EXHIBIT 10.8
COMMERCIAL GROUND LEASE
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This is a ground lease of commercial real estate (the "Lease") made and
entered into as of this Lease Date by the following parties as to the property
described herein ("Property"), to-wit:
I. BASIC PROVISIONS
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1. LESSOR: Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx, husband
and wife or the survivor thereof ("Lessor").
X.X. Xxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000-0000
2. LESSEE: Bank of Ozark
X.X. Xxx 000
Xxxxx, Xxxxxxxx 00000
3. LEGAL DESCRIPTION: Xxxx 0 xxx 0, Xxxxx 0, Xxxxxxxx Xxxxxxxx, Xxxxx II,
Clarksville, Xxxxxxx County, Arkansas
4. LEASE DATE: January 1, 1995.
5. LEASE COMMENCEMENT: (a) This Lease shall commence when Lessee takes
possession of the Property, but no more than thirty
(30) days after Lessee receives notification that its
applications to the Arkansas Bank Department and
Federal Deposit Insurance Corporation for approval of
the Property as a branch bank site have been
approved; provided, however, that if those approvals
have not been received within 180 days of the date
hereof, Lessee shall have the option to withdraw
those applications, which shall effect cancellation
of this Lease.
(b) Whether or not the applications have been
withdrawn, if the approvals have not been received in
the aforesaid 180-day period, Lessor may give Lessee
five days to waive that condition and set a
commencement date, failing which Lessor may cancel
this Lease.
(c) The commencement date shall likewise be noted
above and on Exhibit "A", which completed Lease shall
be recorded in the real estate records of Xxxxxxx
County, Arkansas.
6. IMPROVEMENTS: Lessee intends to construct a branch banking facility
on the Property, at its sole expense and to remain
its property, but shall not be limited to such use.
7. LEASE TERM: The Term of this Lease shall be ten (10) full years,
beginning on the commencement date referred to in
Sections 4 and 5 above.
8. BASE RENT: Monthly rentals, to be paid in advance on the Lease
commencement date and the same day of each month
thereafter for the term, as noted above, shall be
$1,417.00.
9. PURCHASE OPTION: Lessee is granted the option to purchase the real
estate which is the subject hereof as of the last day
of the Lease Term for $200,000 cash, on the terms and
conditions set forth in Exhibit "B" hereto. Notice of
exercise shall be given in writing to Lessor at any
time before the expiration of the Lease Term, but
without changing the closing date (i.e., the last day
of the full 10-year Lease Term).
II. GRANT AND ACCEPTANCE
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Lessor agrees to lease to Lessee and Lessee agrees to accept from Lessor
the Property, which consists of real estate legally described in Article I-3,
for the Lease Term described above. The Property has been inspected by Lessee
and is accepted in its present condition, with any and all defects, apparent or
otherwise.
II. ADDITIONAL RENT
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1. Taxes: As additional rent Lessee shall pay annually, before any fine or
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penalty is added thereto for the non-payment thereof, all real estate taxes and
special assessments which are levied and assessed against the Property during
the Lease Term. If
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the Lease Term commences other than on the first day of the tax year, the real
estate taxes and special assessments for the first partial tax year shall be
prorated, and Lessee shall pay only that portion related to the portion of the
tax year after the commencement of the Lease Term. Upon request, Lessee shall
promptly deliver to Lessor duplicate receipts or photostatic copies thereof,
showing payment of the real estate taxes and special assessments.
2. Insurance: Lessee shall carry casualty insurance on its improvements in
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such amounts as it deems appropriate, which insurance shall be for Lessee's sole
benefit.
3. Maintenance: After taking possession of the Property, and completion of
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its improvements, Lessee shall make any and all repairs and alterations it deems
appropriate to keep the Property in a good and usable condition and state of
repair; and in no event shall Lessor ever be deemed to have any responsibility
whatsoever for such repairs or improvements, including street improvements.
4. Net Lease: It is mutually agreed and acknowledged between Lessor and
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Lessee that this is a Net Lease. For the purpose of this clarification, the term
"Net Lease" shall mean that Lessee shall pay all taxes, insurance, repairs and
maintenance (including reconstruction), and all other costs and expenses of
every kind and nature in connection with the Property during the Lease Term and
that Lessor shall not be required to expend any sums whatsoever after delivery
of possession.
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IV. SUBLEASES AND ASSIGNMENTS
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Lessee may not assign this Lease or sublet any portion of the Property
without Lessor's written consent, not to be unreasonably withheld; provided,
however, that Lessee may assign or sublet on written notice to Lessor to any
business entity or financial institution affiliated with or under common control
with Lessee, and to any financial institution into which Lessee may be merged,
to which Lessor hereby consents.
V. COVENANT OF TITLE
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Lessor covenants that Lessor has good, right and lawful authority to lease
the Property, that it is zoned for Lessee's intended use as a branch bank, and
that Lessor will at all times, while this Lease remains in effect, protect and
preserve Lessee's right to possession and use of the Property pursuant to the
terms of this Lease. Lessee's obligation to accept possession of the Property
and to commence the Lease Term shall be dependent on Lessor's ability to provide
to Lessee, at Lessee's expense, a title insurance policy insuring Lessee's
leasehold interest in the Property in an amount, with an insurer, and on terms
acceptable to Lessee, and evidence of the appropriate zoning, as set forth
herein.
VI. USE
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Lessee may use the Property for any lawful purpose. Lessee shall conduct
its business, insofar as the same relates to Lessee's use and occupancy of the
Property, in a lawful manner and in compliance with all governmental laws,
rules, regulations and orders applicable to any business of Lessee conducted in
and upon the Property.
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VII. LESSEE'S COVENANT OF CARE
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Lessee, throughout the Lease Term, shall keep the Property free and clear
of any unnecessary dirt or filth.
VIII. UTILITIES
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During the Lease Term, Lessee shall pay when due all utilities charges.
Whenever Lessee desires to make any changes or additions to existing gas,
electricity, water, telephone or other utility services on or in the Property
lawfully requested or reasonably necessary, it shall pay for all charges
assessed in connection with making the same.
IX. INDEMNIFICATION
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1. Indemnity: Lessee covenants and agrees that it will defend, indemnify
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and hold harmless Lessor for and from all damages, claims, suits, or causes of
action resulting from injuries to person or persons or damage to property and
arising on or out of the use, occupancy or condition of the Property.
2. Environmental Laws: Without limiting the foregoing, Lessee covenants
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and agrees that at no time will its occupancy, use or maintenance of the
Property cause or contribute to any violation of local, state or federal
environmental or health laws, orders and regulations ("laws"), including but not
limited to those dealing with hazardous wastes or materials, water or air
pollution, and solid waste disposal.
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X. FIRE & CASUALTY
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It shall be Lessee's sole obligation to maintain and insure the
improvements on the Property for its own benefit and no failure to do so and no
inability to utilize the Property, whether as a branch banking location or
otherwise, as a result of fire, flood, civil disorder, earthquake or other
casualty of any sort whatsoever shall reduce in any wise Lessee's obligation to
pay rent and perform this Lease during the Term hereof, without reduction or
interruption.
XI. EMINENT DOMAIN
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1. Taking: In the event that any portion of the Property is taken by
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eminent domain or by sale in lieu thereof consented to by Lessee, this Lease
shall not terminate but each party shall be entitled to their respective damages
as allowed by law for their respective interests in the Property and its
improvements. However, in the event that a portion of the property significant
enough to interfere substantially and materially with Lessee's conduct of its
business thereon, in Lessee's judgment, is taken by eminent domain or by sale in
lieu thereof consented to by Lessee, Lessee may terminate this Lease within
sixty (60) days after Lessee has been deprived of possession by such taking or
sale; provided, that Lessor may elect to tender to Lessee for its consideration
additional property adjacent to the Property, which Lessee may, in
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its judgment, deem suitable for use in restoring the usefulness to it of the
Property, to be added by amendment of this Lease; and, provided further, that
nothing herein shall prohibit Lessor and Lessee from mutually agreeing to a
reduction of the monthly rent to reflect the continuing lease of less than all
of the original Property.
2. Award: Out of any award for any taking of the Property, Lessor
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shall be entitled to receive and retain all amounts awarded to Lessor for the
underlying real estate as encumbered by this Lease, and that Lessee shall be
entitled to receive and retain such amounts which are awarded to Lessee because
of the taking of its trade fixtures and leasehold improvements and its Lessee's
leasehold interest in the Property, including its option described herein.
XII. REMEDIES
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1. Default: Time is of the essence of this agreement and the parties
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hereto agree that if any monthly rent installment as herein provided or any
other rent payments to be made by Lessee as required herein are not made when
due, or in case Lessee shall fail to keep and perform every covenant, condition
and agreement herein contained, made and to be performed and kept by Lessee
strictly in accordance with the terms hereof, then and upon the happening of any
of the foregoing event, Lessor may give Lessee notice of such default. Lessee
shall commence to cure such default within ten (10) days following the giving of
such notice and having commenced,
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shall diligently proceed with and complete the curing of such breach within a
reasonable time. If Lessee fails to cure such default after notice and
opportunity as hereinabove provided, Lessor shall, at its option, have the right
to terminate this Lease and to reenter or to take possession of the Property
without terminating this Lease. However, if Lessor reenters without terminating
this Lease, Lessor may relet the Property or any part thereof upon such terms
and conditions as Lessor in Lessor's sole discretion shall deem advisable.
2. Mitigation: All rents received by Lessor as a result of such reletting
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shall be applied as follows:
(a) to reimburse Lessor for all expenses incurred in reentering and
reletting, including but not limited to attorney's fees and any court costs, and
costs of preserving, repairing or restoring the Property;
(b) to reimburse Lessor for costs of curing any breach of this Lease by
Lessee, including but not limited to attorney's fees and any court costs, and
costs of preserving, repairing or restoring the Property;
(c) to reasonable costs of adapting the Property for the use of the tenant
under such reletting;
(d) to arrearages in rent due hereunder, first being applied to the first
accruing rentals and last to the most recently accruing; and
(e) any remainder shall be held for the balance of the Lease term, but
credited to the account of Lessee.
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3. Non-Waiver: The foregoing remedies are not intended to limit or qualify
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such other remedies as Lessor may have at law or in equity.
XIII. TERMINATION
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At the end of the Lease Term, or upon its termination at any earlier date
by virtue of any of the provisions hereof, Lessee covenants to surrender and
deliver up possession of the Property.
XIV. REMOVAL OF IMPROVEMENTS OR TRADE FIXTURES
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Upon the termination of this Lease or any extensions thereof, if Lessee
shall otherwise be current and in good standing hereunder, Lessee shall have the
right to remove from the Property any and all improvements, trade fixtures and
devices, including but not limited to mechanical and security devices peculiar
to the banking business, which it may have installed on the Property at its
expense, within sixty (60) days of said termination.
XV. ALTERATION OR EXPANSION
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Lessee shall be permitted during the term hereof to perform alterations to
the Property at its expense and without any change in the rent called for by
this Lease.
XVI. MECHANIC'S LIENS
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Lessee agrees to pay when due all sums of money that may become due for any
labor, services, materials, supplies or equipment furnished to or for Lessee in,
and upon or about the Property and which may be secured by any mechanic's,
materialman's or other lien against the Property.
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XVII. GRANTING AND USE OF EASEMENTS
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1. Utilities Easements: Lessor agrees, without payment of consideration,
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from time to time during the term of this Lease at the request of Lessee to
grant easements, licenses, rights of way and other rights and privileges in the
nature of easements upon or across the Property for utilities necessary for
Lessee's intended use of said premises.
2. Cross Easements: In the event Lessee deems it advisable to enter into
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any cross-easements or similar agreements with occupants of adjoining
properties, it may do so and Lessor agrees to join in any such agreements on
request from Lessee, should Lessee deem such consent necessary, but without any
cost or liability on the part of Lessor, no such agreement to extend beyond the
Lease Term or survive its termination.
XVIII. SIGNS
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Lessee shall have the right to install, erect and maintain upon the
Property all signs necessary or appropriate to the conduct of its business.
Lessee shall not install, erect or maintain any sign in violation of any
applicable law, ordinance or use permit of any governmental authority. Lessee
may remove (but shall not be required to remove) the same or any part thereof at
any time during said term or upon the expiration thereof or sooner termination
of this Lease, or within thirty (30) days after such expiration or termination,
and Lessee at its own expense shall repair any damage caused by the removal
thereof.
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XIX. HOLDING OVER
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If Lessee continues to occupy the Property after the expiration of the
Lease Term without exercising its purchase option, and Lessor elects to accept
rent thereafter, a monthly tenancy terminable by either party on one month's
notice shall be created, which shall be upon the same rent, terms and conditions
as those herein specified.
XX. GENERAL CONDITIONS
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Lessee shall not be responsible for the payment of any commissions in
relation to the leasing transaction represented by this Lease. This Lease is
the entire agreement of the parties and may only be modified by a writing signed
by both parties, or the addition of a completed Exhibit "A" in accordance with
the terms hereof.
XXI. CONSTRUCTION
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This Lease and all of the terms and conditions herein contained shall be
binding upon the parties hereto and their successors in interest, including
Lessee's assigns and subtenants accepted by Lessor. Words and phrases herein
shall be construed as in singular or plural number and as feminine, masculine or
neuter gender, according to the context.
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2. Except as may be otherwise specifically provided herein, Lessee shall
have no right to terminate this Lease or be entitled to any rent abatement or
reduction. Notwithstanding any other provisions contained in this Lease, in the
event the Lessee is closed or taken over by the banking authority of the State
of Arkansas, or other bank supervisory authority, the Lessor 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 Lessor 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 Lessor, or the date of reentry
of the Lessor, whichever first occurs, whether before or after the closing of
the Lessee as a bank, plus an amount equal to the unpaid rent accrued, without
acceleration up to such date.
XXII. NOTICES
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Any notice herein required or permitted to be given shall be deemed given
if and when mailed in a sealed envelope by United States certified mail, return
receipt requested, postage properly prepaid and addressed as set forth in
Article I-1 and 2 hereof.
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IN WITNESS WHEREOF, the parties have executed this Lease on the dates noted
below, effective as of the date first above written.
LESSOR:
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
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XXXXX X. XXXXXX XXXXXXX X. XXXXXX
Date: 9-7-94 Date: 9-7-94
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LESSEE:
BANK OF OZARK
By:/s/ Xxxx X. Xxxx
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Title: President
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Date: 0-0-00
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XXXXX XX XXXXXXXX )
) ss: ACKNOWLEDGEMENT
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COUNTY OF YELL )
On this day personally appeared before the undersigned, a Notary Public
within and for the County and State aforesaid, duly qualified, commissioned and
acting, the within named XXXXX X. XXXXXX and XXXXXXX X. XXXXXX, to me personally
well known, who stated that they had so signed, executed and delivered said
foregoing instrument for the consideration and purposes therein mentioned and
set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
__________ day of September, 1994.
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Notary Public
My Commission Expires:
January 4, 2004
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(S E A L)
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STATE OF ARKANSAS )
) ss: ACKNOWLEDGMENT
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COUNTY OF YELL )
On this 7th day of September, 1994, before me, the undersigned, a Notary
Public, duly commissioned, qualified and acting, within and for said County and
State, appeared in person the within named Xxxx X. Xxxx, to me personally well
known, who stated that he/she was the President of BANK OF OZARK, an Arkansas
banking association, and was duly authorized in his/her capacity to execute the
foregoing instruments for and in the name and behalf of said corporation, and
further stated and acknowledged that he/she had so signed, executed and
delivered said foregoing instrument for the consideration, uses and purposes
therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
7th day of September, 1994.
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Notary Public
My Commission Expires:
January 4, 2004
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(S E A L)
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EXHIBIT "A"
COMMENCEMENT DATE
1. This lease shall commence on the following date: January 1, 1995.
IDENTIFIED & ACCEPTED:
BANK OF OZARK
By:/s/ Xxxxx Xxxxxxxx, Xx.
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Title: Vice President
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/s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
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EXHIBIT "B"
PURCHASE OPTION
1. Lessor to provide title policy acceptable to Lessee at Lessor's expense.
2. Closing within thirty days of end of the full 10-year Lease Term, as of the
last day of the full 10-year Lease Term.
3. Lessor to pay transfer taxes.
4. No warranties whatsoever as to improvements or condition of premises other
than as set forth in the Lease.
5. Lessee pays all taxes and insurance, no proration.
6. Conveyance by general warranty deed as directed by Lessee.
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