POST-CLOSING OCCUPANCY AGREEMENT
Exhibit 10.55
THIS POST-CLOSING OCCUPANCY AGREEMENT (the “Agreement”) is made and entered into as of the
28th day of March, 2008 (the “Effective Date”) by and between MIDWEST BANK AND TRUST COMPANY, an
Illinois banking corporation (“Seller”) and NMD INVESTMENTS LLC, an Illinois limited liability
company (“Purchaser”).
R E C I T A L S:
A. On the Effective Date Seller sold to Purchaser and Purchaser acquired from Seller a
certain parcel of real estate improved with a bank building (the “Building”) located at 0000 Xxxxx
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, together with a vacant lot located immediately north of and
adjacent to the Building.
B. Seller desires to retain occupancy and possession of the Building after the Effective Date
for a period of not less than nine (9) months and not more than eighteen (18) months (the
“Post-Occupancy Term”).
C. Purchaser is willing to allow Seller to retain occupancy and possession of the
Building during the Post-Occupancy Term, subject to the terms and provisions set forth below.
NOW, THEREFORE, in consideration for the mutual promises contained herein and for other good
and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged,
Seller and Purchaser agree as follows:
1. Termination of Post-Occupancy Term. Commencing as of the Effective Date, Seller
shall retain occupancy and possession of the Building during the Post-Occupancy Term. Seller may
terminate this Agreement effective at any time on or after the date immediately preceding the nine
(9) month anniversary of the Effective Date by giving Purchaser not less than thirty (30) days
prior written notice of Seller’s intention to terminate this Agreement. However, if Seller fails
to terminate this Agreement on or before the date immediately preceding the eighteen (18) month
anniversary of the Effective Date (the “Outside Date”), then this Agreement will automatically
terminate on the Outside Date and Seller will vacate and surrender occupancy and possession of the
Building to Purchaser on the Outside Date.
2. Use and Occupancy Fee. Beginning on the Effective Date and continuing on each
monthly anniversary of the Effective Date until the end of the Post-Occupancy Term, Seller shall
pay to Purchaser a monthly use and occupancy fee in the amount of Seventy-Five Thousand and 00/100
Dollars ($75,000.00) in consideration for Seller’s occupancy and possession of the Building during
the Post-Occupancy Term. The monthly use and occupancy fee for any partial month during the
Post-Occupancy Term will be prorated on a per diem basis based on the number of days during said
partial month that Seller remains in occupancy and possession of the Building and any such amount
previously paid in excess of the amount determined due shall be refunded to Seller.
3. Real Estate Taxes and Insurance. During the Post-Occupancy Term Seller will, within
ten (10) days after Purchaser’s request therefor, reimburse Purchaser for fifty percent (50%) of
all (i) real estate taxes, and (ii) premiums for casualty and liability insurance incurred or paid
for by Purchaser relating to the Building. In addition, Seller will defend, indemnify and hold
Purchaser harmless from and against any and all claims, losses, costs, damages and expenses which
Purchaser may suffer, incur or sustain, or for which Purchaser may become liable, by virtue of the
injury to or death of any person(s), or the loss of property owned by Seller’s customers, including,
without limitation, reasonable attorneys’ fees, arising out of or in connection with Seller’s use
and occupancy of the Building from and after the Effective Date until the end of the Post-Occupancy
Term to the extent not reimbursed to Purchaser through insurance proceeds. In the event of a
casualty rendering the Building partially untenantable and capable of prompt restoration, Purchaser
shall promptly restore the Building and improvements. In the event of a casualty rendering the
building wholly untenantable or not capable of prompt restoration, this Agreement shall terminate
and Purchaser shall pay to Seller the amount of insurance proceeds related to Seller’s damaged
property. Rent and other obligations shall xxxxx on an equitable basis during any period of
untenantability.
4. Utilities. Seller shall pay for the cost of any and all utility consumption and
telephone charges incurred in the Building during the Post-Occupancy Term until Seller vacates and
surrenders occupancy and possession of the Building to Purchaser.
5. Condition of Building. At the end of the Post-Occupancy Term Seller shall vacate
and deliver occupancy and possession of the Building to Purchaser in the same condition as existed
on the Effective Date, ordinary wear and tear and casualty excepted. During the Post-Occupancy
Term, Seller shall be responsible for general interior maintenance and HVAC maintenance. Purchaser
shall be responsible for all exterior maintenance, including the roof, and all replacements,
including HVAC, electrical and plumbing system components, and all repairs or replacements of
structural elements; provided however, that if HVAC unit replacements are necessary, Purchaser may
provide units primarily designed for serving replacement tenant(s) after the end of the
Post-Occupancy Term, as long as the replacement unit(s) provide heating and cooling function to
Seller equivalent or better than the former unit. In the event Purchaser will conduct construction
or maintenance activities at the Building or the adjacent lot during the Post-Occupancy Term, the
Purchaser will coordinate such activities with Seller and in any event will conduct such
activities in a manner so as not to interfere with the business operations of Seller.
6. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois.
7. Counterparts. This Agreement may be executed in any number of counterparts, and
all such counterparts shall constitute
one (1) Agreement.
one (1) Agreement.
8. Successors and Assigns. This Agreement shall inure to and be binding upon the
parties hereto and their respective successors and assigns.
9. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the post-closing occupancy and possession of the Building,
and may not be amended without the written consent or signature of Seller and Purchaser.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.
| PURCHASER: | SELLER: | |||||||||
| NMD INVESTMENTS LLC, | MIDWEST BANK AND TRUST COMPANY, | |||||||||
| an Illinois limited liability company | an Illinois banking corporation | |||||||||
BY:
|
/s/ Xxxxx X. Xxxxx | By: | /s/ Xxxxx X. Xxxxx | |||||||
Its:
|
Manager | Its: | Executive Vice President | |||||||
