ELECTRONICALLY FILED
`Benton County Circuit Court
`Brenda DeShields, Circuit Clerk
`2025-Oct-31 15:26:34
`04CV-24-3772
`C19WDO06 : 40 Pages
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`IN THE CIRCUIT COURT OF BENTON COUNTY, ARKANSAS
`CIVIL DIVISION
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`BELLVIEW URBAN CENTER, LLC;
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`SJA INVESTMENT PARTNERSHIP, LLLP;
`CHAMBOARD INVESTMENTS, LLC;
`HKA INVESTMENTS, LLC; and
`HAITHAM K. ALLEY, as Trustee of
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`THE HAITHAM K. ALLEY REVOCABLE TRUST #2 PLAINTIFFS
`
`V. CASE NO. 04CV-24-3772
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`CHABOBA LLC and
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`DON NGO DEFENDANTS
`AMENDED COMPLAINT
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`Plaintiffs Bellview Urban Center, LLC, SJA Investment Partnership, LLLP, Chamboard
`Investments, LLC, HKA Investments, LL.C, and Haitham K. Alley, as Trustee of The Haitham
`K. Alley Revocable Trust #2, for their amended complaint against Defendants Chaboba LLC,
`and Mr. Don Ngo, state:
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`1. This matter concerns the leased premises located at 2223 South Bellview Road,
`Rogers, Arkansas 72758 (the “Premises”).
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`2. Plaintiff Bellview Urban Center, LLC, (“Bellview”) is an Arkansas limited
`liability company registered to do business in the State of Arkansas with its principal place of
`business located in Rogers, Benton County, Arkansas.
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`3. Plaintiff SJA Investment Partnership, LLLP, (“SJA”) is an Arkansas limited
`liability limited partnership registered to do business in the State of Arkansas with its principal
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`place of business located in Little Rock, Pulaski County, Arkansas.
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`4, Plaintiff Chamboard Investments, LLC, (“Chamboard”) is a Texas limited
`liability limited company registered to do business in the State of Arkansas with its principal
`place of business located in Little Rock, Arkansas.
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`5. Plaintiff HKA Investments, LLC, (“HKA™) is an Arkansas limited liability
`company registered to do business in the State of Arkansas with its principal place of business
`located in Little Rock, Pulaski County, Arkansas.
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`6. Plaintiff Haitham K. Alley is Trustee of the Haitham K. Alley Revocable Trust
`#2, an Arkansas trust (the “Trust”). Mr. Alley is also the principal of separate plaintiff HKA.
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`7. Plaintiffs Bellview, SJA, Chamboard, and the Trust are the owners of the
`Premises and are lawfully entitled to possession of the Premises.
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`8. Defendant Chaboba LLC, (“Chaboba”) is an Arkansas limited liability company
`that is registered to do business in the State of Arkansas but whose corporate charter status has
`been revoked. with its principal place of business located in Rogers, Benton County, Arkansas.
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`9. Upon information and belief, Defendant Don Ngo is an Arkansas resident who
`resides in Springdale, Benton and/or Washington County, Arkansas.
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`10. This Court has jurisdiction over the parties to and subject matter of this litigation
`under Arkansas Code Annotated §§ 16-13-201, 16-4-101, and 16-58-120.
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`11. Venue is proper in this county pursuant to Arkansas Code Annotated §§ 16-55-
`213 and 16-60-101.
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`FACTS
`12. On or around November 1, 2023, Chaboba and Plaintiffs Bellview, Chamboard,
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`SJA, and HKA (collectively, the “Landlord Plaintiffs™) entered into a ten-year, four-month Lease
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`Agreement for the Premises with two additional five-year options (the “Lease™). See Lease,
`attached hereto and incorporated herein by reference as Exhibit 1.
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`13. Chaboba agreed to begin the buildout on the Premises when the Premises was
`delivered to Chaboba. Chaboba agreed to be open its business seven days a week from 10 AM
`to 10 PM.
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`14. The Premises was delivered to Chaboba on or around November 1, 2023. Upon
`signing the Lease, Chaboba agreed to provide a Security Deposit in the amount of $13,986.67 to
`Plaintiffs. When Chaboba’s rent commenced, Chaboba agreed to pay rent in the amount of
`$13,986.67 per month. Additionally, Chaboba agreed to pay monthly common area maintenance
`charges for the Premises, which are $2,622.50 per month as of the date of commencement.
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`15. On the same day that Chaboba signed the Lease, Defendant Ngo signed as the
`personal guarantor of Chaboba’s responsibilities and obligations pursuant to the Lease.
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`16. Since signing the Lease and Personal Guaranty, and the Premises being delivered
`to Chaboba, Chaboba has failed to begin the buildout of the Premises, or to even open its
`business as contemplated by the Lease. Chaboba likewise has not paid its rent and other charges
`as it agreed pursuant to the Lease.
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`17. Moreover, when signing this Lease and Personal Guaranty, Landlord Plaintiffs
`were required to pay commissions in the amount of $53,852.73 to Sage Partners. Landlord
`Plaintiffs have provided free rent in the amount of $18,216.51 to Chaboba as part of Plaintiffs’
`efforts to mitigate their damages and to get Chaboba to take possession of the Premises as
`contemplated by the Lease Agreement.
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`18. Despite these efforts, Chaboba has abandoned the Lease and the Premises.
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`Chaboba has not responded to the vast majority of communications attempted by Landlord
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`Plaintiffs, leaving Landlord Plaintiffs with thousands in damages and an empty and unfinished
`Premises without a tenant.
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`19. In short, Chaboba has failed to (i) pay rent and other charges as Defendant agreed
`to pay in the Lease, (ii) pay the security deposit, (iii) take possession of the Premises, (iv)
`buildout the Premises, and (v) pay Landlord Plaintiffs for the commissions that Landlord
`Plaintiffs were required to pay when Landlord Plaintiffs signed Chaboba to the Lease.
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`20. Defendant Ngo has failed to personally guarantee Chaboba’s responsibilities and
`obligations pursuant to the Lease.
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`21. On October 24, 2024, Defendants were provided with Notice of Defendants’
`default. See Letter dated October 24, 2024, to Defendants, attached hereto and incorporated
`herein as Exhibit 2.
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`22. In the Notice of Default, Landlord Plaintiffs demanded that Defendants pay
`October 2024 rent and common area maintenance charges in the amount of $16,609.17 within
`ten days of Chaboba’s receipt of the letter. Plaintiffs also demanded that, within ten days,
`Chaboba pay the agreed upon deposit in the amount of $13,986.67, reimburse Landlord Plaintiffs
`for all of the free rent in the amount of $§18,216.51 they have provided to Chaboba to mitigate
`their damages, and reimburse Landlord Plaintiffs for the commissions Landlord Plaintiffs have
`paid for this Lease in the amount of $53,852.73. The total amount owed to Landlord Plaintiffs as
`of the date of letter was $102,665.04 and that was the amount demanded by Landlord Plaintiffs.
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`23. Defendants were served with the October 24™ letter by Landlord Plaintiffs
`pursuant to the Lease. Despite demands, Defendants failed to pay what was due and owing to
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`Landlord Plaintiffs, and Defendants did not vacate the Premises.
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`24. On October 26, 2024, Defendants sent an email to Landlord Plaintiffs’ agent,
`stating that Defendants were not going to build out the Premises and were backing out of the
`project altogether. See Email dated October 26, 2024, attached hereto and incorporated herein as
`Exhibit 3.
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`25. To date, Defendants have failed to cure the defaults and have anticipatory
`repudiated the Lease and the Personal Guaranty. However, Defendants have not provided legal
`possession of the Premises back to Plaintiffs, and Defendants have refused to pay what is due
`and owing to Landlord Plaintiffs.
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`26. Defendants owe Landlord Plaintiffs $314,700.75 in total common area
`maintenance fees throughout the life of the Lease. Defendants owe Landlord Plaintiffs
`$2,154,109.00 in total rent throughout the life of the Lease. Defendants owe Landlord Plaintiffs
`$107,705.42 in fees to reimburse Landlord Plaintiffs for the commissions paid or owed related to
`the Lease. Defendants also owe Landlord Plaintiffs $18,216.51 as reimbursement for free rent
`Plaintiffs provided to Defendants to mitigate Landlord Plaintiffs’ damages, and Defendants also
`owe the security deposit amount of $13,986.67 to Landlord Plaintiffs. In total, Landlord
`Plaintiffs seek damages in the amount of $2,608,718.35.
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`COUNT I - DECLARATORY JUDGMENT
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`27. Paragraphs 1 through 26 of this complaint are incorporated herein by reference.
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`28. Landlord Plaintiffs are a “person” as defined by the Arkansas Declaratory
`Judgment Act, Arkansas Code Annotated §§ 16-111-101, ef seq., and have an interest in the
`Lease. Landlord Plaintiffs seek a resolution by this Court of the construction of the terms of the
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`Lease and a declaration of the rights and legal relations arising from the Lease.
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`29. Pursuant to Arkansas Code Ann. § 16-111-101 et. seq., Landlord Plaintiffs seek a
`declaration that Defendants’ Lease has been terminated as a result of Defendants’ anticipatory
`repudiation of the Lease and Defendants’ other breaches of the Lease and the Personal Guaranty.
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`30. Pursuant to Arkansas Code Ann. § 16-111-101 et. seq., Landlord Plaintiffs seek a
`declaration that Defendants are responsible for monthly rent from the commencement date of the
`Lease until legal possession is returned to Plaintiffs pursuant to the Lease and the Personal
`Guaranty.
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`31. Pursuant to Arkansas Code Ann. § 16-111-101 ef. seq., Landlord Plaintiffs seek a
`declaration that Defendants are responsible for providing the Security Deposit to Landlord
`Plaintiffs pursuant to the Lease and the Personal Guaranty.
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`32. Pursuant to Arkansas Code Ann. § 16-111-101 et. seq., Landlord Plaintiffs seek a
`declaration that Defendants are responsible for reimbursing the commissions paid after
`Detfendants sign the Lease and Guaranty pursuant to the Lease and the Personal Guaranty.
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`33. Pursuant to Arkansas Code Ann. § 16-111-101 et. seq., Landlord Plaintiffs seek a
`declaration that Defendants’ failure to buildout the Premises and to open the business in the
`Premises is a breach of the Lease and the Personal Guaranty.
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`34. Pursuant to Arkansas Code Ann. § 16-111-101 et. seq., Landlord Plaintiffs seek a
`declaration that Plaintiffs have the right of immediate possession of the Premises and may lease
`the Premises to whomever they see fit since Defendants’ abandonment of the Premises and
`Lease.
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`35. Pursuant to Arkansas Code Ann. § 16-111-101 ef. seq., and to the extent that
`Defendants have placed any personal property at the Premises, Landlord Plaintiffs seek a
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`declaration that, pursuant to Paragraph 33 of the Lease and Arkansas Code Annotated §18-16-
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`108, Landlord Plaintiffs hold a landlord’s lien on any and all personal property at the Premises
`currently or that has even been placed at the Premises.
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`36. Pursuant to Arkansas Code Ann. § 16-111-101 et. seq., and to the extent that
`Defendants have placed any personal property at the Premises, Landlord Plaintiffs seek a
`declaration that, pursuant to Paragraph 33 of the Lease and Arkansas Code Annotated §18-16-
`108, Defendants are not authorized to move or take any personal property from the Premises
`without prior authorization from Landlord Plaintiffs.
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`37. Pursuant to Arkansas Code Ann. § 16-111-101 et. seq., and to the extent that
`Defendants have placed any personal property at the Premises, Landlord Plaintiffs seek a
`declaration that they may dispose of any personal property and may account for the proceeds of
`any disposal as it sees fit.
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`38. Landlord Plaintiffs seek their attorneys’ fees, costs and expenses for prosecuting
`this matter.
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`COUNT Il - UNLAWFUL DETAINER
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`39. Paragraphs 1 through 38 of this complaint are incorporated herein by reference.
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`40. Plaintiffs are lawfully entitled to possession of the Premises and have elected to
`take possession. See Supporting Affidavit for Eviction, attached hereto and incorporated herein
`by reference as Exhibit 4.
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`41. Defendants are currently in possession of the Premises against the interests and
`rights of Plaintiffs.
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`42. Plaintiffs demanded that Defendants pay what was due and owing and/or vacate
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`and relinquish possession of the Premises on October 24, 2024. Defendants have refused to
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`comply with Plaintiffs’ demands or to vacate the Premises.
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`43. After lawful demands for possession by Plaintiffs, Defendants have refused to
`quit possession of the Premises and are willfully withholding and unlawfully detaining the
`Premises from Plaintiffs and against Plaintiffs’ interests and rights therein.
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`44, Plaintiffs are entitled to immediate possession of the Premises and a Writ of
`Possession should be issued and executed pursuant to Arkansas Code Annotated §§ 18-60-307
`and -310.
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`45. Plaintiffs are entitled to treble damages in an amount to be proven at the trial of
`this matter for Defendants’ willful and wrongful unlawful detainer of the Premises.
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`46. Plaintiffs are entitled to their attorney’s fees and costs pursuant to Arkansas Code
`Annotated §§ 18-60-309 and 16-22-308 and Arkansas Rule of Civil Procedure 54.
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`47. Plaintiffs are entitled to pre-judgment and post-judgment interest in the greatest
`amount allowed by law.
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`48. To date, Defendants continue to possess the Premises and refuse to pay what is
`due and owing to Landlord Plaintiffs pursuant to the Lease and the Personal Guaranty.
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`COUNT III — BREACH OF CONTRACT
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`49. Paragraphs 1 through 48 of this complaint are incorporated herein by reference.
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`50. A valid and enforceable contract exists between Landlord Plaintiffs and Chaboba
`whereby Chaboba agreed to take possession of the Premises, build out the Premises, and pay rent
`and other charges due and payable to Plaintiffs in exchange for use and possession of the
`Premises.
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`51. A valid and enforceable contract exists between Landlord Plaintiffs and
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`Defendant Ngo whereby Landlord Plaintiffs agreed to enter into the Lease with Chaboba and
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`Defendant Ngo agreed to be personally responsible for all of Chaboba’s obligations and
`responsibilities to Landlord Plaintiffs pursuant to the Lease.
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`52. Landlord Plaintiffs performed their obligations under the Lease and the Personal
`Guaranty and have not waived their right to insist upon full and complete performance of the
`Lease and the Personal Guaranty from Defendants.
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`53. Defendants have breached the terms of the Lease and the Personal Guaranty by
`failing to pay the Security Deposit, monthly rent, and all other charges due and payable to
`Landlord Plaintiffs pursuant to the Lease and the Personal Guaranty, by failing to build out or
`open the business at the Premises, and by failing to reimburse Landlord Plaintiffs for the
`commissions they have paid after Defendants’ signed the Lease and Personal Guaranty.
`Defendants also have breached the Lease and the Personal Guaranty by failing to legally vacate
`the Premises.
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`54. Due to Defendants’ breaches of the Lease and the Personal Guaranty, Landlord
`Plaintiffs have been damaged and will continue to be damaged.
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`55. Plaintiffs are entitled to recover from Defendants any and all damages that
`Defendants have caused in an amount to be proven at the trial of this matter.
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`56. Landlord Plaintiffs are entitled to pre-judgment and post-judgment interest in the
`greatest amount allowed by law.
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`57. Landlord Plaintiffs are entitled to attorneys’ fees and costs pursuant to Arkansas
`Code Annotated § 16-22-308 and Arkansas Rule of Civil Procedure 54.
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`58. To date, Defendants continue to refuse to pay what is due and owing to Landlord
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`Plaintiffs pursuant to the Lease and the Personal Guaranty.
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`WHEREFORE, Plaintiffs Bellview Urban Center, LLC, SJA Investment Partnership,
`LLLP, Chamboard Investments, LLC, HKA Investments, LLC, and Haitham K. Alley, as
`Trustee of the Haitham K. Alley Revocable Trust #2, pray that this Court enter a judgment in
`their favor and against Defendants Chaboba, LLC, and Mr. Don Ngo on this complaint; award a
`declaratory judgment to Plaintiffs; award compensatory and treble damages to Plaintiffs; award
`to Plaintiffs their fees, costs, and pre-judgment and post-judgment interest; and award to
`Plaintiffs all other proper relief to which they are entitled.
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`QUATTLEBAUM, GROOMS & TULL PLLC
`111 Center Street, Suite 1900
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`Little Rock, Arkansas 72201
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`Telephone: (501) 379-1700
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`Facsimile: (501) 379-1701
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`Email: jprice@qgtlaw.com
`pelmore@gqgtlaw.com
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`By:_/s/ Philip A. Elmore
`Joseph W. Price II, Ark. Bar No. 2007168
`Philip A. Elmore, Ark. Bar No. 2015199
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`Attorneys for Plaintiffs Bellview Urban Center,
`LLC, SJA Investment Partnership, LLLP,
`Chamboard Investments, LLC, HKA Investments,
`LLC, and Haitham K. Alley, as Trustee of the
`Haitham K. Alley Revocable Trust #2
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 31st day of October 2025, I filed a copy of the foregoing with
`the Clerk of the Court using the AOC eFlex electronic filing system, which shall send electronic
`notification of such filing to all counsel of record.
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`/s/ Philip A. Elmore
`Philip A. Elmore
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`DocuSign Envelope 1D: 38AC876D-3702-4B5B-ABC8-62C81E71DA41
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`LEASE AGREEMENT
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`THIS AGREEMENT is made and entered into this _1 _day of November, 2023 by BELLVIEW URBAN
`CENTER LLC, an Arkansas limited liability company ("BUC"), SJA INVESTMENT PARTNERSHIP,
`LLLP, an Arkansas limited liability limited partnership ("SJA"), CHAMBORD INVESTMENTS LLC, a
`Texas limited liability company ("Chambord"), and HKA INVESTMENTS L.L.C., an Arkansas limited
`liability company ("HK A"} (BUC, SJA, Chambord, and HKA, collectively, "Landlord"), and CHABOBA LLC,
`an Arkansas limited liability company ("Tenant"), effective as of this Effective Date,
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`1. Certain Defined Terms. The following terms, when capitalized, shall have the following
`meanings for purposes of this Agreement unless the context clearly indicates otherwise:
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`"ddditional Rent" shall mean the amount of Tenant's CAM Charge, Taxes, and Insurance
`Charge, and all other amounts to be paid by Tenant to or for the benefit of Landlord in connection with the
`Permitted Use and occupancy of the Premises during the Term, Landlord estimates that the total Additional
`Rent will be $6.00 per square foot for the first year of the Term.
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`"Base Rent" shall mean the amount Tenant must pay to Landlord annually determined by
`multiplying the total number of square feet of Rentable Area in the Premises by $32.00. Tenant will make
`monthly payments of Base Rent in amount equal to one-twelfth of the annual Base Rent. Beginning on the first
`day of the second Lease Year and continuing on the first day of each succeeding Lease Year, the Base Rent will
`increase by 3%; provided, the rent for any Renewal Term shall be as provided in Section 3.
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`"Building" shall mean the structure which contains the "Premises” as shown on Exhibit A to
`this Lease and made a part of this Lease for all purposes.
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`"Common Area” shall mean and refer to the parking area, driveways, service areas, sidewalks,
`landscaping, and other facilities located in the Project which are used in common by Landlord, Tenant, other
`tenants, and their respective employees, invitees, and customers. In furtherance of Landlord's desire to enhance
`parking for the Building and the Project as a whole, Landlord, in its discretion and from time to time, may elect
`to provide valet parking for the restaurant Project tenants and occupants during peak restaurant hours and include
`the cost of such parking as Common Area Maintenance Cost to be allocated among the restaurant tenants and
`occupants.
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`"Common Area Maintenance Cost" or "CAM Cost" shall mean the actual cost of maintaining
`and operating the Common Area, including property management costs and a 15% administrative fee, incurred
`by Landlord.
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`"Common Area Maintenance Charge" or "CAM Charge" shall mean Tenant's Pro Rata Share
`(as hereinafter defined) of the CAM Cost.
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`"Delivery Date" shall mean the date when Landlord delivers the Premises to Tenant; provided,
`however, that if the Delivery Date is delayed because of a default or failure, or both, of Tenant, then the Delivery
`Date shall be deemed to have occurred when delivery would have been completed if Tenant's default or failure
`had not occurred.
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`"Effective Date” shall mean and refer to the date upon which the last of Landlord and Tenant
`executes this Lease, upon the Effective Date, all terms of this Lease shall be fully binding upon both Landlord
`and Tenant.
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`"Insurance Charge" shall mean Tenant's Pro Rata Share of the actual cost of casualty and
`property damage, and commercial general liability insurance maintained by Landlord upon and with respect to
`the Project.
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`"Permitted Use" shall mean the operation of a "Mudan Hotpot" branded Asian restaurant, and
`for no other purpose. Tenant acknowledges that the above specification of a "permitted use" means only that
`Landlord has no objection to the specified use and does not include any representation or warranty by Landiord
`as to whether or not such specified use complies with any applicable laws and/or requires special governmental
`permits.
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`"Premises"” or "Leased Premises” shall mean approximately 5,872 square feet of Rentable Area
`as shown on Exhibit A attached to this Lease. Tenant acknowledges that the sole purpose of Exhibit A is to
`identify the location of the Premises in the Building and the Project. The Premises includes the improvements
`already constructed, or to be constructed, by Landlord, as well as the fixtures, improvements, and other property
`to be installed in the Premises, including, without limitation, (i) all nonstructural interior partition walls located
`within the boundaries of the Premises, and (ii) the decorated surfaces of all boundary walls, ceilings and floors,
`including any wallpaper, paint, lath, wallboard, plastering, carpeting, floor and wall tiles, and other floor
`coverings and all other finishing materials. The bearing walls and structural portions of the Building running
`through the Premises that are used for or serve more than the Premises are not demised hereunder.
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`"Rent" shall mean all Base Rent and Additional Rent.
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`"Rent Commencement Date” shall mean the earlier of; (i) one hundred eighty (180) days after
`the Delivery Date; (ii) Tenant's receipt of a certificate of occupancy for the Premises; or (iii) the date Tenant
`opens for business.
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`"Rentable Area" shall mean the Rentable Area for the Premises shall be the entire area included
`within the Premises, being the area bounded by the exterior of all walls or plate glass separating the Premises from
`any public corridors or other public areas, and the centerline of all walls separating the Premises from other areas
`leased or to be leased to other tenants, without deduction for any area covered by corridors, stairways, restrooms,
`mechanical rooms, electrical rooms, telephone closets, vertical penetrations of the floors, columns, projections, or
`any other structural portions situated in the Premises.
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`"Project” shall mean the real property and improvements located at 2223 S. Bellview Road,
`Rogers, Arkansas 72758, as shown on Exhibit A and known as "Bellview Building 2" or such other name or names
`as may be designated by Landlord from time to time in Landlord's sole discretion, the Project may include a variety
`of different uses such as retail, restaurant, office and other uses found in other urban projects around the country;
`however, with regard to the site plan shown on Exhibit A, Landlord and Tenant agree that the site plan is attached
`solely for the purpose of locating the Premises within the Project and that no representation, warranty, or covenant
`is to be implied by any other information shown on the site plan (i.e., any information as to buildings, driveways,
`parking owners, tenants or prospective tenants, efc. is subject to change at any time).
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`“"Tax Charge" shall mean Tenant's Pro Rata Share of the actual cost of real property taxes
`imposed upon the Project.
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`"Tenant’s Pro Rata Share” shall mean a fraction, the numerator of which is the total leasable
`square feet comprising the Premises, and the denominator of which is the total leasable square footage
`comprising the Project from time to time.
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`"Tenant's Work" shall mean the work to be performed by Tenant at Tenant's sole cost and
`expense upon the Premises, which shall include all work to make Tenant's Permitted Use operational while
`conforming to local codes, exterior signage, and all other improvements, all of which is more particularly
`described in Exhibit B attached hereto, The plans and specifications for all Tenant's Work must be approved by
`Landlord, such approval not to be unreasonably withheld, conditioned, or delayed.
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`"Term" or "Lease Term" shall mean and refer to the initial term, commencing as of the Rent
`Commencement Date and, as applicable, the renewal terms of this Agreement as follows: (i) Initial Term: Ten
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`(10) years and four (4) months from the Rent Commencement Date (the "Initial Term"); and (ii) Renewal Terms:
`shall be two (2) periods of five (5) years each (collectively, the "Renewal Terms" and each a "Renewal Term").
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`2. Lease of Premises. Upon the terms and subject to the conditions contained herein, Landlord
`hereby leases unto Tenant, and Tenant hereby leases from Landlord the Premises for the Term. Tenant shall
`continuously operate the Premises exclusively for conducting the Permitted Use throughout the Term. Tenant
`shall be open to the public seven (7) days a week, excluding national holidays, which Tenant may elect to be
`closed. Tenant's minimum operating hours shall be from 10:00 a.m. to 10:00 p.m. local time on weeknights and
`10:00 a.m. to midnight on Friday and Saturday.
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`3. Renewal. Tenant shall give written notice to Landlord no later than one hundred eighty (180)
`days prior to the end of'the Initial Term of Tenant's intention to exercise its right to extend the Term of the Lease
`(the "Notice Deadline"). Tenant's option to exercise the Renewal Term will be void following the occurrence of
`an event of default beyond the applicable notice and cure period. Notwithstanding anything herein to the
`contrary, if Tenant shall fail to give notice of Tenant's intention to extend prior to the Notice Deadline, Tenant
`shall be irrevocably deemed to have waived the option to renew. The Base Rent during the Renewal Term will
`be the Fair Market Rental Rate as determined by Landlord. The "Fair Market Rental Rate" shall be equal to the
`annual Base Rent, at which tenants, as of the commencement of the Renewal Term, are, pursuant to brokered
`transactions completed within the twelve (12) month period prior to the exercise of the applicable option, leasing
`non-renewal, non-equity, non-affiliated space for a comparable use (based on the use to which Tenant is then
`putting the Premises) that is comparable in size, location and quality to the Premises, for a similar lease term, in
`an arm's length transaction, which comparable space is located in the Bentonville, Arkansas area ("Comparable
`Transactions™), taking into consideration all monetary and non-monetary concessions, if any, being granted such
`tenants in connection with such Comparable Transactions and the financial condition and credit history of Tenant
`and the other tenants in such Comparable Transactions, and taking into account the fact that rental increases
`during the Option Term are already provided for in this Lease, but excluding the value of any improvements
`installed or paid for by Tenant. In no event will the Fair Market Rental Rate be less than a 5% increase in the
`Base Rent for the previous year.
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`4. Rent. Tenant shall pay to Landlord the Base Rent and Additional Rent at such place as Landlord
`shall desigpate in writing from time to time. The Base Rent shall be payable commencing as of the Rent
`Commencement Date, in monthly installments, in advance, on the first day of each month during the Initial Term
`or any Renewal Term, in equal monthly installments in an amount equal to 1/12% of the annual Base Rent. The
`Additional Rent shall be payable in monthly installments, with the first payment due with the first monthly
`payment of Rent. Base Rent for any period of less than one calendar month shall be prorated based on the
`number of calendar days in such calendar month that falls within the Initial Term or any Renewal Term. Tenant
`shall pay Base Rent and Additional Rent without demand, counterclaim, deduction, or set off. In the event,
`Tenant shall fail to pay any installment of Base Rent or Additional Rent within ten (10) days of the due date
`therefor there shall be added to any such delinquent installment a late charge equal to ten percent (10%) of the
`instaliment then due, not as a penalty but to compensate Landlord for what the parties agree is the reasonable
`administrative costs of Tenant's failure to timely pay such installment, Collection of the late fee does not
`preclude any other remedies Landlord may have under this Lease. Landlord shall have the right, exercisable by
`written notice from time to time during the Lease Term, to adjust the monthly amount of estimated Additional
`Rent to reflect cost increases incurred by Landlord. If Tenant's CAM Charge, Taxes, and Insurance Charge for
`a calendar year exceeds the aggregate amount(s) paid by Tenant, Tenant shall pay to Landlord the deficiency
`within ten (10) days following notice from Landlord. If the aggregate amount(s) paid with respect thereto
`exceeds Tenant's share of any of such costs for any calendar year, then Landlord, at Landlord's sole option, will
`either credit the surplus (net of any amounts then owing by Tenant to Landlord) against the next ensuing
`installment(s) of any amount due under this Section or refund the net surplus to Tenant,
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`So long as Tenant has not defaulted under this Lease, the Base Rent will be abated during the first four (4)
`months after the Rent Commencement Date (the "Abatement Period"). The Additional Rent will not be abated
`during the Abatement Period, and Tenant will remain responsible for all other costs and expenses under this
`Lease except for the payment of Base Rent.
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`5. Security Deposit. On the date of execution of this Lease by Tenant, there shall be due and
`payable by Tenant a security deposit ("Security Deposit") in an amount equal to one month's Base Rent to be
`held for the performance by Tenant of Tenant's covenants and obligations under this Lease, it being expressly
`understood that the deposit shall not be considered an advance payment of rental or a measure of Landlord's
`damage in case of default by Tenant. Upon the occurrence of any event of default by Tenant or breach by Tenant
`of Tenant's covenants under this Lease, Landlord may, from time to time, without prejudice to any other remedy,
`use the security deposit to the extent necessary to make good any arrears of rent and/or any damage, injury,
`expense or liability caused to Landlord by the event of default or breach of covenant, any remaining balance of
`the security deposit to be returned by Landlord to Tenant upon termination of this Lease. If Landlord so uses
`any portion of the Security Deposit, then Tenant will restore the Security Deposit to its original amount within
`five (5) days after written demand from Landlord. Landlord will not be required to keep the Security Deposit
`separate from its own funds, and Tenant will not be entitled to interest on the Security Deposit.
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`6. Use of Premises. Tenant shall use the Premises solely for the conduct of the Permitted Use and
`for no other use without the prior written consent of Landlord, which may be withheld in Landlord's sole
`discretion. Tenant covenants that it shall not use the Premises for any purpose in violation of applicable law, in
`violation of any restrictions or covenants, or which would constitute a breach of exclusive use provisions of
`other tenants in the Project as may be the case from time to time. Tenant covenants that it shall not undertake
`any use which constitutes a nuisance, shall not commit or suffer waste to be committed on the Premises, shall
`not undertake any use which will invalidate or increase the cost of any insurance maintained by Landlord upon
`the Premises, and shall comply promptly with all laws, ordinances, orders, and regulations related to Tenant's
`use of the Premises and the cleanliness, safety, operation or use thereof, Further, Tenant shall not use the
`Premises for the handling, storage, or disposal of any hazardous substances or materials as so defined in the
`Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., as
`amended from time to time, or any other Federal, State or Local statute, law, ordinance, rule, regulation, order
`or decree regulating, relating to, or imposing liability or standards of con