EXHIBIT 10.1
WAL*MART SUBLEASE AGREEMENT
THIS SUBLEASE is entered into as of the 9th day of February 2001, by and
between Sublessor and Sublessee as hereinafter defined.
WHEREAS, in consideration of the obligation of Sublessee to pay Rent as
herein provided and in consideration of the Standard Terms and Conditions set
forth herein, Sublessor hereby demises and Subleases to Sublessee, and Sublessee
hereby takes from Sublessor, the Demised Premises, TO HAVE AND TO HOLD said
Demised Premises for the Sublease Term specified below, and upon the terms and
conditions set forth in this Sublease.
BASIC PROVISIONS
1. Sublessor: WAL-MART STORES, INC., 0000 Xxxxxxxxx 00xx Xxxxxx, Xxxxxxxxxxx,
XX 00000
2. Sublessee: BANK OF THE OZARKS
Chenal Parkway & X. Xxxxxxx Street
Little Rock, AR 72231-8811
3. Sublessee's Trade Name(s): N/A
4. "Demised Premises": The area leased by Sublessee containing approximately
675 square feet, located in WAL-MART #3230, in the City of Xxxxxx, State of
Arkansas (the 'Store").
5. Targeted Commencement Date: May 9, 2001
6. Sublease Term: Commencing on the Commencement Date as defined in Section
1.3 below, and continuing until 12:00 Midnight local time on the fifth
anniversary of the Commencement Date (the "Termination Date").
7. Rent: $2,650.00 Payable as specified in Article 111.
See Exhibit C
8. Key Money: A one-time nonrefundable fee of $31,000.00 for the right to
operate an FSF in the Store. Payment is to be made with the first payment
of rent pursuant to section 3.2.
9. Sublessor's Construction Payment. A one-time payment of $10,000.00 for
Sublessor's work related to the design, construction and finishing of the
Demised Premises. Payment is to be made with the first payment of Rent
pursuant to Section 3.2.
10. "Financial Service Facility" (hereinafter "FSF. Sublessee's Banking
Facility located in the Demised Premises and staffed with one or more bank
employees.)
EXECUTED AS OF THE DATE HEREIN ABOVE STATED.
SUBLESSOR: WAL-MART STORES, INC. SUBLESSEE: BANK OF THE OZARKS
By: /s/ Xxxxxxxx X. Xxxxxxx /s/ Xxxx X. Xxxx
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Xxxxxxxx X. Xxxxxxx, Director
Wal-Mart Realty Company Title: President
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Attest: /s/ Xxxxxx X. Xxxxxxx Attest: /s/ Xxxxx Xxxxxx
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Assistant Secretary Secretary
STANDARD TERMS AND CONDITIONS FOR WAL*MART SUBLEASE AGREEMENT
ARTICLE 1. GENERAL PROVISIONS
1.1 Quiet Possession: Sublessor further agrees that if Sublessee shall
perform all of the covenants and agreements herein required to be performed by
Sublessee, Sublessee shall, subject to the terms of this Sublease, at all times
during the continuance of this Sublease have peaceful and quiet possession of
the Demised Premises.
1.2 Renewal Terms: Provided Sublessee has conducted its business in an
efficient, high-class and reputable manner and is not in default hereunder,
Sublessee shall have the option(s) to extend the term of this Sublease for up to
two (2) consecutive terms of Five (5) years each by giving Sublessor written
notice of its exercise of the respective option at least one hundred eighty
(180) days prior to the expiration of the original Sublease Term or the
expiration of the then existing term. References to the "Sublease Term" shall
refer to the original term and any extensions or renewals thereof.
1.3 Commencement Date: The Date that the store Grand Opens unless: (i) bank
experiences a delay in Regulatory approval, but only if Regulatory approval is
filed 90 days prior to Commencement Date, or (ii) the Lease agreement is signed
less than 90 days prior to scheduled Grand Opening date, or (iii) the store is
open at the signing of the Lease. In the above cases, a Commencement Date shall
be agreed upon by the Sublessor and the Sublessee. Should the bank fail to open
on the Commencement Date, Sublessor and Sublessee agree (by placing their
initials below this paragraph) that the Sublessee will pay Sublessor $5,000.00
(five thousand) for not opening for business on the Commencement Date and
$100.00 (one hundred) for each day the Sublessee is not open for business after
the Commencement Date. It would be impracticable or difficult to ascertain
actual resulting damages to Sublessor and the amounts set forth above are
reasonable estimates of such damage and shall be paid to Sublessor as liquidated
damages in such event.
1.4 Permitted Use: A FSF staffed with one or more bank employees whose
functions include, without limitation, opening new deposit accounts, accepting
loan applications and performing customary teller transactions, such as cashing
checks and taking deposits. An FSF may be equipped with an ATM, vault, safe
deposit boxes, a night depository, and one or more self-service or interactive
banking terminals. Sublessee shall have the exclusive right to operate an FSF
within the Store and may also offer, on a non-exclusive basis, such ancillary
products and services as may be permitted by applicable law and regulations;
provided, however, that Sublessee shall not offer insurance, investment products
and travel agency services, except for the insurance and investment products and
services listed on Exhibit "B," without Sublessor's prior written consent, which
consent shall not be unreasonably withheld. Sublessee may not trade merchandise
that conflicts with Sublessor's merchandise without Sublessor's written
approval.
1.5 Automated Teller Machine ("ATM"):
(a) Sublessee shall have the right to operate one ATM within the Store.
Sublessee may request Sublessor's approval to operate additional ATM's within
the Store which approval may be granted in Sublessor's sole discretion. Subject
to Section 1.6 below, Sublessor shall offer Sublessee a right of First refusal
to operate additional ATM's within the Store prior to entering into an ATM lease
with a third Party competitor of Sublessee. Any additional ATM's operated by
Sublessee shall be subject to the terms of this Sublease and to the following
additional conditions: (i) Sublessee shall pay ATM rental of $500 per month for
each additional ATM; (ii) the location(s) of additional ATM(s) will be as
determined by Sublessor; and (iii) all additional ATM(s) must be front-loading
ATMs.
(b) Sublessee shall not charge a Terminal Usage Fee or other 'fee for use
of Sublessee's ATMs in the Store, other than normal and customary interchange
fees and fees customarily assessed by Sublessee to its account holders (none of
which shall be considered "Terminal Usage Fees" for the purposes of this
Agreement) without Sublessor's prior written consent. Sublessor's consent to
Sublessee's imposition of Terminal Usage Fees shall not be unreasonably
withheld, and shall be based upon Sublessor's analysis of Terminal Usage Fees
charged by ATMs operated by Sublessee and other ATM operators within the Store's
market area, including freestanding ATMs, parking lot ATMs, ATMs in retail
locations operated by Sublessor, and retail locations operated by Sublessor's
competitors, it being Sublessor's intention to ensure that Sublessor's "everyday
low prices" philosophy applies to charges imposed on customers of Sublessee's
ATMs.
(c) In the event Sublessee is permitted to charge Terminal Usage Fees, and
elects to do so, Sublessee shall pay Sublessor an ATM transaction fee (the "ATM
Transaction Fee"), in addition to any other ATM fees payable hereunder, equal to
fifty percent (50%) of the Terminal Usage Fees received by Sublessee by reason
of transactions conducted at
Sublessee's ATM(s) in the Store. ATM Transaction Fees shall be paid monthly in
arrears, commencing on the fifteenth (15th) day of the month after the month in
which the ATM commences operation. Sublessee shall keep and maintain full and
accurate records of Terminal Usage Fees charged to customers of Sublessee's
ATM(s). Sublessor shall have the right during Sublessee's business hours and
upon reasonable notice to Sublessee to inspect, copy and audit Sublessee's
records, and Sublessee will produce the same on Sublessor's request. If any such
inspection and audit discloses a liability for ATM Transaction Fees in excess of
ATM Transaction Fees theretofore paid by Sublessee, Sublessee shall promptly,
upon demand, pay to Sublessor such liability. If the audit discloses that
Sublessee's statements underreported ATM Transaction Fees by more than two
percent (2%), then Sublessee shall, in addition, pay the reasonable cost of
Sublessor's audit.
(d) Sublessee agrees that no ATM shall stand in front of or protrude beyond
the flush surface of the front wall of the bank vestibule area. The ATM must be
recessed in such a way that no portion of the machine shall extend beyond the
wall surface. Sublessee further agrees that under no circumstance shall any
portion of the ATM extend into the traffic aisle adjacent to the bank's front
wall. Details of ATM placement into the leased space shall be submitted to and
approved by Sublessor prior to construction of said space.
1.6 Sublessor's Rights: Notwithstanding anything to the contrary herein,
Sublessee acknowledges that Sublessor's associates shall at all times during the
term of this Sublease, be permitted to conduct any transaction at the Point of
Sale (POS). Service Desk, or other location determined appropriate by Sublessor,
to include, without limitation, accepting ATM, credit or debit (online or
offline) cards, including offering "cashback', cashing checks, offering
privately branded credit cards, and other financial or investment products and
services that Sublessor, in its sole discretion deems appropriate.
ARTICLE II. ACCEPTANCE OF DEMISED PREMISES; REMODELING
2.1 Acceptance of Demised Premises: By opening for business in the Demised
Premises, Sublessee shall be deemed to have accepted the same "as is" and to
have acknowledged that the same comply fully, with Sublessor's covenants and
obligations hereunder.
2.2 Possession: If this Sublease is executed before the Demised Premises
becomes vacant, or if any present Sublessee or occupant of the Demised Premises
holds over, and Sublessor cannot acquire possession of the Demised Premises
prior to the Targeted Commencement Date, Sublessor shall not be deemed to be in
default hereunder, and Sublessee agrees to accept possession of the Demised
Premises at such time as Sublessor is able to tender the same. Sublessor hereby
waives the payment of Rent covering any period prior to tender of possession of
the Demised Premises to Sublessee hereunder. If Sublessor, in Sublessor's sole
discretion, determines that it will be unable to acquire possession of the
Demised Premises within a reasonable time after the Targeted Commencement Date
by reasonable commercial efforts, short of litigation, Sublessor shall have the
right to terminate this Agreement by written notice to Sublessee. In such event,
this Sublease shall terminate and neither party shall have any further rights,
duties or obligations hereunder.
2.3 Construction of Store: If this Sublease is executed before Sublessor
has commenced construction of the Store and Sublessor does not tender possession
of the Demised Premises to Sublessee for completion of Sublessee's work by the
Targeted Commencement Date, as above defined, Sublessor shall not be deemed to
be in default hereunder, and Sublessee agrees to accept possession of the
Demised Premises at such time as Sublessor tenders the same. Notwithstanding the
foregoing, if Sublessor, in Sublessor's sole discretion (i) determines it will
be unable to deliver possession of the Demised Premises to Sublessee within a
reasonable time after the Targeted Commencement Date, by reason of construction
or regulatory delays or otherwise, or (ii) elects not to construct the Store,
Sublessor shall have the right to terminate this Agreement by written notice to
Sublessee. In such event, this Sublease shall terminate and neither party shall
have any further rights, duties or obligations hereunder.
2.4 Store Renovation: Sublessee recognizes that Sublessor may, from time to
time, wish to remodel, rearrange or enlarge the Store to accommodate changes in
retailing patterns. If the remodeling/rearranging/enlargement involves
relocation of the Demised Premises, Sublessor shall pay an amount equal to the
amount submitted by Sublessee and called "Startup Expenses" which shall be
submitted within thirty (30) days of Commencement Date. The Startup Expenses
will be depreciated in a straight line method over five years. Sublessee shall
pay all costs that Sublessor has not agreed to pay. In no event will Sublessor
be responsible for "loss of business," "lack of trade," or any other claim
resulting out of such renovation. Notwithstanding any relocation of the Demised
Premises required by reason of remodeling of the Store,
the Demised Premises shall always be comparable in configuration and shall
always retain approximately the same overall size to the original Demised
Premises, and shall be located at the front of the Store. Sublessor agrees that
Sublessee may temporarily close the Demised Premises if Sublessee reasonably
determines that its ability to operate is materially impaired due to work
associated with Store construction, remodeling, moving. Rent shall be abated
during periods in which the Demised Premises is closed by reason of work
associated with Store construction, remodeling, moving.
ARTICLE III. RENT
3.1 Address for Payment of Rent: Rent shall be payable to Sublessor in care
of: Wal-Mart Stores, Inc.
Bank of America
Lockbox Area - 4th Floor
XX Xxx 000000
000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
3.2 Time of Payment of Rent: Sublessee shall pay Rent to Sublessor in
monthly installments. The first such monthly installment shall be due and
payable on or before the earlier of (i) the date on which Sublessee first opens
for business in the Demised Premises and (ii) the Commencement Date, and
subsequent installment shall be due and payable on or before the first day of
each succeeding calendar month during the Sublease Term. Rent shall be prorated
on a daily basis for any partial month in the Sublease Term that results from
the Sublease Term beginning on a day other than the first day of a calendar
month or ending on a day other than the last day of a calendar month.
3.3 Electronic Payment: It is understood that the Rent, Key Money,
Sublessor's Construction Payment and all other payments hereunder are payable at
the times stated herein without offset or deduction of any nature. If requested
by Sublessor, all payments shall be made electronically by Fedwire or through an
Automated Clearing House (ACH). In the event any payment is not received within
ten (10) days of the due date, it is agreed that the amount thus due shall bear
interest at the rate of one and one-half percent (11/2 %) per month, such
interest to accrue continuously on any unpaid balance due to Sublessor by
Sublessee during the period commencing with the due date and terminating with
the date on which Sublessee makes full payment of all amounts owing to Sublessor
at the time of said payment. Any such interest shall be payable as additional
Rent hereunder and shall be payable immediately on demand.
3.4 Quarterly Payment of Rent at Sublessor's Option: If Sublessee fails in
two (2) consecutive months to make payments of Rent within ten (10) days after
due, Sublessor, in order to reduce its administrative costs, may require by
giving written notice to Sublessee (and in addition to any interest accruing
pursuant to Section 3.3 above, as well as any other rights and remedies accruing
pursuant to Article XVIII or Article XIX, or any other term, provision or
covenant of this Sublease), that Rent is to be paid quarterly in advance instead
of monthly.
ARTICLE IV. REPORTS AND RECORDS
4.1 Loans and Deposits: Promptly following the end of each calendar quarter
during the term of the Sublease, Sublessee shall deliver to Sublessor
information set forth in Exhibit G concerning loans and deposits for the Demised
Premises. Sublessor acknowledges that such reports contain sensitive and
confidential information and shall use reasonable business efforts to maintain
the confidentiality of the information contained therein, both during and after
the expiration of the Sublease Term.
ARTICLE V. COMMON AREAS
5.1 Common Areas: The term "Common Area" is defined for all purposes of
this Sublease as that part of the Store as well as certain adjoining property
owned or Subleased by Sublessor and intended for the common use of all
Sublessees, including among other facilities (as such may be applicable),
parking area, private streets and alleys, landscaping, curbs, loading area,
floors, doors, side walks, food court, malls and promenades (enclosed or
otherwise), lighting facilities, drinking fountains, meeting rooms, public
toilets and the like but excluding space in buildings (now or hereafter
existing) designed for rental or commercial purposes, as the same may exist from
time to time, and further excluding streets and alleys maintained by a public
authority. Sublessor reserves the right to change from time to time the
dimensions and locations of the Common Area. Sublessee, and its employees and
customers, and when duly authorized
pursuant to the provisions of this Sublease, its subSublessees, licensees and
concessionaires, shall have the nonexclusive right to use the Common Area as
constituted from time to time, such use to be in common with Sublessor, other
Sublessees of the Store and other persons permitted by Sublessor to use the
same, and subject to such reasonable rules and regulations governing use as
Sublessor may from time to time prescribe, including the designation of specific
areas in which automobiles owned by Sublessee, its employees, subSublessees,
licensees and concessionaires shall be parked. Sublessor may temporarily close
any part of the Common Area for such periods of time as may be necessary to make
repairs or alterations to prevent the public from obtaining prescriptive rights.
Sublessor shall be responsible for the operation, management, and maintenance of
the Common Area, the manner of maintenance and the expenditures therefore to be
in the sole discretion of Sublessor.
ARTICLE VI. USE AND CARE OF DEMISED PREMISES
6.1 Operation: The Demised Premises may be used only for the purpose or
purposes specified in Section 1.4, and for no other purposes without the prior
written consent of Sublessor. Sublessee shall not at any time leave the Demised
Premises vacant, but shall in good faith continuously throughout the Sublease
Term operate an FSF in the Demised Premises. Sublessee shall operate its
business in an efficient, high class and reputable manner, and shall, except
during reasonable periods for repairing, cleaning, and decorating, keep the
Demised Premises open to the public for business with adequate personnel in
attendance, for a minimum of fifty (50) hours a week allocated over six (6)
days, two (2) of which shall be Friday and Saturday; provided, however, that
such minimum hours of operation shall be shortened for any week during which a
bank holiday occurs. In addition, Sublessee agrees to provide a level and
quality of services to its customers in the Store that equals or exceeds
Sublessor's standards for the level and quality of services Sublessor provides
to its customers in the Store, and will conduct all business in conjunction With
and abiding by Sublessor's philosophies, culture and standards, subject to sound
banking practices and applicable banking laws, rules and regulations.
6.2 Customer Service Telephone: Sublessee shall provide, at its sole
expense, a customer service "Hot Line" notice including the Sublessee's local or
other toll free number at the Demised Premises. The notice shall be in a
conspicuous location in full view of all customers at all times the Store is
open for business. Letters and numbers are to be a minimum of four inches (4")
in scale with a background color which highlights the color of the characters.
6.3 Increased Risk: Sublessee shall not, without Sublessor's prior written
consent, keep anything within the Demised Premises or use the Demised Premises
for any purpose which increases the insurance premium cost or invalidates any
insurance policy carried on the Demised Premises or the Store or the Common
Area. All property kept, stored or maintained within the Demised Premises by
Sublessee shall be at Sublessee's sole risk.
6.4 Care of Demised Premises: Sublessee shall take good care of the Demised
Premises and keep the same free from waste at all times. Sublessee shall keep
the Demised Premises neat, clean and free from dirt or rubbish at all times.
Receiving and delivery of goods and merchandise and removal of garbage and trash
from the Demised Premises shall be made only in the manner and areas prescribed
by Sublessor. Sublessee shall not operate an incinerator or burn trash or
garbage within the Store or Common Area. Sublessee shall not permit any
objectionable or unpleasant odors to emanate from Demised Premises; nor place or
permit any radio, television, loudspeaker or amplifier on the roof or outside
the Demised Premises or where the same can be seen or heard from outside the
building; nor place any antenna, awning or other projection on the exterior of
the Demised Premises; nor take any other action which would constitute a
nuisance or would disturb or endanger other Sublessees of the Store or
unreasonably interfere with their use of their respective premises; nor do
anything which would tend to injure the reputation of the Store.
6.5 Display Windows: Sublessee shall maintain all display windows in a
neat, attractive condition and shall keep all display windows lighted during all
business hours as defined above.
6.6 Permits: Sublessee shall procure at its sole expense any permits and
licenses required for the transaction of business in the Demised Premises and
shall otherwise comply with all applicable laws, ordinances, and governmental
regulations.
6.7 Sublessee's Employees:
(a) All persons employed by Sublessee in or about, or in connection with,
the operation of the FSF shall be Sublessee's employees for all purposes under
this Agreement. Sublessee's employees and agents and employees of
companies which service the FSF who are not Sublessee employees or agents shall
be granted access to the Store for the purpose of servicing, maintaining, and
otherwise performing services in connection with the FSF. Sublessor agrees to
cooperate with Sublessee in providing access to the Demised Premises during
periods of time the Store may not be open for business.
(b) Employees of Sublessee, while working at the FSF, shall be permitted to
park their automobiles in spaces designated by Sublessor for parking by
Sublessor employees. Sublessee shall furnish to Sublessor upon request a
complete list of license numbers of all automobiles operated by Sublessee, its
employees, subSublessees, licensees or concessionaires, and Sublessee agrees
that if any automobile or other vehicles owned by Sublessee or any of its
employees, subSublessees, licensees or concessionaires shall be parked in any
part of the Common Area other than the specified areas designated for employee
parking while performing services at the Demised Premises, Sublessee shall pay
to Sublessor as additional Rent upon demand an amount equal to the daily rate or
charge for such parking as may be reasonably established by Sublessor from time
to time for each day, or part thereof, such automobile or other vehicle is so
parked. Sublessor may from time to time substitute for any parking area other
areas reasonably accessible to Sublessee, which areas may be elevated, surface
or underground.
6.8 Advertising and Promotion:
(a) Sublessee may advertise the existence and location of the FSF by media
as per manner approved by Sublessor at the on-site operations level, which
approval will not be unreasonably withheld or delayed. Aside from notices of the
existence and location of the FSF, neither Sublessor nor Sublessee will use the
other's name, trademark, servicemark, or logo in any advertising, marketing, or
solicitation materials without the other's consent. In no event will either
party advertise or otherwise represent that it has any relationship with the
other other than the relationship of Sublessor and Sublessee arising out of
Sublessee's occupying space in the Store.
(b) Subject to Sublessor's approval on the on-site operations level, which
will not be unreasonably withheld or delayed, Sublessee may promote its products
and services outside the FSF within the Store itself; provided, however, such
products and services shall be those offered at the FSF and shall not compete
with the grocery products or services offered by Sublessor.
(c) Subject to Sublessor approval on the on-site operations level, which
will not be unreasonably withheld or delayed, Sublessee shall have access to the
intercommunication system ("intercom") within the Store to promote the products
and services offered at the FSF. The use of the intercom shall be coordinated
and approved between the Store Manager and the FSF Manager.
(d) All promotions conducted by Sublessee in the Store shall be conducted
in a professional manner by trained employees of Sublessee or an Affiliate (as
defined in Section 16.2, below) working at the FSF.
(e) Sublessor, as approved at the on-site operations level, shall permit
Sublessee to place signs identifying its operations inside the Store at
locations to be agreed upon by the parties. Sublessee will submit to Sublessor
for its approval, which will not be unreasonably withheld or delayed, a signage
package detailing the appearance and size of all signs to be installed.
6.9 Trade Name: Sublessee hereby acknowledges that Sublessee's business
reputation, intended us of the Demise Premises and ability to generate patronage
to the Demised Premises and the Store were all relied upon by Sublessor and
served as significant and material inducements contributing to Sublessor's
decision to execute this Sublease with Sublessee. Sublessee hereby covenants and
agrees: (i) to operate in the Demised Premises only under the trade name(s) set
forth in the Basic Provisions, and under no other name or trade name whatsoever
without Sublessor's prior written consent, provided (A) such consent by
Sublessor shall not be unreasonably withheld and (B) if Sublessee is acquired
by, or acquires, whether by merger or other means, a bank or bank holding
company having assets equal to fifty percent (50%) or more of the assets of
Sublessee, Sublessee may, upon prior notice to Sublessor, adopt the name or
trade name used by such other bank or bank holding company in its banking
business, provided in either case such name is not obscene and does not contain
the name of any of Sublessor's competitors.
ARTICLE VII. MAINTENANCE AND REPAIR OF DEMISED PREMISES
7.1 Sublessor's Responsibility: Sublessor shall keep the foundation, the
exterior walls, heating, air conditioning and roof (except plate glass; windows,
doors, door closure devices and other exterior openings; window and door frames,
molding, locks and hardware; special storefronts; lighting, plumbing and other
electrical, mechanical and electromotive installations, equipment and fixtures;
signs, placards, decorations or advertising media of any type; and interior
painting or other treatment of exterior walls) of the Demised Premises in good
repair. Sublessor, however, shall not be required to make any repairs occasioned
by the act or negligence of Sublessee or Sublessee's agents, employees,
subSublessees, licensees and concessionaires; and the provisions of the previous
sentence are expressly recognized to be subject to the provisions of Article XIV
(Casualty) and Article XV (Condemnation) of this Sublease. In the event that the
Demised Premises should become in need of repairs required to be made by
Sublessor hereunder, Sublessee shall give prompt written notice thereof to
Sublessor, and Sublessor shall not be responsible in any way for failure to make
any such repairs until a reasonable time shall have elapsed after receipt by
Sublessor of such written notice.
7.2 Sublessee's Responsibility: Sublessee shall keep the Demised Premises
in good, clean and habitable condition and shall at its sole cost and expense
keep the Demised Premises free of insects, rodents, vermin and other pests and
make all needed repairs and replacements, including replacement of cracked or
broken glass, except for repairs and replacements required to be made by
Sublessor under the provisions of Section 7.1, Article XIV (Casualty) and
Article XV (Condemnation). Without limiting the coverage of the previous
sentence, it is understood that Sublessee's responsibilities therein include the
repair and replacement of all of Sublessee's lighting, plumbing and other
electrical, mechanical and electromotive installation, equipment and fixtures
and also include all utility repairs in ducts, conduits, pipes, wiring, and any
sewer located in, under or above the Demised Premises and serving the Demised
Premises. If any repairs required to be made by Sublessee hereunder are not made
within ten (10) days after written notice delivered to Sublessee by Sublessor,
Sublessor may at its option make such repairs without liability to Sublessee for
any loss or damage which may result to its stock or business by reason of such
repairs; and Sublessee shall pay to Sublessor upon demand, as additional Rent
hereunder, the cost of such repairs plus ten percent (10%) thereof as an
administrative fee to Sublessor plus interest at the rate of one and one-half
percent (1 1/2% ) per month, such interest to accrue continuously from the date
of payment by Sublessor until repayment by Sublessee. At the expiration of this
Sublease, Sublessee shall surrender the Demised Premises in good condition,
excepting reasonable wear and tear and losses required to be restored by
Sublessor in Section 7.1, Article XIV and Article XV of this Sublease.
ARTICLE VIII. ALTERATIONS
8.1 Improvements by Sublessee: Sublessee shall not make any alterations,
additions or improvements (collectively, "Improvements") to the Demised Premises
without the prior written consent of Sublessor, which consent will not be
unreasonably withheld or delayed, except for the installation of unattached,
movable trade fixtures ("Fixtures") which may be installed without drilling,
cutting or otherwise defacing the premises.
8.2 Removal of Improvements and Fixtures: Sublessee shall have the right to
remove the FSF and all other Improvements and Fixtures which Sublessee makes or
installs upon the Demised Premises, provided Sublessee completes such removal
within thirty (30) days of termination of the Sublease. All Improvements and
Fixtures which may be made or installed upon the Demised Premises that are not
removed by Sublessee within thirty (30) days of termination of this Sublease
shall remain upon and be surrendered with the Demised Premises and become the
property of Sublessor at the termination of this Sublease, unless Sublessor
requests their removal in which event Sublessee shall remove the same and
restore the Demised Premises to their original condition, subject to reasonable
wear and tear, at Sublessee's expense. Sublessee shall repair any damage to the
Store caused by removal of Sublessee's Improvements and Fixtures.
8.3 All construction work done by Sublessee within the Demised Premises
shall be performed in a good and workmanlike manner, in compliance with all
governmental requirements, and in such manner as to cause a minimum of
interference with other construction in progress and with the transaction of
business in the Store. Sublessee agrees to indemnify Sublessor and hold
Sublessor harmless against any loss, liability or damage resulting from such
work and Sublessee shall, if requested by Sublessor, furnish a bond or other
security satisfactory to Sublessor against any such loss, liability or damage.
ARTICLE IX. SUBLESSOR'S RIGHT OF ACCESS: USE OF ROOF
9.1 Sublessor's Right of Access: Sublessor shall have the right to enter
upon the Demised Premises at any time upon reasonable notice to Sublessee
(except for emergencies) and subject to Sublessee's security requirements, for
the purpose of inspecting the same or of making repairs, alterations or
additions to adjacent premises, or of showing the
Demised Premises to prospective purchasers, lessees or lenders. Sublessor shall
endeavor to minimize interference with Sublessee's business.
9.2 "For Rent" Signs: Sublessee will permit Sublessor to place and maintain
"For Rent" or "For Sublease" signs on the Demised Premises during the last
ninety (90) days of the Sublease Term, it being understood that such signs shall
in no way affect Sublessee's obligations pursuant to any provision of this
Sublease.
9.3 Use of Roof: Use of the roof above the Demised Premises is reserved to
Sublessor.
ARTICLE X. SIGNS: STOREFRONTS
10.1 Signs; Storefronts: Sublessee shall not, without Sublessor's prior
written consent: (a) make any changes to the storefront or (b) install any
exterior lighting, decorations, paintings, awnings, canopies or the like or (c)
erect or install any signs, window or door lettering placards, decorations or
advertising media of any type which can be viewed from the exterior of the
Demised Premises. All signs, lettering, placards, decorations and advertising
media shall conform in all respects to the sign criteria established by
Sublessor from time to time in the exercise of its sole discretion, and shall be
subject to the prior written approval of Sublessor as to construction, method of
attachment, size, shape, height, lighting, color and general appearance,
pursuant to the procedures outlined on Exhibit "D," attached hereto. All signs
shall be kept in good condition and in proper operating order at all times at
Sublessee's expense. Subject to the foregoing restrictions, Sublessee agrees to
install and maintain a first-class sign on the front of the Demised Premises
during the Sublease Term.
ARTICLE XI. UTILITIES
11.1 Utility Charge: Sublessor shall pay all charges for electricity,
water, gas, and sewerage service furnished to the Demised Premises. Sublessee
shall pay for telephone service and other utility services.
11.2 Interruption of Utilities: Sublessor shall not be liable for any
interruption whatsoever in utility services not furnished by Sublessor nor for
interruptions in utility services furnished by Sublessor which are due to fire,
accident, strike, acts of God or other causes beyond the control of Sublessor or
in order to make alterations, repairs or improvements. Sublessor shall provide
reasonable heating, cooling and lighting to the building in which the Demised
Premises are located and the Common Areas at all times during which the Store is
open for business.
ARTICLE XII. INDEMNITY AND PUBLIC LIABILITY INSURANCE
12.1 Injury and Damage: Sublessor shall not be liable to Sublessee or to
Sublessee's employees, agents, or visitors, or to any other person whomsoever,
for any injury to person or damage to property on or about the Demised Premises
or the Common Area caused by the negligence or misconduct of Sublessee, its
employees, subSublessees, licensees or concessionaires, or of any other person
entering the Store under express or implied invitation of Sublessee, or arising
out of the use of the Demised Premises by Sublessee and the conduct of its
business therein, or arising out of any breach or default by Sublessee in the
performance of its obligations hereunder; and Sublessee hereby agrees to defend,
indemnify and hold Sublessor harmless from any loss, expense, including
reasonable attorney expenses, or claims arising out of such damage or injury.
12.2 Liability Insurance: Sublessee shall procure and maintain throughout
the Sublease Term a policy or policies of insurance, at its sole cost and
expense, insuring both Sublessor and Sublessee against all claims, demands or
actions arising out of or in connection with Sublessee's use or occupancy of the
Demised Premises, the limits of such policy or policies to be in an amount not
less than $1,000,000.00 per occurrence in respect of injuries to or death of any
one person, and in an amount not less than $5,000,000.00 in respect of any one
accident or disaster, and in an amount not less than $1,000,000.00 per
occurrence in respect of property damaged or destroyed, and to be written by
insurance companies satisfactory to Sublessor. Sublessee shall obtain a written
obligation on the part of each insurance company to notify Sublessor at least
thirty (30) days prior to cancellation of such insurance. Such policies or duly
executed certificates of insurance and renewals thereof as required shall be
delivered to Sublessor at least thirty (30) days prior to cancellation or the
expiration of the respective policy terms of such insurance. If Sublessee should
fail to comply with the foregoing requirements relating to insurance, Sublessor
may obtain such insurance and Sublessee shall pay to Sublessor on demand as
additional Rent hereunder the premium cost thereof plus ten percent (10%) as an
administrative fee to
Sublessor plus interest at the rate of one and one-half percent (1 1/2%) per
month from the date of payment by Sublessor until repaid by Sublessee.
12.3 Workers' Compensation Insurance: Sublessee agrees to maintain and keep
in force, during the Sublease Term, all workers' compensation insurance required
under applicable Workers' Compensation Acts and employer Liability in the limits
of $1000,000. Per occurrence with a waiver of subrogation where permitted by
law.
ARTICLE XIII. NON-LIABILITY FOR CERTAIN DAMAGES
13.1 Defects, etc.:
(a) Sublessor and Sublessor's agents and employees shall not be liable to
Sublessee for any injury to person or damage to property caused by the Demised
Premises becoming out of repair, or by defect or failure of any structural
element of the Demised Premises or of any equipment, pipes or wiring, or broken
glass installed by Sublessee in the Demised Premises, or by the backing up of
drains constructed by Sublessee, or by gas, water, steam, electricity or oil
leaking, escaping or flowing from equipment, pipes or wiring installed by
Sublessee into the Demised Premises, nor shall Sublessor be liable to Sublessee
for any loss or damage that may be occasioned by or through the acts or
omissions of other Sublessees of the Store or of any other persons whomsoever,
excepting only duly authorized employees and agents of Sublessor.
(b) Sublessee and its agent and employees shall not be liable to Sublessor
for any injury to person or damage to property caused by the Demised Premises or
other portions of the Store becoming out of repair or by defect or failure of
any structural element of the Demised Premises or of any equipment, pipes or
wiring, or broken glass, or by the backing up of drains, or by gas, water,
steam, electricity or oil leaking, escaping or flowing out of the Demised
Premises, nor shall Sublessee be liable to Sublessor for any losses or damage
that may be occasioned by or through the acts or omissions of other Sublessees
of the Store or of any other persons whomsoever, excepting only duly authorized
employees and agents of Sublesee.
13.2 Mutual Waiver of Subrogation: Sublessor and Sublessee each hereby
release the other from any and all liability or responsibility to the other or
to any other party claiming through or under them by way of subrogation or
otherwise, for any loss or damage to property caused by a casualty which is
customarily insured under standard fire and extended coverage insurance;
provided, however, that this mutual waiver shall be applicable only with respect
to a loss or damage occurring during the time when standard fire and extended
coverage insurance policies contain a clause or endorsement to the effect that
any such Sublease shall not adversely affect or impair the policy or the right
of the insured party to receive proceeds under the policy.
ARTICLE XIV. CASUALTY
14.1 Notice to Sublessor: Sublessee shall give prompt written notice to
Sublessor of any damage caused to the Demised Premises by fire or other
casualty.
14.2 Sublessor's Repair of Casualty Damage: In the event that the Store
shall be damaged or destroyed by fire or other casualty, then Sublessor may
elect either to terminate this Sublease or to proceed to rebuild and repair the
Store. Sublessor shall give written notice to Sublessee of such election within
sixty (60) days after the occurrence of such casualty, and if Sublessor elects
to rebuild and repair, shall proceed to do so with reasonable diligence and at
its sole cost and expense. As it relates to the Demised Premises, Sublessor's
work under this Article XIV shall be limited to restoring the Demised Premises
to substantially the condition in which the same existed prior to such casualty,
exclusive of any alterations, additions, improvements, fixtures and equipment
installed by Sublessee to substantially the same condition in which the same
existed prior to the casualty.
14.3 Sublessee's Repair of Casualty Damage: Sublessee agrees that promptly
after completion of such work by Sublessor, Sublessee will proceed with
reasonable diligence and at Sublessee's sole cost and expense to restore, repair
and replace all alterations, additions, improvements, fixtures, signs and
equipment installed by Sublessee.
14.4 Operation of FSF After Casualty: Sublessee agrees that during any
period of reconstruction or repair of the Demised Premises, it will continue the
operation of its business within the Demised Premises to the extent practicable.
During the period from the occurrence of the casualty until Sublessee's repairs
are completed, the Rent shall be reduced to such extent as may be fair and
reasonable under the circumstances.
14.5 Property Insurance: Sublessee will secure at Sublessee's sole cost
Property Insurance Coverage normally covered in a Fire and Extended Coverage
Policy for Sublessee's Fixtures and Improvements.
ARTICLE XV. CONDEMNATION
15.1 Condemnation: If such portion of the Store (including the Common Area)
shall be taken for any public or quasi-public use under any governmental law,
ordinance or regulation or by right of Eminent Domain or by private exercise in
lieu thereof that, in the sole opinion of Sublessor, the continued operation of
the Store is undesirable, Sublessor may elect to terminate this Sublease, such
termination to be effective as of the date Sublessor ceases to operate the
Store. All compensation awarded for any taking (or the proceeds of private sale
in lieu thereof) of the Demised Premises or Common Area shall be the property of
Sublessor, and Sublessee hereby assigns its interest in any such award to
Sublessor; provided, however, Sublessor shall have no interest in any award made
to Sublessee for Sublessee's moving and relocation expenses or for the loss of
Sublessee's fixtures and other tangible personal property if a separate award
for such items is made to Sublessee.
ARTICLE XVI. ASSIGNMENT AND SUBLETTING
16.1 Sublessor's Consent: Sublessee shall not, without the prior written
consent of Sublessor (i) assign, mortgage, pledge, hypothecate, encumber, or
permit any lien to attach to, or otherwise transfer, this Sublease or any
interest hereunder, (ii) permit any assignment or other such foregoing transfer
of this Sublease or any interest hereunder by operation of law, (iii) sublet the
Demised Premises or any part thereof, or (iv) permit the use of the Demised
Premises by any persons other than Sublessee, its employees and its invitees
(each of the foregoing actions for which Sublessor's consent is required is
hereinafter sometimes referred to as a "Transfer" and any person to whom any
Transfer is made or sought to be made is hereinafter sometimes referred to as a
"Transferee"). If Sublessee shall desire Sublessor's consent to any Transfer,
Sublessee shall notify Sublessor in writing, which notice shall include: (a) the
proposed effective date (which shall not be less than forty-five (45) days nor
more than one hundred eighty (180) days after the Sublessee's notice), (b) all
of the terms of the proposed Transfer and the consideration therefor, the name
and address of the proposed Transferee, and a copy of all documentation
pertaining to the proposed Transfer, and (c) current audited financial
statements of the proposed Transferee, and any other information necessary to
enable Sublessor to determine the financial responsibility, character, and
reputation of the proposed Transferee, and (d) such other information as
Sublessor may reasonably require. Sublessor's consent to any Transfer shall not
be unreasonably withheld, but any Transfer made without Sublessor's prior
written consent shall, at Sublessor's option, be null, void, and of no effect,
and any acceptance of Rent by Sublessor from any purported Transferee shall not
be deemed a consent to a Transfer or a waiver of any of Sublessor's rights or
remedies hereunder.
16.2 Permitted Transfers: "Transferee" as used herein shall not include a
subsidiary, affiliate, division or corporation controlled by, controlling or
under common control with Sublessee (each of which shall be an "Affiliate" for
purposes of the Sublease), provided that the Affiliate is a federal or state-
chartered financial institution whose deposits are insured by the Federal
Deposit Insurance Corporation, and that the Affiliate will continue to operate a
full-service FSF in the Demised Premises. Sublessor shall be deemed to consent
to a Transfer to such an Affiliate and no prior consent shall be required
thereto, provided that Sublessee shall give prior written notice thereof to
Sublessor for informational purposes only. Moreover, a merger or consolidation
in which Sublessee is the surviving entity or in which the shareholders of
Sublessee maintain control of the surviving entity shall not be deemed a
Transfer.
16.3 Corporate Consolidation: For purposes of this Sublease, the term
"Transfer" shall also include the dissolution or the merger or consolidation of
Sublessee (other than with an Affiliate), or within a twelve (12) month period:
(i) the sale or other transfer of more than an aggregate of fifty percent (50%)
of the voting shares of Sublessee (other than, in the case of a closely held
corporation, to immediate family members by reason of gift or death), or (ii)
the sale, mortgage, hypothecation or pledge of more than an aggregate of fifty
percent (50%) of the value of the unencumbered assets (as of the date hereof) of
Sublessee.
16.4 Transfer Premium: If Sublessor consents to a Transfer, and as a
condition thereto which the parties hereby agree is reasonable, Sublessee shall
pay Sublessor fifty percent (50%) of any Transfer Premium received by Sublessee
in connection with such Transfer. "Transfer Premium" shall mean all Rent,
additional Rent or other consideration payable by
such Transferee in any monthly period in excess of the Rent payable by Sublessee
under this Sublease (on a monthly basis during the Term). If part of the
consideration for such Transfer shall be payable other than in cash, Sublessor's
share of such non-cash consideration shall be in such form as is reasonably
satisfactory to Sublessor. Such percentage of the Transfer Premium shall be paid
promptly by Sublessee upon Sublessee's receipt from time to time of periodic
payments from such Transferee or at such other time as Sublessee shall realize a
Transfer Premium. In lieu of accepting such percentage of the Transfer Premium,
Sublessor may elect in writing within ninety (90) days after Sublessee's notice,
to increase the Rent hereunder during the Term of the Transfer by an amount
equal to Sublessor's share of the monthly amount of such Transfer Premium. The
provisions of this Subparagraph 16.4 shall not apply to a Transfer to an
Affiliate and shall not apply to payments made by a Transferee for (i)
Sublessee's customer deposits, loans and related assets; or (ii) the FSF or
Sublessee's furniture, fixtures and equipment contained therein.
16.5 Effect of Sublessor Consent: If Sublessor consents or is deemed to
consent to a Transfer: (a) the terms and conditions of this Sublease, including
among other things, Sublessee's (which term, for purposes hereof, shall mean the
transferring Sublessee and any predecessor) liability for the Demised Premises
(including, without limitation, Rent and other sums due with respect thereto),
shall in no way be deemed to have been waived or modified so that
notwithstanding such Transfer, the Sublessee, its predecessors and the
Transferee shall be jointly and severally liable with respect to the Demised
Premises, (b) such consent shall not be deemed consent to any further Transfer
by either Sublessee or a Transferee, (c) as a condition thereto Sublessee shall
first deliver to Sublessor an original executed copy of all documentation
pertaining to the Transfer, including but not limited to an assumption agreement
by the Transferee, in form reasonably acceptable to Sublessor, and (d) Sublessee
shall furnish upon Sublessor's request a complete statement, certified by an
independent certified public accountant, or Sublessee's chief financial officer,
setting forth in detail the computation of any Transfer Premium Sublessee has
derived and shall derive from such Transfer. Sublessor or its authorized
representatives shall have the right at all reasonable times to audit the books,
records and papers of Sublessee relating to any Transfer Premium, and shall have
the right to make copies thereof. If the Transfer Premium respecting any
Transfer shall be found understated, Sublessee shall within thirty (30) days
after demand pay the deficiency, and Sublessor's costs of such audit, and if
understated by more than five percent (5%), Sublessor shall have the right to
cancel this Sublease upon thirty (30) days notice. Any subSublease hereunder
shall be subordinate and subject to the provisions of this Sublease, and if this
Sublease shall be terminated during the term of any subSublease, Sublessor shall
have the right to (i) treat such subSublease as canceled and repossess the
Demised Premises by any lawful means or (ii) require that such subSublessee
attorn to and recognize Sublessor as its Sublessor under such subSublease.
16.6 Sublessor's Sublease (if any): If this Sublease is in fact a
subSublease, Sublessee accepts this Sublease subject to all of the terms and
conditions of the underlying Sublease under which Sublessor holds the Store as
lessee. Sublessee covenants that it will do no act or thing which would
constitute a violation by Sublessor of his obligation under such underlying
Sublease; provided, however, that Sublessee's agreement in this regard is
premised on Sublessor's assurances to the effect that the terms of this Sublease
do not violate such underlying Sublease.
16.7 Transfer by Sublessor: In the event of the Transfer by Sublessor of
its interest in this Sublease to a Transferee expressly assuming Sublessor's
obligation under this Sublease, Sublessor shall thereby be released from any
further obligations hereunder, and Sublessee agrees to look solely to such
Transferee of Sublessor for performance of such obligations. Any security given
by Sublessee to secure performance of Sublessee's obligations hereunder may be
assigned and transferred by Sublessor to such Transferee, and Sublessor shall
thereby be discharged of any further obligation relating thereto.
ARTICLE XVII. TAXES
17.1 Sublessee's Responsibility for Taxes: Sublessee shall be liable for
all taxes levied against personal property and trade fixtures placed by
Sublessee in the Demised Premises. If any such taxes are levied against
Sublessor or Sublessor's property, and if Sublessor elects to pay the same or if
the assessed value of Sublessor's property is increased by inclusion of personal
property and trade fixtures placed by Sublessee in the Demised Premises, and
Sublessor elects to pay the taxes based on such increase, Sublessee shall pay to
Sublessor upon demand that part of such taxes for which Sublessee is primarily
liable hereunder.
17.2 Sublessor's Responsibility for Taxes: Except as provided in Section
17.1, Sublessor shall pay or cause to be paid all general real estate taxes,
general and special assessments, parking surcharges and other governmental
charges (hereinafter collectively referred to as the "General Taxes") levied
against the Store and the Common Area for each real estate tax year.
17.3 Rent Taxes, etc.: If at any time during the Sublease Term, a tax or
excise on rents or other tax however described (except any franchise, estate,
inheritance, capital stock, income or excess profits tax imposed upon Sublessor)
is levied or assessed against Sublessor by any lawful taxing authority on
account of Sublessor's interest in this Sublease or the Rent or other charges
reserved hereunder, as a substitute in whole or in part, or in addition to the
General Taxes described in Section 17.2 above, Sublessee agrees to pay to
Sublessor upon demand, and in addition to the Rent and other charges prescribed
in this Sublease, the amount of such tax or excise. In the event any such tax or
excise is levied or assessed directly against Sublessee, then Sublessee shall be
responsible for and shall pay the same at such times and in such manner as the
taxing authority shall require.
ARTICLE XVIII. DEFAULT BY SUBLESSEE AND REMEDIES
18.1 Events of Default: The following shall be events of default by
Sublessee under this Sublease:
(a) Sublessee shall fail to pay any installment of Rent or any other
regularly scheduled monetary obligations hereunder involving the payment of
money and such failure shall continue for a period of ten (10) days after
written notice to Sublessee (or if notice of non-payment shall have been given
to Sublessee within the same calendar year, such failure shall continue, whether
or not Sublessor gives Sublessee notice, for a period of ten (10) days).
(b) Sublessee shall fail to comply with any term, provision or covenant of
this Sublease other than as described in subsection (a) above and shall not cure
such failure within thirty (30) days after written notice thereof to Sublessee,
or, as to matters which cannot be remedied within thirty (30) days if Sublessee
fails to commence efforts to remedy such default within such thirty (30) day
period and thereafter diligently prosecute such efforts so that such default is
cured within a reasonable time, not to exceed ninety (90) days from Sublessee's
receipt of such notice.
(C) Sublessee or any guarantor of Sublessee's obligations under this
Sublease shall become insolvent, or shall make a transfer in fraud of creditors,
or shall make an assignment for the benefit of creditors.
(d) Sublessee or any guarantor of Sublessee's obligations under this
Sublease shall file a petition under any section or chapter of the National
Bankruptcy Act, as amended, or under any similar law or statute of the United
States or any State thereof, or Sublessee or any guarantor of Sublessee's
obligations under this Sublease shall be adjudged bankrupt or insolvent in
proceedings filed against Sublessee or any guarantor of Sublessee's obligations
under this Sublease thereunder.
(e) A receiver or trustee shall be appointed for the Demised Premises or
for all or substantially all of the assets of Sublessee or any guarantor of
Sublessee's obligations under this Sublease.
(f) Sublessee shall desert or vacate or shall commence to desert or vacate
the Demised Premises or any substantial portion of the Demised Premises prior to
termination of this Sublease.
(g) Sublessee shall do or permit to be done anything which creates a lien
upon the Demised Premises.
18.2 Sublessor's Remedies: Upon the occurrence of any such events of
default, Sublessor shall have the option to pursue either of the following
alternative remedies:
(a) Without any notice or demand whatsoever, Sublessor may take any one or
more of the actions permissible at law to insure performance by Sublessee of
Sublessee's covenants and obligations under this Sublease. In this regard, it is
agreed that if Sublessee deserts or vacates the Demised Premises, Sublessor may
enter upon and take possession of the Demised Premises in order to protect them
from deterioration and continue to demand from Sublessee the monthly rentals and
other charges provided in this Sublease, without any obligation to relet; but
that if Sublessor does, at its sole discretion, elect to relet the Demised
Premises, such action by Sublessor shall not be deemed as an acceptance of
Sublessee's surrender of the Demised Premises unless Sublessor expressly
notifies Sublessee of such acceptance in writing pursuant to Subsection (b) of
Section 18.2 Sublessee hereby acknowledges that Sublessor shall otherwise be
reletting as Sublessee's agent and Sublessee furthermore hereby agrees to pay to
Sublessor on demand any deficiency that may arise between the monthly rentals
and other charges provided in this Sublease and that actually collected by
Sublessor. It is further agreed in this regard that in the event of any default
described in Subsection (b) of Section 18.1, Sublessor shall have the right to
enter upon the Demised Premises without being liable for prosecution of any
claim for damages therefor, and do whatever Sublessee is obligated to do under
the terms of this Sublease; and Sublessee agrees
to reimburse Sublessor on demand for any expenses which Sublessor may incur in
thus effecting compliance with Sublessee's obligations under this Sublease; and
Sublessee further agrees that Sublessor shall not be liable for any damages
resulting to Sublessee from such action.
(b) Sublessor may terminate this Sublease by written notice to Sublessee,
in which event Sublessee shall immediately surrender the Demised Premises to
Sublessor, and if Sublessee fails to do so, Sublessor may, without prejudice to
any other remedy which Sublessor may have for possession or arrearages in Rent
(including any interest which may have accrued pursuant to Article III of this
Sublease), enter upon and take possession of the Demised Premises and expel or
remove Sublessee and any other person who may be occupying said premises or any
part thereof, without being liable for prosecution or any claim for damages
therefor. Sublessor agrees to provide ten (10) days written notice and Sublessee
has ten (10) days to correct, modify and make whole any obligation. '-Sublessee
hereby waives any statutory requirement of prior written notice for filing
eviction or damage suits for nonpayment of Rent. In addition, Sublessee agrees
to pay to Sublessor on demand the amount of all loss and damage which Sublessor
may suffer by reason of any termination effected pursuant to this Subsection
18.2(b), said loss and damage to be determined by either of the following
alternative measures of damage.
(c) Until Sublessor is able, through reasonable efforts, the nature of
which efforts shall be at the sole discretion of Sublessor, to relet the Demised
Premises, Sublessee shall pay to Sublessor on or before the first day of each
calendar month, the Rent and other charges provided in this Sublease. After the
Demised Premises have been relet by Sublessor, Sublessee shall pay to Sublessor
on the twentieth day of each calendar month the difference between the Rent and
other charges provided in this Sublease for the preceding calendar month and
that actually collected by Sublessor for such month. If it is necessary for
Sublessor to bring suit in order to collect a deficiency, Sublessor shall have a
right to allow such deficiencies to accumulate and to bring an action on several
or all of the accrued deficiencies at one time. Any such suit shall not
prejudice in any way the right of Sublessor to bring a similar action for any
subsequent deficiency or deficiencies. Any amount collected by Sublessor from
subsequent Sublessees for any calendar month, in excess of the Rent and other
charges provided in this Sublease, shall be credited to Sublessee in reduction
of Sublessee's liability for any calendar month for which the amount collected
by Sublessor will be less than the Rent and other charges provided in this
Sublease; but Sublessee shall have no right to such excess other than the above
described credit.
(d) When Sublessor desires, Sublessor may demand a final settlement. Upon
demand for a final settlement, Sublessor shall have a right to, and Sublessee
hereby agrees to pay, the difference between the total of all Rent and other
charges provided in this Sublease for the remainder of the term and the
reasonable rental value of the Demised Premises for such period, such difference
to be discounted to present value at the rate of eight percent (8%) per annum).
(e) If Sublessor elects, under any of the provisions for remedies of
default set forth in Section 18.2 herein, payments of future installments of
Rent shall be accelerated, Sublessee shall pay to Sublessor a sum equal to the
entire amount of the Rent for the remainder of the Sublease term, plus any other
sums due the Sublessor under this lease.
(f) If Sublessor elects to compute damages in the manner prescribed by
Subsection (c) above, this election shall in no way prejudice Sublessor's right
at any time thereafter to demand a final settlement in accordance with
Subsection (d) above. Pursuit of any of the above remedies shall not preclude
pursuit of any other remedies prescribed in other sections of this Sublease and
any other remedies provided by law. Forbearance by Sublessor to enforce one or
more of the remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of such default.
18.3 Sublessor's Expenses: It is further agreed that, in addition to
payments required pursuant to Subsections 18.2(a) and 18.2(b), Sublessee shall
compensate Sublessor for all expenses incurred by Sublessor in repossession
(including among other expenses, any increase in Insurance Premiums caused by
the vacancy of the Demised Premises), all expenses incurred by Sublessor in
reletting (including among other expenses, repairs, remodeling, replacements,
advertisements and brokerage fees), all concessions granted to a new Sublessee
upon reletting (including among other concessions, renewal options), all losses
incurred by Sublessor as a direct or indirect result of Sublessee's default
(including among other losses, any adverse reaction by Sublessor's mortgagee or
by other Sublessees or potential Sublessees of the Store), and a reasonable
allowance for Sublessor's administrative efforts, salaries and overhead
attributable directly or indirectly to Sublessee's default and Sublessor's
pursuing the rights and remedies provided herein and under applicable law. In no
event shall Sublessee be obligated to make payments by reason of a default in an
amount exceeding the total Rent in this Sublease for the remainder of the
Sublease Term.
18.4 Injunction: Sublessor may restrain or enjoin any breach or threatened
breach of any covenant, duty or obligation of Sublessee herein contained without
the necessity of proving the inadequacy of any legal remedy or irreparable harm.
The remedies of Sublessor hereunder shall be deemed cumulative and not exclusive
of each other.
18.5 Attorney's Fees: Sublessor and Sublessee agree that if either party
brings an action against the other party to enforce the terms hereof or to
declare rights hereunder each party shall pay their own attorney's fees and
costs incurred therein except as otherwise provided herein.
18.6 Sublessee's Insolvency: Notwithstanding any other provision of this
Sublease, in the event the Sublessee or its successors or assignee shall become
insolvent, bankrupt, or make an assignment for the benefit of creditors, or if
it or their interest hereunder shall be levied upon or sold under execution or
other legal process, or in the event the FSF to be operated on the Demised
Premises is closed, or is taken over by a bank supervisory authority, the
Sublessor may terminate this Sublease only with the concurrence of such bank
supervisory authority, and any such authority shall in any event have the
election to either continue or terminate this Sublease, provided, that in the
event this Sublease is terminated, the maximum claim of Sublessor against such
bank supervisory authority for damages or indemnity for injury resulting from
the rejection or abandonment of the unexpired Sublease shall in no event be in
an amount exceeding the Rent reserved by this Sublease, without acceleration,
for the year next succeeding the date of the surrender of the Demised Premises
to the Sublessor, or the date of re-entry of the Sublessor, whichever first
occurs, whether before or after the closing of the FSF, plus an amount equal to
the unpaid Rent accrued without acceleration up to such date. This paragraph
shall limit the liability of the FDIC but not affect Sublessor's other rights or
remedies under law.
ARTICLE XIX. SUBLESSOR'S CONTRACTUAL SECURITY INTEREST
19.1 Sublessor's Security Interest: In addition to the statutory
Sublessor's Lien, Sublessor shall have at all times a valid security interest to
secure payment of Rent and other sums of money becoming due hereunder from
Sublessee and to secure payment of any damages or losses which Sublessor may
suffer by reason of the breach by Sublessee of any covenant, agreement or
condition contained herein, upon all goods, wares, equipment, fixtures,
furniture, improvements and other tangible personal property of Sublessee
presently, or which may hereafter be, situated on the Demised Premises, and all
proceeds therefrom, and such property shall not be removed without the consent
of Sublessor until all arrearages in Rent as well as any and all other sums of
money then due to Sublessor or to become due to Sublessor hereunder shall first
have been paid and discharged and all the covenants, agreements and conditions
hereof have been fully complied with and performed by Sublessee. Upon the
occurrence of an event of default by Sublessee, Sublessor may, in addition to
any other remedies provided, enter upon the Demised Premises and take possession
of any and all goods, wares, equipment, fixtures, furniture, improvements and
other tangible personal property of Sublessee situated on the Demised Premises,
without liability for trespass or conversion, and sell the same at public or
private sale, with or without having such property at the sale, after giving
Sublessee reasonable notice of the time and place of any public sale or of the
time after which any private sale is to be made, at which sale Sublessor or its
assigns may purchase unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other manner of giving
Sublessee reasonable notice, the requirement of reasonable notice shall be met
if such notice is given in the manner prescribed in this Sublease at least seven
(7) days before the time of sale. Any sale made pursuant to the provision of
this paragraph shall be deemed to have been a public sale conducted in a
commercially reasonable manner if held in the above-described premises or where
the property is located after the time, and place and method of sale and a
general description of the types of property to be sold have been advertised in
a daily newspaper published in the county in which the property is located for
five (5) consecutive days before the date of the sale. The proceeds from any
such disposition, less any and all expenses connected with the taking of
possession, holding and selling of the property (including reasonable attorney's
fees and legal expenses), shall be applied as a credit against the indebtedness
secured by the security interest granted in this paragraph. Any surplus shall be
paid to Sublessee or as otherwise required by law; Sublessee shall pay any
deficiencies forthwith. Upon request by Sublessor, Sublessee agrees to execute
and deliver to Sublessor a financing statement in form sufficient to perfect the
security interest of Sublessor in the aforementioned property and proceeds
thereof under the provision of the Uniform Commercial Code (or corresponding
state statute or statutes) in force in the state in which the property is
located, as well as any other state the laws of which Sublessor may at any time
consider to be applicable.
19.2 Subordination of Sublessor's Security Interest: Notwithstanding
Section 19.1, (i) Sublessor agrees that it will subordinate its security
interest and Sublessor's Lien to the security interest of Sublessee's supplier
or institutional financial source, provided that Sublessor approves the
transaction as being reasonably necessary for Sublessee's operations at the
Demised Premises, and further provided that the subordination must be limited to
a specified transaction
and specified items of the fixtures, equipment or inventory involved in the
transaction. and (ii) Sublessor agrees that its lien shall be limited to
Sublessee's equipment, fixture, furniture, improvements and other personal
property of Sublessee situated on the Demised Premises and shall not apply to
banking records, money, accounts, deposits or any property of Sublessee's
customers.
ARTICLE XX. HOLDING OVER
20.1 Holdover Status: In the event Sublessee remains in possession of the
Demised Premises after the expiration of this Sublease and without the execution
of a new Sublease, it shall be deemed to be occupying the Demised Premises as a
Sublessee from month to month at a monthly rental rate equal to the current Rent
plus other charges herein provided plus fifty percent (50%) of such amount and
otherwise subject to all the conditions, provisions and obligations of this
Sublease insofar as the same are applicable to a month to month tenancy.
Notwithstanding the foregoing, if Sublessor and Sublessee are engaged in good
faith negotiations to extend the term of the Sublease or to enter into a new
Sublease, Sublessee shall be permitted to continue paying monthly rental at a
rate equal to the current Rent, without the fifty percent (50%) additional
charge, while such negotiations continue; provided, however, that in the event
Sublessor and Sublessee do not extend the term of this Sublease or enter into a
new Sublease within three (3) months after termination of this Sublease,
Sublessor may, at any time, require Sublessee to commence paying Rent plus fifty
percent (50%) of such amount as set forth in this Section 20.1.
ARTICLE XXI. SUBORDINATION AND ATTORNMENT
21.1 Mortgages, etc.: Sublessee accepts this Sublease subject and
subordinate to any mortgage, deed of trust or other lien presently existing or
hereafter placed upon the Demised Premises or the Store and Common Area as a
whole and to any renewals and extensions thereof. Sublessee agrees that any such
mortgagee shall have the right at any time to subordinate such mortgage, deed of
trust or other lien to this Sublease; provided, however, notwithstanding that
this Sublease may be (or made to be) superior to mortgage, deed of trust or
other lien, the provisions of mortgage, deed of trust or other lien relative to
the rights of the mortgagee with respect to proceeds arising from an eminent
domain taking (including a voluntary conveyance by Sublessor) and/or arising
from insurance payable by reason of damage to or destruction of the Demised
Premises shall be prior and superior to any contrary provisions contained in
this instrument with respect to the payment or usage thereof. Sublessor is
hereby irrevocably vested with full power and authority to subordinate this
Sublease to any mortgage, deed of trust or other lien hereafter placed upon the
Demised Premises or the Store and Common Area as a whole, and Sublessee agrees
upon demand to execute such further instruments subordinating this Sublease as
Sublessor may request; provided, however, that upon Sublessee's written request
and notice to Sublessor, Sublessor shall use good faith efforts to obtain from
any such mortgagee a written agreement that the rights of Sublessee shall remain
in full force and effect during the Sublease Term as long as Sublessee shall
continue to recognize and perform all of the covenants and conditions of this
Sublease.
21.2 Notice to Mortgagee: At any time when the holder of an outstanding
mortgage, deed of trust or other lien covering Sublessor's interest in the
Demised Premises has given Sublessee written notice of its interest in this
Sublease, Sublessee may not exercise any remedies for default by Sublessor
hereunder unless and until the holder of the indebtedness secured by such
mortgage, deed of trust or other lien shall have received written notice of such
default and a reasonable time for curing such default shall thereafter have
elapsed.
21.3 Estoppel Certificates: Sublessee agrees that it will from time to time
upon request by Sublessor execute and deliver to Sublessor a written statement
addressed to Sublessor (or to a party designated by Sublessor), which statement
shall identify Sublessee and this Sublease, shall certify that this Sublease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as so modified), shall confirm that
Sublessor is not in default as to any obligations of Sublessor under this
Sublease (or if Sublessor is in default, specifying any default), shall confirm
Sublessee's agreements contained above in this Article XXI, shall confirm the
Commencement and Termination Dates of this Sublease, and shall contain such
other information or confirmations as Sublessor may reasonably require.
Sublessor is hereby irrevocably appointed and authorized as the agent and
attorney-in-fact of Sublessee to execute and deliver any such written statement
on Sublessee's behalf if Sublessee fails to do so within seven (7) days after
the delivery of a written request from Sublessor to Sublessee. Sublessor may
treat such failure as an event of default.
21.4 Attornment: Sublessee shall attorn to and be bound to any of
Sublessor's successors under all the terms, covenants and conditions of this
Sublease for the balance of any remaining Sublease Term.
ARTICLE XXII. NOTICES & CORRESPONDENCE
22.1 Notices: Wherever any notice or correspondence is required hereunder,
such notice shall be in writing. Any notice or document shall be deemed to be
delivered when actually received by the designated addressee or, if earlier and
regardless of whether actually received or not, when deposited in the United
States Mail, postage prepaid, Certified Mail, Return Receipt Requested,
addressed to the parties hereto at the respective notice addresses set forth in
Article 1, or at such other addresses as they have theretofore specified by
written notice.
ARTICLE XXIII. REGULATIONS
23.1 Compliance With Regulations: Sublessor and Sublessee acknowledge that
there are in effect, and may hereafter be enacted or put into effect, federal,
state, county and municipal laws, orders, rules, directives and regulations
(collectively referred to hereinafter as the "Regulations"), relating to or
affecting the Demised Premises or the Store and Common Area, and concerning the
impact on the environment of construction, land use, maintenance and operation
of structures, and conduct of business. Subject to the express rights granted to
Sublessee under the terms of this Sublease, Sublessee will not cause, or permit
to be caused, any act or practice, by negligence, omission, or otherwise, that
would adversely affect the environment, or do anything to permit anything to be
done that would violate any Regulations. Moreover, Sublessee shall have no claim
against Sublessor by reason of any changes Sublessor may make in the Store,
Common Area or the Demised Premises which may be required to comply with such
Regulations.
23.2 Applications: Sublessee shall file applications with the appropriate
regulatory authorities for authority to establish a branch office in the Demised
Premises and shall keep Sublessor advised of the processing of the applications.
The obligations of the Sublessee under this Sublease are subject to the
condition precedent that the Sublessee shall receive authority to establish a
branch office to the Demised Premises. In the event such authority is not
received on or before the Targeted Commencement Date, either Sublessor or
Sublessee shall have the right, upon notice to the other, to terminate this
Sublease. In such event, neither party hereto shall have any rights, duties or
obligations hereunder.
ARTICLE XXIV. MISCELLANEOUS
24.1 No Partnership: Nothing herein contained shall be deemed or construed
by the parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between the parties
hereto, it being understood and agreed that neither the method of computation of
Rent, nor any other provision contained herein, nor any acts of the parties
hereto, shall be deemed to create any relationship between the parties hereto
other than the relationship of Sublessor and Sublessee.
24.2 No Offset: Sublessee shall not for any reason withhold or reduce
Sublessee's required payments of Rent and other charges provided in this
Sublease, it being agreed that the obligations of Sublessor hereunder are
independent of Sublessee's obligations except as may be otherwise expressly
provided. In this regard it is specifically understood and agreed that in the
event Sublessor commences any proceedings against Sublessee for nonpayment of
Rent or any other sum due and payable by Sublessee hereunder, Sublessee will not
interpose any counterclaim or other claim against Sublessor of whatever nature
or description in any such proceedings (other than a compulsory counterclaim
under Rule 13(a) of the Federal Rules of Civil Procedure, or any analogous rule
in a state court proceeding); and in the event that Sublessee interposes any
such counterclaim or other claim against Sublessor in such proceedings,
Sublessor and Sublessee stipulate and agree that, in addition to any other
lawful remedy of Sublessor, upon motion of Sublessor, such counterclaim or other
claim asserted by Sublessee shall be severed from the proceedings instituted by
Sublessor. Sublessor may proceed to final judgment separately and apart from and
without consolidation with or reference to the status of such counterclaim or
any other claim asserted by Sublessee.
24.3 Sublessor's Liability: The liability of Sublessor to Sublessee for any
default by Sublessor under the terms of this Sublease shall be limited to the
greater of (i) two million dollars ($2,000,000.00) or (ii) the proceeds of sale
on execution of the interest of Sublessor in the Store. Sublessor shall remain
personally liable to account to Sublessee for any security deposited hereunder.
This clause shall not be deemed to limit or deny any remedies which Sublessee
may have in the event of default by Sublessor hereunder, which do not involve
the personal liability of Sublessor.
24.4 Consents: Any clause referring to Sublessor approval refers to written
consent. Except as may be otherwise herein provided, in all circumstances under
this Sublease where prior consent or permission of one party ("First Party"),
whether it be Sublessor or Sublessee, is required before the other party
("Second Party") is authorized to take any
particular type of action, the matter of whether to grant such consent or
permission shall be within the sole and exclusive judgment and discretion of the
First Party; and it shall not constitute any nature of breach by the First Party
hereunder or any defense to the performance of any covenant, duty or obligation
of the Second Party hereunder that the First Party delayed or withheld the
granting of such consent or permission, whether or not the delay or withholding
of such consent or permission was, in the opinion of the Second Party, prudent
or reasonable or based on good cause.
24.5 Waivers: One or more waivers of any covenant, term or condition of
this Sublease by either party shall not be construed as a waiver of a subsequent
breach of the same covenant, term or condition. The consent or approval by
either party to or of any act by the other party requiring such consent or
approval shall not be deemed to waive or render unnecessary consent to or
approval of any subsequent similar act.
24.6 Force Majeure: Whenever a period of time is herein prescribed for an
action to be taken, the party required to take such action (other than payment
of money) shall not be liable or responsible for, and there shall be excluded
from the computation of any such period of time, any delays due to strikes,
riots, acts of God, shortages of labor or materials, war, governmental laws,
regulations or restrictions or any other causes of any kind whatsoever which are
beyond the reasonable control of such party.
24.7 Governing Law: The laws of the state in which the Demised Premises are
located shall govern the interpretation, validity, performance and enforcement
of this Sublease. If any provision of this Sublease should be held to be invalid
or unenforceable, the validity and enforceability of the remaining provisions of
this Sublease shall not be affected thereby. Venue for any action under this
Sublease shall be the county in which the Store is located.
24.8 Captions: The captions used herein are for convenience only and do not
limit or amplify the provisions hereof.
24.9 Number; Gender: Whenever here the singular number is used, the same
shall include the plural, and words of any gender shall include each other
gender.
24.10 Successors: The terms, provisions and covenants contained in this
Sublease shall apply to, inure to the benefit of and be binding upon the parties
hereto and their respective heirs, successors in interest and legal
representatives except as otherwise herein expressly provided.
24.11 Entire Agreement: This Sublease contains the entire agreement between
the parties, and no agreement shall be effective to change, modify or terminate
this Sublease in whole or in part unless such is in writing and duly signed by
the party against whom enforcement of such change, modification or termination
is sought. Sublessor and Sublessee hereby acknowledge that they are not relying
on any representation or promise of the other, except as may be expressly set
forth in this Sublease. Oral agreements in conflict with any of the terms of
this Sublease shall be without force and effect.
24.12 Exhibits: This Sublease consists of twenty-five (25) Articles and
Exhibits A through F (any space left blank will be deemed to have been completed
with the word "none"). In the event any provision of an Exhibit or other
attached page shall be inconsistent with a provision in the body of the
Sublease, the provision as set forth in the Exhibit shall be deemed to control.
All Exhibits referred to herein, whether or not physically attached to this
Sublease, shall be deemed incorporated herein by reference.
24.13 Store Closing: Notwithstanding anything herein to the contrary,
Sublessee agrees to the cancellation of this Sublease and agrees to vacate the
Demised Premises on the date Sublessor ceases doing business in the Store unless
a longer period is required by federal or state law, or unless this Sublease is
transferred by Sublessor, as contemplated by Article XVI above. Sublessor agrees
to give Sublessee as much notice as is practicable under the circumstances of
Sublessor's decision to cease doing business in the Shopping Center.
Article XXV. Depository Services
25.1 Sublessee agrees to provide and perform depository services for the
Store as set forth in Exhibit E hereto ("Depository Services"). These Depository
Services are to be provided to the Store in a method and fee structure that has
been mutually agreed to by Sublessor and Sublessee as set forth in Exhibit F
hereto ("Depository Pricing"). Depository Services may be terminated and
reinstated from time to time by Sublessor by written notice to Sublessee;
provided,
however, any revisions to Exhibit E (Depository Services") or Exhibit F
("Depository Pricing") must be mutually agreed to by Sublessor and Sublessee and
the Sublease shall be amended to reflect the new Exhibits.
EXHIBIT A
COMMENCEMENT AGREEMENT
Re: Store Lease Agreement between Wal-Mart Stores, Inc. ("Landlord") and
the undersigned financial institution ("Tenant') concerning Wal-Mart
Supercenter No. ______, ______, ______ (the "Store"). List store
location on all correspondence.
Landlord and Tenant confirm the following information with respect to the
Store (capitalized terms not otherwise defined in this agreement shall have the
meaning given to them in the Store Lease Agreement), as of ____________.
1. The Store Lease Agreement is in full force and effect and has not been
modified, superseded or changed, except as follows:
2. Tenant accepted the Demised Premises and opened its Financial Service
Facility on ___________.
3. The initial Lease Term commenced on __________ and will expire on
__________.The first Renewal Term (if any) will commence on _________ and will
expire on __________. The second Renewal Term (if any) will commence on
__________, and will expire on __________.
4. Tenant's obligation to make payments of Rent commenced on __________.
Tenant's $_____ payment for Landlord's work is due on or before __________.
Tenant's $_____ Key Money payment is due on or before __________. (See Payment
Summary).
5. Tenant's monthly rent payment for the initial 5-year term will be $______.
6. Tenant acknowledges its responsibility to report surcharge income and remit
income as required under Section 1.5(c) in the subject lease agreement.
Please return within 30 days, per lease agreement, Article XXI, Section 21.3.
EXECUTED BY LANDLORD AND TENANT AS OF THE DATE SET FORTH ABOVE:
Wal-Mart Stores, Inc. __________________________________
By:__________________________________ By:_______________________________
Title: Director of Vestibule Leasing Title:____________________________
-------------------------------
MONTHLY RENTAL PAYMENTS ARE DUE THE 1ST OF EACH MONTH.
YOUR LEASE NUMBER ___________ MUST BE ON ALL MONTHLY REMITTANCES
LATE PAYMENT CHARGES WILL BE IN ACCORDANCE WITH LEASE.
EXHIBIT B
ANCILLARY PRODUCTS AND SERVICES
INVESTMENT PRODUCTS
Mutual Funds
U.S. Government and Agency Securities
Municipal Bonds
Unit Investment Trusts
Equities
Fixed Annuities
Variable Annuities
INSURANCE PRODUCTS:
Term Life
Credit Life
Credit Disability
Universal Life
Variable Life
SERVICES:
Self-Directed IRAs
Insurance Plan Review
Stock and Bond Research
Mutual Fund Performance Evaluations
Retirement and Education Planning
EXHIBIT C
WAL-MART IN STORE BANK BRANCH PRICING
500-600 601-705 751-1000
RENT (INCLUDING CAM AND INSURANCE): Sq Ft Sq Ft Sq Ft
-------
INITIAL TERM
MONTHLY $ 1,666.67 $ 2,650.00 $ 3,180.00
ANNUAL 20,000.04 31,800.00 38,160.00
1ST OPTION
MONTHLY $ 2,083.33 $ 3,312.50 $ 3,975.00
ANNUAL 24,999.96 39,750.00 47,700.00
2ND OPTION
MONTHLY $ 2,604.17 $ 4,140.63 $ 4,968.75
ANNUAL 31,250.04 49,687.50 59,625.00
EXHIBIT "D"
WAL-MART SIGNAGE POLICY
I. Building Signage. Wal-Mart Stores, Inc allows, but does not guarantee due to
local permitting and zoning restrictions, exterior signage of one sign with a
maximum of 20 sq. ft. stud- mounted, illuminated or non-illuminated letters or
box with prior written approval required by the Vestibule Leasing Department.
The sign will be installed in the location per the attached drawing (Exhibit "D-
I") on all Supercenter locations where bank branches will reside.
2. Installation and Permitting. The Wal-Mart Vestibule Leasing Department will
be responsible for coordinating all installations with the Bank. The Bank will
be responsible for all installation, permitting and costs.
3. Existing Bank-occupied Stores. The Bank will be responsible for the entire
project. The Bank shall supply the Wal-Mart Vestibule Leasing Department with a
confirmation letter stating that the Bank sign has been installed at the store
location. Photographs of the sign shall accompany the letter.
4. New Stores, Relocations And Expansions. The Wal-Mart Vestibule Leasing
Department will coordinate approval of the Bank signage projects. The Bank will
be allowed to begin the permitting process for its sign after the Wal-Mart
signing package has been approved. NOTE: WAL-MART SIGNAGE WILL HAVE PRIORITY AT
ALL PROJECTS. The Vestibule Leasing Department will notify the Bank of the
proper date to begin its permitting process. This date is likely to be on, or
within a few days of, the announced possession date of the store, which is
usually 3 months prior to the opening of the store. The Bank will be responsible
for all permitting and sign costs. The Bank shall supply the Wal-Mart Vestibule
Leasing Department with a confirmation letter stating that the Bank sign has
been installed at the store location. Photographs of the sign shall accompany
the letter.
5. Restrictions. No other Bank signage, such as flags, floor decals, road signs,
road-sign banners, banners hanging on outside of building, shopping cart signs,
etc. will be permitted. All signage ideas must be submitted to and approved by
the Wal-Mart Vestibule Leasing Department before they can be considered for
being part of the Bank signage in any store.
THIS IS THE APPROVED WAL-MART/BANK BRANCH SIGNAGE PACKAGE. NO ADDITIONAL SIGNAGE
IS AUTHORIZED.
EXHIBIT D-1
BANK SIGN
LOCATION & INFORMATION
142 Proto Type and Larger New Stores and
Relocations (Expansion Stores - the vestibule
elevation must be verified) Note: Expansion Stores
that do not have the Proto Supercenter front will
require a sign (4'-0" X 5'-0" maximum size)
Installed on one of the existing building lowers.
[ILLUSTRATION GOES HERE]
SIGN LOCATION MAY BE OPPOSITE SIDE
(Bank Sign to be located on Grocery aide
NOTE:
MAXIMUM SIGN AREA Although the Bank sign is approved by Wal-Mart
24' high by 10'-0" length it is not a guarantee the local governing agencies
will permit the Installation of the sign. In many
cases a signing variance will be required for the
sign to be considered by the local approval board.
Sign variances are not given or considered at all
locations.
-The Bank or Bank Sign Company will be responsible
for permitting, furnishing and installation of
their sign.
-The Bank sign permit must be applied for after
Wal-Mart has submitted and received their signing
permit.
-The Bank sign shall be located as shown on this
detail sheet.
AMENDMENT TO
WAL-MART SUBLEASE AGREEMENT
This Amendment to Sublease Agreement is entered into as of the 9th day of
February, 2001, by and between Sublessor and Sublessee (any capitalized terms
used in this Amendment to Wal-Mart Sublease Agreement shall have the same
meaning ascribed to them in the Wal-Mart Sublease Agreement entered into by and
between Sublessor and Sublessee of even date herewith).
WHEREAS, Sublessor and Sublessee have entered into that certain Wal-Mart
Sublease Agreement ("Sublease") effective as of February 9, 2001; and
WHEREAS, Sublessor and Sublessee desire to amend the Sublease as set forth
herein.
NOW, THEREFORE, for and in consideration of the mutual covenants, promises,
and obligations set forth in the Sublease, the receipt and sufficiency of which
are hereby acknowledged as sufficient to support this Amendment to Wal-Mart
Sublease Agreement, Sublessor and Sublessee hereby acknowledge and agree as
follows:
1. Sublessor acknowledges and agrees that Sublessee shall charge Terminal
Usage Fees (or foreign transaction fees) for the use of Sublessee's ATMs located
or to be located in the Demised Premises or elsewhere in the Store of two
percent (2%) of each transaction amount or $2.00, whichever is less, for ATM
customers or users who do not have a deposit account with Sublessee.
2. Sublessor acknowledges and agrees that the Terminal Usage Fees (or
foreign transaction fees) charged or to be charged by Sublessee for the use of
Sublessee's ATMs located or to be located in the Demised Premises or elsewhere
in the Store do not fall within the coverage of Section 1.5(c) of the Sublease
and that Sublessee shall have no obligation to pay Sublessor as an ATM
Transaction Fee any portion of the Terminal Usage Fees (or foreign transaction
fees) received by Sublessee during the Sublease Term or any extensions or
renewals thereof.
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Amendment to
Wal-Mart Sublease Agreement as of the day and year first mentioned above.
SUBLESSOR: WAL-MART STORES, INC. SUBLESSEE: BANK OF THE OZARKS
By: /s/ Xxxxxxxx X. Xxxxxxx /s/ Xxxx X. Xxxx
-------------------------------------- --------------------------------
Xxxxxxxx X. Xxxxxxx, Director
Wal-Mart Realty Company Title: President
--------------------------
Attest: /s/ Xxxxxx X. Xxxxxxx Attest: /s/ Xxxxx Xxxxxx
---------------------------------- -------------------------
Assistant Secretary Secretary
