LEASE AGREEMENT
THIS LEASE made this 7th day of April, 2003, by and between
MER GROUP, LLC, an Indiana limited liability company (hereinafter referred to as
"Landlord"), and TOWER BANK AND TRUST COMPANY, an Indiana corporation
(hereinafter referred to as "Tenant");
WITNESSETH:
FOR AND IN CONSIDERATION of the full and faithful compliance
by the parties hereto with each and all of the terms, covenants and conditions
herein contained to be complied with by them, Landlord does hereby lease, let
and demise unto Tenant a portion of the real estate described in Exhibit "A"
attached hereto as presently identified on Exhibit "B" attached hereto, together
with the improvements to be constructed thereon (as provided in Article IV) and
all appurtenances thereto (hereinafter referred to as the "demised premises").
The demised premises are leased by Landlord to Tenant subject to covenants,
easements, conditions and restrictions of record.
ARTICLE I
TERM AND OPTIONS
1.1 The lease term, subject to all of the provisions and
conditions herein contained, shall be for a period of ten (10) years commencing
as provided in Section 4.2 of this Lease (the "Commencement Date"), and
terminating on the tenth anniversary of the Commencement Date, unless sooner
terminated as provided herein.
1.2 Subject to the conditions hereinafter set forth, Landlord
hereby grants to Tenant the option to renew the lease term (the "Renewal
Option") for two (2) additional consecutive periods of five (5) additional years
each (each being referred to herein as a "Renewal Term"), to commence at the
expiration of the initial lease term. Tenant shall exercise the Renewal Option
by delivering written notice of such election to Landlord at least six (6)
months but no more than twelve (12) months prior to the expiration of the
initial lease term, or current Renewal Term. The renewal shall be upon the same
terms and conditions as this Lease, except: (a) the rental shall be as provided
in Section 3.2 of this Lease; (b) Tenant shall have no option to renew this
Lease beyond the expiration of the Renewal Terms; and (c) Tenant shall not have
the right to assign the Renewal Option to any sublessee of the demised premises
or assignee of the Lease, nor may any such sublessee or assignee exercise or
enjoy the benefit of such Renewal Option. Notwithstanding the foregoing, Tenant
shall not have the right to exercise the Renewal Option, unless: (i) this Lease
shall be in full force and effect on the date of the exercise of the Renewal
Option and the date of the expiration of the then existing lease term; and (ii)
on the date of the exercise of the Renewal Option and the date of the expiration
of the existing lease term there shall exist no default on the part of Tenant
under this Lease.
1.3 Subject to the conditions hereinafter set forth, Landlord
hereby grants to Tenant the exclusive right and option to purchase the demised
premises pursuant to Article XXI of this Lease.
1.4 This lease shall be contingent upon Tenant receiving state
and federal regulatory approval for the operation of a bank branch facility upon
the demised premises within ninety (90) days of the date of this Lease. If
Tenant does not obtain said approvals within said ninety (90) day period, Tenant
may terminate this Lease by written notice to Landlord within ten (10) days
thereafter. Upon receiving said approvals, Tenant shall give Landlord written
notice. Landlord shall not be obligated to begin "Landlord's Work" as provided
in Section 4.1 of this Lease until Landlord receives written notice of said
approvals from Tenant.
ARTICLE II
USE AND OCCUPANCY
2.1 Tenant covenants that the demised premises shall, during
the term of this Lease, be used for a retail bank branch facility, for such
other allied purposes as may be incidental thereto, and for no other purpose
without the prior written consent of Landlord.
2.2 Tenant agrees not to use or suffer or permit any person to
use, in any manner whatsoever, the demised premises for any purpose calculated
to injure the reputation of the premises or to impair the value of the demised
premises, nor for any purpose or use in violation of any federal, state, county
or municipal law or ordinance. Tenant will neither commit nor permit waste upon
the demised premises.
ARTICLE III
RENTAL
3.1 Tenant shall pay as base rent for said demised premises
for the initial lease term, without relief from valuation or appraisement laws,
the sum of SIXTY-NINE THOUSAND SEVEN HUNDRED FORTY ONE AND NO/100 DOLLARS
($69,741.00) per annum, payable in monthly installments of FIVE THOUSAND EIGHT
HUNDRED ELEVEN AND 75/100 DOLLARS ($5,811.75) in advance on the first day of
each calendar month throughout the term hereof to the attention of Landlord at
116 East Xxxxx Street, Suite 1515, Box 9283, Xxxx Xxxxx, Xxxxxxx 00000, or such
other place as Landlord may from time to time designate in writing.
3.2 Tenant shall pay as base rent for said demised premises
for each Renewal Term, without relief from valuation or appraisement laws the
fair market rental value of the demised premises determined by written agreement
of Landlord and Tenant within forty-five (45) days of the date Tenant exercises
a renewal option. Base rent shall be paid in advance on the first day of each
calendar month throughout the Renewal Terms hereof to the attention of Landlord.
3.3 In the event Tenant shall fail to pay any installment of
monthly base rent within five (5) days of the date due, Tenant shall become
liable to Landlord for a late payment fee in an amount equal to (5% of the
installment due to compensate Landlord for the additional costs and expenses
accruing to Landlord as a result of such late payment.
3.4 Any payment due Landlord by Tenant pursuant to the terms
and conditions of this Lease which shall not be paid with five (5) days of the
date due shall bear
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interest at a maximum rate payable by Tenant under state law, or in the absence
of a maximum rate, at the rate of Eighteen Percent (18%) per annum from the date
when the same is payable under the terms of this Lease until the same shall be
paid.
3.5 It is the purpose and intent of Landlord and Tenant that
the rental as herein provided shall be absolutely net to the Landlord, so that
this Lease shall yield to Landlord the rent specified hereinabove and
accordingly that all taxes, insurance and maintenance shall be solely the
responsibility of Tenant unless otherwise specifically provided herein.
ARTICLE IV
CONSTRUCTION OF BUILDING AND OTHER IMPROVEMENTS
4.1 Subject to the provisions of Section 1.4 hereof, Landlord
agrees to construct or cause to be constructed a building and related
improvements upon the demised premises in substantial conformity with Landlord's
Work and Tenant agrees to perform or cause to be performed "Tenant's Work," both
as defined and described on Exhibit "C" attached hereto and made a part hereof.
4.2 Landlord shall notify Tenant when Landlord's Work has been
substantially completed and the Commencement Date shall be the earlier of: (a)
sixty (60) days after the date Landlord provides said notice; or (b) the date
upon which Tenant opens its business upon the demised premises to the public,
but no sooner than December 31, 2003. Notwithstanding anything in this Lease to
the contrary, the taking of possession of the demised premises by Tenant shall
be deemed a conclusive acknowledgment by Tenant that Landlord's Work has been
substantially completed in compliance with this Lease. For purposes of this
Lease, Landlord shall be deemed to have substantially completed Landlord's Work
when Landlord has completed Landlord's Work to the point at which Tenant may
legally occupy the building for the purposes authorized under this Lease.
4.3 Landlord covenants and agrees that the demised premises
are properly zoned for the use permitted by Section 2.1 of this Lease. If, at
any time during the term hereof, there shall be any zoning laws, statutes or
ordinances regulating the use of the demised premises which shall make it
unlawful or impractical for Tenant to conduct the use described in Section 2.1
of this Lease on the demised premises, Tenant shall have the option to terminate
this Lease by written notice to Landlord. In the event of such termination,
Tenant shall pay rent to the date of termination, and neither party shall have
any further rights or obligations pursuant to this Lease. Upon Tenant's election
to terminate this Lease under this Section 4.3, the effective date of said
termination shall be the 30th day following the date of the notice pursuant to
the notice provisions contained in Section 18.1.
ARTICLE V
REAL ESTATE TAXES
5.1 Tenant agrees that it shall pay, in addition to all other
sums agreed to be paid by it in this Lease, all real property taxes and
assessments against the real estate and improvements constituting the demised
premises which fall due during the term of this Lease.
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Such taxes and assessments shall be prorated for any partial lease years. Tenant
may permit any assessment to go to bond and shall pay each installment of
principal and interest on or before the last day on which payment may be made
without penalty. If the bond shall extend beyond the end of the lease term, any
installments which would become due thereafter shall be paid by Landlord. Tenant
shall have the right to protest taxes either in its own name or in the name of
Landlord and Landlord shall cooperate to whatever extent necessary to protest
said taxes, all at the sole expense of Tenant. In contesting any such taxes,
Tenant shall obtain such bonds or take such other action as may be necessary to
assure that liens or lien rights do not attach to the demised premises.
5.2 Tenant shall be solely responsible and shall pay for all
personal property taxes on all personal property, inventory and fixtures owned
by it or located in or about the demised premises which accrue during the term
of this Lease, as well as any and all taxes related to Tenant's business and the
operation of Tenant's business on the demised premises.
ARTICLE VI
MAINTENANCE AND REPAIRS
6.1 Except as provided in Section 6.2, Tenant agrees that it
shall perform all repairs of whatever kind and nature, foreseen or unforeseen,
as may be required to keep the demised premises and fixtures thereon in good
condition and repair. Without limiting the generality of the foregoing, Tenant
shall be responsible for all repair and maintenance to keep the whole and every
part of the interior of the demised premises and all property and improvements
situated therein in good repair, including without limitation all plumbing,
heating and electrical installations and equipment, air conditioning equipment,
hardware, doors and windows, interior painting and decorating. In the event any
repairs are covered by insurance, the same are to be paid for by the insurance
proceeds aforesaid.
6.2 Landlord agrees to repair and maintain, in good condition
and repair, all structural components of the building located upon the demised
premises, including the foundation, walls and roof. Landlord agrees to maintain
and repair the parking lot, parking lot lighting and landscaping upon the
demised premises, including, but not limited to, all snow and ice removal
("Common Area Maintenance") subject to Tenant's obligation to reimburse Landlord
as provided herein. Tenant agrees to pay its proportionate share of all Common
Area Maintenance expenses to Landlord in an amount equal to one-twelfth (1/12)
of the annual estimate of Common Area Maintenance expenses with the payment of
base rent on the first day of each month throughout the term of this Lease.
Within one hundred twenty (120) days of the end of each calendar year, Landlord
shall notify Tenant of the actual expenses incurred for Common Area Maintenance
during the prior year. In the event the payments made by Tenant exceed the
actual Common Area Maintenance cost, Tenant shall be provided credit against the
following year's obligation to pay Common Area Maintenance expenses in the
amount of the excess. In the event the payments made by Tenant are less than the
actual Common Area Maintenance cost, Tenant agrees to pay to Landlord the amount
of shortfall within fifteen (15) days of Landlord's notice. Tenant's
proportionate share shall be one hundred percent (100%) of the total Common Area
Maintenance cost provided, however, in the event Landlord shall construct
additional retail improvements on Landlord's real estate described on Exhibit
"A"
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attached hereto (excluding therefrom the demised premises), then, commencing
upon the date that the occupants of said improvements commence business
operations, Tenant's proportionate share shall thereafter be the fraction
created by using a numerator determined by the amount of square footage leased
by Tenant and a denominator determined by the total square footage of the
leasable area located upon the real estate described on Exhibit "A" attached
hereto. "Leasable space" shall mean all interior space that is or is reasonable
capable of being leased on said real estate.
6.3 If Tenant refuses and neglects to repair promptly the
demised premises as required in Section 6.1 hereof, in a reasonable time after
written demand by Landlord, then Landlord may make such repairs without
liability to Tenant for any loss or damage that may occur to Tenant's
merchandise, fixtures and/or other property, or to the loss of business
occasioned by reason thereof, and Tenant shall reimburse Landlord for the cost
thereof on demand.
6.4 Tenant shall not make any structural alterations,
additions or leasehold improvements to the demised premises or make any contract
therefor without first procuring Landlord's written consent. All alterations,
additions and/or leasehold improvements made by Tenant to or upon the demised
premises, except removable appliances and equipment, cases, counters, signs and
other removable trade fixtures, shall at once when made or installed be deemed
to have attached to the freehold and to have become the property of Landlord.
Tenant shall give Landlord five (5) days' written notice prior to removing
removable appliances, equipment, cases, counters, signs or trade fixtures from
the demised premises and shall be responsible for any damages occasioned by
removal.
6.5 Any alterations made by Tenant shall be at Tenant's cost
and expense. Tenant agrees to conform to and comply with all laws, ordinances,
rules and regulations of federal, state, county and municipal authorities in
making such alterations or repairs, and shall at all times keep the demised
premises free from claims of mechanics' liens.
6.6 Landlord and its agents shall have free access to the
demised premises during all reasonable and regular business hours for the
purpose of examining the same and to ascertain that they are in good repair in
the presence of an agent or employee of Tenant.
ARTICLE VII
INSURANCE AND INDEMNITY
7.1 Tenant, from the commencement of its occupancy, agrees to
indemnify and save harmless Landlord from and against all claims of whatever
nature, except those resulting from the negligence of Landlord or its agents,
arising from any act, omission or negligence of Tenant, or Tenant's contractors,
agents, servants or employees, or arising from any accident, injury or damage
whatsoever caused to any person, or to the property of any person, occurring
during the term hereof in or about the demised premises, or arising from any
act, injury or damage occurring outside the demised premises, but within the
parking area adjacent to the demised premises, or if such accident, damage or
injury results, or is claimed to have resulted, from any act or omission of
Tenant, or its agents or employees. This indemnity and hold
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harmless agreement shall include indemnity against all costs, expenses, attorney
fees and/or liabilities in, or connected with, any such claim or proceeding
brought thereon in defense thereof.
7.2 From and after the commencement date of the Lease and
throughout the residue of the term of the Lease, Tenant shall procure and pay
for fire and extended coverage insurance, insuring the completed building upon
the demised premises of not less than the full replacement value thereof in a
responsible insurance company authorized to do business in the State of Indiana.
Such insurance shall contain the so-called Replacement Cost or Restoration
Endorsement, a provision to the effect that the waiver of subrogation rights by
the insured does not void the coverage, and such special endorsements as
reasonably requested by landlord. Said insurance policies shall be issued in the
joint names of Landlord and Tenant as the insured, and any mortgagee of
Landlord, if so requested.
7.3 Tenant shall provide and maintain during the term hereof,
for the benefit of Landlord and Tenant, public liability and property damage
insurance in the usual form for the protection of itself and Landlord against
injury caused to persons by reason of its occupancy of the demised premises,
with limits of not less than TWO MILLION DOLLARS ($2,000,000.00) per personal
injury and ONE MILLION DOLLARS ($1,000,000.00) for property damage, and, in
addition, in like amounts covering Tenant's contractual liability under the
aforesaid hold harmless clause as provided in Section 7.1 above.
7.4 Each insurance policy required herein shall be in a form
reasonably satisfactory to Landlord and shall carry an endorsement that before
changing or canceling any policy the insurance company issuing the same shall
give Landlord at least ten (10) days prior written notice, and Tenant shall be
required to furnish Landlord with an acceptable replacement policy before the
effective date of any such cancellation. Duplicate originals or certificates of
all such insurance policies shall be delivered to Landlord. The first policy
shall be issued prior to or on the Commencement Date, and all renewals thereof
shall be issued at least ten (10) days prior to the expiration of the then
existing policies. Each insurance policy required herein shall be issued in the
joint names of Landlord, Tenant and Landlord's mortgagee.
7.5 Tenant agrees that all leasehold improvements and personal
property of any type or nature owned by it, in, on or about the demised premises
shall be at the sole risk and hazard of Tenant. Without intending hereby to
eliminate the generality of the foregoing, Tenant agrees that Landlord shall not
be liable or responsible for any loss of or damage to Tenant, or anyone claiming
under or through Tenant, or otherwise, whether caused by or resulting from any
peril required to be insured hereunder, or from water, steam, gas, leakage,
plumbing, electricity or electrical apparatus, pipe or apparatus of any kind,
the elements or other similar or dissimilar causes, and whether or not
originating in the demised premises or elsewhere, provided such damage or loss
is not the result of any intentional or willful wrongful act of Landlord.
7.6 Whenever (a) any loss, cost, damage or expense resulting
from fire, explosion or any other casualty or occurrence is incurred by either
of the parties to this Lease or anyone claiming by, through or under them in
connection with the demised premises and (b) such party is then either covered
in whole or in part by insurance with respect to such loss, cost, damage or
expenses (or is required under this Lease to be so insured), then the party so
insured
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(or so required) hereby releases the other party from any liability said other
party may have on account of such loss, cost, damage or expense to the extent of
any amount recovered by reason of such insurance (or which could have been
recovered had insurance been carried as so required) and waives any right of
subrogation which might otherwise exist in or accrue to any person on account
thereof, provided that such release of liability and waiver of the right of
subrogation shall not be operative in any case if the effect thereof is to
invalidate such insurance coverage or increase the cost thereof (provided that
in the case of increased cost, the other party shall have the right, within
thirty (30) days following written notice, to pay such increased cost thereon,
thereupon keeping such release and waiver in full force and effect).
ARTICLE VIII
SIGNS AND ADVERTISING
8.1 Tenant may, at its expense, install signage upon the
demised premises only upon first obtaining the written approval of Landlord.
Tenant shall maintain all signage approved by Landlord in good order and
condition throughout the term of this Lease. Upon termination of this Lease,
Tenant shall remove such signage and shall be responsible for any damage
occasioned thereby. Signage by Tenant shall comply with all applicable laws,
regulations, codes and ordinances.
ARTICLE IX
DESTRUCTION OF PREMISES
9.1 If the demised premises shall be damaged or destroyed by
any cause during the term of this Lease, this Lease shall remain in full force
and effect and Landlord shall as rapidly and as reasonably practical repair such
damage at its expense. Such repair or restoration of said building by Landlord
shall be at least to the condition of the building immediately prior to such
damage or destruction, and in accordance with plans and specifications mutually
agreed upon at that time; or if such plans cannot be agreed upon, then in
accordance with the original plans and specifications. The work of restoration
or rebuilding shall be in full compliance with all laws and regulations and
governmental ordinances applicable thereto. All insurance proceeds received from
the fire and extended coverage insurance shall be used and applied toward such
rebuilding and restoration, but in the event such insurance proceeds are not
sufficient, Landlord may either: (a) terminate this Lease upon thirty (30) days'
notice to Tenant; or (b) Landlord shall complete such restoration and
rebuilding, and Landlord shall be solely responsible for any further costs and
charges of any type or nature to complete such restoration and rebuilding.
9.2 Should the demised premises or any part thereof be made
untenantable as a result of such fire, damage or destruction, the rental payable
by Tenant shall xxxxx in proportion to the amount of the demised premises
rendered untenantable as a result of such fire, damage or destruction.
9.3 If the demised premises or improvements thereto are
damaged to such extent that they cannot be repaired within one hundred twenty
(120) days of such occurrence, or in the event such damage occurs within the
last six (6) months of the lease term, this Lease may
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be cancelled at the option of either Landlord or Tenant upon written notice
given within thirty (30) days from the date of such occurrence, and in such
event, all rent shall be prorated to the date of such occurrence and Landlord
shall be entitled to all proceeds received from the fire and extended coverage
insurance.
ARTICLE X
EMINENT DOMAIN
10.1 If not more than Five Percent (5%) of the building
located upon the demised premises or not more than Ten Percent (10%) of the
parking area shall be taken under the power of eminent domain, then the term of
this Lease shall cease only on the part so taken from the date possession shall
be taken for any public purpose, and the minimum rent shall be paid up to that
date. If in such event any part of the demised premises is taken, Landlord shall
rebuild and restore said demised premises at its expense and as rapidly as
possible, and Tenant shall be entitled to an equitable abatement of the fixed
minimum rent until the demised premises are restored, and thereafter said rent
shall be equitably reduced on account of any floor space taken by such eminent
domain proceedings.
10.2 If more than Five Percent (5%) of the building located
upon the demised premises or more than Ten Percent (10%) of the parking area
shall be taken under the power of eminent domain, then from that date Landlord
shall have either the right to terminate this Lease as of the date possession of
the part condemned is so taken, by written notice to Tenant within thirty (30)
days after such date, or to continue this Lease and rebuild and restore the
demised premises, except that the fixed rent shall be proportionately and
equitably reduced.
10.3 Each party may, as permissible by applicable law,
prosecute at their option their respective claims, against the public or private
bodies designated as the taking authority, on the account of any taking or
appropriation of the demised premises. For the purpose of this paragraph,
acquisition of all or part of the demised premises by governmental or
quasi-governmental authority by means of voluntary negotiations and contracts in
lieu of condemnation shall be deemed to be acquisition by the exercise of the
power of eminent domain.
ARTICLE XI
QUIET ENJOYMENT
11.1 Landlord covenants and agrees that if Tenant shall pay
and otherwise perform and do all the things and matters herein provided for to
be done by Tenant, Tenant shall peaceably and quietly have, hold, possess, use,
occupy and enjoy the said demised premises during the term of this Lease in
accordance with the terms and conditions of this Lease.
11.2 Landlord agrees it will not sell or lease any real estate
now owned or owned in the future located within (1) mile of the demised premises
for the use and operation of a bank branch facility for a period of five (5)
years after the date of this Lease.
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ARTICLE XII
ASSIGNMENT AND SUBLETTING
12.1 Tenant may not assign or sublet the demised premises
without Landlord's prior written consent, which consent shall not be
unreasonable withheld.. In the event that Tenant shall at any time, during the
term of this Lease, sublet all or any part of said premises or assign this Lease
with or without the consent of Landlord, it is hereby mutually agreed that
Tenant shall nevertheless remain fully liable under all of the terms, covenants
and conditions of this Lease. If this Lease be assigned or if the demised
premises or any part thereof be subleased or occupied by anybody other than
Tenant, Landlord may collect from the assignee, sublessee or occupant any rent
or other charges payable by Tenant under this Lease, and apply the amount
collected to the rent and other charges herein reserved, but such collection by
Landlord shall not be deemed a release of Tenant from the performance by Tenant
under this Lease.
ARTICLE XIII
UTILITIES
13.1 Tenant shall be solely responsible for and shall promptly
pay all charges for gas, heat, electricity and any other utilities or services
used or furnished to the demised premises, including the removal of trash from
the demised premises.
ARTICLE XIV
MORTGAGE SUBORDINATION/ESTOPPEL CERTIFICATES
14.1 Upon written request by Landlord, Tenant agrees to
subordinate its rights under this Lease to the liens of any mortgages that may
now or hereafter be placed upon the demised premises, and to any and all
advances to be made thereunder, and all renewals, replacements and extensions
thereof, provided said mortgagee agrees to recognize the rights of Tenant
pursuant to this Lease so long as Tenant is not in default pursuant to this
Lease. Tenant agrees to execute and deliver a subordination agreement to
Landlord's mortgagee to carry out the terms and conditions hereof.
14.2 Upon written request by Landlord, Tenant agrees to
promptly execute and deliver estoppel certificates addressed to Landlord,
Landlord's current or prospective mortgagees or to a prospective purchaser of
the demised premises certifying the existence of this Lease, the status of the
payment or rent, the lack of any default and any other accurate information
relating to this Lease reasonably requested by Landlord
ARTICLE XV
DEFAULT
15.1 If Tenant shall be in default in the payment of rental or
any other charges provided for herein and such default shall continue for a
period of five (5) days after written notice from Landlord to Tenant as herein
provided, or if Tenant shall be in default in the performance of any of the
other covenants, promises or agreements herein contained for Tenant to be kept
and performed and such default shall continue for thirty (30) days after
Landlord shall have notified Tenant in writing of the existence of such default,
or if Tenant is adjudicated a
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bankrupt, or if a permanent receiver is appointed for Tenant's property,
including Tenant's interest in the demised premises, and such receiver is not
removed within thirty (30) days after appointment, or if, whether voluntarily or
involuntarily, Tenant takes advantage of any debtor relief proceeding under
present or future law whereby the rent, or any part thereof, is or is proposed
to be reduced or payment thereof deferred, or if Tenant makes an assignment for
the benefit of creditors, or if the demised premises or Tenant's effects or
interest therein shall be levied upon or attached under process against Tenant,
not satisfied or dissolved within thirty (30) days from such levy or attachment,
or if Tenant abandons the demised premises, then, and in any or all said events,
Tenant shall be deemed to have breached this Lease and, in addition to
Landlord's rights and remedies pursuant to Article XVIII hereof, Landlord shall
have the right at its option to:
(a) Enter upon and take possession of the demised
premises as Tenant's agent without terminating this Lease, and re-let
the demised premises at the best price obtainable by reasonable effort
and for such term as Landlord deems proper. Tenant shall thereupon
become immediately liable and indebted to Landlord and shall then upon
demand promptly pay to Landlord the costs and expenses of such
reletting, including any alterations or decorations required in
connection therewith, plus the difference between the amount of the
rent to be collected and received from the demised premises and the
rental due under this Lease for the residue of the term herein provided
remaining after the taking of possession by Landlord; or
(b) Forthwith cancel and terminate this Lease by
notice in writing to Tenant; and if such notice shall be given, all
rights of Tenant to the use and occupancy of said demised premises
shall terminate as of the date set forth in such notice and Tenant will
at once surrender possession of the demised premises to Landlord and
remove all of Tenant's effects therefrom, and Landlord may forthwith
re-enter the premises and repossess itself thereof, and Landlord shall
be entitled to receive as liquidated damages and not as a penalty a sum
equal to all rent and other sums which would fall due hereunder through
the balance of the lease term had this Lease not been terminated. No
termination of this Lease prior to the normal expiration thereof shall
affect Landlord's right to collect rent for the period prior to the
termination thereof.
(c) Notwithstanding the above, Landlord's rights and
remedies pursuant to this Lease shall be subject to Landlord's
obligation to mitigate its damages under applicable law.
15.2 Landlord shall be entitled to collect from Tenant
reasonable attorney fees incurred in enforcing any obligation of Tenant under
this Lease, or in any litigation or negotiation with Tenant which, without its
fault, it becomes involved on account of this Lease.
15.3 In the event Landlord shall breach or be in default in
the performance of its covenants or obligations, and shall remain in default for
a period of thirty (30) days after written notice from Tenant to Landlord of
such default, Tenant shall have the right and privilege
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of terminating this Lease and shall have all legal remedies for recovery and
damages suffered by it and shall not be liable for any rentals accruing after
the date of termination. Tenant shall further be entitled to collect from
Landlord reasonable attorney fees incurred by Tenant in enforcing its rights
pursuant to this Section 15.3 of the Lease. Notwithstanding the above, Tenant's
rights an remedies pursuant to this Lease shall be subject to Tenant's
obligation to mitigate its damages under applicable law.
ARTICLE XVI
SURRENDER OF POSSESSION
16.1 Whenever the said term herein demised shall be
terminated, whether by lapse of time, forfeiture or in any other way, Tenant
covenants and agrees that it will at once surrender and deliver up said demised
premises peaceably in as good of condition as when Tenant took possession,
ordinary wear and tear and any alterations and approved changes and any damage
caused by perils covered by insurance excepted, and if Tenant shall hold over
after any termination of this Lease, the same shall create no more than a
month-to-month tenancy at double the rent herein set forth and under all other
applicable conditions herein provided.
ARTICLE XVII
MECHANICS' LIENS
17.1 Nothing in this Lease shall authorize Tenant to do any
act which shall in any way encumber the title of Landlord in and to the demised
premises, nor shall the interest of Landlord in the demised premises be subject
to any lien arising from any act or omission of Tenant.
17.2 If any mechanics' lien or liens shall be filed against
the demised premises for work done or materials furnished to Tenant, Tenant
shall within ninety (90) days after it has actual notice of such lien, at its
own expense, cause such lien or liens to be discharged by payment of such claims
or by filing of bond pursuant to statute.
17.3 Should Tenant fail to pay any such lien or post bond
therefor, Landlord may, but it shall not be required to do so, discharge such
mechanics' lien or liens by payment thereof, and the amount paid by Landlord
together with Landlord's costs and expenses shall be due and payable from Tenant
forthwith on demand, together with interest at the rate of Eighteen Percent
(18%) per annum.
ARTICLE XVIII
NOTICES
18.1 All notices, demands and requests hereunder shall be in
writing and given by United States registered or certified mail, or by a
nationally recognized air courier:
In the case of Landlord to: MER Group, LLC
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Box 0000
-00-
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx,
President
In the case of Tenant to: Tower Bank and Trust Company
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Himmelhaven
Executive Vice
President & CFO
18.2 Each party from time to time may change its address for
purpose of notice under this Article by giving to the other party notice of such
change of address. Any notice, demand or request given by the United States,
registered or certified mail, as provided herein, shall be deemed served on the
date it is deposited in the United States mail or with a nationally recognized
air courier properly addressed and with postage fully prepaid.
ARTICLE XIX
ENVIRONMENTAL REPRESENTATIONS,
WARRANTIES AND INDEMNIFICATION
19.1 Tenant represents and warrants that during the term
hereof it shall not construct, deposit, store, dispose, place or locate upon the
demised premises any material, element, compound, solution compound, mixture,
substance or other matter of any kind, including solid, liquid or gaseous
material, that constitutes a Hazardous Material, as hereafter defined. For
purposes of this Article XIX, Hazardous Material shall mean any material or
substance:
(a) defined as a "Hazardous Substance" pursuant to
the Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. Section 9601 et. seq.) and amendments thereto and
regulations promulgated thereunder;
(b) containing gasoline, oil, diesel fuel or other
petroleum products;
(c) defined as a "Hazardous Waste" pursuant to the
Federal Resources Conservation and Recovery Act and all regulations
promulgated thereunder;
(d) containing Polychlorinated Biphenyls (PCB);
(e) containing Asbestos;
(f) which is radioactive;
(g) the presence of which requires investigation or
remediation under any federal, state or local statute, regulation,
ordinance or policy, or which is, or becomes defined as "Hazardous
Waste" or as "Hazardous Substance" under
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any federal, state or local statute, regulation, ordinance or policy or
any toxic, explosive, corrosive or other hazardous substance, material
or waste, that is or becomes, regulated by any federal, state or local
governmental authority or which causes a nuisance on the demised
premises or any portion thereof.
19.2 Tenant agrees to protect, defend, indemnify and save
harmless Landlord from and against all liabilities, obligations, claims,
damages, penalties, causes of action, response and clean up costs, and other
costs and expenses (including, without limitation, reasonable attorney fees,
paralegal fees, the cost of any remedial action, consultant fees, investigation
and laboratory fees, court costs and litigation expenses), imposed upon or
incurred by or asserted against Landlord by reason of any contamination or
release of Hazardous Materials upon the demised premises or otherwise by reason
of Tenant's occupation of the demised premises pursuant to this Lease in
violation of Tenant's representations and warranties contained in this Article
XIX.
19.3 The representations, warranties and indemnification of
Tenant pursuant to this Article XIX shall survive the termination of this Lease.
ARTICLE XX
MISCELLANEOUS
20.1 Each term and provision of this instrument performable by
Tenant and Landlord shall be construed to be both a covenant and a condition.
20.2 Time is and shall be of the essence of this Lease and of
each term or provision hereof.
20.3 If any term or provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforceable to the fullest extent
permitted by law.
20.4 The headings of the articles of this instrument are for
convenience and reference only and the words contained therein shall in no way
be held to explain, modify, amplify or aid in the interpretation, construction
or meaning of the provisions of this Lease.
20.5 Nothing in this Lease shall cause Landlord in any way to
be construed as a partner, joint venturer or associated in any way with Tenant
in the operation of said demised premises, or subject Landlord to any
obligation, loss, charge or expense connected with or arising from the operation
or use of said demised premises or any part thereof. The obligations of each
individual tenant hereunder shall be joint and several.
20.6 This Lease shall not be recorded, a memorandum of lease
will be prepared and recorded in lieu thereof.
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20.7 Except as specifically set forth herein, whenever the
consent of Landlord is a prerequisite for any matter of action undertaken by
Tenant, Landlord may withhold said consent in Landlord's sole and unfettered
discretion.
20.8 This Lease shall be governed by the laws of the State of
Indiana.
ARTICLE XXI
OPTION TO PURCHASE
21.1 Definitions. Certain terms used in this Article XXI are
defined in this Section 1; other terms are defined within the text of this
Lease.
(a) "Buyer" shall mean Tenant.
(b) "Closing" shall mean the consummation of the
purchase and sale of the Premises in accordance with the terms of this
Lease upon Buyer's exercise of the option to purchase and completion of
all conditions precedent herein.
(c) "Premises" shall mean the demised premises
described on Exhibit "B" attached hereto and made a part hereof. Said
Premises include all buildings, improvements, fixtures, tenements,
hereditaments and appurtenances belonging or in any wise appertaining
to such real property.
(d) "Purchase Price" shall mean the Purchase Price
for the Premises determined by written agreement between Landlord and
Tenant within forty-five (45) days from and after the date Tenant
exercises the option.
(e) "Seller" shall mean the Landlord.
(f) "Title Commitment" shall mean the Commitment
issued by an ALTA approved title insurance company ("Title Company") in
which the title insurance company commits itself to issue to Buyer an
Owner's Policy of Title Insurance upon demand, in the full amount of
the Purchase Price, setting forth the state of the title to the
Premises and subject only to those "permitted exceptions" hereinafter
described.
21.2 Option to Purchase. Seller hereby grants, bargains and
sells to Buyer the exclusive option to purchase the Premises ("Option"). The
Option shall be exercised no earlier than two hundred seventy (270) days prior
to the expiration of the initial term or any renewal term and no later than one
hundred eighty (180) days prior to the expiration of the initial term or any
renewal term of the Lease. Buyer shall exercise the Option by giving notice
Seller as provided in the Lease before expiration of the Option. Notice shall be
deemed to have been given if in writing and made in such manner provided for the
giving of notices specified in this Lease. In the event of exercise, Seller
shall sell to Buyer and Buyer shall purchase from Seller the Premises in
accordance with the terms and conditions hereinafter set forth.
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21.3 Purchase Price for Premises. The Purchase Price subject
to such adjustments, credits, deductions and prorations, if any, as herein
required, shall be paid in cash at Closing.
21.4 Survey of Premises. Upon Buyer's exercise of the Option,
Seller shall order and procure, at the expense of Seller, a boundary survey of
the Premises with all easements (including utility easements), available utility
services, encroachments, rights-of-way and other matters (whether or not of
record) pertaining to or affecting the Premises plotted thereon, and showing the
location, area and dimensions of all improvements, easements, streets, roads,
railroad spurs, flood hazard areas and alleys on or abutting said Premises, and
providing a legal description of the Premises. Such survey shall be dated or
re-dated at a date not more then thirty (30) days prior to the Closing.
21.5 Title to Premises.
(a) State of Title to be Conveyed. At the Closing,
Seller shall convey to Buyer, its nominees, successors or assigns, by
general Warranty Deed, good and merchantable and insurable fee simple
title to the Premises, free from all liens, encumbrances, restrictions,
rights-of-way and other matters, excepting only the "permitted
exceptions" described as follows: (i) the lien of general real estate
taxes not yet due and payable, subject to proration of taxes as
hereinafter provided; (ii) liens or encumbrances of a definite or
ascertainable amount and which will be paid and discharged in full by
or for Seller at or prior to the Closing; (iii) zoning ordinances and
easements of record which do not prevent or materially interfere with
Buyer's use of the Premises pursuant to this Lease; and (iv) any
matters which were created by Buyer during the term of this Lease.
(b) Title Insurance Commitment and Policy. Upon
Buyer's exercise of the Option, Seller shall order and procure the
Title Commitment, at the expense and for the account of Seller. At the
Closing, a Policy of Title Insurance or an endorsement to the Title
Commitment shall be issued to Buyer insuring Buyer's fee simple
interest in the Premises in the state required by Section 21.5(a)
above, and subject only to the "permitted exceptions." Seller shall pay
for, or Buyer shall receive a credit therefor at the Closing, all
charges and costs of such Title Insurance Policy.
(c) Objections to State of Title. If title to the
Premises is not in the state required by Section 21.5(a) above, Buyer
shall give written notice to Seller within thirty (30) business days
after the date it receives the Title Commitment and survey, specifying
its objection(s) to the state of title to the Premises. Seller shall
thereupon have a period of thirty (30) days in which it shall use its
best efforts to remedy the objection(s) or to induce the Title Company
to issue an endorsement to the Title Commitment satisfactory to Buyer
insuring over or removing such objection(s). If Buyer's objection(s) to
the state of title to the Premises are not remedied by Seller within
such thirty (30) day period, or such further period as Buyer may, in
its sole discretion, grant, then Buyer shall have
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the right, within thirty (30) days thereafter, to give written notice
to Seller that Buyer waives such title defects or objections and elects
to proceed to acquire the Premises without any abatement of the
Purchase Price and to take title to the Premises subject to such
defects or objections; otherwise, the Option shall be automatically
cancelled and rescinded, and this Lease shall terminate.
21.6 Real Estate Taxes. Buyer shall pay all real property
taxes and any general and/or special assessments which are due and payable, if
any, on or before the date of the Closing upon the Premises as of the date of
the Closing pursuant to Section 5.1 of this Lease. Buyer shall assume and pay
all subsequent real estate taxes and assessments due and payable after the date
of Closing.
21.7 Closing.
(a) Provided the Title Commitment is in the form
required by Section 21.5(b), the Closing shall take place at such time
and date within ten (10) days thereafter as agreed between Buyer and
Seller, unless extended in writing by mutual agreement of the parties
hereto. The Closing shall occur at the offices of the Title Company.
Buyer and Seller agree to deposit with Title Company not later than the
date of the Closing all executed documents required in connection with
this transaction, including such documents as requested by the Title
Company issuing the Title Policy. Upon receipt of all necessary
documents, and when the Title Company is in a position to issue to
Buyer a Policy of Title Insurance, Title Company shall on the date of
the Closing, upon instructions from Buyer and Seller, cause the deed to
the Premises and any other necessary or appropriate instruments to be
filed for record.
(b) Seller hereby agrees that it shall be solely
liable for and shall pay for: (i) the preparation of the survey
required under Paragraph 21.4 hereof; (ii) the issuance of the Title
Commitment required under Paragraph 21.5(b) hereof; (iii) the premium
charged for the issuance of said ALTA owner's title policy issued
pursuant to said commitment, and (iv) attorneys, brokerage, engineering
and other professional fees of Seller. Seller hereby further agrees
that it shall be solely liable for and shall pay any and all taxes as
may be legally required for the conveyance of the property being sold
hereunder, so as to convey to Buyer the fee simple title to the
Premises, free of all encumbrances, except as herein stated, or except
as may be mutually agreed upon by the parties hereto. Each party shall
be responsible for its other costs and expenses in accordance with the
obligations or conditions to be performed by each respective party
hereto. At the time of Closing, Seller and Buyer shall execute and
deliver a closing statement setting forth said Purchase Price, with
such closing adjustments thereto as may be applicable.
21.8 Indiana Responsible Property Transfer Law. Buyer and
Seller acknowledge that the transactions contemplated by this Lease may be
subject to the provisions of the Indiana Responsible Property Transfer Law (Ind.
Code 13-25-3-1, et seq.). Seller agrees that
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it shall either (a) comply with the provisions of the Indiana Responsible
Property Transfer Law and provide the Buyer and Buyer's Lender, if any, with a
"disclosure document" as and when required by the Indiana Responsible Property
Transfer Law, or (b) provide the Buyer with a certification acceptable to Buyer
on or before Closing that the transactions contemplated by this Lease are not
subject to the provisions of the Indiana Responsible Property Transfer Law.
ARTICLE XXII
LANDLORD'S CONDITIONS PRECEDENT
22.1 Landlord's obligations under this Lease are conditioned
upon the satisfaction of all of the following:
(a) The approval of all governmental and
quasi-governmental agencies or bodies that control the use and
construction of improvements upon the demised premises. Such approvals
must be for the use defined in this Lease and shall include in addition
to the improvements to be constructed upon the demised premises, the
satisfaction of zoning, building permits, utilities, traffic
requirements, landscaping requirements and all other permits or
approvals of any kind or nature that might be required in order to
permit construction of the improvements as herein intended and the use
thereof by Tenant.
(b) The receipt of acceptable construction agreements
satisfactory to Landlord, in its sole discretion, in order that the
building and other improvements to be constructed on the demised
premises may be constructed at a cost satisfactory to Landlord, in its
sole discretion.
(c) The receipt of both an acceptable construction
and long-term mortgage loan commitment satisfactory in amount and terms
as solely acceptable to Landlord to finance the acquisition of the land
and the cost of construction as herein above described.
22.2 Landlord shall have ninety (90) days after completion of
final plans and specifications to satisfy Landlord's contingencies and
conditions precedent as herein above set forth. Landlord agrees that promptly
after completion of the final plans and specifications it will endeavor through
all commercially reasonable means to satisfy all such conditions and shall keep
Tenant so advised of its progress. Tenant agrees to cooperate with Landlord by
promptly furnishing all information or services that may be required in the
securing of all necessary governmental and quasi-governmental approvals, and
Tenant shall supply such information to Landlord as may reasonably be necessary
to assist Landlord in satisfying Landlord's contingencies and conditions without
unreasonable delay. In the event Landlord does not so notify Tenant within such
time period as herein above set forth, as the same may be extended by agreement
of the parties, that all such contingencies and conditions have been properly
met, this Lease shall be null and void and of no further force and effect
without further liability to either party hereto.
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IN WITNESS WHEREOF, Landlord and Tenant have hereunto executed
this Lease the day and year first above written.
MER GROUP, LLC,
an Indiana limited liability
company
By: /s/ Xxxxxxx Xxxxxx
Printed: Xxxxxxx Xxxxxx
Its: President
"Landlord"
TOWER BANK AND TRUST COMPANY,
an Indiana corporation
By: /s/ Xxxxxx X. Xxxxxxxx
Printed: Xxxxxx X. Xxxxxxxx
Its: CEO
"Tenant"
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EXHIBIT A
LEGAL DESCRIPTION
Lots Numbered 41, 42 and 49 and Lot Number 50, EXCEPT the East 70 feet of said
Lot Number 50 all in Liberty Garden Addition to the City of Fort Xxxxx, as
recorded in Plat Record 8, page 61.
EXHIBIT B
DESCRIPTION OF DEMISED PREMISES
Lot Number 49 and Lot Number 50 EXCEPT the East 70 feet of said Lot
Number 50 in Liberty Garden Addition to the City of Fort Xxxxx, as recorded in
Plat Record 8, page 61.
EXHIBIT C
(A) Landlord's Work.
(1) Landlord agrees to design and build, or cause to be
designed and built, at Landlord's expense, including all materials and labor, a
retail bank branch facility, including an approximately 3,000 square foot
building with drive through banking facilities, entrances, driveways, with
parking lot and landscaping for Tenant's use pursuant to plans and
specifications attached hereto as Exhibit "D" ("Landlord's Work").
(2) Landlord's Work shall comply with all applicable federal,
state and local codes and ordinances.
(3) Landlord's Work shall conform to the plans and
specifications attached hereto as Exhibit "D." Any deviation from the plans and
specifications shall be approved in writing by Landlord and Tenant. Any
additional cost incurred for deviations requested by Tenant shall be made, if
approved by Landlord, at Tenant's sole cost and expense.
(B) Tenant's Work.
(1) Tenant shall be responsible for performing, at its sole
cost and expense, including materials and labor, the installation and equipping
of all computers and computer networking, all art work and all signage.
(2) Tenant's Work shall comply with all applicable federal,
state and local codes and ordinances.
(3) Prior to the commencement of Tenant's Work, Tenant shall
furnish to Landlord, for Landlord's approval, Tenant's plans and specifications
showing or listing all of Tenant's Work. Landlord shall approve or reject the
plans and specifications within thirty (30) days of the date the same are
delivered by Tenant to Landlord. If Landlord fails to approve or reject the same
within thirty (30) days thereof, the same shall be deemed rejected. Tenant's
Work shall conform to the plans and specifications.
(4) Tenant shall be responsible for all architectural,
engineering and design fees and expenses associated with Tenant's Work.
EXHIBIT D
PLANS AND SPECIFICATIONS
ADDENDUM 1
September 23, 2003
Xxxxx X. Xxxxxxxxxxx
Executive Vice President and CFO
Tower Bank & Trust Company
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Re: Lease Agreement dated April 7, 2003 by and between Tower Bank & Trust
Company and MER Group, LLC.
Dear Xxxxx:
Final plans and specifications for the Tower Bank building on Bluffton Road were
completed on June 18, 2003. M E R Group, LLC, as Landlord, is in the process of
satisfying its conditions precedent within 90 days of that date as set forth in
Article XII of the Lease.
As part of this process, M E R Group, LLC, has added the following requested
additional upgrades to the teller line, security system and flooring, the cost
of construction will increase in the amount of $24,500.00 which will require an
increase in the annual base rent to $72,643.00 payable in monthly installments
of $6,053.58. Please review the enclosed and contact me if you have any
questions, comments or concerns. Upon your notification I will have an Amendment
to Lease Agreement prepared to reflect this adjustment to the Lease.
Submitted by: Accepted by:
M E R GROUP TOWER BANK
/s/ Xxxxxxx Xxxxxx /s/ Xxxxx Xxxxxxxxxxx
Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxxxx
President Chief Financial Officer
