Exhibit 10.18
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Agreement") made and entered this 18th day of
May, 1999, by and between Metropolitan Realty & Development, LLC, an Arkansas
Limited Liability Company ("Landlord") and Bank of the Ozarks, wca, an Arkansas
Corporation d/b/a Bank of the Ozarks ("Tenant"). Now, therefore:
ARTICLE I
PREMISES
Section 1.1 Description. Landlord hereby leases to Tenant, and Tenant
takes from Landlord, that certain real property located in the "Center," as
hereinafter defined, and described as follows:
A building pad comprising approximately 7,960 square feet of ground
area located in Xxx 00, Xxxxx 00, Xxxxxxxx Addition to North Little Rock,
Arkansas, also known as 0000 Xxxxx Xxxxx Xxxxxxxxx, and more particularly
described by metes and bounds on Exhibit A-1" attached hereto and made a
part hereof;
(the "Premises"). The boundaries and location of the Premises are indicated by
hatching on the site plan of North Hills Plaza Shopping Center (the "Center" or
"Shopping Center"), which is marked Exhibit "A" attached hereto and made a part
hereof. The Center is more particularly described on Exhibit "A-2", attached
hereto and made a part hereof. The use and occupation by the Tenant of the
Premises shall include the use in common with others entitled thereto of the
common areas, employees' parking areas, service roads, loading facilities,
sidewalks, customer parking areas, and other facilities as may be designated
from time to time by Landlord, subject however to the terms and conditions of
this Agreement and to rules and regulations for the use thereof as prescribed
from time to time by Landlord.
ARTICLE II
TERM
Section 2.1 Initial Term. The term of this demise shall commence on the
date hereof and shall end at midnight on the last day of the month which is
twenty (20) years after the month of the Rental Commencement Date (the "Term").
Section 2.2 Extension. Tenant shall have the right and option to extend
the Term of this Agreement for four (4) successive periods of five (5) years
each (the "Option Periods") upon giving notice of its exercise of each option at
least sixty (60) days, but not more than one hundred twenty (120) days, prior to
the expiration of the then current Term. Each of these options to extend are
contingent upon Tenant not being in default under this Agreement at the time the
option is exercised and at the commencement of the extended Term. All references
in this Lease to Term shall include the Term as defined in Section 2.1, together
with any
extensions thereof resulting from the exercise of one of the Option Periods set
forth in this Section 2.2.
Section 2.3 Surrender of Premises. On or before the last day of the Term
or Option Periods of this Agreement, Tenant shall surrender the Premises to
Landlord in good condition and repair except for reasonable wear and tear and
damage by insured casualty. On or before said day, Tenant shall remove all its
personal property and equipment and trade fixtures from the Premises. Tenant
shall repair any damage caused by any such removal. Notwithstanding the
foregoing provisions, if Tenant shall fail to remove any such property it shall
be obligated to remove hereunder, Landlord may effect such removal for and at
the expense of Tenant and shall thereafter reimburse Landlord upon demand for
any reasonable expense incurred by Landlord in effecting such removal.
Section 2.4 Holdover. If Tenant remains in possession of the Premises
with Landlord's consent after the expiration of the Term or any written
extension or renewal of the Term, such continued possession shall create a
tenancy from month-to-month upon the same terms and conditions herein so far as
applicable.
ARTICLE III
RENT
Section 3.1 Base Rent for Term. (a) Tenant shall pay Landlord the sum of
Fifty-two Thousand Five Hundred Dollars ($52,500.00) per annum, payable in equal
monthly installments, in advance, of Four Thousand Three Hundred Seventy-Five
Dollars ($4,375.00) on or before the first day of each calendar month during the
Term without prior demand and without abatement or setoff, commencing on the
earlier of (i) the date when Tenant opens for business to the public or (ii) one
hundred eighty (180) days after Agreement execution (the "Rental Commencement
Date"). The foregoing amount shall be referred to as "Base Rent." It is agreed
that Base Rent for the first and last months of the Term, if they are only
partial calendar months, shall be prorated on the basis of a thirty (30) day
month.
(b) It is agreed that Base Rent shall be adjusted every five (5)
years of this Agreement by any increase or decrease in the "CPI," hereinafter
defined, if any, in the manner hereinafter set forth provided, however, in no
event shall Base Rent be less than the rental specified in Section 3.1(a) above.
The rental for the sixth Lease Year shall be the rent specified in (a) above,
increased by the same percentage as the percentage increase, if any, in the
Consumer Price Index ("CPI") for the second month preceding the beginning of the
sixth Lease Year over the CPI for the second month preceding the beginning of
the first Agreement year. "Lease Year" means each twelve-month period of the
Term including all extension periods. "Consumer Price Index" means the Consumer
Price Index for All Urban Wage Earners and Clerical Workers (CPI-W), all Items,
U.S. Average (1982-84 = 100) which is now compiled by the U.S. Department of
Labor, and shall mean and include such other index or statistics as may succeed
it, as adjusted to account for any change in the standard reference base year.
The foregoing procedure shall be followed every five (5) years during the Term.
Section 3.2 Additional Charges. (a) General. In addition to (and separate
from) its obligation to pay Base Rent as provided in this Article, Tenant agrees
to reimburse Landlord the amount equal to Tenant's pro rata share of the
expenses of operating and maintaining North Hills Plaza Shopping Center
including, but not limited to, Center "Operating Costs" as defined in Section
9.1, real estate taxes (including special assessments) and liability insurance
premiums paid by Landlord with respect to the Center (these charges, as defined
herein and otherwise determined from time to time, shall be called the
"Additional Charges").
For common area maintenance and insurance purposes, Tenant's pro rata
percentage of such expenses shall be based upon a fraction, the numerator of
which shall be 7,960 square feet (the approximate total area of the building pad
site) and the denominator of which shall be the area in the Shopping Center on
which construction is complete and occupied or available for occupancy as
reasonably determined by Landlord from time to time and communicated to Tenant
in writing by Landlord; said area shall be measured from the outside of exterior
walls and the middle of shared interior walls. Tenant shall not be required to
pay a pro rata share of the premium for fire insurance on the buildings within
the Shopping Center, but Tenant shall be required to pay a pro rata share of the
premium for liability insurance coverage on the common areas within the Shopping
Center which are complete and ready for use as reasonably determined by Landlord
from time to time and communicated to Tenant in writing by Landlord.
For real estate tax purposes, Tenant shall not be required to pay any
portion of the real estate taxes levied on the buildings within the Center other
than Tenant's building, defined herein, but shall be required to pay a pro rata
share of the real estate taxes levied on the land and the common area
improvements within the Center. Any and all improvements constructed by Tenant
on the Premises ("Tenant's building") shall be separately assessed for real
estate tax purposes, and Tenant shall be responsible for and pay before same is
due the resulting real estate tax on same. Until the Shopping Center is
completed and occupied or available for occupancy, Tenant's pro rata share of
the real estate taxes levied upon the land and the common area improvements of
the Center (general and special assessments) shall be based upon a fraction, the
numerator of which shall be 7,960 square feet and the denominator of which shall
be 46,500 square feet, the total leaseable building floor area contemplated to
be constructed within the Shopping Center, including Tenant's 7,960 square feet
(e.g. 7,960 divided by 46,500 equals 17.12%). At such time as the entire
leaseable area of space within the Center has been constructed and is occupied
or available for occupancy, the denominator which shall be used to compute
Tenant's pro rata share of real estate taxes shall then be the actual total
square footage of leaseable area within the center. Notwithstanding the
aforementioned, in no event shall Tenant's pro rata share of real estate taxes
exceed 20% of the total real estate taxes for the land and common area
improvements portions of the Shopping Center.
Real estate taxes for purposes hereof shall include all real estate taxes,
assessments (both general and special) and other governmental impositions to the
extent of charges lawfully created and assessed. However, notwithstanding
anything to the contrary herein, if at any time during the Term there shall be
levied or assessed in substitution of real estate taxes, in whole or in part, a
tax, assessment or governmental imposition (other than a general gross receipts
or income tax) on the rents received from the premises or the rents reserved
herein, and said tax, assessment or governmental imposition shall be imposed
upon Landlord, Tenant shall pay same as hereinabove
provided, but only to the extent that such new tax, assessment or governmental
imposition is a substitute for real estate taxes previously imposed.
Also, if at any time, in the judgment of the Landlord reasonably exercised,
it shall become necessary so to do, the Landlord, after written notice to the
Tenant, may, under protest if so requested by Tenant, pay such monies as may be
required to prevent the sale of the Premises or any part thereof, or foreclosure
of the lien created thereon by such item, and such amount shall become
immediately due and payable by Tenant to Landlord and shall constitute
additional rent hereunder, or at Tenant's option and at Tenant's sole cost and
expense, in lieu thereof, Tenant shall obtain lien release bonds in amounts
equal to the claims of any such liens or as otherwise required by applicable law
(or shall provide Landlord with other security reasonably acceptable to
Landlord).
At the expiration of the term of this Lease, taxes, impositions,
assessments, or other similar expenses required to be paid by Tenant hereunder
shall be apportioned in the same manner as such taxes were apportioned prior to
the Rent Commencement Date, and Landlord shall pay that portion thereof
applicable to the period after the expiration of the term of this Lease.
Notwithstanding that the amount of such taxes will not be known until after the
expiration of this Lease, Tenant agrees to reimburse Landlord within thirty (30)
days after written request therefore, for Tenant's share of taxes relating to
time periods prior to the expiration of the Term of this Lease. Unpaid amounts
shall accrue interest at the lesser of (i) the highest interest rate permitted
by law or (ii) the rate of ten percent (10%) per annum, if not paid within such
thirty (30) day period.
(b) Manner of Collecting Additional Charges. Tenant shall pay, in
advance, on the first day of each calendar month of the Term, commencing on the
"Rental Commencement Date," 1/12th of the estimated annual Additional Charges,
such estimate to be made by Landlord in its reasonable discretion and delivered
by Landlord to Tenant in writing prior to the beginning of each calendar year of
the Term. Within 30 days after the end of each calendar year, Landlord will
provide to Tenant an accounting of the actual Additional Charges for the Center
for that 12-month period. Landlord estimates Tenant's monthly Additional Charge
for the first calendar year of the Term to be $500.00.
ARTICLE IV
USE OF PREMISES
Section 4.1 Purpose. The Premises will be leased to Tenant for the sole
and exclusive purpose of operating a branch banking facility and related
activities commonly carried on in bank branches, such as sales of securities,
insurance, etc., this provision being a material part of the consideration for
Landlord entering into this Agreement. No other use of the Premises shall be
allowed without Landlord's prior written consent which shall not be unreasonably
withheld, provided, without limiting Landlord's rights, it is agreed that
Landlord will not be deemed to be unreasonable if it does not approve any other
use of the Premises if such use: (i) is to perform governmental or quasi-
governmental functions; (ii) is to operate any business that in Landlord's
opinion is unsuitable for the then-tenant mix and character of the Center; or
(iii) or if any such use will violate any exclusive use provision contained in
any lease for space in the Center of any
other then-existing tenant of the Center. Tenant agrees to continuously use the
Premises as a branch bank facility during the Term of this Agreement, subject to
the provisions of this Section 4.1 and subject to the provisions of Article 15.1
hereof.
Section 4.2 Construction. (a) Tenant shall have the right to construct
and maintain a building and various site improvements, all of which are
expressly subject to the prior written approval of Landlord as to all aspects,
including but not limited to design, location on the Premises and elevation,
which approval may be withheld at Landlord's discretion. Tenant agrees to
provide all plans and specifications for such building and site improvements to
Landlord within thirty (30) days from the date hereof. Tenant further agrees to
complete the construction of such building and site improvements within One
Hundred Eighty (180) days from the date hereof.
(b) Tenant shall, during the Term and Option Periods, own all
improvements made by Tenant on the Premises, provided that upon the occurrence
of the event of default hereunder, and this Agreement is terminated on account
thereof, then any building and improvements and Trade Fixtures shall, ipso
facto, become the property of Landlord.
(c) Upon the expiration of the Term or Option Periods, the building
and all site and other improvements shall be the sole property of Landlord, this
being a material part of the consideration for this Agreement.
(d) At the expiration of the Term or Option Periods or at the
termination of this Agreement, Tenant, or those claiming through Tenant, shall
remove any and all of Tenant's personal property and trade fixtures located upon
the Premises immediately and turn over possession of the Premises to Landlord.
Notwithstanding anything contained in this Article to the contrary, if any trade
fixtures cannot be removed from the Premises without causing structural damage,
then such damage shall be repaired by Tenant at Tenant's sole cost and expense,
or, such trade fixtures shall not be removed but shall, ipso facto, become the
property of Landlord.
4.4 Discharge of Liens. Notice is hereby given that Landlord shall not be
liable for any work or materials furnished to Tenant on credit and that no
mechanics', materialmen's or other liens for any such work or materials shall
attach to or affect Landlord's interest in the Premises. Whenever any such lien
shall be filed against the Premises based on any work or materials supplied to
Tenant or any person claiming through Tenant, Tenant shall forthwith take such
action by bonding or otherwise as will remove or satisfy such lien. Tenant
shall indemnify and hold Landlord harmless from any loss, including attorneys
fees, resulting from Tenant's failure to remove or satisfy any such lien.
ARTICLE V
MAINTENANCE AND REPAIRS
Section 5.1 Repair Obligation. All improvements on or about the Premises
including, without limitation, plumbing, heating, roof, exterior and interior
walls, including all glass, all structural components, electrical, mechanical,
air conditioning and ventilating work which are or
may hereafter be erected or placed in the Premises at any time during said Term
shall be kept in good condition, order and repair (making all necessary
replacements thereto) by Tenant at its sole cost and expense.
Section 5.2 Alterations Required by Government. Tenant shall comply with
all laws, ordinances, orders, regulations, rules, requirements, notices,
violations and penalties (hereinafter called "legal requirements") of every kind
and nature, relating to the Premises or, to repairs, changes or requirements to
or in or about the Premises or to changes or requirements incident to or as the
result of any use or occupation thereof, of the municipal, state and federal
authorities, and each of them, their bureaus and departments, having
jurisdiction over or relating to the Premises and the improvements on the
Premises. Tenant shall have the right to contest the validity of or seek a
variance from or review said legal requirements by legal proceedings or in such
other manner as it deems suitable, and may have, if able, said legal
requirements canceled, removed or revoked without actual compliance with the
same, and if such actions or proceedings be instituted, they shall be conducted
promptly at the expense of Tenant and free of expense to Landlord. If and
whenever said legal requirements shall become absolute against Tenant and the
Premises, or against Landlord, after contest thereof, Tenant shall then comply
with the same with due diligence, and if in default thereof for fifteen (15)
days, Landlord may comply therewith and the cost and expense of so doing may be
paid by Landlord, and Tenant will reimburse Landlord on demand for such cost and
expenses incurred by Landlord. Landlord will join in any contest provided for in
this Article at the request of Tenant, but at Tenant's sole cost and expense and
Tenant shall indemnify Landlord against costs or other damages by reason of such
joinder.
Section 5.3 Compliance With Public Accommodation Laws. Tenant assumes all
responsibility for compliance of the Premises with any and all applicable laws,
regulations and building codes governing non-discrimination in public
accommodations commercial facilities ("Public Accommodation Laws"), including
without limitation, the requirements of the American Disabilities Act, 42 U. S.
C. 12-101 and all regulations and promulgations thereunder. Tenant agrees to
indemnify, defend and hold harmless Landlord from and against any and all
claims, liabilities, fines, penalties, losses and expenses (including attorneys'
fees) arising in connection with Tenant's failure to comply with the provisions
of this Section.
ARTICLE VI
CONSTRUCTION AND RELOCATION OF
IMPROVEMENTS AND ADDITIONS TO NORTH HILLS PLAZA
Section 6.1 General. The purpose of the Shopping Center site plan (which
is attached as Exhibit "A") is to show the approximate current location of the
improvements, parking areas and other areas in the Center. Landlord reserves the
right at any time to modify the site plan of the Center (other than the Premises
itself) and reconfigure the improvements, parking areas, entrances, common
areas, etc., in a manner that is otherwise consistent with law. Landlord also
reserves the right to construct other improvements or additions in the Center,
other than on the Premises (including the addition of elevated parking
facilities) provided the ratio of the parking spaces to the leased area in the
Center shall not be reduced to less than four (4) spaces for each 1,000 square
feet of leased building floor area in the Center. If any common area is
diminished, changed or altered, Landlord shall not be subject to any liability
for damages which Tenant
might incur as a result of the interruption or diminution of business or general
inconvenience. Furthermore, Tenant shall not be entitled to any rental
adjustment, nor shall any change, alteration or diminution be deemed to be a
constructive or actual eviction.
ARTICLE VII
SIGNS, AWNINGS, CANOPIES, FIXTURES, ALTERATIONS
Section 7.1 Alterations by Tenant. Tenant shall not make any changes to
the building exterior of any building located on the Premises without first
obtaining Landlord's written approval and consent, which approval and consent
shall not be unreasonably withheld, provided it will not be unreasonable for
Landlord to withhold consent of any such changes will: (1) reduce the value of
the Premises, (2) increase the height of any building on the Premises, or (3)
not be architecturally compatible with the other buildings within the Center.
Tenant shall present to the Landlord plans and specifications for such work at
the time approval is sought.
Section 7.2 Signs, Awnings and Canopies - Sign Criteria. Except for
the signs set forth on Exhibit B attached hereto and made a part hereof, which
conform to the criteria set forth thereon and which are hereby approved, Tenant
will not place or cause, to be placed or maintained on the Center pylon sign or
on any exterior door, wall, or window of Tenant's building upon the Premises or
anywhere on the Premises or the Center, any decoration, lettering or advertising
matter without first obtaining Landlord's written approval and consent, which
consent may be withheld at Landlord's sole discretion provided, Landlord agrees
that it will not unreasonably withhold its approval and consent to any such sign
to be located on Tenant's exterior doors and windows which posts Tenant's hours
of operation or any other such sign for advertising and/or notices on said doors
and windows of such sizes, number, locations and types and of such materials as
is common or typical for branch banking facilities located in or adjacent to
first class retail shopping centers. Tenant further agrees to maintain such
approved sign, awning, canopy, decoration, lettering, advertising matter or
other thing in good condition and repair at all times at Tenant's sole cost and
expense.
Section 7.3 Sign Removal. Tenant shall, at the termination of this
Agreement, effect the removal of any and all signs which it used in its
business. Tenant shall have a period of thirty (30) days to effect such removal
at its own expense and shall restore the Premises to the condition they were in
prior to the sign being installed, normal wear and tear excepted.
Section 7.4 Shopping Center Pylon Sign. Landlord agrees to erect at least
one (1) pylon sign for the Center at the location shown on Exhibit "A,"
conforming to size and criteria set forth on Exhibit "B-1," and Landlord agrees
that Tenant shall be allowed a position on such pylon sign in the location and
conforming to the size and criteria set forth on said Exhibit "B-1." Tenant
shall pay for the cost of Tenant's sign face and graphics as well as future
upkeep and maintenance of those items. Upkeep and maintenance of all other pylon
sign components shall be a common area maintenance expense.
ARTICLE VIII
PARKING AND COMMON USE AREAS AND FACILITIES
Section 8.1 Common Areas. The term "Common Area" is defined for all
purposes of this Agreement as that part of the Center from time to time intended
for the common use of all tenants and their customers, including but not limited
to such facilities as the parking area, private streets and alleys, landscaping,
curbs, loading areas, sidewalks, malls and promenades (enclosed or otherwise),
lighting facilities, drinking fountains, meeting rooms, public toilets, and the
like but excluding streets and alleys maintained by a public authority. Tenant,
and its employees and customers, and when duly authorized pursuant to the
provisions of this Agreement, its subtenants, licensees and concessionaires,
shall have the non-exclusive right to use the Common Area as constituted from
time to time, such use to be in common with Landlord, other tenants of the
Center and other persons permitted by Landlord to use the same, and subject to
such reasonable rules and regulations governing use as Landlord may from time to
time prescribe.
Section 8.2 Control of Common Areas by Landlord. The Common Areas in or
about North the Center 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 reasonable rules and regulations with respect
to all facilities and area mentioned in this Article. In addition to Landlord's
rights under this Agreement, to which the provisions of this Article are
expressly subject, Landlord shall have the right to construct, maintain, and
operate lighting facilities on all said areas and improvements, to police the
same, from time to time to change the area, level, location, and arrangement of
parking areas and other facilities hereinabove referred to; to restrict parking
by tenants, their officers, agents and employees to employee parking areas; to
close all or any portion of said area of facilities to such extent as may, in
the opinion of Landlord's counsel, be legally sufficient to prevent a dedication
thereof or the accrual of any rights to any person or the public therein; to
close temporarily all or any portion of the parking areas or facilities to
discourage non-customer parking and to do and perform such other acts in and to
said areas and improvements as in the use of good business judgment, Landlord
shall determine to be advisable with a view to the improvement of the Center and
use thereof by Tenant, its officers, agents, employees and customers. Landlord
shall control, operate, and maintain the common facilities referred to above in
such manner as Landlord, in its sole discretion, shall determine from time to
time. Without limiting the scope of such discretion, Landlord shall have the
full right and authority to employ all personnel and to make all contracts,
rules, and regulations pertaining to and necessary for the proper operation and
maintenance of the common areas and facilities.
ARTICLE IX
COST OF MAINTENANCE OF COMMON AREAS
Section 9.1 Operating Costs. "Operating Costs" shall mean the total costs
and expenses incurred by Landlord in operating and maintaining the Common Areas
of the Center, its outside area, and the mall area, if any, including but
without limitation, such maintenance and repair as shall be required in
Landlord's judgment to preserve the utility thereof in the same condition and
status as it was at the time of completion of the construction and installation
of any improvements thereon, together with operating costs of any subsequent
capital improvements made by Landlord; repair of any entry canopy or door,
stairs, elevators, or escalators; costs and expenses of planting, maintaining,
replanting and replacing flowers, plants and landscaping;
water and sewer charges; exterior painting; required licenses and permits; costs
and expenses of supplies; the operation of loudspeakers and any other equipment
supplying music; exterior furniture, fixtures, and decorations; exterior
illumination of the buildings and the outside area and interior illumination of
the buildings (including maintenance of fixtures and the cost of light bulbs);
illumination, maintenance, and replacement of lighting and other equipment and
sanitary control facilities; parking lot line restriping; removal of snow, ice,
trash, rubbish, garbage and other refuse; trash dumpsters or other receptacles;
all costs and expenses of fire protection and sprinkler maintenance; security
costs (provided it is expressly understood and agreed that Landlord shall have
no obligation to provide security for Common Areas), including personnel and
burglar alarms; fire hydrant or fire sprinkler fees; traffic control and
policing (provided it is understood and agreed that Landlord shall have no
obligation to provide same); holiday and other decorations; depreciation of the
capital cost of and rents for the leasing of any machinery, equipment (including
lighting, heating and air conditioning) and vehicles used in connection with
operation or maintenance; repair and replacement of on-site water, electricity,
gas, sanitary and storm sewer lines; all charges for utility services; special
assessments; fees for audits, permits, franchise fees and licenses. The
operating costs hereinabove described shall be subject to audit by Tenant at
Tenant's expense no more often than once each year upon at least twenty (20)
days prior written notice to Landlord at Landlord's offices. Landlord shall use
commercially reasonable efforts to minimize such costs of operation, management
and maintenance in a manner consistent with generally accepted property
management practices within North Little Rock, Arkansas.
ARTICLE X
INSURANCE AND INDEMNITY
Section 10.1 Landlord's Insurance. At all times during the term of this
Agreement, Landlord will carry and maintain (i) fire and extended coverage
insurance covering the Shopping Center (other than the Premises) and the
Shopping Center's (other than the Premises) equipment and common area
furnishing, and (ii) comprehensive general liability insurance covering the
common areas of the Center in such amounts as Landlord determines from time-to-
time in its reasonable discretion. Tenant will reimburse Landlord, as an
Operating Expense, for the costs of all such liability insurance for the common
areas of the Center in accordance with Article 3.
Section 10.2 Tenant's Liability Insurance. Tenant shall, during the Term
and Option Periods, keep in full force and effect comprehensive general
liability insurance coverage insuring against property damage and public
liability arising by reason of occurrences on or about the Premises in a minimum
amount of $2,000,000 combined single limit, which policy shall include (i)
coverage for bodily injury, death, property damage and products liability
coverage; and (ii) contractual liability coverage insuring Tenant's obligations
under Section 10.5 of this Agreement.
Section 10.3 Workers' Compensation Insurance. Tenant shall, during the
Term and Option Periods, keep in full force and effect a policy of workers'
compensation and employer's liability in an amount as required by the laws of
the State of Arkansas.
Section 10.4 Tenant's Fire/Extended Coverage Insurance. Tenant shall,
during the Term and Option Periods, keep in full force and effect a policy of
fire and extended coverage insurance
on its building and improvements, alterations, additions, fixtures, equipment,
merchandise, trade fixtures and other property placed on the Premises. Such
policy shall contain a replacement cost endorsement. In the event that Tenant
sustains a loss by reason of fire or other casualty which is covered (or could
have been covered) by a fire and extended coverage insurance policy or other
insurance policy or rider thereto, and such fire or casualty is caused in whole
or in part by acts or omissions of Landlord, its agents, servants or employees,
then Tenant agrees to look solely to its insurance proceeds (if any); and Tenant
shall have no claim or right of recovery against Landlord, or the agents,
servants or employees of Landlord; and no third party shall have any claim or
right of recovery by way of subrogation or assignment or otherwise. To the
extent that Tenant fails to take out or maintain the aforesaid fire and extended
coverage insurance policy, such failure shall be a defense to any claim asserted
by Tenant against Landlord by reason of any loss sustained by Tenant due to fire
or other casualty, notwithstanding that such loss might have been proximately
caused solely by the negligence of Landlord. Such insurance policy shall contain
a loss payable clause designating Tenant and Landlord as loss payees as their
respective interests may appear. Tenant agrees that Landlord shall not be
responsible or liable to Tenant or those claiming under Tenant for injury, death
or damage or loss occasioned by the acts or omissions of persons occupying any
part of the Center or occasioned by the condition of the Center or property of
any other occupant of any part of the Center or the acts or omissions of any
other person or persons present at the Center who are not occupants of any part
thereof, whether or not such persons are present with the knowledge or consent
of Landlord.
Section 10.5 Indemnification of Landlord. Tenant shall indemnify Landlord
and save it harmless from and against any and all losses, claims, actions,
suits, damages, liabilities and expenses arising (or allegedly arising) in or
out of any occurrence in, upon or at the Premises and regardless of how the same
may have been caused; or the occupancy or use by Tenant of the Premises or any
part thereof; or occasioned wholly or in part by any act or omission of Tenant,
its agents, contractors, employees, customers, servants, licensees or
concessionaires. Landlord shall not be liable for and Tenant further agrees to
indemnify and release Landlord from any claim arising out of damage or loss to
Tenant's improvements, fixtures, stock in trade or other property caused by acts
of third parties or by the condition of the Premises, including vandalism,
malicious mischief, theft, burglary, or any other criminal act; or alleged
damage occasioned by the failure of the Landlord to perform any contractual
duty. In case Landlord shall, without fault on its part, be made a party to any
litigation commenced by or against Tenant, then Tenant shall protect and hold
Landlord harmless and shall pay all costs, expenses and reasonable attorneys'
fees incurred or paid by Landlord in connection with such litigation. Tenant
shall also pay all costs, expenses and reasonable attorneys' fees that may be
incurred or paid by Landlord in connection with such litigation.
Section 10.6 Failure to Adequately Insure. The Tenant's failure to insure the
Premises or indemnify Landlord as provided herein shall be an Event of Default
which shall entitle Landlord to pursue any and all courses of action available
to him by law or as a result of the execution of this Agreement.
Section 10.7 Policies And Certificates. Copies of policies or an "Xxxxx 27
Evidence of Property Insurance" form evidencing the insurance required by this
Article, each bearing notations evidencing payment of the premiums or other
evidence of payment satisfactory to Landlord, shall be delivered by Tenant to
Landlord. In the case of expiring policies throughout
the Term and Option Periods, copies of certificates of any new or renewal
policies, each bearing notations evidencing payment of the premiums or other
evidence of payment satisfactory to Landlord, shall be delivered by Tenant to
Landlord.
Section 10.8 Insured Parties. Policies of insurance required by this
Section shall name Landlord and Tenant as insured as their respective interests
may appear and shall contain a cross-liability endorsement where possible.
Section 10.9 Insurers. All insurance required by this Article shall be
effected with insurance companies authorized to do business in Arkansas and
shall be rated at least A+ Class X by Best's Insurance Reports and shall be
selected by Tenant. When Landlord is an interested party, the selection of the
insurance company shall be subject to the reasonable approval of Landlord.
Tenant shall cause appropriate provisions to be inserted in each insurance
policy making each policy noncancellable without at least thirty (30) days prior
written notice to Landlord and Tenant. No claim shall be made and no suit or
action at law or in equity shall be brought by Landlord, or those claiming
through Landlord, against Tenant for any damage to the trade fixtures covered by
the insurance required by this Article, however caused, but nothing herein shall
diminish Tenant's obligation to repair as required in Article V hereof.
ARTICLE XI
REQUIREMENTS OF LAW, FIRE INSURANCE
Section 11.1 General. Tenant, at its expense, will comply with all
applicable governmental laws, orders and regulation, and with any direction of
any public officer of officers, according to law, that will impose any
violation, order or duty upon Landlord or Tenant with respect to the Premises or
their use or occupancy. Tenant agrees to indemnify, defend and hold harmless
Landlord from and against any and all claims, liabilities, fines, penalties,
losses and expenses (including attorneys' fees) arising in connection with
Tenant's failure to comply with the provisions of this Section.
Section 11.2 Toxic Materials. Tenant will not store, use, or dispose of
any hazardous, toxic, corrosive, explosive, reactive, or radioactive matter in,
on, or about the Premises or the Shopping Center. Tenant agrees to indemnify,
defend and hold harmless Landlord from and against any and all claims,
liabilities, fines, penalties, losses and expenses (including attorneys' fees)
arising in connection with Tenant's failure to comply with the provisions of
this Section.
Section 11.3 Certain Insurance Risks. Tenant will not do or permit to be
done any act or thing upon the Premises which would (i) jeopardize or be in
conflict with fire insurance policies covering the Shopping Center and fixtures
and property in the Shopping Center; (ii) increase the rate of fire insurance
applicable to the Shopping Center to an amount higher than it otherwise would be
for the general use as a Shopping Center; or (iii) subject Landlord to any
liability or responsibility for injury to any person or persons or to property
by reason of any business or operation being carried on upon the Premises;
however, this Section 11.3 will not prevent Tenant's use of the Premises for the
purposes stated herein.
Section 11.4 Tenant's Insurance Payments. If, as a result of any act or
omission or
violation of this Agreement by Tenant, the rate of fire insurance applicable to
the Shopping Center or any other insurance carried by Landlord is increased to
an amount higher than it otherwise would have been, Tenant will reimburse
Landlord for the increased cost of Landlord's insurance premiums. Such
reimbursement will be rent payable upon the first day of the month following
Landlord's delivery to Tenant of a statement showing payment by Landlord for
such increased insurance premiums. In any action or proceeding in which Landlord
and Tenant are parties, a schedule or "make up" of rates for the Shopping Center
or Premises issued by the body making fire insurance rates for the Premises will
be presumptive evidence of the facts stated and of the several items and charges
in the fire insurance rate then applicable to the Premises.
ARTICLE XII
RULES AND REGULATIONS
Section 12.1 Change of Name. Tenant agrees not to change the advertised
name of the business operated in the Premises without the written permission of
Landlord, which shall not be unreasonably withheld
Section 12.2 Solicitation of Business. Tenant and Tenant's employees and
agents shall not solicit business or advertise in any area beyond the Premises
itself (i.e. Tenant's lease line) or in the parking or other Common Areas, nor
shall Tenant distribute any handbills or other advertising matter on automobiles
parked in the parking area or in other Common Areas.
Section 12.3 Rules, Rights and Regulations. Landlord reserves the right
to adopt and promulgate reasonable rules and regulations applicable to the
Premises and North Hills Plaza and from time to time to amend or supplement said
rules and regulations. Notice of such rules and regulations and amendments and
supplements, shall be given to Tenant and Tenant agrees to comply with and
observe such rules and regulations and amendments thereto and supplements
thereof. The neglect or failure of any other tenant to observe and comply with
such rules and regulations shall not excuse Tenant from doing so.
ARTICLE XIII
UTILITIES
Section 13.1 Utility Charges. Tenant shall be solely responsible for and
promptly pay all charges for water, gas, electricity, telephone, or any other
utility used or consumed with respect to the Premises. In no event shall
Landlord be liable for an interruption or failure in the supply of any such
utilities to the Premises.
Section 13.2 Sprinkler Head Charges. In the event the Premises contains a
fire protection sprinkler system and any Governmental authority (municipal or
otherwise) charges a sprinkler fee, Tenant shall pay to such authority any such
charge upon presentation of a xxxx for same, regardless of whether such xxxx is
addressed to Landlord or Tenant.
ARTICLE XIV
DESTRUCTION AND RESTORATION
Section 14.1 Damage to Premises. Subject to the provisions of Section
14.4 hereof, if at any time during the Term or the Option Periods, the building
located on the Premises, or any part thereof, or other improvements located on
the Premises shall be damaged or destroyed by fire or other casualty against
which Tenant is required by the terms of this Lease to maintain insurance,
Tenant (or any party acting on behalf of Tenant) may, at is election, proceed
with due diligence (subject to reasonable time allowance for the purpose of
adjusting the insurance loss or force majeure, as defined in Section 21.12
hereof, and provided Tenant complies with all of the terms and conditions of
this Lease) to repair, replace or rebuild said damaged improvements or damaged
building to the character and condition existing prior to such damage or
destruction including only such variations and alterations as may be approved by
Landlord in writing prior to commencement of such repair, replacement or
rebuilding and subject to any other restrictions contained in this Lease, if any
("Restoration Work"); provided that if, on or before that date which is three
hundred sixty-five days after the date of the damage or destruction, Tenant has
not completed, or is not in the process of, and diligently proceeding to,
rebuild the Premises, or if Tenant thereafter fails to diligently proceed to
complete such rebuilding, then Landlord shall have the right at any time
thereafter (but prior to commencement of such rebuilding) to terminate this
Lease on thirty (30) days notice to Tenant and on the expiration of such notice
this Lease shall terminate and neither the party shall have any further
liability hereunder except as provided in Section 14.4 hereof. Notwithstanding
anything to the contrary contained herein, Tenant shall ensure that any damaged
or destroyed building and improvements are put into a safe, sightly and secure
condition, including any necessary razing and removing of debris as soon as
reasonably possible, and in no event later than one hundred eighty (180) days
after the date of such damage or destruction.
Section 14.2.
(a) If Tenant elects to restore the building and improvements, all
insurance proceeds payable to Landlord, Tenant or any fee mortgagee at any time,
as a result of casualty to the building or improvements, shall be paid directly
to Tenant, in trust, to be applied for the Restoration Work. Such funds shall be
used only for such purposes until the Restoration Work is completed and any
excess proceeds shall be retained by Tenant.
(b) Landlord shall cooperate fully with Tenant in order to recover the
largest possible insurance award and execute any and all reasonably required
consents and other instruments, and take all other reasonably required actions
necessary or desirable in order to effectuate same and to cause such proceeds to
be paid as hereinbefore provided.
Section 14.3. Except as otherwise expressly provided herein, this Lease
shall not be affected in any manner by reason of the total or partial
destruction of the building or improvements on the Premises or any part thereof,
and Tenant, notwithstanding any law or statute, present or future, waives all
rights to quit or surrender the Premises or any part thereof, and Tenant's
obligations under this Lease, including but not limited to, the payment of Base
Rent and Additional Charges, shall continue as though none of those events had
occurred and without abatement, suspension, or reduction of any kind.
Section 14.4. If Tenant does not elect to restore the building and
improvements
following damage or destruction of the Premises by fire or other casualty
pursuant to Section 14.1, and, in any event, upon termination of this Lease as
provided in Section 14.1 hereof, or pursuant to other provisions of this Lease:
(i) Tenant shall, at Tenant's sole cost and expense, complete any necessary
razing and remove all debris resulting from any damage or destruction due to a
fire or other casualty, put the Premises in a safe, sightly and secure condition
as soon as reasonably possible after any such damage or destruction, and in the
event of termination of the Lease pursuant to Section 14.1, or otherwise
pursuant to other provisions of this Lease, deliver the Premises to Landlord in
a clean, safe, sightly and secure condition as soon as reasonably possible after
such damage or destruction.
(ii) Tenant shall assign to Landlord (the form of which assignment shall be
reasonably satisfactory to Landlord) during the initial twenty (20) year Term, a
portion of the insurance proceeds payable as a result of such damage or
destruction equal to the amount determined by multiplying the insurance proceeds
by a fraction the numerator of which is the number of days from the "Rental
Commencement Date" of the Term to the date of the damage or destruction of the
Premises, and the denominator of which is the total number of days in the
initial twenty (20) year Term. During the Option Periods Tenant shall assign to
Landlord (the form of which assignment shall be reasonably satisfactory to
Landlord) One Hundred Percent (100%) of the insurance proceeds as a result of
such damage or destruction.
ARTICLE XV
ASSIGNMENT & SUBLETTING
Section 15.1 Generally. Tenant may not assign this Agreement or sublet
the Premises until the fully executed assignment of sublease has been presented
to and approved by Landlord, which approval shall not be unreasonably withheld,
subject to the following conditions:
Landlord agrees to not unreasonably withhold its consent to an assignment
of this Agreement or a subletting of the entire Premises by Tenant named herein,
provided that: (i) At least thirty (30) days before the proposed effective date
of the assignment or subletting, Landlord receives for approval a copy of a
fully-executed unconditional assignment or sublease together with (1) reasonably
detailed information as to the character, reputation and business experience of
the proposed assignee or subtenant together with such proposed assignees
intended use of the Premises, and (2) a financial statement on the proposed
assignee or subtenant certified as being true and correct by the chief financial
executive of the proposed assignee or subtenant; (ii) No breach or default on
Tenant's part exists at the time of the consent request and at the effective
assignment or subletting date; (iii) Any assignment or subletting will be upon
and subject to all terms and conditions of the Agreement; (iv) Any assignment
must specifically state (and, if it does not, it will be deemed to specifically
state) that the assignee assumes and agrees to be bound by all terms and
conditions of this Agreement, and any sublease must specifically state (and, if
it does not, it will be deemed to specifically state) that at Landlord's
election the subtenant will attorn to Landlord and recognize Landlord as Tenants
successor under the sublease for the balance of the sublease term if this
Agreement is surrendered by Tenant or terminated by reason of Tenant's default;
(v) Upon request and as additional rent, Tenant will pay to Landlord a
processing fee of $250.00, or such greater amount as may be reasonable under the
circumstances, for document review and/or preparation in connection with the
proposed transaction; (vi) No assignment or subletting will be to a then-
existing or former tenant or occupant of the Shopping Center nor violate or
conflict with the rights of any such party; (vii) Any assignment or subletting
must first be approved in writing by any mortgagee of Landlord having the right
of approval thereof.
Without limiting Landlord's rights, it is agreed that Landlord will not be
deemed to be unreasonable if it does not approve any assignee or subtenant which
will: (i) perform governmental or quasi-governmental functions; (ii) operate any
business that in Landlord's opinion is unsuitable for the then tenant mix and
character of the Shopping Center; or (iii) have a net worth insufficient to
support a lease to it as an original tenant, consistent with Landlord's then-
current practices and standards. An assignment or sublease to a financial
institution with a net worth at least equal to Tenant's upon the date of the
execution of this Agreement shall be presumed to be approvable. Any such
financial institution sublease or assignee shall be deemed approved as to its
specific use, however, any change of use thereafter shall be subject to
Landlord's reasonable approval, as set forth in (ii) immediately preceding and
in Section 4.1 hereof.
Notwithstanding any assignment or subletting, Tenant shall remain fully
liable on this Agreement and shall not be released from performing any of the
terms, covenants and obligations of this Lease. Further, consent by Landlord to
any assignment or subletting shall not constitute a waiver of the necessity for
such consent to a subsequent assignment or subletting.
ARTICLE XVI
EMINENT DOMAIN
Section 16.01. If substantially all of the Premises or substantially all
of the access thereto or therefrom shall be taken for any public or quasi-public
use under any statute or by right of eminent domain, or by purchase in lieu
thereof (a "Taking"), then this Lease shall automatically terminate as of the
date that possession has been so taken (the "Vesting Date").
Section 16.02.
(a) In the event of a Taking of less than substantially all of the
Premises or less than substantially all of the access thereto, Tenant may elect
to terminate this Lease and not restore the building if, by reason of the
Taking: (i) any portion of the ground floor area of the building located on the
Premises shall be taken; (ii) so much of the parking area adjacent to Premises
or so much of the access to the Premises from any public roadway adjoining same
is taken that Tenant in its reasonable opinion cannot operate its branch bank
business within the building on the Premises; (iii) there is a prohibition of
the use of the Premises for branch banking purposes; or (iv) there is any Taking
of the Premises occurring during the final five (5) years of the Lease Term.
(b) In the event Tenant elects by reason of the foregoing events to
terminate the Lease, Tenant shall give written notice of such election to
Landlord and any fee mortgagee of
Landlord accompanied by the consent of any subtenant of the entire Premises or
assignee of this Lease, if any, and the Lease Term shall expire and come to an
end as of the last day of the calendar month in which such notice is given.
Section 16.03. In the event of a Taking resulting in the termination of
this Lease pursuant to the provisions of Section 16.01 or 16.02 hereof, the
parties hereto agree to cooperate in applying for and in prosecuting any claim
for such Taking and further agree that the aggregate net award, after deducting
the reasonable expenses of Landlord, Tenant, and any fee mortgagee of Landlord,
including attorneys' fees, incurred in connection therewith, related to a Taking
of the Premises shall be paid to Landlord and distributed as follows, and in the
following order of priority:
(a) Tenant shall be entitled to an amount of the award equal to the
unamortized value of the building and other improvements erected by Tenant on
the Premises amortized on a straight line basis over the initial twenty (20)
year lease Term, and Landlord shall be entitled to an amount of the award equal
to the fair market value of Landlord's fee interest in that part of the land
comprising the portion of the Premises taken together with an amount of said
award equal to the amortized value of the building and other improvements
erected on the Premises by Tenant also amortized on a straight line basis over
the initial twenty (20) year lease Term. If the amount of the award is
insufficient to pay both Landlord and Tenant the foregoing sums in full, they
shall share in such proceeds pro rata;
(b) Tenant and Landlord shall next be entitled to that portion of the
award equal to the amount of such award which is specifically allocated in such
award to either of them for any specific loss suffered by either of them which
was not included in Section 16.03(a) above, including but not limited to such
items as the fair market value of their respective leasehold interest in the
Premises under this Lease, loss of trade fixtures, or the loss of business. If
the amount of such award is insufficient to pay Tenant and Landlord such sums in
full, they shall share in such remaining proceeds available for distribution in
this Subsection 16.03(b) pro rata;
(c) Landlord shall be entitled to the balance of the award.
Section 16.04.
(a) In case of a Taking of less than substantially all of the Premises
and if this Lease is not terminated as provided in Section 16.02 hereof, Tenant,
at its expense, shall proceed with diligence (subject to reasonable time periods
for purposes of adjustment of any award and Unavoidable Delays) to repair or
reconstruct the building and any improvements located on the Premises at the
time of the Taking to a complete architectural unit or units (all such repair,
reconstruction and work being referred to in this Article as "Reconstruction
Work") and the award in the condemnation proceedings related to the Premises,
after deduction of the expenses of Landlord, Tenant and any fee mortgagee of
Landlord incurred in connection with the Taking, shall be paid to Tenant for
purposes of paying the cost and expense of the Reconstruction Work. Such funds
shall be utilized only for "Reconstruction Work" and any funds not utilized for
Reconstruction Work shall be paid to Landlord. During the period in which the
Reconstruction Work has not been completed, and provided Tenant is not open for
business to the public in the
Premises, Tenant shall be entitled to a full abatement in all Base Rent. In the
event of a Taking of less than substantially all of the Premises affecting a
portion of land comprising the Premises not covered by the building, the Base
Rent hereunder shall, from and after the Vesting Date, be reduced by an amount
equal to the product of the Fixed Rent then in effect times a fraction, the
numerator of which shall be the number of square feet of the land within the
Premises so taken and the denominator of which shall be the number of square
feet of the entire land within the Premises prior to such Taking.
Section 16.05. Landlord and Tenant shall not, without the consent of the
other and any fee mortgagee of Landlord, make any settlement with the condemning
authority or convey any portion of the Premises to such authority in lieu of
condemnation or consent to any Taking.
Section 16.06.
(a) In the event of a dispute between Landlord and Tenant as to the
allocation and distribution of any condemnation award pursuant to this Article
16, and if Landlord and Tenant cannot agree on same within sixty (60) days after
the final award or awards shall have been fixed and determined, the dispute
shall be determined by arbitration in the manner provided in Section 16.06(b)
below utilizing the distribution and priority formula set forth in Section 16.03
above.
(b) In the event of a dispute between Landlord and Tenant as to allocation
and distribution of any condemnation award pursuant to this Article 16 requiring
arbitration pursuant to Section 16.06(a) above, the party desiring arbitration
shall give written notice to that effect to the other party, specifying in the
notice the name and address of the person designated to act as an arbitrator on
its behalf. Within 15 days after the service of such notice, the other party
shall give written notice to the first party specifying the name and address of
the person designated to act as an arbitrator on its behalf. If the second party
fails to notify the first party of the appointment of its arbitrator within the
time above specified, then the appointment of the second arbitrator shall be
made in the same manner as provided below for the appointment of a third
arbitrator in a case where the two arbitrators appointed under this Section and
the parties are unable to agree on the appointment. The arbitrators so chosen
shall meet within 10 days after the second arbitrator is appointed and if,
within 30 days after the second arbitrator is appointed, the two arbitrators
shall not agree on the allocation and distribution of condemnation proceeds,
they shall themselves appoint a third arbitrator who shall be a competent and
impartial person. In the event the two arbitrators are unable to agree on the
appointment of a third arbitrator within 10 days after the 30-day period, the
third arbitrator shall be selected by the parties themselves if they can agree
on the appointment within a further period of 15 days. If the parties do not so
agree, then either party, on behalf of both, may apply to the American
Arbitration Association for the appointment of a third arbitrator. The decision
of the arbitrators so chosen shall be given within a period of 30 days after the
appointment of the third arbitrator. The decision in which any two arbitrators
so appointed and acting under this Section concur shall in all cases be binding
and conclusive on the parties. Each party shall pay the fees and expenses of the
one of the two original arbitrators appointed, and the fees and expenses of the
third arbitrator, if any, shall be borne equally by both parties. All
arbitrators appointed hereunder must be MAI appraisers with at least ten (10)
years of commercial real estate appraisal experience. Except as otherwise
specifically set forth herein the arbitration provided in this Section 16.06(b)
shall follow rules established by a majority of the arbitrators in their sole
and absolute discretion, provided if a majority of the arbitrators cannot agree
on such rules then except as otherwise specifically set forth herein the
arbitration shall follow the rules of the American Arbitration Association.
ARTICLE XVII
TENANT'S PROPERTY
Section 17.1 Taxes on Leasehold. Tenant shall be responsible for and shall
pay before delinquency all municipal, county or state taxes of any nature
assessed during the Term and Option Periods of this Agreement against any
leasehold interest, fixtures, improvements, stock in trade, or personal property
of any kind, owned by or placed in, upon or about the Premises by the Tenant.
Section 17.2 Loss or Damage. Landlord shall not be liable for any damage
to property of Tenant or of others located on the Premises, nor for the loss of
or damage to any property of Tenant or of others by theft, burglary, any other
criminal act, or otherwise. Landlord shall not be liable for any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain or snow or leaks from any part of the
Premises or from the pipes, appliances or plumbing works or from the roof,
street or sub-surface or from any other place or by dampness or by any other
cause of whatsoever nature. Landlord shall not be liable for any such damage
caused by other Tenants or persons in the Premises, occupants of adjacent
property of North Hills Plaza, or the public, or caused by operations in
construction of any private, public or quasi-public work. All property of Tenant
kept or stored on the Premises shall be so kept or stored at the risk of Tenant
only and Tenant shall hold Landlord harmless from any claims arising out of
damage to the same, including subrogation claims by Tenant's insurance carrier,
unless such damage shall be caused by the willful act or gross neglect of
Landlord.
ARTICLE XVIII
SUBORDINATION AND MORTGAGES
Section 18.1 General. This Agreement and Tenant's rights under this
Agreement are subject and subordinate to any ground or underlying lease,
mortgage, indenture, deed of trust, or other lien encumbrance (each a "superior
lien"), together with any renewals, extensions, modifications, consolidations,
and replacements of such superior lien, now or after this date affecting or
placed, charged, or enforced against the Premises or the Center, or any interest
of Landlord in them or Landlord's interest in this Agreement and the leasehold
estate created by this Agreement (except to the extend any such instrument
expressly provides that this Agreement is superior to such instrument). This
provision will be self-operative and no further instrument of subordination will
be required in order to effect it provided, however, that Landlord agrees to
provide Tenant for any such existing "superior liens," other than Tenant if the
Tenant or any entity owned or controlled by Tenant is the holder of such
"superior liens," within sixty (60) days of the date hereof a non-disturbance
agreement which provides that in the event any such holder of a superior lien
succeeds to Landlord's interest in the Premises, that such successor in interest
will not disturb Tenant in its use of the Premises in accordance with this
Agreement so long as Tenant is not in default of any of the terms of this Lease
(hereinafter sometimes "Non-
Disturbance Agreement"). In the event Landlord fails to provide Tenant with the
foregoing "Non-Disturbance Agreement" within 60 days from the date hereof for
any existing holder of a "superior lien," then Tenant as its sole and exclusive
remedy shall have the right at any time thereafter until such "Non-Disturbance
Agreement" is provided to terminate this Agreement by written notice to
Landlord. Notwithstanding the foregoing, Landlord represents and warrants to
Tenant that as of the date of execution of this Agreement no such superior lien
exists and Landlord further agrees that it will not create any such "superior
lien" prior to the recording of a memorandum of this Agreement as contemplated
in Section 21.15 hereof, or until the expiration of thirty (30) days after the
date of execution of this Agreement, whichever first occurs. Notwithstanding the
foregoing, Tenant will execute, acknowledge, and deliver to Landlord, within 20
days after written demand by Landlord, such documents as may be reasonably
requested by Landlord or the holder of any superior lien to confirm or effect
any such subordination (hereinafter sometimes "Subordination Agreement")
provided, however, in the case of superior liens placed on the Premises or the
Center or any interest of Landlord in them or Landlord's interest in this
Agreement and the leasehold estate created by this Agreement, after the date
hereof, other than Tenant if the Tenant or any entity owned or controlled by
Tenant is the holder of such "superior lien," Tenant's requirement hereunder to
provide the foregoing "Subordination Agreement" shall be conditioned upon Tenant
receiving from such holder of a "superior lien" a "Non-Disturbance Agreement,"
as above defined, as a part of such Subordination Agreement or by separate
instrument contemporaneously therewith executed by the holder of such "superior
lien."
Section 18.2 Attornment and Nondisturbance. Tenant agrees that in the
event any holder of a superior lien succeeds to Landlord's interest in the
Premises, Tenant will pay to such holder all rents subsequently payable under
this Agreement. Further, Tenant agrees that in the event of the enforcement by
the holder of a superior lien of the remedies provided for by law or by such
superior lien, Tenant will, upon request of any person or party succeeding to
the interest of Landlord as a result of such enforcement, automatically become
the Tenant of and attorn to such successor in interest without change in the
terms or provisions of this Agreement. Such successor in interest will not be
bound by:
(a) Any payment of rent for more than one month in advance, except
prepayments in the nature of security for the performance by Tenant of its
obligations under this Agreement;
(b) Any amendment or modification of this Agreement made without the
written consent of such successor in interest (if such consent was required
under the terms of such superior lien);
(c) Any claim against Landlord arising prior to the date on which
such successor in interest succeeded to Landlord's interest; or
(d) Any claim or offset of rent against the Landlord.
Upon request by such successor in interest and without cost to Landlord or such
successor in interest, Tenant will, within 20 days after written demand,
execute, acknowledge, and deliver an
instrument or instruments confirming the attornment, so long as such instrument
provides that such successor in interest will not disturb Tenant in its use of
the Premises in accordance with this Agreement so long as Tenant is not in
default of any of the terms of this Lease.
Section 18.3 Mortgages. Tenant agrees it will not subject the Premises,
the Center, or its leasehold interest in the Premises to any mortgage, lien or
encumbrance without Landlord's prior written consent, which consent may be
withheld at Landlord's sole discretion.
ARTICLE XIX
DEFAULT PROVISIONS
Section 19.1 Events of Default. The following shall be deemed the events
of default under this Agreement:
(a) The failure of Tenant to pay when due or within five (5) days
thereafter the Rent, Additional Charges (e.g. Common Area maintenance, taxes,
insurance) or other sums provided for in this Agreement. If Rent or Additional
Charges are not paid within 5 days of the date it is due, Landlord, in addition
to any other rights or remedies set forth in this Article 19, or otherwise,
shall have the right to impose a late fee of five percent (5%) of the amount
due.
(b) The failure of either party to perform any term, condition,
covenant or agreement of this Agreement (excluding the payment of Rent or
Additional Charges) and the continuation of such failure for a period of twenty
(20) days after the other party has been given written notice specifying the
same or in a case where default cannot be cured within twenty (20) days, if the
defaulting party shall not promptly within such period, commence and diligently
pursue to completion the remedy of such default.
(c) The taking of Tenant's interests in this Agreement or the
Premises or any part thereof upon execution or by other process of law directed
against Tenant, or the taking upon or subject to any attachment at the instance
of any creditor of or claimant against Tenant, and said attachment shall not be
discharged or disposed of within sixty (60) days after the levy thereof.
Section 19.2 Landlord's Default. If Landlord should be in default as
defined in Section 19.1, and after the expiration of the applicable cure period
set forth therein, Tenant may incur any expense reasonably necessary to perform
the obligation of Landlord specified in such notice and commence an action at
law to recover such amount.
Section 19.3 Tenant's Default. In the event of any default by Tenant,
Landlord may, at its option, at any time:
(a) Terminate this Agreement by written notice to Tenant and
immediately reenter and take possession of the Premises. Tenant shall pay the
Rent and other sums due prior to the time of such termination.
(b) Take possession of the Premises and expel Tenant and then
terminate this Agreement, or from time to time, without terminating this
Agreement, relet the Premises upon
such terms and conditions as Landlord may deem advisable; Landlord shall have no
obligation to relet or otherwise mitigate the loss. No taking possession of the
Premises by Landlord shall be construed as an election on Landlord's part to
terminate this Agreement unless a written notice of such intention is given to
Tenant. Landlord shall receive all proceeds from any reletting of the Premises
and shall apply them to the payment of all such amounts as may become due under
this Agreement. If the amounts so received by Landlord are insufficient to pay
amounts due and becoming due hereunder, Tenant shall pay to Landlord upon demand
by Landlord such deficiency. If Landlord cannot lease said Premises, the Rent
obligation will continue for the remainder of the Term.
(c) exercise any other remedy available to Landlord at law or equity,
or otherwise available under other provision of this Lease.
Section 19.4 Interest and Costs. Any sum accruing to either party
under the terms of this Agreement which shall not be paid when due shall bear
interest at the maximum lawful rate, not to exceed ten percent (10%) per annum
from the date the same becomes due and payable until paid. Upon any default,
Tenant shall pay Landlord all expenses in connection with such default,
including, without limitation, all repossession costs, brokerage commissions,
expenses of employees, alteration costs, and expenses of preparation for
reletting. In the event either party hereto brings or commences legal
proceedings to enforce any of the terms of this Agreement, the successful party
shall then be entitled to receive from the other party, in every such action
commenced, its reasonable attorneys' fees and costs incurred in enforcing the
terms of this Agreement.
Section 19.5 Equitable Remedies. In addition to the remedies in
Section 19.3 to Landlord upon an Event of Default by Tenant as defined in
Section 19.1 above, Landlord shall be entitled to specific performance, and
injunctive or other appropriate equitable relief for any breach of any of the
provisions of this Agreement, notwithstanding the availability of an adequate
remedy at law, and Tenant hereby waives the right to raise such defense in any
proceeding in equity.
Section 19.6 No Waiver. The failure of Landlord or Tenant to seek
redress for violation, or to insist upon the strict performance of any covenant
or condition of this Agreement, shall not prevent a subsequent act, which would
have originally constituted a violation, from having all the force and effect of
an original violation. The receipt by Landlord of rent with knowledge of the
breach of any covenant of this Agreement shall not be deemed a waiver of such
breach. No provision of this Agreement shall be deemed to have been waived by
Landlord or Tenant unless such waiver be in writing signed by Landlord or
Tenant, as the case may be.
Section 19.7 Cumulative Remedies. The specific remedies provided for
in this Agreement are cumulative and are not exclusive of any other remedy.
ARTICLE XX
FEDERAL REGULATORY AGENCY REQUIREMENTS
Section 20.1 Generally. Notwithstanding any other provisions
contained in this Lease, in
the event the Tenant is closed by, or taken over by, the banking authority of
the State of Arkansas, or other bank supervisory authority ("Regulator"),
Landlord may thereafter terminate this Lease only after giving such Regulator
written notice of any existing default and Landlord's intent to terminate, and
such Regulator fails to cure such default within thirty (30) days after such
written notice. Provided such Regulator cures all existing defaults within
thirty (30) days of notice of any such default from Landlord, and provided
thereafter such Regulator complies with all of the terms and conditions of the
Lease on behalf of Tenant, any such Regulator shall in such event have the
election either to continue or to terminate this Lease by giving Landlord
written notice of such intention within sixty (60) days of the closing or
takeover, and in the event of an election to terminate, this Lease shall
automatically terminate. In the event this Lease is so terminated, such
termination shall be without prejudice to Landlord's claim for damages or
indemnity, provided, in such event the maximum claim of Landlord for damages or
indemnity for injury resulting from the rejection or abandonment of the
unexpired term of the Agreement shall in no event be an amount exceeding the
rent and estimated Additional Charges (CAM. etc.) 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 and Additional Charges (CAM, etc.) accrued. In the
event this Lease is terminated in compliance with the provisions of this Section
20.1, ownership of the leasehold improvements shall, upon such termination,
revert to Landlord free and clear of any encumbrances.
ARTICLE XXI
MISCELLANEOUS
Section 21.1 Miscellaneous. (a) Any notice, consent, request, claim or
other communication hereunder shall be in writing and shall be deemed to have
been duly given if hand delivered, mailed by certified mail, return receipt
requested, or delivered by overnight courier to the address shown for the
respective party at the conclusion of this Agreement. Such addresses may be
changed by any party by notice given in the manner provided above.
(b) All statements contained in any certificate or other instrument
delivered by or on behalf of the parties pursuant hereto, or in connection with
the transaction contemplated hereby, shall be deemed representations and
warranties by the party giving same.
(c) In the event either party to this Agreement shall employ legal
counsel to protect its rights under this Agreement or to enforce any term or
provision of this Agreement, then the party prevailing in any such legal action
shall have the right to recover from the other party all of its reasonable
attorneys' fees, costs and expenses incurred in relation to such claim.
(d) This Agreement contains all the terms and conditions agreed upon by
the parties hereto with respect to the transactions contemplated hereby, and
shall not be amended or modified except by written instrument signed by all of
the parties.
(e) This Agreement shall be binding upon and inure to the benefit of
the xxxxxxxxxxxxxxx, xxxxx, xxxxxxx, successors and assigns to the parties
hereto. The obligations of each person constituting a Tenant shall be joint and
several.
(f) Nothing expressed or implied in this Agreement is intended, or
shall be construed, to confer upon or give any person, firm or corporation,
other than the parties hereto, their successors and assigns, any benefits,
rights or remedies under or by reason of this Agreement.
(g) Time is of the essence of this Agreement.
(h) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
(i) This Agreement shall be governed by and construed under the laws of
the State of Arkansas.
(j) Wherever in this Agreement it is provided that any party shall or
will make any payment or perform or refrain from performing any act or
obligation, each such provision shall, even though not so expressed, be
construed as an express agreement to make such payment or to perform or not to
perform, as the case may be, such act or obligation.
Section 21.2 Estoppel Certificate. Any party within ten (10) days, upon
request of any other party, shall furnish a written statement as to whether such
other party is in default hereunder, whether this Agreement is in full force and
effect and whether such party has any claims and/or defenses against such other
party relating to this Agreement.
Section 21.3 Construction. In the event Landlord or Tenant shall assert
in any court a cause of action arising out of this Agreement, then this
Agreement shall not be construed as having been written by either Landlord or
Tenant, it being the specific intent of the parties that this Agreement shall
not be construed more strictly against one that the other.
Section 21.4 Joint and Several Liability. If Tenant is composed of more
than one signatory to this Agreement, each signatory will be jointly and
severally liable with each other signatory for payment and performance according
to this Agreement.
Section 21.5 Limitation on Recourse. Tenant specifically agrees to look
solely to Landlord's interest in the Shopping Center for the recovery of any
judgments from Landlord, it being agreed that Landlord (and its shareholders,
venturers, and partners, and their shareholders, venturers, and partners, and
all of their officers, directors, and employees) will never be personally liable
for any obligations under this Lease or for any such judgments. The provision
contained in the preceding sentence is not intended to and will not limit any
right that Tenant might otherwise have to obtain injunctive relief against
Landlord or to pursue any suit or action in connection with enforcement or
collection of amounts that may become owing or payable under or on account of
insurance maintained by Landlord.
Section 21.6 Waiver of Jury Trial. Landlord and Tenant by this Section
20.6 waive trial by jury in any action, proceeding, or counterclaim brought by
either of the parties to this Agreement against the other on any matters
whatsoever arising out of or in any way connected
with this Agreement, the relationship of Landlord and Tenant, Tenant's use or
occupancy of the Premises, or any other claims (including without limitation
claims for personal injury or property damage), and any emergency statutory or
any other statutory remedy.
Section 21.7 Entire Agreement. This Agreement, the exhibits, and addenda,
if any, contain the entire agreement between Landlord and Tenant and may be
amended only by subsequent written agreement. No promises or representations,
except as contained in this Agreement, have been made to Tenant respecting the
condition of the Premises or the manner of operating the Shopping Center.
Section 21.8 Captions. The captions of the various articles and sections
of this Agreement are for convenience only and do not necessarily define, limit,
describe, or construe the contents of such articles or sections.
Section 21.9 Authority. Tenant and the party executing this Agreement on
behalf of Tenant represent to Landlord that such party is authorized to do so by
requisite action of the board of directors or partners, as the case may be, and
agree upon request to deliver to Landlord a resolution or similar document to
that effect.
Section 21.10 Brokers. Landlord and Tenant respectively represent and
warrant to each other that neither of them has consulted or negotiated with any
broker or finder with regard to the Premises. Each of them will indemnify the
other against and hold the other harmless from any claims for fees or
commissions from anyone with whom either of them has consulted or negotiated
with regard to the Premises.
Section 21.11 Landlord's Fees. Whenever Tenant requests Landlord to take
any action or give any consent required or permitted under this Agreement,
Tenant will reimburse landlord for all of Landlord's costs incurred in reviewing
the proposed action or consent, including without limitation reasonable
attorneys', engineers', architects', accountants', and other professional fees,
within ten (10) days after Landlord's delivery to Tenant of a statement of such
costs. Tenant will be obligated to make such reimbursement without regard to
whether Landlord consents to any such proposed action.
Section 21.12. Force Majeure. Except for the payment of Rent, Percentage
Rent, or other sums payable by Tenant pursuant to this Lease, the time for
performance by Landlord or Tenant of any term, provision or covenant of this
Lease shall be deemed extended by time lost due to delays resulting from acts of
God, strikes, unavailability of building materials, civil riots, floods,
material or labor restrictions by governmental authority, enforcement of
governmental regulations or requirements, and any other cause not within the
control of Landlord or Tenant, as the case may be.
Section 21.13. Landlord-Tenant Relationship. It is further understood and
agreed that the Landlord shall in no event be construed or held to be a partner,
joint venturer or associate of the Tenant in the conduct of the Tenant's
business, nor shall Landlord be liable for any debts incurred by the Tenant in
the Tenant's business; but it is understood and agreed that the relationship is
and at all times shall remain that of landlord and tenant.
Section 21.14. Right of Inspection. Landlord and its agents and
representatives shall be entitled to enter upon and inspect the Premises at any
time during normal business hours upon prior reasonable notice, provided only
that such inspection shall not unreasonably interfere with Tenant's business.
Section 21.15 Recording. Landlord and Tenant agree that neither party
will record this Lease without the written consent of the other party, provided
however, Landlord, and Tenant agree that upon the written request of either
party that both parties will execute a memorandum of this Lease in form
reasonably acceptable to both parties which does not reveal any of the economic
terms of this Lease. Any such memorandum shall be recorded at the expense of the
requesting party.
21.16. Regulatory Approval. It is understood and agreed that Tenant must
file an application for approval and obtain approval of such application from
the applicable regulatory authorities to operate a branch bank at the Premises.
Tenant agrees to file all such necessary applications promptly after execution
of this Lease and thereafter diligently pursue such approvals. Notwithstanding
anything to the contrary in this Lease, in the event Tenant promptly files such
application and diligently pursues such approval but is unable to obtain such
approval on or before August 1, 1999, at anytime after such date but prior to
such approval being obtained, either Landlord or Tenant may terminate this Lease
by written notice to the other party and thereupon this Lease shall
automatically terminate and neither party shall have any further obligations
hereunder.
EXECUTED in duplicate originals this the date first mentioned above.
LANDLORD: METROPOLITAN REALTY &
DEVELOPMENT, LLC
By: /s/ Xxxxx X. Xxxx, President
ATTEST:
/s/ Xxxxx X. Xxxxxxxx
Secretary
Address for Notices:
Metropolitan Realty & Development, LLC
0000 Xxxxxxx 000
X.0. Xxx 0000
Xxxxxxxx, XX 00000-0000
Phone: 000-000-0000
TENANT: BANK OF THE OZARKS, WCA
By: /s/ Xxxxx X. Xxxxxxxx
Title: Vice Chairman
ATTEST:
/s/ Xxxxx Xxxxxx
Secretary
Address For Notices:
X.X. Xxx 0000
Xxxxxx Xxxx, XX 00000
Telephone: (000)000-0000
[ACKNOWLEDGMENTS AND EXHIBITS INTENTIONALLY OMITTED]
