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EXHIBIT 10(2)
CONFIDENTIAL PORTIONS OMITTED
LEGEND: [**] REPRESENTS CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT
TABLE OF CONTENTS
Lease Agreement
Page
1. Premises and Preparation ............................. 1
2. Term ................................................. 1
3. Use .................................................. 1
4. Basic Rent ........................................... 1
5. Additional Rent ...................................... 2
6. Security Deposit ..................................... 4
7. Services to be Provided by the Landlord .............. 4
8. Landlord's Title ..................................... 6
9. Assignment and Subletting ............................ 6
10. Untenantability ...................................... 7
11. Signs ................................................ 8
12. Alterations .......................................... 8
13. Use of the Premises .................................. 8
14. Repairs .............................................. 10
15. Eminent Domain ....................................... 11
16. Rights Reserved to Landlord .......................... 11
17. Substitution of Premises ............................. 12
18. Holding Over ......................................... 12
19. Notice and Payments .................................. 12
20. Default by Tenant .................................... 12
21. Default by Landlord .................................. 13
22. Liability Insurance .................................. 14
23. Waiver of Subrogation ................................ 14
24. Indemnify and Hold Harmless .......................... 14
25. Offset Statements .................................... 15
26. Liens ................................................ 15
27. Hazardous Materials .................................. 16
28. Brokers .............................................. 17
29. Exculpation........................................... 18
30. Miscellaneous ........................................ 18
31. Americans with Disability Act of 1991................. 20
32. Rules and Regulations................................. 20
33 Additional Provisions ................................ 21
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LEASE AGREEMENT
The parties to this Lease Agreement ("Lease"), entered into effective
the 26th day of January, 2005, between MFB Financial ("Landlord") and Mellinger
Financial Services, Inc., an Indiana corporation ("Tenant"), hereby agree as
follows:
1. PREMISES AND PREPARATION.
The Landlord hereby leases to the Tenant and the Tenant leases from the
Landlord, subject to all of the terms and conditions hereinafter set forth,
office space as shown on the space plan attached hereto as "Exhibit A"
containing 15,440 square feet of usable space combined with the load factor of
5.5% equates with 16,290 square feet of rentable space (the "Premises") in the
office building which is commonly known as MFB Plaza, located at 4100 Edison
Lakes Parkway, Mishawaka, Indiana in St. Joseph County (the "Building").
2. TERM. The term of the Lease of the Premises shall be 84 months
commencing on or about May 1, 2005 and ending April 30, 2012, subject to the
renewal options specified in Exhibit "B" hereto. If the commencement date of
this Lease is other than the 1st day of the month, then the term of this Lease
shall be extended through the last day of the final month.
3. USE. The Premises shall be occupied and used by the Tenant for
general office use and financial services, including variable products, trust
and banking services. However, notwithstanding the foregoing, Tenant shall not
use any portion of the Premises in a manner which would be generally consistent
with the operation of a branch banking office, and will not provide teller
services consistent with a traditional banking facility. Without limiting the
generality of the foregoing, Tenant shall not hold itself out as operating a
"bank" on the Premises.
4. BASIC RENT. [Confidential material omitted from this section and
filed separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment is represented by the symbol [**]. ] The
Tenant shall pay to the Landlord as basic minimum rent $ [**], per month for 84
months, which is $ [**] per square foot or annual basic rent of $ [**] in
advance, on the first day of each calendar month during the term of this Lease
(the "Basic Rent"). The basic Rent together with the "Additional Rent" as
defined in paragraph 5 hereof are referred to hereinafter as "Rental". Tenant
hereby agrees to pay the Rental monthly to Landlord at Landlord's building
management office or at such other location as Landlord may designate from time
to time, without demand. In the event of a partial month at the beginning of the
term of this Lease, the Rental shall be prorated on the basis of a thirty (30)
day month. Any portion of the Rental or other charges not paid when due shall
bear a delinquency service charge equal to five (5%) percent of such
delinquency. All Rental and other charges payable by Tenant pursuant to the
terms of this Lease shall be payable without relief from valuation or
appraisement laws.
5. ADDITIONAL RENT. [Confidential material omitted from this section
and filed separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment is represented by the symbol [**]. ]
A. In addition to the Basic Rent, Tenant shall pay, as Additional Rent,
Tenant's Percentage of the Operating Cost for the Building in any calendar year.
"Tenant's Percentage" is defined as the quotient of (1) the number of rentable
square feet in the Premises (16,290 rsf) divided by (2) the number of rentable
square feet in the Building (14,309 rsf), which equates to a Tenant Percentage
of Fourteen and Twenty-Five One Hundredths Percent (14.25%). The projected share
of operating costs for Tenant's premises calendar year 2005 are $ [**] or $ [**]
per square foot. In addition, the operating costs paid by the Tenant shall not
exceed $ [**] per square foot during the initial two years of this Lease.
Thereafter, the Operating Costs Tenant shall be required to pay hereunder shall
not increase more than [**] ([**]%) per year, compounded annually, computed
based on the actual Operating Costs incurred during the second (2nd) full
calendar year of this Lease.
B. "Operating Costs," as that term is used herein, shall consist of all
operating costs of the Building, which shall be computed on an accrual basis as
required by federal banking regulations (except in the event in of a change in
the ownership of the Building such that the Building is no longer owned or
controlled by Landlord or any division, subsidiary, affiliate or person or
entity related to or affiliated in any way with Landlord, in which case the
computation shall be converted to a cash basis) in accordance with generally
accepted accounting principles consistently applied and shall consist of all
costs and expenses incurred by Landlord to maintain all facilities used in the
operation of the Building and its environs of every kind and nature which
Landlord shall pay or become obligated to pay because of or in connection with
the ownership and operation of the Building, (but not specific costs which are
separately billed to and paid or reimbursed by specific tenants) including, but
not limited to, the following:
i)Wages, salaries, fringe benefits, costs, payroll taxes, unemployment
compensation payments, workmen's
compensation insurance premiums and other related expenses of all
employees directly engaged in the operation, maintenance and security
of the Building; costs of building employee uniforms and cleaning
thereof; the costs of fair rental value of a Building management
office; management fees payable by Landlord (excluding brokerage
commissions for leasing) if management of the Building is contracted
to a third party;
ii) All supplies and materials used in the operation,
cleaning and maintenance of the Building and all of its
machinery and equipment;
iii) Costs of utilities, including water and power for
heating, lighting, air conditioning and ventilating the
entire Building (including all common and service
areas), fuel adjustment charges, sewer use charges and
any utility taxes;
iv) Costs of all management, maintenance and service
agreements for the Building and the equipment therein,
including, without limitation, alarm service, trash
removal, window cleaning and elevator maintenance;
v) Accounting costs, including the costs of audits by
certified public accountants, pertaining solely to the
management and operation of the Building;
vi) Costs of all insurance, including, without limitation,
fire, casualty, liability and rental value insurance
applicable to the Building and Landlord's personal
property used in connection with the operation and
maintenance of the building;
vii) Costs of repairs, replacements and general maintenance
of the Building and each part thereof excluding
repairs, replacements and general maintenance paid by
proceeds of insurance or by Tenant or by other third
parties, and alterations attributable solely to other
Tenants of the Building;
viii) Snow removal, landscaping and any and all other common
area maintenance costs related to public areas,
including sidewalks and landscaping on the Building's
site;
ix) Amortization of capital improvements made to the
Building subsequent to the commencement date of this
Lease which may be required by governmental authorities
or which will improve the operating efficiency of the
Building resulting in a reduction of Operating
Expenses;
x) Personal property taxes, real property taxes, water and
sewer rents, fees or charges paid to any not for profit
organization or other association for the maintaining
Edison Parkway and/or the common areas in the Edison
Lakes Corporate Park.
xi) Any additional direct costs and expenses of operation
and maintenance of the Building which Landlord
reasonably determines it would have paid or incurred
during the applicable calendar year if the Building had
been fully occupied.
C. Landlord may estimate the Operating Cost for the Building for any
calendar year. Tenant's Percentage of the Operating Costs, as defined above at
14.25% of said Operating Costs, shall be payable in monthly installments with
each Rental payment date for such calendar year. Within a reasonable period of
time after the end of such calendar year, Landlord shall render to Tenant a
statement of the actual Operating Cost for such calendar year and a computation
of Tenant's share of the amount by which the actual Operating Cost exceeds the
estimated Operating Cost (the "Excess Operating Cost"), if any. Within fifteen
(15) days thereafter, Tenant shall pay to Landlord Tenant's share of the Excess
Operating Cost. If the computation shows that a refund is due Tenant, such
amount shall be credited by Landlord against the next Rental payment due.
6. SECURITY DEPOSIT. None Required.
7. SERVICES TO BE PROVIDED BY THE LANDLORD. The Landlord shall provide
the following services to the Premises during reasonable business hours:
A. Janitorial services for customary cleaning in and about the Premises
which are generally consistent with the services described on Exhibit "D"
hereto, on each business day, except legal banking holidays. The Tenant may not
provide any janitorial service of its own without the Landlord's prior written
consent, which consent shall not be unreasonable withheld, and then only subject
to such additional conditions as the Landlord may reasonably impose.
B. Heat and air conditioning to provide, in the Landlord's judgment,
comfortable occupancy, within government regulations, of the Premises under
normal business operations daily from 7:00 a.m. to 6:00 p.m. Monday through
Friday, legal banking holidays excepted. Wherever heat-generating machines or
equipment are used or business operations are conducted in the Premises which,
in the judgment of the Landlord, affect the temperature otherwise maintained by
the air conditioning system, similar to other class A buildings, the Landlord
reserves the right to modify said system, including the installation of
supplementary air conditioning units in the Premises, and the cost and expense
of operation and maintenance thereof shall be paid by the Tenant to the
Landlord.
C. Water from city mains, drawn through fixtures installed by the
Landlord for drinking, lavatory, and toilet purposes, including a reasonable
amount of hot water.
D. Automatic passenger elevator services in common with other Tenants
at all times.
E. Electrical wiring system in the Premises for standard electrical
receptacles and lighting fixtures. Such electricity will be used only for normal
equipment and accessories. Replacement lighting tubes, lamps, bulbs, and
ballasts required for the overhead lighting fixtures in the Premises will be
installed at the Tenant's expense. The Landlord reserves the right to provide a
separate meter for the Premises and to require the Tenant to pay for its use of
electricity billed to such meter in lieu of including the cost of electricity in
the operating expenses.
F. Snow-removal services for the outside parking facilities, related
driveways, and sidewalks at all reasonable times.
G. Lavatories for the use of Tenant's employees and invitees in common
with other Tenants in the building.
In the event Landlord shall fail to provide the above services for more
than ten (10) consecutive business days, Tenant shall be entitled to terminate
this Lease upon thirty (30) days prior written notice by Tenant to Landlord, if,
but only if, such services do not recommence during such thirty (30) day notice
period. It is understood and agreed that the cost of Landlord providing any of
the above services shall be included in the "Operating Costs" hereunder of which
Tenant shall pay its Percentage as Additional Rent pursuant to paragraph 5,
above. The Landlord does not warrant that any of the services above mentioned
will be free from interruptions caused by repairs, renewals, improvements,
alterations, strikes, lockouts, accidents, inability of the Landlord to obtain
fuel or supplies, or any other cause beyond the reasonable control of the
Landlord. Any such interruption of service will not constitute an eviction or
disturbance of the Tenant's use and possession of the Premises, or any part
thereof, or render the Landlord liable to the Tenant for damages, or relieve the
Tenant from performance of the Tenant's obligations under this Lease. The
Landlord will use reasonable efforts to promptly remedy any situation which has
interrupted such services.
8. LANDLORD'S TITLE. The Landlord's title is and always shall be
paramount to the title of the Tenant, and nothing contained herein authorizes
the Tenant to do any act which may encumber the title of the Landlord. This
Lease is subject and subordinate to all ground and underlying leases, and to all
mortgages which may now or hereafter affect such ground and underlying leases,
or the real property or Building, of which the Premises form a part, and to all
renewals, modifications, consolidations, replacements, and extensions thereof,
and to all advances made or hereafter to be made on the security of any such
mortgages. Provided, however, that notwithstanding the foregoing, the mortgagee
may recognize this Lease and, in the event of a foreclosure sale under such
mortgage or conveyance by deed in lieu of foreclosure, this Lease shall continue
in full force and effect at the option of such mortgagee or purchaser under any
such foreclosure sale or deed in lieu thereof. The Tenant covenants and agrees
that it will, upon the written request of such mortgagee or such purchaser,
attorn thereto and execute, acknowledge, and deliver any instrument that has for
its purposes and effect subordination of this Lease to said mortgage.
9. ASSIGNMENT AND SUBLETTING.
A. Except as provided in an Agreement to Assign Leasehold of even date
herewith entered into by and between Landlord, Tenant and Northwestern Mutual
Life Insurance Company ("NML"), the Tenant may not assign or transfer all or any
part of its rights and interests under this Lease, and may not sublet or permit
the use and occupancy of all or any part of the Premises, to or by a third party
without the prior written consent of the Landlord. Landlord acknowledges that
Tenant receives rent from Financial Representatives. The Landlord's consent
under this sub-paragraph shall be in its absolute discretion and subject to such
conditions as the Landlord may impose. If the Landlord grants its consent, then
all consideration paid or to be paid by such third party, including any amounts
in excess of the rent due under this Lease, shall be paid directly to the
Landlord, and the Tenant shall be responsible to the Landlord for any such
consideration and the rent and other monies due under this Lease.
B. The Landlord may transfer and assign, in whole or in part, all of
its rights and obligations under this Lease and in the Building and related real
estate. After such transfer or assignment, the Landlord named in this Lease will
have no further liability to the Tenant under this Lease for the obligations
assumed by the assignee or transferee.
10. UNTENANTABILITY. If the Premises or the Building is made
untenantable by fire or other cause, the Landlord may elect (a) to terminate
this Lease as of the date of such casualty by notice to the Tenant within thirty
(30) days after that date, or (b) to repair all damages to the Premises or the
Building so that the same shall be restored to such condition as existed
immediately prior to such damage. If the Landlord elects to terminate this
Lease, the rent shall be abated on a per diem basis and be paid to the date of
the fire or casualty. If the Landlord elects to restore the Premises and
Building, such restoration shall be completed with reasonable promptness. If the
Premises are unusable during such restoration, or if the Tenant is reasonably
required to close its operation while such repairs are made, the rent shall
abate from the date of such event during such period of repair while such
operations have ceased and the Premises are completely closed. If the Tenant
continues to operate on the Premises during such repairs, but is unable to use a
substantial portion thereof, then the rent shall be prorated in the proportion
which the area of unusable leased space bears to the total Premises for the
period that said space is unusable. The Landlord will not be liable for business
losses to the Tenant by reason of damage to the Premises. If such
untenantability is caused by the fault of the Tenant, there will be no
apportionment or abatement of rent. Notwithstanding anything contained in this
paragraph to the contrary, if the Premises is not or cannot be made tenantable
within one hundred and eighty (180) days after said damage for any reason
whatsoever, the Tenant may terminate this Lease.
11. SIGNS. Tenant shall pay for all signs related to the Tenant's use
of the Premises. No sign, advertisement, or notice may be inscribed, painted, or
affixed on any part of the outside or inside of the Premises or building by the
Tenant except on the doors of the Premises leased by the Tenant and on the
directory board, and then at the Tenant's expense and only of such color, size,
style, and material as is specified by the Landlord in writing. The Landlord
reserves the right to remove all other signs at the expense of the Tenant. At
the expiration of the lease term, the Tenant shall remove its signs from such
doors. Notwithstanding the foregoing, Tenant shall be entitled to install and
maintain, at its sole cost and expense, a lighted sign on the exterior of the
Premises, subject to the prior approval of the Landlord, which approval shall
not be unreasonably withheld.
12. ALTERATIONS. No alterations or additions may be made and no
fixtures may be affixed to the Premises or the Building without prior written
consent of the Landlord, which consent shall not be unreasonably withheld. All
such alterations, additions, and fixtures, except the Tenant's trade fixtures
and business machines, shall be and remain the property of the Landlord unless
otherwise agreed in writing by the Landlord. If at any time, including at the
termination of the Lease Term, Tenant removes any sign satellite dish, antennae
or other equipment from the Building or the Premises, Tenant shall, at its sole
cost and expense, immediately repair all damage caused either by the
installation or removal of such sign and/or equipment and restore the Building
and the Premises to the condition which existed prior to the installation
thereof. All such removal and repair shall be subject to the prior approval of
the Landlord.
13. USE OF THE PREMISES. The Tenant (a) shall occupy and use the Premises during
the
term for the purposes specified in Paragraph 3, above, and none other; (b) may
not make or permit any use of the Premises which, directly or indirectly, is
forbidden by public law, ordinance, or government regulations or which may be
dangerous to life, limb, or property, or which may invalidate or increase the
premium cost of any policy of insurance carried on the building or covering its
operations; (c) may not obstruct or use for storage or for any purpose other
than ingress and egress the sidewalks, entrances, courts, corridors, vestibules,
halls, elevators, and stairways of the Building; (d) may not make or permit any
noise or odor that is objectionable to other occupants of the Building to
emanate from the Premises, may not create or maintain a nuisance thereon, may
not disturb, solicit, or canvass any occupant of the building, and may not do
any act tending to interfere with the quiet enjoyment of their leased space in
the Building by other Tenants, or to injure the reputation of the Building; (e)
may install an antennae or satellite dish on the roof at Tenant's sole expense,
provided that such antennae or satellite dish is for Tenant's use only, and
provided further that Landlord shall have the right to approve in advance of
installation by Tenant the size, weight, location and method of installation of
Tenant's antennae, satellite dish or other equipment, which approval shall not
be unreasonably withheld; (f) may not place, or permit to be placed, any article
of any kind on the window ledges or on the exterior walls and may not throw, or
permit to be thrown or dropped, any article from any window of the Building; (g)
may not attach additional locks or similar devices to any door or window and,
upon the termination of this Lease or of the Tenant's possession, shall
surrender all keys to the Premises and shall explain to the Landlord all
combination locks on safes, cabinets, and vaults; (h) shall be responsible for
locking the doors and closing the transoms and windows in and to the Premises;
(i) may not install any blinds, shades, awnings, or other form of inside or
outside window covering or window ventilators or similar devices without the
prior written consent of the Landlord (which consent shall not be unreasonably
withheld with respect to interior items, but such consent being in Landlord's
sole and exclusive discretion as to exterior items); (j) may not overload any
floor, shall route and locate safes and other heavy articles as the Landlord may
direct, shall bring safes, furniture, and all large articles through the
Building and onto the Premises at such times and in such manner as the Landlord
directs and at the Tenant's sole risk and responsibility; (k) may not install in
the Premises any equipment which uses a substantial amount of electricity
without the advance written consent of the Landlord, which consent shall not be
unreasonably withheld, shall ascertain from the Landlord the maximum amount of
electrical current which can safely be used in the premises, taking into account
the capacity of the electrical wiring in the Building and the Premises and the
needs of other Tenants in the Building and, notwithstanding the Landlord's
consent to such installation, may not use more electricity than such safe
capacity; and (l) shall be responsible for the cost of modification,
installation, maintenance, repair, and additional operating and utility expenses
related to any supplementary air conditioning required by heat-generating
machines or equipment used by the Tenant.
All persons entering or leaving the Building between the hours of 6:00
p.m and 8:00 a.m. Monday through Friday or any time Saturdays, Sundays, or
holidays, may be required to identify themselves to a watchman, by registration
or otherwise, and to establish their right to enter or leave the Building.
Provided further that nothing contained herein shall be construed to require the
Landlord to provide watchmen or other security agents on or about the Building.
The Landlord may exclude or repel any peddler, solicitor, or beggar. In addition
to all other liabilities for breach of any covenant of this Paragraph, the
Tenant shall pay to the Landlord, as additional rent hereunder, an amount equal
to any increase in insurance premiums caused by such breach. The violation of
any covenant of this Paragraph may be restrained by injunction without the
requirement of any bond.
14. REPAIRS. The Tenant shall take good care of the Premises and the
fixtures therein and shall keep the Premises in good order, condition, and
repair at the Tenant's expense during the term of this Lease, including the
replacement of all interior broken glass. Exterior glass broken by the Tenant
will be replaced by Landlord, at Tenant's sole cost and expense and the Tenant
shall promptly pay the Landlord for the costs thereof as additional rent for
glass of the same size and quality. If the Tenant does not make necessary
repairs within a reasonable time and adequately, the Landlord may, but need not,
make such repairs and the Tenant shall promptly pay the Landlord for the costs
thereof as additional rent. On the expiration or early termination or
cancellation of this Lease, the Tenant shall surrender the Premises and the
Landlord's fixtures in as good condition as of the time of delivery to the
Tenant, subject to reasonable wear and tear. All injury to the building or
fixtures caused by moving of the Tenant in and out of the Building and any and
all breakage or any other injury whatsoever to the Building, fixtures or to the
property of any Tenants of the Building caused by the Tenant and any damage done
by water, steam, electricity, fire, or other substance to the Building or
fixtures, or to the property of other Tenants in the Building caused by the
Tenant may be repaired by the Landlord at the expense of the Tenant, and the
cost thereof shall become due and payable by the Tenant as additional rent upon
the delivery of a statement of such costs by the Landlord to the Tenant, or
mailing the same, postage prepaid, to the Tenant at its last known address.
15. EMINENT DOMAIN. If the Building, or any portion thereof, which
includes a substantial part of the Premises or which prevents the operation of
the Tenant's business shall be taken or condemned by a competent authority for
any public use or purpose, the term of this Lease shall end upon, and not
before, the date when the possession of the part so taken shall be required for
such use or purpose. The Tenant may not share in the condemnation award, except
for its personal property and relocation awards, if any.
16. RIGHTS RESERVED TO LANDLORD. The Landlord reserves all rights
incident to its ownership of the Building, including, but not limited to, the
right (a) to change the name or street address of the Building without notice or
liability, provided that Landlord reimburses Tenant for Tenant's reasonable
stationery and communication costs resulting from such change; (b) to install
and maintain signs on the exterior of the Building; (c) to approve all sources
furnishing sign painting and lettering, and drinking water, used on the
Premises; (d) if, during or prior to the termination of this Lease, the Tenant
vacates the Premises, to decorate, remodel, repair, alter, or otherwise prepare
the Premises for reoccupancy; (e) to have pass keys to the Premises; (f) to
exhibit the Premises during the last ninety (90) days of the lease term; and (g)
to take any and all measures, including inspections, repairs, alterations,
additions, and improvements to the Premises or to the Building as may be
necessary or desirable for the safety, protection, or preservation of the
Premises or the Building or the Landlord's interest therein, or as may be
necessary or desirable in the operation of the Building. The Landlord may enter
upon the Premises and may exercise any or all of the foregoing rights hereby
reserved without being deemed guilty of an eviction or disturbance of the
Tenant's use or possession and without being liable in any manner to the Tenant.
17. INTENTIONALLY OMITTED.
18. HOLDING OVER. In the event Tenant should remain in possession of
the Premises after expiration of the term of this Lease without execution by
Landlord and Tenant of a new Lease, then Tenant shall be deemed to be occupying
the leased Premises as a tenant at sufferance subject to all of the covenants
and obligations of this Lease and at a daily rental of twice the per diem rate
of rental provided hereunder computed on the basis of a thirty (30) day month.
Landlord, upon notice to Tenant, shall have the right to deem the continuing
occupancy of Tenant to constitute the creation of a month to month tenancy at a
monthly rental of twice the monthly rental provided hereunder, which month to
month tenancy shall continue until either party shall have given the other one
full calendar month's notice of an intention to terminate such month to month
tenancy.
19. NOTICE AND PAYMENTS. Any notice which the Landlord may desire or be
required to give the Tenant shall be deemed sufficiently given or rendered if
delivered in writing to the Tenant personally or sent by certified or registered
mail, addressed to the Tenant at the Premises, return receipt requested, with a
copy to NML at the address specified for NML in the Agreement to Assign
Leasehold referred to in subparagraph A of paragraph 9, above. All payments to
the Landlord and any notice which the Tenant may desire or be required to give
the Landlord shall be deemed sufficiently given or rendered if delivered in
writing to the Landlord personally or sent certified or registered mail, return
receipt requested, addressed to the Landlord at MFB Financial, P.O. Box 528
Mishawaka, Indiana, 46546-0528 with a copy to Steven L. Hostetler, Esq., P.O.
Box 1210, Mishawaka, Indiana, 46546-1210, or at such other place as the Landlord
may, from time to time, designate in writing.
20. DEFAULT BY TENANT. In the event of a default by the Tenant under
this Lease, the Landlord will have the following remedies:
A. If any voluntary or involuntary petition or similar pleading under
any section of any bankruptcy law is filed by or against the Tenant or any
voluntary or involuntary proceedings in any court or tribunal is instituted to
declare the Tenant insolvent or unable to pay its debts and, in the case of an
involuntary petition or proceeding, if it is not dismissed with thirty (30) days
from the date it is filed, then the Landlord, at its election and without
further notice or demand and either with or without entry upon the Premises, may
forthwith cancel this Lease and be thereafter entitled to recover damages in an
amount equal to the present value of the rental obligation herein stated,
including increases in rent as provided in this Lease, less the fair rental
value for the Premises which it can obtain for the residue of the stated term.
B. If the Tenant either fails to pay any rent or other monies owed to
the Landlord on the date it is due, or is otherwise in default of any of its
obligations or duties under this Lease, then the Landlord may enter into and
upon the Premises, or any part thereof, and repossess the same, with or without
terminating this Lease and without prejudice to any of its remedies for rent or
breach of covenant and may, at its option, terminate this Lease by giving
written notice of its election to do so or may, at its option, lease the
Premises, or any part thereof, as the agent of the Tenant, or otherwise. The
Tenant shall, without demand or further process of law, pay to the Landlord at
the end of each month during the full term of this Lease the difference between
the rent due the Landlord from the Tenant under this Lease, including any
increases in rent due under this Lease, and the net receipts, if any, being
received by the Landlord from the Premises (such net receipts to be calculated
by deducting from the gross receipts the expense incurred by the Landlord in
connection with the reletting of the Premises and performing the Tenant's
obligations hereunder). In the event the rent for reletting the Premises is
higher than the monthly rent under the term of this Lease, then such excess rent
shall belong to the Landlord and the Tenant will have no claim or right thereto.
21. DEFAULT BY LANDLORD. If the Premises, or any part thereof, are at
any time subject to a mortgage, a deed of trust, or a similar lien instrument,
and this Lease or the rentals are assigned to such mortgagee, trustee, or
beneficiary, and the Tenant is given written notice thereof, including the post
office address of such assignee, then the Tenant may not terminate this Lease
for any default on the part of the Landlord without first giving written notice
by certified or registered mail, return receipt requested, to such assignee, to
the attention of the mortgage loan department, specifying the default in
reasonable detail, and affording such assignee a reasonable opportunity to make
performance at its election for and on behalf of the Landlord.
22. LIABILITY INSURANCE.
A. Tenant shall, at all times, maintain Comprehensive General Liability
insurance covering all operations in which the Tenant is engaged with limits of
$1,000,000.00 Each Occurrence and an Aggregate limit of not less than
$1,000,000,00. In addition, the Tenant shall carry Automobile Liability
insurance covering any vehicles owned by or operated by the Tenant on the
Landlord's premises with limits of not less than $1,000,000.00 per accident. The
Tenant shall, at all times, carry Workers Compensation insurance covering the
Tenant's employees and any subcontractors engaged by the Tenant.
B. Such insurance policy or policies shall name Landlord as an
additional insured and shall provide that they may not be cancelled on less than
thirty (30) days prior written notice to Landlord. Tenant shall furnish Landlord
with certificates of insurance evidencing such coverage. Should Tenant fail to
carry such insurance and furnish Landlord with certificates of insurance after a
request to do so, Landlord shall have the right to obtain such insurance and
collect the premium thereof from Tenant as additional rent.
23. WAIVER OF SUBROGATION. Each party hereby waives all claims for recovery
from the other party for any loss or damage to any of its property insured
under valid and collectible insurance policies to the extent of any recovery
collectible under such Insurance, subject to the limitation that this waiver
shall apply when permitted by the applicable policy of Insurance.
24. INDEMNIFY AND HOLD HARMLESS. Tenant agrees to indemnify landlord
for, and hold Landlord harmless from and against, all fines, suits, claims,
demands, liabilities and actions (including reasonable costs and expenses of
defending against such claims) resulting or alleged to result from any breach,
violation or non-performance of any covenant or condition hereof, or from the
use or occupancy of the Premises, by Tenant or Tenant's agents, employees,
licensees, or invitees and for any damage to person or property resulting from
any act, omission or negligence of Tenant or Tenant's agents, employees,
licensees or invitees, or any occupant of the Premises (but not any
trespassers), except as Landlord's own negligence may contribute thereto.
Landlord agrees to indemnify Tenant for, and hold Tenant harmless from
and against, all fines, suits, claims, demands, liabilities and actions
(including reasonable costs and expenses of defending against such claims)
resulting or alleged to result from any breach, violation or non-performance of
any covenant or condition hereof by, or actions of, Landlord or Landlord's
agents, employees, or contractors (but not by, or actions of, any other tenant
of the Building or any agents, employees, licensees or invitees of any other
tenant of the Building), and for any damages to person or property resulting
from any act, omission or negligence of Landlord or Landlord's agents, employees
or contractors (but not by, or actions of, any other tenant of the Building or
any agents, employees, licensees or invitees of any other tenant of the Building
or any trespassers), except as Tenant's own negligence may contribute thereto.
25. OFFSET STATEMENTS. The Tenant agrees to any time and from
time to time, upon not less than twenty (20) days prior written request by the
Landlord, to execute, acknowledge, and deliver to the Landlord a statement in
writing certifying that this Lease is unmodified and in full force and effect
(or, if there have been modifications, stating the modifications, and that the
Lease, as so modified, is in full force and effect), the commencement and
termination dates of this Lease, that the Tenant has accepted the Premises, and
the date to which the rental and other charges have been paid in advance, if
any, and that the Tenant has no claims against the Landlord or offsets against
rent. It is intended that such statement may be relied upon by prospective
purchasers of the Landlord's interest in the land and building, or by a
mortgagee or assignee of any mortgage upon the Landlord's interest in the land
and building.
26. LIENS. The Tenants may not do any act which in any way encumbers
the title of the Landlord in and to the Premises and the building, nor shall the
interest or estate of the Landlord in said Premises and building be in any way
subject to any claim by way of lien or encumbrance which exceeds $10,000.00,
whether by operation of law or by virtue of any expenses or implied contract by
the Tenant. The Tenant will not permit the Premises and the building to become
subject to any mechanics', laborers', or materialmen's liens in excess of
$10,000.00 on account of labor or material furnished, or claimed to have been
furnished, to the Tenant for or on the Premises and Building. As its election,
the Landlord may (but is not required to) remove or discharge such lien, or
claim for lien (with the right, in its discretion, to settle or compromise the
same), and any amounts advanced by the Landlord together with any attorney's
fees incurred by Landlord in connection therewith for such purpose shall be
additional rent immediately due from the Tenant to the Landlord, with interest
at the rate of eighteen (18%) percent per annum from the date of payment thereof
by the Landlord until paid by the Tenant.
27. HAZARDOUS MATERIALS. Tenant shall not cause or permit any
Hazardous Materials to be brought upon, kept or used in or about the Premises or
the real estate described in Exhibit "C" (the "Real Estate") by Tenant, its
agents, employees, contractors or invitees without the prior written consent of
Landlord, which consent shall not be unreasonably withheld as long as Tenant
demonstrates to Landlord's reasonable satisfaction that such Hazardous Material
is necessary or useful to Tenant's business and will be used, kept and stored in
a manner that complies with all laws regulating any such Hazardous Material so
brought upon or used or kept in or about the Premises or Real Estate. If Tenant
breaches the obligations stated in the preceding sentence, or if the presence of
Hazardous Material on the Premises or Real Estate caused or permitted by Tenant
results in contamination of the Premises or Real Estate or if contamination of
the Premises or Real Estate by Hazardous Material otherwise occurs for which
Tenant is legally responsible to Landlord for damage resulting therefrom, then
Tenant shall indemnify, defend and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities or losses
(including, without limitation, diminution in value of the Premises or Real
Estate, damages for the loss or restriction on use of rentable or usable space
or of any amenity of the Premises or Real Estate, damages arising from any
adverse impact on marketing of space in the Building, and sums paid in
settlement of claims, attorney's fees, consultants' fees and expert fees) which
arise during or after the lease term as a result of such contamination. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any clean
up, remedial, removal or restoration work required by any federal, state or
local governmental agency or political subdivision because of Hazardous Material
present in the soil or ground water on or under the Real Estate. Without
limiting the foregoing, if the presence of any Hazardous Material on the
Premises or Real Estate caused or permitted by Tenant results in any
contamination of the Premises or Real Estate, Tenant shall promptly take all
actions, at its sole expense, as are necessary to return the Premises to the
condition existing prior to the introduction of any such Hazardous Material to
the Premises or Real Estate; provided that Landlord's written approval of such
actions shall be first be obtained, which approval shall not be unreasonably
withheld so long as such actions would not potentially have any material adverse
long term or short term effect on the Premises or Real Estate. The foregoing
indemnity shall survive the expiration or earlier termination of the Lease.
As used herein, the term "Hazardous Material" means any hazardous or
toxic substance, material or waste, including, but not limited to, those
substances, materials and wastes defined or specified in 42 U.S.C Section 9601
et seq. and any similar state statute or local ordinance applicable to the Real
Estate as well as any rules and regulations promulgated, administered or
enforced by any governmental agency or authority pursuant thereto including any
subsequent amendments thereof.
28. BROKERS. Tenant represents and warrants that it has not dealt with
any broker or agent in any negotiations for or the obtaining of this Lease,
other than Grubb & Ellis/Cressy & Everett Commercial Company, Inc. and
Prudential Dunfee Realtors ("Agents") and Tenant agrees to indemnify and hold
Landlord harmless from any and all costs or liability, including attorneys'
fees, for compensation claimed by any other broker or agent employed by it or
claiming to have been engaged by it in connection with this Lease. The parties
acknowledge that Agents have acted only as agent with respect to the procurement
and negotiation of this Lease, and agree that Agents shall not be responsible or
liable for any term, provision or condition of this Lease. If Agents are
entitled to a leasing commission in connection with the making of this Lease,
the same shall be paid by Landlord pursuant to a separate written agreement
between Landlord and Agents.
29. EXCULPATION. Tenant's source of satisfaction of any of Landlord's
obligations hereunder shall be limited specifically to the Property.
30. MISCELLANEOUS.
A. The invalidity of any provision, clause, or phrase will not serve to
render the balance of this Lease ineffective or void.
B. This Lease shall be binding upon and inure to the benefit of the
respective parties hereto, their heirs, executors, administrators, devisees,
successors, and assigns. Any reference to the Tenant or Landlord shall, for the
purpose of determining liability for property damage, personal injury, and the
like, be deemed to include the Tenant, the Landlord, his or her respective
agents, employees, servants, partners, independent contractors, licensees,
invitees, guests or visitors.
C. This Lease supersedes and cancels all prior negotiations and
agreements whatsoever, and this Lease shall be amended only upon the joint
written agreement of the parties.
D. Except as elsewhere herein expressly provided, all amounts owed by
the Tenant to the Landlord hereunder shall be deemed to be additional rent and
shall be deemed payable within ten (10) business days from the date the Landlord
renders a statement of account therefor to the Tenant and shall bear interest at
the rate of either eighteen (18%) percent per annum or the highest interest rate
allowed by law, whichever is less, until paid.
E. Extension and Waiver. Time is of the essence in the performance of
all obligations provided for herein. Any party hereto may (1) extend the time
for the performance of any of the obligations or other acts of the other party
hereto, (2) waive any inaccuracies in the representations and warranties of any
other party contained herein or in any document delivered pursuant hereto,
and/or (3) waive compliance by any other party with any of the agreements or
conditions contained herein. However, no term or provision hereof shall be
deemed waived (and no breach shall be deemed consented to or excused) unless
such waiver, consent, or excuse shall be in writing and signed by the party
claimed to have excused, waived, or consented. Should any party consent, waive
or excuse a breach by any other party, such consent, excuse, or waiver shall not
constitute a consent to, waiver of, or excuse of any other or subsequent breach,
whether or not of the same kind as the original breach.
F. Entire Agreement. This Lease contains the entire agreement between
the parties hereto with respect to the transactions contemplated herein and
supercedes all previous written or oral negotiations, commitments, and writings.
G. Limitations on Rights of Third Parties. Nothing expressed or implied
in this Lease is intended or shall be construed to confer upon or give any
person other than the parties hereto any rights or remedies under or by reason
of this Lease or the transactions contemplated hereby.
H. Construction. Words and phrases herein, including acknowledgment
hereof, shall be construed as in the singular or plural number, and as
masculine, feminine, or neuter gender according to the context.
I. Governing Law. This Lease shall be construed and enforced in
accordance with the laws of the State of Indiana. The parties hereto agree that
the courts of the State of Indiana, located in St. Joseph County, Indiana, and
the United States District Court for the Northern District of Indiana shall have
the sole and exclusive jurisdiction over any litigation arising from this Lease
or related in any way to the transactions provided for herein. The parties
consent to the personal jurisdiction of those courts.
J. All persons executing this Lease in a representative capacity
warrant that they have authority to execute this Lease and bind the entities
they purport to represent.
K. Legal Counsel. Each Party hereto acknowledges and agrees that it has
been given the opportunity to consult with counsel and other advisors of its
choice, and having the opportunity to consult with such counsel and advisors,
knowingly, voluntarily and without duress, coercion, unlawful restraint,
intimidation or compulsion enters into this Lease.
L. Entire Agreement. (i)The parties agree that this Lease is the
product of their joint efforts, that it expresses their agreement, and that it
should not be interpreted in favor of or against any party merely because of
that party's efforts in preparing it. (ii) Each person signing this Lease
(whether for herself or for himself individually or on behalf of an
organization) acknowledges that this Lease may reflect changes from previous
drafts, if any, and that he or she has read and reviewed this Lease carefully.
Each person signing this Lease also acknowledges that he or she has not relied
on any other party to this Lease, or any officer agent, partner, employee or
attorney of any other party to this Lease, to explain provisions of this Lease
to him or her, or to identify changes that have been made from prior drafts or
versions of this Lease, if any. Rather, each person signing this Lease agrees to
be solely responsible for being aware of the contents of this Lease.
M. Recording. The parties shall not record this Lease. However, at the
request of either party, the parties agree to execute and record a short form
memorandum pertaining hereto.
31. AMERICANS WITH DISABILITY ACT OF 1991 ("ADA"). The United States
Congress has enacted the Americans with Disabilities act (the "ADA"). Among
other things, this Act is intended to make many business establishments equally
accessible to persons with a variety of disabilities; therefore, modifications
to real property may be required. State and local laws also may mandate changes.
Landlord shall be responsible for making any modifications to the Premises or
access thereto required to accommodate the disabilities of Tenant or its
customers, visitors, and employees.
32. RULES AND REGULATIONS. (A) With respect to the Premises, Tenant
shall, at its own expense, comply with all laws, orders, and requirements of all
governmental entities with reference to the use and occupancy of the Premises.
Tenant and Tenant's agents, employees, and invitees shall comply with any rules
and regulations governing the use of the Building or other improvements to the
Premises as reasonably required by the Landlord. Landlord may make reasonable
changes in any such rules and regulations from time to time as it deems
advisable for the safety, care, and cleanliness of the Building, provided the
same are in writing and are not in conflict with this Lease. The existing Rules
and Regulations are attached hereto and incorporated herein. (B) Tenant shall
pay any and all such fines or penalties imposed or allegedly imposed for failure
to comply with this Paragraph and shall indemnify, defend, and hold harmless
Landlord from any claims, demands, or actions by governments, their agencies,
boards or commissions and private parties, arising as a result of Tenant's
failure to comply with this Paragraph.
33. ADDITIONAL PROVISIONS. Additional paragraphs numbered 33 B-I,
attached to this Lease, are part of this Lease and the terms and provisions
thereof are binding upon the Landlord and the Tenant.
LANDLORD: MFB FINANCIAL
By: _/s/___________________________
---------------- ---
TENANT: MELLINGER FINANCIAL SERVICES, INC.
By:_________/s/ __________________________
Richard Mellinger, President
Exhibit A
Space plan to be attached once finalized and
approved by Landlord and Tenant and the project
architect.
Exhibit B
Additional Provisions to Lease
[Confidential material omitted from this Exhibit and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment is represented by the symbol [**]. ]
33. A. BUILD OUT ALLOWANCE. The Landlord will provide a build out allowance of $
[**] per square foot of usable space.
B.PARKING. Tenant will be provided 48 parking spaces at no
cost along with 4 additional spaces for each thousand square feet of space over
and above 12,000 square feet of space should the Tenant occupy more than 12,000
square feet of space.
C.SIGNAGE. Exterior signage on the building facade will be permitted
along with interior signage on the building directory and on the second floor.
D. EXERCISE FACILITIES. Tenant's employees shall be permitted
access to the buildings exercise facility at no additional cost to the Tenant
subject to the Fitness Center Addendum attached hereto.
E. EXPANSION OPTIONS. Landlord hereby grants to Tenant a
right of first refusal for any contiguous space which may become available
during the initial term and any renewal period of this Lease. Landlord will
provide written notice to the Tenant regarding the availability of such space
and Tenant will have a period of 10 business days after receiving such notice to
exercise such option. In the event the Tenant desires to lease the space in its
then "as is" condition the same terms (including the expiration date of the
lease term) and conditions as are in effect for this Lease shall apply to the
additional space. If such space is improved at the Landlord's expense, then the
rent for the expansion space shall include the base rent under the terms of the
existing lease together with the pro rata share of operating expenses
attributable to such space, along with the cost of any required improvements for
the expansion space amortized over the then remaining lease term (without
considering option terms under options which at that time have not been
exercised) at an interest rate equal to 1% below the then existing Prime Rate of
MFB Financial, or upon such other terms which may be mutually agreed to by
Landlord and Tenant.
F. TRAINING FACILITY. Tenant shall have access on an arranged basis to
the training room facility located on the first floor of the building at no
additional cost to the Tenant in accordance with the Training Center Addendum
attached hereto.
G. NON SMOKING FACILITY. The entire building is a non smoking facility
and Tenant agrees that smoking on the premises is prohibited.
H. SECURITY SYSTEMS. Landlord will maintain building security by
providing adequate lighting, an electronic entry system, and video surveillance
and/or similar systems. Tenant may install additional equipment at its expense
and upon approval by the Landlord.
I. RENEWAL OPTIONS. Provided the Tenant is not in default under the
terms of the Lease, and provided further that The Northwestern Mutual Life
Insurance Company ("NML") has guaranteed Tenant's obligations hereunder during
the renewal option term in the same manner and to the same extent as NML has
guaranteed Tenant's obligations during the original lease term, the Tenant shall
have the option to renew or extend this Lease for two separate five year terms
upon the same terms and conditions except that the base rent for years 8-12
shall be increased to $ [**] per rentable square foot and for years 12-17 the
base rent shall be increased to $ [**] per square foot. Tenant shall be
responsible for its pro rata share of operating expenses during any such renewal
and will provide Landlord written notice of its intent to exercise such options
180 days before the expiration of the Lease.
EXHIBIT C
(Legal Description Omitted)
Exhibit "D"
MISCELLANEOUS:
1. All carpeted floors and rugs to be vacuumed. 1 Time per service
(Any lightweight furniture is to be moved to facilitate thorough
cleaning of floors.)
2. Spot clean carpet stains. As needed
3. Sweep and damp mop all hard floor surfaces. 1 Time per service
(Any lightweight furniture is to be moved to facilitate
thorough cleaning of floors.)
4. Clean and sanitize water fountains. 1 Time per service
5. All waste baskets to be emptied. 1 Time per service
(Trash to be emptied into dumpster.)
(Contractor to determine if and were it is necessary to use plastic
bag liners at contractor's expense.)
6. All "shred" containers to be emptied. 1 Time per service (Contents
to be emptied into designated bins for pickup by other contractor.)
7. Wash waste baskets and shred containers. As needed
8. Dust all accessible ceilings, vents and light fixtures. 1 Time per month
9. Clean, strip, re-wax or seal hard surface floors. 2 Times per year
10. Wash interior of all exterior office windows. 1 Time per year
(All exterior, interior of lobby, east and south stairway windows by others.)
11. Wash all window walls. 1 Time per year
MAIN ENTRANCE FOYER:
1. Clean door windows and frames. 1 Time per service
2. Remove and clean under mat. 1 Time per week
3. Dust window frames. 1 Time per week
4. Wash windows (inside). 1 Time per month
MAIN LOBBY:
1. Dust furniture. 1 Time per service
2. Clean all mats and runners (replace as needed). 1 Time per service
3. Buff tile floor. 1 Time per service
4. Straighten magazines, discard any newspapers. 1 Time per service
5. Dust window sills and all remaining surfaces. 1 Time per week
6. Vacuum furniture fabric. 1 Time per month
OFFICES:
1. Dust furniture. 1 Time per service
2. Dust telephones, lamps and other desktop items. 1 Time per service
3. Dust window sills and other surfaces. 1 Time per week
4. Vacuum furniture fabric. 1 Time per month
5. Dust window blinds. 2 Times per year
6. Clean light switches and door surfaces As needed
7. Spot clean interior of windows. As needed
NOTE - Any locked offices are not required to be cleaned.
CUBICALS:
1. Dust furniture, top plates and other surfaces. 1 Time per service
2. Dust telephones, lamps and other desktop items. 1 Time per service
3. Vacuum furniture fabric. 1 Time per month
ELEVATORS:
1. Dust all surfaces. 1 Time per service
2. Wipe clean all hard surfaces including doors. 1 Time per service
3. Clean and sanitize surface of controls 1 Time per service
COFFEE STATIONS:
1. Clean countertops and sinks. 1 Time per service
2. Damp clean cabinet fronts. As needed
KITCHEN AREAS:
1. Clean countertops and sinks. 1 Time per service
2. Clean interior and exterior of microwaves. 1 Time per service
3. Wipe exterior of refrigerators and vending machines 1 Time per service
4. Damp clean cabinet fronts. As needed
5. Empty refrigerator(s) of all items except condiments, salad
dressings and unopened non-perishables such as pop cans
and bottled water and wipe interior clean. 1 Time each Friday
RESTROOMS:
1. Clean and sanitize toilets, toilet seats and urinals.1 Time per service
2. Clean and sanitize sinks and countertops. 1 Time per service
3. Clean mirrors. 1 Time per service
4. Replenish paper products, air fresheners, soap dispensers, etc.
1 Time per service
5. Mop and sanitize floors 1 Time per service
6. Wipe down stalls, walls and dispensers. 1 Time per week
7. Wipe clean all remaining surfaces. 1 Time per week
WORKOUT / SHOWER AND LOCKER ROOMS:
1. Clean and sanitize shower area walls and floors. 1 Time per service
2. Mop and sanitize remaining hard surface floors. 1 Time per service
3. Wipe locker surfaces clean. 1 Time per week
4. Dust equipment and other remaining surfaces. 1 Time per week
HALLWAYS:
1. Dust all surfaces. 1 Time per week
STAIRWAYS:
1. Dust all surfaces. 1 Time per week
Building Rules and Regulations
1. No awning or other projection will be attached to the outside walls
of the Building. No curtains, blinds, shades or screens visible from the
exterior of the Building or visible from the exterior of the Leased Premises,
will be attached to or hung in, or used in connection with any window or door
of the Leased Premises without the prior written consent of Landlord. Such
curtains, blinds, shades, screens or other fixtures must be of a quality, type,
design and color, and attached in the manner approved by Landlord.
Notwithstanding the foregoing, Landlord hereby approves and accepts all window
treatments currently used by Tenant in the Demised Premises.
2. Tenant, its servants, employees, customers, invitees and guests will
not obstruct sidewalks, entrances, passages, corridors, vestibules, halls,
elevators, or stairways in and about the Building which are used in common with
other tenants and their servants, employees, customers, guests and invitees,
and which are not a part of the Leased Premises of Tenant. Tenant will not
place objects against glass partitions or doors or windows which would be
unsightly from the Building corridors or from the exterior of the Building, or
that would interfere with the operation of any device, equipment, radio,
television broadcasting or reception from or within the Building or elsewhere
and will not place or install any projections, antennas, aerials or similar
devices inside or outside of the Leased Premises or on the Building.
3. Tenant will not waste electricity, water or air conditioning and
will cooperate fully with Landlord to insure the most effective operation of
the Building's heating and air conditioning systems and will refrain from
attempting to adjust any controls other than unlocked room thermostats, if
any, installed for Tenant's use. Tenant will keep corridor doors closed.
4. Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Leased Premises closed and secured after normal business
hours.
5. Excluding Tenant's personal property and trade fixtures, no person
or contractor not employed by Landlord will be used to perform janitorial
work, window washing cleaning, maintenance, repair or similar work in the
Leased Premises without the written consent of Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed.
6. Landlord will have the right to prohibit any advertising by Tenant
which in Landlord's reasonable opinion tends to impair the reputation of the
Building or its desirability as an office complex for office use, and upon
written notice from Landlord, Tenant will refrain from or discontinue such
advertising.
7. The Leased Premises will not be used for cooking (except for
the use of microwave ovens), lodging, sleeping or for any immoral or illegal
purpose.
8. Unless expressly permitted by Landlord, no additional locks or
similar devices will be attached to any door or window and, except to the
extent Tenant has keys in its possession as of' the Commencement Date, no keys
other than those provided by Landlord will be used or made for any door. If
more than two keys for one lock are desired by Tenant, Landlord may provide the
same upon payment by Tenant. Upon termination of this Lease or of Tenant's
possession, Tenant will surrender all keys and access cards of the Leased
Premises and will explain to Landlord all combination locks on safes, cabinets
and vaults.
9. The water and wash closets, drinking fountains and other plumbing
fixtures will not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, coffee grounds or other
substances will be thrown therein. All damages resulting from any misuse of
the fixtures by Tenant or its servants, employees, agents, visitors or
licensees will be borne by Tenant. No person will waste water by interfering
or tampering with the faucets or otherwise.
10. No electrical circuits for any purpose will be brought into the
Leased Premises without Landlord's written permission (which shall not be
unreasonably withheld, conditioned or delayed) specifying the manner in which
same may be done.
11. No bicycle or other vehicle, and no dog (other than seeing-eye
dogs) or other animal will be allowed in offices, halls, corridors, or
elsewhere in the building.
12. Tenant will not throw anything out of the door or windows, or
down any passageways or elevator shafts.
13. All loading, unloading, receiving or delivery of goods, supplies
or disposal of garbage or refuse will be made only through entryways and
freight elevators provided for such purposes and indicated by Landlord. Tenant
will be responsible for any damage to the building or property of its
employees or others and injuries sustained by any person whomsoever resulting
from the use or moving of such articles in or out of the Leased Premises, and
will make all repairs and improvements required by Landlord or governmental
authorities in connection with the use or moving of such articles.
14. All safes, equipment or other heavy articles will be carried in
or out of the Leased Premises only at such time and in such manner as will be
prescribed in writing by Landlord, and Landlord will in all cases have the
right to specify the proper position of any such safe, equipment or other
heavy article, which will only be used by Tenant in a manner which will not
interfere with or cause damage to the Leased Premises or the building in which
they are located, or to the other tenants or occupants of such building.
Tenant will be responsible for any damage to the building or the property of
its employees or others and injuries sustained by any person whomsoever
resulting from the use or moving of such articles in or out of the Leased
Premises, and will make all repairs and improvements required by Landlord or
governmental authorities in connection with the use or moving of such
articles.
15. Canvassing, soliciting, and peddling in the building is
prohibited and Tenant will cooperate to prevent its employees from doing the
same.
16. Vending machines will not be installed without permission of
Landlord (which will not be unreasonably withheld).
17. Wherever in these Building Rules and Regulations the word
"Tenant" occurs, it is understood and agreed that it will mean Tenant's
associates, agents, clerks, servants and visitors. Wherever the word "Landlord"
occurs, it is understood and agreed that it will mean Landlord's assigns,
agents, clerks, servants and visitors.
18. Tenants, its servants, employees, customers, invitees and guests
will, when using the common parking facilities, if any, in and around the
building, observe and obey all signs regarding fire lanes and no parking
zones, and when parking always park between the designated lines. Landlord
reserves the right to tow away, at the expense of the owner, any vehicle that
is improperly parked in a no parking zone. All vehicles will be parked at the
sole risk of the owner, and Landlord assumes no responsibility for any damage
to or loss of vehicles except to the extent any damage is caused by the gross
negligence or willful misconduct of Landlord.
19. At all times the Building will be in charge of Landlord's
employee in charge and (a) persons may enter the Building only in accordance
with Landlord's reasonable regulations, (b) persons entering or departing from
the Building may be questioned as to their business in the Building, and the
right is reserved to require the use of an identification card or other access
device and the registering of such persons as to the hour of entry and
departure, nature of visit, and other information deemed necessary for the
protection of the Building, and (c) all entries into and departures from the
Building will take place through such one or more entrances as Landlord will
from time to time designate. Landlord will normally not enforce clauses (a),
(b) and (c) above from 7:00 a.m. to 6:00 p.m., Monday through Friday, and from
8:00 a.m. to 1:00 p.m. on Saturdays, but it reserves the right to do so or not
to do so at any time at its sole discretion. In case of invasion, mob, riot,
public excitement, or other commotion, Landlord reserves the right to prevent
access to the Building during the continuance of the same by closing the doors
or otherwise, for the safety of the tenants or the protection of the Building
and the property therein. Landlord will in no case be liable for damages for
any error or other action taken with regard to the admission to or exclusion
from the Building of any person.
20. All entrance doors to the Leased Premises will be locked when
the Leased Premises are not in use. All corridor doors will also be closed
during times when the air conditioning equipment in the Building is operating
so as not to dissipate the effectiveness of the system or place an overload
thereon.
21. Landlord reserves the right at any time and from time to time to
rescind, alter or waive, in whole or in part, any of these Rules and
Regulations when it is deemed necessary, desirable, or proper, in Landlord's
reasonable judgment, for its best interest or for the best interest of the
tenants of the Building, provided that Landlord enforces (or elects not to
enforce) all Rules and Regulations in a non-discriminatory manner.
FITNESS CENTER ADDENDUM FOR NORTHWESTERN MUTUAL LEASE
In the event and to the extent Landlord maintains a location in the
Building designated and/or used as a fitness center or exercise room (which
location shall be referred to hereinafter as the "Fitness Center"), the
following provisions shall apply to Tenant's use of the Fitness Center:
A. The Fitness Center shall only be used by Tenant's employees,
and not by any guests, invitees or family members of Tenant or
Tenant's employees.
B. Use of the Fitness Center shall be consistent with the use of
the Fitness Center by Landlord and other tenants of the
Building. Tenant and its employees shall not use the Fitness
Center in any manner that will unreasonably interfere with the
legitimate use of the Fitness Center by Landlord, the other
tenants of the Building, and their respective employees.
C. Tenant shall be solely responsible and liable for the use
of the Fitness Center by Tenant's
employees and any invitees of Tenant or its employees
(whether or not authorized hereby).
Tenant hereby completely and unconditionally releases
and discharges Landlord and all of
Landlord's officers, directors, agents, contractors,
employees and shareholders (all of whom,
including Landlord, being sometimes collectively referred
to hereinafter as the "Released
Parties") from each and every liability, obligation,
responsibility, claim, action and/or cause
of action of each and every nature and description
arising from or relating directly or
indirectly in any way to the Fitness Center and/or any use
thereof by any employee or invitee
of Tenant (whether or not such invitee is authorized hereby),
or by any invitee of any employee
of Tenant (whether or not such invitee is authorized
hereby), even if arising from the
negligence of one or more of the Released Parties.
Further, Tenant hereby agrees to
unconditionally and absolutely indemnify and hold the
Released Parties, and each of them,
completely harmless from any and all liabilities,
obligations, responsibilities, claims,
actions and/or causes of action of each and every nature
and description arising from or
relating directly or indirectly in any way to the Fitness
Center and/or the use thereof by any
employee or invitee of Tenant (whether or not such invitee
is authorized hereby) or any invitee
of Tenant's employee (whether or not such invitee is
authorized hereby), even if arising from
the negligence of one or more of the Released Parties.
D. Tenant agrees to provide liability insurance coverage for
any and all claims that may arise
from or relating to any use of the Fitness Center by Tenant
or Tenant's employees or invitees
(whether or not such invitees are authorized hereby, including
invitees of Tenant's employees),
with limits of not less than One Million Dollars
($1,000,000.00) per occurrence. Such
insurance policy or policies shall name Landlord as an
additional insured and shall provide
that they may not be cancelled unless thirty (30) days
prior written notice is given to
Landlord. Tenant shall furnish Landlord with
certificates of insurance evidencing such
coverage.
E. Landlord shall be entitled from time to time to implement
(and revise and supplement as
necessary) rules with respect to the Fitness Center. Tenant
shall be responsible for full and
complete compliance with such rules by Tenant's employees
and invitees (whether or not such
invitees are authorized pursuant hereto, including all
invitees of Tenant's employees). Tenant
shall be liable for and shall indemnify and save Landlord
completely harmless from any and all
injuries and claims of each and every nature and description
arising from actions or inactions
of Tenant's employees or invitees (whether or not such
invitees are authorized hereby,
including all invitees of Tenant's employees), arising from
or relating to any violations of
such rules. In the event Tenant and/or any of its employees
and/or invitees (whether or not
such invitees are authorized hereby, including any and
all invitees of Tenant's employees)
violates any such rules pertaining to the Fitness Center,
Landlord shall be entitled to limit,
restrict and/or condition further use of the Fitness Center
by Tenant and/or its employees in
such manner as Landlord deems appropriate.
F. Landlord reserves the right to condition use of the Fitness
Center to users who sign indemnification and waiver of
liability agreements proposed by Landlord from time to time,
containing such terms as Landlord deems appropriate.
G. Landlord shall be entitled to cease operating the Fitness
Center at any time during the lease term without any liability
to Tenant or to any other person or entity, and without any
abatement or reduction in the rental amount due hereunder.
H. Upon the occurrence of any breach or violation of the
provisions of this paragraph by Tenant or
any of its employees, or any invitees of Tenant or its
employees (whether or not such invitees
are authorized hereby), Landlord shall be entitled to limit,
restrict and/or terminate further
use of the Fitness Center by Landlord and/or its employees
as Landlord deems appropriate. No
term or provision hereof shall be deemed waived (and no
breach shall be deemed consented to or
excused) unless such waiver, consent or excuse shall be
in writing and signed by Landlord.
Should Landlord consent, waive or excuse a breach or
violation, such consent, waiver or excuse
shall not constitute a consent to, waiver of, or excuse
of any other or subsequent breach,
whether or not of the same kind as the original breach.
TRAINING ROOM ADDENDUM FOR NORTHWESTERN MUTUAL LEASE
It is anticipated that Landlord may maintain from time to time during
the lease term a location or locations in the Building designated for use as a
shared training room (which location or locations shall be referred to
hereinafter as the "Training Room") for use by Landlord and Tenants of the
Building on a shared basis. The following provisions shall apply to such
Training Room:
A. The Training Room shall only be used by Tenant for
conferences, meetings, closings and similar business purposes,
and not for social gatherings.
B. Use of the Training Room shall be consistent with the use of
the Training Room by Landlord and other tenants of the
Building. Landlord shall designate one of its employees as the
person responsible for scheduling use of the Training Room.
Generally speaking, the Training Room will be reserved on a
first come-first served basis.
C. Tenant shall be solely responsible and liable for the use of
the Training Room by Tenant's employees and any invitees of
Tenant.
D. All liability insurance coverage required hereby shall include
coverage for any and all claims that may arise from or
relating to any use of the Training Room by Tenant or Tenant's
employees or invitees.
E. There shall be no alcoholic beverages or hot food items
served or consumed in or about the
Training Room. At the end of each use of the Training Room,
Tenant shall leave the Training
Room in a neat, orderly and clean condition. Tenant will be
required to reimburse Landlord for
any and all costs incurred by Landlord to clean and/or
otherwise maintain (including repair)
the Training Room and/or any furniture or other contents
thereof following the use thereof by
Tenant, its employees and/or any invitees. Landlord
shall be entitled from time to time to
implement (and revise and supplement as necessary)
additional rules with respect to the
Training Room. Tenant shall be responsible for full and
complete compliance with such rules by
Tenant's employees and invitees. In the event Tenant
and/or any of its employees and/or
invitees violates any such rules pertaining to the Training
Room, Landlord shall be entitled to
limit, restrict and/or condition further use of the
Training Room by Tenant and its employees
and/or invitees in such extent and manner as Landlord
deems appropriate. Should Landlord
consent, waive or excuse a violation of any rule, such
consent, waiver or excuse shall not
constitute a consent to, waiver of, or excuse of any other or
subsequent violation, whether or
not of the same kind as the original violation.
EXHIBIT E TO LEASE
LEASE GUARANTY
THIS LEASE GUARANTY ("Guaranty") is made effective as of this 26th day
of January, 2005, by THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, A Wisconsin
corporation ("Guarantor") in favor of MFB Financial ("Landlord").
WITNESSETH:
WHEREAS, a lease agreement dated substantially contemporaneously with
the effective date hereof has been entered into by and between Landlord and
Mellinger Financial Services, Inc., an Indiana limited liability company
("Tenant") for rental of certain premises by Tenant located at 4100 Edison Lakes
Parkway, Mishawaka, Indiana, all as more particularly described therein
("Lease"). This Lease Guaranty has been attached to the Lease as Exhibit E; and
WHEREAS, Guarantor has agreed to guaranty the obligations of Tenant
under the Lease subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in order to induce Landlord to enter into the Lease
(and Landlord's reliance on Guarantor's promise to give this Guaranty if this
Guaranty is signed after the Lease) and for other good and valuable
consideration, the receipt and legal sufficiency of which is hereby
acknowledged, it is agreed as follows:
1. Guarantor irrevocably guarantees to Landlord the full and
prompt payment and performance by Tenant of all its
obligations under the Lease in accordance with the terms
thereof and of this Guaranty; provided, however that:
(i) in the event Landlord and Tenant, without the prior, written
consent of Guarantor, enter into any amendment, modification, understanding or
other agreement with respect to the Lease, financial or otherwise and either
oral or written ("Modification"), which increases or expands the underlying
obligations or liabilities of the Tenant under the Lease, then this Guaranty
shall remain in full force and effect except that Northwestern's liability and
obligations pursuant hereto shall not be increased or expanded in any manner
whatsoever. Conversely, in the event that any Modification decreases, limits or
eliminates any of the underlying obligations or liabilities of the Tenant under
the Lease, then this Guaranty shall remain in full force and effect but
Guarantor's obligations and liability hereunder shall be deemed to be
automatically limited, decreased or eliminated to the same extent as such
Modification; and
(ii) unless Guarantor has expressly consented in writing, Guarantor's
obligations hereunder shall not extend to any options or rights set forth in the
Lease which Tenant may exercise after the Date of the Lease, including, without
limitation, any rights Tenant may have for expansion of the Premises, extension
of the term of the Lease or options to purchase the building in which the
premises is located.
2. Landlord shall give notice to Guarantor of a default under the terms
of the Lease and an opportunity to cure such default as follows, Landlord hereby
acknowledging that such notice and opportunity to cure is a condition precedent
to any suit or action brought by Landlord to enforce the terms of this Guaranty:
(i) In the event of any monetary default by Tenant under the Lease,
Landlord shall give written notice thereof to Guarantor and shall provide
Guarantor with a period of ten (10) days following Guarantor's receipt of such
notice during which Guarantor may cure such monetary default; and/or
(ii) In the event of any default by Tenant of the terms of the Lease
other than a monetary default, Landlord shall give written notice thereof to
Guarantor with a period of thirty (30) days following Guarantor's receipt of
such notice during which Guarantor may cure such default (or, if such default is
of a nature which requires more than thirty (30) days to cure, then Landlord
shall provide Guarantor with a period of thirty (30) days during which Guarantor
shall have the opportunity to commence and thereafter diligently proceed to cure
such default).
3. All written notices which are required or permitted hereunder shall
be deemed to have been given, delivered, or made, as the case may be, (i) when
delivered by personal delivery; (ii) three (3) business days after having been
deposited in the United States mail, certified or registered, return receipt
requested, sufficient postage affixed and prepaid, and properly addressed; or
(iii) one (1) business day after having been deposited with a
nationally-recognized overnight courier service (such as, by way of example but
not limitation, UPS, U.S. Express Mail, or Federal Express); or (iv) when
delivered by facsimile (provided an original is sent concurrently by one of the
other methods of delivery permitted herein), as of the date and time shown on
the confirmation slip generated by the sending party's facsimile machine. For
purposes of delivery of notices, Guarantor's address is:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attn: Field System Administration
Ms. Lynnea Reissing, FLMI
4. This is a guaranty of payment and performance and not of collection.
Guarantor hereby waives (i) notice of acceptance of this Guaranty, (ii) the
right (other than with regard to the right to receive notice, as contemplated
above) to require Landlord to proceed first against Tenant or any other party
and (iii) the right to require Landlord to pursue any other remedy for the
benefit of Guarantor.
5. The discharge of any obligation of Tenant under the Federal
Bankruptcy Code or under any other state or federal bankruptcy, insolvency or
similar proceeding shall not affect the liability of Guarantor hereunder.
6. In the event that the Lease is assigned to a person or entity who or
which succeeds Tenant as general agent for the Sales Territory ("Successor
General Agent"), this Guaranty shall continue in full force and effect as to
such Successor General Agent.
7. All of the foregoing agreements of the undersigned contained in this
Guaranty, and each of them, shall be binding upon the Guarantor, its successors
and assigns and shall inure to the benefit of the Landlord, its successors and
assigns, including each and every subsequent owner of the real estate upon which
the above-described premises are located.
8. This Guaranty may not be changed, modified, discharged or terminated
in any manner other than by an agreement in writing signed by the Guarantor and
the Landlord.
9. This Guaranty shall be governed by, and construed under, the laws of
the state in which the premises which is the subject of the Lease is located.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty on the day and
year first above written.
GUARANTOR:THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,
a Wisconsin corporation
By: _______/s/______________________________
----
Name: __________________________________
Its: _____________________________________
EXHIBIT F TO LEASE
AGREEMENT TO ASSIGN LEASEHOLD
THIS AGREEMENT TO ASSIGN LEASEHOLD ("Agreement") is entered into
effective this 26th day of January, 2005 by and between Mellinger Financial
Services, Inc., an Indiana corporation ("Agent"), MFB Financial ("Landlord") and
The Northwestern Life Insurance Company ("Northwestern").
WITNESSETH:
WHEREAS:
1. Agent, pursuant to that certain general agency contract entered into
by and between Agent and Northwestern ("Agency Contract"), is Northwestern's
general agent for the insurance sales territory as described in such Agency
Contract.
2. Agent, as tenant, and Landlord have entered into that certain office
lease dated substantially contemporaneously with the effective date hereof (the
"Lease") with respect to the premises described therein and located at 4100
Edison Lakes Parkway, Mishawaka, Indiana (the "Premises");
3. Agent and Northwestern desire that Landlord permit, subject to the
terms and provisions of this Agreement, either the voluntary or automatic
assignment of Agent's entire right, title and interest in, to and under the
Lease to either Northwestern or to a person or entity selected by Northwestern
to serve as Agent's successor ("Successor Agent") (each, individually, an
"Assignee"); and
4. Agent and Landlord desire to receive the agreement of Assignee, in
writing and subject to certain conditions hereinafter stated, to assume the
Lease in the event of an assignment as provided herein.
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter contained, and other good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
A. VOLUNTARY ASSIGNMENT. Notwithstanding any provision in the Lease to
the contrary and regardless of whether the Agency Contract has been terminated,
provided, however, that Agent is not in default under the Lease, Agent may at
any time during the term of the Lease or any extensions or renewals thereof,
assign its entire right, title and interest in, to and under the entire Lease to
Assignee provided that Assignee expressly assumes, in writing ("Assumption
Agreement"), all of Agent's obligations and liabilities under the Lease except,
with regard to a Successor Agent as Assignee, those obligations and liabilities
which accrued or relate to the period of time prior to the date of assignment.
B. AUTOMATIC ASSIGNMENT. If the Agency Contract is terminated in
accordance with its terms for any reason whatsoever, including, without
limitation, the disability or death of the Agent, and prior to such termination,
Agent has not executed an assignment of the Lease as contemplated in Paragraph
A, above, then Agent's entire right, title and interest in, to and under the
entire Lease shall be automatically assigned to Assignee as of the date of such
termination. Assignee shall continue as tenant under the Lease and such
automatic assignment shall be effective as to Landlord, Agent and Assignee and
Landlord, Agent and Assignee shall enter into a Assignment and Assumption of the
Lease and a Ratification of Guarantee in the form attached hereto as Exhibit A.
C. SUBSEQUENT ASSIGNMENTS. In the event an assignment as contemplated
in either Paragraph A or B, above, has occurred, such Assignee may subsequently
assign its entire right, title and interest in, to and under the entire Lease
provided that (i) each subsequent assignment is made to either Northwestern or
to a Successor Agent ("Subsequent Assignee") and (ii) that Subsequent Assignee
provides Landlord with an Assumption Agreement in form and substance the same as
that which Landlord accepted from Assignee. Assignee, except to the extent that
Assignee is Northwestern, shall be released from its obligations and liabilities
under the Lease subsequent to the date of an assignment permitted under this
Paragraph C provided that the Subsequent Assignee executes an Assumption
Agreement, but such release shall not constitute a waiver or release of any
obligations of the Assignee (whether for payment of rentals and other charges,
or for performance of covenants) accruing during or determined with respect to
periods prior to the date of such subsequent assignment.
D. TERM OF THIS AGREEMENT. In qualification of the foregoing provisions
of this Agreement, Assignee shall be absolutely released from any obligation to
cause the Lease to be assumed by Assignee upon the expiration date of the Lease,
as defined therein.
It is further understood that, although Assignee's obligation to assume
the Lease shall be limited to the extent provided herein, Assignee shall have
the option, upon its election, to assume all of Agent's right, title and
interest in and to the Lease for so long as Agent shall occupy space in the
Premises under the Lease and any renewals or extensions thereof, said option to
be exercised or relinquished, in writing, by Assignee at the time Agent should
cease, for any reason whatsoever, to be Northwestern's general agent for the
said Sales Territory.
E. INDEMNIFICATION BY ASSIGNEE. An assignment of the Lease as provided
herein shall be made without payment or obligation by the Assignee to Agent or
to any other party. Assignee shall, however, indemnify and forever hold Agent
free and harmless from and will defend Agent against any and all claims,
liabilities and obligations arising under or in connection with the Lease,
excluding any obligation accruing during or determined with respect to the
period of Lease prior to the date of assignment as contemplated herein.
F. INDEMNIFICATION BY AGENT. Agent, its heirs and successors (other
than persons or entities succeeding to Agent's interest pursuant to this
Agreement) shall indemnify and forever hold Assignee free and harmless from and
will defend Assignee against any and all claims, liabilities and obligations
accruing during or determined with respect to the period of Lease prior to the
date of assignment as contemplated herein.
G. GUARANTY. Notwithstanding anything to the contrary contained in this
Agreement, none of the terms hereof shall be deems to waive, modify or amend, or
to constitute a waiver or release of, any of Northwestern's obligations under
the terms of that certain Guaranty by Northwestern in favor of Landlord, dated
effective as of the date hereof under which Northwestern has guaranteed the
payment and performance of all of the terms of the Lease ("Guaranty"). It is
specifically understood and agree that, notwithstanding any Assignment or
release contemplated hereunder, Northwestern shall remain fully liable to
Landlord for any and all of its obligations under the Guaranty. If Northwestern
shall perform any obligation of Agent under the Lease pursuant to the terms of
the Guaranty or if, in connection with an assignment contemplated herein,
Northwestern shall pay any obligation of Agent accruing or determined with
respect to the period of Lease prior to the date of assignment (including the
cost of repairing or restoring the improvements on the Premises to the condition
in which they existed at the time of their completion), then Northwestern shall
be entitled to reimbursement of such amount from Agent, Agent's estate, or by
set-off against amounts then or thereafter in the hands of Northwestern.
In the event that, contrary to the representations contained in
paragraph H.1. below, Landlord and Agent, without the prior, written consent of
Northwestern, enter into any amendment, modification, understanding or
agreement, financial or otherwise, with respect to the Lease, the Premises or
Agent's occupancy of the same, either oral or written ("Modification") which
increases or expands the underlying obligations or liabilities of the Agent
under the Lease, then the Guaranty shall remain in full force and effect except
that Northwestern's liability and obligations pursuant to the Guaranty shall not
be increased or expanded in any manner whatsoever. Conversely, in the event that
any Modification decreases, limits or eliminates any of the underlying
obligations or liabilities of the Agent under the Lease, then the Guaranty shall
remain in full force and effect but Northwestern's obligations and liability
thereunder shall be deemed to be automatically limited, decreased or eliminated
to the same extent.
H. REPRESENTATIONS AND WARRANTIES. Landlord (but with respect to
Paragraph H.2., below, only to the extent of Landlord's actual knowledge) and
Agent hereby represent and warrant as follows, acknowledging the reliance of
Northwestern on the accuracy and truthfulness of each of the representations and
warranties contained in this paragraph H., both on the date hereof and on the
date of any assignment contemplated herein:
1. There have been no amendments, other understandings or
agreements with respect to the Premises or the Lease between Landlord and Agent,
either oral or written, which have not been consented to in writing by
Northwestern;
2. There has been no assignment of the tenant's interest in
the Lease other than pursuant to this Agreement; and
3. Agent has no interest in the Premises or the building of
which the Premises are a part other than as tenant under the Lease.
I. OTHER ASSIGNMENTS. Agent covenants with Northwestern that it will
not assign its interest in the Lease other than pursuant to this Agreement and
to so assign in contravention of this Agreement shall be considered a breach of
Agent's general agency contract with Northwestern.
J. CONDITION OF PREMISES. In the event of an assignment contemplated
herein, Agent covenants that it will deliver the Premises and improvements
thereto in the same condition in which they existed at the time of completion of
the improvements, excepting only normal wear and tear.
K. RECORDING. At the request of any one of the parties hereto, such
party, at its cost and expense, will execute and record in the appropriate land
records this Agreement or a memorandum of the material provisions hereof.
L. ASSIGNMENT OF THIS AGREEMENT. This Agreement may not be assigned by
Agent except as specifically permitted hereunder and any attempted assignment in
contravention of the terms hereof shall be null and void. This Agreement shall
not run to the benefit of any third parties, other than a Successor Agent or
Subsequent Assignee, or a successor to Landlord, without the express written
agreement of the parties hereto.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals to be effective the date and year first above written.
AGENT: Mellinger Financial Services, Inc.
By: _________/s/ _____________________
-----
Its: _________________________________
LANDLORD: MFB Financial
By: _________/s/ _____________________
----
Its: ________________________________
NORTHWESTERN: THE NORTHWESTERN LIFE INSURANCE COMPANY, a
Wisconsin corporation
By: ___________/s/______________________
-----
Its: ________________________________
198292/sk/2/28/03
EXHIBIT A TO AGREEMENT TO ASSIGN LEASEHOLD
ASSIGNMENT AND ASSUMPTION OF LEASE
AND RATIFICATION OF GUARANTY
This ASSIGNMENT AND ASSUMPTION OF LEASE AND RATIFICATION OF GUARANTY
("Agreement") is entered into this ___ day of ________, 20___ by and between MFB
Financial ("Landlord"), Mellinger Financial Services, Inc., an Indiana
corporation ("Tenant") and THE NORTHWESTERN LIFE INSURANCE COMPANY
("Northwestern").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain office lease
dated ___________________, 20___ ("Lease") for the rental of certain premises
located at 4100 Edison Lakes Parkway, Mishawaka, Indiana ("Premises").
WHEREAS, Landlord, Tenant and Northwestern have entered into that
certain Agreement to Assign Leasehold dated ___________________________, 20___
("Agreement to Assign") whereby Tenant's entire right, title and interest in, to
and under the Lease shall be automatically assigned to either (i) Northwestern;
or (ii) a person or entity selected by Northwestern ("Successor Agent") upon
termination of that certain agency contract between Tenant and Northwestern
("Agency Contract").
WHEREAS, Northwestern has executed that certain Guaranty dated
_______________, 20___ whereby Northwestern has guaranteed the obligations of
Tenant under the Lease.
WHEREAS, Landlord, Tenant and Northwestern desire to (i) confirm the
assignment to and assumption by Successor Agent or Northwestern Tenant's
interest in the Lease and Landlord desires to consent to the same; and (ii)
Northwestern desires to ratify the terms of the Guaranty.
NOW THEREFORE, in consideration of the foregoing, as well as other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Northwestern hereby notifies Landlord, pursuant to the Agreement to
Assign, that the Agency Contract has been terminated effective as of
___________________, 20__ (the "Termination Date").
2. EXCEPT WITH RESPECT TO THOSE OBLIGATIONS OR LIABILITIES WHICH
ACCRUED PRIOR TO THE TERMINATION DATE, (use the foregoing if a Successor Agent,
rather than Northwestern, is assuming the lease) (E)effective as of the
Termination Date and continuing until ___________, 2002, (insert expiration date
of the initial term of the lease) the Agent's entire right, title and interest
in, to and under the Lease is automatically assigned to and assumed by
___________________________________ Successor Agent [NORTHWESTERN] and this
Agreement shall serve as the Assumption Agreement referred to in the Agreement
to Assign.
3. Landlord hereby consents to the foregoing assignment and assumption
of the Tenant's right, title and interest in the Lease by Successor Agent [OR
NORTHWESTERN].
4. Landlord hereby acknowledges and confirms that each of the
representations and warranties made by Landlord, as set forth in Paragraph H. of
the Agreement to Assign, is true and correct as of the date hereof.
5. Northwestern hereby ratifies and confirms all of the terms and
conditions of the Guaranty as are set forth therein notwithstanding the
assignment and assumption of the Lease by Successor Agent [OR NORTHWESTERN].
IN WITNESS WHEREOF, Landlord, Tenant and Northwestern, by their duly
authorized officers, have executed the foregoing Agreement as of the day and
year first set forth above.
LANDLORD:_____________________________________
By: _______________________________________
Its: _______________________________________
TENANT: ________________________________________
By: ________________________________________
Its: ________________________________________
NORTHWESTERN: THE NORTHWESTERN LIFE INSURANCE COMPANY,
a Wisconsin corporation
By: ________________________________________
Its: ____________________________________
205813/sk/6/13/03