Exhibit 10(l)
LEASE AND AGREEMENT
Between
CLINTON STREET LIMITED PARTNERSHIP,
as Lessor
And
AMERICAN STATES INSURANCE COMPANY,
as Lessee
Dated as of August 1, 1984
Location of Leased Premises: 000 Xxxxx Xxxxxxxx Xx.
Xxxxxxxxxxxx, XX 00000-0000
TABLE OF CONTENTS
Page
----
1. Demise of Premises . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Title and Condition. . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Use of Leased Premises; Quiet Enjoyment. . . . . . . . . . . . . . . 2
4. Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5. Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6. Net Lease; Non-Terminability . . . . . . . . . . . . . . . . . . . . 4
7. Taxes and Assessments; Compliance with Law . . . . . . . . . . . . . 6
8. Liens; Grants of Easements . . . . . . . . . . . . . . . . . . . . . 7
9. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10. Maintenance and Repair . . . . . . . . . . . . . . . . . . . . . . 10
11. Alterations and Additions. . . . . . . . . . . . . . . . . . . . . . 11
12. Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
13. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
14. Casualty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
15. Reimbursement for Alterations and Additions;
Purchase of Unimproved Land. . . . . . . . . . . . . . . . . . . . 28
16. Procedure Upon Purchase. . . . . . . . . . . . . . . . . . . . . . . 34
17. Assignment and Subletting . . . . . . . . . . . . . . . . . . . . . 35
18. Permitted Contests . . . . . . . . . . . . . . . . . . . . . . . . . 36
19. Conditional Limitations; Default Provision . . . . . . . . . . . . . 38
20. Additional Rights of Lessor. . . . . . . . . . . . . . . . . . . . . 43
21. Notices, Demands and Other Instruments . . . . . . . . . . . . . . . 44
22. Estoppel Certificates; Consents and Financial Statements . . . . . . 45
23. No Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
24. Surrender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
25. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
26. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
27. Table of Contents, Headings. . . . . . . . . . . . . . . . . . . . . 48
28. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
29. Certain Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 48
30. Lessee's Options; Right of First Refusal . . . . . . . . . . . . . . 50
31. Schedules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SCHEDULE A - Property Description and Permitted Exceptions
SCHEDULE B - Basic Rent Payments
SCHEDULE C - Computation of Purchase Prices
THE LEASE AND AGREEMENT, dated as of August 1, 1984 (this Lease) between
CLINTON STREET LIMITED PARTNERSHIP, an Indiana limited partnership (herein,
together with its successor and assigns, called Lessor), having an address c/o
Xxxx Xxxxxx Realty Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
AMERICAN STATES INSURANCE COMPANY, an Indiana corporation (herein, together
with any corporation succeeding thereto by consolidation, merger or acquisition
of all or substantially all its assets, called Lessee), having an address at
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000. Certain words or
phrases having initial capitals have the meanings set forth in paragraph 29.
1. Demise of Premises. In consideration of the rents and covenants
herein stipulated to be paid and performed, Lessor hereby demises and lets to
Lessee, and Lessee hereby lets from Lessor, for the terms herein described, the
premises (herein called the Leased Premises) consisting of (i) the land
described in Schedule A hereto (herein called the Land Parcel), (ii) all
buildings, structures and other improvements thereon, including all building
equipment and fixtures, if any, owned by Lessor (herein collectively called the
Improvements), but excluding trade equipment, fixtures and other personal
property owned by Lessee and Lessee's Improvements (as hereinafter defined in
paragraph 11(c)), and (iii) all easements, rights and appurtenances relating
thereto, all upon the terms and conditions herein specified.
2. Title and Condition. The Leased Premises are demised and let
subject to (a) the rights of any parties in possession and the existing state
of the title as of the commencement of the term of this Lease, (b) any state of
facts which an accurate survey or physical inspection thereof might show, (c)
all zoning regulations, restrictions, rules and ordinances, building
restrictions and other laws and regulations now in effect or hereafter adopted
by any governmental authority having jurisdiction, and (d) the condition of any
buildings, structures and other improvements located thereon, as of the
commencement of the term of this Lease, without representation or warranty by
Lessor. Lessee represents that it has examined the title to and the condition
of the Leased Premises and has found the same to be satisfactory.
3. Use of Leased Premises; Quiet Enjoyment. (a) Lessee may occupy and
use the Leased Premises for any lawful purpose.
(b) If and so long as Lessee shall observe and perform all covenants,
agreements and obligations required to be observed and performed by it
hereunder, Lessor covenants that it will not and will not permit any party
claiming by, through or under Lessor, to interfere with the peaceful and quiet
possession and enjoyment of the Leased Premises by Lessee; provided, that
Lessor and its agents may, upon prior notice to Lessee (unless Lessor has
reason to believe a default or Event of Default hereunder has occurred, in
which case no such notice shall be necessary), enter upon and examine the
Leased Premises at reasonable times. Lessee shall have the right to accompany
Lessor and its agents during any such examination of the Leased Premises. Any
failure by Lessor to comply with the foregoing warranties shall not give Lessee
any right to cancel or terminate this Lease, or to xxxxx, reduce or make
deduction from or offset against any Basic Rent, as hereinafter defined, or
additional rent or other sum payable under this Lease, or to fail to perform or
observe any other covenant, agreement or obligation hereunder.
4. Terms. Subject to the terms and conditions hereof, Lessee shall have
and hold the Leased Premises for (a) an interim term (herein called the Interim
Term) commencing on August 30, 1984 and ending at midnight on August 31, 1984;
and (b) a primary term (herein called the Primary Term) commencing on September
1, 1984, and ending at midnight on August 31. 2009. Thereafter,
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Lessee shall have the rights and options to extend this Lease for 6
consecutive extended terms of 5 years each (herein called Extended Terms, and
together with the Interim Term and the Primary Term, called the Term) unless
this Lease shall be sooner terminated pursuant to the provisions hereof. Each
such Extended Term shall commence on the day immediately succeeding the
expiration date of the preceding Primary Term or Extended Term, as the case may
be, and shall end at midnight on the day immediately preceding the fifth
anniversary of the first day of such Extended Term. Each such option to extend
this Lease shall conclusively be deemed to have been exercised by Lessee unless
Lessee shall give written notice to the contrary to Lessor at least three
hundred sixty-five days prior to the end of the then Term of this Lease. No
instrument of renewal need be executed, provided that no Extended Term shall
take effect unless this Lease is in full force and effect and no default or
Event of Default exists and is continuing immediately prior to the commencement
thereof. If Lessee gives notice of its intention not to extend this Lease, the
term of this Lease shall terminate at the end of the then Term of this Lease
and Lessee shall have no further option to extend this Lease. If Lessee gives
such notice not to extend this Lease, then Lessor shall have the right during
the remainder of the Term of this Lease to advertise the availability of the
Leased Premises for sale or reletting and to erect upon the Leased Premises
signs appropriate for the purpose of indicating such availability, provided
that such signs do not unreasonably interfere with the use of the Leased
Premises by Lessee. The phrase "Term of this Lease" or "Term hereof" means the
Interim Term and the Primary Term, plus any Extended Term with respect to which
the right to extend has been exercised.
5. Rent. (a) Lessee covenants to pay to Lessor, as instalments of
rent for the Leased Premises during the Term of this Lease, the amounts set
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forth in Schedule B hereto (herein called the Basic Rent) on the dates set
forth in said Schedule (herein called the Basic Rent Payment Dates), and to pay
in immediately available funds the same at Lessor's address set forth above or
at such other place within the continental United States and/or to such other
person as Lessor from time to time may designate to Lessee in writing, in
lawful money of the United States of America.
(b) Lessee covenants that all other amounts, liabilities and obligations
which Lessee assumes or agrees to pay or discharge pursuant to this Lease
(except amounts payable as the purchase price for the Leased Premises or any
part thereof pursuant to any provision of this Lease and amounts payable as
liquidated damages pursuant to paragraph 19(j) or paragraph 19(g)), together
with every fine, penalty, interest and cost which may be added for nonpayment
or late payment thereof, shall constitute additional rent hereunder. In the
event of any failure by Lessee to pay or discharge any of the foregoing, Lessor
shall have all rights, powers and remedies provided herein or by law in the
case of nonpayment of Basic Rent. Lessee also covenants to pay to Lessor on
demand as such additional rent (A) interest at the rate of 18.00% per annum (or
the maximum not prohibited by law, whichever is less), calculated on the basis
of a 360-day year of twelve equal months, on all overdue instalments of Basic
Rent from the due date thereof (without regard to any grace period) until paid
in full and (B) interest at the rate of 16.00% per annum (calculated as set
forth in clause (A) above) on all overdue amounts relating to any other aspects
of additional rent arising out of obligations which Lessor shall have paid on
behalf of Lessee from the date of such payment by Lessor until paid in full.
6. Net Lease; Non-Terminability. (a) This is an absolutely net lease
and the Basic Rent, additional rent and all other sums payable hereunder
4
by Lessee, whether as the purchase price for the Leased Premises or otherwise,
shall be paid without notice (except as expressly provided herein), demand,
set-off, counterclaim, abatement, suspension, deduction or defense.
(b) Any present or future law to the contrary notwithstanding, this
Lease shall not terminate, nor shall Lessee have any right to terminate this
Lease (except as otherwise expressly provided herein), nor shall Lessee be
entitled to any abatement or reduction of rent hereunder (except as otherwise
expressly provided herein), nor shall the obligations of Lessee under this
Lease be affected, by reason of (i) any damage to or destruction of all or any
part of the Leased Premises from whatever cause, (ii) the taking of the Leased
Premises or any portion thereof by condemnation, requisition or otherwise,
(iii) the prohibition, limitation or restriction of Lessee's use of all or any
part of the Leased Premises, or any interference with such use, (iv) any
eviction by paramount title or otherwise, (v) Lessee's acquisition or ownership
of all or any part of the Leased Premises otherwise than as expressly provided
in paragraphs 12(b), 14(c) or 15 herein, (vi) any default on the part of Lessor
under this Lease, or under any other agreement to which Lessor and Lessee may
be parties, (vii) the failure of Lessor to deliver possession of the Leased
Premises on the commencement of the Term hereof or (viii) any other cause
whether similar or dissimilar to the foregoing. It is the intention of the
parties hereto that the obligations of Lessee hereunder shall be separate and
independent covenants and agreements, that the Basic Rent, additional rent and
all other sums payable by Lessee hereunder shall continue to be payable in all
events and that the obligations of Lessee hereunder shall continue unaffected,
unless the requirement to pay or perform the same shall have been terminated
pursuant to an express provision of this Lease.
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(c) Lessee agrees that it will remain obligated under this Lease in
accordance with its terms, and that it will not take any action to terminate,
rescind or avoid this Lease, notwithstanding (i) the bankruptcy, insolvency,
reorganization, composition, readjustment, liquidation, dissolution, or
winding-up or other proceeding affecting Lessor or its successor in interest,
(ii) any action with respect to this Lease which may be taken by any trustee or
receiver of Lessor or its successor in interest or by any court in any such
proceeding.
(d) Lessee waives all rights which may now or hereafter be conferred
law (i) to quit, terminate or surrender this Lease or the Leased Premises or
any part thereof, or (ii) to xxxxx, suspend, defer or reduce the Basic Rent,
additional rent or any other sums payable under this Lease, except as otherwise
expressly provided herein.
7. Taxes and Assessments; Compliance with Law. (a) Lessee shall pay
or discharge each of the following items on or prior to the last day on which
such items may be paid without interest or penalty: (i) all Impositions; (ii)
all transfer taxes, recording fees and similar charges payable in connection
with a conveyance hereunder to Lessee; (iii) all gross receipts or similar
taxes imposed or levied upon, assessed against or measured by the Basic Rent,
additional rent or any other sums payable by Lessee hereunder or levied upon or
assessed against the Leased Premises, to the extent that such tax, assessment
or other charge would be payable if the Leased Premises were the only property
of Lessor subject thereto, and (iv) any tax, assessment, charge or levy of any
nature whatsoever imposed or levied upon or assessed against Lessor or the
Leased Premises in substitution for or in place of an Imposition. Lessee shall
not be required to pay any franchise, corporate, estate, inheritance,
succession, transfer, income, excess profits, or revenue
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taxes of Lessor which are not described in the preceding sentence. Lessee
agrees to furnish to Lessor, within thirty days after written demand therefor,
evidence of all payments due under this paragraph 7(a). In the event that any
Imposition levied or assessed against the Leased Premises and payable by Lessee
becomes due and payable during the Term hereof and may legally be paid in
instalments, Lessee may pay such Imposition in instalments and shall be
liable only for those installments which become due and payable during the Term
hereof.
(b) Lessee shall, at its expense, comply with and shall cause the
Leased Premises to comply with, in all material respects, all governmental
statutes, laws, rules, orders, regulations and ordinances the failure to comply
with which at any time would affect the Leased Premises or any part thereof,or
the use thereof, including those which require the making of any structural,
unforeseen or extraordinary changes, whether or not any of the same involve a
change of policy on the part of the body enacting the same (collectively, the
Legal Requirements). Lessee shall, at its expense, comply with all Required
Insurance (as defined in paragraph 13), and with the provisions of all
contracts, agreements, instruments and restrictions existing at the
commencement of the Term of this Lease or thereafter suffered or permitted by
Lessee affecting the Leased Premises or any part thereof or the ownership,
occupancy or use thereof.
8. Liens; Grants of Easements. (a) Lessee will not, directly or
indirectly, create or permit to be created or to remain, and will promptly
remove and discharge, at its expense, any mortgage, lien, encumbrance or charge
on, pledge of, or conditional sale or other title retention agreement with
respect to, the Leased Premises or any part thereof or Lessee's interest
therein or the Basic Rent, additional rent or other sums payable by Lessee
7
under this Lease, other than (1) any encumbrances permitted by the Senior
Permitted Mortgage described in Paragraph 29(j), (2) any mortgage, lien,
encumbrance or other charge, pledge, conditional sale or other title retention
agreement created by or resulting from any act or failure to act of Lessor or
any agent or assignee of Lessor without the agreement of Lessee and (3) any
encumbrance or charge permitted in subparagraph (b) below. Nothing contained in
this Lease shall be construed as constituting the consent or request, expressed
or implied, by Lessor to the performance of any labor or services or the
furnishing of any materials for any construction, alteration, addition, repair
or demolition of all of the Leased Premises or any part thereof by any
contractor, subcontractor, laborer, materialman or vendor. Notice is hereby
given that Lessor will not be liable for any labor, services or materials
furnished or to be furnished to Lessee, or to anyone holding the Leased
Premises or any part thereof, and that no mechanic's or other liens for any
such labor, services or materials shall attach to or affect the interest of
Lessor in and to the Leased Premises.
(b) Lessor hereby appoints Lessee its agent and attorney-in-fact and
authorizes Lessee (i) to grant easements, licenses, rights-of-way and other
rights and privileges in the nature of easements, (ii) to release existing
easements and appurtenances which are for the benefit of the Leased Premises,
(iii) to grant party wall rights for the benefit of any land adjoining the Land
Parcel and (iv) to execute and deliver any instrument necessary or appropriate
to confirm such grants, releases or consents to any person, with or without
consideration (in each case, however, only upon compliance with the provisions
of the Senior Permitted Mortgage), provided, that (x) such grant, release or
consent shall not materially impair the use of the Leased Premises or
materially reduce their value, and (y) the consideration, if any, received
8
by Lessee for such grant, release or consent shall be paid to Lessor and
applied pursuant to paragraph 12(c), as if such consideration were a Net Award
from an event of Condemnation. Lessee agrees that Lessee will remain obligated
under the terms of this Lease to the same extent as if such action had not been
taken, and that Lessee will perform all obligations of the grantor, releasor or
transferor under any such instrument.
9. Indemnification. Lessee shall defend all actions or claims
against Lessor, or any partner of Lessor, or any assignee of Lessor, or any
partner, officer, director or shareholder of any assignee of Lessor
(collectively, the Indemnified Parties) with respect to, and shall pay,
protect, indemnify and save harmless the Indemnified Parties from and against
any and all liabilities, losses, damages, costs, expenses (including all
reasonable attorney's fees and expenses of the Indemnified Parties), causes of
action, suits, claims, demands or judgments of any nature whatsoever (i)
arising from any injury to, or the death of, any person or any damage to
property on the Leased Premises or upon adjoining sidewalks, streets or ways,
in any manner growing out of or connected with the use, non-use, condition or
occupation of the Leased Premises or any part thereof or resulting from the
condition thereof or of adjoining sidewalks, streets or ways, so long as not
occasioned by the affirmative act of Lessor, its agents, servants, employees or
assigns, and/or (ii) arising from violation by Lessee of any agreement or
condition of this Lease, or any contract or agreement to which Lessee is a
party or any restriction, law, ordinance or regulation, in each case affecting
the Leased Premises or any part thereof or the ownership, occupancy or use
thereof, so long as not occasioned by the intentional fault of Lessor, its
agents, servants, employees or assigns. If Lessor or any other Indemnified
Party shall be made a party to any such litigation commenced against Lessee,
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and if Lessee, at its expense, shall fail to provide Lessor or any other such
Indemnified Party with counsel (upon Lessor's or such Indemnified Party's
request) approved by Lessor or such Indemnified Party, as the case may be,
which approval shall not be unreasonably withheld, Lessee shall pay all costs
and reasonable attorneys' fees and expenses incurred or paid by Lessor or any
other such Indemnified Party in connection with such litigation. Lessor shall
give prompt written notice to Lessee of any claim asserted against Lessor, but
to Lessor's knowledge not also asserted against Lessee, which, if sustained,
may result in liability of Lessee hereunder, but failure on the part of Lessor
to give such notice shall not relieve Lessee from Lessee's obligation to
exonerate, protect, defend, indemnify and save harmless the Indemnified Parties
as aforesaid.
10. Maintenance and Repair. (a) Lessee acknowledges that it has
received the Leased Premises in good condition, repair and appearance. Lessee
agrees that, at its expense, it will keep and maintain the Leased Premises and
any Lessee's Improvements, including any altered, rebuilt, additional or
substituted buildings, structures and other improvements thereto, in good
condition, repair and appearance, except for ordinary wear and tear, and it
will promptly make all structural and nonstructural, foreseen and unforeseen,
and ordinary and extraordinary changes and repairs of every kind which may be
required to be made to keep and maintain the Leased Premises and any Lessee's
Improvements in such good condition, repair and appearance and it will keep the
Leased Premises and any Lessee's Improvements orderly and free and clear of
rubbish. Lessor shall not be required to maintain, repair or rebuild, or to
make any alterations, replacements or renewals of any nature to the Leased
Premises, or any part thereof, whether ordinary or extraordinary, structural or
nonstructural, foreseen or unforeseen, or to maintain the Leased Premises
10
or any part thereof in any way. Lessee hereby expressly waives the right to
make repairs at the expense of Lessor which may be provided for in any law in
effect at the time of the commencement of the Term of this Lease or which may
thereafter be enacted. If Lessee shall abandon the Leased Premises, it shall
give Lessor and any Permitted Mortgagee immediate notice thereof.
(b) If any Improvements situated on the Leased Premises at any time
during the Term of this Lease shall encroach upon any property, street or
right-of-way adjoining or adjacent to the Leased Premises, or shall violate the
agreements or conditions contained in any restrictive covenant affecting the
Leased Premises or any part thereof, or shall impair the rights of others under
or hinder or obstruct any easement or right-of-way to which the Leased Premises
are subject, then, promptly after the written request of Lessor or any person
affected by any such encroachment, violation, impairment, hindrance or
obstruction, Lessee shall, at its expense, either (i) obtain effective waivers
or settlements of all claims, liabilities and damages resulting from each such
encroachment, violation, impairment, hindrance or obstruction whether the same
shall affect Lessor, Lessee or both, or (ii) make such changes in the
Improvements on the Leased Premises and take such other action as shall be
necessary to remove such encroachments, hindrances or obstructions and to end
such violations or impairments, including, if necessary, the alteration or
removal of any Improvement on the Leased Premises. Any such alteration or
removal shall be made in conformity with the requirements of paragraph 11(a) to
the same extent as if such alteration or removal were an alteration under the
provisions of paragraph 11(a).
11. Alterations and Additions. (a) Lessee may, at its expense, (x)
after not less than forty-five days written notice to Lessor of its plans
(provided, however, that no such notice shall be required as to plans for work
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the estimated cost of which is less than $500,000), make non-structural
additions to and alterations of the Improvements to the Leased Premises, and
make non-structural substitutions and replacements therefor, provided, that (i)
the use, structural integrity and market value of the Leased Premises shall not
thereby be materially lessened as certified in writing by an appropriate
officer of Lessee, and (ii) such actions shall be performed in a good and
workmanlike manner; and (y) after not less than forty-five days written notice
to Lessor of its plans, make structural additions to and alterations of the
Improvements to the Leased Premises, and make structural substitutions and
replacements therefor, provided that (i) such actions shall be performed in a
good and workmanlike manner under the supervision of a licensed architect or
engineer in accordance with plans and specifications as approved by Lessor and
accepted by Lessee, (ii) no such structural change or alteration shall be made
unless Lessor's prior written consent shall have been obtained, (iii) none of
the buildings or structures constituting the Leased Premises shall be
demolished unless Lessee shall have first furnished Lessor with such surety
bonds or other assurances acceptable to Lessor as shall be necessary to assure
rebuilding of the Leased Premises and unless Lessor's prior written consent
shall have been obtained, and (iv) such additions, alterations, substitutions
and replacements shall be expeditiously completed in compliance with all Legal
Requirements (as defined in paragraph 7(b)) and Required Insurance (as defined
in paragraph 13(a)); provided that Lessor shall not withhold its written
consent to Lessee's plans, including plans and specifications, under this
clause (y) if and so long as the use, structural integrity and market value of
the Leased Premises shall not be materially lessened by such plans as certified
in writing by an appropriate officer of Lessee. Lessee shall promptly pay all
costs and expenses of each such
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addition, alteration, substitution or replacement, discharge all liens arising
therefrom and procure and pay for all permits and licenses required in
connection therewith. Failure by Lessor to give written approval or disapproval
within forty-five days of receipt of such notice from Lessee under clause (y)
shall be deemed Lessor's consent to such plans. All such alterations and
additions to the Improvements shall be and remain part of the realty and the
property of Lessor and subject to this Lease.
(b) Lessee may, at its expense, install, assemble or place any items
of trade fixtures, machinery, equipment or other personal property upon the
Leased Premises. Such trade fixtures, machinery, equipment or other personal
property shall be and remain the property of Lessee and Lessee may remove the
same from the Leased Premises at any time prior to the termination of this
Lease, provided that (i) Lessee shall repair any damage to the Leased Premises
resulting from such removal, and (ii) such removal shall not materially impair
the value and use of the Leased Premises.
(c) Lessee may, at its expense, upon 45 days prior notice to Lessor,
construct improvements on any portion of the Land Parcel on which there is not
already a permanent structure for which improvements it has not and will not
obtain reimbursement pursuant to paragraph 15 hereof (Lessee's Improvements),
provided that upon completion thereof, the use and market value of the
remaining Leased Premises shall not thereby be materially lessened. The
Lessee's Improvements shall be and remain the property of Lessee and Lessee may
make additions and alterations to Lessee's Improvements and substitutions and
replacements thereof which are otherwise in compliance with the provisions of
this subparagraph (c).
12. Condemnation. (a) Subject to the rights of Lessee set forth in
this paragraph 12, Lessee hereby irrevocably assigns to Lessor any award or
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compensation payment to which Lessee may become entitled by reason of Lessee's
interest in the Leased Premises if the use, occupancy or title of the Leased
Premises or any part thereof is taken, requisitioned or sold in, by or on
account of any actual or threatened eminent domain proceeding or other action
by any person having the power of eminent domain, provided, however, that
Lessee may retain any award or compensation payment relating to Lessee's
Improvements. Lessee shall appear in any such proceeding or action to
negotiate, prosecute and adjust any claim for any award or compensation on
account of any such taking, requisition or sale; and Lessor shall collect any
such award or compensation. The Net Award (as defined in paragraph 12(f)) shall
be applied pursuant to this paragraph 12. Lessee shall pay all reasonable costs
and expenses (including any legal fees of any Permitted Mortgagee required by
any Permitted Mortgage to be paid by Lessor) in connection with each such
proceeding, action, negotiation and prosecution, for which costs and expenses
Lessee shall be reimbursed out of any award or compensation received. Lessor
shall be entitled to participate in any such proceeding, action, negotiation or
prosecution and the reasonable expenses thereof (including counsel fees and
expenses) shall be paid by Lessee.
(b) If an occurrence of the character referred to in paragraph 12(a)
shall affect all or a substantial portion of the Leased Premises and shall, in
the good faith judgment of Lessee, render the Leased Premises unsuitable for
restoration for continued use and occupancy in Lessee's business during the
Primary Term or any Extended Term, then Lessee shall, not later than 30 days
after such occurrence, deliver to Lessor (i) notice of its intention to
terminate this Lease on the next Basic Rent Payment Date (the Termination Date)
which occurs not less than 210 days nor more than 360 days after the delivery
of such notice and (ii) a certificate by the President or any Vice
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President of Lessee describing the event giving rise to such termination and
stating that its board of directors (or an executive committee thereof) has
determined that such event has rendered the Leased Premises unsuitable for
restoration for continued use and occupancy in Lessee's business. If the
Termination Date occurs during the Interim or Primary Term, such notice to
Lessor shall be accompanied by an irrevocable offer by Lessee to purchase the
Leased Premises on the Termination Date at a price determined in accordance
with Schedule C (the Purchase Offer). If either (1) Lessor shall reject such
Purchase Offer by notice given to Lessee not later than the 30th day prior to
the Termination Date or (2) the Termination Date occurs during an Extended
Term, this Lease shall terminate on the Termination Date, except with respect
to obligations and liabilities of Lessee hereunder, actual or contingent, which
have arisen on or prior to the Termination Date, upon payment by Lessee of all
Basic Rent, additional rent and other sums then due and payable hereunder to
and including the Termination Date, and the Net Award shall belong to Lessor;
provided that the amount of such Net Award, if any, related to any portion of
the Improvements constructed by Lessee at its expense (and for which it has not
obtained reimbursement pursuant to paragraph 15 hereof) shall be paid to
Lessee, as determined by the Appraisal Procedure. Unless Lessor shall have
rejected such Purchase Offer in accordance with this paragraph, Lessor shall be
conclusively presumed to have accepted such offer, and, on the Termination Date,
shall convey the remaining portion of the Leased Premises, if any, to Lessee or
its designee and shall assign to Lessee or its designee all of its interest in
the Net Award, pursuant to and upon compliance with paragraph 16.
(c) If during any Term (i) a portion of the Leased Premises shall be
taken by condemnation or other eminent domain proceedings, which taking is not
15
sufficient to require that Lessee give a Purchase Offer or (ii) the use or
occupancy of the Leased Premises or any part thereof shall be temporarily taken
by any governmental authority, then this Lease shall continue in full effect
without abatement or reduction of Basic Rent, additional rent or other sums
payable by Lessee hereunder notwithstanding such partial or temporary taking.
Except as hereinafter set forth, Lessee shall (whether or not it has received
any portion of the Net Award), promptly after any such temporary taking ceases,
at its expense, repair any damage caused thereby in conformity with the
requirements of paragraph 11(a), so that, thereafter, the Leased Premises shall
be, as nearly as possible, in a condition and have a market value as good as
the condition and market value thereof immediately prior to such taking. Lessee
shall not be required to repair any damage to Lessee's Improvements so long as
such failure shall not materially lessen the use or value of the remaining
Leased Premises; provided, however, that if, in Lessee's good faith judgment,
such damage is substantial, then Lessee shall demolish those affected portions
of Lessee's Improvements if Lessee shall not have repaired the same. After an
occurrence of the character referred to in paragraph 12(a), any Net Award
payable in connection with such occurrence shall be paid to the Proceeds
Trustee (as defined in paragraph 12(e), provided, that if no Proceeds Trustee
has been named pursuant to paragraph 12(e) at the time of payment of the Net
Award, such Net Award shall be paid to the Senior Permitted Mortgagee (as
defined in paragraph 29(m)), and if there is no Senior Permitted Mortgagee then
to Lessor, in all events for application pursuant to this paragraph 12(c).
Lessee shall be entitled to receive the Net Award but only against certificates
by the President or any Vice President of Lessee delivered to Lessor and the
Proceeds Trustee from time to time as such work of rebuilding, replacement and
repair progresses, each such certificate
16
describing the work for which Lessee is requesting payment and the cost
incurred by Lessee in connection therewith and stating that Lessee has not
theretofore received payment for such work, provided that Lessee shall be
entitled to receive any Net Award in an aggregate amount of up to $100,000 in
connection with any one occurrence without providing Lessor with such
certificates. To the extent that any Net Award remaining after such repairs
have been made is less than $250,000, such remaining Net Award shall be paid to
Lessee. If such remaining Net Award equals or exceeds $250,000, all of the
remaining Net Award shall be retained by the Proceeds Trustee, the Senior
Permitted Mortgagee or by Lessor, as applicable, and shall be applied in
reduction of the principal amount of the indebtedness secured by any Senior
Permitted Mortgage then outstanding. To the extent that any Net Award is not
paid to Lessee pursuant to the preceding sentence, (i) the amounts set forth in
Schedule C shall be reduced in accordance with Schedule C, and (ii) each
installment of Basic Rent payable on or after the first Payment Date occurring
two months or more after the final payment to Lessee for such restoration
(including Extended Terms thereafter) shall be reduced by an amount equal to
the amount of such installment multiplied by a fraction, the numerator of which
shall be an amount equal to the remaining Net Award not paid to Lessee, and the
denominator of which shall be the applicable amount set forth in Schedule C
prior to its reduction pursuant to clause (i) above, provided that (i) the
Basic Rent shall not be reduced to an amount less than $4.00 per square foot of
remaining rentable space, and (ii) during the Primary Term the amount by which
such installments of Basic Rent shall be so reduced shall not exceed the amount
by which the amount scheduled to be due on or about such date on any
indebtedness of Lessor secured by the Permitted Mortgage is reduced to reflect
the revised amortization thereof after giving effect to the
17
corresponding prepayment of such indebtedness by Lessor (it being understood
that in case the Senior Permitted Mortgage is retired or otherwise refinanced
prior to such prepayment, such limitation shall be calculated as if such
mortgage indebtedness had remained outstanding, was so prepaid and the
amortization thereof revised as provided therein). In the event of any
temporary requisition, this Lease shall remain in full effect and Lessee shall
be entitled to receive the Net Award allocable to such temporary requisition;
except that such portion of the Net Award allocable to the period after the
expiration of the Term of this Lease shall be paid to Lessor. If the cost of
any repairs required to be made by Lessee pursuant to this paragraph 12(c)
shall exceed the amount of such Net Award, the deficiency shall be paid by
Lessee. No payments shall be made to Lessee pursuant to this paragraph 12(c)
for so long as any default shall have happened and shall be continuing under
this Lease.
(d) Notwithstanding the foregoing, Lessee, at its cost and expense,
shall be entitled to claim separately, in any condemnation proceeding, any
damages payable for moveable trade fixtures paid for and installed by Lessee
(or any persons claiming under Lessee) without any contribution or
reimbursement therefor by Lessor, and for Lessee's loss of business, and for
Lessee's relocation costs, provided Lessor's award is not reduced or otherwise
adversely affected thereby.
(e) The trustee (the Proceeds Trustee) of the Net Award and Net
Casualty Proceeds (as defined in paragraph 14(a)) shall be The Connecticut Bank
and Trust Company, National Association, or its successor under the Collateral
Trust Indenture, dated as of the date hereof (the Indenture) from Clinton
Holding Corporation to The Connecticut Bank and Trust Company, National
Association and X. X. Xxxxx, as trustees, or if such Indenture shall
18
be terminated, the holder of the first mortgage lien on the Leased Premises,
who shall be an institutional lender, or if there shall not be such a lien, or
if such lien shall be held by a person other than an institutional lender, then
() or a bank or trust company, designated by Lessee and acceptable to Lessor,
having an office in the State of Indiana. The Proceeds Trustee shall have a
combined capital and surplus of at least $100,000,000 and shall be duly
authorized to act as such trustee. All charges and fees of the Proceeds Trustee
shall be paid by Lessee. The Proceeds Trustee shall invest such Net Award and
Net Casualty Proceeds (as hereinafter defined) pursuant to such mutual
agreement as may be made between Lessor and Lessee.
(f) For the purposes of this Lease the term "Net Award" shall mean:
(i) all amounts payable as a result of any condemnation or other eminent domain
proceeding, less all expenses of such proceeding and the collection of such
amounts not otherwise paid by Lessee and (ii) all amounts payable pursuant to
any agreement with any condemning authority (which agreement shall be deemed to
be a taking) which has been made in settlement of or under threat of any
condemnation or other eminent domain proceeding affecting the Leased Premises
(except Lessee's Improvements), less all expenses incurred (including any
reasonable costs incurred by Lessor in connection therewith) as a result
thereof or in connection with the collection of such amounts and not otherwise
paid by Lessee.
(g) Any minor condemnation or taking of the Leased Premises for the
construction or maintenance of streets or highways shall not be considered a
condemnation or taking for purposes of this paragraph 12 so long as the Leased
Premises shall not be materially adversely affected, ingress and egress for the
remainder of the Leased Premises shall be adequate for the business of Lessee
thereon and compliance is made with the provisions of any Permitted Mortgage
relating thereto.
19
13. Insurance. (a) Lessee shall maintain, or cause to be
maintained, at its sole expense, the following insurance on the Leased
Premises (herein called the Required Insurance):
(i) Insurance against loss or damage by fire, lightning and other
risks from time to time included under "extended coverage"
policies, including, without limitation, vandalism and malicious
mischief coverage, in amounts sufficient to prevent Lessor or
Lessee from becoming a co-insurer of any loss under the
applicable policies but in any event in amounts not less than the
full insurable value of the Leased Premises. The term "full
insurable value", as used herein, means actual replacement value
less uninsurable items.
(ii) General public liability insurance against claims for bodily
injury, death or property damage occurring on, in or about the
Leased Premises and the adjoining streets, sidewalks and
passageways, such insurance to afford protection to Lessor of not
less than $1,000,000 with respect to bodily injury or death to
any one person, not less than $5,000,000 with respect to any one
accident, and not less than $1,000,000 with respect to property
damage.
(iii) Worker's compensation insurance covering all persons employed in
connection with any work done on or about the Leased Premises
with respect to which claims for death or bodily injury could be
asserted against Lessor, Lessee or the Leased Premises, complying
with the laws of the State of Indiana.
(iv) Boiler and pressure vessel insurance on all equipment, parts
thereof and appurtenances attached or connected to the Leased
Premises, if any, which by reason of their use or existence are
capable of bursting, erupting, collapsing or exploding, in the
minimum amount of $1,000,000 for damage to property resulting
from such perils. Such insurance may, at the option of Lessee and
as permitted by applicable law, be included within the coverage
of insurance policies referred to in clause (i) above.
(v) Such other insurance on the Leased Premises in such amounts and
against such other hazards which at the time are commonly
obtained in the case of property similar to the Leased Premises
in the state in which the Leased Premises are located, including
war risk insurance (at and during such times as war risk
insurance is commonly obtained in the case of property similar to
the Leased Premises), when and to the
20
extent obtainable from the United States Government or any agency
thereof.
(vi) Flood insurance in an amount equal to the full insurable value
(as defined in clause (i) above) of the Leased Premises or the
maximum amount available, whichever is less, if the area in which
the Leased Premises are located has been designated by the
Secretary of Housing and Urban Development as having special
flood hazards, and if flood insurance is available under the
National Flood Insurance Act.
(b) The Required Insurance shall be written by companies having an
A.M. Best rating of at least A:XV which are authorized to do an insurance
business in the State of Indiana and shall name as the insured parties
thereunder Lessor, Lessee and any Permitted Mortgagee, as their respective
interests may appear, provided, however, that so long as Lessee maintains a net
worth determined in accordance with generally accepted accounting principles of
not less than $267,542,000, Lessee may self-insure as to the types of insurance
referred to in clauses (i) through (v) of this paragraph. Neither Lessor nor
any Permitted Mortgagee shall be required to prosecute any claim against, or to
contest any settlement proposed by, an insurer. Lessee may, at its expense,
prosecute any such claim or contest any such settlement in the name of Lessor,
Lessee or both, and Lessor will join therein at Lessee's written request upon
the receipt by Lessor of an indemnity from Lessee against all costs,
liabilities and expenses in connection therewith.
(c) Insurance claims by reason of damage to or destruction of any
portion of the Leased Premises shall be adjusted by Lessee, but Lessor and any
Permitted Mortgagee shall have the right to join with Lessee in adjusting any
such loss.
(d) Every policy referred to in clauses (i), (iv) and (v) of
paragraph 13(a) shall bear a first mortgagee endorsement in favor of the then
21
Senior Permitted Mortgagee (if any); and any loss under any such policy shall
be made payable to the Proceeds Trustee, provided that any recovery for damage
or destruction under any such policy shall be applied by the Proceeds Trustee
in the manner provided in paragraph 14. Every policy of Required Insurance
shall contain an agreement that the insurer will not cancel such policy except
after thirty days' written notice to Lessor and any Permitted Mortgagee and
that any loss otherwise payable thereunder shall be payable notwithstanding any
act or negligence of Lessor or Lessee which might, absent such agreement,
result in a forfeiture of all or a part of such insurance payment and
notwithstanding (i) any foreclosure or other action taken by a Permitted
Mortgagee pursuant to any provision of any Permitted Mortgage upon the
happening of a default or an event of default thereunder, or (ii) any change in
ownership of the Leased Premises.
(e) Lessee shall deliver to Lessor promptly after the delivery of
this Lease the original or duplicate policies or certificates of insurers,
reasonably satisfactory to any Senior Permitted Mortgagee, evidencing all of
the Required Insurance. Lessee shall, within thirty days prior to the
expiration of any such policy, deliver to Lessor other original or duplicate
policies or such certificates evidencing the renewal of any such policy. If
Lessee fails to maintain or renew any Required Insurance, or to pay the premium
therefor, or to so deliver any such policy or certificate, then Lessor, at its
option, but without obligation to do so, may, upon five days' notice to Lessee,
procure such insurance. Any sums so expended by Lessor shall be additional rent
hereunder and shall be repaid by Lessee within five days after notice to Lessee
of such expenditure and the amount thereof.
(f) Neither Lessee nor Lessor shall obtain or carry separate
insurance covering the same risks as any Required Insurance unless Lessee,
22
Lessor and any Permitted Mortgagee are included therein as named insureds, with
loss payable as provided in this Lease. Lessee and Lessor shall immediately
notify each other whenever any such separate insurance is obtained and shall
deliver to each other the policies or certificates evidencing the same.
(g) Anything contained in this paragraph 13 to the contrary
notwithstanding, all Required Insurance may be carried under (1) a "blanket" or
"umbrella" policy or policies covering other properties or liabilities of
Lessee, its parent company, or any of its parent company's subsidiaries,
provided, that such policies otherwise comply with the provisions of this Lease
and specify the coverage and amounts thereof with respect to the Leased
Premises, and (2) a policy or policies providing for self-insurance of
deductible amount of up to $1,000,000.
14. Casualty. (a) Lessee hereby irrevocably assigns to Lessor any
compensation or insurance proceeds to which Lessee may become entitled by
reason of Lessee's interest in the Leased Premises if the Leased Premises or
any part thereof are damaged or destroyed by fire or other casualty, provided,
however, that Lessee may retain any insurance proceeds or compensation relating
to Lessee's Improvements. If the Leased Premises or any part thereof shall be
damaged or destroyed by fire or other casualty, and if the estimated cost of
rebuilding, replacing or repairing the same shall exceed $100,000, Lessee
promptly shall notify Lessor thereof. Lessee shall negotiate, prosecute and
adjust any claim for any compensation or insurance payment on account of any
such damage or destruction; and Lessor shall collect any such compensation or
insurance payment. All amounts paid in connection with any such damage or
destruction shall be applied pursuant to this paragraph 14, and
23
all such amounts (except such amounts with respect to Lessee's Improvements)
paid or payable in connection therewith (minus the expenses of collecting such
amounts) are herein called the Net Casualty Proceeds. Lessee shall pay all
reasonable costs and expenses (including any legal fees of any Permitted
Mortgagee required to be paid by Lessor pursuant to any Permitted Mortgage) in
connection with each such negotiation, prosecution and adjustment, for which
costs and expenses Lessee shall be reimbursed out of any compensation or
insurance payment received. Lessor shall be entitled to participate in any such
negotiation, prosecution and adjustment, and the reasonable expenses thereof
(including counsel fees and expenses) shall be paid by Lessee.
(b) After an occurrence of the character referred to in paragraph
14(a), except as hereinafter set forth, Lessee shall (whether or not it has
received any Net Casualty Proceeds), at its expense, rebuild, replace or repair
any damage to the Leased Premises caused by such event in conformity with the
requirements of paragraph 11 (a) so as to restore the Leased Premises (as
nearly as practicable) to the condition and market value thereof immediately
prior to such occurrence. Lessee shall not be required to rebuild or replace
any damage to Lessee's Improvements so long as such failure shall not
materially lessen the value or use of the remaining Leased Premises; provided,
however, that if, in Lessee's good faith judgment, such damage is substantial,
then Lessee shall demolish those affected portions of Lessee's improvements if
Lessee shall not have repaired the same. After an occurrence of the character
referred to in paragraph 14(a), all Net Casualty Proceeds payable in connection
with such occurrence shall be paid to Proceeds Trustee, and this Lease shall
continue in full effect, provided, that if no Proceeds Trustee has been named
pursuant to paragraph 12(e) at the time of payment of
24
Net Casualty Proceeds, such Net Casualty Proceeds shall be paid to the Senior
Permitted Mortgagee, and if there is no Senior Permitted Mortgagee then to
Lessor, in all events for application pursuant to this paragraph 14(b). Lessee
shall be entitled to receive the Net Casualty Proceeds, but only against
certificates of the President or any Vice President of Lessee delivered to
Lessor and Proceeds Trustee from time to time as such work of rebuilding,
replacement and repair progresses, each such certificate describing the work
for which Lessee is requesting payment and the cost incurred by Lessee in
connection therewith and stating that Lessee has not theretofore received
payment for such work, provided that Lessee shall be entitled to receive the
Net Casualty Proceeds in an aggregate amount of up to $100,000 in connection
with any one occurrence without providing Lessor with such certificates. To the
extent that any Net Casualty Proceeds remaining after such repairs have been
made are less than $250,000 they shall be paid to Lessee. If such remaining Net
Casualty Proceeds equal or exceed $250,000, such Net Casualty Proceeds shall be
retained by the Proceeds Trustee, the Senior Permitted Mortgagee or by Lessor,
as applicable, and shall be applied in reduction of the principal amount of the
indebtedness secured by any Senior Permitted Mortgage then outstanding. To the
extent that any Net Casualty Proceeds are not paid to Lessee pursuant to the
preceding sentence, (i) the amounts set forth in Schedule C shall be reduced in
accordance with Schedule C, and (ii) each installment of Basic Rent payable on
or after the First Payment Date occurring two months or more after the final
payment to Lessee for such restoration (including Extended Terms thereafter)
shall be reduced by an amount equal to the amount of such installment
multiplied by a fraction, the numerator of which shall be an amount equal to
the remaining Net Casualty Proceeds not paid to Lessee, and the denominator of
which shall be the
25
applicable amount set forth in Schedule C prior to its reduction pursuant to
clause (i) above, provided that (i) the Basic Rent shall not be reduced to an
amount of less than $4.00 per square foot of remaining rentable space, and (ii)
during the Primary Term the amount by which each such installment of Basic Rent
shall be so reduced shall not exceed the amount by which the amount scheduled
to be due on or about such date on any indebtedness of Lessor secured by the
Senior Permitted Mortgage is reduced to reflect the revised amortization
thereof after giving effect to the corresponding prepayment of such
indebtedness by Lessor (it being understood that in case the Senior Permitted
Mortgage is retired or otherwise refinanced prior to such prepayment, such
limitation shall be calculated as if such mortgage indebtedness had remained
outstanding, was so prepaid and the amortization thereof revised as provided
therein). If the cost of any repairs required to be made by Lessee pursuant to
this paragraph 14(b) shall exceed the amount of such Net Casualty Proceeds, the
deficiency shall be paid by Lessee.
(c) If the Leased Premises shall be substantially damaged or
destroyed in any single casualty so that, in Lessee's good faith judgment, the
Leased Premises shall be unsuitable for restoration for continued use and
occupancy in Lessee's business, then at Lessee's option in lieu of rebuilding,
replacing and repairing the Leased Premises, Lessee may give notice to Lessor,
within 30 days after the occurrence of such damage or destruction, of Lessee's
intention to terminate this Lease on the next Basic Rent Payment Date which
occurs not less than 210 days after the delivery of such notice (the
Termination Date), provided that, if the Termination Date occurs during the
Primary Term, such notice shall be accompanied by (i) an irrevocable offer of
Lessee to purchase the Leased Premises and the Net Casualty Proceeds on the
Termination Date at a price determined in accordance with Schedule C hereof
26
(the Purchase Offer), and (ii) a certificate signed by the President or any
Vice President of Lessee stating that its board of directors (or an executive
committee thereof) has determined that such event has rendered the Leased
Premises unsuitable for restoration, replacement and rebuilding for Lessee's
continued use and occupancy and that the Leased Premises will not be restored.
If Lessor shall reject such offer by notice to Lessee not later than the 30th
day prior to the Termination Date, the Net Casualty Proceeds and the right
thereto shall be assigned to and shall belong to Lessor and this Lease shall
terminate on the Termination Date, except with respect to obligations and
liabilities of Lessee under this Lease, actual or contingent, which have arisen
on or prior to the Termination Date, but only upon payment by Lessee of all
Basic Rent, additional rent, and other sums due and payable by it under this
Lease to and including the Termination Date; provided that the amount of such
Net Casualty Proceeds, if any, related to any portion of the Improvements
constructed by Lessee at its expense (and for which it has not obtained
reimbursement pursuant to paragraph 15 hereof), shall be paid to Lessee as
determined by the Appraisal Procedure. Unless Lessor shall have rejected such
offer in accordance with this paragraph, Lessor shall be conclusively presumed
to have accepted such offer, and on the Termination Date, Lessor shall convey
the remaining portion of the Leased Premises, if any, and all its interest in
the Net Casualty Proceeds in accordance with paragraph 16. If the Termination
Date shall occur during an Extended Term, Lessee shall not be required to offer
to purchase the Leased Premises; in such case, the Net Casualty Proceeds shall
belong to Lessor and this Lease shall terminate; provided that the amount of
such Net Casualty Proceeds, if any, related to any portion of the Improvements
constructed by Lessee at its expense (and for which it has not obtained
reimbursement pursuant to paragraph
27
15 hereof), shall be paid to Lessee as determined by the Appraisal Procedure.
If the conditions set forth in the first sentence of this paragraph 14(c) are
fulfilled and Lessee fails to commence to rebuild, replace or repair the Leased
Premises within 30 days after final adjustment of all insurance claims made in
connection therewith (but in no event later than one hundred eighty days after
the occurrence of such damage or destruction), Lessee conclusively shall be
deemed to have made such Purchase Offer and in the absence of a written
Purchase Offer by Lessee the Termination Date shall be deemed to be the next
Basic Rent Payment Date which occurs not less than 210 days after such Purchase
Offer is presumed to have been made; but nothing in this sentence shall relieve
Lessee of its obligation actually to deliver such Purchase Offer.
15. Reimbursement for Alterations and Additions; Purchase of
Unimproved Land. (a) On any one or more dates during the Primary Term, Lessee
may request in writing (herein called a Lessee's Request) that Lessor pay to
Lessee the amount of Lessee's theretofore unreimbursed expenses (herein called
Reimbursable Expenses), which have been incurred by Lessee in connection with
the construction of additional structures on a portion or portions of the
Leased Premises upon which there are no major structures then existing and/or
additions, alterations to, or remodeling of, structures then existing on the
Leased Premises and the acquisition of land adjacent to the Leased Premises
(herein collectively called the Additions), which Additions are permitted by
paragraph 11(a) but are in addition to, and do not constitute, alterations,
additions or remodeling which Lessee is required to make upon the Leased
Premises pursuant to any provision of this Lease, and which Additions conform
to the character and quality of the then existing improvements on the Leased
Premises. Lessee shall have the right to make a Lessee's Request only if (i)
28
the construction of any Additions with respect to which such Reimbursable
Expenses have been incurred shall have been completed not more than two years
prior to the date of the Lessee's Request, (ii) the amount of such Reimbursable
Expenses is not less than $500,000, (iii) the value or use of the Leased
Premises shall not be materially impaired by such Additions and (iv) the sum of
such requested Reimbursable Expenses and all Reimbursable Expenses previously
paid to Lessee pursuant to this paragraph 15(a) shall not exceed $10,000,000.
Each Lessee's Request shall be accompanied by architect's drawings and
specifications as previously approved by Lessor pursuant to paragraph ll(a)
hereof and accepted by Lessee, relating to the Additions with respect to which
such Request is made, and a Lessee's Certificate setting forth in reasonable
detail the amount and character of the Reimbursable Expenses with respect to
which such Request is made and a description of such Additions, stating that
the construction of such Additions has been completed in compliance with the
requirements of this paragraph 15, specifying the dates on which the
construction of such Additions were commenced and completed, and stating that
such Reimbursable Expenses are reimbursable in the amount requested under the
terms of this paragraph 15. Upon receipt of such Lessee's Request, Lessor
agrees to use its best efforts to arrange for the financing of such
Reimbursable Expenses on terms and conditions satisfactory to Lessor and Lessee
and consistent with the provisions of any Senior Permitted Mortgage. Lessor and
Lessee shall negotiate in good faith to enable Lessor to finance such
Reimbursable Expenses, having regard to then existing economic, financial and
money market conditions. Within ninety days after the receipt of such Lessee's
Request, drawings, specifications and Certificate, Lessor agrees to pay to
Lessee an amount equal to such Reimbursable Expenses so certified, but
29
only if the following further conditions shall have been fulfilled within such
90-day period:
(i) Lessor shall have issued and sold evidence of indebtedness (herein
called the Additional Indebtedness) pursuant to a Senior
Permitted Mortgage, for the purposes of obtaining funds to pay
such Reimbursable Expenses to Lessee;
(ii) The proceeds of the sale of the Additional Indebtedness actually
received by Lessor shall have been not less than the amount of
such Reimbursable Expenses;
(iii) Lessor and Lessee shall have authorized, executed and delivered a
supplement to this Lease, which supplement (herein called the
Lease Supplement) shall: (A) increase the Basic Rent payments
required to be made thereafter during the Primary Term by an
amount which shall be at least sufficient to make each payment,
when due, of principal of, and interest on, the Additional
Indebtedness, (B) increase each Basic Rent payment to be made
during the Extended Terms by an amount which shall be at least
sufficient to make each payment, when due, of principal of, and
interest on, the Additional Indebtedness during the portion of
such Extended Terms that such Additional Indebtedness is
outstanding, and Lessee shall not, and is obligated not to,
cancel its option to extend the term hereof to a date not earlier
than the maturity of the Additional Indebtedness, (C) increase
the purchase prices set forth in Schedule C hereto that would be
payable upon a purchase of the Leased Premises by Lessee pursuant
to paragraph 12(b) or 14(c), in each case by amounts which shall
at all times thereafter be at least sufficient to pay or prepay
the principal amount of the Additional Indebtedness to be then
outstanding (without adjustments for any prepayments made by
Lessor), and (D) make such other changes, if any, as shall be
necessary or appropriate, in the opinion of counsel for holders
of the Additional Indebtedness, by reason of the transactions
contemplated by this paragraph; and
(iv) Lessor shall have received from Lessee such other Lessee's
Certificates, opinions of counsel for Lessee, surveys of the
Leased Premises, title insurance policies, consents to the
assignment and reassignment of this Lease (as supplemented) and
other instruments as Lessor may reasonably request in order to
enable Lessor to finance the cost of such Reimbursable Expenses
by the issuance and sale of the Additional Indebtedness.
30
(b) As long as Lessor has used its best efforts to arrange financing as set
forth in subparagraph (a) above, Lessor shall incur no liability to Lessee by
reason of the fact that Lessor does not pay Reimbursable Expenses, and if
Lessor does not pay such Reimbursable Expenses, except as expressly provided in
subparagraph (c) below, this Lease shall continue in full effect, without
modification. All expenses incurred in connection with the issuance by Lessor
of Additional Indebtedness shall be borne by Lessee.
(c) If, after the conditions specified above have been satisfied within 180
days of such Lessee's Request, Lessor shall not have paid to Lessee an amount
equal to such Reimbursable Expenses and if such Additions are either contiguous
to the Improvements or free standing (or subject to a party wall pursuant to an
agreement satisfactory in form and substance to Lessor and any Senior Permitted
Mortgagee) upon unimproved land constituting part of the Leased Premises, then
Lessee shall have the option, to be exercised by giving 90 days' notice to
Lessor, to purchase such portion of the unimproved land (together with any
requisite easements) as is necessary for the construction of such Additions,
provided that such land (together with any land purchased pursuant to paragraph
15(d) hereof, called the Unimproved Land) shall not be improved by any
permanent structure included in the Improvements and provided further that the
remainder of the Leased Premises, after excluding the Unimproved Land, would
(1) constitute an integrated economic unit including sufficient parking and all
necessary utility easements, (2) be a continuous parcel of land, without gap or
hiatus and be separately assessed for tax purposes, (3) have adequate access to
and from public highways, (4) not be in violation of any Legal Requirement or
Required Insurance, and (5) would have a market value at least equal to the
outstanding amount of the Senior Permitted
3l
Mortgage as of such date. The purchase price for the Unimproved Land shall be
the greater of (x) fair market value attributable to such Unimproved Land, as
unencumbered by this Lease and without regard to any of Lessee's continuing
rights and obligations under this Lease, assuming Lessee shall have extended
the Lease for all Extended Terms, as determined by Lessor and Lessee, and in
the event of their failure to agree, as determined by the Appraisal Procedure
or (y) Lessor's original cost attributable to such Unimproved Land as set forth
in Schedule A hereto. Lessee agrees that it shall bear the costs of the
Appraisal Procedure. On the date for purchase specified in Lessee's notice,
Lessor shall convey such Unimproved Land to Lessee or its designee pursuant to
and in compliance with paragraph 16. In the event of such purchase by Lessee,
Lessee agrees that (x) no improvements will be undertaken upon such Unimproved
Land which would materially reduce the value of the remainder of the Leased
Premises and (y) Lessee will grant such easements to Lessor or enter into such
cross-easement agreements with Lessor relating to the Unimproved Land as are
reasonably necessary to operate the remainder of the Leased Premises as an
integrated economic unit with no material reduction in the value thereof.
(d) In addition to the option contained in 15(c), Lessee shall have the
option to purchase all or any portion of the land described in Part 2 of
Schedule A, and structure or Improvements thereon,* in the manner, at the price
and in accordance with the terms of subparagraph 15(c), provided that such
purchase shall not materially impair the value or use of the remainder of the
Leased Premises. Lessee shall have such option only if (i) Lessee shall have
undertaken in writing to construct improvements on such property for its
-----------------
* See Schedule A, Part 2, for particulars.
32
own use, and (ii) such improvements are not eligible for financing by Lessor
pursuant to the provisions of subparagraph 15(a).
(e) To the extent of the cash price paid to Lessor for Unimproved Land
purchased pursuant to paragraphs 15(c) or (d), (i) the amounts set forth in
Schedule C shall be reduced in accordance with Schedule C, and (ii) each
installment of Basic Rent payable on or after the first Payment Date occurring
two months or more after such purchase (including Extended Terms thereafter)
shall be reduced by an amount equal to the amount of such installment
multiplied by a fraction, the numerator of which shall be such purchase price
paid to Lessor, and the denominator of which shall be the applicable amount set
forth in Schedule C prior to its reduction pursuant to clause (i) above,
provided that (i) the Basic Rent shall not be reduced to an amount of less than
$4.00 per square foot of remaining rentable space, and (ii) during the Primary
Term the amount by which such installments of Basic Rent shall be so reduced
shall not exceed the amount by which the amount scheduled to be due on or about
such date on any indebtedness of Lessor secured by the Senior Permitted
Mortgage is reduced to reflect the revised amortization thereof after giving
effect to the corresponding prepayment of such indebtedness by Lessor (it being
understood that in the case the Senior Permitted Mortgage is retired or
otherwise refinanced prior to such prepayment, such limitations shall be
calculated as if such mortgage indebtedness had remained outstanding, was so
prepaid and the amortization thereof revised provided therein).
(f) In lieu of paying cash for the purchase of Unimproved Land pursuant to
paragraph 15(c) or (d), Lessee may convey to Lessor a substitute parcel of land
(Substitute Land) provided that the following conditions shall be satisfied:
the fair market value of the Substitute Land shall equal or exceed the cash
purchase price which would have been paid for the Unimproved
33
Land being purchased by Lessee (such fair market value of the Substitute Land
being determined by agreement of Lessor and Lessee, or failing such agreement,
by the Appraisal Procedure), (ii) all of the conditions set forth in paragraph
15(c) shall be satisfied as to the remaining portion of the Leased Premises
taken together with the Substitute Land, and (iii) Lessor and any Permitted
Mortgagee shall have approved any exceptions to title to the Substitute Land.
All costs and expenses of Lessor and any Permitted Mortgagee incident to the
conveyance to Lessor of Substitute Land shall be borne by Lessee. In the event
that Unimproved Land is purchased pursuant to paragraph 15(c) or (d) in
exchange for Substitute Land rather than the payment of a cash purchase price,
the provisions of paragraph 15(e) shall not apply, and this Lease shall
continue in full effect without modification of Basic Rent or the amounts set
forth in Schedule C hereunder.
16. Procedure Upon Purchase. (a) If Lessee shall purchase the Leased
Premises pursuant to this Lease, Lessor need not convey any better title
thereto than existed on the date of the commencement of the Term hereof and
Lessee or its designee shall accept such title, subject, however, to the state
of title to the Leased Premises on the date of the commencement of the Term
hereof, the condition of the Leased Premises on the date of purchase and all
charges, liens, security interests and encumbrances on the Leased Premises and
all applicable Legal Requirements, but free of the lien of all Permitted
Mortgages and charges, liens, security interests and encumbrances resulting
from acts or failures to act of Lessor taken without the consent of Lessee.
(b) Upon the date fixed for any purchase of the Leased Premises hereunder,
Lessee shall pay to Lessor in immediately available funds the purchase price
therefor specified herein together with all Basic Rent,
34
additional rent and other sums then due and payable hereunder to and
including such date of purchase, and Lessor shall deliver to Lessee a
special warranty deed to the Leased Premises and any other instruments
necessary to assign any other property then required to be assigned by
Lessor pursuant hereto. Lessee shall pay all charges incident to such
conveyance and assignment, including reasonable counsel fees, escrow fees,
recording fees, title insurance premiums and all applicable taxes (other
than any income, capital gains or franchise taxes of Lessor) which may be
imposed by reason of such conveyance and assignment and the delivery of
said deeds and other instruments. Upon the completion of such purchase, but
not prior thereto (whether or not any delay or failure in the completion of
such purchase shall be the fault of Lessor), this Lease and all obligations
hereunder shall terminate, except with respect to obligations and
liabilities of Lessee hereunder, actual or contingent, which have arisen on
or prior to such date of purchase.
17. Assignment and Subletting. During the Primary Term only, Lessee may
sublet all or any part of the Leased Premises without the consent of Lessor
(provided, that each such sublease shall expressly be made subject to the
provisions of this Lease) and, may assign all its rights and interests
under this Lease. If Lessee assigns all its rights and interests under this
Lease, the assignee under such assignment shall expressly assume all the
obligations of Lessee hereunder in an instrument, approved by Lessor as to
form and substance (which approval will not be unreasonably withheld or
delayed), delivered to Lessor at the time of such assignment. No assignment
or sublease shall affect or reduce any of the obligations of Lessee
hereunder, and all such obligations shall continue in full effect as
obligations of a principal and not as obligations of a guarantor or surety,
to the same extent as though no assignment or subletting had been made,
provided that performance
35
by any such assignee or sublessee of any of the obligations of Lessee
under this Lease shall be deemed to be performance by Lessee. No sublease
or assignment shall impose any obligations on Lessor or otherwise affect
any of the rights of Lessor under this Lease. Neither this Lease nor the
Term hereby demised shall be mortgaged by Lessee, nor shall Lessee mortgage
or pledge the interest of Lessee in and to any sublease of the Leased
Premises or the rentals payable thereunder. Any mortgage, pledge, sublease
or assignment made in violation of this paragraph 17 shall be void. Lessee
shall, within ten days after the execution and delivery of any such
assignment or the sublease of all or substantially all of the Leased
Premises, deliver a conformed copy thereof to Lessor. Within ten days after
the execution and delivery of any sublease of all or any portion of the
Leased Premises, Lessee shall give notice to Lessor of the existence and
term thereof, and of the name and address of the sublessee thereunder.
18. Permitted Contests. Lessee shall not be required to (i) pay any
Imposition, (ii) comply with any statute, law, rule, order, regulation or
ordinance, (iii) discharge or remove any lien, encumbrance or charge or
(iv) obtain any waivers or settlements or make any changes or take any
action with respect to any encroachment, hindrance, obstruction, violation
or impairment referred to in paragraph 10(b), so long as Lessee shall
contest, in good faith and at its expense, the existence, the amount or the
validity thereof, the amount of the damages caused thereby, or the extent
of its liability therefor, by appropriate proceedings during the pendency
of which there is prevented (A) the collection of, or other realization
upon, the tax, assessment, levy, fee, rent or charge or lien, encumbrance
or charge so contested, (B) the sale, forfeiture or loss of the Leased
Premises, or any part thereof, or the Basic Rent or any additional rent, or
any portion thereof, (C) any interference with
36
the use or occupancy of the Leased Premises or any part thereof, and (D) any
interference with the payment or collection of the Basic Rent or any additional
rent, or any portion thereof. While any such proceedings are pending, Lessor
shall not have the right to pay, remove or cause to be discharged the tax,
assessment, levy, fee, rent or charge or lien, encumbrance or charge thereby
being contested. Lessee further agrees that each such contest shall be promptly
prosecuted to a final conclusion. Lessee shall pay, and save Lessor harmless
against, any and all losses, judgments, decrees and costs (including all
reasonable attorneys' fees and expenses) in connection with any such contest
and shall, promptly after the final settlement, compromise or determination
(including any appeals) of such contest, fully pay and discharge the amounts
which shall be levied, assessed, charged or imposed or be determined to be
payable therein or in connection therewith, together with all penalties, fines,
interests, costs and expenses thereof or in connection therewith, and perform
all acts, the performance of which shall be ordered or decreed as a result
thereof; provided, however, that nothing herein contained shall be construed to
require Lessee to pay or discharge any lien, encumbrance or other charge
created by any act or failure to act of Lessor or the payment of which by
Lessee is not otherwise required hereunder, or to perform any act which Lessee
is not otherwise required to perform hereunder. No such contest shall subject
Lessor or any Permitted Mortgagee to the risk of any criminal liability. Lessee
shall give such reasonable security to Lessor or the Senior Permitted Mortgagee
as may be demmanded by Lessor or such Senior permitted Mortgagee to insure
compliance with the foregoing provisions of this paragraph 18.
37
19. Conditional Limitations; Default Provision. (a) Any of the
following occurrences or acts shall constitute an event of default (herein
called an Event of Default) under this Lease:
(i) If Lessee, at any time during the continuance of this Lease (and
regardless of the pendency of any bankruptcy, reorganization,
receivership, insolvency or other proceedings, at law, in equity, or
before any administrative tribunal, which have or might have the
effect of preventing Lessee from complying with the terms of this
Lease), shall (1) fail to make any payment when due of Basic Rent,
additional rent or other sum herein required to be paid by Lessee
hereunder and such failure continues for 5 days, or (2) fail to
observe or perform any other provision hereof or any provision of
the Assignment of Lease and Guaranty, dated as of the date hereof
(the Assignment), from Lessor to Clinton Holding Corporation (the
Company), and consented to therein by Lessee and by Lincoln National
Corporation (Guarantor) or the Reassignment of Lease and Guaranty,
dated as of the date hereof (the Reassignment), from the Company to
The Connecticut Bank and Trust Company, National Association and X.
X. Xxxxx (the Trustees), and consented to therein by Lessee and
Guarantor, for thirty days after notice to Lessee of such failure
has been given (provided, that in the case of any default referred
to in this clause (2) which cannot with diligence be cured within
such 30-day period, if Lessee shall proceed promptly to cure the
same and thereafter shall prosecute the curing of such default with
diligence, then upon receipt by Lessor of a Lessee's Certificate
stating the reason such default cannot be cured within thirty days
and stating that Lessee is proceeding with diligence to cure such
default, the time within which such failure may be cured shall be
extended for such period as may be necessary to complete the curing
of the same with diligence but not to exceed 120 days without
Lessor's written consent which consent shall not be unreasonably
withheld); or
(ii) if any representation or warranty of Lessee or Guarantor set forth
in any notice, certificate, demand, request or other instrument
delivered pursuant to, or in connection with, this Lease, the
Assignment, or the Reassignment shall either prove to be false or
misleading in any material respect as of the time when the same
shall have been made, or with respect to any such representation or
warranty Lessee or Guarantor shall fail to include in such
representation or warranty any fact or statement necessary in light
of
38
the circumstances in which such representation or warranty was
made to make such representation or warranty not misleading in any
material respect as of the time when the same shall have been
made; or
(iii) if Lessee or Guarantor shall file a petition commencing a
voluntary case under the Federal Bankruptcy Code or any other
federal or state law (as now or hereafter in effect) relating to
bankruptcy, insolvency, reorganization, winding-up or adjustment
of debts (hereinafter collectively called Bankruptcy Laws), or if
Lessee or Guarantor shall (A) apply for or consent to the
appointment of, or the taking of possession by, any receiver,
custodian, trustee, United States Trustee or liquidator (or other
similar official) of the Leased Premises or any part thereof or of
any substantial portion of Lessee's property, or (B) generally not
pay their respective debts as they become due, or if either Lessee
or Guarantor admits in writing its inability to pay its respective
debts generally as they become due or (C) makes a general
assignment for the benefit of its respective creditors, or (D)
files a petition commencing a voluntary case under or seeking to
take advantage of any Bankruptcy Law, or (E) fails to controvert
in timely and appropriate manner, or in writing acquiesces to, any
petition commencing an involuntary case against Lessee or
Guarantor or otherwise filed against Lessee or Guarantor pursuant
to any Bankruptcy Law, or (F) takes any corporate action in
furtherance of any of the foregoing, or
(iv) if an order for relief against Lessee or Guarantor shall be
entered in any involuntary case under the Federal Bankruptcy Code
or any similar order against Lessee or Guarantor shall be entered
pursuant to any other Bankruptcy Law, or if a petition commencing
an involuntary case against Lessee or Guarantor or proposing the
reorganization of Lessee or Guarantor under any Bankruptcy Law
shall be filed and not be discharged or denied within 60 days
after such filing, or if a proceeding or case shall be commenced
in any court of competent jurisdiction seeking (A) the
liquidation, reorganization, dissolution, winding-up or adjustment
of debts of Lessee or Guarantor, or (B) the appointment of a
receiver, custodian, trustee, United States Trustee or liquidator
(or any similar official) of the Leased Premises or any part
thereof or of Lessee or Guarantor or of any substantial portion of
Lessee's or Guarantor's property, or (C) any similar relief as to
Lessee or Guarantor pursuant to any Bankruptcy Law, and any such
proceeding or case shall continue undismissed or an order,
judgment or decree approving or ordering any of the foregoing
39
shall be entered and continue unstayed and in effect for 60 days; or
(v) if (a) a final judgment for the payment of money in an amount
greater than $50,000 or (b) final judgments for the payment of money
aggregating in an amount greater than $300,000 shall be rendered
against Lessee or Guarantor and Lessee or Guarantor shall not
discharge the same or cause it to be discharged within 60 days
from the entry thereof, or shall not appeal therefrom or from the
order, decree or process upon which or pursuant to which said
judgment was granted, based or entered, and secure a stay of
execution or an appeal bond in the amount of said judgment pending
such appeal; or
(vi) if the Leased Premises shall be left both unattended and without
maintenance as provided herein, for a period of thirty days; or
(vii) if Guarantor shall fail to observe or perform any provision of
the Guaranty or of the Other Guaranties, or pursuant to the terms
thereof shall be deemed to be in default thereunder, and such
failure or default shall continue for thirty days after notice to
Guarantor, provided, however, that the foregoing shall not be
construed as extending the period of time during which the
Guarantor is required to pay or perform any obligation of Lessee
hereunder or under the Assignment or Reassignment.
(b) If an Event of Default shall have happened and be continuing,
Lessor shall have the right at its election to give Lessee written notice
of Lessor's intention to terminate the term of this Lease on a date
specified in such notice. Thereupon, the term of this Lease and the estate
hereby granted shall terminate on such date as completely and with the same
effect as if such date were the date fixed herein for the expiration of the
term of this Lease, and all rights of Lessee hereunder shall terminate, but
Lessee shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing,
Lessor shall have the immediate right, whether or not the term of this
Lease shall have been terminated pursuant to paragraph l9(b), to (i)
re-enter and repossess the Leased Premises or any part thereof by force,
summary proceedings, ejectment or otherwise and (ii) remove all persons and
property
40
therefrom. Lessor shall be under no liability by reason of any such
re-entry, repossession or removal. No such re-entry or taking of possession
of the Leased Premises by Lessor shall be construed as an election on
Lessor's part to terminate the Term of this Lease unless a written notice
of such intention be given to Lessee pursuant to paragraph l9(b), or unless
the termination of this Lease be decreed by a court of competent
jurisdiction.
(d) At any time or from time to time after the repossession of the
Leased Premises or any part thereof pursuant to paragraph l9(c), whether or
not the term of this Lease shall have been terminated pursuant to paragraph
l9(b), Lessor may (but shall be under no obligation to) relet the Leased
Premises or any part thereof for the account of Lessee, in the name of
Lessee or Lessor or otherwise, without notice to Lessee, for such term or
terms (which may be greater or less than the period which would otherwise
have constituted the balance of the term of this Lease) and on such
conditions and for such uses as Lessor, in its absolute discretion, may
determine, and Lessor may collect and receive any rents payable by reason
of such reletting. Lessor shall not be responsible or liable for any
failure to relet the Leased Premises or any part thereof or for any failure
to collect any rent due upon any such reletting.
(e) No termination of the term of this Lease pursuant to paragraph
19(b), by operation of law or otherwise, and no repossession of the Leased
Premises or any part thereof pursuant to paragraph l9(c) or otherwise, and
no reletting of the Leased Premises or any part thereof pursuant to
paragraph 19(d), shall relieve Lessee of its liabilities and obligations
hereunder, all of which shall survive such expiration, termination,
repossession or reletting.
(f) In the event of any such termination or repossession, Lessee will
pay to Lessor the Basic Rent, additional rent and other sums required to
41
be paid by Lessee to and including the date of such termination or
repossession; and, thereafter, Lessee shall, until the end of what would
have been the term of this Lease in the absence of such termination or
repossession, and whether or not the Leased Premises or any part thereof
shall have been relet, be liable to Lessor for, and shall pay to Lessor, as
liquidated and agreed current damages: (i) the Basic Rent, additional rent
and other sums which would be payable under this Lease by Lessee in the
absence of such termination or repossession, less (ii) the net proceeds, if
any, of any reletting effected for the account of Lessee pursuant to
paragraph 19(d), after deducting from such proceeds all Lessor's expenses
incurred in connection with such reletting (including, without limitation,
all repossession costs, brokerage commissions, legal expenses, reasonable
attorneys' fees, employees' expenses, alteration costs and expenses of
preparation for such reletting). Lessee will pay such current damages on
the days on which the Basic Rent would have been payable under this Lease
in the absence of such termination or repossession, and Lessor shall be
entitled to recover the same from Lessee on each such day.
(g) At any time after any such termination or repossession by reason of
the occurrence of an Event of Default, whether or not Lessor shall have
collected any current damages pursuant to paragraph l9(f), Lessor shall be
entitled to recover from Lessee, and Lessee will pay to Lessor on demand,
as and for liquidated and agreed final damages for Lessee's default and in
lieu of all current damages beyond the date of such demand (it being agreed
that it would be impracticable or extremely difficult to fix the actual
damages), an amount by which (a) the Basic Rent, additional rent and other
sums which would be payable under this Lease from the date of such demand
(or, if it be earlier, the date to which Lessee shall have satisfied in
full its obligations
42
under paragraph l9(f) to pay current damages) for what would be the
then unexpired Term of this Lease in the absence of such termination or
repossession, discounted at the rate of 8% per annum over (b) the then fair
net rental value of the Leased Premises for the same period discounted at
the rate of 8% per annum. If any statute or rule of law shall validly limit
the amount of such liquidated final damages to less than the amount above
agreed upon, Lessor shall be entitled to the maximum amount allowable under
such statute or rule of law.
(h) Notwithstanding anything to the contrary stated herein, if an Event
of Default shall have happened and be continuing, whether or not Lessee
shall have abandoned the Leased Premises, Lessor may elect to continue this
Lease in effect for so long as Lessor does not terminate Lessee's rights to
possession of the Leased Premises and Lessor may enforce all of its rights
and remedies hereunder including without limitation the right to recover
all Basic Rent, additional rent and other sums payable hereunder as the
same become due.
20. Additional Rights of Lessor. (a) No right or remedy herein
conferred upon or reserved to Lessor is intended to be exclusive of any
other right or remedy, and each and every right and remedy shall be
cumulative and in addition to any other right or remedy given hereunder or
now or hereafter existing at law or in equity or by statute. The failure of
Lessor to insist at any time upon the strict performance of any covenant or
agreement or to exercise any option, right, power or remedy contained in
this Lease shall not be construed as a waiver or a relinquishment thereof
for the future. A receipt by Lessor of any Basic Rent, any additional rent
or any other sum payable hereunder with knowledge of the breach of any
covenant or agreement contained in this Lease shall not be deemed a waiver
of such breach, and no waiver by Lessor of any provision of this Lease
shall be deemed to have been
43
made unless expressed in writing and signed by Lessor. In addition to
other remedies provided in this Lease, Lessor shall be entitled, to the
extent permitted by applicable law, to injunctive relief in case of the
violation, or attempted or threatened violation, of any of the covenants,
agreements, conditions or provision of this Lease, or to decree compelling
performance of any of the covenants, agreements, conditions or provisions
of this Lease, or to any other remedy allowed to Lessor at law or in
equity.
(b) To the extent it may lawfully do so, Lessee hereby waives and
surrenders for itself and all those claiming under it, including creditors
of all kinds, (i) any right and privilege which it or any of them may have
under any present or future constitution, statute or rule of law to redeem
the Leased Premises or to have a continuance of this Lease for the term
hereby demised after termination of Lessee's right of occupancy by order or
judgment of any court or by any legal process or writ, or under the terms
of this Lease or after the termination of the term of this Lease as herein
provided, and (ii) the benefits of any present or future constitution,
statute or rule of law which exempts property from liability for debt or
for distress for rent.
(c) In the event an action shall be brought for the enforcement of any
right hereunder, the party cast in judgment shall pay to the prevailing
party all the expenses incurred in connection therewith including
reasonable attorneys' fees.
21. Notices, Demands and Other Instruments. All notices, demands,
requests, consents, approvals and other instruments required or permitted
to be given pursuant to the terms of this Lease shall be in writing and
shall be deemed to have been properly given if (a) with respect to Lessee,
sent by certified or registered mail, postage prepaid, or sent by telegram
or delivered by hand, in each case addressed to Lessee at its address first
above
44
set forth, and (b) with respect to Lessor, sent by certified or registered
mail, postage prepaid, or sent by telegram or delivered by hand in each case,
addressed to Lessor at its address first above set forth. Lessor and Lessee
shall each have the right from time to time to specify as its address for
purposes of this Lease any other address in the United States of America upon
giving 15 days' notice thereof, similarly given, to the other party.
22. Estoppel Certificates; Consents and Financial Statements. (a)
Lessee and Lessor will, at any time and from time to time, upon not less than
twenty days' prior request by the other party, execute, acknowledge and deliver
to the other party a Certificate, certifying that this Lease is unmodified and
in full effect (or setting forth any modifications and that this Lease is in
full effect as modified) and the dates to which the Basic Rent, additional rent
and other sums payable hereunder have been paid, and either stating that to the
knowledge of the signer of such certificate no default exists hereunder or
specifying each such default of which the signer may have knowledge; it being
intended, inter alia, that any such certificate may be relied upon by any
mortgagee or prospective purchaser or prospective mortgagee of the Leased
Premises.
(b) From time to time during the term of this Lease, Lessor expects
to secure financings of its interest in the Leased Premises by assigning
Lessor's interest in this Lease and the sums payable hereunder. In the event of
any such assignment to a Permitted Mortgagee, Lessee will, upon not less than
ten days' prior request by Lessor, execute, acknowledge and deliver to Lessor a
consent to such assignment addressed to such Permitted Mortgagee in a form
satisfactory to such Permitted Mortgagee; and Lessee will produce, at Lessee's
expense (but only with respect to the initial financing involving the
45
interest in this Lease or in such leasehold estate as well as the fee estate in
the Leased Premises or any portion thereof.
24. Surrender. Upon the termination of this Lease, Lessee shall peaceably
surrender the Leased Premises to Lessor in the same condition in which they
were received from Lessor at the commencement of this Lease, except as altered
as permitted or required by this Lease and except for ordinary wear and tear.
Provided that Lessee is not in default hereunder, Lessee shall remove from the
Leased Premises prior to or within a reasonable time after (not to exceed
thirty days) such termination all property not owned by Lessor, and, at
Lessee's expense, shall, at such time of removal, repair any damage caused by
such removal. Property not so removed shall become the property of Lessor.
Lessor may thereafter cause such property to be removed from the Leased
Premises and disposed of. The cost of any such removal and disposition and the
cost of repairing any damage caused by such removal shall be borne by Lessee.
25. Separability. Each and every covenant and agreement contained in this
Lease is separate and independent, and the breach of any thereof by Lessor
shall not discharge or relieve Lessee from any obligation hereunder. If any
term or provision of this Lease or the application thereof to any person or
circumstances or at any time shall to any extent be invalid and unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances or at any time other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and shall be enforced to the extent
permitted by law.
26. Binding Effect. All of the covenants, conditions and obligations
contained in this Lease shall be binding upon and inure to the
47
benefit of the respective successors and assigns of Lessor and Lessee to the
same extent as if each such successor and assign were in each case named as a
party to this Lease. This Lease may not be changed, modified or discharged
except by a writing signed by Lessor and Lessee.
27. Table of Contents, Headings. The table of contents and headings
used in this Lease are for convenient reference only and shall not to any
extent have the effect of modifying, amending or changing the provisions
of this Lease.
28. Governing Law. This Lease shall be governed by and interpreted
under the laws of the State of Indiana.
29. Certain Definitions.
(a) The term "Appraisal Procedure" means:
Lessee and Lessor shall each select an MAI appraiser. Such value
shall be determined by agreement of the full appraisals of such
two appraisers pursuant to the terms of this Lease; and if no
agreement can be reached by such two appraisers, such value shall
be determined by the full appraisal of a third MAI appraiser, who
shall be selected by the original two appraisers. All reasonable
and necessary costs of the appraisals shall be paid by Lessee.
(b) The term "Guarantor" means:
Lincoln National Corporation, an Indiana corporation.
(c) The term "Guaranty" means:
The Guaranty, dated the date hereof, from Guarantor to Lessor,
guaranteeing performance of Lessee's obligations under this Lease.
(d) The term "Impositions" means:
(i) all taxes, assessments (including assessments for benefits from
public works or improvements, whether or not begun or completed
prior to the commencement of the Term of this Lease and whether or
not to be completed within said Term), levies, fees, water and
sewer rents and charges, and all other governmental charges of
every kind, general and special, ordinary and extraordinary,
whether or not the same shall have
48
been within the express contemplation of the parties hereto,
together with any interest and penalties thereon, which are, at
any time, imposed or levied upon or assessed against (A) the
Leased Premises or any part thereof, (B) any Basic Rent, any
additional rent reserved or payable hereunder or any other sums
payable by Lessee hereunder, (C) this Lease or the leasehold
estate hereby created or which arise in respect of the operation,
possession, occupancy or use of the Leased Premises:
(ii) any gross receipts or similar taxes imposed or levied upon,
assessed against or measured by the Basic Rent, additional rent or
any other sums payable by Lessee hereunder or levied upon or
assessed against the Leased Premises; including without limitation
[reference to Indiana gross receipts tax];
(iii) all sales and use taxes which may be levied or assessed against
or payable by Lessor or Lessee on account of the acquisition,
leasing or use of the Leased Premises or any portion thereof;
and
(iv) all charges for water, gas, light, heat, telephone,
electricity, power and other utilities and communications services
rendered or used on or about the Leased Premises.
(e) The term "Junior Permitted Mortgagees" means American States
Insurance Company, as mortgagee under a mortgage, dated as of the date hereof,
from Lessor, as mortgagor, and its assigns; and Xxxx Xxxxxx Realty Inc., as
mortgagee under a mortgage dated as of the date hereof, from Lessor, as
mortgagor, and its assigns.
(f) The term "this Lease" means:
this Lease and Agreement as amended and modified from time to
time, together with any memorandum or short form of lease entered
into for the purpose of recording.
(g) The term "Lessee's Certificate" means:
a written certificate signed by the Chairman of the Board, the
President or any Vice President of Lessee.
(h) The term "Lessor's Cost" means Lessor's Cost from time to time as
set forth in Schedule C.
49
(i) The term "Other Guaranties" means:
the Guaranties, dated as of the date hereof, from Guarantor to
Lessor guaranteeing performance of the obligations of Lincoln
National Pension Insurance Company, as lessee, under a Lease and
Agreement, dated as of the date hereof, and the Guaranty, dated as
of the date hereof, from Guarantor to Lessor guaranteeing
performance of the obligations of American States Insurance
Company, as lessee, under a Lease and Agreement, dated as of the
date hereof.
(j) The term "Permitted Mortgage" means:
any mortgage, deed of trust, security agreement, assignment of
lease or other security instrument relating to the Leased Premises
and this Lease, subject to the rights of lessee under this Lease,
and securing the borrowing by Lessor from Clinton Holding
Corporation, a Delaware corporation (the Senior Permitted
Mortgage), made at the time of execution of this Lease, or any
refinancing thereof, or the mortgages to the Junior Permitted
Mortgagees (the Subordinated Permitted Mortgage).
(k) The term "Permitted Mortgagee" means the Senior Permitted
Mortgagee and the Junior Permitted Mortgagees.
(l) The term "Purchase Offer" means:
an offer delivered by Lessee to Lessor, executed by the
president or any vice president of Lessee, irrevocably offering to
purchase the Leased Premises pursuant to the provisions of
paragraphs 12 or 14 on any Termination Date specified in such Offer
at a price determined in accordance with Schedule C.
(m) The term "Senior Permitted Mortgagee" means The Connecticut Bank
and Trust Company, National Association and X. X. Xxxxx, as
trustees, as assignees of Clinton Holding Corporation, and their
successors and assigns.
(n) The term "Termination Date" means:
any Basic Rent Payment Date.
30. Lessee's Options; Right of First Refusal. (a) If no event of
default hereunder has occurred and is continuing, Lessee shall have the option
to purchase the Leased Premises either (x) on the last day of the Primary Term
50
or (y) on the last day of the first, second, third, fourth, fifth and sixth
Extended Terms if the Lease has been extended to any such date (any of such
dates for purchase being referred to as the Purchase Date), upon not less than
360 days prior written notice to Lessor of its intention to exercise such
option. The purchase price payable upon the exercise of such option shall be
the fair market value of the Leased Premises as of the Purchase Date, taking
into consideration Lessee's continuing rights and obligations under this Lease
assuming Lessee shall have extended the Lease for all Extended Terms, minus the
enhancement of the fair market value of the Leased Premises due to the
existence of Lessee's Improvements and that portion of the Improvements, if
any, constructed by Lessee at its own expense and for which Lessee has not been
reimbursed pursuant to paragraph 15. If Lessee and Lessor cannot agree as to
such fair market value, such fair market value shall be determined in
accordance with the Appraisal Procedure. Such Appraisal Procedure shall be
completed within 150 days after Lessee's notice as set forth above. Lessee's
option shall be exercisable by giving notice of such exercise to Lessor not
less than 360 days prior to the Purchase Date. On the Purchase Date, Lessor
shall convey the Leased Premises to Lessee pursuant to and upon compliance with
paragraph 16. The foregoing option is personal to Lessee, and such option is
not assignable (except by Lessee to any of its affiliates) notwithstanding any
assignment of the Lease to any other person.
(b) If, at any time during the Primary Term or any Extended Term of
this Lease, Lessor shall receive and be willing to accept a bona fide offer
from a third party to purchase Lessor's interest in the Leased Premises, other
than an offer to purchase such interest at any sale incidental to foreclosure
or other similar proceedings, or if Lessor shall offer to sell its interest in
the Leased Premises to any third party, Lessor shall promptly transmit to
51
Lessee its written offer to sell such interest to Lessee upon the same terms
and conditions as are set forth in the third party offer or its offer to a
third party, as the case may be, together with a true copy of such offer
(containing the name and address of such third party); provided, however, that
Lessor's offer to Lessee shall be reduced by the enhancement of the fair market
value of the Leased Premises due to the existence of Lessee's Improvements and
that portion of the Improvements, if any, constructed by Lessee at its own
expense and for which Lessee has not been reimbursed pursuant to paragraph 15,
as determined by the Appraisal Procedure. Lessee shall have 30 business days
within which to accept such offer. If Lessee shall accept such offer by written
notice to Lessor within such time, such offer and acceptance shall constitute a
contract between them for the sale by Lessor and the purchase by Lessee of the
Leased Premises, and shall not thereafter be subject to rejection by either
party. On the date of such purchase, Lessor shall convey and assign the Leased
Premises to Lessee, provided that such conveyance and assignment shall be made
subject to the Permitted Exceptions listed in Schedule A hereto, to this Lease,
and to such liens, encumbrances, charges, exceptions and restrictions affecting
the Leased Premises as such third party is willing to accept in such offer, and
provided further that this Lease and any Permitted Mortgage shall continue in
full force and effect. If the offer to sell is not so accepted by Lessee, then
Lessor may sell the Leased Premises to such third party purchaser upon the
terms contained in such original offer by or to such third party and such sale
and transfer must be consummated within 180 days following the expiration of
the time hereinabove provided for the acceptance by Lessee. If the Leased
Premises is sold to a third party, the sale shall be subject to this Lease and
52
all of the provisions hereof, including, without limitation, all options
granted to Lessee.
31. Schedules. The following are Schedules A, B and C referred to in
this Lease, which are hereby made a part hereof.
53
SCHEDULE A
TO LEASE
Part 1: Property Description
Part 2: Property subject to the option set forth in paragraph 15(d).
The Lease will include a legal description of certain specific portions
of the Leased Premises which are to be subject to the paragraph 15(d) option.
The amount of indebtedness to be prepaid pursuant to the Senior Permitted
Mortgage in connection with the exercise of such option will be the greater of
(a) the amount herein set forth as the cost attributable to such portion of the
Leased Premises or (b) the fair market value of such portion as determined
pursuant to paragraph 15(c). Such property and amounts will be as follows:
Indianapolis: unimproved land - $1,000,000
Exhibit A
Indianapolis, Indiana
American States Insurance Company
Parcel I:
Lots Numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 20 and 21 in
Xxxxx Xxx'x Subdivision of Square Six (6) of the Donation Lands of the City of
Indianapolis, as per plat thereof recorded in Plat Book 1, page 121, in the
Office of the Recorder of Xxxxxx County, Indiana. Also, vacated Superior Street
from the North line of Michigan Street to the South line of North Street, being
adjacent to said Lots 1 thru 8, 9 and 21. Also, vacated Xxxxxxx Street from the
North line of Michigan Street to the South line of the First East-West alley
North of Michigan Street, being adjacent to said Lots 10 and 11 thru 15. Also,
part of the first alley, heretofore vacated, North of Michigan Street from the
West line of Meridian Street to the East line of Xxxxxxx Street, being adjacent
to said Xxxx 0, 0, 0, 00, 00 xxx 00.
Xxxxxx XX:
Lots Numbered 5, 6 and 7 in Xxxxxx X. Xxxxxx'x Resubdivision of Xxx'x
Subdivision of Square Seven (7) of the Donation Lands of the City of
Indianapolis, as per plat thereof recorded in Plat Book 2, page 50, in the
Office of the Recorder of Xxxxxx County, Indiana.
Also, Lots Numbered 1, 2, 3, 4 and 20 in Xxxxx Xxx'x Subdivision of Square
Seven (7) of the Donation Lands of the City of Indianapolis, as per plat
thereof recorded in Plat Book 1, page 139, in the Office of the Recorder of
Xxxxxx County, Indiana. Also, part of the first alley, heretofore vacated,
North of Michigan Street from the West line of Illinois Street to the East line
of Muskingham Street, being between and adjacent to said Lots 3 and 4.
Parcel III:
Part of Illinois Street in the City of Indianapolis, Xxxxxx County, Indiana,
vacated by Declaratory Resolution 80-VAC-33 on December 10, 1980 and recorded
January 6, 1981 as Instrument No. 81-637 in the Office of the Recorder of
Xxxxxx County, Indiana, to-wit:
That portion of Illinois Street extending upward from approximately Seventeen
(17) feet above the pavement surface a distance of approximately Thirteen (13)
feet, the horizontal location being described as follows:
Beginning at a point on the West right-of-way line of Xxxxx Xxxxxxxx Xxxxxx
222.0 feet South from the South right-of-way line of West North Street; thence
South along said West right-of-way line of Xxxxx Xxxxxxxx Xxxxxx nine (9.0)
feet; thence East at right angles to said West line 90.00 feet to a point on
the East right-of-way line of North Illinois Street; thence North along said
East line nine (9.0) feet; thence West 90.00 feet to the place of beginning.
SCHEDULE B
TO LEASE
Basic Rent Payments
1. The instalments of Basic Rent payable for the Leased Premises
during the Interim Term shall be: $13,336.50 per diem (based on a 360-day
year of 12 30-day months), payable on August 31, 1984.
2. Each instalment of Basic Rent payable for the Leased Premises
during that portion of the Primary Term ending on and including August 31,
1989 shall be $1,382,818 and shall be payable semi-annually in arrears
commencing on February 28, 1985 and thereafter on the last day of each August
and February thereafter to and including August 31, 1989.
3. Each instalment of Basic Rent payable for the Leased Premises
during that portion of the Primary Term commencing on September 1, 1989 and
ending on and including August 31, 1994 shall be $3,143,607 and shall be
payable semi-annually in arrears commencing on February 28, 1990 and
thereafter on the last day of each August and February thereafter to and
including August 31, 1994.
4. Each instalment of Basic Rent payable for the Leased Premises
during that portion of the Primary Term commencing on September 1, 1994 and
ending on and including August 31, 1999 shall be $3,198,376 and shall be
payable semi-annually in arrears commencing on February 28, 1995 and
thereafter on the last day of each August and February thereafter, to and
including August 31, 1999.
5. Each instalment of Basic Rent payable for the Leased Premises
during that portion of the Primary Term commencing on September 1, 1999 and
ending on and including August 31, 2004 shall be $4,881,238 and shall be
payable semi-annually in arrears commencing on February 29, 2000 and
thereafter on the last day of each August and February thereafter, to and
including August 31, 2004.
6. Each instalment of Basic Rent payable for the Lease to Premises
during that portion of the Primary Term commencing on September 1, 2004 and
ending on and including August 31, 2009 shall be $5,171,650 and should be
payable semi-annually in arrears commencing on February 28, 2005 and
thereafter on the last day of each August and February thereafter to and
including August 31, 2009.
7. Each instalment of Basic Rent for the Leased Premises during the
Extended Terms shall be $2,350,000, and shall be payable semi-annually in
arrears commencing on February 28, 2010 and thereafter on the last day of each
August and February thereafter occurring during the Extended Terms.
If any instalment of Basic Rent shall be payable on a date which
shall not be a business day, then such instalment shall be payable on the
first business day thereafter.
SCHEDULE C
TO LEASE
COMPUTATION OF PURCHASE PRICES
Upon the purchase of the Leased Premises during the Interim or
Primary Terms pursuant to paragraphs 12(b) or 14(c), the purchase price
payable shall be an amount equal to the amount set forth in column 2 below
opposite the period in which such purchase occurs (the first such amount being
called "Lessor's Cost") (period 1 being the period beginning on the first day
of the Interim Term and ending on and including February 28, 1985, period 2
being the period beginning on March 1, 1985 and ending on and including August
31, 1985, and each succeeding period being the following semiannual period to
and including period 50).
Column 1 Column 2
-------- --------
Purchase Period Applicable Amount
--------------- -----------------
1 $49,842,674
2 52,242,603
3 54,132,640
4 56,175,241
5 58,060,719
6 60,046,898
7 61,029,393
8 63,853,382
9 65,734,720
10 67,641,003
11 68,854,073
12 69,027,568
13 69,126,865
14 69,155,036
15 69,185,815
16 69,238,321
17 69,313,908
18 69,414,030
19 69,540,256
20 69,694,271
21 69,823,124
22 69,973,826
23 70,147,359
24 70,344,760
25 70,567,123
26 70,815,600
27 71,091,410
28 71,395,839
29 71,730,247
30 72,096,071
31 70,692,776
32 69,215,218
33 67,657,828
34 66,014,617
35 64,279,150
36 62,444,507
37 60,503,251
38 58,447,384
39 56,268,312
40 53,956,793
41 51,114,613
42 48,104,718
43 44,915,074
44 41,532,767
45 37,943,935
46 34,133,700
47 30,086,089
48 25,783,956
49 21,208,894
50 16,341,141
Upon a partial prepayment of the indebtedness secured by the Senior
Permitted Mortgage referred to in paragraph 12(c), 14(b) or l5(e) of this
Lease, the amounts set forth above shall be reduced by an amount equal to the
amount of the reduction of the principal amount of such indebtedness scheduled
to be outstanding during each purchase period, after giving effect to the
revised amortization thereof resulting from such partial prepayment in
accordance with the terms thereof. (In case such indebtedness is prepaid or
otherwise refinanced, the amounts so determined shall be reduced as if such
indebtedness had remained outstanding.)
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
signed as of the date first above written.
CLINTON STREET LIMITED PARTNERSHIP,
as Lessor
By: Liberty Street Limited Partnership - 84,
A General Partner
By: X. XXXXXXXX XXXXXXX, JR.,
---------------------------
X. Xxxxxxxx Xxxxxxx, Jr.,
A General Partner
AMERICAN STATES INSURANCE COMPANY,
as Lessee
By: P. XXXXXX XXXXXXX
---------------------
NAME: P. Xxxxxx Xxxxxxx
TITLE: Treasurer
This document prepared by:
CSAPLAR & XXX
Xxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Property Location: Indianapolis, Indiana
ASSIGNMENT OF LEASE AND GUARANTY
From
CLINTON STREET LIMITED PARTNERSHIP
To
CLINTON HOLDING CORPORATION
Dated as of August 1, 1984
This Document prepared by:
Csaplar & Xxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
ASSIGNMENT OF LEASES AND GUARANTY, dated as of August 1, 1984,
(herein, together with all supplements and amendments hereto, called this
Agreement), from CLINTON STREET LIMITED PARTNERSHIP, an Indiana limited
partnership (herein called Owner), having an address c/o Xxxx Xxxxxx Realty
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to CLINTON HOLDING
CORPORATION, a Delaware corporation, herein, together with its respective
successors and assigns, called Assignee) having an address c/o Xxxx Xxxxxx
Realty Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
To finance a portion of the cost to Owner of acquiring a fee interest
in the parcel of land described in Schedule A hereto (the Land Parcel) and in
the improvements located (the Land Parcel, together with the improvements
located thereon being collectively called the Schedule A Property), Assignor,
simultaneously with the execution and delivery hereof, is borrowing from
Assignee the amount of $33,102,310, such borrowing being evidenced by its (i)
Series A 13.90% Secured Note Due September 1, 1989, in the original principal
amount of $1,320,132 (herein, together with any notes issued in exchange or
replacement thereof, called the Series A Owner's Note), (ii) Series B 14.30%
Secured Note Due September 1, 1994, in the original principal amount of
$12,376,237 (herein, together with any notes issued in exchange or replacement
therefor, called the Series B Owner's Note), (iii) Series C 14.60% Secured
Note Due September 1, 1999, in the original principal amount of $11,485,149
(herein, together with any notes issued in exchange or replacement thereof,
called the Series C Note), (iv) Series D 14.70% Secured Note Due September 1,
1999 in the original principal amount of $5,610,561 (herein, together with any
notes issued in exchange or replacement therefor, called the Series D Owner's
Note), and (v) Series E 15.00% Secured Note Due September 1, 1999 in the
original principal amount of $2,310,231 (herein, together with any notes
issued in exchange or replacement therefor, called the Series E 0wner's Note;
the Series E Owner's Note, together with the Series A Owner's Note, the Series
B Owner's Note, the Series C Owner's Note and the Series D Owner's Note, are
herein collectively called the Owner's Notes).
To finance a portion of the cost to Owner of acquiring a fee interest
in the parcel of land described in Schedule B hereto and in the improvements
located thereon (the Schedule B Property), Assignor, simultaneously with the
execution and delivery hereof, is borrowing from Assignee the amount of
$16,551,155, such borrowing being evidenced by its (i) Series A 13.90% Secured
Note Due September 1, 1989, in the original principal amount of $660,066, (ii)
Series B 14.30% Secured Note Due September 1, 1994, in the original principal
amount of $6,188,119, (iii) Series C 14.60% Secured Note Due September 1,
1999, in the original principal amount of $5,742,574, (iv) Series D 14.70%
Secured Note Due September 1, 1999 in the original principal amount of
$2,805,280 and (v) Series E 15.00% Secured Note Due September 1, 1999 in the
original principal amount of $1,155,116.
To finance a portion of the cost to Owner of acquiring a fee interest
in the parcel of land described in Schedule C hereto and in the improvements
located (the Schedule C Property), Assignor, simultaneously with the execution
and delivery hereof, is borrowing from Assignee the amount of $50,646,535,
such borrowing being evidenced by its (i) Series A 13.90% Secured Note Due
September l, 1989, in the original principal amount of $2,019,802, (ii) Series
B 14.30% Secured Note Due September 1, 1994, in the original principal amount
of $18,935,644, (iii) Series C 14.60% Secured Note Due September l, 1999, in
the original principal amount of $17,572,277, (iv) Series D 14.70% Secured
Note Due September 1, 1999 in the original principal amount of $8,584,159 and
2
(v) Series E 15.00% Secured Note Due September l, 1999 in the original
principal amount of $3,534,653.
The Secured Notes of the Owner relating to the Schedule B Property
and Schedule C Property are collectively called the Other Owner's Notes, and
the Schedule A Property together with the Schedule B Property and the Schedule
C Property are collectively called the Properties and individually called a
Property.
The Owner's Notes and the Other Owner's Notes are secured by three
separate Mortgages, each dated as of the date hereof (the Mortgage relating to
the Schedule A Property called the Mortgage and all three Mortgages
collectively called the Mortgages), from Owner, as mortgagor, to Assignee, as
mortgagee, which each creates a lien on a Property. As additional security
for the Owner's Notes and the Other Owner's Notes, Owner is entering into the
undertakings herein set forth. The Schedule A Property has been leased by
Owner to The American States Insurance Company (the Lessee) under a Lease and
Agreement, dated as of the date hereof (herein, together with all supplements
and amendments thereto, and any memorandum or short form thereof entered into
for the purpose of recording, called the Lease), between Owner, as lessor, and
the Lessee, as lessee. The obligations of the Lessee under the Lease and
hereunder has been guaranteed by Lincoln National Corporation (the Guarantor)
pursuant to a Guaranty dated as of the date hereof (the Guaranty). In order
to induce Assignee to purchase the Owner's Notes and the Other Owner s Notes
and accept the Mortgages, Owner is entering into the undertakings herein set
forth with Assignee and is assigning the Lease and the Guaranty to Assignee.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, Owner
agrees as follows:
3
1. Owner, in furtherance of the covenants of the Mortgages and as
security for the payment of the principal of, premium, if any, and interest and
all other sums payable on the Owner's Notes and the Other Owner's Notes, and of
all other sums payable under the Mortgages, and the performance and observance
of the provisions thereof, has assigned, transferred, conveyed and set over,
and by these presents does assign, transfer, convey and set over to Assignee,
all of Owner's estate, right, title and interest in, to and under the Lease,
and the Guaranty together with all rights, powers, privileges, options and
other benefits of Owner as lessor under the Lease and as beneficiary under the
Guaranty including, but not by way of limitation, (i) the immediate and
continuing right to receive and collect all rents, income, revenues, issues,
profits, insurance proceeds, condemnation awards, moneys and security payable
or receivable under the Lease or the Guaranty pursuant to any of the provisions
of either thereof, whether as rents or as the purchase price of the Schedule A
Property or otherwise (except sums payable directly to any person other than
the lessor under the Lease), (ii) the right to accept any offer by Lessee to
purchase the Schedule A Property, or part thereof, or any award payable in
connection with a taking thereof (provided that such acceptance shall be
permitted by the terms of Section 3.1(a) of the Mortgages), (iii) the right and
power (which right and power are coupled with an interest) to execute and
deliver, as agent and attorney-in-fact of Owner, an appropriate deed or other
instrument necessary to convey the Schedule A Property, any part thereof or any
award payable in connection with a taking thereof to Lessee if Lessee becomes
obligated to purchase the Schedule A Property, any part thereof or any award
payable in connection with a taking thereof, (iv) the right to perform all
other necessary or appropriate acts as said agent and attorney-in-fact with
respect to any purchase and conveyance
4
referred to in clause (iii) above, (v) the right to make all waivers and
agreements, (vi) the right to give all notices, consents and releases,
(vii) the right to take any legal action upon the happening of a default under
the Lease or the Guaranty including the commencement, conduct and consummation
of proceedings at law or in equity as shall be permitted under any provision of
the Lease or the Guaranty or by law or in equity and (viii) the right to do any
and all other things whatsoever which Owner or any lessor is or may be entitled
to do under the Lease or the Guaranty.
2. The assignment made hereby is executed as collateral security,
and the execution and delivery hereof shall not in any way impair or diminish
the obligations of Owner under the provisions of the Lease nor shall any of
the obligations contained in the Lease be imposed upon Assignee. Upon a
release of the Schedule A Property or part thereof from the lien of the
Mortgage, pursuant to the provisions of the Mortgage, said assignment, and all
rights herein assigned to Assignee shall cease and terminate and all the
estate, right, title and interest of Owner in and to the above-described
assigned property shall revert to Owner, and Assignee shall, at the request of
Owner, deliver to Owner an instrument in recordable form cancelling this
Agreement and reassigning to Owner the above-described assigned property.
Upon the payment of the principal of and premium, if any, and all accrued
interest on the Owner's Notes and the Other Owner's Notes and of all other
sums payable under the Mortgages, or upon a release of all of the Property
from the lien of the Mortgage pursuant to the provisions of the Mortgage, said
assignment and all rights herein assigned to Assignee shall cease and
terminate and all the estate, right, title and interest of Owner in and to the
above-described assigned property shall revert to Owner, and Assignee shall,
at the request of Owner, deliver to Owner an instrument in recordable form
5
cancelling this Agreement and reassigning to Owner the above-described
assigned property.
3. Owner hereby designates Assignee to receive all payments of Basic
Rent, purchase prices and other sums payable to the lessor under the Lease and
all payments receivable by Owner under the Guaranty and to receive duplicate
original copies of all notices, undertakings, demands, statements, documents
and other communications which the Guarantor is required or permitted to give,
make, deliver to or serve upon assignor under the Guaranty and which the
Lessee is required or permitted to give, make, deliver to or serve upon the
lessor under the Lease. Owner hereby directs the Lessee to deliver to
Assignee, at its address set forth above or at such other address as Assignee
shall designate, duplicate original copies of all such notices, undertakings,
demands, statements, documents and other communications and no delivery
thereof by the Lessee shall be of any force or effect unless made to Owner and
also made to Assignee as herein provided.
4. Owner represents to Assignee that Owner has not executed any
other assignment of the subject matter of this Assignment other than the
Mortgage and that the Lease is in full effect and are not in default.
5. Owner agrees that said assignment and the designation and
direction to the Lessee hereinabove set forth are irrevocable, and that it
will not take any action as lessor under the Lease or as the beneficiary under
the Guaranty which is inconsistent with said assignment, or make any other
assignment, designation or direction inconsistent therewith, and that any
assignment, designation or direction inconsistent therewith shall be void.
Owner will, from time to time upon the request of Assignee execute all
instruments of further assurance and all such supplemental instruments with
respect to this Agreement as the Assignee may specify.
6
6. Owner hereby agrees, and hereby undertakes to obtain the
agreements of the Lessee to the following matters:
(a) The Lessee consents to the provisions of this Agreement, and
agrees to pay and deliver to Assignee all rentals and other sums assigned to
Assignee pursuant to this Agreement, without offset, deduction, defense,
deferment, abatement or diminution, subject to the provisions of the Lease and
will not, for any reason whatsoever, seek to recover from Assignee any moneys
duly owed and paid to the Assignee by virtue of this Agreement. The Lessee
agrees (i) that all sums payable to Assignee pursuant to the preceding
sentence shall be paid in such manner that Assignee shall have "collected
funds" on each date on which such sums are due and payable, and addressed to
Assignee at its address set forth above or to such other address or manner as
may be specified by Assignee by written notice to the Lessee and (ii) to
deliver to Assignee duplicate original copies of all notices and other
instruments which each may deliver pursuant to the Lease. No such payment or
delivery made by a Lessee shall be of any force or effect (i) unless paid to
Assignee or delivered to Assignee and Owner as provided above and (ii) until
actually received by the Assignee.
(b) Owner and the Lessee will not enter into any agreement
subordinating, amending, modifying or terminating (except as provided in the
Lease) the Lease without the consent thereto in writing of Assignee and any
such attempted subordination, amendment, modification or termination without
such consent shall be void. In the event that the Lease shall be amended as
herein permitted, the Lease as so amended shall continue to be subject to the
provisions of this Agreement without the necessity of any further act by any
of the parties hereto. The Lessee will remain obligated under the Lease in
accordance with its terms, and will not take any action to terminate (except
7
as expressly permitted by the Lease), rescind or avoid the Lease,
notwithstanding any action with respect to the Lease which may be taken by an
assignee or receiver of Owner or of any such assignee or by any court in any
such proceeding.
(c) If, pursuant to the Lease, Lessee shall offer to purchase the
Schedule A Property (or any part thereof or any award payable in connection
with a taking thereof), notice of acceptance of any such offer shall be deemed
validly given for all purposes if given by Assignee as permitted by paragraph
1(ii) hereof and notice by Owner of rejection of any such offer shall be void
unless accompanied by the written consent of Assignee and no such offer shall
be deemed rejected by Owner without the written consent of Assignee. If
Lessee shall become obligated to purchase the Schedule A Property (or any part
thereof or any award payable in connection with a taking thereof) pursuant to
any provision of the Lease, Lessee will accept a deed and other instruments
conveying and transferring the Schedule A Property (or any part thereof) which
are executed and delivered by Assignee as being in compliance with the
provisions of the Lease, provided that said deed and other instruments shall
otherwise be in compliance with the provisions of the Lease. If it should
become necessary for Assignee or any other party to institute any foreclosure
or other judicial proceeding in order that title to the Schedule A Property
(or any part thereof or any award payable in connection with a taking thereof)
may be conveyed to Lessee, the time within which delivery of the deed or other
instruments relating to such conveyance may be made shall be extended to the
extent necessary to permit Assignee or such other party to institute and
conclude such foreclosure or other judicial proceeding, and the Lease shall
not terminate, but shall continue in full effect until the expiration of such
period of extension.
8
7. This Agreement shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and assigns. This
Agreement may be executed in two or more counterparts and shall be deemed
to have become effective when and only when one or more of such counterparts
shall have been signed by or on behalf of each of the parties hereto, although
it shall not be necessary that any single counterpart be signed by or on
behalf of each of the parties hereto, and all such counterparts shall be
deemed to constitute but one and the same instrument. This Agreement shall be
governed by the laws of the State of Indiana.
8. The following are Schedules A, Schedule B and Schedule C referred
to in this Agreement.
9
IN WITNESS WHEREOF, Owner has caused this Agreement to be executed
and delivered as of the date first above written.
CLINTON STREET LIMITED PARTNERSHIP
By: Liberty Street Limited
Partnership-84,
General Partner,
Witness: XXXXXXXXX X. XXXXXX, XX. By: X. XXXXXXXX XXXXXXX
---------------------
X. Xxxxxxxx Xxxxxxx,
a General Partner
AMERICAN STATES INSURANCE COMPANY hereby consents to the foregoing
Assignment of Lease and Guaranty and hereby accepts and agrees to each of the
provisions set forth in paragraph 6 thereof.
AMERICAN STATES INSURANCE COMPANY
(SEAL)
Attest: By: F. XXXXXX XXXXXXX
---------------------
By: XXXXXX X. XXXX NAME: F. Xxxxxx Xxxxxxx
---------------------
NAME: Xxxxxx X. Xxxx TITLE: Treasurer
TITLE: Secretary
LINCOLN NATIONAL CORPORATION hereby consents to the foregoing
Assignment of Lease and Guaranty and hereby accepts and agrees to each of the
provisions set forth in paragraph 6 thereof.
LINCOLN NATIONAL CORPORATION
(SEAL)
By:
Attest: -----------------------
NAME:
By:
-------------------- TITLE:
NAME:
TITLE:
This Document prepared by:
Csaplar & Xxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
AMERICAN STATES INSURANCE COMPANY hereby consents to the foregoing
Assignment of Lease and Guaranty and hereby accepts and agrees to each of the
provisions set forth in paragraph 6 thereof.
AMERICAN STATES INSURANCE COMPANY
(SEAL)
Attest: By:
------------------------------
By: NAME:
--------------------------
NAME: TITLE:
TITLE:
LINCOLN NATIONAL CORPORATION hereby consents to the foregoing
Assignment of Lease and Guaranty and hereby accepts and agrees to each of the
provisions set forth in paragraph 6 thereof.
LINCOLN NATIONAL CORPORATION
(SEAL)
By: MAC X. XXXXXXX
Attest: -------------------------
NAME: Xxx X. Xxxxxxx
By: XXXXXXXX X. XXXXX TITLE: Vice President
------------------------
NAME: Xxxxxxxx X. Xxxxx
TITLE: Assistant Secretary
This Document prepared by:
Csaplar & Bok
One Winthrop Square
Boston, Massachusetts 02110
STATE OF INDIANA )
) SS:
COUNTY OF XXXXX )
Before me, Xxxxx Xxx Xxxxxxxx, a Notary Public, this ___ day of August,
A.D., 1984, personally appeared Xxx X. Xxxxxxx and Xxxxxxxx X. Xxxxx, as Vice
President and Assistant Secretary, respectively, of LINCOLN NATIONAL
CORPORATION, a corporation, and acknowledged the execution of the foregoing
instrument as their free and voluntary act and deed and as the free and
voluntary act and deed of said corporation, for the uses and purposes therein
mentioned.
XXXXX XXX XXXXXXXX
---------------------------------
(SEAL) Xxxxx Xxx Xxxxxxxx, Notary Public
My commission expires:
XXXXX X. XXXXXXXX
Notary Public
Resident of Xxxxx County, Indiana
My Commission Expires May 15, 0000
XXXXX XX XXXXXXX)
) SS:
COUNTY OF XXXXXX)
Before me, the undersigned, a Notary Public in and for
said County and State, this ________ day of August, 1984, personally
appeared F. Xxxxxx Xxxxxxx and Xxxxxx X. Xxxx, each of whom
acknowledged the execution of the foregoing instrument.
(SEAL)
My commission expires:
XXXX XXXX XXXXXX
MY COMMISSION EXPIRES APRIL 19, 1987
(XXXXXXXXX COUNTY)
XXXX XXXX XXXXXX
NOTARY PUBLIC
COMMONWEALTH OF MASSACHUSETTS)
) SS:
COUNTY OF SUFFOLK )
Before me, a Notary Public in and for said County and
State, personally appeared X. Xxxxxxxx Xxxxxxx, Jr., a general
partner of LIBERTY STREET LIMITED PARTNERSHIP-84 a Massachusetts
limited partnership, which is the general partner of CLINTON
STREET LIMITED PARTNERSHIP, an Indiana limited partnership and
acknowledged the execution of the foregoing instrument as such
partner to be his free and voluntary act as such partner of
LIBERTY STREET LIMITED PARTNERSHIP-84, and it as a general partner
acting on behalf of CLINTON STREET LIMITED PARTNERSHIP.
Witness my hand and Notarial Seal this 28th day of
August, 1984.
Signature XXXX X. XXXXX
------------------------
Printed XXXX X. XXXXX
------------------------
NOTARY PUBLIC
My commission expires:
10-31-86
----------------------
Property Location: Indianapolis, Indiana
REASSIGMMENT OF LEASE AND GUARANTY
From
CLINTON HOLDING CORPORATION
To
THE CONNECTICUT BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
and
X. X. XXXXX,
as Trustees
Dated as of August 1, 1984
This Document prepared by:
Csaplar & Xxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
REASSIGNMENT OF LEASE AND GUARANTY, dated as of August 1, 1984, from
CLINTON HOLDING CORPORATION, a Delaware corporation (herein, together with its
successors and assigns, called the Company) having an address c/o Xxxx Xxxxxx
Realty Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to THE CONNECTICUT
BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, and X. X. XXXXX, both having an
address at Xxx Xxxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, as trustees
(the Trustees) under the Collateral Trust Indenture (the Indenture), dated as
of August 1, 1984, from the Company, as grantor, to the Trustees, as trustees
(the Trustees, together with their successors and assigns, are herein called
the Assignee).
PRELIMINARY STATEMENT
CLINTON STREET LIMITED PARTNERSHIP, an Indiana limited partnership
(Owner), has entered into a Lease and Agreement, dated as of August 1, 1984
(herein, together with all amendments and supplements thereto and any short
form thereof entered into for purposes of recording, called the Lease), with
American States Insurance Company, an Indiana corporation, as lessee
(Lessee). The obligations of Lessee under the Lease has been guaranteed by
Lincoln National Corporation (Guarantor) pursuant to a guaranty, dated as of
August 1, 1984, from Guarantor to Owner (the Guaranty). The premises leased
pursuant to the Lease consist of the land parcel described in Schedule A
hereto (the Land Parcel), all buildings and other improvements located
thereon, and all easements, rights and appurtenances relating respectively
thereto (collectively, the Property). All right, title and interest of Owner
in and to the Lease and the Guaranty have been assigned to the Company
pursuant to (i) the mortgage, dated as of the date hereof, relating to the
Property (the Mortgage), from Owner, as mortgagor, to the Company, as
mortgagee, and (ii) an Assignment of Lease and Guaranty, dated as of the date
hereof, relating to the Lease and the Guaranty (herein, together with all
supplements and amendments thereto, collectively called the Assignment), from
Owner, as assignor, to the Company, as assignee, as security for the (i)
Series A 13.90% Secured Notes Due September 1, 1989, in the original principal
amount of $4,000,000, (ii) Series B 14.30% Secured Notes Due September 1,
1994, in the original principal amount of $37,500,000, (iii) Series C 14.60%
Secured Notes Due September l, 1999, in the original principal amount of
$34,800,000, (iv) Series D 14.70% Secured Notes Due September l, 1999, in the
original principal amount of $17,000,000, and (v) Series E 15.00% Secured
Notes Due September 1, 1999, in the original principal amount of $7,000,000 of
Owner.
NOW, THEREFORE, in consideration of the premises and the sum of One
Dollar ($1) and other valuable consideration, receipt whereof is hereby
acknowledged, and in order to secure (i) the due and punctual payment of the
Series A 13.90% Collateral Trust Notes Due September l, 1999, the Series B
14.30% Collateral Trust Notes Due September l, 1994, the Series C 14.60%
Collateral Trust Notes Due September 1, 1999, the Series D 14.70% Collateral
Trust Notes Due September 1, l999 and the Series E 15.00% Collateral Trust
Notes Due September 1, 1999 of the Company, issued by the Company under and
secured by the Indenture and (ii) the performance of the Company's obligations
under the Indenture, the Company has assigned, transferred, conveyed and set
over, and by these presents does hereby assign, transfer, convey and set over,
to the Assignee, all of its rights, title and interest in and to the Lease,
the Guaranty and the Assignment; all without recourse to the Company.
The following is the Schedule A referred to in this Reassignment of
Lease and Guaranty, which Schedule is hereby incorporated by reference herein.
2
IN WITNESS WHEREOF, the Company has caused this Reassignment of Lease
and Guaranty to be executed and its corporate seal to be hereunto affixed and
attested by its officers thereunto duly authorized, as of the date first above
written.
CLINTON HOLDING CORPORATION
By: X. XXXXXXXX XXXXXXX, JR.
-------------------------------
NAME: X. Xxxxxxxx Xxxxxxx, Jr.
(SEAL) TITLE: President
Attest:
By: XXXXXXXXX X. XXXXXX, XX.
--------------------------------
NAME: Xxxxxxxxx X. Xxxxxx, Xx.
TITLE: Secretary
AMERICAN STATES INSURANCE COMPANY hereby consents to the foregoing
Reassignment of Lease and Guaranty.
AMERICAN STATES INSURANCE COMPANY
BY: F. XXXXXX XXXXXXX
-------------------------
NAME: F. Xxxxxx Xxxxxxx
(SEAL) TITLE: Treasurer
Attest:
By: XXXXXX X. XXXX
-------------------------
NAME: Xxxxxx X. Xxxx
TITLE: Secretary
LINCOLN NATIONAL CORPORATION, hereby consents to the foregoing
Reassignment of Lease and Guaranty.
LINCOLN NATIONAL CORPORATION
By: XXX X. XXXXXXX
--------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
(SEAL)
Attest
By: XXXXXXXX X. XXXXX
-------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Secretary
This Document prepared by:
Csaplar & Xxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
STATE OF INDIANA)
) SS :
COUNTY OF XXXXXX)
Before me, the undersigned, a Notary Public in and for
said County and State, this ___________ day of August, 1984, personally
appeared F. Xxxxxx Xxxxxxx and Xxxxxx X. Xxxx, each of whom
acknowledged the execution of the foregoing instrument.
(SEAL) XXXX XXXX XXXXXX
---------------------
NOTARY PUBLIC
My commission expires:
XXXX XXXX XXXXXX
MY COMMISSION EXPIRES APRIL 19, 1987
(XXXXXXXXX COUNTY)
STATE OF INDIANA )
) SS:
COUNTY OF XXXXX )
Before me, Xxxxx Xxx Xxxxxxxx, a Notary Public, this
day of August, A.D., 1984, personally appeared Xxx X. Xxxxxxx and
Xxxxxxxx X. Xxxxx, as Vice President and Assistant Secretary,
respectively, of LINCOLN NATIONAL CORPORATION, a corporation, and
acknowledged the execution of the foregoing instrument as their
free and voluntary act and deed and as the free and voluntary act
and deed of said corporation, for the uses and purposes therein
mentioned.
(SEAL) XXXXX XXX XXXXXXXX,
---------------------------------
Xxxxx Xxx Xxxxxxxx, Notary Public
My Commission Expires:
XXXXX X. XXXXXXXX
Notary Public
Resident of Xxxxx County, Indiana
My Commission Expires May 15, 0000
XXXXXXXXXXXX XX XXXXXXXXXXXXX)
) SS:
COUNTY OF SUFFOLK )
Before me, a Notary Public in and for said County and
State, personally appeared X. Xxxxxxxx Xxxxxxx, Jr. and Xxxxxxxxx X.
Xxxxxx Xx., the President and Secretary, respectively, of CLINTON
HOLDING CORPORATION, a corporation organized and existing under
the laws of the State of Delaware, and acknowledged the execution
of the foregoing instrument as such officers acting for and on
behalf of said corporation.
Witness my hand and Notarial Seal this 28th day of
August, 1984.
Signature XXXX X. XXXXX
-----------------
Printed Xxxx X. Xxxxx
-----------------
NOTARY PUBLIC
My commission expires:
10-31-86
---------------------
Re: Assignment of Lease and Guaranty
Second Assignment of Lease and
Guaranty
("Indianapolis" site)
850105433
CORRECTION AGREEMENT
THIS AGREEMENT, made this 7th day of November, 1985, by and between:
CLINTON STREET LIMITED PARTNERSHIP, an Indiana limited partnership, having an
address c/o Xxxx Xxxxxx Realty Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, and CLINTON HOLDING CORPORATION, a Delaware corporation, having an
address c/o Xxxx Xxxxxx Realty Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000,
WITNESSETH:
WHEREAS, the parties to this agreement are parties to one or more
instruments, all dated as of August 1, 1984, relating to the leasing by
American States Insurance Company of a certain parcel of land located in
Indianapolis, Xxxxxx County, Indiana ("Indianapolis" site) which aforementioned
instruments are as follows:
1. Assignment of Lease and Guaranty
Recorded as Instrument No. 840068010
From: Clinton Street Limited Partnership, as "Owner"
To: Clinton Holding Corporation, as "Assignee"
Consented to by: American States Insurance Company
and
Lincoln National Corporation
2. Second Assignment of Lease and Guaranty
Recorded as Instrument No. 0000000x0
From: Clinton Street Limited Partnership, as "Owner"
To: Clinton Holding Corporation, as "Assignee"
Consented to by: American States Insurance Company
and
Lincoln National Corporation
WHEREAS, the aforesaid instruments, in addition to the legal
description of the Indianapolis site, make reference by Schedules B and C, in
connection with certain financings, to land located in Fort Xxxxx, Indiana,
commonly known as the "Xxxxxxxx" site, and the "Lincoln West" site, and
CROSS REFERENCE
DEC 2 10:27 AM '85
RECEIVED FOR RECORD
XXXX X'XXXXXXXX
RECORDER XXXXXX CO.
-2-
WHEREAS, the legal description of the "Lincoln West" site which is set
forth in Schedule B to each of the foregoing instruments has been determined to
be incomplete and, therefore, incorrect, and
WHEREAS, it is the mutual desire of the parties hereto that the
foregoing instruments be corrected by having appended to each instrument a
complete and correct Schedule B legal description, and that such instruments be
corrected of record.
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00) paid
by each of the parties hereto to each of the other parties hereto, and other
valuable considerations each to the other in hand paid, the receipt and
sufficiency of which is hereby acknowledged, the parties do mutually covenant
and agree:
1. That Schedule B to this agreement be and it hereby is substituted
for Schedule B to all of the foregoing instruments.
2. That all other terms, conditions and covenants of the aforesaid
instruments are and shall remain in full force and effect except as hereby
corrected.
3. That this agreement may be executed in any number of counterparts
and each counterpart shall for all purposes be deemed to be an original; and
all such counterparts shall together constitute but one and the same agreement.
4. That the parties hereto are authorized and directed to attach this
Correction Agreement to each of the foresaid instruments, as a part and
portion thereof, and to record same among the public records in the Office
of the Recorder of Xxxxxx County, Indiana, and elsewhere as they shall deem
appropriate.
-3-
This Agreement shall bind and shall inure to the benefit of the
respective heirs, successors and assigns of the parties hereto.
IN WITNESS HEREOF, the parties have caused this instrument to be
executed as of the day and year first above written.
CLINTON HOLDING CORPORATION
BY: X. XXXXXXXX XXXXXXX, JR.
----------------------------------
(SEAL) Name: X. Xxxxxxxx Xxxxxxx, Jr.
Title: President
By: XXXXXXXXX X. XXXXXX, XX.
--------------------------------
Name: Xxxxxxxxx X. Xxxxxx, Xx.
Title: Assistant Secretary
CLINTON STREET LIMITED PARTNERSHIP
BY: Liberty Street Limited Partnership
-84, A General Partner
BY: X. XXXXXXXX XXXXXXX, JR.
-----------------------------------
X. Xxxxxxxx Xxxxxxx, Jr.
A General Partner
-4-
AMERICAN STATES INSURANCE COMPANY hereby consents to the foregoing
Correction Agreement.
AMERICAN STATES INSURANCE COMPANY
BY: F. XXXXXX XXXXXXX
------------------------------
Name: F. Xxxxxx Xxxxxxx
Title: Vice President
(SEAL)
Attest:
BY: XXXXXX X. XXXX
---------------------------
Name: Xxxxxx X. Xxxx
Title: Secretary
LINCOLN NATIONAL CORPORATION hereby consents to the foregoing
Correction Agreement.
LINCOLN NATIONAL CORPORATION
BY: XXX XXXXXXX
-----------------------------
Name: Xxx Xxxxxxx
Title: Vice President
(SEAL)
Attest:
BY: XXXXXXX XXXXXX
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Secretary
-5-
COMMONWEALTH OF MASSACHUSETTS )
) SS:
)
COUNTY OF SUFFOLK )
Before me, a Notary Public in and for said County and State,
personally appeared X. Xxxxxxxx Xxxxxxx, Jr. and Xxxxxxxxx X. Xxxxxx,
Xx., the President and Asst. Secretary respectively, of CLINTON
HOLDING CORPORATION, a corporation organized and existing under the
laws of the State of Delaware, and acknowledged the execution of the
foregoing instrument as such officers acting for and on behalf of
said corporation.
Witness my hand and Notarial Seal this 7th day of
November, 1985
Signature XXXXXXX X. XXXXXXXX
------------------------
Printed Xxxxxxx X. Xxxxxxxx
------------------------
NOTARY PUBLIC
My commission expires:
July 25, 1991
------------------------------
-6-
COMMONWEALTH OF MASSACHUSETTS )
) SS:
COUNTY OF SUFFOLK )
Before me, a Notary Public in and for said County and State,
personally appeared X. Xxxxxxxx Xxxxxxx, Jr., a general partner of
LIBERTY STREET LIMITED PARTNERSHIP-84 a Massachusetts limited
partnership, which is the general partner of CLINTON STREET LIMITED
PARTNERSHIP, an Indiana limited partnership and acknowledged
the execution of the foregoing instrument as such partner to be his
free and voluntary act as such partner of LIBERTY STREET LIMITED
PARTNERSHIP-84, and it as a general partner acting on behalf of
CLINTON STREET LIMITED PARTNERSHIP.
Witness my hand and Notarial Seal this 7th day of
November, 1985.
Signature XXXXXXX X. XXXXXXXX
------------------------
Printed Xxxxxxx X. Xxxxxxxx
-------------------------
NOTARY PUBLIC
(SEAL)
My commission expires:
July 25, 1991
------------------------------
-7-
STATE OF INDIANA )
) SS:
COUNTY OF XXXXXX )
Before me, Xxxxxx X. Xxxxxx, a Notary Public, this 7th day of
November, 1985, personally appeared F. Xxxxxx Xxxxxxx and Xxxxxx X. Xxxx, as
Vice President and Secretary respectively, of AMERICAN STATES INSURANCE
COMPANY, a corporation, and acknowledged the execution of the foregoing
instrument as their free and voluntary act and deed and as the free and
voluntary act and deed of said corporation, for the uses and purposes therein
mentioned.
XXXXXX X. XXXXXX
---------------------------
Xxxxxx X. Xxxxxx NOTARY PUBLIC
(SEAL)
My Commission Expires:
May 25, 1987
------------------------------
Resident of DeKalb County, lndiana
-8-
STATE OF INDIANA )
) SS:
COUNTY OF XXXXX )
Before me Xxxxxx X. Xxxxxx , a Notary Public, this 7th day of November,
1985, personally appeared Xxx Xxxxxxx and Xxxxxxx Xxxxxx as Vice President and
Assistant Secretary respectively, of LINCOLN NATIONAL CORPORATION, a
corporation, and acknowledged the execution of the foregoing instrument as
their free and voluntary act and deed and as the free and voluntary act and
deed of said corporation, for the uses and purposes therein mentioned.
XXXXXX X. XXXXXX
---------------------------
Xxxxxx X. Xxxxxx - NOTARY PUBLIC
(SEAL)
My Commission Expires:
May 25, 1987
------------------------------
Resident of DeKalb County, lndiana
This instrument prepared by Xxxxxx X. Xxxxxx, Attorney, for Lincoln National
Corporation, 0000 X. Xxxxxxx Xx., Xxxx Xxxxx, XX 00000.
Schedule B
PARCEL 0 Xxxx Xxxxx, Xxxxxxx
Lincoln National Pension
Insurance Company
("Lincoln West" site)
A part of the Fractional Northwest Quarter of Section 7, Township 30 North,
Range 12 East, Xxxxx County, Indiana, together with a part of the Northeast
Quarter of Section 12, Township 30 North, Range 11 East, Xxxxx County, Indiana,
both said parts being more particularly described as follows, to wit:
Commencing at the Northwest corner of said Section 7; thence N 89
degrees-56'-27" E, on and along the North line of said Section 7, by deed, a
distance of 422.70 feet; thence S 00 degrees-03'-33" E, by deed, a distance of
145.0 feet to the true point of beginning, located on the South right-of-way
line of Xxxxx Xxxx #00 (Xxxxxxxx Xxxx); thence S 00 degrees-03'-33" E, a
distance of 355.0 feet; thence N 89 degrees-56'-27" E, a distance of 441.41
feet; thence S 25 degrees-06'-36" W, a distance of 147.78 feet; thence S 13
degrees-27'-48" W, a distance of 97.28 feet; thence S 28 degrees-49'-50" E, a
distance of 89.15 feet; thence S 23 degrees-07'-55" E, a distance of 116.43
feet; thence S 67 degrees-37'-33" E, a distance of 175.26 feet; thence S 24
degrees-31'-40" E, a distance of 294.38 feet; thence S 17 degrees-47'-02" E, a
distance of 117.18 feet to the Northwest corner of a 0.228 acre tract of land
conveyed to Professional Building Corporation of Fort Xxxxx in a deed appearing
at Document #74-22292 in the Office of the Recorder of Xxxxx County, Indiana;
thence S 02 degrees-04'-49" E, on and along the Westerly line of said 0.228
acre tract, a distance of 75.15 feet to the Southwest corner thereof; thence N
89 degrees-56'-19" E, on and along the South line of said 0.228 acre tract, a
distance of 133.98 feet to the Southeast corner thereof, said Southeast corner
being a point situated on the West line of a 00 xxxx-xxxx xxxxxxx and utility
easement granted in Deed Record 716, pages 150-152 in the Office of the
Recorder of Xxxxx County, Indiana, said easement being known as Magnavox Way as
said name was established in an instrument appearing at Document #70-9781 in
the Office of the Recorder of Xxxxx County, Indiana; thence S 00
degrees-03'-32" E, on and along the West line of said easement, a distance of
275.0 feet; thence S 66 degrees-10'-20" W, a distance of 1122.16 feet; thence S
89 degrees-56'-27" W, a distance of 765.0 feet; thence S 18 degrees-39'-00" W,
a distance of 484.96 feet to an existing line fence; thence S 88
degrees-03'-10" W, a distance of 345.54 feet to the Easterly right-of-way line
of Interstate Highway #69; thence Northeasterly, on and along said Easterly
right-of-way line on the following courses and distances:
Northeasterly, on and along the arc of a regular curve to the left having a
radius of 4046.53 feet, and being situated 140.0 feet (measured radially)
Southeasterly of and concentric to the centerline of I-69, an arc distance
of 12.83 feet (the chord of which bears N 30 degrees-21'-38" E, for a
length of 12.83 feet); thence N 21 degrees-50'-12" E, a distance of 414.04
feet to a point situated 100.0 feet (measured radially), Southeasterly of
said I-69 centerline; thence Northeasterly, on and along the arc of a
regular curve to the left having a radius of 4006.53 feet, and being
situated 100.0 feet (measured radially) Southeasterly of and concentric to
said I-69 centerline, an arc distance of 410.24 feet (the chord of which
bears N 21 degrees-30'-24" E, for a length of 410.06 feet); thence N 23
degrees-24'-07" E, a distance of 103.17 feet to a point situated 110.0 feet
(measured radially) Southeasterly of said I-69 centerline; thence N 18
degrees-36'-20" E, a distance of 307.75 feet to a point situated 130.0 feet
(measured radially) Southeasterly of said I-69 centerline; thence N 14
degrees-46'-15" E, a distance of 173.94 feet to a point situated 140.0 feet
(measured radially) Southeasterly of said I-69 centerline; thence
Northeasterly, on and along the arc of a regular curve to the right having
a radius of 884.93 feet and being situated 70.0 feet (measured radially)
Southeasterly of an concentric to Line "S-E-C" as said "S-E-C" is defined
by the Southeasterly edge of pavement of an existing 18 foot-wide concrete
ramp, an arc distance of 327.39 feet (the chord of which bears N 26
degrees-38'-02" E, (or a length of 325.53 feet); thence N 35
degrees-55'-21" E, a distance of 804.13 feet to a point situated 50.0 feet
(measured at right angles) Southeasterly of said line "S-E-C"; thence
Northeasterly, on and along the arc of a regular curve to the right having
a radius of 666.20 feet and being situated 50.0 feet (measured radially)
Southeasterly of and concentric to said line "S-E-C", an arc distance of
355.97 feet (the chord of which bears N 52 degrees-07'-50" E, for a length
of 351.75 feet) to the true point of beginning.
PARCEL 2
An easement for the purpose of ingress and egress and utilities for the benefit
of Parcel 1 created in a deed recorded November 7, 1963 in Deed Record 716,
pages 150-152 and modified by Agreements recorded as Document Numbers 70-9781
and 80-16836 over the following real estate.
A strip of land 60 feet in width lying 30 feet on either side of the line
described as follows:
Beginning at the North Quarter Corner of said Section 7, running thence South
89 degrees 56' 27" West along the North line of Section 7, 549.00 feet; thence
South 00 degrees 08' 33" East 167.5 feet more or less to the South Right-of-Way
line of Frontage Road No. 1, the true point of beginning of this description;
thence continuing South 00 degrees 08' 33" East 185.48 feet; thence on a
tangent curve to the right having a central angle of 25 degrees and a length of
250.00 feet; thence South 24 degrees 38' 27" West of 46.88 feet; thence on a
tangent curve to the left having a central angle of 24 degrees 41' 59" and a
length of 247.00 feet; thence South 00 degrees 03' 32" East 1500.00 feet more
or less to the North line of the South Half of the South Half of the Southeast
Quarter of the Northwest Quarter of Section 7, Township 30' North, Range 12
East, the South line of Inverness Investors, Inc. Property.
PARCEL 3
An easement for the purpose of ingress and egress for the benefit of Parcel 1
created in an Easement recorded November 7, 1963 in Deed Record 716, pages
153-157 and modified by Agreement recorded as Document Numbers 70-9781 and
80-16836 over the following described real estate.
Part of the South Half of the South Half of the Southeast Quarter of the
fractional Northwest Quarter of Section 7, Township 30 North, Range 12 East, in
Xxxxx County, Indiana, more particularly described as follows, to wit;
Beginning at the Northeast corner of said South Half of the South Half of the
Southeast Quarter of the fractional Northwest Quarter of Section 7, on the
center line of Xxxx Road; thence West along the North line of the South Half of
the South Half of the Southeast Quarter of the fractional Northwest Quarter of
said Section 7, a distance of 1323.13 feet to a stone marking the Northwest
corner of the South Half of the South Half of the Southeast Quarter of the
fractional NW Quarter of said Section 7;thence South along the West line
of the East Half of the said fractional Northwest Quarter of Section 7, a
distance of 50.00 feet; thence East and parallel to the North line of said
South Half of the South Half of the Southeast Quarter of the fractional
Northwest Quarter of Section 7, a distance of 1323.13 feet to a point, on the
center line of Xxxx Road, 50 feet South of the place of beginning, thence North
on the center line of the Xxxx Road a distance of 50.0 feet to the place of
beginning; and for the installation and perpetual maintenance of sewer and
water line within the Northern Half of the above described real estate.
CROSS REFERENCE
Re: Assignment of Lease and Guaranty
Second Assignment of Lease and Guaranty
("Indianapolis" site)
PARTIAL RELEASE 850105434
In consideration of the sum of Ten Dollars ($10.00) and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, as parties to one or more of the
following-described instruments, to-wit:
1. Assignment of Lease and Guaranty
Recorded as Instrument No. 840068010
From: Clinton Street Limited Partnership, as "Owner"
To: Clinton Holding Corporation, as "Assignee"
Consented to by: American States Insurance Company
and
Lincoln National Corporation
2. Second Assignment of Lease and Guaranty
Recorded as Instrument No. 840068015
From: Clinton Street Limited Partnership, as "Owner"
To: Clinton Holding Corporation, as "Assignee"
Consented to by: American States Insurance Company
and
Lincoln National Corporation
hereby release and discharge the real estate more particularly bounded and
described in Exhibit A hereto from the incumbrance and effect of the
above-described instruments, which instruments were corrected by that certain
Correction Agreement by and among the parties hereto dated November 7, 1985,
and recorded December 2, 1985, in the Office of the Recorder of Xxxxxx County,
Indiana, as Instrument No. 85-105433.
The parties hereto agree that this Partial Release may be executed in
any number of counterparts an each counterpart shall for all purposes be deemed
to be an original; and such counterparts shall together constitute but one and
the same instrument.
Dated this 7th day of November, 1985.
RECEIVED FOR RECORD
XXXX SHAUGHLIN
RECORDER XXXXXX CO.
DEC 2 10 27 AM '85
-2-
CLINTON HOLDING CORPORATION
BY: X. XXXXXXXX XXXXXXX, JR.
------------------------------
Name: X. Xxxxxxxx Xxxxxxx, Jr.
Title: President
[SEAL]
Attest:
BY: XXXXXXXXX X. XXXXXX XX.
--------------------------------
Name: Xxxxxxxxx X. Xxxxxx Xx.
Title: Assistant Secretary
CLINTON STREET LIMITED PARTNERSHIP
BY: Liberty Street Limited Partnership
-84, A General Partner
BY: X. XXXXXXXX XXXXXXX, JR.
----------------------------------
X. Xxxxxxxx Xxxxxxx, Jr.
A General Partner
-3-
AMERICAN STATES INSURANCE COMPANY hereby consents to the foregoing
Partial Release.
AMERICAN STATES INSURANCE COMPANY
BY: F. XXXXXX XXXXXXX
-----------------------------
Name: F. Xxxxxx Xxxxxxx
Title: Vice President
(SEAL)
Attest:
BY: XXXXXX X. XXXX
----------------------------
Name: Xxxxxx X. Xxxx
Title: Secretary
LINCOLN NATIONAL CORPORATION hereby consents to the foregoing Partial
Release.
LINCOLN NATIONAL CORPORATION
BY: XXX XXXXXXX
------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
(SEAL)
Attest:
BY: XXXXXXX XXXXXX
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Secretary
-4-
COMMONWEALTH OF MASSACHUSETTS )
) SS:
COUNTY OF SUFFOLK )
Before me, a Notary Public in and for said County and State,
personally appeared X. Xxxxxxxx Xxxxxxx, Jr. and Xxxxxxxxx X. Xxxxxx, Xx., the
President and Asst. Secretary respectively, of CLINTON HOLDING CORPORATION, a
corporation organized and existing under the laws of the State of Delaware, and
acknowledged the execution of the foregoing instrument as such officers acting
for and on behalf of said corporation.
Witness my hand and Notarial Seal this 7th day of November, 1985.
Signature XXXXXXX X. XXXXXXXX
---------------------------
Printed Xxxxxxx X. Xxxxxxxx
---------------------------
NOTARY PUBLIC
My commission expires:
July 25, 1991
-------------------------
-5-
COMMONWEALTH OF MASSACHUSETTS )
) SS:
COUNTY OF SUFFOLK )
Before me, a Notary Public in and for said County and State, personally
appeared X. Xxxxxxxx Xxxxxxx, Jr., a general partner of LIBERTY STREET LIMITED
PARTNERSHIP-84 A Massachusetts limited partnership, which is the general
partner of CLINTON STREET LIMITED PARTNERSHIP, an Indiana limited partnership
and acknowledged the execution of the foregoing instrument as such partner to
be his free and voluntary act as such partner of LIBERTY STREET LIMITED
PARTNERSHIP-84, and it as a general partner acting on behalf of CLINTON STREET
LIMITED PARTNERSHIP.
Witness my hand and Notarial Seal this 7th day of November, 1985.
Signature XXXXXXX X. XXXXXXXX
---------------------------------
Printed Xxxxxxx X. Xxxxxxxx
-----------------------------------
NOTARY PUBLIC
My commission expires:
July 25, 1991
---------------------------
-6-
STATE OF INDIANA )
) SS:
COUNTY OF XXXXXX )
Before me, Xxxxxx X. Xxxxxx, a Notary Public, this 7th day of November,
1985, personally appeared F. Xxxxxx Xxxxxxx and Xxxxxx X. Xxxx, as Vice
President and Secretary, respectively, of AMERICAN STATES INSURANCE COMPANY, a
corporation, and acknowledged the execution of the foregoing instrument as
their free and voluntary act and deed and as the free and voluntary act and
deed of said corporation, for the uses and purposes therein mentioned.
XXXXXX X. XXXXXX
----------------------------------
Xxxxxx X. Xxxxxx NOTARY PUBLIC
(SEAL)
My Commission Expires:
May 25, 1987
-------------------------
Resident of Dekalb County, Indiana
-7-
STATE OF INDIANA )
) SS:
COUNTY OF XXXXX )
Before me, Xxxxxx X. Xxxxxx, a Notary Public, this 7th day of November,
1985, personally appeared Xxx Xxxxxxx and Xxxxxxx Xxxxxx, as Vice President and
Assistant Secretary, respectively, of LINCOLN NATIONAL CORPORATION, a
corporation, and acknowledged the execution of the foregoing instrument as
their free and voluntary act and deed and as the free and voluntary act and
deed of said corporation, for the uses and purposes therein mentioned.
XXXXXX X. XXXXXX
----------------------------------
Xxxxxx X. Xxxxxx NOTARY PUBLIC
(SEAL)
My Commission Expires:
May 25, 1987
-------------------------
Resident of Dekalb County, Indiana
This instrument prepared by Xxxxxx X. Xxxxxx, Attorney, for Lincoln National
Corporation, 0000 X. Xxxxxxx Xx., Xxxx Xxxxx, XX 00000.
Exhibit A
A part of the Fractional Northwest Quarter of Section 7, Township 30 North,
Range 12 East, Xxxxx County, Indiana, being more particularly described as
follows:
Commencing at the Northwest corner of said Section 7: thence North 89 deg. 56
min. 27 sec. East, on and along the North line of said Section 7, by deed, a
distance of 422.70 feet; thence South 00 deg. 03 min. 33 sec. East by deed, a
distance of 145.0 feet to the South right xx xxx xxxx xx Xxxx #00 (Xxxxxxxx
Xxxx); thence South 00 deg. 03 min. 33 sec. East, a distance of 355.0 feet;
thence North 89 deg. 56 min. 27 sec. East, a distance of 441.41 feet; thence
South 25 deg. 15 min. 36 sec. West, a distance of 147.78 feet; thence South 13
deg. 27 min. 48 sec. West, a distance of 97.28 feet; thence South 28 deg. 49
min. 50 sec. East, a distance of 89.15 feet; thence South 23 deg. 07 min. 55
sec. East, a distance of 116.43 feet; thence South 67 degrees 37 min. 33 sec.
East, a distance of 175.26 feet; thence South 24 deg. 31 min. 40 sec. East, a
distance of 294.38 feet; thence South 17 deg. 47 min. 02 sec. East, a distance
of 117.18 feet to the Northwest corner of a 0.228 acre tract of land conveyed
to Professional Building Corporation of Fort Xxxxx in a deed appearing at a
Document #74-22292 in the Office of the Recorder of Xxxxx County, Indiana;
thence South 02 deg. 04 min. 49 sec. East, on and along the Westerly line of
said 0.228 acre tract, a distance of 75.15 feet to the Southwest corner
thereof; thence North 89 deg. 56 min. 19 sec. East, on and along the South
line of said 0.228 acre tract, a distance of 133.98 feet to the Southeast
corner thereof, said Southeast corner being a point situated on the West line
of a 60 foot wide roadway and utility easement granted in Deed Record 716,
pages 150-152 in the Office of the Recorder of Xxxxx County, Indiana, said
easement being known as Magnavox Way as said name was established in an
instrument appearing at Document #70-9781 in the Office of the Recorder of
Xxxxx County, Indiana; thence South 00 deg. 03 min. 32 sec. East, on and along
the West line of said easement, a distance of 200.0 feet to the point of
beginning; thence continuing South 00 deg. 03 min. 32 sec. East 75.00 feet;
thence South 66 deg. 10 min. 20 sec. West, a distance of 1122.16 feet; thence
South 89 deg. 56 min. 27 sec. West, a distance of 18.20 feet; thence North 15
deg. 16 min. 15 sec. East, a distance of 549.10 feet; thence South 89 deg. 54
min. 52 sec. East, a distance of 900.00 feet to the point of beginning,
containing 6.471 acres and subject to Easements and Rights of Way of Record.
