Exhibit 10.16
LEASE
THIS LEASE made this 20th day of November, 1998 by and between INDIAN
HILLS SHOPPING CENTER PARTNERSHIP D/B/A INDIAN HILLS SHOPPING CENTER an Arkansas
General Partnership, (Landlord), and BANK OF THE OZARKS WCA, (Tenant):
WITNESSETH THAT, in consideration of the rents, covenants and agreements
hereinafter set forth, such parties enter into the following agreement:
ARTICLE I
EXHIBITS
The exhibits listed below and attached to this Lease are incorporated
herein by this reference:
EXHIBIT "A" Legal description of real estate to be developed for a
shopping center (hereinafter called "Total Tract").
EXHIBIT "B" Plot Plan of Total Tract, showing existing and proposed
improvements and depicting Total Tract with existing and
future improvements being hereinafter called "the Center".
EXHIBIT "C" Description of Landlord's Work and Tenant's Work.
EXHIBIT "E" Sign criteria applicable to Tenant.
Notwithstanding Exhibit A, B or C or anything else in this Lease contained,
Landlord reserves the unlimited right to change or modify and add to or subtract
from the size and dimensions of the Center or any part thereof, the number,
location and dimensions of buildings and stores, dimensions of hallways, malls
and corridors, the number of floors in any building, the location, size and
number of tenants spaces and kiosks which may be erected in or fronting on any
mall or otherwise, the identity, type and location of other stores and tenants,
and the size, shape, location and arrangement of Common Areas (as defined in
Section 5.1), and to design and decorate any portion of the Center as it
desires, in Landlord's discretion reasonably exercised.
ARTICLE II
LEASED PREMISES AND TERM
Section 2.1. Leased Premises.
Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord,
the space (in the Center) designated as Xxxx 0000 XXX, Xxx. 0 outlined in red on
Exhibit "B" (herein called "the
premises"), with a front width of approximately 30' and a depth of approximately
50', measured to the center line of all party or common walls, to the exterior
faces of all other walls, and to the building line where there is no wall,
containing approximately 1,500 square feet (the actual number of square feet,
when the premises are completed, being herein called the "Store floor area").
Section 2.2. Roof and Walls.
Landlord shall have the exclusive right to use all or any part of the roof,
side and rear walls of the premises for any purpose, including but not limited
to erecting signs or other structures on or over all or any part of the same,
erecting scaffolds and other aids to the construction and installation of the
same, and installing, maintaining, using, installing, repairing and replacing
pipes, ducts, conduits and wires leading through, to or from the premises and
serving other parts of the Center not materially interfere with Tenant's use of
the premises. Tenant shall have no right whatsoever in the exterior of exterior
or the roof of the premises or any portion of the Center outside the premises,
except as provided in Section 5.2 hereof.
Section 2.3. Lease Term.
The "Rental and Commencement" Date shall be the earlier to occur of (a) the
date that Tenant opens for business, or (b) December 1, 1998. Should that date
be other than the first day of the month, then the rent shall be prorated to the
first day of the following month (hereinafter called the "Commencement Date") so
that each month thereafter a full month's rent shall be due and payable on the
first day of each month and continuing for a period of one (1) year.
Section 2.4. Lease Year Defined.
"Lease Year" as used herein, means a period of twelve consecutive months
during the "Lease Year" commencing on the "Commencement Date" of any calendar
year.
ARTICLE III
LANDLORD'S WORK AND TENANT'S WORK
Section 3.1. Tenant's Work.
Tenant agrees to accept Xxxx 0000 XXX, Xxx. 0 in its present "as is"
condition, except as provided in Exhibit "C" attached hereto. Further
alterations of this unit will be at the Tenant's sole expense and deemed to be
Tenant's Work, including but not limited to all work designated as Tenant's work
in Exhibit "C", and Tenant shall do and perform all Tenant's Work diligently and
promptly and in accordance with the following provisions.
Section 3.2. Tenant's Obligations Before Commencement Date.
Within 15 days hereafter, Tenant will submit to Landlord one (1) set of
plans and specifications for all of Tenant's Work to be done within the premises
("Tenant's Plans"). As soon as reasonably possible thereafter, Landlord shall
notify Tenant of any failures of Tenant's Plans to meet with Landlord's
approval. Tenant shall, within 15 days after receipt of any such
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notice cause Tenant's Plans to be revised to the extent necessary to obtain
Landlord's approval and resubmitted for Landlord's approval. When Landlord has
approved the original or revised Tenant's Plans, Landlord shall initial and
return one set of approved Tenant's Plans to Tenant and the same shall become a
part hereof by this reference.
Tenant shall commence such work promptly upon approval of its plans and
complete the same, install all store and trade fixtures, equipment, stock in
trade, merchandise and inventory, and open for business therein not later than
the 90th day after the date of this lease.
ARTICLE IV
RENT
Section 4.1. Minimum Rent.
Tenant covenants and agrees to pay to Landlord, without notice, demand or
set off, in lawful currency of the United States of America at the time of
payment for all debts, public and private, at Landlord's notice address
(Landlord's and Tenant's notice addresses being the addresses specified in
Section 24.7 hereof), as rent for the premises:
(i) Commencing upon the Commencement Date and continuing until the
last day of the first (1/st/) Lease Year "Minimum Annual Rent" of SEVENTEEN
THOUSAND THREE HUNDRED NINETY DOLLARS ($17,390.00) per annum, payable at
the rate of ONE THOUSAND FOUR HUNDRED FORTY NINE AND 17/100's DOLLARS
($1,449.17) per month, and payable on the first day of each month.
Section 4.2. Miscellaneous Rent Provisions.
Any rent or other amounts to be paid by Tenant which are not paid when due
shall bear interest from the date due until fully paid at the lesser of 10% per
annum or the highest legal rate which Tenant may be required to pay in the State
where the Center is located. If the Commencement Date is other than the first
day of a month, Tenant shall pay on the Commencement Date a prorated partial
Minimum Monthly Rent for the period prior to the first day of the next calendar
month, and thereafter Minimum Monthly Rent payments shall be made not later than
the first day of each calendar month.
Tenant will preserve for at least three (3) years at Tenant's Notice
Address all original books and records (including electronic data storage), tax
returns, federal and state, and state sales tax disclosing information
pertaining to gross sales and such other information respecting gross sales as
Landlord requires. Landlord and its agents shall have the right during business
hours to examine and audit such books and records. If such examination of audit
discloses a liability for Percentage Rent 2% or more in excess of the Percentage
Rent paid by Tenant for any period, Tenant shall promptly pay Landlord the cost
of said audit and the deficiency in rents, which deficiency shall be payable in
any event.
Section 4.5. Real Estate Taxes.
A. Definition. As used in this Section 4.5 the term "real estate taxes"
shall mean and include all real estate taxes, public and governmental charges
and assessments, including all
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extraordinary or special assessments, all costs and fees incurred by Landlord in
contesting or negotiating with public authorities as to any of the same and all
sewer and other taxes and charges, but shall not include taxes on Tenant's
machinery, equipment, inventory or other personal property or assets of Tenant,
Tenant agreeing to pay all taxes upon or attributable to such excluded property
without apportionment.
B. Tenant's Share. Tenant shall pay to Landlord, as additional rent, its
proportionate share of all real estate taxes upon the Center which become due or
payable during this Lease Term, such proportionate share to be prorated for
periods at the beginning and end of the Lease Term which do not constitute full
calendar months or year. Tenant's proportionate share of any such taxes shall
be that portion of such taxes which bears the same ratio to the total real
estate taxes on Landlord's Tract as the Store floor area bears to the rentable
floor area on the Center (hereinafter called "Rentable Floor Area") as of the
Commencement Date or the first day of the calendar year in which such taxes are
due or payable. Rentable Floor Area occupied by certain stores, and tenants in
free standing premises who are obligated to pay real estate taxes specifically
upon specific improvements or a specific parcel of land, and the real estate
taxes paid by them, shall not be included in computing Tenant's obligations
under this Section. Tenant's share of taxes for the first (1st) year shall be
THIRTY FIVE CENTS ($0.35) per square foot which equals FIVE HUNDRED TWENTY FIVE
DOLLARS ($525.00) per annum to be paid at a rate of FORTY THREE & 75/100's
DOLLARS ($43.75) per month.
C. Payment by Tenant. Tenant's proportionate share of real estate taxes
shall be paid in monthly installments commencing with the Commencement Date, in
amounts initially estimated by the Landlord, one such installment being due on
the first day of each full or partial month of each full or partial calendar
year during the Lease Term. Such monthly installments shall increase or
decrease upon notice from Landlord given after the actual or anticipated amounts
of real estate taxes due or payable in a particular calendar year are
determined. Following the close of each full or partial calendar year during
the Lease Term, the actual amount of real estate taxes due or payable shall be
computed by Landlord and any excess paid by Tenant during such calendar year
over the actual amount Tenant is obligated to pay hereunder shall be credited to
the next payment, and within ten (10) days after written notice from Landlord
any deficiency owed shall be paid by Tenant.
D. Other Taxes. Any tax, charge, impositions, or assessment of any
governmental, municipal, or other authority levied, assessed or imposed on
account of the payment by Tenant or receipt by Landlord or based in whole or in
part upon, the rents in this Lease reserved or upon the Center or the value
thereof shall be paid by Tenant.
Section 4.6. Sprinkler System.
Landlord in its sole discretion, may provide, install on a stand grid, and
maintain a sprinkler system in the premises.
Section 4.7. Additional Rent.
All amounts required or provided to be paid by Tenant under this Lease
shall be deemed rent, and the failure to pay the same shall be treated in all
events as the failure to pay rent.
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Section 4.8. Payments for Tenant.
If Landlord pays any monies or incurs any expense to correct a breach of
this Lease by Tenant or to do anything in this Lease required to be done by
Tenant, all amounts so paid or incurred shall, on notice to Tenant, be
considered additional rent payable by Tenant with the first installment of
Minimum Annual Rent thereafter becoming due and payable, and may be collected as
by law provided in the case of rent.
ARTICLE V
PARKING AND COMMON USE AND FACILITIES
Section 5.1 Common Areas.
All parking areas, access roads and facilities furnished, made available or
maintained by Landlord in or near the Center, including employee parking areas,
truck ways, driveways, loading docks and areas, delivery areas, multistory
parking facilities (if any), package pickup stations, pedestrian sidewalks,
mails, courts and ramps, landscaped areas, retaining walls, stairways, bus
stops, first-aid and comfort stations, lighting facilities and other areas and
improvements provided by Landlord for the general use in common of tenants and
their customers in the Center (all herein called "Common Areas") shall at all
times be subject to the exclusive control and management of Landlord, and
Landlord shall have the right, from time to time, to establish, modify and
enforce rules and regulations with respect to all common areas. Tenant agrees
to comply with all rules and regulations set forth in Exhibit "D" attached
hereto and all amendments thereto which are applicable to tenants at the Center.
Landlord shall have the right from time to time to: change the sizes,
locations, shapes and arrangements of parking areas and other Common Areas:
restrict parking by employees to designated areas; construct surface, subsurface
or elevated parking areas and facilities; establish and from time to time change
the level or grade of parking surfaces; and do and perform such other acts in
and to said areas and improvements as Landlord in its sole discretion,
reasonably applied, deems advisable for the use thereof by tenants and their
customers, business invitees and employees.
Section 5.2. Use of Common Areas.
Tenant and its business invitees, employees and customers shall have the
nonexclusive right in common with Landlord and all others to whom Landlord has
granted or any hereafter grant rights, to use the Common Areas subject to such
rules and regulations as Landlord may from time to time impose and the rights of
Landlord set forth above. Tenant shall pay Landlord, upon demand, $10.00 for
each car or other vehicle for each day on which such car or other vehicle of
Tenant, or a concessionaire, employee or agent of Tenant is parked outside any
areas designated by Landlord for employee parking. Tenant authorizes Landlord
to cause any such car to be towed from the Center and Tenant shall reimburse
Landlord for the cost thereof upon demand, and otherwise indemnify and hold
Landlord harmless with respect thereto. Tenant shall abide by all rules and
regulations and cause its concessionaires, officers, employees, agents,
customers and invitees to abide thereby. Landlord may at any time close
temporarily any
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Common Areas to make repairs or changes, prevent the acquisition of public
rights therein, discourage noncustomer parking, or for other reasonable
purposes. Tenant shall furnish Landlord license numbers and descriptions of cars
used by Tenant and its concessionaires, officers and employees. Tenant shall not
interfere with Landlord's or other tenants' rights to use any part of the Common
Areas.
ARTICLE VI
COST AND MAINTENANCE OF COMMON AREA
Section 6.1. Expense of Operating and Maintaining the Common Facilities.
Landlord will operate, maintain and repair or cause to be operated,
maintained or repaired, the Common Area of the Center. "Landlord's Common Area
Costs" shall mean all costs of operating and maintaining the Common Areas in a
manner deemed by Landlord appropriate for the best interests of tenants and
other occupants in the Center. Included among the costs and expenses which
constitute Landlord's Common Area Costs, but not limited thereto, shall be at
the option of Landlord, all costs and expenses of protecting, operating,
repairing, repaving, lighting, cleaning, painting, striping, maintaining
landscape and building sprinkler systems, insuring (including but not limited to
fire and extended coverage insurance on Common Areas, insurance against
liability for personal injury, death and property damage and workmen's
compensation insurance), removing of snow, ice and debris, police protection,
security and security patrol, fire protection, regulating traffic inspecting,
repairing and maintaining of machinery and equipment used with the operation of
the Common Areas, cost and expense of landscaping and shrubbery, expenses of
utilities together with an administrative and overhead charge equal to 15% of
all of the foregoing and all other of Landlord's Common Area Costs.
Section 6.2 Tenant to Bear Pro Rata Share of Expense.
Tenant will pay Landlord in addition to all other amounts in this Lease
provided, such portion of Landlord's Common Area Costs for each calendar year
during the Lease Term which bears the same ratio to the total of Landlord's
Common Area Costs as the Store floor area at the Commencement of such calendar
year bears to all Rentable Floor Area rented or occupied by tenants on the
Center.
Tenant's share of Landlord's Common Area costs shall be paid in monthly
installments in amounts estimated from time to time by Landlord, one such
installment being due on the first day of each month of each calendar year.
After the end of each calendar year the total Landlord's Common Area Costs for
such year (and at the end of the Lease Term, the total Landlord's Common Area
Costs for the period since the end of the immediately next preceding calendar
year) shall be determined by Landlord and Tenant's share paid for such period
shall immediately, upon such determination, be adjusted by credit to next
payment of any excess or payment of any deficiency by Tenant within ten days,
Landlord's records of Landlord's Common Area Costs for a period shall be
available for inspection by Tenant at Landlord's Notice Address for 6 months
after Landlord notifies Tenant of Tenant's share of Landlord's Common Area Costs
for such period. Tenant's share of the Common Area Maintenance for the first
(1/st/) lease year shall be THIRTY FIVE CENTS ($0.35) per square foot which
equals to FIVE HUNDRED TWENTY
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FIVE DOLLARS ($525.00) per annum to be paid at a rate of FORTY THREE & 75/100's
DOLLARS ($43.75) per month.
ARTICLE VII
UTILITIES AND SERVICES
Section 7.1. Utilities.
Tenant shall not install any equipment which can exceed the capacity of any
utility facilities and if any equipment installed by Tenant requires additional
utility facilities, the same shall be installed at Tenant's expense in
compliance with all code requirements and plans and specifications which must be
approved in writing by Landlord. Tenant shall be solely responsible for and
promptly pay all charges for use or consumption or sewer, gas, electricity,
water and all other utility services. If Landlord makes available electrical
service, Tenant agrees to purchase the same from Landlord and pay Landlord for
the electrical service (based upon Landlord's determination from time to time of
Tenant's consumption of electricity), as additional rent, on the first day of
each month in advance (and provided for partial months) commencing on the
commencement date as herein defined, at the same cost as would be charged to
Tenant from time to time by the utility company which otherwise would furnish
such services to the premises if it provided such services and metered the same
directly to the Premises, but in no event at a cost which is less than the cost
Landlord must pay in providing such electrical service. If Landlord elects to
supply water, Tenant shall pay Landlord at the same cost as would be charged to
Tenant by the utility company which otherwise would furnish such services to the
premises if it provided such services and metered the same directly to the
premises but in no event at a cost which is less than the cost Landlord must pay
in providing such service, and in no event less than the minimum monthly charge
which would have been charged by the water utility applicable to the size of
meter which would have been installed by Tenant in or for the premises. TENANT
SHALL PAY LANDLORD AN ADDITIONAL TEN DOLLARS ($10.00) PER MONTH FOR WATER.
ARTICLE VIII
CONDUCT OF BUSINESS BY TENANT
Section 8.1 Use of Premises.
The premises shall be occupied and used by Tenant solely for the purpose of
conducting therein the business of Banking & Related Services and for no other
purpose.
Section 8.2. Prompt Occupancy and Use.
Tenant will occupy the premises upon the Commencement Date and thereafter
continuously operate and conduct in 100% of the premises during each hour of the
entire Lease Term when Tenant is required under this Lease to be open for
business the business permitted under Section 8.1 hereof, with a full staff and
full stock of merchandise, using only such minor portions of the premises for
storage and office purposes as are reasonably required. In addition to all
other remedies, Landlord shall have the right to obtain specific performance by
Tenant upon Tenant's failure to comply with the provisions of this Section 8.2.
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Section 8.3. Conduct of Business.
Such business shall be conducted (a) in Tenant's own name or under the name
Bank of the Ozarks unless another name is previously approved in writing by the
Landlord; and (b) in such manner as shall assure the transaction of a maximum
volume of business in and at the premises.
Section 8.4. Operation by Tenant.
Tenant covenants and agrees that it will: (a) not place or maintain any
merchandise, vending machines or other articles in any vestibule or entry of the
premises or outside the premises; (b) store garbage, trash, rubbish and other
refuse in rat-proof and insect-proof containers inside the premises, and remove
the same from the rear of the premises frequently and regularly and, if directed
by Landlord, by such means and methods and at such times and intervals as are
designated by Landlord, all at Tenant's costs; (c) not permit any sound system
audible or objectionable advertising medium visible outside the premises; (d)
keep all mechanical equipment free of vibration and noise and in good working
order and condition; not commit or permit waste or a nuisance upon the premises;
(e) not permit or cause odors to emanate or be dispelled from the premises; not
solicit business in the Common Areas nor distribute advertising matter to, in or
upon any Common Area; (f) not permit the loading or unloading or the parking or
standing of delivery vehicles outside any area designated therefore, nor permit
any use of vehicles which will interfere with the use of any common area in the
center; (g) comply with all laws, recommendations, ordinances, rules and
regulations of governmental, public, private and other authorities and agencies,
including those with authority over insurance rates, with respect to the use or
occupancy of the premises, and including but not limited to the Xxxxxxxx-Xxxxxxx
Occupational Safety and Health Act; (h) light all signs each night of the year
for not less than one hour after the premises is permitted to be closed; (i) not
permit any noxious, toxic or corrosive fuel or gas, dust, dirt or fly ash on the
premises; (j) not place a load on any floor in the Shopping Center which exceeds
the floor load per square foot which such floor was designed to carry.
Section 8.5. Storage.
Tenant shall have in the premises only merchandise which Tenant intends to
sell at, in or from the premises.
Section 8.6. Painting, Decorating, Displays, Alterations.
Tenant will not paint, decorate or change the architectural treatment of
any part of the exterior of the premises nor any part of the interior of the
premises nor make any structural or nonstructural alterations, additions or
changes in or to the premises (interior or exterior) without Landlord's written
approval thereto, and will promptly remove any paint, decoration, alteration,
addition or changes applied or installed without Landlord's approval and restore
the premises to an acceptable condition or take such other action with respect
thereto as Landlord directs.
Section 8.7. Other Operations.
If during the Lease Term, Tenant (including subsidiaries, affiliates,
guarantors) directly or indirectly operates manages or has any interest
whatsoever in any other store or business operated for a purpose or business
similar to or in competition with all or part of the business
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permitted under Section 8.1 hereof within a radius of _____ miles of the center,
it will injure Landlord's ability and right to receive Percentage Rent (such
ability and right being a major consideration for this Lease and the
construction of the Center.) Accordingly, if Tenant operates, manages or has
such interest in any such store or business within radius, 50% of all sales made
from any such other store or business shall be included in the computation of
gross sales for the purpose of determining Percentage Rent under this Lease as
though said sales had actually been made at, in or from the premises. Landlord
shall have all rights of inspection of books and records with respect to such
store or business as it has with respect to the premises; and Tenant shall
furnish to Landlord such reports with respect to gross sales from such other
store or business as it is herein required to furnish with respect to premises.
Section 8.8. Sales and Dignified Use.
No public or private auction or any fire, "going out of business",
bankruptcy or similar sales or auctions shall be conducted in or from the
premises and the premises shall not be used except in a dignified and ethical
manner consistent with the general high standards of merchandising in the Center
and not in a disreputable or immoral manner or in violation of the national,
state or local laws.
ARTICLE IX
MAINTENANCE OF LEASED PREMISES
Section 9.1. Maintenance by Landlord.
Landlord shall keep or cause to be kept the foundations, roof and
structural portions of the walls of the premises in good order, repair and
condition except for damage thereto due to the acts or omissions of Tenant, its
employees or invitees. Landlord shall commence required repairs as soon as
reasonably practicable after receiving written notice from Tenant thereof. This
paragraph shall not apply in case of damage or destruction by fire or other
casualty or condemnation or eminent domain, in which events the obligations of
Landlord shall be controlled by Article XVI and XVII. Except as provided this
Section 9.1 Landlord shall not be obligated to make repairs, replacements or
improvements of any kind upon the premises, or to any equipment, merchandise,
stock in trade, facilities or fixtures therein, all of which shall be Tenant's
responsibility, but Tenant shall give Landlord prompt written notice of any
accident, casualty, damage or other similar occurrence in or to the premises or
the Common Areas of which Tenant has knowledge.
Section 9.2. Maintenance by Tenant.
Tenant shall at all times keep the premises (including all entrances and
vestibules) and all partitions, window and window frames and moldings, glass
doors, door openers, fixtures, equipment and appurtenances thereof (including
lighting, heating, electrical, plumbing, ventilating and air conditioning
fixtures and systems and other mechanical equipment and appurtenances
specifically including the sprinkler system, if any) not required herein to be
maintained by Landlord in good order, condition and repair and clean, orderly,
sanitary and safe, damage by unavoidable casualty excepted, (including but not
limited to doing such things as are necessary to cause the premises, not
required herein to be maintained by Landlord in good order, condition and repair
and clean, orderly, sanitary and safe, damage by unavoidable casualty
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excepted, (including but not limited to doing such things as are necessary to
cause the premises to comply with applicable laws, ordinances, rules,
regulations and orders of governmental and public bodies and agencies, such as
but not limited to the Xxxxxxxx-Xxxxxxx Occupational Safety and Health Act). If
replacement of equipment, fixtures and appurtenances thereto are necessary,
Tenant shall replace the same with equipment, fixtures and appurtenances of the
same quality, and repair all damages done in or by such replacement. If Tenant
fails to perform its obligations hereunder, Landlord without notice may, but
shall not be obligated to, perform Tenant's obligations or perform work
resulting from Tenant's acts, actions or omissions and add the cost of the same
to the next installment of Minimum Monthly Rent due hereunder.
Section 9.3. Surrender of Premises.
At the expiration of the tenancy hereby created, Tenant shall surrender the
premises in the same condition as they were required to be in on the Required
Completion Date, reasonable wear and tear and damage by unavoidable casualty
excepted, and deliver all keys for and all combinations on locks, safes and
vaults in, the premises to Landlord at Landlord's Notice Address.
ARTICLE X
SIGNS, AWNINGS, CANOPIES, FIXTURES, ALTERATIONS
Section 10.1. Fixtures.
All fixtures installed by Tenant shall be new or completely reconditioned,
free from all liens and encumbrances of any kind.
Section 10.2. Removal and Restoration by Tenant.
All alterations, changes and additions and all improvements, including
leasehold improvements, made by Tenant, or made by Landlord on Tenant's behalf,
whether part of Tenant's work or not and whether or not paid for wholly or in
part by Landlord, shall remain Tenant's property for the Lease Term. Any
alterations, changes, additions and improvements shall immediately upon the
termination of this Lease become Landlord's property, be considered part of the
premises, and not be removed at or prior to the end of the Lease Term without
Landlord's written consent unless Landlord requests Tenant to remove the same.
If Tenant fails to remove any shelving, decorations, equipment, trade fixtures
or personal property from the premises prior to the end of this Lease Term, they
shall become Landlord's property.
Section 10.3. Tenant Shall Discharge All Liens.
Tenant shall promptly pay all contractors and materialmen, and not permit
or suffer any lien to attach to the Shopping Center or any part thereof, and
indemnify and save harmless Landlord against the same. Landlord shall have the
right to require Tenant to furnish a bond or other indemnity satisfactory to
Landlord prior to the commencement of any work by Tenant on the premises, or if
any lien attaches or is claimed, to require such a bond or indemnity in addition
to all other remedies.
Section 10.4. Signs, Awning and Canopies.
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Tenant will not place or permit on any exterior door or window or any wall
of the premises or otherwise, any sign, awning, canopy, advertising matter,
decoration, lettering or other thing of any kind which do not comply with the
Sign Criteria set forth in Exhibit "E" attached hereto.
ARTICLE XI
INSURANCE
Section 11.1. By Landlord.
Landlord shall carry public liability insurance on the Common Area of the
Center providing coverage of not less than $1,000,000 against liability for
bodily injury including death and personal injury for any one occurrence and
$250,000 property damage insurance, or a combined single limit insurance in the
amount of $1,000,000.
Landlord shall also carry insurance for fire, extended coverage, vandalism,
malicious mischief and other endorsements deemed advisable by Landlord, insuring
all improvements on the Center, including the premises and all leasehold
improvements thereon and appurtenances thereto (excluding Tenant's merchandise,
trade fixtures, furnishings, equipment, personal property and excluding plate
glass) for the full insurable value thereof, with such deductibles as Landlord
deems advisable, such insurance coverage to include improvements provided by
Tenant as set forth in Exhibit "C" and "C-2" as the Tenant's Work (excluding
wall covering, floor covering, carpeting and drapes), and improvements erected
by Landlord in the Center. Tenant agrees to pay Landlord, as additional rent,
FIFTEEN CENTS ($0.15) per year for each square foot of Store floor area payable
in equal installments on the first day of every calendar month during this Lease
Term, as Tenant's share of the cost of the premiums for such insurance described
above in this sentence. At the end of the first Partial Lease Year and each
Lease Year thereafter, the amount thus to be paid by Tenant shall be adjusted
upward or downward (but shall never be less than the above amount) in direct
ratio to the increase or decrease in the cost of the premiums paid by Landlord
for such insurance coverage. Tenant's share of insurance for the first (1st)
year shall be FIFTEEN CENTS ($0.15) per square foot which equals to TWO HUNDRED
TWENTY FIVE DOLLARS ($225.00) per annum to be paid at a rate of EIGHTEEN AND
75/100's DOLLARS ($18.75) per month.
Section 11.2. By Tenant.
Tenant agrees to carry public liability on the premises during the term
hereof, covering the Tenant and naming the Landlord as an additional named
insured with terms and companies satisfactory to Landlord, for limits of not
less than $1,000,000.00 for bodily injury, including death, and personal injury
for any one occurrence, $250,000.00 property damage insurance or a combined
single limit of $1,000,000.00. Tenant's insurance will include contractual
liability coverage recognizing this Lease, products and/or completed operations
liability and providing that Landlord and Tenant shall be given a minimum of
thirty (30) days' written notice by the insurance company prior to cancellation,
termination or change in such insurance. Tenant also agrees to carry insurance
against fire and such other risks as are from time to time included in standard
Fire and Extended Coverage insurance, for the full insurable value, covering all
of Tenant's merchandise, trade fixtures, furnishings, wall covering, floor
covering, carpeting,
11
drapes, equipment and all items of personal property of Tenant located on or
within the premises. Tenant shall provide Landlord with copies of the policies
or certificates evidencing that such insurance is in full force and effect and
stating the terms thereof. The minimum limits of the comprehensive general
liability policy of insurance shall in no way limit or diminish Tenant's
liability under Section 11.6 hereof and shall be subject to increase at any
time, and from time to time. Within thirty (30) days after demand therefor by
Landlord, Tenant shall furnish Landlord with evidence that such demand has been
complied with.
Section 11.3. Mutual Waiver of Subrogation Rights.
Landlord and Tenant and all parties claiming under them mutually release
and discharge each other from all claims and liabilities arising from or caused
by any casualty or hazard covered or required hereunder to be covered in whole
or in part by insurance on the premises, or in connection with property on or
activities conducted on the premises and waive any right of subrogation which
might otherwise exist in or accrue to any person on account thereof, provided
that such release shall not operate in any case where the effect is to
invalidate or increase the cost of such insurance coverage (provided, that in
the case of increased cost, the other party shall have the right, within thirty
(30) days following written notice, to pay such increased cost, thereby keeping
such release and waiver in full force and effect).
Section 11.4. Waiver.
Landlord, its agents and employees, shall not be liable for, and Tenant
waives all claims for, damage, including, but not limited to consequential
damages to person, property or otherwise, sustained by Tenant or any person
claiming through Tenant resulting from any accident or occurrence in or upon any
part of the Center including, but not limited to, claims for damage resulting
from: (a) any equipment or appurtenances becoming out of repair; (b) Landlord's
failure to keep any part of the Center in repair; (c) injury done or caused by
wind, water, or other natural element; (d) any defect in or failure of plumbing,
heating or air conditioning equipment, electrical wiring or installation
thereof, gas, water, and steam pipes, stairs, porches, railings or walks; (e)
broken glass; (f) the backing up of any sewer pipe or down spout; (g) the
bursting, leaking or running of any tank, tub, washstand, water closet, waste
pipe, drain or any other pipe or tank in, upon or about such building or
premises; (h) the escape of steam or hot water; (i) water, snow or ice upon the
premises; (j) the falling of any fixture, plaster or stucco; (k) damage to or
loss by theft or otherwise of property of Tenant or others; (l) acts or
omissions of persons in the premises, other tenants in the Center, occupants of
nearby properties, or any other persons; and (m) any act or omission of owners
of adjacent or contiguous property, or of Landlord, its agents or employees.
All property of Tenant kept in the premises shall be so kept at Tenant's risk.
Section 11.5. Insurance--Tenant's Operation.
Tenant will not do or suffer to be done anything which will contravene
Landlord's insurance policies or prevent Landlord from procuring such policies
in amounts and companies selected by Landlord. If anything done, omitted to be
done or suffered to be done by Tenant in, upon or about the premises shall cause
the rates of any insurance effected or carried by Landlord on the premises or
other property to be increased beyond the regular rate from time to time
applicable to the premises for use for the purpose permitted under this Lease,
or such other
12
property for the use or uses made thereof, Tenant will pay the amount of such
increase promptly upon Landlord's demand and Landlord shall have the right to
correct any such condition at Tenant's expense. In the event that this lease so
permits and Tenant engages in the preparation of food or packaged foods or
engages in the use, sale or storage of inflammable or combustible material,
Tenant shall install chemical extinguishing devices (such as Ansul) approved by
Underwriters Laboratories and Factory Mutual and the installation thereof must
be approved by the local Insurance Service Office or its equivalent. Tenant
shall keep such devices under service as required by such organizations. If gas
is used in the premises, Tenant shall install gas cut-off devices (manual and
automatic).
Section 11.6. Indemnification.
Tenant shall indemnify and save harmless Landlord from and against any and
all liability, liens, claims, demands, damages, expenses, fees, costs, fines,
penalties, suits, proceedings, actions and causes of action of any and every
kind and nature arising or growing out of or in any way connected with Tenant's
use, occupancy, management or control of the premises or Tenant's operations,
conduct or activities in the Center.
ARTICLE XII
OFFSET STATEMENT, ATTORNMENT, SUBORDINATION
Section 12.1. Offset Statement.
Within ten days after Landlord's request, Tenant shall deliver, executed in
recordable form a declaration to Landlord and/or any person designated by
Landlord (a) ratifying this Lease; (b) stating the Commencement and termination
dates; and (c) certifying (i) that this Lease is in full force and effect and
has not been assigned, modified, supplemented or amended (except by such
writings as shall be stated), (ii) that all conditions under this Lease to be
performed by Landlord have been satisfied (stating exceptions, if any), (iii) no
defenses or offsets against the enforcement of this Lease by Landlord exist (or
stating those claimed), (iv) advance rent, if any, paid by Tenant, (v) the date
to which rent has been paid, (vi) the amount of security deposited with
Landlord, such other information as Landlord reasonably requires. Persons
receiving such statements shall be entitled to rely upon them.
Section 12.2. Attornment.
Tenant shall, in the event of a sale or assignment of Landlord's interest
in the premises or the building in which the premises is located or this Lease
or the Center, or in the premises or such building comes into the hands of a
mortgagee, ground lessor or any other person whether because of a mortgage,
foreclosure, exercise of a power of sale under a mortgage, termination of the
ground lease, or otherwise, not disaffirm this Lease and attorn to the purchaser
or such mortgagee, or other person and recognize the same as Landlord hereunder.
Tenant shall execute, at Landlord's request any attornment agreement required by
any mortgagee, ground lessor or other such person to be executed, containing
such provisions as such mortgagee, ground lessor or other person requires.
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Section 12.3. Subordination.
A. Mortgage. The Lease shall be junior and inferior at all times to the
lien of any mortgage or mortgages which now or hereafter are a lien upon any
part of the Center and Tenant shall execute such instruments as Landlord
requests to evidence such subordination.
B. Construction, Operation and Reciprocal Easement Agreements. This
Lease is subject and subordinate to one or more construction, operation,
reciprocal easement or similar agreements (hereinafter referred to as "Operating
Agreements") entered into or hereafter to be entered into between Landlord and
other owners or lessees of real estate within or near the Center (which
Operating Agreements may have been or may be recorded in the official records of
the County wherein the Center is located) and to any and all easements and
easement agreements which may be or have been entered into with or granted to
any persons hereto fore or hereafter, whether such persons are located within or
upon the Center or not, and Tenant shall execute such instruments as Landlord
requests to evidence such subordination.
Section 12.4. Failure To Execute Instruments.
Tenant's failure to execute instruments or certificates provided for in
this Article XII within fifteen (15) days after the mailing by Landlord of a
written request shall be an event of Default under this Lease.
ARTICLE XIII
ASSIGNMENT, SUBLETTING AND CONCESSIONS
Section 13.1. Consent Required.
Tenant will not sell, assign, mortgage, pledge or in any manner transfer
this lease or any interest therein nor sublet all or any part of the premises,
nor license concessions nor lease departments therein, without Landlord's
written consent. Consent by Landlord to any assignment or subletting shall not
waive the necessity for consent to any subsequent assignment or subletting.
This prohibition shall include a prohibition against any subletting or
assignment by operation of law. If this Lease is assigned or the premises or
any part underlet or occupied by anybody other than Tenant, Landlord may collect
rent from the assignee, under-tenant or occupant and apply the same to the rent
herein reserved, and Landlord shall be entitled to retain any increases in rent
resulting from such assignment or underlettings, but no such assignment,
underletting occupancy or collection of rent shall be deemed a waiver of this
covenant or the acceptance of the assignee, under-tenant or occupant as tenant,
or release of Tenant from the performance by Tenant of any covenants on the part
of Tenant herein contained. Notwithstanding any assignment or subletting,
Tenant shall remain fully liable on this Lease and for the performance of all
terms, covenants and provisions of this Lease.
Section 13.2. Corporate Ownership.
If any corporate stock of Tenant is transferred by sale, assignment,
bequest, inheritance, operation of law or other disposition so as to result in a
change in the effective voting control of
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Tenant as it exists on the date hereof, Tenant shall promptly give Landlord
written notice of such change and Landlord may terminate this Lease at any time
after such change in control by giving Tenant ninety (90) days written notice of
such termination.
ARTICLE XIV
MERCHANTS' ASSOCIATION AND ADVERTISING
Section 14.1. Provisions Relating to Merchants' Association.
INTENTIONALLY DELETED
Section 14.2. Advertising.
INTENTIONALLY DELETED
ARTICLE XV
SECURITY DEPOSIT
Section 15.1. Amount of Deposit. NONE - INTENTIONALLY DELETED.
ARTICLE XVI
DAMAGE AND DESTRUCTION
Section 16.1. Damage to Premises.
If the premises are hereafter damaged or destroyed or rendered partially
untenantable for their accustomed use by fire or other casualty insured under
the coverage which Landlord carries pursuant to Section 11.1 hereof, Landlord
shall promptly repair the same to substantially the condition which they were in
immediately prior to the happening of such casualty (excluding stock in trade,
fixtures, furniture, furnishings, carpeting, floor coverings, wall covering,
drapes and equipment), and from the date of such casualty until the premises are
so repaired and restored, the Minimum Monthly Rent payments payable hereunder
shall xxxxx in such proportion as the part of said premises thus destroyed or
rendered untenantable bears to the total premises; PROVIDED, HOWEVER, that
-----------------
Landlord shall not be obligated to repair and restore if such casualty is caused
directly or indirectly by the negligence of Tenant, its agents and employees and
no portion of the Minimum Monthly Rent and other payments payable hereunder
shall xxxxx, and PROVIDED, FURTHER, that Landlord shall not be obligated to
-----------------
expend for such repair or restoration an amount in excess of the insurance
proceeds recovered as a result of such damage, and PROVIDED, FURTHER, that if
-----------------
the premises be damaged, destroyed or rendered untenantable for their accustomed
uses by fire or other casualty to the extent of more than 50% of the cost to
replace the premises or if the premises shall be damaged, destroyed or rendered
untenantable in any respect during the last three Lease years of the Term, then
Landlord shall have the right to terminate this Lease effective as of the date
of such casualty by giving to Tenant, within 60 days after the happening of such
casualty, written notice of such termination.
15
If such notice be given, this Lease shall terminate and Landlord shall promptly
repay to Tenant any rent theretofore paid in advance which was not earned at the
date of such casualty. Any time that Landlord repairs or restores the premises
after damage or destruction, then Tenant shall promptly repair or replace its
stock in trade, fixtures, furnishings, furniture, carpeting, wall covering,
floor covering, drapes and equipment to the same condition as they were in
immediately prior to the casualty, and if Tenant has closed its business, Tenant
shall promptly reopen for business upon the completion of such repairs.
ARTICLE XVII
EMINENT DOMAIN
Section 17.1. Condemnation.
If 10% or more of the Premises or 15% or more of the Center shall be
acquired or condemned by right of eminent domain for any public or quasi public
use or purpose, is terminated as a result of such an acquisition or
condemnation, then Landlord at its election, may terminate this Lease by giving
notice to Tenant of its election, and in such event rentals shall be apportioned
and adjusted as of the date of termination. If the Lease shall not be
terminated as aforesaid, then it shall continue in full force and effect, and
Landlord shall within a reasonable time after possession is physically taken
(subject to delays due to shortage or labor, materials or equipment, labor
difficulties, breakdown of equipment, government restrictions, fires, other
casualties or other causes beyond the reasonable control of Landlord) repair or
rebuild what remains of the premises which together with the remaining portions
of the building for Tenant's occupancy; and a just proportion of the Minimum
Annual Rent shall be abated, according to the nature and extent of the injury to
the premises, until such repairs and rebuilding are completed, and thereafter
for the balance of the Lease Term.
Section 17.2. Damages.
Landlord reserves, and Tenant assigns to Landlord, all rights to damages on
account of any taking or condemnation or any act of any public or quasi public
authority for which damages are payable. Tenant shall execute such instruments
of assignment as Landlord requires, join with Landlord in any action for the
recovery of damages, if requested by Landlord, and turn over to Landlord any
damages recovered in any proceeding. However, Landlord does not reserve any
damages payable for trade fixtures installed by Tenant at its own cost which are
not part of the realty.
ARTICLE XVIII
DEFAULT BY TENANT
Section 18.1. Right To Re-Enter.
The following shall be considered for all purposes to be defaults under and
breaches of this lease: (a) any failure of Tenant to pay any rent or other
amount due hereunder; (b) any failure of Tenant to perform or observe any other
of the terms, provisions, conditions and covenants of this Lease for more than
ten days after written notice of such failure; (c) Landlord determining
16
that Tenant has submitted any false report required to be furnished hereunder;
(d) Tenant shall do anything upon or in connection with the premises or the
construction of any part thereof which directly or indirectly interferes in any
way with, or results in a work stoppage in connection with, construction of any
part of the Center or any other tenant's space; (e) Tenant shall become bankrupt
or insolvent or file or have filed against it a petition in bankruptcy or for
reorganization or arrangement or for the appointment of a receiver or trustee of
all or a portion of Tenant's property, or Tenant makes an assignment for the
benefit of creditors; (f) if Tenant abandons or vacates or does not do business
in the premises for ten (10) days, or (g) this Lease or Tenant's interest herein
or in the premises or any improvements thereon or any property of Tenant are
executed upon or attached; or (h) the premises come into the hands of any person
other than expressly permitted under this Lease. In any such event, and without
grace period, demand or notice (the same being hereby waived by Tenant),
Landlord, in addition to all other rights or remedies it may have hereunder at
law or in equity shall have the right thereupon or at any time thereafter to
terminate this Lease by giving notice to Tenant stating the date upon which such
termination shall be effective, and shall have the right, either before or after
any such termination, to re-enter and take possession of the premises, remove
all persons and property from the premises, store such property at Tenant's
expenses, and without notice or resort to legal process and without being deemed
guilty of trespass or becoming liable for any loss or damage occasioned thereby.
Nothing herein shall be construed to require Landlord to give any notice before
exercising any of its rights and remedies provided for in Section 3.4 of this
Lease. Notwithstanding anything to the contrary herein contained, if Tenant
commits any default hereunder for or precedent to which or with respect to which
notice is herein required, and commits such defaults within twelve (12) months
thereafter, no notice shall thereafter be required to be given by Landlord as to
or precedent to any such subsequent default during such twelve (12) month period
(as Tenant hereby waiving the same) before exercising any or all remedies
available to Landlord.
Section 18.2. Right To Relet.
If Landlord re-enters as above provided, or if it takes possession pursuant
to legal proceedings or otherwise, it may either terminate this Lease or it may
from time to time, without terminating this Lease, make such alterations and
repairs as it deems advisable to relet the premises, and relet the premises or
any part thereof for such term or terms (which may extend beyond the Lease Term)
and at such rentals and upon such other terms and conditions as Landlord in its
sole discretion deems advisable; upon each such reletting all rentals received
by Landlord therefrom shall be applied, first, to any indebtedness other than
rent due hereunder from Tenant to Landlord; second, to pay any costs and
expenses of reletting, including brokers and attorneys' fees and cost of
alterations and repairs; third, to rent due hereunder and the residue, if any,
shall be held by Landlord and applied in payment of future rent as it becomes
due hereunder.
If rentals received from such reletting during any month are less than that
to be paid during that month by Tenant hereunder, Tenant shall immediately pay
any such deficiency to Landlord. No re-entry or taking possession of the
premises by Landlord shall be construed as an election to terminate this Lease
unless a written notice of such termination is given by Landlord.
17
Notwithstanding any such reletting without termination, Landlord may at any
time thereafter terminate this Lease for any prior breach or. If Landlord
terminates this Lease for any breach, in addition to any other remedies it may
have it may recover from Tenant all damages incurred by reason of such breach or
default, including all costs of retaking the premises and including the excess,
if any, of the total rent and charges reserved in this Lease for the remainder
of this Lease Term over the then reasonable rental value of the premises for the
remainder of the Lease Term, all of which shall be immediately due and payable
by Tenant to Landlord.
Section 18.3. Counterclaim.
If Landlord commences any proceedings for non-payment of rent (minimum
rent, percentage rent or additional rent), Tenant will not interpose any
counterclaim of any nature of description in such proceedings. This shall not,
however, be construed as a waiver of Tenant's right to assert such claims in a
separate action brought by Tenant. The covenants to pay rent and other amounts
hereunder are independent covenants and Tenant shall have no right to hold back,
offset or fail to pay any such amounts for default by Landlord or any other
reason whatsoever.
Section 18.4. Waiver of Rights of Redemption.
To the extent permitted by law, Tenant waives any and all rights of
redemption granted by or under any present or future laws if Tenant is evicted
or dispossessed for any cause, or if Landlord obtains possession of the premises
due to Tenant's default hereunder or otherwise.
ARTICLE XIX
NOTICE TO MORTGAGEE
Section 19.1.
If the holder of any mortgage covering the premises shall have given
written notice to Tenant of the address to which notices to such holder are to
be sent, Tenant shall give such holder written notice simultaneously with any
notice given to Landlord of any default of Landlord, and said holder shall have
the right but not the obligation, to cure such default before Tenant may take
any action by reason of such default.
ARTICLE XX
TENANT'S PROPERTY
Section 20.1. Taxes on Leasehold.
Tenant shall be responsible for and shall pay before delinquent all
municipal, county, federal or state taxes coming due during or after the term of
this Lease against Tenant's interest in this Lease or against personal property
of any kind owned or placed in, upon or about the premises by Tenant.
Section 20.2. Assets of Tenant.
To secure the performance of Tenant' obligations under this lease, Tenant
hereby grants to landlord a security interest in an express contractual lien
upon all of Tenant's equipment,
18
furniture, furnishings, appliances, goods, trade fixtures, inventory, chattels,
and persona property which will be brought upon the premises by Tenant, and all
after acquired property, replacements and proceeds. Landlord is authorized to
prepare and file financing statements signed only by Landlord (as secured party)
covering the security described above (but Tenant hereby agrees to sign the same
upon request). Upon any default under this lease by Tenant as defined in Section
18.1 hereof, any or all of Tenant's obligations to Landlord secured hereby
shall, at Landlord's option, be immediately due and payable without notice or
demand. In addition to all rights or remedies of Landlord under this Lease and
the law, including the right to a judicial foreclosure, Landlord shall have all
the rights and remedies of a secured part under the Arkansas Uniform Commercial
Code. Landlord's security interest shall be subordinate to the lien or security
interest of any vendor or lessor of equipment or chattels upon the premises or
of any lender taking or succeeding to a purchase money security interest
thereon, and upon Tenant's written request, if no default exists hereunder,
Landlord shall execute an instrument confirming such subordination. Upon
execution of this Lease, Tenant shall execute and deliver a separate Financing
Statement reflecting Landlord's security interest. This security agreement and
the security interest hereby created shall survive the termination of this Lease
if such termination results from Tenant's default. The above described security
interest and lien are in addition to and cumulative of the Landlord's lien
provided by the laws of the state in which the Center is located.
ARTICLE XXI
ACCESS BY LANDLORD
Section 21.1. Right of Entry.
Landlord, its agents and employees shall have the right to enter the
premises from time to time at reasonable times to examine the same, show them to
prospective purchasers and other persons, and make such repairs, alterations,
improvements or additions as Landlord deems desirable. Rent shall xxxxx while
any such repairs, alterations, improvements or additions are being made. During
the last six (6) months of this Lease Term, Landlord may exhibit the premises to
prospective tenants and maintain upon the premises notices deemed advisable by
Landlord. In addition, during any apparent emergency, Landlord or its agents
may enter the premises forcibly without liability therefor and without in any
manner affecting Tenant's obligations under this Lease. Nothing herein
contained, however, shall be deemed to impose upon Landlord any obligations,
responsibility or liability whatsoever, for any care, maintenance or repair
except as otherwise herein expressly provided.
ARTICLE XXII
HOLDING OVER, SUCCESSORS
Section 22.1. Holding Over.
If Tenant holds over or occupies the premises beyond this Lease Term (it
being agreed there shall be no such holding over or occupancy without Landlord's
written consent), Tenant shall pay Landlord for each day of such holding over as
the charge for and value of the use and occupancy of the premises a sum equal to
the greater of (a) the Minimum Annual Rent prorated
19
for the number of days of such holding over, plus a prorata portion of all other
amounts which Tenant would have been required to pay hereunder had this Lease
been in effect. If Tenant holds over with or without Landlord's written consent
Tenant shall occupy the premises on a tenancy from month to month and all other
terms and provisions of this Lease shall be applicable to such period except
that the monthly rental shall be increased by 25%.
Section 22.2. Successors.
All rights and liabilities herein given to or imposed upon the respective
parties hereto shall bind and inure to the several respective heirs, successors,
administrators, executors and assigns of the parties and if Tenant is more than
one person, they shall be bound jointly and severally by this Lease except that
no rights shall inure to the benefit of any assignee or subtenant of Tenant
unless the assignment or sublease was approved by Landlord in writing provided
in Section 13.1 hereof. Landlord, at any time and from time to time, may make
an assignment of its interest in this Lease and, in the event of such
assignment, Landlord and its successors and assigns (other than the assignee of
Landlord's interest in this Lease) shall be released from any and all liability
thereafter accruing hereunder.
ARTICLE XXIII
QUIET ENJOYMENT
Section 23.1. Landlord's Covenant.
If Tenant pays the rents and other amounts herein provided, observes and
performs all the covenants, terms and conditions, Tenant shall peaceably and
quietly hold and enjoy the premises for the Lease Term without interruption by
Landlord or any person or persons, subject, nevertheless, to the terms and
conditions of this Lease.
ARTICLE XXIV
MISCELLANEOUS
Section 24.1. Waiver.
No waiver by Landlord or Tenant of any breach of any term, covenant or
condition hereof shall be deemed a waiver of the same or any subsequent breach
of the same or any other term, covenant or condition. The acceptance of rent by
Landlord shall not be deemed a waiver of any earlier breach by Tenant of any
term, covenant or condition hereof, regardless of Landlord's knowledge of such
breach when such rent is accepted. No covenant, term or condition of this Lease
shall be deemed waived by Landlord or Tenant unless waived in writing.
Section 24.2. Accord and Satisfaction.
Landlord is entitled to accept, receive and cash or deposit any payment
made by Tenant for any reason or purpose or in any amount whatsoever, and apply
the same at Landlord's option to any obligation of Tenant and the same shall not
constitute payment of any amount owed except that to which Landlord has applied
the same. No endorsement or statement on any check
20
or letter of Tenant shall be deemed an accord and satisfaction or otherwise
recognized for any purpose whatsoever. The acceptance of any such check or
payment shall be without prejudice to Landlord's right to recover any and all
amounts owed by Tenant hereunder and Landlord's right to pursue any other
available remedy.
Section 24.3. Entire Agreement.
There are no representations, covenants, warranties, promises, agreements,
conditions or undertakings, oral or written, between Landlord and Tenant other
than as herein set forth. Except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless in writing and signed by them.
Section 24.4. No Partnership.
Landlord is not and shall not, in any way or for any purpose, become a
partner, employer, principal, master, agent or joint venturer of or with Tenant.
Section 24.5. Force Majeure.
If either party hereto shall be delayed or hindered in or prevented from
the performance of any act required hereunder by reason of strikes, lockouts,
labor troubles, inability to procure material, failure of power, restrictive
governmental laws or regulations, riots, insurrection, war or other reason of a
like nature not the fault of the party delayed in performing work or doing acts
required under this Lease, the period for the performance of any such act shall
be extended for a period equivalent to the period of such delay.
Notwithstanding the foregoing, the provisions of this Section 24.5 shall at no
time operate to excuse Tenant from any obligations for payment or rent,
additional rent or any other payments required by the terms of this Lease when
the same are due, and all such amounts shall be paid when due.
Section 24.6. Submission of Lease.
Submission of this Lease to Tenant does not constitute an offer to lease;
this Lease shall become effective only upon execution and delivery thereof by
Landlord and Tenant. Upon execution of this Lease by Tenant, Landlord is
granted an irrevocable option for sixty (60) days to execute this Lease within
said period and thereafter return a fully executed copy to Tenant. The
effective date of this Lease shall be the date filled in on Page 1 hereof by
Landlord, which shall be the date of execution by the last of the parties to
execute the Lease.
Section 24.7. Notices.
All notices from Tenant to Landlord required or permitted by any provision
of this agreement shall be directed as follows:
INDIAN HILLS SHOPPING CENTER
0000 XXXXXXXX XXXXXXX XXXXX
XXXXX XXXXXX XXXX, XX 00000
(000) 000-0000 FAX (000) 000-0000
All notices from Landlord to Tenant required or permitted hereunder shall
be directed as follows, namely:
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BANK OF THE OZARKS
ATTENTION: XXXXXX XXXXXXX 978-2204
XXXX XXXXXX XXX 0000
XXXXXX XXXX, XX 00000-0000
All notices to be given hereunder by either party shall be written and sent
by registered or certified mail, postage pre-paid, addressed to the party
intended to be notified at the address set forth above. Either party may, at
any time, or from time to time, notify the other in writing of a substitute
address for that above set forth, and thereafter notices shall be directed to
such substitute address. Notice given as aforesaid shall be sufficient service
thereof and shall be deemed given as of the date received, as evidenced by the
return receipt of the registered or certified mail. A duplicate copy of all
notices from Tenant shall be sent to any mortgagee as provided for in Section
19.2.
Section 24.8. Captions and Section Numbers.
This Lease shall be construed without reference to titles of Articles and
Sections, which are inserted only for convenience of reference.
Section 24.9. Number and Gender.
The use herein of a singular term shall include the plural and use of the
masculine, feminine or neuter genders shall include all others.
Section 24.10. Joint and Several Liability.
If Tenant is a partnership or other business organization the members of
which are subject to personal liability, the liability of each such member shall
be deemed to be joint and several.
Section 24.11. Limitation of Liability.
Anything to the contrary herein contained, notwithstanding, there shall be
absolutely no personal liability on persons, firms or entities who constitute
Landlord with respect to any of the terms, covenants, conditions and provisions
of this Lease, and Tenant shall subject to the rights of any first mortgagee,
look solely to the interest of Landlord, its successors and assigns, in the
Center for the satisfaction of each and every remedy of Tenant in the event of
default by Landlord hereunder; such exculpation of personal liability is
absolute and without any exception whatsoever.
Section 24.12. Broker's Commission.
Each party represents and warrants that it has caused or incurred no claim
for brokerage commissions or finder's fees in connection with the execution of
this Lease, and each party shall indemnify and hold the other harmless against
and from all liabilities arising from any such claims caused or incurred by it
(including without limitation, the cost of attorney fees in connection
herewith).
Section 24.13. Partial Invalidity.
If any provisions of this Lease or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of
22
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby and each provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.
Section 24.14. Recording.
The parties agree not to place this Lease or record but each party shall,
at the request of the other, execute and acknowledge so that the same may be
recorded a Short Form Lease or Memorandum of Lease, indicating the Lease Term,
but omitting rent and other terms and an agreement specifying the date of the
commencement and termination of the Lease Term; PROVIDED, HOWEVER, that the
failure to record said Short Form Lease, Memorandum of Lease Agreement shall not
affect or impair the validity and effectiveness of this Lease. Tenant shall pay
all costs, taxes fees and other expenses in connection with or prerequisite to
recording.
Section 24.15. Applicable Law.
This Lease shall be construed under the laws of the State wherein the
premises are situated.
Section 24.16. Option To Renew.
Landlord hereby grants to Tenant the option to renew this Lease for FIVE
(5) additional term(s) of TWO (2) years each, which shall commence upon the
expiration of the next preceding term. Such option, with respect to any renewal
term, shall only be exercised by Tenant mailing to Landlord, at Landlord's
Notice Address by United States mail, postage prepaid, certified or registered,
return receipt requested, notice of the exercise of such option, not later than
180 prior to the expiration of the then current term. No exercise of any
option herein granted shall be effective if any event of default under this
Lease (a) exists either at the time of exercise or on the expiration of this
Lease Term during which it was exercised, or (b) occurs after the exercise and
before the commencement of the renewal term.
In the event any such option is effectively exercised with respect to any
renewal term, all terms and conditions of this Lease shall be applicable to such
renewal term except the Minimum Annual Rent during the renewal term shall be:
OPTION 1 YEAR 1 $17,911.70 PER ANNUM, PAYABLE MONTHLY AT $1,492.64
--------
YEAR 2 $18,449.05 PER ANNUM, PAYABLE MONTHLY AT $1,537.42
OPTION 2 YEAR 1 $19,002.52 PER ANNUM, PAYABLE MONTHLY AT $1,583.54
--------
YEAR 2 $19,572.60 PER ANNUM, PAYABLE MONTHLY AT $1,631.05
OPTION 3 YEAR 1 $20,159.78 PER ANNUM, PAYABLE MONTHLY AT $1,679.98
--------
YEAR 2 $20,764.57 PER ANNUM, PAYABLE MONTHLY AT $1,730.38
OPTION 4 YEAR 1 $21,387.51 PER ANNUM, PAYABLE MONTHLY AT $1,782.29
--------
YEAR 2 $22,029.14 PER ANNUM, PAYABLE MONTHLY AT $1,835.76
23
OPTION 5 YEAR 1 $22,690.01 PER ANNUM, PAYABLE MONTHLY AT $1,890.83
--------
YEAR 2 $23,370.71 PER ANNUM, PAYABLE MONTHLY AT $1,947.56
Notwithstanding anything to the contrary in this Lease contained, the term
"Lease Term" whenever used in this Lease, shall be defined to include the
original term and all renewals and extensions thereof.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Lease
as of the day and year first above written.
(Landlord) By /s/ X. X. Xxxxxx, Xx.
---------------------
(Tenant) Bank of the Ozarks, wca
By /s/ Xxxxx X. Xxxxxxxx
---------------------
Vice Chairman
Attest /s/ Xxxxxx X. Xxxxxxx
---------------------
24
STATE OF )
) ss:
COUNTY OF )
Before me, a Notary Public and and for said County and State, appeared
Xxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxx, to me personally known, and
acknowledged the execution of the foregoing instrument.
Witness my hand and notarial seal the 20th day of November, 1998.
/s/ Xxxxx X. Xxxxxx
-------------------
Notary Public in and for Pulaski County, State
of Arkansas
My commission expires 9-28-2005
(SEAL)
STATE OF ARKANSAS )
) ss:
COUNTY OF PULASKI )
Before me, a Notary Public and and for said County and State, appeared X.
X. Xxxxxx, Xx., to me personally known, and acknowledged the execution of the
foregoing instrument.
Witness my hand and notarial seal the 19th day of November, 1998.
/s/ Xxxxxxx X. Xxxxx
--------------------
Notary Public in and for Pulaski County, State
of Arkansas
My commission expires March 7, 2001
(SEAL)
25
EXHIBIT A
LEGAL DESCRIPTION
INDIAN HILLS XXX-000 XXX-000; XXX-000 XXX-000; XXX-000 XXX-000 INDIAN HILLS
AMENDMENT TO LEASE
------------------
WHEREAS, the parties:
INDIAN HILLS SHOPPING CENTER PARTNERSHIP
D/B/A INDIAN HILLS SHOPPING CENTER (LANDLORD)
AND
BANK OF THE OZARKS WCA (TENANT)
on NOVEMBER 20, 1998 entered into a lease on a property known as:
INDIAN HILLS SHOPPING CENTER
6929 JFK, SUITE 4
NORTH LITTLE ROCK, ARKANSAS
now wish to incorporate the following clause as a part of the original lease
agreement:
Notwithstanding any other provisions contained in this lease, in the event
the Tenant is closed or taken over by the banking authority of the State of
Arkansas, or other bank supervisory authority, the Landlord may terminate
the lease only with the concurrence of such banking authority or other bank
supervisory authority; and any such authority shall in any event have the
election either to continue or to terminate the lease: Provided, that in
the event this lease is terminated, the maximum claim of Landlord for
damages or indemnity for injury resulting from the rejection or abandonment
of the unexpired term of the lease shall in no event be in an amount not
exceeding the rent reserved by the lease, without acceleration, for the
year next succeeding the date of the surrender of the premises to the
Landlord, or the date of re-entry of the Landlord, whichever first occurs,
whether before or after the closing of the bank, plus an amount equal to
the unpaid rent accrued, without acceleration up to such date.
Dated this eighth day of December, 1998.
____________________________ ___________________________________________
Attest Bank of the Ozarks, Tenant
Xxxxxx X. Xxxxxx, Executive Vice President
____________________________ ___________________________________________
Attest Indian Hills Shopping Center, Landlord
