EXHIBIT 10.54
LEASE
THIS LEASE AGREEMENT (Lease) made this 4th day of March 1996 by and between
Executive Park Partnership, qualified to transact business in Arkansas with an
office at 300 Executive Park Building, 000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000, hereinafter referred to as "LESSOR" and Pharmacy Associates,
Inc. hereinafter referred to as "LESSEE".
WITNESSETH:
1. OFFICE SPACE AND TERM. Lessor, in consideration of the rentals
hereinafter to be paid and of the covenants, conditions and agreements to be
kept and performed by Lessee, hereby leases, lets and demises to the Lessee, and
Lessee hereby leases and hires from Lessor that certain space, hereinafter
called the "Office Space" (Office Space) in Executive Park Building, hereinafter
called the "Building" (Building) located at 000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxx,
Xxxxxxxx, which Office Space consists of approximately 6240 rentable square feet
of area, as outlined in green on attached Exhibits "A, A-1 and A-2".
TO HAVE AND TO HOLD the Office Space for a term of three (3) years,
commencing on the 1st day of May, 1996 and ending at midnight on the 30th day of
April, 1999. If Lessor, for any reason whatsoever, cannot deliver possession of
the Office Space to Lessee on or before May 1st, 1996 this Lease shall not be
void, or voidable, nor shall Lessor be liable to Lessee for any loss or damage
resulting therefrom; but in that event, there shall be an abatement of rent
covering the period between May 1st, 1996 and the time when Lessor can deliver
possession. The date specified above for the commencement of the term, or, if
the Lessor cannot deliver possession on such date as aforesaid, then the date
when Lessor can deliver possession is hereinafter referred to as the
"Commencement Date" (Commencement Date). The ending date of this Lease shall be
extended for an identical period of time to that period of time that transpired
between the May 1st, 1996 and the date Lessor delivered possession, it being the
parties' intent that this Lease has a complete term of three (3) years. By
occupying the Office Space, Lessee shall be conclusively deemed to have accepted
the same as complying fully with Lessor's covenants and obligations.
2. RENT. Lessee covenants and agrees to pay to Lessor as fixed annual
rental without deductions, set off, prior notice or demand, the sum of Eighty
thousand nine hundred ninety and 20/100 dollars ($80,990.20) payable in equal
monthly installments of Six thousand, seven hundred forty-nine and 18/100
dollars ($6,749.18) hereinafter called "The Rental" or "The Rent" on or before
the first (1st) day of the first full calendar month of the term hereof and on
or before the first (1st) day of each and every successive calendar month
thereafter during the full term of the Lease, subject to the adjustments as
provided hereinafter. In the event the Commencement Date occurs on a day other
than the first day of a calendar month, the first Rental payment shall be in the
amount of Rental for one (1) full calendar month plus the prorated Rental for
the calendar month in which the term of this Lease commences. Rental and all
other sums payable by Lessee to Lessor under this Lease shall be paid to Lessor,
without deduction offset, at its management office presently located at Xxxxx
Xxxxx & Associates, Inc., 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx
00000 or at such other place as Lessor may hereinafter specify in writing.
Whenever under the term of this Lease any sum of money is required to be
paid by Lessee in addition to the Rental herein reserved, whether or not such
sum is herein described as "Additional Rent" or provision is made for the
collection of said sum as "Additional Rent," said sum shall nevertheless, at
Lessor's option, if not paid when due, be deemed Additional Rent, and shall be
collectible as such with the first installment of Rent thereafter falling due
hereunder.
LATE CHARGE. Lessee agrees that a late charge equal to the lower of: (i)
five percent (5%) per month of the fixed monthly rental; or (ii) such maximum
percentage as allowed by Arkansas law, will be added to the fixed monthly rent
if payment thereof is not received by Lessor on or before the 10th day of each
month. Checks returned for any reason shall be considered nonpayment of rent and
late charge shall apply.
3. ADJUSTMENT OF FIXED ANNUAL RENT. The fixed annual rental and the monthly
installments provided herein above shall be increased annually, effective and
annually thereafter by an amount equal to four (4) percent (%) of the rental in
effect for the immediate proceeding year.
4. USE OF OFFICE SPACE. The Office Space shall be used by Lessee as a
business or professional office to include sales, service, demonstration and
storage and for no other purposes without the prior written consent of Lessor.
Lessee will not use the Office Space for the purpose of the retail sales of
merchandise. Lessee shall not do or permit to be done in or about the Office
Space, nor bring or keep or permit to be brought or kept therein, anything which
is prohibited by or will in any way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated, or which is prohibited by any standard form of fire insurance
policy or will in any way increase the existing rate of or affect any fire or
other insurance upon the Building or any of its contents, or cause a
cancellation of any insurance policy covering the Building or any part thereof
or any of its contents. Lessee shall not do or permit anything to be done in or
about the Office Space which will in any way obstruct or interfere with the
rights of other tenants of the Building, or injure or annoy them or use or allow
the Office Space to be used for any improper, immoral, unlawful or objectionable
purpose, nor shall Lessee cause, maintain, or permit any nuisance in, on, or
about the Office Space or commit or suffer to be committed any waste in, on, or
about the Office Space.
5. ASSIGNMENT AND SUBLETTING. Lessee shall not assign the right of
occupancy under this Lease or any other interest therein, or sublet the Office
Space, or any portion thereof, without the prior written consent of Lessor,
which the parties agree may be withheld for any reason whatsoever. Lessee
absolutely shall have no right of assignment or subletting if it is or has been
in default of this Lease. Notwithstanding any assignment of the Lease, or the
subletting of the Office Space, or any portion thereof, Lessee shall continue to
be liable for the performance of the terms, conditions and covenants of this
Lease, including, but not Limited to, the payment of Rent. Consent by Lessor to
one or more assignments or sublettings shall not operate as a waiver of Lessor's
rights as to any subsequent assignments and sublettings. Lessor shall have the
sole option, which shall be exercised by providing Lessee with written notice,
of terminating Lessee's rights and obligations under this Lease in the event
Lessee assigns or sublets the premises without the prior written consent of
Lessor. Should Lessor permit any assignment or subletting by Lessee and should
the monies received as a result of such assignment or subletting (when compared
to the monies still payable by Lessee to Lessor) be greater than would have been
received hereunder had not Lessor permitted such assignment or subletting, the
excess shall be payable by Lessee to Lessor, it being the parties' intention
that Lessor, and not Lessee, shall be the party to receive any profit from any
assignment or subletting. If there are one or more assignments or sublettings by
Lessee to which Lessor consents, the parties understand and agree, anything to
the contrary notwithstanding, that any and all options to lease additional space
in the Building to be exercised subsequent to the date of such assignment or
subletting are absolutely waived and terminated at Lessor's sole option. The
provisions of Item 23 shall be deemed amended to provide the correct names and
addresses of the assignee or sublessee.
6. ACCESS TO PREMISES. Lessor or its authorized agent or agents shall have
the right to enter upon the Office Space at all reasonable times for the
purposes of inspecting the same, preventing waste, and making such repairs as
Lessor may consider necessary (but without any obligation to do so except as
expressly provided for herein), and showing the Office Space to prospective
tenants. If, during the last month of the term, Lessee shall have removed all or
substantially all of Lessee's property therefrom, Lessor may immediately enter
and alter, renovate and. redecorate the Office Space without elimination or
abatement of Rent or incurring liability to the Lessee for any such compensation
or offsets on Rent and charges owed and such acts shall have no effect upon this
Lease.
7. SERVICES. Lessor shall, at Lessor's expense, provide (i) elevator
service, (ii) lighting (iii) toilet room supplies, (iv) daily janitor service
during the time and in the manner that such janitor service is customarily
furnished in similar office buildings in the city in which the Building is
located, (v) water, (vi) sewage, and (vii) heating and air conditioning service
to the leased premises. Lessor shall not be liable for any damages directly or
indirectly resulting from, nor shall any Rental herein set forth be abated by
reason of (1) installation, use, or interruption of use of any equipment in
connection with the furnishing of any of the foregoing services, or (2) failure
to furnish, or delay in furnishing, any such services when such failure or delay
is caused by accident or any condition beyond the reasonable control of Lessor
or by the making of necessary repairs or improvements to the Office Space or to
the Building. The temporary failure to furnish any such services shall not be
construed as an eviction of Lessee or relieve Lessor from the duty of observing
and performing any of the provisions of this lease.
8. NO LEASEHOLD IMPROVEMENTS. The space herein described is rented "AS IS,"
without any additional services to be rendered by Lessor, other than those
services described in Item 7. If Lessor is to additionally alter, remodel,
improve, or do any physical act or thing to the space as presently constituted,
same shall be at the sole expense of Lessee and shall be effected only ba a
"Work Order" signed by the parties, the monies due Lessor from Lessee fro which
shall be deemed "Additional Rental" hereunder. In absence of a "Work Order"
signed by the parties, Lessor is under no obligation to make any such
alternation, remodeling or improvement or do any physical act or thign to the
space.
Any and all extraordinary expenses and costs of any nature whatsoever
attributable to the installation, maintenance and/or removal of telephone
equipment, computer equipment and the like shall be borne solely be Lessee and
may be deemed by Lessor to be "Additional Rental" hereunder.
9. REPAIRS AND MAINTENANCE. Lessor will, at its own cost and expense,
except as may be provided elsewhere herein, make necessary repairs of damage to
the Building corridors, lobby, structural members of the Building, and equipment
used to provide the services referred to in Item 7, unless any such damage is
caused by acts or omissions of Lessee, its agents, customers, employees, or
invitees, in which event Lessee will bear the cost of such repairs. Lessee will
not injure the Office Space or the Building but will maintain the Office Space
in a clean, attractive condition and in good repair, except as to damage to be
repaired by Lessor as provided above. Upon termination of the Lease, Lessee will
surrender and deliver up the Office Space to Lessor in the same condition in
which it existed at the commencement of the Lease, excepting only ordinary wear
and tear and damage arising from any cause not required to be repaired by
Lessee. This Item 9 shall not apply in the case of damage or destruction by fire
or other casualty which is covered by insurance maintenance by Lessor on the
Building (as to which Item 12 hereof shall apply) or damage resulting from an
eminent domain taking (as to which Item 14 hereof shall apply).
10. ALTERATIONS AND IMPROVEMENTS. Lessee shall make no alterations,
additions or improvements to the Office Space without prior written approval of
Lessor. Such approval shall not be unreasonably withheld in the case of
alterations, additions or improvements to the interior of the Office Space, if
such alterations, additions or improvements are normal for office use, do not
adversely affect utility of the Office Space for future tenants, do not alter
the exterior of the Building, are not of a structural nature and are accompanied
by prepayment or bond provisions or waivers by the contractor in form
satisfactory to Lessor sufficient to protect the Building from claims of lien of
any sort; otherwise, such approval may be withheld for any reason whatsoever.
Lessee shall conduct its work in such a manner as to maintain harmonious labor
relations and is not to interfere with the operation of the Building and shall,
prior to the commencement of the work, submit to Lessor copies of all necessary
permits. Lessor reserves the right to have final approval of the contractors
hired by Lessee. All alterations, additions and improvements, whether temporary
or permanent in character, made in or upon the Office Space, either by Lessor or
Lessee, shall be Lessor's property and at the end of the term hereof shall
remain in or upon the Office Space without compensation. If, however, Lessor
shall request in writing, Lessee will, prior to termination of this Lease,
remove any and all alterations, additions and improvements placed or installed
by Lessee in the Office Space and will repair any damage caused by such removal.
All of Lessee's furniture, movable trade fixtures and equipment not attached to
the Building may be removed by Lessee at the termination of this Lease, if
Lessee so elects, and shall be so removed, if required by Lessor, and if not
removed, shall at the option of Lessor, become the property of Lessor.
11. INDEMNITY. Lessor shall not be liable for and Lessee will indemnify and
save Lessor harmless of and from all fines, suits, claims, demands, losses and
actions (including attorneys' fees) for any injury to person or damage to or
loss of property on or about the Office Space caused by the negligence or
misconduct or breach of this Lease by Lessee, its employees, sub-tenants,
invitees or by any other person entering the Office Space or the Building under
express or implied invitation of Lessee, or arising out of Lessee's use of the
Office Space. Lessor shall not be liable or responsible for any loss or damage
to any property or death or injury to any person occasioned by theft, fire, act
of God, public enemy, injunction, riot, strike, insurrection, war, court order,
requisition or other governmental body or authority, by other tenants of the
Building or any other matter beyond control of Lessor, or for any injury or
damage or inconvenience which may arise through repair or alteration of any part
of the Building, or arise through failure to make repairs, or arise from any
cause whatever except Lessor's gross negligence. Lessee shall, at all times
during the term of this Lease, maintain and pay for a policy of public liability
insurance in an amount of not less than $500,000.00. Certificates evidencing
such insurance shall be furnished Lessor upon Lessee's occupancy of the Office
Space.
12. DAMAGE BY FIRE OR THE ELEMENTS. In the event that the Building should
be totally destroyed by fire, tornado or other casualty or in the event the
Office Space or Building should be so damaged that, in the opinion of the
Lessor, rebuilding or repairs cannot be completed within ninety (90) days after
the date of such damage, either Lessor or Lessee may at its option, by written
notice to the other given not more that thirty (30) days after the date of such
fire or other casualty, terminate this lease. In the event the Building or the
Office Space should be damaged by fire, tornado, or other casualty covered by
Lessor's insurance but only to such extent that rebuilding or repairs can be
completed within ninety (90) days after the date of such damage, or if the
damage should be more serious but neither Lessor nor Lessee needs to terminate
this Lease, then Lessor shall within thirty (30) days after the date of such
damage commence to rebuild or repair the Building and/or the Office Space and
shall proceed with reasonable diligence to restore the Building and/or the
Office Space to substantially the same condition in which it was immediately
prior to the happening of the casualty, except that Lessor shall not be required
to rebuild, repair or replace any part of the furniture, equipment, fixtures,
and other improvements which may have been placed by Lessee or other tenants
within the Building or Office Space. Lessor shall, unless such damage is the
result of the negligence or willful misconduct of Lessee or Lessee's employees
or invitees, shall xxxxx Lessee's rent obligation in its entirety of Rent during
the time that the Office Space is unfit for occupancy. In the event any
mortgagee, under a deed of trust, security agreement or mortgage on the
Building, should require that the insurance proceeds be used to retire the
mortgage debt, Lessor shall have no obligation to rebuild and this Lease shall
terminate upon notice to Lessee. Any insurance which may be carried by Lessor or
Lessee against loss or damage to the Building or to the Office Space shall be
for the sole benefit of the party carrying such insurance and under its sole
control.
13. BUILDING RULES AND REGULATIONS. Lessee shall faithfully observe and
comply with the rules and regulations printed on or annexed to this Lease as
Exhibit "C" and all reasonable modifications of and additions thereto from time
to time put into effect by Lessor. Lessor shall not be responsible to Lessee for
the non-performance of any of said Rules and Regulations by any other tenants or
occupant of the Building.
14. EMINENT DOMAIN. If the whole or a portion of the Building shall be
taken for any public or quasi-public use under any statute or by right of
eminent domain or private purchase in lieu thereof, then at Lessor's or Lessee's
option, but not otherwise, the term hereby demised and all rights of Lessee
hereunder shall immediately cease and terminate and the Rental shall be adjusted
as of the date of such termination. Lessee shall be entitled to no part of the
award made for such condemnation (or other taking) or the purchase price thereof
made to Lessor. However, nothing herein shall prevent Lessee from maintaining a
separate action for, or securing a separate award for, the loss of its leasehold
estate or other costs in addition to its leasehold estate if same is permitted
by Arkansas law.
15. SIGNS AND ADVERTISING. Lessee shall not permit the painting or display
of any signs, placard, lettering, or advertising material of any kind on or near
the exterior of the Office Space or the Building, without the prior written
approval of Lessor.
16. DEFAULT. Lessor, at its election, and without any additional notice to
Lessee other than that which is required below, may exercise any one or more of
the options referred to below upon the happening or at any time after the
happening of any one or more of the following events, to-wit:
(a) Lessee's failure to pay the Rental, Additional Rental, or any
other sums payable hereunder for a period of fifteen (15) business days
after written notice by Lessor;
(b) Lessee's failure to observe, keep or perform any of the other
terms, covenants, agreements or conditions of this Lease or in the Building
Rules and Regulations for a period of ten (10) business days after written
notice by lessor;
(c) The bankruptcy of Lessee;
(d) Lessee making an assignment for the benefit of creditors;
(e) A receiver or trustee being appointed for Lessee or a substantial,
portion of Lessee's assets;
(f) Lessee's voluntary petitioning for relief under, or otherwise
seeking the benefit of, any bankruptcy, reorganization, arrangement or
insolvency law;
(g) Lessee's vacating or abandoning the Office Space or attempting to
mortgage or pledge its interest hereunder;
(h) Lessee's interest under this Lease being sold under execution or
other legal process;
(i) Lessee's interest under this Lease being assigned by attempted
subletting or by operation of law;
(j) Any of the goods or chattels of Lessee used in or incident to the
operation of Lessee's business in the Office Space being seized,
sequestered, or impounded by virtue of, or under authority of, any legal
proceeding.
In the event of any of the foregoing happenings, the Lessor, at its
election, may exercise any one or more of the following options, the exercise of
which shall not be deemed to preclude the exercise of any others herein listed
or otherwise provided by statute or general laws at the same time or in
subsequent times or action:
(1) Terminate Lessee's right to possession under the Lease and reenter
and retake possession of the Office Space and relet or attempt to relet the
Office Space on behalf of Lessee at such Rent and under such terms and
conditions as Lessor may deem best under the circumstances for the purpose
of reducing Lessee's liability. Lessor shall not be deemed to have thereby
accepted a surrender of the Office Space, and Lessee shall remain liable
for all Rental, Additional Rental, or other sums due under this Lease and
for all damages suffered by Lessor because of Lessee's breach of any of the
covenants of the Lease.
(2) Declare this Lease to be terminated, ended and null and void, and
reenter upon and take possession of the Office Space whereupon all right,
title and interest of the Lessee in the Office Space shall end.
(3) Accelerate and declare the entire remaining unpaid Rental and
Additional Rental for the balance of this Lease to be immediately due and
payable forthwith, and may, at once, take legal action to recover and
collect the same. Landlord must also attempt to mitigate damages prior to
exercising this acceleration. Balance due shall be the net present value
discounted at 12 percent of remaining net obligations. Tenant must also be
allocated a reasonable time to cure such default (see par. 16-A).
No reentry or retaking possession of the Office Space by Lessor shall be
construed as an election on its part to terminate this Lease, unless a written
notice of such intention be given to Lessee. Nor shall pursuit of any remedy
herein provided constitute a forfeiture or waiver of any Rent due to Lessor
hereunder of any damages accruing to Lessor by reason of the violation of any of
the terms, provisions and covenants herein contained. Lessor's acceptance of
Rent or Additional Rent following any event of default hereunder shall not be
construed as Lessor's waiver of such event of default. No forbearance by Lessor
of action upon any violation or breach of any of the terms, provisions, and
covenants herein contained. Forbearance by Lessor to enforce one or more of the
remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of any other violation or default. Legal
actions to recover for loss or damage that Lessor may suffer by reason of
termination of this Lease or the deficiency from any reletting as provided for
above shall include the expense of repossession and any repairs or remodeling
undertaken by Lessor following repossession.
The parties hereto shall, and they hereby do, waive trial by Jury in any
action, proceeding, or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Lessor and Lessee, Lessee's use
or occupancy of the Office Space and/or Building, and/or claim or injury or
damage. In the event Lessor commences any proceedings for nonpayment of rent (of
any nature whatsoever) or additional monies due Lessor from Lessee under this
Lease, the parties hereto agree that any and all suits for any and every breach
of this Lease shall be instituted and maintained only in those courts of
competent jurisdiction in City and State in which the Building is located.
Time is of the essence in this Lease; and in case Lessee shall fail to
perform the covenants on its part to be performed at the time fixed for the
performance of such respective covenants by the provisions of this Lease, Lessor
may declare Lessee to be in default of such lease.
17. ATTORNEY'S FEES. In the event it shall become necessary for Lessor at
any time to institute any legal action or proceedings of any nature for the
enforcement of this Lease, or any of the provisions hereof, or to employ an
attorney therefore, Lessee agrees to pay all court costs and attorney's fees
incurred by Lessor.
18. LANDLORD'S LIEN. In addition to the statutory Landlord's Lien, Lessor
shall have at all times a valid security interest to secure payment of all
Rentals, Additional Rental and other sums of money becoming due hereunder from
Lessee, and to secure payment of any damages or loss which Lessor may suffer by
reason of the breach by Lessee of any covenant, agreement or condition contained
herein, upon all goods, wares, equipment, fixtures, furniture, improvements and
other personal property of Lessee presently or which may hereinafter be situated
in the Office Space, and all proceeds therefrom, and such property shall not be
removed therefrom without the consent of Lessor until all arrearages in Rent, as
well as any and all other sums of money then due to Lessor hereunder, shall
first have been paid and discharged and all of the covenants, agreements, and
conditions hereof have been fully complied with and performed by Lessee. In
consideration of this Lease, upon the occurrence of an event of default by
Lessee, Lessor may, in addition to any other remedies provided herein, enter
upon the Office Space and take possession of any and all goods, wares,
equipment, fixtures, furniture, improvements, and other personal property of
Lessee situated on or in the Office Space, without liability for trespass or
conversion, and sell the same at public or private sale, with or without having
such property at the sale, after giving Lessee reasonable notice of the time and
place of any public sale or of the time after which any private sale is to be
made, at which sale the Lessor or its assigns may purchase unless otherwise
prohibited by law. Unless otherwise provided by law, and without intending to
exclude any other manner of giving Lessee reasonable notice, the requirement of
reasonable notice shall be met if such notice is given in the manner prescribed
in Item 23 of this Lease at least five (5) days before the time of sale. The
proceeds from any such disposition, less any and all expenses connected with the
taking of possession, holding and selling of the property (including reasonable
attorneys' fees and other expenses) shall be applied as a credit against the
indebtedness secured by the security interest granted in this Item 18. Any
surplus shall be paid to Lessee or as otherwise required by law; and Lessee
shall pay any deficiencies forthwith. Upon request by Lessor, Lessee agrees to
execute and deliver to Lessor a financing statement in form sufficient to
perfect the security interest of Lessor in the aforementioned property and
proceeds thereof under the provisions of the Uniform Commercial Code in force in
the State in which the Building is located. The statutory lien for Rent is not
hereby waived, the security interest herein granted being in addition and
supplementary thereto.
19. SUBORDINATION. In consideration of the execution of this Lease by
Lessor, Lessee accepts this Lease subject to any deeds of trust, master leases,
security interest or mortgages which might now or hereafter constitute a lien
upon the Building or improvements therein or on the Office Space and to zoning
ordinances and other building and fire ordinances and governmental regulations
relating to the use of the property. Although no instrument or act on the part
of Lessee shall be necessary to effectuate such subordination, Lessee shall,
nevertheless, for the purposes of confirmation, at any time hereafter, on
demand, in the form(s) prescribed by Lessor, execute any instrument, estoppel
certificates, releases or other documents that may be requested or required by
any holder of any superior interest for the purposes of subjecting and
subordinating this Lease to the lien of any such deed of trust, master lease,
security interest, mortgage, or superior interest. Lessee hereby appoints Lessor
attorney in fact, irrevocably, to execute and deliver any such instrument or
document for Lessee should Lessee fail or refuse to do so. However, any party
who becomes an owner of this building by virtue of having been a mortgagee
should be required to recognize Lessee's rights hereunder.
20. QUIET ENJOYMENT. Provided Lessee has performed all of the terms,
covenants, agreements and conditions of this Lease, including the payment of
Rental and all other sums due hereunder, Lessee shall peaceably and quietly hold
and enjoy the Office Space against Lessor and all persons claiming by, through
or under Lessor, for the term herein described, subject to the provisions and
conditions of this Lease, except as in Item 19 above.
21. SECURITY DEPOSIT. Waived.
22. MECHANICS' LIENS. Lessee is prohibited from, and agrees not to make
alterations in the premises, and Lessee will not permit any mechanics' lien or
liens to be placed upon the Office Space or the Building or the Building or
improvements thereon during the term hereof caused by or resulting from any work
performed, materials furnished or obligations incurred by or at the request of
Lessee, and in the case of the filing of any such lien Lessee will promptly pay
same. If default in payment thereof shall continue for ten (10) days after
written notice thereof from Lessor to Lessee, Lessor shall have the right and
privilege at Lessor's option of paying the same or any portion thereof without
inquiry as to the validity thereof, and any amounts so paid, including expenses
and interest, shall be so much additional indebtedness hereunder due from Lessee
to Lessor and shall be repaid to Lessor immediately on rendition of a xxxx
therefore, together with interest per annum at the maximum rate permitted by law
until repaid, and if not so paid within ten (10) business days of the rendition
of such xxxx shall constitute default under Item 16 hereof.
23. NOTICES. Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered or given when (a) actually received or
(b) signed for or "refused" as indicated on the postal service return receipt.
Delivery may be by personal delivery or by United States mail, postage prepaid,
certified or registered mail, addressed to the parties hereto at the respective
addresses set out opposite their names below, or at such other address as they
may hereafter specify by written notice delivered in accordance herewith:
LESSOR: EXECUTIVE PARK PARTNERSHIP
000 XXXXXXXXX XXXXX
XXXXXX XXXX, XX 00000
LESSEE: PHARMACY ASSOCIATES, INC.
000 XXXXXXXXX XXXXX
XXXXXX XXXX, XX 00000
24. FORCE MAJEURE. Whenever a period of time is herein prescribed for
action to be taken by Lessor, Lessor shall not be liable or responsible for, and
there shall be excluded from the computation for any such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or materials,
theft, fire, public enemy, injunction, insurrection, court order, requisition of
other governmental body or authority, war, governmental laws, regulations or
restrictions or any other causes of any kind whatsoever which are beyond the
control of Lessor.
25. SEPARABILITY. If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws effective during the term
of this Lease, then and in that event, it is the intention of the parties hereto
that the remainder of this Lease shall not be affected thereby.
26. HOLDING OVER. The failure of Lessee to surrender the Office Space on
the date provided herein for the termination of the term of this Lease (or at
the time the Lease may be terminated otherwise by Lessor), and the subsequent
holding over by Lessee, with or without the consent of Lessor, shall result in
the creation of a tenancy at will at double the Rental payable at the time of
the date provided herein for the termination of this Lease. This provision does
not give Lessee any right to hold over at the expiration of the term of this
Lease, and shall not be deemed, the parties agree, to be a renewal of the Lease
term, either by operation of law or otherwise.
27. RENT A SEPARATE COVENANT. Lessee shall not for any reason withhold or
reduce Lessee's required payments of rentals and other charges provided in this
Lease, it being agreed that the obligations of Lessor hereunder are independent
of Lessee's obligations.
28. JOINT AND SEVERAL LIABILITY. If two or more individuals, corporations,
partnerships, or other business associations (or any combination of two or more
thereof) shall sign this Lease as Lessee, the liability of each such individual,
corporation, partnership or other business association to pay rent and perform
all other obligations hereunder shall be deemed to be joint and several. In like
manner, if the Lessee named in this Lease shall be a partnership or other
business association, the members of which are, by virtue of statute or general
law, subject to personal liability, the liability of each such members shall be
joint and several.
29. ABSENCE OF OPTION. The submission of this Lease for examination does
not constitute a reservation of or option for the Office Space, and this Lease
becomes effective only upon execution and delivery thereof by Lessor.
30. CORPORATE TENANCY. If Lessee is a corporation, the undersigned officer
of Lessee hereby warrants and certifies to Lessor that Lessee is a corporation
in good standing and is authorized to do business in the State of Arkansas. The
undersigned officer of Lessee hereby further warrants and certifies to Lessor
that he or she, as such officer, is authorized and empowered to bind the
corporation to the terms of this Lease by his or her signature thereto.
31. BROKERAGE COMMISSION. Lessee represents that it has dealt directly with
Xxxxx Xxxxx & Associates, Inc., as broker in connection with this Lease; and
that insofar as Lessee knows, no other broker negotiated or participated in the
negotiation of this Lease or submitted or showed the premises or is entitled to
any commission in connection therewith.
32. AMENDMENTS. This lease contains the entire agreement between the
parties hereto and may not be altered, changed or amended, except by instrument
in writing signed by both parties hereto. No provision of this Lease shall be
deemed to have been waived by Lessor unless such waiver be in writing signed by
Lessor and addressed to Lessee, nor shall any custom or practice which may grow
up between the parties in the administration of the provisions hereof be
construed to waive or lessen the right of Lessor to insist upon the performance
by Lessee in strict accordance with the terms hereof. The terms, provisions,
covenants, and conditions contained in this lease shall apply to, inure to the
benefit of, and be binding upon the parties hereto, and upon their respective
successors in interest and legal representatives, except as otherwise herein
expressly provided.
33. SPECIAL STIPULATIONS. The items listed below are to be special terms or
conditions for items not covered elsewhere in the Lease.
34. GOVERNING LAW. This lease shall be governed by and in accordance with
the laws of the State of Arkansas.
35. RECORDATION OF LEASE. This lease shall not be recorded. A short form or
memorandum hereof shall be recorded upon request by either Lessor or Lessee,
provided, however, that any such short form or memorandum of lease shall not
disclose any of the rental terms contained herein.
36. RENEWAL OPTION. Lessee shall have the option to extend the term of this
lease for a term of three (3) years. The first year of this extension shall have
an annual rental rate of $91,102.97 payable in equal monthly installments of
$7,591.91 and the successive years of this extension period shall be increased
annually effective May 1, 1999 and annually thereafter by an amount equal to
four (4) percent of the rental in effect for the immediate proceeding year.
37. NOTIFICATION OF LESSEE'S INTENT TO RENEW LEASE. Notification in writing
must be received by the Lessor from the Lessee on or before November 1, 1998 or
the renewal option becomes null and void.
38. PURCHASE OPTION. Provided Lessee purchases building from Lessor, Lessee
will have option of canceling this lease upon closing paid purchase from Lessor.
39. SIGN OPTION. Lessor agrees to permit Lessee to install a sign on
building exterior wall provided that Lessor approves of design, quality,
location and all other details of sign. Entire expenses regarding the sign will
be paid by Lessee. At end of lease, lessee will have sign removed from building
and any damage to building will be repaired in a quality manner at Lessee's
expense.
40. RIGHT OF FIRST REFUSAL. Lessee shall have the ongoing Right of First
Refusal on any contiguous space for lease on the second and third floors. Lessee
shall have the option to exercise this right within ten (10) working days after
receipt of notice from the Lessee that it has a prospective tenant for the
space. If lessee fails to exercise the right, its Right of First Refusal shall
nonetheless continue for any other prospective tenant. If lessee exercises this
right, lessee's rent shall be at the same rate offered to the prospective
tenant. Any improvement allowance, if any, will be negotiated when lessee
exercises this Right of First Refusal.
IN WITNESS WHEREOF, the undersigned authority has hereunto executed this
Lease, on the date first shown above.
SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF:
LESSOR: EXECUTIVE PARK PARTNERSHIP
/s/Xxxxx Xxxxx
BY: XXXXX XXXXX &ASSOCIATES, INC.,
MANAGING AGENT
WITNESS: /s/Xxx X. Schildkaicht
LESSEE: PHARMACY ASSOCIATES, INC.
BY: /s/Xxxx Xxxxxx
WITNESS: /s/Xxxxxxx X. Xxxxx
EXHIBIT A
EXHIBIT A-1
EXHIBIT A-2
EXHIBIT C
RULES AND REGULATIONS
Rule 1. No sign, picture, advertisement, or notice shall be displayed,
inscribed, painted or affixed on any part of the outside or inside of the
building project, or on or about the demised premises, except on the glass of
the doors and windows of said premises, and on the Directory Board of the
building project, and then only of such color, size, style and materials as
shall be first specified by LESSOR in writing. No "For Rent" signs shall be
displayed by LESSEE, and no showcases, or obstructions, signs, flags, xxxxxx
poles, statuary, or any advertising device of any kind whatever shall be placed
in or in front of the building project or in the passageways, halls, lobbies, or
corridors thereof by LESSEE; and LESSOR reserves the right to remove all such
showcases, obstructions, signs, flags, xxxxxx poles, statuary or advertising
devices and all signs other than those provided for, without notice to LESSEE
and at LESSEE'S sole expense. Window shades, blinds or curtains of a uniform
color and pattern only shall be used throughout the building project to give a
uniform color exposure through exterior windows. No awnings shall be placed.
Rule 2. LESSEE shall not, without LESSOR'S prior written consent, put up or
operate any steam engine, boiler, machinery or stove upon or in the demised
premises, or carry on any mechanical or manufacturing business thereon or retail
sales therefrom, or do any cooking thereon, or use or allow to be, used upon the
demised premises oil burning fluids, camphene, kerosene for heating, warming or
lighting, or anything for illuminating said premises (other than as provided by
LESSOR) or explosives. No article deemed extra hazardous on account of fire
shall be brought. into the demised premises.
Rule 3. No additional locks shall be placed upon any doors of the demised
premises. Upon the termination of the lease, LESSEE shall surrender to LESSOR
all keys and give LESSOR the explanation of the combination of all locks to
safes, safe cabinets or vault doors remaining on or in the demised premises.
Rule 4. Safes, furniture, boxes or other bulky articles shall be carried up
into the demised premises only with written consent of LESSOR first obtained,
and then only by means of such elevator, by the stairways, or through the
windows of the building project as LESSOR may in writing direct, and at such
times and in such manner and by such persons as LESSOR may direct. Any damage
done to the building or injury to LESSEE or to other persons taking a safe or
other heavy article in or out of the demised premises, shall be the
responsibility of LESSEE.
Rule 5. LESSEE shall be responsible for breakage of any glass or
partitions.
Rule 6. LESSEE shall not allow anything to be placed on the outside window
ledges of the demised premises, nor shall anything be thrown by LESSEE or his
employees, out of the windows of the building project.
Rule 7. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed. No
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by LESSEE.
Rule 8. No bicycle or other vehicles and no bird or animal shall be brought
into the offices, halls, corridors, or other parts of the building by LESSEE,
his agents, employees or invitees.
Rule 9. No person shall disturb the occupants of the building project by
the playing of any musical instruments, making of unseemly noises, or disturbing
by whistling, singing, shouting or playing radios, TV or stereos too loudly.
Rule 10. The demised premises shall not be used for lodging or sleeping,
nor for any immoral or illegal purposes, or for any purpose that will damage the
demised premises or injure the reputation of LESSOR or the building project.
Rule 11. The sidewalks, entrances, corridors, halls, passages, stairways
and elevators shall be under the exclusive control of LESSOR and shall not be
obstructed, or used by LESSEE for any purpose other than ingress and egress to
and from the demised premises.
Rule 12. Canvassing, soliciting and peddling in the building is prohibited.
Rule 13. All office and other equipment of any electrical or mechanical or
other nature shall be placed by LESSEE in the demised premises in approved
settings to absorb or prevent any vibration, noise or annoyance.
Rule 14. LESSEE shall not do or permit to be done, or bring or keep
anything, which shall in any way obstruct or interfere with the rights of other
tenants, or in any way injure or annoy them. LESSEE will abide with the laws
relating to fires, or with the regulations of the fire department, or any part
thereof, and with any of the rules and ordinances of the board of health. No
intoxicating liquor or liquors shall be sold in the building by LESSEE.
Rule 15. LESSEE shall not employ any persons other than the janitors of or
the contract cleaning company contracted by LESSOR (who will be provided with
pass-keys into the offices) for the purposes of cleaning or taking care of the
demised premises.
Rule 16. LESSEE shall observe strict care not to leave its windows open
when it rains or snows and for any fault or carelessness in any of these
respects, LESSEE shall make good any injury sustained by other leesees. LESSEE
is responsible for damage to paint, plastering or other parts of the building,
resulting from neglect or carelessness. No painting shall be done, nor shall any
alterations be made to any part of the building project by painting up or
enclosing doors or windows, nor shall there by any nailing, boring or screwing
into the woodwork or plastering without the prior written consent of LESSOR. No
connection shall be made to the electric wires or gas or electric fixtures
without the consent in writing on each occasion by LESSOR or its agent. All
glass, locks and trimmings in or upon the doors and windows of the building
project shall be kept whole and when any part thereof shall be broken, the same
shall immediately be replaced or repaired and put in order under the direction
and to the satisfaction of LESSOR or its agents. LESSEE shall not deface the
building project or the woodwork or the walls of the demised premises.
Rule 17. LESSOR in all cases retains the power to prescribe the weight and
position in the demised premises of iron safes or other heavy articles. LESSEE
must make arrangements with the manager of the building project when the
elevator is required for the purpose of the carrying of any freight or
furniture.
Rule 18. If LESSEE requires wiring for a xxxx or intercom, or installation
of any other electrical wiring, such wiring shall be done by an electrician
approved by the building manager in writing. No electrician shall be allowed to
do work unless by the written permission of LESSOR. If telegraphic or telephonic
services are desired, the wiring for same shall be done as directed by an
electrician approved by the building manager or by some employee of LESSOR who
may be instructed and supervised by the manager of the building. No boring or
cutting for wiring shall be done unless approved by LESSOR or its agents.
Rule 19. LESSOR reserves all vending rights.
Rule 20. LESSOR shall not be responsible to LESSEE for the non-observance
or violation of any of these Rules and Regulations by any other lessees. LESSOR
reserves the right to make such other reasonable Rules and Regulations as in his
judgement may from time to time be needed for safety, care and cleanliness of
the demised premises and the building project, and for the preservation of good
order therein. New Rules and Regulations shall be binding upon LESSEE thereto
the same as if they had been inserted at the time of execution upon proper
notice given.
