the Equipment's use and condition are in compliance with the terms of this Lease,
and to otherwise protect Lessor's interest therein.
9. Return of Equipment to Lessor/Option to Purchase. Subject to the provisions
of Section 10 below and Section 3.02 of the MOU, upon the expiration of the Term or earlier
termination of this Lease, Lessee shall immediately return the Equipment to Lessor at the address
identified in Section 21 below, or such other address as Lessor shall direct by sending written
notice to Lessee. The Equipment, as returned, shall be free and clear of all liens, charges or
encumbrances (except any such liens, charges or encumbrances that existed as of the date of
delivery of the Equipment) and in good operating order, repair and condition, ordinary wear and
tear excepted ("Returnable Condition"). When returning the Equipment, Lessee shall use its
best efforts and care to pack and insulate the Equipment to protect the Equipment from damage
during transit. Lessee shall cause the Equipment to be returned by personal delivery, and Lessee
shall insure such delivery in an amount not less than the fair market value of the Equipment.
Lessee shall pay all costs and expenses, including costs and expenses necessary to return the
Equipment to Lessor in Returnable Condition. Lessee agrees to reimburse Lessor for all costs
and expenses incurred by Lessor to place the Equipment in Returnable Condition, and to retake
possession of or to effect the return of the Equipment (including, without limitation, reasonable
attorneys' fees). Notwithstanding the foregoing, upon Lessee's relocation of its South Bend
Operations to Ignition Park, or to an Alternate Location, as defined herein and in the MOU,
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pursuant to a rental, lease or occupancy agreement with a term of not less than five (5) years,
Lessee shall have the option, but not the obligation, to purchase the Equipment outright for the
sum of One Dollar ($1) (the "Option Purchase Price"). Upon Lessee's payment in full of the
Option Purchase Price to Lessor, title to the Equipment shall pass to Lessee, and Lessor shall
execute such bills of sale, assignments and other instruments and documents necessary to
transfer title to the Equipment to Lessee.
10. Obligation to Purchase Equipment. Notwithstanding the provisions contained
in Section 9, in the event that (i) Lessee breaches its obligations under Section 3.02 of the MOU
(regarding Lessee's obligations with respect to relocating its South Bend operations) and fails to
cure such breach in accordance with Section 5.03 of the MOU or (ii) an Event of Default occurs
hereunder, Lessee shall be obligated to promptly, within fifteen (15) days, purchase the
Equipment for a cash purchase price equal to one and one half (1.5) times the amount Lessor
originally paid for the Equipment (the "Equipment Purchase Price"). Upon Lessee's payment
in full of the Equipment Purchase Price to Lessor,title to the Equipment shall pass to Lessee,and
Lessor shall execute such bills of sale, assignments and other instruments and documents
necessary to transfer title to the Equipment to Lessee. Lessee acknowledges and agrees that
Lessee's conditional obligation to the purchase the Equipment for the Equipment Purchase Price,
as set forth in this Section 10, is a material inducement for Lessor to enter into this Lease upon
the terms provided herein, including, without limitation, the heavily discounted amount of the
Rental Payment.
11. Taxes and Other Charges. All taxes, assessments, license fees, and other
charges (including, without limitation, personal property taxes and sales, use and leasing taxes)
imposed, levied or assessed on or with respect to the ownership, possession, rental, operation or
use of the Equipment during the Term shall be paid by Lessee before the same shall become
delinquent, whether such taxes would ordinarily be assessed against Lessor or Lessee. If Lessee
fails to make such payments, then Lessor may, in its discretion, and in addition to all other
remedies available to it under this Agreement or by law, pay the same and seek full
reimbursement from Lessee plus costs and interest at the Default Rate.
12. Indemnification; Limitation of Liability.
(a) Indemnification by Lessee. Lessee agrees to indemnify, defend
and hold harmless Lessor from and against any claims, damages, losses or
expenses (including reasonable attorney's fees) ("Losses")by third parties arising
out of, connected with, occurring by virtue of or relating in any way to the
installation, possession, operation or use of the Equipment; provided however,
that Lessee shall not be obligated to indemnify Lessor for Losses caused by
Lessor's grossly negligent or willful misconduct in servicing or maintaining the
Equipment. This indemnity shall not be affected or terminated by, and shall
survive,termination of this Lease, for any reason, with respect to all or any part of
the Equipment.
(b) Indemnification by Lessor. Lessor agrees to assign to Lessee any
indemnification rights it has provided by the manufacturer of any item of the
Equipment related to any claims, losses or expenses arising out of or relating to:
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(1) any claim that the Equipment infringes, violates, or misappropriates the
intellectual property rights of any third party; and/or (2) any claim for personal
injury or property damage for Equipment that has been negligently designed or
manufactured.
(c) Indemnification Procedures. A party seeking indemnification
hereunder (the "Indemnified Party") shall promptly notify the other party (the
"Indemnifying Party") in writing of any claim and shall provide the
Indemnifying Party any related documents constituting the basis for such claim.
The failure by an Indemnified Party to timely furnish the Indemnifying Party any
notice or documentation under this Section 12(c) shall not relieve the
Indemnifying Party from any responsibility for the matters relating to such notice
or documentation, except to the extent such failure materially and adversely
prejudices the ability of the Indemnifying Party to defend such claim.
(d) Limitation of Liability. Except for liability for third party claims,
in no event shall either party be liable for any indirect, incidental, special,
exemplary, punitive or consequential damages of any kind whatsoever (including
lost profits or loss of goodwill) even if the party has been advised of the
possibility of such damages.
13. Insurance. Lessee shall obtain and maintain in full force and effect during the
Term and until the Equipment is returned to Lessor, at Lessee's expense, a policy or policies of
insurance insuring against all risks of loss or damage from every and any cause whatsoever,
including, without limitation, damage to or loss of the Equipment by extended casualty, fire,
theft, vandalism and malicious mischief, and with such other coverages as Lessor may
reasonably require from time to time, all such insurance to be issued by financially secure and
reputable insurers acceptable to Lessor and in amounts not less than One Hundred
Percent(100%) of the full replacement value of the Equipment naming Lessor as loss payee, and
providing by the policy terms that Lessor shall be given not less than thirty(30) days' prior
notice of any cancellation or decrease in coverage ("Required Insurance"). Lessee shall also, at
its own expense, carry public liability insurance, in such amounts with such companies and in
such form as is reasonably satisfactory to Lessor, and which name Lessor as an additional
insured, with respect to injury to person or property resulting from or based in any way upon or
in any way connected with or relating to the installation, use, or alleged use, or operation of any
or all of the Equipment, or its location or condition. Lessee shall, upon request by Lessor,
provide Lessor with a certificate of insurance or other certified evidence that Lessee is in
compliance with the terms of this Section 13. All policies of insurance required under this
Section 13 shall clearly indicate that Lessor is the owner of the insured Equipment and that
Lessee holds only a leasehold interest in the Equipment.
14. Risk of Loss. From and after the time the Equipment is delivered to the shipment
courier for delivery to Lessee or directly to Lessee, and until such time as the Equipment is
returned to Lessor in Returnable Condition, Lessee hereby assumes and shall bear the entire risk
of loss, damage, malfunction, accident, theft and destruction of and to the Equipment, or any
portion thereof, from any cause whatsoever. Lessee shall promptly notify Lessor and provide
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Lessor with detailed information regarding any such occurrence within two (2) business days of
any such occurrence.
15. Events of Default by Lessee. Each of the following events shall constitute an
"Event of Default" for purposes of this Lease: (i) Lessee defaults in the payment when due of
the Rental Payment or any other amounts owed by Lessee to Lessor under the terms of this
Lease, (ii) Lessee fails to perform any obligation or observe any covenant or condition to be
performed or observed by Lessee, or breaches any representation or provision contained herein
and such failure shall continue un-remedied for thirty(30) consecutive calendar days; (iii) Lessee
ceases its South Bend Operations during the term of the Lease; (iv) Lessee: (a)makes an
assignment for the benefit of creditors; (b) becomes insolvent; (c) admits in writing an inability
to pay its debts as they become due; (d)becomes the subject of a voluntary or involuntary case
commenced under the United States Bankruptcy Code, as now constituted or hereafter amended,
or any other applicable Federal or state bankruptcy, insolvency or similar law; (e) is dissolved or
liquidated, or any action is taken which could result in the dissolution or liquidation of Lessee;
(f) a receiver, trustee or liquidator is appointed with respect to Lessee's assets; (v) any lien is
created with respect to the Equipment(other than a lien created by Lessor); or(vi)the occurrence
of any sale, transfer, conveyance or other disposition of all or any part of the Equipment or any
attempt to sell, transfer, convey or otherwise dispose of all or any part of the Equipment without
the express written consent of the Lessor. The sale of the Lessee, as an on-going business, shall
not be considered an Event of Default. Any new owner shall be be bound by the terms and
benefits of this Lease as provided in Section 19,below.
16. Remedies. Upon the occurrence of an Event of Default by Lessee under this
Lease, Lessor may, at its option, take any one or more of the following courses of action:
(i) terminate this Lease; (ii)proceed by appropriate judicial action to enforce this Lease and
recover damages caused by the breach, including, without limitation, attorneys' fees, court costs
and other collection costs; (iii) demand that Lessee return the Equipment to Lessor in Returnable
Condition within thirty (30) days; (iv) require Lessee to purchase the Equipment pursuant to
Section 10 hereof and/or (v) accelerate all sums due under this Lease plus interest at the Default
Rate. In addition, Lessee shall be liable for all reasonable attorneys' fees and other costs and
expenses resulting from the occurrence of any Event of Default or the exercise by Lessor of any
of the remedies available to it.
17. Representations of Lessee. Lessee represents and warrants to Lessor that:
(a) The execution, delivery and performance of this Lease have all
been duly authorized by all necessary action on the part of Lessee; and
(b) This Lease constitutes a legal, valid and binding agreement of
Lessee and is enforceable in accordance with its terms.
18. Representations of Lessor. Lessor represents and warrants to Lessee that:
(a) The execution, delivery and performance of this Lease have all
been duly authorized by all necessary action on the part of Lessor; and
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(b) This Lease constitutes a legal, valid and binding agreement of
Lessor and is enforceable in accordance with its terms.
19. Assignment and Subletting. Without Lessor's prior written consent (which the
Lessor may not unreasonably withhold), Lessee shall not (i) assign, transfer, pledge,
hypothecate, or otherwise dispose of the Equipment or any interest therein; or (ii) sublet or lend
the Equipment or permit it to be used by anyone, other than Lessee or Lessee's employees,parent
company, affiliates or subsidiaries. If Lessor's consent to such assignment or subletting is given
pursuant to this Section 19, Lessee shall remain primarily liable to perform all of the covenants
and obligations contained in this Lease, including,without limitation, the payment of rent. In the
event the Lessee is sold as an on-going business, and the Equipment is transferred pursuant
thereto and with the consent of the Lessor, the new owner and the Lessor shall be bound by the
terms, conditions and benefits of this Lease.
LESSEE AGREES THAT LESSOR MAY ASSIGN OR TRANSFER THIS LEASE OR
LESSOR'S INTEREST IN THE EQUIPMENT WITHOUT NOTICE TO LESSEE. Lessee
acknowledges that any assignment or transfer by Lessor will not materially change Lessee's
duties or obligations under this Lease nor materially increase the burdens or risks imposed on
Lessee. Lessee shall cooperate with Lessor in executing any documentation reasonably required
by Lessor or any assignee of Lessor to effectuate any such assignment.
20. Further Assurances. Lessee shall execute and deliver such documents and take
such other actions as Lessor may from time to time reasonably request as necessary or
appropriate to carry out the intent and purpose of this Lease or to establish or protect the rights
and remedies intended to be created in favor of Lessor hereunder.
21. Notices. Except as expressly provided otherwise in this Lease, any notice, request,
claim or other communication required to be given pursuant to this Lease shall be in writing and
shall be either: (i)delivered personally to the party to be notified, (ii) sent by registered or certified
United States Mail, first-class postage prepaid, return receipt requested, to the party to be notified at
such party's address specified below,or(iii)delivered by an overnight delivery courier service to the
party to be notified at such party's address specified below:
If to Lessor:
South Bend Redevelopment Commission
Attn: President
City-County Building
227 West Jefferson Boulevard, Room 1400
South Bend, Indiana 46601
If to Lessee:
F Cubed, LLC
Attn: Leslie T. Ivie
1441 North Michigan Street
South Bend, Indiana 46617
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Notices or other communications given or required to be given under this Lease shall be
effective only if rendered or given in writing, sent by certified mail with a return receipt
requested, or delivered in person or by reputable overnight courier (e.g., Federal Express, DHL,
etc.) or by telecopier or facsimile (with confirmation by one of the other methods specified
herein): (a) to Lessee at the address specified in this Section, or(b) to Lessor at Lessor's address
set forth in this Section or (c) to such other address as either Lessor or Lessee may designate as
its new address for such purpose by notice given to the other in accordance with the provisions
of this Section. Any such notice or other communication shall be deemed to have been rendered
or given five (5) days after the date mailed, if sent by certified mail, or upon the date of delivery
if delivered in person or by courier,or when delivery is attempted but refused.
22. Entire Agreement. This Lease, together with the attached Schedule A, as may
be modified from time to time in the future, and the MOU, together constitute the entire
agreement between the parties hereto with respect to the subject matter hereof and supersede all
prior agreements, representations, and understandings of the parties,written or oral.
23. Amendments and Waivers. No modification, amendment, extension or alleged
waiver of this Lease or any provision hereof will be binding on either party unless in writing and
signed by the party sought to be bound.
24. Severability. If any provision of this Lease is held or declared to be
unenforceable, invalid or void, then such provision shall be deemed to be severable from the
remaining provisions of this Lease, and such declaration or holding shall in no way impair or
affect the validity or enforceability of the remaining provisions of this Lease, which shall then be
construed as if such invalid or unenforceable provision were omitted.
25. Controlling Law. This Lease and the rights and obligations of the parties hereto
shall be governed and construed in accordance with the laws of the State of Indiana without
giving effect to any choice or conflict of law provision or rule (whether of the State of Indiana or
any other jurisdiction) that would cause the application of laws of any jurisdiction other than the
State of Indiana. The parties hereto agree that the exclusive forum for any litigation or dispute
related to, arising under or in connection with this Lease shall be in a court of competent
jurisdiction located in South Bend, Indiana, and the parties hereby waive any claim to lack of
personal jurisdiction thereof.
26. Successors and Assigns. Subject to Section 19 of this Lease shall be binding
upon, and inure to the benefit of, the parties hereto and their respective successors and permitted
assigns.
27. Construction of this Lease. The parties have participated jointly in the
negotiation and drafting of this Lease. If an ambiguity or question of intent or interpretation
arises, this Lease shall be construed as if drafted jointly by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Lease. Any reference to any federal, state, local, or foreign statute or law
shall be deemed also to refer to all rules and regulations promulgated hereunder, unless the
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context requires otherwise. The headings of Sections and paragraphs in this Lease are for
descriptive purposes only and shall not control, alter or otherwise affect the meaning, scope or
intent of any provisions of this Lease. Except as expressly provided otherwise in this Lease, any
reference to a Section or Schedule shall mean and refer to a Section or Schedule of this Lease.
Except where the context of their use clearly requires a different interpretation, wherever they
appear in this Lease: (i) singular terms shall include the plural, and masculine terms shall
include the feminine or neuter, and vice versa, to the extent necessary to give the defined terms
or other terms used in this Lease their proper meanings; (ii)the terms "herein," "hereof,"
"hereunder," "hereto," "hereinafter," "hereinbefore," and similar words shall mean and refer to
this Lease in its entirety and not to any specific Section, Subsection, or paragraph of this Lease;
and (iii)the word "including" shall mean "including, without limitation." The lease of the
Equipment hereunder is for commercial purposes, and this Lease shall not be construed as a
consumer contract. Time is of the essence with respect to this Lease.
28. Incorporation by Reference. The Recitals and the attached Schedule A are
hereby incorporated into this Lease by this reference.
29. Counterparts. This Lease may be executed in counterparts, in the original or by
facsimile or other electronic means, including PDF, each of which when so executed shall be
deemed an original, but all of such counterparts together shall constitute one and the same
instrument.
[signature page follows]
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[Signature page to Equipment Lease Agreement]
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease to be executed as
of the date first written above.
"LESSOR"
SOUTH BEND REDEVELOPMENT COMMISSION
President
ATTEST:
Secretary
"LESSEE"
F CUBED, LLC
By: Leslie T. Ivie
Its: President&CEO
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