6200 RESOLUTION NO. 6,200
A RESOLUTION AUTHORIZING THE MAYOR OF THE
CITY OF LITTLE ROCK TO CONSENT TO THE "CONSENT
TO ASSIGNMENT OF LEASE" (SAVERS SKY WALKS) AGREE-
MENT ON BEHALF OF THE CITY OF LITTLE ROCK,
ARKANSAS ; AND FOR OTHER PURPOSES .
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY
OF LITTLE ROCK, ARKANSAS :
SECTION 1. That the Mayor of the City is hereby
authorized to consent to an agreement known as the "Consent
to Assignment of Lease; (Savers Sky Walks) on behalf of the
City.
SECTION 2 . This Resolution shall be in full force and
effect from and after its adoption.
ADOPTED: September 4, 1979
ATTEST: APPROVED: ��
C�I�GCiI✓
i
City Clerk Mayor
CONSENT TO ASSIGIT OF LASE
WHEREAS, that certain Amended and Substituted Lease and
Agreement ("Lease") was made January 29, 1979, by and
between the City of Little Rock, Arkansas, as Lessor, and
Savers Federal Savings and Loan Association, a Federal
savings and loan association organized and existing under the
laws of the United States of America with its principal
place of business located in Little Rock, Arkansas ("Savers") ,
as Lessee, for the lease of certain air space as more particularly
described on the attached Exhibit "A"; and
WHEREAS, the Lease requires the prior written consent
of Lessor to the assignment by the Lessee of any of its
rights under the Lease except as specifically provided
therein; and
tiJEEREAS, Lessor desires to grant hereby its written
consent to the assignment of Lessee as herein provided.
NOW, THEREFORE, in consideration of the premises and
other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lessor does
hereby consent to and approve the Sub-Lease by Lessee of its
rights under the Lease to Lessee and the S.A.M. Limited
Partnership, an Arkansas limited partnership ("S.A.M.") ,
jointly and as tenants-in-common, doing business as Savers/S.A.M. ,
a partnership under the laws of the State of Arkansas,
under the terms and conditions contained in that certain
Land Lease Agreement dated May 1, 1979, a copy of which is
attached hereto as Exhibit "B" and made a part hereof for
all purposes.
EXECUTED this /a thday of , 1979.
City of Little Po ,c, Ar sas
By �/�� ""�
Mayor
Attest:
6;4/4/
Ci Clerk
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PARCEL A
All that certain airspace beginning 14 ' 6" above existing
pavement on the following described property located West of
Lot 5, Block 95, Original City, Little Rock, Arkansas:
Beginning at the Southwest corner of Lot 6 , Block 95, •
Original City, Little Rock, Arkansas ; thence N 6°48 ' 24"E 73 '
to the point of beginning; thence N 83°14 ' 41 "W 60 ' ; thence
N 6°48 ' 24"E 19 . 0 ; thence S 83°14 ' 41 "E 60 ' ; thence S 6°48 ' 24"W
19. 0 ' to the point of beginning.
PARCEL B
All that certain airspace beginning 15 ' above existing
pavement on the following described property located North
of Lot 1 , Block 95, Original City, Little Rock, Arkansas:
Beginning at the Northeast corner of Lot 1 , Block 95,
Original City, Little Rock, Arkansas; thence N 83°14 ' 11 "W
30 '- to the point of beginning; thence N 83°14 ' 11 'W 16 ' ;
thence N 6°48 ' 24"E 60 ' ; thence S 83°14 ' 11 "E 16 ' ; thence
S 6°48 ' 24"W 60 ' to the point of beginning .
• PARCEL C
All that certain airspace beginning 13 ' 7" above existing
pavement on the following described property located in
Block 96, Original City of Little Rock, Arkansas.
•
Beginning at the Southeast corner of Lot 6, Block 96,
Original City; then N 6°48 ' 07"E 120. 0 ' ; then S 83 014 ' 41 "E
20. 0 ' ; thence S 6°48 ' 07"N 120. 0 ' ; thence N 83°14 ' 11 "W 20. 0 '
to the point of beginning.
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LAND LEASE AGREEMENT
This Land Lease Agreement ("Lease") dated the 1 ' day
of MAY , 1979 , by and between Savers Federal Savings
and Loan Association (formerly Pulaski Federal Savings and
Loan Association) ("Savers") , a domestic savings and loan
association, chartered under the laws of the United States
of America with its principal place of business i4 Little
Rock, Arkansas (hereinafter referred to as "Landlord") and
Savers and the S.A.M. Limited Partnership, an Arkansas
Limited Partnership (S .A.M. ) , jointly and as tenants-in-
common, doing business as Savers/S.A.M. , a partnership under
the laws of the State of Arkansas (hereinafter referred to
as "Tenant") . It is agreed and understood that S .A.M. as
Tenant, has a ninety-five percent (95%) ownership interest
in this Lease and in all leasehold improvements now existing
or hereinafter constructed, and Savers, as tenant, has a
five percent (5%) ownership interest.
W I T N E S S E T H:
WHEREAS , Landlord is the owner of real estate, certain
valuable plans for improvements, air rights and skyway
agreement (hereinafter referred to as the "demised lands" )
located in Pulaski County, Arkansas, more fully described in
Exhibit 1 attached to this Lease; and
WHEREAS , Landlord desires to lease the demised lands
for the construction thereon of an office building, parking
deck and skyways in accordance with certain plans and specifi-
cations drawn by Wittenberg, Delony & Davidson Inc/BRC, a
joint venture, an index of which is made a part of the Book
of Exhibits in that certain Agreement of even date herewith
between the parties hereto (the "Improvements" ) ; and
WHEREAS, Tenant is willing to lease the demised lands
for the construction and operation of the Improvements, and
Landlord has previously applied for and secured the necessary
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approval from the Federal Home Loan Bank Board , Washington, D. C.
for the location of its home savings and loan facility in
the Improvements ; and
WHEREAS , Landlord and Tenant, respectively, are not
prohibited under the terms of any outstanding trust indentures ,
deed(s) of trust, mortgages , or other similar instruments
from entering into this Lease Agreement, and from discharging
all covenants , provisions and obligations on their respective
parts to be performed under and pursuant to this Lease
Agreement and affirmatively so represent to each other;
NOW, THEREFORE , for valuable consideration, receipt of
which is hereby acknowledged by the parties hereto , and in
consideration of the mutual benefits and covenants herein
contained, Landlord and Tenant agree as follows :
Section 1. Premises : Landlord hereby demises and
leases to Tenant, and Tenant hereby accepts under the terms
and conditions herein from Landlord the demised lands ,
together with any appurtenances , rights , privileges and
easements benefiting, belonging or pertaining thereto.
Section 2 . Term: (a) The term of this Lease shall
commence on the date (hereinafter referred to as the "Com-
mencement Date" ) hereof .
(b) Initial term of this Lease shall be for a period
of forty-nine (49 ) years beginning on the Commencement Date ,
unless sooner terminated or extended as herein provided.
The term of this Lease shall thereafter be extended auto-
matically for five (5) additional periods of time at the
rent and upon all of the other terms , conditions , covenants
and provisions set forth herein and shall each be for a term
of ten (10) years . Provided, however , that Tenant may
cancel this Lease , effective as of the date of the expiration
of the initial term or as of the date of the expiration of
any of the extended periods of time above specified , by
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giving Landlord written notice of such cancellation on or
prior to the date ninety (90) days before the effective date
of such cancellation. Such extension shall be automatic
without the necessity of any new lease or other instruments
or agreements or any notice being executed or given. Not-
withstanding the aforesaid right of cancellation granted to
Tenant hereunder, Tenant may, at any time during the initial
term of this Lease or any extended period thereof?, give
Landlord written notice that Tenant elects to waive its
option to cancel this Lease at the end of the initial term
or any extended period hereof (in which event this Lease
will thereupon be extended through the next extended period
only, unless such written notice shall specifically state
that this Lease is to be extended for more than one extended
period) , and Tenant shall thereafter be unable to exercise
its right of cancellation with reference to the extended
period referred to in the notice provided for herein.
Hereinafter, all reference to the term of this Lease shall
be deemed to be a reference as well to such additional
periods of time for which the term shall be so extended. It
is understood by the Landlord and Tenant that S .A.M. shall
have the sole right to exercise the option not to extend the
Lease into any of the option periods .
(c) In the event Landlord shall contribute the demised
lands as provided in Section 4 . 2 of the Agreement of even
date herewith between the parties hereto , this Lease shall
terminate.
Section 3 . Rent: For the period commencing on the
Commencement Date and ending on September 30 , 1979 (first
lease year) , Tenant agrees to pay a rental of One Dollar
($1. 00) plus forty-seven and four-tenths percent (47-4/100)
of the cash flow derived from the operations by Tenant of
the demised lands and Improvements for said period. Thereafter,
for each twelve (12) month period during the term of this
Lease commencing on October 1, and ending on September 30th •
(hereinafter referred to as a Lease Year) , Tenant agrees to
pay a rental of One Dollar ($1. 00) plus forty-seven and
four-tenths percent (47-4/10%) of the cash flow derived from
the operations by the Tenant of the demised land 'an Improve-
ments for said Lease Year. Rental shall be payable on the
later of three (3) months after the end of each Lease Year
or within thirty (30) days after Tenant' s Certified Public
Accountant determines what the cash flow is for the Lease
Year. The term "cash flow" when used with respect to any
period of time shall mean the excess of cash receipts which
constitutes income from operations (thus among the items
excluded from cash flow are proceeds from loans to the
Partnership, proceeds of any sale, exchange, condemnation
award, casualty loss recovery, liquidation or other disposition
of all or any part of the assets of the Partnership and the
capital contributions of the partners) over the sum of cash
disbursements with respect to such period. Among the items
included in the cash disbursement are: (1) operating expenses
of the Partnership, (2) fixed costs (including payments
under Section 6 of this Lease) of the Partnership, (3) capital
improvements made by the Partnership , (4) management fees
paid by the Partnership, and (5) payment of any Partnership
debt and any interest associated with such debt (Partnership
debt shall include loans from the interim lender, permanent
lender, partners , or any other third person) . It is under-
stood that for the purpose of computing land rent, the land
rent paid to Landlord shall not be considered as a deduction
in computing cash flow.
If the demised lands are not contributed to the Tenant
as provided for in Section 4 . 2 of the Agreement of even date
herewith between the parties hereto prior to August 31 ,
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2000 , then the rental for each Lease Year thereafter shall
be the sum of One Dollar ($1 . 00) plus forty percent (40%) of
cash flow derived from the operation by Tenant of the demised
lands and Improvements for each Lease Year.
Section 4 . Reserves : Savers , in its capacity as
Landlord, shall, during the term of this Lease, remain bound
to establish reserves as provided in Section 6 . 1 of the
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Agreement of even date herewith between the parties hereto.
Section 5. Use of the Land: The demised lands may be
used for any lawful purpose.
Section 6 . Taxes and Utility Expenses : (a) (1) Tenant
shall, during the term of this Lease, pay and discharge
punctually, as and when the same shall become due and payable,
all taxes, special and general assessments , water rents ,
rates and charges, sewer rents and other governmental imposi-
tions and charges of every kind and nature whatsoever,
extraordinary as well as ordinary (hereinafter referred to
as "Taxes" ) , and each and every installment thereof which
shall or may during the term of this Lease be charged,
levied, laid, assessed, imposed, become due and payable, or
liens upon or for or with respect to the demised lands or
any part thereof, or any buildings, appurtenants or equipment
owned by Tenant thereon or therein or any part thereof,
together with all interest and penalties thereon, under or
by virtue of all present or future laws , ordinances , require-
ments, orders, directives , rules or regulations of the
Federal, State, County, Town and City Governments and of all
other governmental authorities whatsoever (all of which
shall also be included in the term "Taxes" as heretofore
defined) and all sewer rents and charges for water, steam,
heat, gas , hot water, electricity, light and power, and
other service or services , furnished to the demised lands or
the occupants thereof during the term of this Lease (herein-
after referred to as "Utility Expenses" ) . However , the real
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property taxes due upon the demised lands for 1979 shall be
prorated between the Tenant and Landlord to the Commencement
Date hereof.
(2) To the extent that the same may be permitted by
law, Tenant or its designees shall have the right to apply
for the conversion of any assessment for local Improvements
assessed during the term of this Lease in order to cause the
same to be payable in annual installments, and upon such
conversion, Tenant shall pay and discharge punctually said
installments as they shall become due and payable during the
term of this Lease. Landlord agrees to permit the application
for the foregoing conversion to be filed in Landlord' s name,
if necessary, and shall execute any and all documents requested
by Tenant to accomplish the foregoing result.
(3) Tenant shall be deemed to have complied with the
covenants of this paragraph (a) if payment of such Taxes
shall have been made either within any period allowed by law
or by the governmental authority imposing the same, during
which payment is permitted without penalty or interest or
before the same shall become a lien upon the demised lands ,
and Tenant shall produce and exhibit to Landlord satisfactory
evidence of such payment, if Landlord shall demand the same
in writing. _
(b) All such Taxes , including assessments which have
been converted into installments as set forth in the preceding
paragraph (a) , which shall become payable during each of the
calendar or fiscal tax years , as the case may be , in which
the term of this Lease terminates , shall be apportioned pro
rata between Landlord and Tenant in accordance with the
respective portions of such year during which such term
shall be in effect.
(c) (1) Tenant or its designees shall have the right
to contest or review all such Taxes by legal proceedings , or
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in such other manner as it may deem suitable (which, if
instituted, Tenant or its designees shall conduct promptly
at its own cost and expense , and free of any expense to
Landlord, and, if necessary, in the name of and with the
cooperation of Landlord and Landlord shall execute all
documents necessary to accomplish the foregoing) . Not-
withstanding the foregoing, Tenant shall promptly pay all
such Taxes if at any time the demised lands or any\part
hereof shall then be immediately subject to forfeiture, or
if Landlord shall be subject to any criminal liability,
arising out of the nonpayment thereof.
(2) The legal proceedings referred to in the preceding
subparagraph (1) shall include appropriate certiorari pro-
ceedings and appeals from orders therein and appeals from
any judgments , decrees or orders. In the event of any
reduction, cancellation or discharge, Tenant shall pay the
amount finally levied or assessed against the demised lands
or adjudicated to be due and payable on any such contested
Taxes.
(d) Landlord covenants and agrees that if there shall
be any refunds or rebates on account of the Taxes paid by
Tenant under the provisions of this Lease such refund or
rebate shall belong to Tenant. Any refunds received by
Landlord shall be deemed trust funds and as such are to be
received by Landlord in trust and paid to Tenant forthwith.
Landlord will, upon the request of Tenant, sign any receipts
which may be necessary to secure the payment of any such
refund or rebate, and will pay over to Tenant such refund or
rebate as received by Landlord. Landlord further covenants
and agrees on request of Tenant at any time, and from time
to time, but without cost to Landlord, to make application
individually (if legally required) or to join in Tenant' s
application (if legally required) for separate tax assessments
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for such portions of the demised lands as Tenant shall at
any time, and from time to time, designate. Landlord hereby
agrees upon request of Tenant to execute such instruments
and to give Tenant such assistance in connection with such
applications as shall be required by Tenant.
(e) Nothing herein or in this Lease otherwise contained
shall require or be construed to require Tenant to pay any ti
inheritance, estate, succession, transfer, gift, franchise,
income or profit taxes, that are or may be imposed upon
Landlord, its successors or assigns.
Section 7. Improvements , Repairs , Additions , Replacements :
(a) Tenant shall have the right at its. own cost and expense,
to construct on any part or all of the demised lands , at any
time and from time to time, such buildings , parking areas,
driveways, walks, gardens , skyways and other similar and
dissimilar Improvements as Tenant shall from time to time
determine, provided that the same shall be in compliance
with all then applicable building codes and ordinances.
(b) Tenant may, subject to the approval of any mortgage
lender, at its option and at its own cost and expense, at
any time and from time to time, make such alterations,
changes , replacements, improvements and additions in and to
the demised lands , and the buildings and Improvements thereon,
as it may deem desirable, including the demolition of any
building (s) and Improvement (s) and/or structure (s) that now
or hereafter may be situated or erected on the demised
lands.
(c) Until the expiration of this Lease , title to any
building or buildings or Improvements situated or erected on
the demised lands and the building equipment and other items
installed thereon and any alteration , change or addition
thereto shall remain solely in Tenant; and Tenant alone
shall be entitled to deduct all depreciation on Tenant' s
income tax returns for any such building or buildings ,
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building equipment and/or other items , improvements, additions ,
changes or alterations. It is agreed and understood that
S.A.M. has a ninety-five percent (95%) ownership interest in
said building or buildings or Improvements, and Savers has a
five percent (5%) ownership interest in said building or
buildings or Improvements and deductions for depreciation
for any of the said building or buildings or Improvements
shall be allocated ninety-five percent (95%) to Mintz and
five percent (5%) to Savers.
(d) On the last day or sooner of the termination of
the term of this Lease, Tenant shall quit and surrender the
demised lands and the buildings and permanent Improvements
then thereon, if any, in its then condition.
Section 8 . Requirements of Public Authority: (a) During
the term of this Lease, Tenant shall, at its own cost and
expense, promptly observe and comply with all present and
future laws , ordinances, requirements , orders, directives ,
rules and regulations of the State, County, and City Govern-
ments affecting the demised lands or appurtenances thereto
or any part thereof whether the same are in force at the
commencement of the term of this Lease or may in the future
be passed, enacted or directed, and Tenant shall pay all
costs, expenses, liabilities, losses , damages , fines ,
penalties, claims and demands, including reasonable counsel
fees , that may in any manner arise out of or be imposed
because of the failure of Tenant to comply with the covenants
of this Section 8 .
(b) Tenant shall have the right to contest by appropriate
legal proceedings diligently conducted in good faith, in the
name of the Tenant, or Landlord (if legally required) , or
both (if legally required) , the validity or application of
any law, ordinance , rule , regulation or requirement of the
nature referred to in paragraph (a) of this Article and, if
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name and address of the purchaser, transferee, or assignee.
Upon any such sale, transfer, or assignment, Tenant shall be
relieved of all further obligations hereunder and shall no
longer have any liability under this Lease or with respect
to the demised lands.
Section 11. Signs : Tenant and Tenant' s subtenants
shall have the right to install, maintain and replace in, on
or over or in front of the demised lands or in any part
thereof such signs and advertising matter as Tenant may
desire, and Tenant shall comply with any applicable require-
ments of governmental authorities having jurisdiction and
shall obtain any necessary permits for such purposes . As
used in this Section 11, the word "sign" shall be construed
to include any placard, light or other advertising symbol or
object, irrespective of whether same be temporary or permanent.
Section 12. Transfer of Interest in Demised Lands :
Landlord shall not transfer its interest in the demised
lands in a manner which would be inconsistent with its
obligations under the Agreement of even date herewith between
the parties hereto.
Section 13. Insurance : (a) Tenant shall provide, at
its expense and keep in force during the term of this Lease ,
general liability insurance with a good and solvent insurance
company or companies selected by Tenant in such amount and
according to such terms as shall be reasonably satisfactory
to the holder of any mortgage permitted under the provisions
of Section 17 or Section 19 hereof (all of such mortgages.
being hereinafter collectively referred to as "Mortgage" or
"Mortgages" and the holder (s) thereof as "Mortgagee (s) " ) ,
or, if there shall not be such a Mortgage, in the amount of
at least One Million Dollars ($1, 000 , 000 . 00) with respect to
injury or death to any one person and Five Hundred Thousand
Dollars ($500 , 000. 00) with respect to property damage. Such
policy or policies shall include Landlord and Tenant and
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each such Mortgagee (if required by Mortgagee) as assureds .
Tenant agrees to deliver certificates of such insurance to
Landlord at the beginning of the term of this Lease and
thereafter not less than ten (10) days prior to the expi-
ration of any such policy. Such insurance shall be non-
cancellable without ten (10) days ' written notice to Landlord
and to each such Mortgagee (if required by Mortgagee) . ,
(b) During the term of this Lease, Tenant shall keep
all buildings and Improvements erected by Tenant on the
demised lands at any time insured for the benefit of Landlord
and Tenant and the holder of any such Mortgage as their
respective interests may appear, against loss or damage by
fire and customary extended coverage in a minimum amount
necessary to avoid the effect of co-insurance provisions of
the applicable policies . Tenant shall also carry such other
insurance as may be required by any Mortgagee of the demised
lands. All such policies or certificates thereof, shall be
held by the holder of any such Mortgage, if any, or by
Tenant, so long as there shall be no such Mortgages. All
proceeds payable at any time and from time to time by any
insurance company under such policies shall be payable to
such Mortgagee, if any, or, if none, to Tenant. If any such
proceeds are paid to such Mortgagee, Tenant shall be entitled
to receive the full amount thereof in accordance with the
terms of such Mortgage, and Landlord shall not be entitled
to, and shall have no interest in, such proceeds or any part
thereof. Any proceeds paid directly to Tenant shall be -
retained by Tenant and Landlord shall not be entitled to,
and shall have no interest in, such proceeds or any part
thereof. Landlord shall, at Tenant' s cost and expense ,
cooperate fully with Tenant in order to obtain the largest
possible recovery and execute any and all consents and other
instruments and take all other actions necessary or desirable
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in order to effectuate the same and to cause such proceeds
to be paid as hereinbefore provided and Landlord shall not
carry any insurance concurrent in coverage__and contributing
in the event of loss with any insurance required to be
furnished by Tenant hereunder if the effect of such separate
insurance would be to reduce the protection or the payment
to be made under Tenant' s insurance.
(c) Any insurance required to be provided by Tenant
pursuant to this Lease may be provided by blanket insurance
covering the demised lands and other locations of Tenant
provided such blanket insurance complies with all of the
other requirements of this Lease with respect to the insurance
involved and such blanket insurance is acceptable to any
Mortgagee.
Section 14 . Waiver of Subrogation: All insurance
policies carried by either party covering the demised lands ,
including, but not limited to, contents , fire and casualty
insurance, shall expressly waive any right on the part of
the insurer against the other party. The parties hereto
agree that their policies will include such waiver clause or
endorsement so long as the same shall be obtainable without
extra cost, or if extra cost shall be charged therefor, so
long as the other party pays such extra cost; If extra cost
shall be chargeable therefor, each party shall advise the
other thereof and of the amount of the extra cost, and the
other party, at its election, may pay the same, but shall
not be obligated to do so.
Section 15. Destruction: (a) In the event that, at
any time during the term of this Lease , the office building,
parking deck or improvements on the demised lands shall be
destroyed or damaged in whole or in part by fire or other
cause within the extended coverage of the fire insurance
policies carried by Tenant in accordance with this Lease,
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by the terms of any such law, ordinance, order, rule,
regulation or requirement, compliance therewith may legally
be delayed pending the prosecution of any such proceeding,
Tenant may delay such compliance therewith until the final
determination of such proceeding.
(c) Landlord agrees to execute and deliver any appropriate
papers 'or other instruments which may be necessary or proper
to permit Tenant so to contest the validity or application
of any such law, ordinance, order, rule, regulation or
requirement and to fully cooperate with Tenant in such
contest.
Section 9 . Access to Premises : Landlord or Landlord' s
agents and designees shall have the right, but not the
obligation, to enter upon the demised lands at all reason-
able times to examine same and to exhibit the demised lands
to prospective purchasers and prospective tenants , but in
the latter case only during the last six (6) months of this
term of this Lease. Landlord shall be permitted to affix a
"To Let" or "For Sale" sign on the demised lands during the
last ninety (90) days of the term of this Lease in such
place as shall not interfere with the business then being
conducted at the demised lands .
Section 10 . Assignment and Subletting: _ Tenant may
sell, transfer, assign, sublease (in whole or in part or
parts) , mortgage or otherwise encumber this Lease (in whole
or in part or parts) or any sublease of all or any part of
the demised lands and may permit its subtenant or subtenants
to assign, sublease (in whole or in part or parts) , mortgage
or otherwise encumber this Lease or any sublease of all of
any part of the demised lands , without requiring Landlord ' s
consent therefor . Tenant agrees to furnish to Landlord
written notice of the sale , transfer , or assignment of this
Lease within thirty (30) days thereafter , together with the
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then, Tenant, at its own cost and expense, shall, subject to
the provisions of paragraph (b) of this Section 15, cause
the same to be repaired, replaced or rebuilt within a period
of time which, under all prevailing circumstances , shall be
reasonable, provided Tenant receives all the insurance
proceeds for the purpose to repair, replace or rebuild the
damaged Improvements. Tenant shall have no obligation to
rebuild, repair or replace if it does not receive '11 of
said insurance proceeds , or if the damage is uninsured. If
the cost of such repairs or restorations is less than the
insurance proceeds, any amount remaining shall be treated as
cash flow.
(b) In the event that at any time during the term of
this Lease, either the office building or the parking deck
shall have been damaged or destroyed by fire or any other
cause whatsoever, and, as a result of such damage or destruc-
tion, any one or more of the subleases covering such office
building or parking deck shall be terminated by the subtenant
thereunder or by Tenant, then, notwithstanding the provisions
of paragraph (a) of this Section 15 or any other provision
of this Lease :
(1) If the aggregate floor area of the office
building or parking deck, as the case may be , damaged
by such fire or other cause shall exceed fifteen percent
(15%) of the floor area of said office building or
parking deck immediately prior to such damage or
destruction, or if such destruction shall occur during
the last ten (10) years of the initial term or any
extended term thereof , and if Tenant is obligated to
restore under paragraph (a) of this Section ) 5 , Tenant
shall have the right, but not the obligation, to elect
not to repair , replace or rebuild such damaged office
building or parking deck, as the case may be , and to
terminate this Lease by giving written notice of
termination to Landlord on or prior to six (6) months
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after the occurrence of such damage or destruction, and
upon the giving of such notice of termination, the term
of this Lease shall expire and come to an end on the
last day of the calendar month in which such notice
shall be given, with the same force and effect as if
said day had been originally fixed herein as the expiration
date of the term of this Lease, and neitherl_party shall
have any further rights or liabilities hereunder. If
the Lease is terminated hereunder, any insurance proceeds
remaining after satisfaction of all obligations to the
mortgagee shall belong to Tenant.
(2) If Tenant shall not have the right to terminate
this Lease pursuant to subparagraph (1) above or,
having such right, shall not elect to terminate this
Lease, Tenant shall not be required to repair, replace
or rebuild said damaged office building or parking deck
because of termination of the initial sublease of
Savers until such time as Tenant shall resublet the
space covered by the said sublease to a new subtenant
or the prior subtenant, if such prior subtenant shall
relet the said damaged office building.
(c) This Lease shall not terminate by reason of destruction
of part or all of the Improvements unless Tenant elects to
terminate.
Section 16 . Eminent Domain: (a) If the whole of the
demised lands shall be taken for any public or quasi-public
use under any statute or by right of eminent domain or by
private purchase in lieu thereof , then this Lease shall
automatically terminate as of the date that possession has
been taken. In the event of a partial taking (or purchase)
or the demised lands pursuant to which more than fifteen
percent (15%) of the demised lands are so taken (or so
purchased) or if as a result of a taking (or purchase) of
any part of the demised lands , one or more subleases covering
-15-
7
' more than fifteen percent (15%) of the floor area in the
office building or parking deck shall be terminated auto-
matically or by the subtenant thereunder or by Tenant, then
Tenant shall have the right, but not the obligation, to
terminate this Lease by giving written notice of such
termination to Landlord on or prior to the date one hundred
eighty (180) days after the date of such taking (or purchase) ,
and upon the giving of such notice of termination, the term
of this Lease shall expire and come to an end on the last
day of the calendar month in which such notice shall be
given, with the same force and effect as if said day had
been originally fixed herein as the expiration date of the
term of this Lease. In the event the Lease shall terminate
or shall be terminated, the rental shall, if and when necessary,
be adjusted to the day of the taking (or purchase) and
neither party shall have any further rights or liabilities
hereunder.
(b) In the event of a taking (or purchase) resulting
in the termination of this Lease pursuant to the provisions
of paragraph (a) of this Section 16 , 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 or purchase price, after deducting all expenses
and costs, including attorneys ' fees , incurred in connection
therewith, payable to both Landlord and Tenant shall be paid
to Tenant (or if required, to any Mortgagee) and distributed
as follows :
(1) So much of such net award as is available for
distribution shall first be paid to the holder or
holders of any Mortgage or Mortgages to the extent of
the then unpaid principal amount of such Mortgage or
Mortgages .
(2) Then, any balance (herein called the "Fund" )
of the net award, if any, remaining after such payments
shall be treated as cash flow, with "cash flow" to be
determined as though the Land Lease were still in effect.
-16-
(c) (1) In the event of a partial taking (or purchase)
not resulting in the termination of this Lease , pursuant to
the provisions of paragraph (a) of this Section 16 , Tenant
shall, at its own cost and expense, make all repairs to the
buildings and Improvements on the demised lands affected by
such taking (or purchase) to the extent necessary to restore
the same to a complete architectural unit (to the extent
,
permitted, however, taking into consideration t� amount of
land remaining after any such taking or purchase) , provided,
however, that Tenant shall not be obligated to expend an
amount in excess of the proceeds available to Tenant for
such purposes, as hereinafter provided.
(2) All compensation available or paid to Landlord and
Tenant upon such a partial taking (or purchase) shall be
paid to Tenant for the purpose of paying towards the cost of
such restoration, or, in the event that the parties hereto
agree that only a portion of the aggregate award is sufficient
to so restore, then only such portion as agreed upon shall
be paid to Tenant for such purpose and the balance shall be
distributed pursuant to subparagraph (3) of this paragraph (c)
of this Section 16 .
(3) All compensation available or paid to Landlord and
Tenant upon such a partial taking (or purchase) in excess of
the amount thereof needed by Tenant to repair and restore
the buildings and Improvements shall be treated as cash
flow. This Lease shall not terminate in the event of a
partial taking (or purchase) unless the Tenant elects to
terminate.
Section 17 . Mortgages : (a) Landlord hereby covenants
and agrees that during the term of this Lease (and extensions
thereof) , Landlord shall not have the right or power to
mortgage or otherwise create any security or other liens or
encumbrances upon or affecting the fee interest in the
demised lands , or buildings, Improvements , fixtures , equipment
or other property thereon, or any part thereof, at any time
and from time to time , and Landlord shall not have the right
-17-
or power to mortgage or to modify, extend, renew, replace,
refinance or otherwise change or affect any Mortgage at any
time or from time to time created by Tenant pursuant to this
• Lease, and Landlord covenants and agrees that all such
rights and powers are hereby exclusively and irrevocably
vested in and granted to Tenant, subject to the terms and
conditions hereinafter set forth. These provisions shall
not be construed to prevent or excuse Landlord frost, executing
and delivering the mortgages and other agreements , instruments
and documents referred to in paragraph (b) of this Section 17
in order to enable Tenant and every successor and assign of
Tenant, including but not limited to_, any sublessee of
Tenant, but only with Tenant' s prior consent (all of the
aforesaid entities being hereinafter referred to collectively
as "Tenant" , for purposes of this Section 17) , to exercise
and effectuate such rights and powers.
(b) Tenant shall have the right, at any time and from
time to time, during the term of this Lease (as the same may
be renewed and extended) to subject the fee interest of
Landlord in the demised lands, or any part or parts thereof,
including all rights and easements appurtenant thereto and
all buildings and other Improvements thereon, at any time
and from time to time, to any one or more "Permitted Mortgages"
(as defined in paragraph (d) of this Section 17) , and to
renew, modify, consolidate, replace, extend and/or refinance
(any and all of the foregoing being hereinafter included in
the term "Refinance" or "Refinancing" as used herein and
such terms shall also include the replacement of any Permitted
Mortgage which shall be satisfied when due or by prepayment)
any one or more such Permitted Mortgages . If Tenant shall
desire and obtain a commitment for such a Permitted Mortgage
or Refinancing , Tenant shall give Landlord written notice
thereof and of the closing date therefor, at least fifteen
(15) days prior thereto, and Landlord agrees that it shall ,
at or prior to the closing of such Permitted Mortgage or
Refinancing, execute , acknowledce and deliver the mortgage
•
-18-
note, mortgage, and/or deed of trust and such other instru-
ments and documents as shall be required or desired by, and
in form satisfactory to, the Lending Institution (as defined
in paragraph (d) ) , in order to effect such Permitted Mortgage
or Refinancing and hereby irrevocably appoints Tenant its
attorney in fact to execute, acknowledge and deliver any of
the foregoing in the name and stead of Landlord. Tenant
(subject to the exculpation provisions of this Lease and of
each Mortgage) covenants and agrees to make all payments of
interest and amortization under any such Permitted Mortgage
and to pay all of the costs and expenses incurred in connection
therewith, all of which shall be paid by Tenant directly to
the aforesaid Lending Institution as and when the same shall
be due and payable. Landlord covenants and agrees that
Tenant alone shall be entitled to all of the proceeds from
any such Permitted Mortgage at any time and from time to
time effected pursuant to this Lease , and Landlord shall not
be entitled to, and shall not receive and shall have no
interest in, such proceeds or any part thereof, and hereby
directs the aforesaid Lending Institution granting such
Permitted Mortgage to pay the aforesaid proceeds directly to
Tenant and hereby covenants to execute any further documents
which may be required by the aforesaid Lending Institution
for such purpose. If , nevertheless , the aforesaid Lending
Institution shall refuse to pay the proceeds of such Permitted
Mortgage to a party other than Landlord, or Landlord and
Tenant jointly, then Landlord agrees to hold all checks (or
other orders for the payment of money) or cash proceeds
received by it from the said Lending Institution, in trust,
and to forthwith endorse (if necessary) and turn same over
to Tenant.
(c) If Landlord shall fail or refuse to execute the
documents referred to in paragraph (b) of this Section 17 ,
-19-
.
including but not -limited to the Mortgage Note, Mortgage
and/or Deed of Trust and the documents otherwise indicated
in this Section 17 , then Tenant shall be entitled to such
remedies at law and/or equity to which it may be entitled
(including specific performance and declaratory judgment) ,
and in addition thereto, all rent due to Landlord under the
terms of this Lease shall abate until Landlord shall have
complied with its obligation under this Section
(d) Landlord and Tenant agree that this Lease and the
fee interest of Landlord in the demised lands shall be, and
hereby are made, subject and subordinate at all times to the
lien of all Mortgages (herein called"Permitted Mortgage")
• which may at any time, and from time to time, including
those which may hereinafter affect all or any part of the
fee of the demised lands , including all rights and easements
appurtenant thereto and the buildings and improvements
thereon, at any time and from time to time, and to any and
all Refinancing thereof , obtained from a Lending Institution
(as hereinafter defined) . For the purposes of this Lease,
the term "Lending Institution" shall mean any insurance
company, bank or trust company; college, university, charitable
institution or union; pension, profit or retirement fund or
trust; governmental agency or fund; or other financial or
lending institution whose loans on real estate or with
respect thereto are regulated by State or Federal law.
(e) Tenant and Landlord each covenant to execute,
whenever required by the other, a proper instrument of
subordination evidencing the provisions of this Section 17 ,
and each and their respective successors and assigns , is
hereby irrevocably appointed attorney in fact for and on
behalf of the other to execute any instruments of subordi-
nation in accordance with the provisions of this Section 17 .
(f) The terms "Mortgage" and "Permitted Mortgage" as
used herein shall include both so-called permanent financing
-20-
and so-called interim building and/or construction loan
financing and all advances thereunder. All of the provisions
hereof which shall apply with respect to Landlord' s oblica-
tions with respect to permanent financing, shall apply as
well to such so-called interim building and/or construction
loan financing and all advances thereunder and Landlord
shall execute any and all agreements and other instruments
•
necessary or desirable in connection therewith. Tenant,
however, in connection with such interim building and/or
construction loan financing, shall not be required to obtain
any such financing from a Lending Institution, provided
there shall be in existence at or about the time the Mortgage
• securing such interim building and/or construction loan
financing becomes a lien against the demised lands , a
commitment from a Lending Institution for a so-called
permanent loan in an amount equal to the amount of all
advances actually made at said time pursuant to said interim
building and/or construction loan financing.
(g) Any Permitted Mortgage may also contain, at Tenant's
option, so-called open-end provisions for further advances
thereunder. All the provisions of this Section 17 shall
apply to such subsequent advances as fully and with the same
force and effect as with respect to the original advance and
loan. The term "Mortgage, " whenever used herein, shall
include whatever security instruments are used in the locale
of the demised lands, such as , without limitation, deeds of
trust, security deeds and conditional deeds , as well as
financing statements , security agreements and other docu-
mentation required pursuant to the Uniform Commercial Coda.
The term "Mortgage" whenever used herein, shall also include
any instruments required in connection with a sale-ieaseb_c:•_
transaction with a Lending Institution.
(h) Landlord and Tenant agree to execute and derive=
to each Lending Institution such instruments of assignment
_,1 -
and consent, and in such form, as shall be desired or required
by such Lending Institution, as additional collateral and
security, of its right, title and interest in, to and under
this Lease and any sublease (s) affecting the demised lands ,
including, without limitation, the rents and additional
rents payable hereunder and thereunder. •
(i) Landlord and Tenant further agree to execute and
deliver to any Lending Institution requiring same,\an
Amendment of Lease incorporating such modifications of the
terms and provisions of this Lease as such Lending Institution
shall reasonably require as a condition precedent to their
granting of a loan or a commitment secured by a Permitted
Mortgage. Notwithstanding the foregoing, neither Landlord
nor Tenant shall be required to execute any Amendment of
Lease which shall modify the provisions of this Lease
relating to the amount of rent reserved, the obligation on
Tenant' s part to make payments of Taxes and Utility Expenses ,
the size and location of the demised lands , and the duration
or Commencement Date of the term, and Landlord will have no
action against Tenant if the demised lands or other assets
are seized and sold for payment of and debt of the Tenant.
Section 18 . Sublease : If , for any reason, this Lease
and the leasehold estate of Tenant hereunder is terminated
by Landlord by summary proceedings or otherwise in accordance
with the terms of this Lease , Landlord covenants and agrees
that such termination of this Lease shall not result in
a termination of any sublease affecting the demised lands
and that they shall all continue for the duration of their
respective terms and any extension thereof as a direct Lease
between Landlord hereunder and the sublessee thereunder ,
with the same force and effect as if Landlord hereunder had
originally entered into such sublease as Landlord thereunder
(subject, however, to the prior right of the holder of any
leasehold Mortgage) . Any such sublessee shall not be named
-22-
or joined in any action or proceeding by Landlord under this
Lease to recover possession of the demised lands or for any
other relief. Landlord shall, upon request, execute,
acknowledge and deliver such agreements evidencing and
agreeing to the foregoing as each sublessee shall require.
•
Section 19 . Leasehold Mortgages : Tenant and every
successor and assign of Tenant (including, but not limited
to, any sublessee of Tenant, but only with Tenant' prior
consent) is hereby given the right by Landlord in addition
to any other rights herein granted, without Landlord' s prior
written consent, to mortgage its interests in this Lease (s) ,
or any part or parts thereof , and any� sublease (s) under one
or more first leasehold Mortgage (s) and/or under a purchase
money first or second leasehold Mortgage (s) in connection
with any sale of such interest, and assign this Lease, or
any part or parts thereof , and any sublease (s) as collateral
security for such Mortgage (s) , upon the condition that all
rights acquired under such Mortgage (s) shall be subject to
each and all of the covenants , conditions and restrictions
set forth in this Lease, and to all rights and interests of
Landlord herein, none of which covenants , conditions or
restrictions is or shall be waived by Landlord by reason of
the right given so to mortgage such interest in this Lease,
except as expressly provided herein. If Tenant and/or
Tenant' s successors and assigns (including, but not limited
to, any sublessee of Tenant, but only with Tenant' s prior
consent) shall mortgage this leasehold, or any part or parts
thereof, and if the holder (s) of such Mortgage (s) shall ,
within thirty (30) days of its execution, send to Landlord a
true copy thereof , together with written notice specifying
the name and address of the Mortgagee and the pertinent
recording date with respect to such Mortcaae (s) , Landlord
agrees that so long as any such leasehold Mortgage (s) shall
-?3-
remain unsatisfied of record or until written notice of
satisfaction is given by the holder (s) to Landlord, the
following provisions shall apply:
(a) There shall be no cancellation, surrender or
modification of this Lease by joint action of Landlord and
Tenant without the prior consent in writing of the leasehold
Mortgagee (s) ;
(b) Landlord shall, upon serving Tenant with any
notice of default, simultaneously serve a copy of such
notice upon the holder (s) of such leasehold Mortgage (s) .
The leasehold Mortgagee (s) shall thereupon have the same
period, after service of such notice upon it, to remedy or
cause to be remedied the defaults complained of , and Landlord
shall accept such performance by or at the instigation of
such leasehold Mortgagee (s) as if the same had been done by
Tenant;
(c) Anything herein contained notwithstanding, while
such leasehold Mortgage (s) remains unsatisfied of record, or
until written notice of satisfaction is given by the holder (s)
to Landlord, if any default shall occur which, pursuant to
any provision of this Lease , entitles Landlord to terminate
this Lease, and if before the expiration of ten (10) days
from the date of service of notice of termination upon such
leasehold Mortgagee (s) , such leasehold Mortgagee (s) shall
have notified Landlord of its desire to nullify such notice
and shall have paid to Landlord all rent and additional rent
and other payments herein provided for, and then in default,
and shall have complied or shall commence the work of complying
with all of the other requirements of this Lease , except as
provided in paragraph (g) of this Section 19 , if any are
then in default, and shall prosecute the same to completion
with reasonable diligence, then in such event, Landlord
shall not be entitled to terminate this Lease and any notice
-24-
%
of termination theretofore given shall be void and of no
effect;
(d) If the Landlord shall elect to terminate this
Lease by reason of any default of Tenant, the leasehold
Mortgagee (s) shall not only have the right to nullify any
notice of termination by curing such default, as aforesaid,
but shall also have the right to postpone and extend the
specified date for the termination of this Lease as';fixed by
Landlord in its notice of termination, for a period of not
more than six (6) months , provided that such leasehold
Mortgagee (s) shall cure or cause to be cured any then
existing money defaults and meanwhile pay the rent and
comply with and perform all of the other terms , conditions
and provisions of this Lease on Tenant' s part to be complied
with and performed, other than past nonmonetary defaults ,
and provided further that the leasehold Mortgagee (s) shall
forthwith take steps to acquire or sell Tenant' s interest in
this Lease by foreclosure of the Mortgage (s) or otherwise
and shall prosecute the same to completion with all due
diligence. If, at the end of said six (6) month period, the
leasehold Mortgagee (s) shall be actively engaged in steps to
acquire or sell Tenant' s interest herein, the time of said
Mortgagee to comply with the provisions of this Section 19
shall be extended for such period as shall be reasonably
necessary to complete such steps with reasonable diligence
and continuity;
(e) Landlord agrees that the name of the leasehold
Mortgagee (s) may be added to the "Loss Payable Endorsement"
of any and all insurance policies required to be carried by
Tenant hereunder on condition that the insurance proceeds
are to be applied in the manner specified in this Lease and
that the leasehold Mortgage (s) or collateral document shall
so provide;
-25-
(f) Landlord agrees that in the event of termination
of this Lease by reason of any default by Tenant other than
for nonpayment of rent and other payments herein provided
for, that Landlord will enter into a new Lease of the demised
lands with the leasehold Mortgagee (s) or its nominee (s) , for
the remainder of the term, effective as of the date of such
termination, at the rent and upon the terms , provisions ,
covenants and agreements as herein contained and subject
only to the same conditions of title as this Lease is subject
to on the date of the execution hereof , and to the rights ,
if any, of any parties then in possession of any part of the
demised lands, provided:
(1) Said Mortgagee (s) or its nominee shall make
written request upon Landlord for such new Lease within
fifteen (15) days after the date of such termination
and such written request is accompanied by payment to
Landlord of sums then due to Landlord under this Lease;
(2) Said Mortgagee (s) or its nominee (s) shall pay
to Landlord at the time of the execution and delivery
of said new Lease , any and all sums which would at the
time of the execution and delivery thereof , be due
pursuant to this Lease but for such termination, and in
addition thereto, any expenses , including reasonable
attorneys ' fees , to which Landlord shall have been
subjected by reason of such default;
(3) Said Mortgagee (s) or its nominee (s) shall
perform and observe all covenants herein contained on
Tenant' s part to be performed and shall further remedy
any other conditions which Tenant under the terminated
Lease was obligated to perform under the terms of this
Lease ; and upon execution and delivery of such new
Lease , any subleases which may have theretofore been
assigned and transferred by Tenant to Landlord , as
_:g_
.
security under this Lease, shall thereupon be deemed to be
held by Landlord as security for the performance of all of
the obligations of Tenant under the new Lease;
(4) Landlord shall not warrant possession of the
demised lands to Tenant under the new Lease;
(5) Such new Lease shall be expressly made subject
to the rights , if any , of Tenant under the germinated
Lease;
(6) The Tenant under such new Lease shall have
the same right, title and interest in and to the buildings
and Improvements on the demised lands as Tenant had
under the terminated Lease;
(g) Nothing herein contained shall require the leasehold
Mortgagee (s) or its nominee (s) to cure any default of Tenant
under this Lease;
(h) Landlord agrees promptly after submission to
execute, acknowledge and deliver any agreements modifying
this Lease requested by any leasehold Mortgagee (s) , provided
that such modification does not decrease Tenant' s obligations
or decrease Landlord' s rights pursuant to this Lease;
(i) The proceeds from any insurance policies or arising
from a condemnation are to be held by any leasehold Mortgagee (s)
and distributed pursuant to the provisions of this Lease ,
but the leasehold Mortgagee (s ) may reserve its rights to
apply to the mortgage debt all , or any part, of Tenant ' s
share of such proceeds pursuant to such Mortgage (s) ;
(j ) The leasehold Mortgagee (s) shall be given notice
of any arbitration proceedings by the parties hereto, and
shall have the right to intervene therein and be made a
party to such proceedings , and the parties hereto do hereby
consent to such intervention . In the event that the leasehold
Mortgagee (s) shall not elect to intervene or become a party
to such proceedings , the leasehold Mortgagee (s) shall receive
-27-
.
notice of, and a copy of any award or decision made in said
arbitration proceedings ; and
(k) Landlord shall, upon request, execute , acknowledge
and delivery to each leasehold Mortgagee (s) , an agreement
prepared at the sole cost and expense of Tenant, in form
satisfactory to such leasehold Mortgagee (s) , between Landlord,
Tenant and leasehold Mortgagee (s) , agreeing to all of the
provisions of this Section 19 . The _ term "Mortgage, " whenever
used herein, shall include whatever security instruments are
used in the locale of the demised lands , such as , without
limitation, deeds of trust, security deeds and conditional
deeds , as well as financing statements , security agreements
and other documentation required pursuant to the Uniform
Commercial Code. The term "Mortgage" whenever used herein,
shall also include any instruments required in connection
with a sale-leaseback transaction.
Section 20 . Performance by Subtenant: Any act required
to be performed by Tenant pursuant to the terms of this
Lease may be performed by any sublessee of Tenant occupying
all or any part of the demised lands and the performance of
such act shall be deemed to be performance by Tenant and
shall be acceptable as Tenant' s act by Landlord.
Section 21. Agency: In addition to any other rights
that Tenant may have pursuant to this Lease , if Landlord
fails to execute , acknowledge and deliver any instrument or
instruments required of Landlord to effectuate the provisions
of this Lease, Landlord does hereby constitute and appoint
Tenant as its attorney in fact, having the power coupled
with an interest, to execute , acknowledge and deliver any
such instrument or instruments for and on behalf of Landlord.
Notwithstanding the foregoing , Tenant agrees that it shall
not exercise its foregoing rights unless it shall have
notified Landlord of its intention to do so and shall have
given Landlord an additional period of five (5) days from
-28-
. r
the date of such notice to execute , acknowledge and deliver
such instrument or instruments , unless a shorter period is
expressly provided under this Lease . In the event any
person who may request to be or be a party to any such
instrument or instruments refuses to recognize Tenant as the
true and lawful attorney in fact of Landlord, Landlord shall
cause a bank or trust company situated in the political
•
subdivision in which the demised lands are located to act as
a substitute for Tenant, upon Tenant' s request therefor , and
execute such instrument or instruments or take any action
requested by Tenant which Tenant might otherwise execute or
take in accordance with the provisions _,hereof. Said substitute
shall execute such instrument or instruments in the name of
and on behalf of Landlord in accordance with the terms of
this Lease as a ministerial function, and shall not be
empowered or required to determine the reasonableness ,
necessity or desirability thereof.
Section 22 . Quiet Enjoyment : (a) Tenant, upon paying
the rent and observing and keeping all covenants , warranties ,
agreements and conditions of this Lease on its part to be
kept, shall quietly have and enjoy the demised lands during
the term of this Lease , without hindrance or molestation by
anyone. -
(b) Landlord represents and warrants to Tenant that it
has fee simple title to the demised lands and the power and
authority to execute and deliver this Lease and to carry out
and perform all covenants to be performed by it hereunder-.
Landlord further represents and warrants to Tenant :
(1) That the demised lands are free from all
encumbrances , liens , defects in title , violations of
law, leases , tenancies , easements , restrictions and
agreements (other than those of record or relative to
the construction of the office building and parking
-29-
respects to the interim lender, the First National Bank in
Little Rock, Arkansas , and the permanent lender, Connecticut
General Life Insurance Company, and that a true copy of said
form of lease as modified in Exhibit D-3 of the said Tri-
party Agreement is contained in the Book of Exhibits to this
Agreement.
(14) Savers represents and warrants that it has assigned,
conveyed, leased and/or subleased (with the exception of fee
ownership of the land) to Savers and S .A.M. as provided for
Agreement
under this/all the collateral required by Connecticut General
Life Insurance Company to be incumbered so as to satisfy the
commitment of the permanent lender, Connecticut General Life
Insurance Company; and that the status of title to said
collateral (including the Land) is satisfactory to the
permanent lender, Connecticut General Life Insurance Company.
(15) Savers warrants and represents that the legal
description in the Land Lease Agreement dated May 1, 1979 ,
between Savers (Landlord) and Savers and S .A.M. (Tenant) and
in this Agreement as provided for in Exhibit 1 of each
correctly describes the land, skyway agreement, air rights
and other collateral that Connecticut General Life Insurance
Company requires to be encumbered to satisfy its commitment,
and Connecticut General Life Insurance Company and Lawyers
Title Insurance Company have approved the said description.
21. 2 Warranties and Representations by S .A.M.
(1) S .A.M. warrants and represents that it is a valid
Partnership under the laws of the State of Arkansas;
(2) S.A.M. warrants and represents that it is duly
authorized to make this investment;
(3) S.A.M. warrants and represents that the party
executing this Agreement has authority to bind the Partnership;
(4) S.A.M. warrants and represents that all financial
information which S.A.M. will give or has given to Connecticut
General Life Insurance Company is true, complete and correct;
-30-
•
(b) In the event that Landlord gives notice of a
default of such a nature that it cannot be cured within such
sixty (60) day period then such default shall not be deemed
to continue so long as Tenant, after receiving such notice,
proceeds to cure the default as soon as reasonably possible
and continues to take all steps necessary to complete the same
within a period of time which, under all prevailing circumstances, N
shall be reasonable. No default shall be deemed o'continue if
and so long as Tenant shall be so proceeding to cure the same in
good faith or be delayed in or prevented from curing the same by
any cause specified in Section 28 hereof.
(c) Notwithstanding anything to the contrary contained
in this Section 23, in the event that any default (s) of
Tenant shall be cured in any manner hereinabove provided,
such default (s) shall be deemed never to have occurred and
Tenant' s rights hereunder shall continue unaffected by such
default (s) .
Section 24 . Nonmerger: It is the express agreement
and understanding of the parties hereto that no provisions
of this Agreement shall operate (whether alone or in con-
junction with any other agreement between the parties
hereto) to cause a merger of the leasehold interest of
Savers in the demised lands with its interest as owner of
the fee.
Section 25. Waivers : Failure of Landlord or Tenant to
complain of any act or omission on the part of the other
party no matter how long the same may continue shall not be
deemed to be a waiver by said party of any of its rights
hereunder. No waiver by Landlord or Tenant at any time,
express or implied, of any breach of any provision of this
Lease shall be deemed a waiver of a breach cf anv other
-31-
7
provision of this Lease or a consent to any subsequent
breach of the same or any other provisions.
Section 26 . Limitation of Liability: Subject to the
provisions of Section 23 , if Tenant or any successor in
interest of Tenant shall be a mortgagee, or an individual,
•
joint venture, tenancy in common, firm or partnership,
general or limited, it is specifically understood and agreed
that there shall be absolutely no personal liability on the
part of such mortgagee or such individual or such tenants in
common or on the part of the members of such firm, partnership
or joint venture with respect to any of the terms , covenants
and conditions of this lease , and Landlord shall look solely
to the equity of Tenant or such successor in interest in the
leasehold estate of Tenant in the demised lands for the
satisfaction of each and every remedy of Landlord in the
event of any breach by Tenant or by such successor in interest
of any of the terms, covenants and conditions of this lease
to be perfozmed by Tenant, such exculpation of personal
liability to be absolute and without any exception whatsoever.
Section 27 . Title: Upon the execution of this Lease,
Landlord shall furnish to Tenant, at Landlord' s sole cost
and expense, a title policy commitment to provide title
insurance in an amount satisfactory to Tenant issued by a
title company selected by Landlord and satisfactory to
Tenant insuring Tenant' s marketable title in the leasehold
estate created hereunder (including ownership of the improve-
ments) free and clear of all liens , encumbrances and tenancies
of any kind, nature and description, except as disclosed to
Tenant in writing and accepted by Tenant prior to execution
of this Lease.
Section 28 . Force Majeure : In the event that Landlord
or Tenant shall be delayed, hindered in or prevented from
the performance of any act required hereunder by reason of
strikes, lock-outs , labor troubles , inability to procure
-32-
materials, failure of power, restrictive governmental laws
or regulations, riots , insurrection, the act, failure to act
or default of the other party, war or other reason beyond
their control , then performance of such act shall be excused
for the period of the delay and the period for the perfor-
mance of any such act shall be extended for a period equiva-
lent to the period of such delay.
Section 29 . Notices : Every notice, approval, consent
or other communication authorized or required by this Lease
shall not be effective unless same shall be in writing and
sent postage prepaid by United States registered or certified
mail, return receipt requested, directed to the other party
at the addresses set forth below, or such other address as
either party may designate by notice given from time to time
in accordance with this Section 29 . The rent payable by
Tenant hereunder shall be paid to Landlord at the same place
where a notice to Landlord is herein required to be directed.
For purposes of this Agreement, the addresses of the parties
hereto are as follows :
Savers Federal Savings and Loan Association
P. 0. Drawer 2499
Little Rock, Arkansas 72203
S.A.M. Limited Partnership
P . 0. Box 6058
Monroe, Louisiana 71201
and
4000 W. 65th Street
Little Rock, Arkansas 72209
Section 30 . Certificates : Either party shall, without
charge, at any time and from time to time hereafter, within
ten (10) days after written request of the other , certify by
written instrument duly executed and acknowledged to any
mortgagee or purchaser, or proposed mortgagee or proposed
purchaser, or any other person , firm or corporation specified
in such request : (a) as to whether this Lease has been
supplemented or amended, and if so, the substance and manner
of such supplement or amendment; (b) as to the validity and
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• •
force and effect of this Lease, in accordance with its tenor
as then constituted; (c) as to the existence of any default
thereunder; (d) as to the existence of any offsets, counter-
claims or defenses thereto on the part of such other party;
(e) as to the commencement and expiration dates of the term
of this Lease; and (f) as to any other matters as may
reasonably be so requested. Any such certificate may be
relied upon by the party requesting it and any other person,
firm or corporation to whom the same may be exhibited or
delivered, and the contents of such certificate shall be
binding on the party executing same.
Section 31. Governing Law: This Lease and the per-
formance thereof shall be governed, interpreted, construed
and regulated by the laws of the State of Arkansas.
Section 32. Partial Invalidity: If any term, covenant,
condition or provisicn of this Lease or the application
thereof to any person or circumstance shall, at any time or
to any extent, be invalid or unenforceable, the remainder of
this Lease, or the application of such term or provisions to
persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby,
and each term, covenant, condition and provision of this
Lease shall be valid and be enforced to the fullest extent
permitted by law.
Section 33 . Short Form Lease: The parties will at any
time, at the request of either one, promptly execute duplicate
originals of an instrument, in recordable form, which will
constitute a short form of Lease , setting forth a description
of the demised lands , the term of this Lease , and any other
portions thereof , excepting the rental provisions , as either
1 party may request.
Section 34 . Interpretation : Wherever herein the
singular number is used, the same shall include the plural,
and the masculine gender shall include the feminine and
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1
neuter genders, and vice versa, as the context shall require .
The section headings used herein are for reference and
convenience only, and shall not enter into the interpretation
hereof. This Lease may be executed in several counterparts,
each of which shall be an original , but all of which shall
constitute one and the same instrument. The terms "Landlord"
and "Tenant" whenever used herein shall mean only the owner
at the time of Landlord ' s or Tenant ' s interest herein, and
upon any sale or assignment of the interest of either
Landlord or Tenant herein, their respective successors in
interest and/or assigns shall, during the term of their
ownership of their respective estates herein, be deemed to
be Landlord or Tenant, as the case may be.
Section 35 . Entire Agreement: No oral statement or
prior written matter shall have any force or effect. Subject
to the provisions of Section 37 , and that sub-lease with
Savers Federal Savings and Loan Association dated May 1 ,
1979 . Tenant agrees that it is not relying on any representations
or agreements other than those contained in this Lease.
This agreement shall not be modified or cancelled except by
writing subscribed by all parties .
Section 36 . Parties : Except as herein otherwise
expressly provided, the covenants, conditions and agreements
contained in this Lease shall bind and inure to the benefit
of Landlord and Tenant and their respective heirs , successors,
administrators and assigns.
Section 37 . Companion Agreement: If any terms or
conditions in this Land Lease Agreement are inconsistent
with the terms and conditions of the Agreement of even date
herewith between the parties hereto or if the terms or
conditions in this Land Lease Agreement cause the terms and
conditions of said Agreement to be ambiguous, then the terms
and conditions of said Agreement shall control and such
inconsistent terms and conditions in this Land Lease Agreement
-35-
will be considered as not written.
Section 38 . Interim and Permanent Loans and Commitments:
Nothing in this Land Lease Agreement shall release any of .
Landlord' s obligations to comply with and do those acts and
things required by the interim and permanent loan commitments
or loans or mortgages.
Section 39 . Tenant: Whenever the Landlord is obligated
under this Lease to provide notice to the Tenant, such
notice shall be sent to each party who constitutes a Tenant
hereunder.
Section 40 . Withdrawal of Partner from Tenant Partnership:
Should S.A.M. exercise its right to withdraw from the Partnership
created by the Agreement of even date herewith between the
parties hereto, then S.A.M. shall have no obligations to
Landlord under this Lease.
IN WITNESS WHEREOF, the parties hereto have hereunto
set their hands and seals the day and year first above
written.
LANDLORD
SAVERS FEDERAL SAVINGS AND
LOAN • •CIATION
Bvi Ai _1
ATTEST:
,�
Ste,`y TENANTS
SAVERS FEDERAL SAVINGS AND
LOA ASSOCIA ION to
BY,/A,1� �, a„'.
AT EST: i V AOC %
)( / / iO4,417/04 )
THE S .A.M. LIMITED PARTNERSHIP
By I.�' /� WAy
• ' A. Mint ,
General Partner
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.. /
Legal Desc options of Real Estates Involved
in SAVERS-S .A.M. Transaction
PARCEL I
A fee simple estate of Savers Federal Savings and Loan
Association ( SAVERS ) leased to SAVERS/S .A.M. by Land Lease
dated May 1 , 1979 , in and to the surface and mineral estates
of Lots 1 , 2 , 3 , 4 , 5 , and 6 , Block 95 , and the West 10 feet
of alley running North and South through Block 95 , as closed
by Ordinance No . 13441 , recorded June 2 , 1978, as Instrument
No . 78-21971 , and the South 18 feet of Lot 4 , all of Lots 5,
6 , 7 , and 8 , and the South 18 feet of Lot 9 , Block 96 ,
Original City of Little Rock , Arkansas ; subject to that
certain Mortgage dated August 2 , 1978 , and filed of record
on August 11 , 1978 , as document No . 78- 3270§' ,with the
Circuit Clerk of Pulaski County , Arkansas.
PARCEL II
A ninety-nine ( 99 ) year lease in favor of SAVERS acquired
from the City of Little Rock , Arkansas , by Lease dated
August 10 , 1978 , and filed of record on August 11 , 1978 as
document No . 78-32708 with the Circuit Clerk of Pulaski
County , Arkansas , a Correction Lease- and Agreement dated
August 19 , 1978 , and filed of record November 16 , 1978 , as
document No . 78-46244 with the Circuit Clerk of Pulaski
County , Arkansas , and the Amended and Substituted Lease and
Agreement dated January 29 , 1979 , and filed of record
January 29 , 1979 , as document No . 79-03865 with the Circuit
Clerk of Pulaski County , Arkansas , and leased to
SAVERS/S . A . M . by Land Lease dated May 1 , 1979 , of an
undivided one-half ( 1/2 ) interest in that certain airspace
beginning 14 ' 6 " above existing pavement on the following
described property located West of Lot 5 , Block 95 , Original
City, Little Rock , Arkansas:
Beginning at the Southwest corner of Lot 6 , Block 95 ,
Original City , Little Rock ,Arkansas ; thence N 6 degrees
48 minutes 24 seconds E 73 ' to the point of beginning ;
thence N 83 degrees 14 minutes 41 seconds W 60 ' ; thence
N 6 degrees 48 minutes 24 seconds E 19 . 0 ' ; thence S 83
degrees 14 minutes 41 seconds E 60 ' ; thence S 6 degrees
48 minutes 24 seconds W 19 . 0 ' to the point of
beginning;
Subject to that certain Skyway Agreement dated January 29 ,
1979 , between Savers and The First National Bank in Little
Rock , and filed of record as document No . 79-10384 with the
Circuit Clerk of Pulaski County , Arkansas and leased to
SAVERS/S .A.M. by Land Lease dated May 1 , 1979 .
PARCEL III
A ninety-nine ( 99 ) year lease in favor of SAVERS acquired
from the City of Little Rock , Arkansas by Lease dated August
10 , 1978 , and filed or record on August 11 , 1978 as document
No . 78 - 32708 with the Circuit Clerk of Pulaski County ,
Arkansas , a Correction Lease and Agreement dated August 19 ,
1978 , and filed of record November 16 , 1978 , as document No .
78-46244 with the Circuit Clerk of Pulaski County, Arkansas
and the Amended and Substituted Lease and Agreement dated
January 29 , 1979 , as document No . 79-03865 with the Circuit
Clerk of Pulaski County , Arkansas , and leased to
SAVERS/S . A . M . by Land Lease dated May 1 , 1979 , in and to
, hat certain a_ space beginning 15 ' above existing pavement
on the following described property located North of Lot 1 ,
Block 95 , Original City , Little Rock , Arkansas:
Beginning at the Northeast corner of Lot 1 , Block 95 ,
Original City , Little Rock , Arkansas ; thence N 83
degrees 14 minutes 11 seconds W 30 ' to the point of
beginning ; thence N 83 degrees 14 minutes 11 seconds W
16 ' ; thence N 6 degrees 48 minutes 24 seconds E 60 ' ;
thence S 83 degrees 14 minutes 11 seconds E 16 ' ; thence
S 6 degrees 48 minutes 24 seconds W 60 ' to the point of
beginning .
PARCEL IV
A ninety-nine ( 99 ) year lease in favor of SAVERS acquired
from the City of Little Rock , Arkansas , by Lase dated
August 10 , 1978 , and filed of record on August 11, 1978 as
document No . 78-32708 with the Circuit Clerk of Pulaski
County , Arkansas , a Correction Lease and Agreement dated
August 19 , 1978 , and filed of record November 16 , 1978 , as
document No . 78-46244 with the Circuit Clerk of Pulaski
County , Arkansas , and the Amended and Substituted Lease and
Agreement dated January 29 , 1979 ,. and filed of record
January 29 , 1979 , as document No . 79-03865 with the Circuit
Clerk of Pulaski County , Arkansas , and leased to
SAVERS/S .A. M . by Land Lease dated May 1 , 1979 , in and to
that certain airspace beginning 13 ' 7 " above existing
pavement on the following described property located in
Block 96, Original City, Little Rock , Arkansas:
Beginning at the Southeast corner of Lot 6 , Block 96 ,
Original City; thence N 6 degrees 48 minutes 07 seconds E
120 . 0 ' ; thence S 83 degrees 14 minutes 41 seconds E 20 . 0 ' ;
thence S 6 degrees 48 minutes 07 seconds W 120 . 0 ' ; thence N
83 degrees 14 minutes 11 seconds W 20 . 0 ' to the point of
beginning .
2
•
ACKNOWLEDGMENT
STATE OF ARKANSAS
COUNTY OF PULASKI On this day, personally appeared before me We
61e,(4 mil✓, and 44/ (cfred �+'I- ���?oU f1� both
of Savers Federal Savings and Loan Association, known as
Landlord herein, known to me to be the persons w\se names
are subscribed to the within instrument and acknowledged
that they executed the same for the purposes therein contained.
WITNESS my hand and official seal this day of
May, 1979.
Ai
Notar; ublic
My Commission Expires :
My Coma.:scion Expires Oct. 5, 1031
STATE OF ARKANSAS
COUNTY OF PULASKI /�(
On this day, personally appeared before me �V • ' '
and t4lf( lie /1 • O/3hu c de both
� l
of Savers Federal Savings and Loan Association, known as
Tenant herein, known to me to be the persons whose names are
subscribed to the within instrument and acknowledged that
they executed the same for the purposes therein contained.
WITNESS my hand and official seal this I5 day of
May, 1979 .
Notary ublic
My Commission Expires :
—
, • •
STATE OF ARKANSAS
COUNTY OF PULASKI
On this day, personally appeared before me, Saul A.
Mintz, General Partner of S .A.M. Limited Partnership known
to me to be the person whose name is subscribed to the
within instrument and acknowledged that he executed the same
for the purposes therein contained.
WITNESS my hand and official seal this I5T— day of
May, 1979.
Iii
tad
Notar public
My Commission Expires :
My OormML-zion Exp:ms Oct. 5, 1961
•