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• RESOLUTION NO. 9.241 •
446
A RESOLUTION TO AUTHORIZE THE MAYOR AND CITY
CLERK TO EXECUTE ALL NECESSARY AGREEMENTS TO
COMPLETE A CONSTRUCT AND LEASE, PARKING AND
CONCESSION AGREEMENT BY AND BETWEEN THE CITY
OF LITTLE ROCK, ARKANSAS (ON ITS BEHALF AND
THAT OF THE LITTLE ROCK ADVERTISING AND
PROMOTION COMMISSION) AND CAPITOL CITY HOTELS
LIMITED PARTNERSHIP, AN ARKANSAS LIMITED
PARTNERSHIP; AND FOR OTHER PURPOSES.
WHEREAS, the City of Little Rock, Arkansas (nCity") through
the Little Rock Advertising and Promotion Commission ( "A &P ") has
come into possession of the Camelot Hotel and, after seeking
proposals from interested persons nationwide has selected
Seymour Logan & Associates to enter into a lease agreement for
the property; and
WHEREAS, Seymour Logan and Associates have formed an
Arkansas limited partnership entitled the Capitol City Hotels
Limited Partnership as to legal entity with which the City will
formally enter into this lease agreement; and
WHEREAS, the parties have agreed upon the terms and
conditions of a construct and lease agreement, concession and
parking agreement that will govern the hotel for a period of 50
years with two consecutive options to renew for periods of 25
years each; and
WHEREAS, it is in the best interests of the City to enter
into such an agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF
THE CITY OF LITTLE ROCK, ARKANSAS:
SECTION 1. The Mayor and City Clerk are authorized to
execute a lease agreement in substantially the form attached as
Exhibit A to this Resolution, and all other necessary documents
and papers necessary to complete a Construct and Lease Parking
and Concession Agreement By and Between the City of Little Rock,
Arkansas, as Lessor and Capitol City Hotels Limited Partnership,
Lessee.
SECTION 2. The Little Rock Advertising and Promotion
Commission, acting through its Executive Director, is authorized
the monitor this lease agreement to assure compliance with the
various covenants, terms and conditions set forth therein, to
notify the appropriate City officials when additional actions
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are necessary, and to assist the City to assure that Lessee
complies fully with all the terms and conditions contained
therein.
ADOPTED: September 14, 1994
1
• AND • •
NeffifflAW 61•:,
APPROVED:
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CONSTRUCT AND LEASE,
PARKING AND CONCESSION
AGREEMENT
BY AND BETWEEN
CITY OF LITTLE ROCK, ARKANSAS,
AS LESSOR
m
CAPITOL CITY HOTEL LTD. PARTNERSHIP,
AS LESSEE
0
TABLE OF CONTENTS
Description of Document Page No.
ARTICLE I - DEFINITIONS 2
Section 1.1: Reserved.
ARTICLE H - THE DEMISE 6
Section 2.1: The Demise. 6
Section 2.2: Hotel Building and Improvements To 7
Become the Property of Lessor.
Section 2.3: Covenants To Perform. 8
Section 2.4: Reserved. 8
ARTICLE III - THE TERM 8
Section 3.1: The Term. 9
Section 3.2: Renewals. 9
ARTICLE IV - DELIVERY OF POSSESSION, PLANS
9
AND SPECIFICATIONS AND CONSTRUCTION
Section 4.1:
Delivery of Possession.
10
Section 4.2:
Plans and Specifications.
10
Section 4.3:
Lessee's Construction Obligation.
14
Section 4.4:
Commencement of Construction.
15
Section 4.5:
Completion of Construction.
15
ARTICLE V - RENT 15
Section 5.1: Demised Premises Rent. 15
ARTICLE VI - NONEMCUNMRANCE OF DEMISED
16
PREMISES PERMITTED MORTGAGE FINANCING
Section 6.1: Limitation Upon Encumbrance Of
16
Demised Premises.
Section 6.2: Protection To Mortgagee.
20
Section 6.3: Right of Mortgagee To Make A New
21
Lease Agreement.
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Section 6.4: Mortgagee's Grace Period To Cure 22
Defaults Or To File Foreclosure Proceedings.
Section 6.5: Copy of Notice of Breach of 24
Covenant or Default.
Section 6.6: Right of Mortgagee To Cure Breach or 25
Default By Lessee.
ARTICLE VII - ADDITIONAL CONDITIONS OF LEASE
25
AGREEMENT AND RESTRICTIONS UPON USE OF
DEMISED PREMISES
29
Section 7.1: Franchise. Not Reserved.
26
Section 7.2: Incorporation of Franchise.
27
Section 7.3: Covenant to Renovate, Operate, Maintain
28
and Repair in Conformity with Requirements of the
Franchise.
Section 7.4: Certain Conditions of Leasing.
29
ARTICLE VIII - PROHIBITIONS AGAINST ASSIGNMENT
29
AND TRANSFERS OF DEMI SED PREMISES
Section 8.1: Representations as to Redevelopment.
29
Section 8.2: Prohibition Against Transfer of The
31
Lease Agreement or Leasehold Estate and Assignment.
Section 8.3: Lessee Not Relieved of Obligations By
32
Disposition or Transfer of Demised Premises or
Assignment of Lease Agreement.
Section 8.4: Assignee's Liability.
33
ARTICLE IX - PARKING 33
Section 9.1: Parking Spaces. 34
Section 9.2: Rental. 34
Section 93: Option to Use Additional Space. 35
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Section 9.4: Availability of Spaces. 36
ARTICLE X - RESERVATION, EASEMENTS, AND OTHER 36
PROVISIONS, RELATIVE TO THE PUBLIC IMPROVEMENTS
AND DEMISED PREMISES
Section 10.1: Easements 37
Section 10.2: Structural Support 37
ARTICLE XI - PAYMENT OF TAXES, ASSESSMENTS
38
AND OTHER IMPOSITIONS
Insurance On Demised Premises.
Section 11.1:
Payment of Impositions.
39
Section 11.2:
Tax on Rents.
41
Section 113:
Lessee Not To Pay Certain Taxes.
41
Section 11.4:
Deposit on Account of Real Estate Taxes.
41
Section 11.5:
Proof of Payment.
45
Section 11.6:
Tax Bills Prima Facie Evidence.
46
ARTICLE XII - INSURANCE.
47
Section 12.1:
Insurance On Demised Premises.
47
Section 12.2:
Other Insurance To Be Carried.
49
Section 12.3:
Delivery of Policies.
54
Section 12.4:
Adjustment of Loss.
55
Section 12.5:
Insurer to be Approved.
55
Section 12.6:
Waiver of Subrogation.
56
ARTICLE XIII - USE OF THE DEMISED PREMISES
58
AND ENTIRE BUILDING.
Section 13.1: No Representations by Lessor.
58
Section 13.2: Compliance with the Laws.
59
Section 13.3: Right To Contest Compliance.
60
Section 13.4: Use of Demised Premises, Hotel
60
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Building and Improvements.
ARTICLE XIV - RI
IMPROVEMENTS
Section 14.1:
Section 14.2:
Section 14.3:
Reserves.
Section 14.4:
Section 14.5:
:PAIRS, MAR4TENANCE AND
Repair of Demised Premises.
Control Over Repairs.
Funding of Repair and Replacement
Removal of Dangerous Conditions.
Alteration of Improvements.
ARTICLE XV - LESSOR'S RIGHT TO PERFORM
LESSEE'S COVENANTS; REIMBURSEMENT OF
LESSOR FOR AMOUNTS SO EXPENDED.
Section 15.1: Performance of Lessee's Covenants
to Pay Money.
Section 15.2: Lessor's Right To Cure Lessee's Default.
Section 15.3: Lessor's and Lessee's Attorneys' Fees
and Expenses.
Section 15.4: Reimbursement of Lessor and Lessee.
ARTICLE XVI - DAMAGE OR DESTRUCTION.
Section 16.1: Repair and Replacement of Hotel
Building and any Subsequent Building After Damage.
Section 16.2: Payment For Construction After Damage
or Destruction.
Section 16.3: Right of Mortgagees to Repair.
Section 16.4: Collection of Insurance Proceeds.
Section 16.5: Unused Insurance Proceeds and Deposits.
ARTICLE XVII - CONCESSIONS
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Section 17.1:
Concession Grant.
73
Section 17.2:
Lessee Concession Services.
74
Section 17.3:
Standard's of Lessee Concession Services.
75
Section 17.4:
Concession Fee.
75
Section 17.5:
Payment and Accounting For Concession
75
Fee.
Section 17.6:
Services Facilities.
76
Section 17.7:
Use of Center Equipment.
77
Section 17.8:
Furnishing of Supplies.
78
Section 17.9:
Costs of Operations.
78
ARTICLE XVIII - MECHANICS' LIENS. 79
Section 18.1: Discharge of Mechanics' Liens. 79
ARTICLE XIX - COVENANT AGAINST WASTE AND 81
INSPECTION
Section 19.1: Waste. 81
Section 19.2: Inspection of Demised Premises. 82
Section 19.3: Exhibition and Inspection of Demised 82
Premises.
ARTICLE XX - PUBLIC UTILITY CHARGES. 83
Section 20.1: Lessee to Provide and Pay For Utilities. 83
Section 20.2: Lessor Not Liable For Failure Of Utilities. 84
ARTICLE XXI - INDEMNIFICATION OF LESSOR. 85
Section 21.1: General Indemnification of Lessor 85
Without Limitation of Any Other Indemnity Given
hereunder.
Section 21.2: Reimbursement of Costs of Obtaining 87
Possession.
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ARTICLE XXII - LIEN FOR RENT AND OTHER CHARGES. 88
Section 22.1: Lien for Rent. 88
ARTICLE XXIII - PLAZA, STREETS AND SIDEWALKS 88
Section 23.1: Plaza, Streets and Sidewalks. 89
ARTICLE XXIV - CONDEMNATION.
89
Section 24.1:
Separate Determination of Condemnation
89
Awards.
Section 24.2:
Deposit of Condemnation Award With
91
Lessor.
Section 24.3:
Effect of Taking On Rent.
92
Section 24.4:
Rights of Mortgagee.
93
Section 24.5:
Temporary Taking.
94
ARTICLE XXV - DEFAULT PROVISIONS. 95
Section 25.1: Events of Default. 95
Section 25.2: Remedies in Event of Default. 99
Section 25.3: Waivers and Surrenders to Be In Writing. 102
Section 25.4: Rights and Duties of Mortgagee and 103
Lessor Upon Lessee's Default.
ARTICLE XXVI - RESERVED. 104
ARTICLE XXVII - INVALIDITY OF PARTICULAR 105
PROVISIONS.
Section 27.1: Invalidity of Provisions. 105
ARTICLE XXVIII - QUIET ENJOYMENT. 105
Section 28.1: Quiet Enjoyment. 105
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ARTICLE XXXVII - MODIFICATION. 120
Section 37.1: Modification. 120
ARTICLE XXXVIII - CONVEYANCE BY LESSEE TO 121
LESSOR.
Section 38.1: Conveyance by Lessee To Lessor, 121
ARTICLE XX= - APPLICABLE LAW. 121
Section 39.1: Law. 122
ARTICLE XL - NOTICES. 122
Section 40.1: Manner of Mailing Notices. 122
Section 40.2: Notice to Mortgagees. 123
Section 40.3: Sufficiency of Service. 123
Section 40.4: When Notice Deemed Given or Received. 123
ARTICLE XLI - N
Section 41.1
Section 41.2
Section 41.3
Section 41.4
Agreement.
ISCELLANEOUS PROVISIONS. 124
Captions. 124
Conditions and Covenants. 124
Entire Agreement. 124
Time of Essence as to Covenants of Lease 125
ARTICLE XLII - SHORT FORM LEASE AGREEMENT. 125
Section 42.1: Short Form Lease Agreement 125
ARTICLE XLIII - COVENANTS TO BIND AND BENEFIT 125
RESPECTIVE PARTIES AND TO RUN WITH THE
DEMISED PREMISES.
Section 43.1: Covenants To Run with the Demised 126
Premises.
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ARTICLE XXIX - LESSOR'S TITLE AND LIEN. 106
Section 29.1: Title and Lien Paramount. 106
Section 29.2: Lessee Not To Encumber Lessor's Interest. 106
ARTICLE XXX - PLATS. 107
Section 30.1: Plats. 107
ARTICLE XXXI - LIMITATION OF LIABILITY 108
Section 31.1: Liability After Ouster of Lessee. 108
ARTICLE XXXII - ESTOPPEL CERTIFICATES. 109
Section 32.1: Estoppel Certificates. 109
ARTICLE XXXIII - REMEDIES CUMULATIVE. 110
Section 33.1: Remedies Cumulative. 110
Section 33.2: Waiver of Remedies Not To Be Inferred. 111
Section 33.3: Right to Terminate Not Waived. 1 I 1
ARTICLE XXXIV - SURRENDER AND HOLDING OVER. 112
Section 34.1: Surrender At End of Term. 112
Section 34.2: Rights Upon Holding Over. 113
ARTICLE XXXV - SUBLEASES. 113
Section 35.1: Limitations on Subleases. 114
Section 35.2: Rent Roll and Sublease Data. 116
Section 35.3: Assignment of Lease Agreements To 117
Lessor For Security.
ARTICLE XXXVI - FINANCIAL STATEMENTS 119
Section 36.1: Financial Statements. 119
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Section 43.2: Interest In Deposits Automatically 126
Transferred.
ARTICLE XLIV - WAIVER OF REDEMPTION. 127
Section 44.1: Waiver of Redemption. 127
ARTICLE XLV - NONPAYMENT OF REAL ESTATE TAXES.
128
Section 45.1:
Nonpayment of Real Estate Taxes.
128
ARTICLE XLIVI - GENERAL PROVISIONS.
129
Section 46.1:
Conflict of Interest.
129
Section 46.2:
Brokerage.
129
Section 46.3:
Assignability and Binding Effects.
130
Section 46.4:
Duplicate Originals.
130
Section 46.5:
Equal Employment Opportunities.
130
Section 46.6:
Declaration of Termination.
131
Section 46.7:
Authority.
131
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CONSTRUCT AND LEASE, PARKING AND
CONCESSION AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Construct and Lease, Parking and Concession Agreement (the,
"Agreement ") is made and entered into at Little Rock, Arkansas, on this
day of
1994, by and between
the City of Little Rock, a municipal corporation organized under and existing
by virtue of the laws of the State of Arkansas, hereinafter referred to as the
"Lessor ", and the Capitol City Hotel Limited Partnership, an Arkansas limited
partnership, hereinafter referred to as "Lessee ".
WITNESSETH:
WHEREAS, the City is a duly organized municipality, existing as a
City of the first class under and by virtue of the laws of the State of Arkansas
with full and lawful power and authority to enter into this Agreement, acting
by and through its Board of Directors, in the public interest and for .public
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purpose, in securing the renovation and redevelopment of the convention
hotel now known as the Camelot Hotel, providing employment and adding to
the welfare of the City and its inhabitants, all pursuant to the laws and
enactments of the State of Arkansas.
NOW, THEREFORE,
For and in consideration of the mutual premises and promises herein
contained, the Lessor and the Lessee covenant and agree as hereinafter stated,
to -wit:
ARTICLE I
DEFINITIONS
SECTION 1.1: SINGULAR. PLURAL AND GENDER. Any
word contained in the text of this Lease Agreement shall be read as the
singular or the plural and as the masculine, feminine or neuter gender as may
be applicable in the particular context. More specifically, however, for the
purposes of this Lease Agreement the following words shall have the
meanings attributed to them in this Section:
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(a) "Adjacent Property" means that real property which is adjacent
to the Demised Premises.
(b) "Annual Rent" and Annual Rent Amount" means the amount of
rental stated in Section 5.1.
(c) "Annual Parking Space Rent Amount: means the amount of
rental stated in Section 9.2.
(d) "Concession Fee" means the fee payable by the Lessee to the Lessor
as prescribed by Section 17.4.
(e) Consumer Price Index" means the monthly indices for the
applicable month published by the Bureau of Labor Statistics of the United
States Department of Labor as "The Consumer Price Index for Urban Wage
Earners and Clerical Workers -All Items, City of ABC (Base Year 1967)."
(f) "Control' (including correlated meanings such as the terms
"controlling ", "controlled by" and "under common control with"), as used
with respect to any entity, means the possession, directly or indirectly of the
power to direct or cause the direction of management decisions and policies
of that entity, whether through the ownership of voting securities, beneficial
interests or by contract or otherwise.
(g) "Demised Premises" means the property, real, personal and
mixed, more particularly described on Exhibit "A" attached hereto and by this
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Construct and Lease, Parking and
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reference fully incorporated herein and made a part hereof as if set forth
herein word for word and includes specifically the Hotel Building and the
Improvements.
(h) "Disposition" (including the correlated meaning "disposed ")
means any direct or indirect sale, assignment, transfer, distribution to
shareholders, partners or beneficial owners of any Person other disposition by
private sale, public offering or by enforcement of any pledge or by gift, by
bequest or under the laws of descent and distribution, or for value or
otherwise whether direct or indirect, voluntary or involuntary, or by operation
of law.
(i) "Event of Default" means the occurrence of any action or event
specified in Section 25.1.
0) "Hotel Building" means all buildings and structures situated,
now or hereafter, on and within the Demised Premises.
(k) "Imposition" means all of the ad valorem taxes, special
assessments, or other taxes, charges, levies and any other type governmental
charges Ievied or assessed against the Lessee or the Demised Premises.
(1) "Improvements" means all buildings, structures and
improvements of any nature whatsoever (including all supports, foundations,
structures, landscaping, sidewalks, skywalks, driveways, ramps, porches,
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bridges, tunnels and fixtures) located or to be located upon and on the
Demised Premises or appurtenant thereto (including the Rehabilitation and
Renovation Work described in Article IV hereof, as well as all apparatus and
equipment necessary for the complete and comfortable use, occupancy,
enjoyment, operation, maintenance and repair of the Demised Premises at any
time situated on or upon the Demised Premises, including but not limited to all
fittings, appliances, machinery, garage equipment, ventilating equipment,
wiring, controls, communications equipment, switchboards, antennae,
escalators, floor coverings, hot water heating equipment, all furniture,
furnishings, building materials, supplies, machines, engines, boilers, stokers,
pumps, fans, vents, blowers, dynamos, furnaces, elevators, ducts, shafts,
pipes, furniture, cabinets, shades, blinds, screens; plumbing, heating, air
conditioning, lighting, lifting, ventilating, refrigerating, cooking, medical,
laundry and incinerating equipment; partitions, drapes, carpets, rugs and other
floor coverings, awnings, call and sprinkler systems, fire prevention and
extinguishing apparatus and equipment, water tanks, swimming pools,
compressors, vacuum cleaning systems, disposals, dishwashers, ranges, ovens,
kitchen equipment, cafeteria equipment, recreational equipment, lawn and
landscaping equipment and supplies.
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(m) "Permitted Exceptions" means all public and private easements and
other encumbrances and minor irregularities or defects in title, including but
not limited to, restrictions, covenants and conditions of record, rights of way
or ingress and egress easements, rights of the public, the State of Arkansas,
and municipal, public and quasi - public utilities, and any matters reflected on
the Leasehold Title Insurance Policy delivered by the Lessor to the Lessee
(n) "Substantial Completion" (including the correlated term
"substantially completed ") means that the Rehabilitation and Renovation Work
described in Article IV hereof has been so completed that it is finished and/or
ready for the beneficial use, enjoyment and occupancy of the Lessee under the
Lease Agreement.
ARTICLE II
THE DEMISE
SECTION 2.1: THE DEMISE. The Lessor, for and in consideration
of the Rents reserved and of the covenants and agreements made by the
Lessee to be kept, observed and fully performed, does demise, let, rent and
lease to the Lessee and the Lessee does accept, rent and lease from the
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Lessor the Demised Premises, subject to the Permitted Exceptions, for the
term and upon and under the conditions herein stated.
TO HAVE AND TO HOLD the same unto the said Lessee for the term
hereof and upon and under the conditions herein stated, together with all
rights and privileges appurtenant thereto.
SECTION 2.2: HOTEL BUILDING AND IMPROVEMENTS TO
BECOME THE PROPERTY OF LESSOR. So long as this Agreement or
any lease given in substitution of this Agreement, pursuant to the provisions
hereof, remains in force, the Hotel Building and Improvements constructed,
occupied, renovated situated, installed, repaired, replaced, placed and/or
maintained by the Lessee on or within the Demised Premises (specifically
excluding the Public Improvements which belong to and shall remain the sole
property of the Lessor) shall be owned in fee simple by the Lessee but upon
termination of this Agreement, whether by the passage of time or otherwise,
the Hotel Building and Improvements shall become the sole property of the
Lessor in fee simple and free and clear of all encumbrances excepting only
the lien of taxes assessed, if any, but not yet due and payable (for which the
Lessee shall remain obligated to pay to the extent that they are allocable to
the period prior to the termination of this Agreement and subject to the
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Lessor's rights and remedies in the event of the termination of this Agreement
because of the Lessee's default) and the right of any Mortgagee under Section
6.4 of this Agreement to make the Lessor whole on account of the Lessee's
default and to make a new Lease Agreement with the Lessor for a period
equivalent to the balance of the term of this Agreement, then remaining.
IM
SECTION 2.3: COVENANTS TO PERFORM. This Agreement is
made upon the foregoing and the following covenants and conditions, each of
which the party bound by such covenants and conditions agrees to perform,
irrespective of whether the particular provision is in the form of a covenant,
an agreement, a condition, a direction or otherwise, and each party agrees to
provide the other party with the documents or further assurances as may be
required to carry out the expressed intention of the parties.
SECTION 2.4: RESERVED.
ARTICLE III
THE TERM
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SECTION 3.1: THE TERM. The term of this Agreement and the
estate created hereby shall commence on the date of this Agreement as stated
above and shall end on the day of the September, 2044, unless
sooner extended or terminated as otherwise provided for herein.
SECTION 3.2: RENEWALS. So long as Lessee is not otherwise in
default hereunder, Lessee shall be entitled to two (2) successive renewals of
this Lease, each such renewal to be for a term of Twenty -Five (25) years and
to be subject to the terms and conditions of this Lease, provided that written
notice of the renewal is given by Lessee to Lessor on or before Eighteen (18)
months preceding termination of any term or renewal term. Unless otherwise
agreed, the rental owed in each renewal term shall be calculated under the
same terms and conditions as stated in Section 5.1.
ARTICLE IV
DELIVERY OF POSSESSION, PLANS AND
SPECIFICATIONS AND CONSTRUCTION
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SECTION 4.1: DELIVERY OF POSSESSION. Upon the execution
and delivery of this Agreement, the Lessor has delivered to and the Lessee
has accepted possession of the Demised Premises and any and all rights,
privileges and obligations attendant thereto.
SECTION 4.2: PLANS AND SPECIFICATIONS. Within 90 days
after the Lessee's execution of this Lease Agreement, Lessee, at its sole cost
and expense, shall prepare and/or cause to be prepared and submitted to the
Lessor, for approval to the extent hereinafter required, a complete set of Plans
and Specifications (hereinafter the "Plans and Specifications ") in such form,
containing such detail, information, data, materials designations and
description and shop drawings and bearing such professional certifications
and licenses as are required by law, depicting the full nature, extent and scope
of the Rehabilitation and Renovation Work (hereinafter referred to from time
to time as the "Rehabilitation and Renovation Work" and from time to time
simply as the "Work ") that the Lessee has agreed to do and cause to be done
to the Demised Premises, as more particularly described in Section 4.3
hereof. The Plans and Specifications shall set forth the manner and order in
which the various portions of the Rehabilitation and Renovation Work shall
proceed and shall include a detailed description of all fumishings, furniture,
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equipment, fixtures, appliances, systems, kitchens facilities, dishes, utesis,
pots and pans and all other similar items necessary and required to operate,
manage, maintain, secure and repair full service convention hotel and to meet
standards mandated and required under the Franchise described in Section 7.1
hereof.
(b) The Plans and Specifications required to be prepared and
submitted by the Lessee to the Lessor shall be examined and reviewed by the
Lessor and/or such persons as are designated by the Lessor to determine that
the nature, extent and scope of the Rehabilitation and Renovation Work
represented by and depicted on such Plans and Specifications is as
represented by the Lessee and accomplishes and satisfies the Lessor's
objective of securing the highest quality rehabilitation and renovation of the
Demised Premises, according to the standards of the Franchise required by
the provisions of Section 7.2. Lessor shall notify the Lessee of the Lessor's
approval or disapproval of the Plans and Specifications within thirty (30) days
of Lessor's receipt thereof. To the extent that the Plans and Specifications are
found acceptable to and by the Lessor, the Lessor shall so notify the Lessee.
If Lessor fails to notify Lessee of its approval or disapproval of the Plans and
Specifications within 30 days, the Plans and Specifications will be deemed
approved. If the Lessor has objections to the Plans and Specifications and/or
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any part thereof, then the Lessor shall notify the Lessee of the nature and
extent of the Lessor's objections. If for any reason the Lessee is unable or
unwilling to revise the Plans and Specifications to conform to the Lessor's
liking within 30 days of receipt of the Lessor's notice of objections, then this
Lease Agreement may at the option of the Lessor be immediately terminated
and the Lessee shall surrender possession of the Demised Premises
immediately.
(c) The Lessor shall not be required to review the Plans and
Specifcations in detail and the Lessor shall not be responsible or liable in any
way to anyone for any error or omission therein or the failure of the Plans and
Specifications to comply with any building regulation or code or for
inconsistency or incompatibility therewith. No changes, additions or
modifications shall be made to the Rehabilitation and Renovation Work or the
Plans and Specification pertaining thereto without the prior written approval
of the Lessor. Notwithstanding the above provisions, any changes or
modifications from the Plans and Specifications which would involve a cost
of less than $50,000.00 shall not require the Lessor's approval. If any
changes or modifications involve a cost in excess of $50,000.00, the Lessor
shall provide written approval or disapproval of the changes or modifications
within three days. If the Lessor fails to provide written approval or
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disapproval of the changes or modifications within three days, the changes or
modifications will be deemed approved.
(d) Three (3) copies of the Plans and Specifications shall be furnished
without cost or expense to the Lessor. Within thirty (30) days of Substantial
Completion of the Rehabilitation and Renovation Work, one copy of all
original design, contract, detail and shop drawings, together with one copy in
reproducible form of the final Plans and Specifications, corrected for work as
built, shall be furnished by the Lessee to the Lessor. Conduct with the
delivery of the Plans and Specifications required hereunder the
Architects/Engineers who prepared said Plans and Specifications shall
execute and deliver to the Lessor written authorization empowering the
Lessor and its agent to use said Plans and Specifications in connection with
any work, construction, repair, maintenance or reconstruction of the Demised
Premises without further cost or expense to said Architects/Engineers. In case
this Agreement shall terminate for any reason, other than a default of the
Lessor. all Plans and Specifications, design, contract, detail and shop
drawings, plans, reports, estimates and models which have been made in
connection with the Rehabilitation and Renovation Work shall be
immediately delivered to the Lessor and shall become the property of Lessor.
Lessee agrees to make, execute and deliver to the Lessor such Assignments
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Construct and Lease, Parking and
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so
of Plans, Specification and Contract Rights as required by the Lessor to be
effective during the course of construction.
SECTION 4.3: LESSEE'S CONSTRUCTION OBLIGATION. At
the sole cost and expense of the Lessee and pursuant to the proper building
permits issued by the Lessor in the manner provided by law and in substantial
compliance and conformity with the Plans and Specifications approved by the
Lessor, the Lessee shall construct to completion on and within the Demised
Premises as follows: Once the Lessor approves the Plans and Specifications
as prescribed above, Lessee covenants and agrees to spend on or before the
completion date mentioned in Section 4.5 hereof at least 56,000,000.00 to
complete Rehabilitation and Renovation Work on the Demised Premises
consistent with the requirements of the Franchise [which shall be incorporated
herein by reference in the addendum required in Section 7.3 hereofJ, including
but not limited to, totally replacing and updating all case goods, finnishings,
fixtures, appointments, appliances, equipment and other similiar personal
property, necessary to operate, maintain and repair the Demised Premises as
a full service convention hotel.
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SECTION 4.4: COMMENCEMENT OF CONSTRUCTION. The
Rehabilitation and Renovation Work shall not commence before September
15, 1994 and shall be conducted at all times so as to minimally disrupt the
operation of the Demised Premises as a convention hotel and with the least
amount of discomfort and nuisance to the guests and patrons of the hotel. The
Lessee covenants with the Lessor that at no time during the course of
construction shall the Hotel Building be closed down or operation thereof
suspended. It is understood by both parties that it will be necessary to close
portions of the hotel in while the Lessee is completing rehabilitation and
renovation work.
SECTION 4.5: COMPLETION OF CONSTRUCTION. The
Rehabilitation and Renovation Work shall be substantially completed on or
before twelve (12) months from the date of Lessor's execution of this Lease
Agreement.
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ARTICLE V
RENT
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Construct and Lease, Parking and
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SECTION 5.1: DEMISED PREMISES RENT. Commencing on the
Rent Start Date, the Lessee covenants and agrees to pay to the Lessor as Rent
for the Demised Premises the amount of $20,200.00 (hereinafter referred as
the "Annual Rent Amount "), payable in equal quarterly installments, in
advance, upon the first day of each January, April, July and October of each
year during the term hereof, commencing on the Rent Start Date and
continuing through out the term hereof. If the Rent Start Date is not the first
day of January, April, July or October, then Lessee shall pay, on the Rent
Start Date, a pro rata portion of the Annual Rent Amount with respect to the
partial calendar quarter. If the Lease terminates on any day other than the last
day of March, June, September or December, the Lessee shall pay only a pro -
rata portion of the Annual Rent Amount with respect to the partial calendar
quarter.
ARTICLE VI
NONENCUMBRANCE OF DEMISED PREMISES
PERMITTED MORTGAGE FINANCING
SECTION 6.1 LIMITATION UPON ENCUMBRANCE OF
DEMISED PREMISES.
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(a Covenant Against Encumbrances. Except as provided in
Subsecti n (b) below, prior to the completion of the Improvements and
except Is provided for in Subsection (b) of this Section 6.1, the Lessee
covenants and agrees for itself, its permitted successors and assigns, and
every permitted successor in interest to the Demised Premises (collectively
for purposes of this Article VI the "Lessee "), not to engage in any financing
or other transaction creating any Mortgage or other encumbrance or lien upon
the Demised Premises whether by express agreement or operation of law, and
not to place upon the Demised Premises, or suffer to be placed upon the
Demised Premises, any lien or other encumbrance, other than a lien upon the
Demised Premises for current real estate taxes and assessments, levied but
not then due and payable, and not to suffer any levy or attachment to be made
on the Demised Premises. Any Mortgage, encumbrance or lien made in
violation of this covenant shall be deemed a violation of this covenant on the
date of its execution or filing of record regardless of whether or when it is
foreclosed or otherwise enforced.
It is expressly agreed between the Lessor and the Lessee that after the
Lessee has completed all of the Improvements, the provisions of this Section
6.1(a) shall no longer be applicable and the Lessee shall be free to create,
substitute or refinance any mortgage lien for any amount upon the Demised
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Premises, Lessee's Improvements or leasehold estate of the Lessee, provided
however, that this shall not be deemed an agreement on the part of the Lessor
to subordinate its fee simple interest in the Demised Premises to the lien of
any Leasehold Mortgage now or later placed on the Demised Premises the
Lessee's Improvements or leasehold estate of the Lessee in the Demised
Premises, (which the Lessor shall not do).
(b) Mortgages to Finance Improvements. At all times during the
term, the Lessee shall have the right to encumber, pledge or convey its right,
title and interest in and to its leasehold estate in the Demised Premises, by
way of a "Mortgage" to a "Mortgagee" only to finance the development,
construction, equipment, repair or reconstruction of any of the Improvements,
or to refinance any loan or loans obtained by the Lessee for any of the above
mentioned
purposes
only.
Any Mortgage (sometimes
in
this Lease
Agreement
called the
"First
Leasehold Mortgage ") shall
not
exceed the
amount of the Total Construction Costs for the Lessee's Improvements or
85% of the Fair Market Value of the Demised Premises, whichever is greater.
Nothing in this Lease Agreement shall be deemed an agreement on the part of
the Lessor to subordinate its fee simple interest in the Demised Premises to
the lien of any permitted Leasehold Mortgage placed on the leasehold estate
of the Lessee in the Demised Premises.
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Construct and Lease, Parking and
Concession Agreement:
Notwithstanding anything to the contrary in this Lease Agreement, it is
expressly agreed by and between the Lessor and the Lessee and (by
acceptance of the Mortgage) any permitted Mortgagee of the leasehold estate
that the Lessee's right to place a Leasehold Mortgage against the Demised
Premises is subject to the following:
(1) That at the time the Mortgage is made, the Lessee has not
been notified of any default under this Lease Agreement;
(2) That no Mortgagee or anyone claiming by, through or
under the Mortgagee, shall, by virtue of it, acquire any greater
rights in the Demised Premises than the Lessee had under this -
Lease Agreement; and
(3) That the Mortgage shall be expressly subject and
subordinate to all conditions and covenants of this Lease
Agreement and to the rights of the Lessor. The Mortgagee of
any Mortgage and the owner of the indebtedness secured by the
Mortgage upon acquiring ownership of the legal and equitable
title to the Demised Premises shall take the title subject to the
covenants of this Lease Agreement. In the event of any conflict
between Section 6.1(a) and 6.1(b), Section 6.1(b) shall control.
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(c) Lessee to Notify Lessor of Mortgage and Furnish Names and
Addresses of Mortgagees. The Lessee shall notify the Lessor in advance of
the execution and delivery of any Mortgages or other similar permitted lien
filed or recorded against the Demised Premises, the Lessee's Improvements or
leasehold estate and shall promptly furnish the Lessor with a copy of the
Mortgage executed pursuant to this Lease Agreement and true and correct
copies of all of the instruments of indebtedness, Mortgage and other security
related to any Mortgage.
(d) Lessee to Notify Lessor of Other Encumbrance. The Lessee
shall also promptly notify the Lessor of any other lien or encumbrance which
has been created on or attached to the Demised Premises, whether by act of
the Lessee or otherwise.
SECTION 6.2: PROTECTION TO MORTGAGEE. In the
event there is a conveyance by way of a Mortgage of the Demised Premises,
the Lessee's Improvements or leasehold estate of which the Lessor has
received notice as provided in Section 6.1(c) the Lessor agrees that it will not
accept a voluntary surrender of the Demised Premises or a voluntary
cancellation of this Lease Agreement from the Lessee prior to the termination
of this Lease Agreement by lapse of time and will not make any material
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Construct and Lease, Parking and
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amendment of this Lease Agreement without, in each case, the prior written
consent of each Mortgagee under this Lease Agreement, which consent shall
not be unreasonably withheld.
SECTION 6.3: RIGHT OF MORTGAGEE TO MAKE A
NEW LEASE AGREEMENT. If the Mortgagee should succeed to the
rights of the Lessee by reason of the uncured default of the Lessee or because
of any foreclosure or any other action in lieu of foreclosure, then within 60
days after the Mortgagee shall have succeeded to Lessee's rights, or within 60
days after notice by the Lessor to the Mortgagee of any event of default under
Article XXV (provided Lessee has failed to cure the default within this period
or in the event the default is of a nature which can not be reasonably cured
within this period and Lessee has failed during this period to commence to
cure and thereafter to reasonably and diligently proceed to completion), the
Mortgagee shall have the right to enter into a new lease with the Lessor upon
the surrender of the Lessee's duplicate original of this Lease Agreement for
cancellation provided, however, that prior to the making of any new Lease
Agreement the Mortgagee shall have furnished indemnity satisfactory to the
Lessor indemnifying the Lessor for any and all liability arising out of the
cancellation of the Lessor's Lease Agreement to the Lessee and the making of
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Construct and Lease, Parking and
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a new lease with the Mortgagee and the Mortgagee shall have cured all
defaults on the part of the Lessee which are susceptible of being cured by
payment of money. This right shall be exercisable by notice in writing to the
Lessor within the 60 -day period. The new lease shall be for the remainder of
the term of this Lease Agreement and shall otherwise contain the same terms
and conditions as are set forth (except for requirements which are no longer
applicable because they have already been performed).
SECTION 6.4: MORTGAGEE'S GRACE PERIOD TO CURE
DEFAULTS OR TO FILE FORECLOSURE PROCEEDINGS. If the
Lessee is in default under tl>is Lease Agreement by reason of the occurrence
of any of the contingencies set forth in this Lease Agreement, the Lessor will
not terminate this Lease Agreement or invoke its right to take possession of
the Demised Premises if (i) the Mortgagee shall cure the default within the
time and in the manner provided either in Section 25.4 or elsewhere in this
Lease Agreement; or if (ii) , in the case of any default under Article XXV,
within thirty days after notice of the default by the Lessor to the Mortgagee,
the Mortgagee commences a foreclosure under the laws for the State of
Arkansas or the United States of America and if the Mortgagee diligently
proceeds in good faith with its foreclosure (including seeking in good faith to
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be put in possession as Mortgagee in possession or to obtain the appointment
of a receiver in foreclosure), and seeking in good faith to cure or cause to be
cured all defaults under this Lease Agreement other than defaults under
Article XXV and if, and only as long as, the Mortgagee fully performs all of
the obligations of the Lessee under this Lease Agreement, including, without
limitation, the commencement and/or completion of construction and
installation of the Improvements, except the curing of the defaults
contemplated by Article XXV and except the curing of those defaults which
cannot be cured until Mortgagee is in possession of the Demised Premises for
which reasonable extensions, as determined by the Lessor, shall be granted.
Provided, however, that notwithstanding the preceding provisions of this
Section, the Lessor may invoke any and all of its remedies under this Lease
Agreement, including the remedy of termination: (i) if a trustee in bankruptcy,
• receiver, or any other officer of a court or governmental agency (other than
• receiver, trustee, or any other officer appointed by a court of competent
jurisdiction on motion of the Mortgagee) shall take possession of the Demised
Premises; or (ii) if there shall be served upon the Lessor any document issued
by a court or agency purporting to exercise jurisdiction or control over the
Demised Premises, and if, within ninety days after the Lessor gives the
Mortgagee notice of the occurrence of any of the contingencies set forth in
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this sentence: The Mortgagee fails to cause possession of the Demised
Premises to be relinquished by any trustee in bankruptcy, receiver or officer
of a court or governmental agency and to have rescinded any document
issued by such a court or agency; the Mortgagee fails to cure all defaults of
Lessee under this Lease Agreement, other than the default specified in Article
XXV and except the curing of those defaults which cannot be cured until the
Mortgagee fails to continue to proceed with its foreclosure in good faith and
with diligence. In the event the purchaser at foreclosure sale or the assignee
of the purchaser acquires the Demised Premises, the Lessee's interest in the
Demised Premises , the purchaser or assignee (subject to the Lessor's
reasonable right of approval of the purchaser or assignee, which approval
shall not be unreasonably withheld ) shall then become the Lessee under this
Lease Agreement and shall be obligated to assume, and, by its acceptance of
an assignment of the Lessee's interest, it agrees to assume and perform each
and all of the Lessee's obligations and covenants hereunder.
SECTION 6.5: COPY OF NOTICE OF BREACH OF
COVENANT OR DEFAULT. Whenever the Lessor, pursuant to this Lease
Agreement, shall deliver any notice or demand to the Lessee with respect to
any breach of covenant or default by Lessee in any obligation of Lessee. under
IKE
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Construct and Lease, Parking and
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this Lease Agreement, the Lessor shall, at the same time, Punish a copy of
written notice or demand to any Mortgagee at the last address of that
Mortgagee as shown in the records of the Lessor. Conversely, any
Mortgagee shall forward a similar notice to Lessor in the event of any alleged
or declared default of the Lessee under any Mortgage permitted under this
Lease Agreement, or any other instrument related to it.
SECTION 6.6: RIGHT OF MORTGAGEE TO CURE
BREACH OR DEFAULT BY LESSEE. Any Mortgagee shall have the
right, at its option, and within a period of the later to occur of 30 days after
receipt of notice from Lessor as provided in Section 6.5, or 15 days after
receipt of notice from the Lessor that Lessee has not cured or remedied its
breach or default within the grace period provided for in this Lease
Agreement, to cure or remedy any breach of covenant or default by the
Lessee under this Lease Agreement. Any Mortgagee may add the cost of so
curing or remedying the breach of covenant or default to the debt secured by
the Mortgage and to the lien of the Mortgage.
ARTICLE VII
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ADDITIONAL CONDITIONS OF LEASE
AGREEMENT AND RESTRICTIONS UPON
USE OF DEMISED PREMISES
For the Lessee itself and every other Person who is a beneficiary of
the Lessee or a permitted successor in interest in or to any part of the
Demised Premises and who is able to control the use, occupancy and/or
operation of the Demised Premises under the terms of this Agreement, in
addition to all other Permitted Exceptions, conditions and restrictions
described in this Lease Agreement or in any Exhibit to it, shall be subject to
the following covenants and agreements which shall run with the Demised
Premises, to -wit:
SECTION 7.1: FRANCHISE. Within thirty (30) days of the date
that Lessee executes this Lease Agreement, Lessee covenants and agrees with
the Lessor that Lessee will apply to procure, make and enter into a
Franchising Agreement and will timely make such other agreements
(hereinafter collectively referred to as the "Franchise ") as are necessary and
required to enable and authorize the Lessee to own, operate, renovate, repair,
manage, maintain and market the Demised Premises as either a Holiday Inn
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Crown Plaza Hotel, a Hyatt Hotel, a Doubletree Hotel, a Sheraton Hotel or a
Radisson Hotel. Lessee covenants and agrees that it will finalize the
procurement of the Franchise and will flag the Demised Premises within the
ed time period set forth in Section 4.5. Lessee further covenants and agrees
that it will at all times thereafter during the term hereof and any renewal terms
hereof, maintain in full force and effect that Franchise or one from the list of
franchises set forth above (if it is in full force and effect with sixty (60) days
from the termination of the original Franchise) and none other except with the
prior written consent of the Lessor which consent can be withheld.
SECTION 7.2: INCORPORATION OF FRANCHISE. Lessee
represents to Lessor that each one of the Franchisors listed above have a set
of standards and conditions precedent which must be met and completed
before the franchise will finally be granted. Accordingly Lessee covenants
and agrees with Lessor that within 90 days of the Lessor's execution of this
Lease Agreement Lessee will obtain a written statement of all standards and
conditions precedent which the Lessee must meet and complete in order to be
granted the desired franchise and cause same to be incorporated herein as an
Addendum to this Lease Agreement, in a form and content acceptable to
Lessor. Likewise when the Franchisor finally authorizes the Lessee to operate
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Construct and Lease, Parking and
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4 &5
and market the Demised Premises as the approved Franchise, then Lessee
covenants and agrees with Lessor that within the time period set forth in
Section 4.5 hereof„ the Lessee will execute and deliver to Lessor an
Addendum to this Lease Agreement, in a form and content acceptable to
Lessor, which Addendum will, among other things, incorporate the terms and
provisions of the Franchise by reference as a part of this Lease Agreement.
SECTION 7.3: COVENANT TO RENOVATE, OPERATE,
MAINTAIN AND REPAIR IN CONFORMITY WITH THE
REQUIREMENTS OF THE FRANCHISE. At all times during the term
and any renewal terms hereof, Lessee covenants and agrees with Lessor that
Lessee will own, renovate, operate, maintain, occupy, repair and possess the
Demised Premises in substantial conformity with the terms, provisions,
covenants, conditions, requirements and obligations of the Franchise. In
furtherance of its obligation hereunder, Lessee covenants and agrees that
Lessee's failure to fully comply with, adhere to, perform and observe each
and every term and provision of the Franchise is and will be an Event of
Default hereunder, enforceable by the Lessor as such a default hereunder,
regardless of whether or not the Franchisor seeks to enforce and/or cancel the
Franchise. Any default may be waived by the Lessor.
HE
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Construct and Lease, Parking and
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SECTION 7.4: CERTAIN CONDITIONS OF LEASING. The
Lessee shall:
(a) Devote the Demised Premises only to those uses specified in this
Lease Agreement and allowed by applicable laws and ordinances; and,
(b) Not be found by a Court of competent jurisdiction to have
emploved a policy to unlawfully discriminate in violation of any applicable
federal, state or local laws, ordinances or regulations upon the basis of
physical condition, disability, race, color, religion, sex, or national origin in
the construction, use, operation, renovation, maintenance or occupancy of the
Demised Premises;
ARTICLE VIII
PROHIBITIONS AGAINST ASSIGNMENT
AND TRANSFERS OF DEMISED PREMISES
SECTION 8.1: REPRESENTATIONS AS TO
REDEVELOPMENT. The Lessee represents and agrees for itself, and its
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permitted successors and assigns, that its leasing of the Demised Premises,
and its other undertakings pursuant to this Lease Agreement are, and will be
used, solely for the purpose of redevelopment of the Demised Premises and
not for speculation in land holding. The Lessee further recognizes that, in
view of
(a) The public aids and commitments that have been made available
by law and by the Lessor for the purpose of making this redevelopment
possible; and
(b) the fact that any direct or indirect transfer of any beneficial
interest in the Lessee or of a substantial part of it, or any other act or
transaction involving or resulting in a significant change in the ownership or
distribution of interests or with respect to the identity of the parties in control
of the Lessee, is for practical purposes a transfer or Disposition of the
leasehold in the Demised Premises then leased by the Lessee; the
qualifications and identity of the Lessee and their present beneficial owners,
partners or venturers are of particular concern the Lessor. The Lessee and its
beneficiary further recognize that it is because of such qualifications and
identity that the Lessor is entering into this Lease Agreement and in doing so,
is further willing to accept and rely on the obligations of the Lessee (and the
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Construct and Lease, Parking and
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present partners or venturers) for the faithful performance of all undertakings
and covenants by it to be performed.
SECTION 8.2: PROHIBITION AGAINST TRANSFER OF THE
LEASE AGREEMENT OR LEASEHOLD ESTATE AND
ASSIGNMENT. For the foregoing described reasons, without the prior
written approval of the Lessor, Lessee has not made or created, and will not),
make or create, or suffer to be made or created, any total or partial sale,
assignment, conveyance, lease, sublease of part or the entire Demised
Premises, trust or power, or other transfer or Disposition in any other mode or
form of, or with respect to, this Lease Agreement or the Demised Premises,
or any part of it, or any interest in it, or contract or agree to do any of them,
except for mutually agreed utility easements - which approval the Lessor, in
its sole discretion, may withhold, except only:
(a) As security for, and only for (1) obtaining the financing
necessary prior to completion of the Improvements to enable Lessee to
perform its obligations with respect to completion of the Improvements
pursuant to this Lease Agreement, and (2) any other purpose authorized by
this Lease Agreement; and
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(b) As to any reorganization of Lessee's corporate arrangements or
partnership, whether in the form of a continued corporation or a partnership,
provided, however, that
(or any of their successors in
interest permitted under the Lease Agreement) shall retain a percentage
interest which when aggregated will be at least % of all
(both general and limited) of the interests of the corporation [in this
connection, it is further agreed that in the event of the death or legal
incompetency of any individuals (not to include any trustee or receiver in
bankruptcy or other assignee for the benefit of creditors), the successor or
successors in interest to the deceased or incompetent person may succeed to
the interest of the individual insofar as the interest of Lessee's beneficiary is
concerned and if in accordance with the understandings and agreements of
any general or partnership agreement entered into by these individuals].
SECTION 8.3: LESSEE NOT RELIEVED OF OBLIGATIONS
BY DISPOSITION OR TRANSFER OF DEMISED PREMISES OR
ASSIGNMENT OF LEASE AGREEMENT. In the absence of specific
written release by the Lessor to the contrary, which release MAYBE withheld
in the discretion of the Lessor, no Disposition of the interest of the Lessee in
the Demised Premises or any part of it, or assignment of this Lease
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490
Agreement by the Lessee pursuant to Section 8.2 shall be deemed to relieve
the Lessee, or any other party bound in any way by this Lease Agreement or
otherwise with respect to the construction and installation of the
Improvements, from any of its obligations with respect to it. The Lessee
covenants that it will not make any assignment of this Lease Agreement
except in the manner and upon the conditions set forth above and only upon
the prior written consent of the Lessor, which consent maybe, in the Lessor's
discretion, withheld.
SECTION 8.4: ASSIGNEE'S LIABILITY. If an assignment shall
be made by Lessee or any successor of the Lessee pursuant to and after
complying with the conditions and in the manner set forth in this Article VIII,
the assignee shall be subject to the same terms and conditions as to future
assignments, and to all the covenants, agreements, provisions and conditions
contained in this Lease Agreement.
ARTICLE IX
PARKING
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SECTION 9.1: PARKING SPACES. For and durine the term hereof
only and any renewals thereof but only if Lessee is not otherwise in default
under the terms hereof, Lessor leases to Lessee 205 parking spaces
(hereinafter referred to as the "Parking Space ") situated at various locations
from time to time in the municipal parking deck adjacent to the Demised
Premises, all as determined by the Lessor.
SECTION 9.2: RENTAL. Commencing on the Rent Start Date, the
Lessee covenants and agrees to pay to the Lessor as Rent for the Parking
Spaces the amount of $70,000.00 (hereinafter referred as the "Annual Parking
Space Rent Amount'), payable in equal quarterly installments, in advance,
upon the first day of each January, April, July and October of each year
during the term hereof, commencing on the Rent Start Date and continuing
throughout the term hereof. If the Rent Start Date is not the first day of
January, April, July or October, then Lessee shall pay, on the Rent Start Date,
a pro rata portion of the Annual Parking Space Rent Amount with respect to
the partial calendar quarter. If the lease terminates on any day other than the
last day of March, June, September or December, the Lessee shall pay only a
pro -rata portion of the Annual Parking Space Rent amount with respect to the
partial calendar quarter.
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SECTION 9.3: OPTION TO USE ADDITIONAL SPACE. Lessee
shall have the option during the term hereof and any renewal or extensions
thereof, but only if Lessee is not otherwise in default hereunder, to rent
additional parking spaces from time to time, if and as such parking spaces are
otherwise available, upon payment of Additional Parking Rent (hereinafter
referred to as the "Additional Parking Rent ") equal to the regular rate charged
by the Lessor for such spaces. The rate charged by Lessor to rent additional
parking spaces so established by the Lessor shall be subject to change based
upon changes in comparable local rates. The Lessor shall have the privilege to
use and rent the Lessee's spaces from time to time at the then prevailing rate
(on a space available basis) and shall credit the Lessee with all fees charged
for the rental of these spaces. Provided, however, the use of such additional
parking spaces at the discounted rate shall be limited to overnight guests of
Lessee or customers whose minimum purchases are not less than $5.00.
Lessee shall establish procedures to insure that the foregoing restrictions are
enforced as to such additional parking spaces and shall permit the Lessor
from time to time upon reasonable notice during business hours to review
such procedures and/or to review or audit the Lessee's records relating
thereto. The Lessor and the Lessee will establish a method of accounting
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among themselves for the sums collected by the Lessor in its operation of the
parking deck for which the Lessee is to receive a credit and for the sums due
by the Lessor for the additional space used by Lessee's customers.
SECTION 9.4: AVAILABILITY OF SPACES. Notwithstanding
anything herein to the contrary, in the event of fire or other casualty, act of
God, labor dispute or any other occurrence which makes it not possible or at
least impractical in the Lessor's discretion to famish the parking spaces
mentioned above, the Lessor will take only such corrective measures as shall
be necessary to again fiunish said parking spaces for the Lessee but only to
the extent of any insurance proceeds available so to do; provided, however,
Lessor and Lessee covenant and agree that even if Lessor is unable to restore
the subject parking spaces Lessee shall only be relieved from paying the
Annual Parking Space Rent, but shall otherwise remain obligated hereunder.
ARTICLE X
RESERVATION, EASEMENTS, AND OTHER
PROVISIONS, RELATIVE TO THE
PUBLIC IMPROVEMENTS AND DEMISED
PREMISES
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SECTION 10.1: EASEMENTS. The Lessor reserves to itself and to
any public utility company the following permanent and perpetual rights in
and to the Demised Premises and the Public Improvements: For the respective
interests of the Lessor and any public utility company in, to, over, under and
across the Demised Premises, as applicable, reasonable rights of ingress and
egress to and from interests and areas necessary for the installation,
operation, maintenance, repair, replacement, relocation, and removal of water
lines, sanitary and storm sewers, gas mains, electrical power lines, telephone
lines and other utility lines and facilities, provided that the exercise of any
entry and other rights under this reciprocal easement grant shall not
unreasonably interfere with the use and enjoyment by any party of interests,
sites or areas or by anyone claiming by, through or under this party.
SECTION 10.2: STRUCTURAL SUPPORT. If for any reason the
structural support for any portion of the Demised Premises is reduced below
the support required for the structural integrity and safety of the balance of
each set of Improvements, whether above -grade or below - grade, the Lessee
shall promptly provide substitute adequate structural support. At the request
of the Lessor, the Lessee shall engage the services of a licensed architect or
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structural engineer, reasonably acceptable to the Lessor, to determine the
extent of the reduction and the adequacy of the remedial or substitute support
which shall be constructed in accordance with plans and specifications
prepared by the architect and reasonably acceptable to the Lessor.
In the event that the architect or structural engineer determines that
substitute structural support is required in a portion of the Demised Premises
in which the structural support has been reduced and the Lessee fails to
commence the constriction of substitute support within a reasonable time, as
determined by the architect or structural engineer, or having commenced such
construction, the Lessee fails to proceed diligently to its completion, the
Lessor shall have the right to complete the construction of the substitute
support and all costs and expenses incurred by the Lessor in connection with
it shall be promptly due and payable to the Lessor from the Lessee on demand
and, if not paid by Lessee on demand, shall be secured as additional rent and
a lien against any insurance proceeds payable to the Lessee to secure the
repayment of that sum of money.
ARTICLE XI
PAYMENT OF TAXES, ASSESSMENTS
AND OTHER IMPOSITIONS
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SECTION 11.1: PAYMENT OF IMPOSITIONS. The Lessee
agrees to pay or cause to be paid as additional Rent, before any fine, penalty,
interest or cost is added for nonpayment, all real estate taxes or other ad
valorem taxes on tangible property, assessments, water rates and charges and
other governmental charges, general and special, ordinary and extraordinary,
unforeseen as well as foreseen, of any kind and nature whatsoever, including
but not limited to, assessments for public improvements or benefits, which are
assessed, levied, confirmed, imposed or become alien upon the Demised
Premises and all of the Improvements and the leasehold or upon the Hotel
Building or any or all of them or become payable during the term of this
Lease Agreement, except as otherwise provided for in this Section 11.1. The
Lessee shall only be responsible for payment of Impositions that accrue on or
after the Rent Start Date. Notwithstanding any other provision of this Lease
Agreement, the Lessee shall have the right to contest any taxes that it disputes
and shall not be required to pay any tax so long as the Lessee shall in good
faith proceed to contest the bill by appropriate proceedings.
If by law any Imposition is payable or may at the option of the taxpayer
be paid in installments (whether or not interest shall accrue on the unpaid
balance of the Imposition), the Lessee may pay the same (and any accrued
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interest on the unpaid balance of the Imposition), in installments as they
respectively become due and before any fine, penalty, interest or cost is
added for the nonpayment of any installment and interest. Any Imposition
relating to a fiscal period of the taking authority, a part of which period is
included within the terms of this Lease Agreement and a part of which is
included in a period of time after the termination of the term of this Lease
Agreement (whether or not the Imposition shall be assessed, levied,
confirmed, imposed or become a lien upon the Demised Premises or upon the
Hotel Building and Improvements or both or shall become payable during the
term of this Lease Agreement), shall be adjusted as between the Lessor and
the Lessee as of the termination of the term of this Lease Agreement, so that
the Lessor shall pay that proportion of the Imposition which that part of the
fiscal period included in the period of time after the termination of the term of
this Lease Agreement bears to the fiscal period, and the Lessee shall pay the
remainder.
With respect to any Imposition for Public Improvements or benefits
which by law is payable, or at the option of the taxpayer may be paid in
installments, the Lessor shall pay the installments which are levied
subsequent to the termination of the term of this Lease Agreement and the
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Lessee shall pay those installments which become due and payable during the
term of this Lease Agreement.
SECTION 11.2: TAX ON RENTS. If at any time during the term a
tax or excise on rents or income or other tax however described (called 'Rent
Tax ") is levied or assessed by the State of Arkansas or any political
subdivision on account of the Rents or the interest of the Lessor under this
Lease agreement, and if the Rent Tax is in lieu of or as a substitute for, in
whole or in part, real estate taxes or other ad valorem taxes, Rent Tax shall be
treated as an Imposition and the Lessee covenants to reimburse the Lessor on
account of it to the extent provided in this Article XI. In no event shall the
Lessee be obligated to pay for any year any greater amount by way of the
Rent Tax than would have been payable by the Lessor had the rentals paid
under this Lease Agreement upon which the Rent Tax is imposed been the
sole taxable income of the Lessor for the year in question or to pay or to
reimburse the Lessor for any tax of any kind assessed against Lessor on
account of any Rent Tax reimbursement.
SECTION 11.3: LESSEE NOT TO PAY CERTAIN TAXES.
Nothing in this Lease Agreement shall require Lessee to pay any franchise,
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estate, inheritance, succession or transfer tax that is solely the responsibility
of the Lessor.
SECTION 11.4: DEPOSIT ON ACCOUNT OF REAL ESTATE
TAXES. If the Lessee ever defaults in or fails to pay any installment of any
Imposition as and when due, then and thereafter Lessee upon demand of the
Lessor shall deposit with the Lessor on the first day of each quarter after the
Lessee's receipt of the demand aforesaid a sum equal to one - fourth of one
hundred ten percent of the last known general property taxes (or any other ad
valorem tax or levy upon the Demised Premises including the then existing
Hotel Building, structures, and Improvements to the end that, after this date,
there shall always be on deposit with the Lessor an amount at least equal to
the taxes accrued and to accrue to the end of the month following each
deposit, on the assumption that taxes shall then be accruing at an annual rate
equal to one hundred ten percent of the taxes for the year which then are then
most recently ascertainable. Each deposit when made shall be earmarked and
held in trust by the Lessor for the taxes for the year in which the deposit falls
due and if the amount deposited by the Lessee on account of the accrual of
taxes for any period shall be insufficient to pay all of the taxes for that period
when finally ascertained, the Lessee, commencing with taxes accrued. in the
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year of this date, and billed in the next year, shall immediately deposit an
additional amount as shall make the total deposit of the period equal the taxes
for that period. The Lessor shall, when Punished with proper bills or
statements directed in writing by the Lessee, apply any deposits made with it
on account of the payment of taxes and interest, penalties and other costs
required to discharge the lien of the taxes and forfeiture, if any, and this
application shall be deemed a payment by the Lessee. In the event the Lessee
shall fail to direct the Lessor to pay any Imposition for which a deposit has
been made, or any other Imposition has not been paid within the time
provided for payment of any Imposition and interest, penalties and other
costs, the Lessor may pay it out of any deposit made at the Lessee's expense.
In that event, or in any event that deposits for taxes shall be insufficient to
pay all of the taxes and interest, penalties and other costs, the Lessor shall
notify the Lessee and shall apply the deposits upon the taxes assessed against
the Demised Premises and the Improvements to be constructed on Lessee's
behalf in proportion to the amount of each tax bill. Should the amount
deposited by the Lessee for any period exceed the amount of the taxes finally
determined to be due for the period, the excess of the deposit shall be paid
over to the Lessee upon written demand by the Lessee, provided it is not then
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in default under the terms of this Lease Agreement in respect of any matter or
thing of which notice of default has been served on the Lessee.
In the event the deposits above provided for shall be insufficient, the
Lessee shall make additional deposits with the Lessor of the amount of any
deficiency from time to time on notice from the Lessor of the amount or
amounts levied or assessed against the Demised Premises and the then
existing Improvements, which the Lessee is required to pay. Deposits shall
be held and disbursed by the Lessor pursuant to the provisions of the
preceding paragraph of this Section 11.4.
The Lessor agrees
that the amount
of Lessee's
monthly tax deposit
required shall be reduced
in respect of all
tax periods,
including the year in
which this Lease Agreement is executed, upon demonstration to the Lessor's
satisfaction, which satisfaction shall not be unreasonably withheld, that
general real estate taxes will be assessed on vacant land or upon partly
improved land. Consequently, Lessee will only be required to deposit
monthly amounts estimated as necessary to pay the taxes when due, taking
into account any vacant nature of any parcels of real estate included in the
Demised Premises.
In the event similar deposits on account of real estate taxes are required
by the Lessee's Construction Lender or Mortgagee, deposits required shall be
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made to construction lender or Mortgagee (as the case may be) in lieu of the
Lessor, provided the construction lender or Mortgagee shall by written
agreement with the Lessor covenant to hold deposits in trust for the payment
of such real estate taxes and so pay them when the same shall be due and
payable.
Any deposits made by the Lessee with the Lessor as provided in this
Section 11A shall be invested by the Lessor in investments, obligations, or
securities of the United States Government or insured by the United States
Government or in commercial paper, certificates of deposit or other securities
or savings accounts as reasonably directed by the Lessee and approved by the
Lessor, which approval shall not be withheld unreasonably. All interest or
other income from these investments shall be paid over to the Lessee within a
reasonable time after receipt, provided the Lessee is not then in default under
the terms of this Lease Agreement in respect of any matter of which notice of
default has been served on the Lessee.
SECTION 11.5: PROOF OF PAYMENT. Upon written request by
Lessor, the Lessee shall furnish to Lessor, within 30 days after the date
whenever any Imposition is payable by or in behalf of the Lessee, official
receipts of the appropriate taxing authority, photocopies or other. proof
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satisfactory to the Lessor, evidencing the payment. If the Lessor shall have
paid any Imposition, it shall promptly provide the Lessee with a photocopy of
each receipt and shall lend and permit the Lessee to retain the original receipt
until its retention shall no longer be required by the Lessee.
SECTION 11.6: TAX BILLS PRIMA FACIE EVIDENCE. The
certificate, advice or bill or duplicate issued by the appropriate official
designated by law to make or issue it or to receive payment of any Imposition
indicating the nonpayment of any Imposition or any forfeiture, tax sale or tax
foreclosure, shall be prima facie evidence that the Imposition is due and
unpaid at the time of the issuance of such certificate, advice or bill or that the
property involved has been forfeited or sold for taxes as the case may be.
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ARTICLE XII
INSURANCE
SECTION 12.1: INSURANCE ON DEMISED PREMISES. At all
times during the term hereof and any renewal term or terms, the Lessee shall,
at the Lessee's sole cost and expense but for the mutual benefit of the Lessor
and the Lessee, purchase, procure and maintain the following insurance
coverages:
(a) ALL RISK, including business interruption, fire and extended
coverage insurance on the Demised Premises in an amount at least equal to
ninety percent of the replacement cost of the Demised Premises and
Improvements, at the time of the loss, without deduction for depreciation,
with a maximum deductible at the commencement of the Lease Agreement of
Ten Thousand Dollars for all lines purchased, protecting against loss or
damage by: (i) fire and lightning; (ii) the risks commonly included within the
term "extended coverage" (including but not limited to windstorm, hail,
explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles and
smoke); and (iii) vandalism and malicious mischief, all as these terms are
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used in insurance policies from time to time issued by insurance companies
licensed to do business by the State of Arkansas.
If the Lessor decides in its sole discretion that the amount of
replacement cost insurance procured by the Lessee is inadequate, then
replacement cost of the Demised Premises and Improvements for which
insurance shall be thereafter procured shall be determined every two years
during the term of this Lease Agreement by an insurance appraiser selected
and paid by the Lessee, provided that the Lessee shall obtain the Lessor's
approval of the appraiser before commencement of the appraisal, which
approval shall not be withheld unreasonably. The appraiser selected by the
Lessee shall submit a written report of the appraised replacement cost to the
Lessor and the Lessee. If the Lessor or the Lessee is not satisfied with this
report, this party shall serve upon the other a notice of dissatisfaction (the
notice of dissatisfaction to set forth in a general manner the grounds for
dissatisfaction) within 30 days after receipt of the report. Unless within 30
days after service of the notice of dissatisfaction the parties shall have arrived
at an agreed replacement cost, the dispute shall be resolved by the Lessor and
Lessee appointing appraisers, then said appraisers selecting a third appraiser,
with the average of the three appraisals being the valuation for purposes of
this section. During this period of dispute the Lessee shall continue to
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maintain insurance in an amount equal to the greater of that presently
determined by the appraiser or that maintained before the dispute arose.
Immediately upon receipt of the appraiser's report, the Lessee shall
procure and deliver to the Lessor written confirmation from the insurer or
insurers evidencing the increase in insurance which may be required to
comply with the provisions above.
During the Rehabilitation and Renovation Work on the Demised
Premises or any part of it, the insurance required in this Section shall be in the
form commonly known as "All Risk Builder's Risk" and shall be in the
amount of the full estimated replacement cost of the Demised Premises and
Improvements.
(b) Boiler and machinery insurance on a comprehensive basis
covering repair and replacement of all boilers and machinery serving or
benefiting the Demised Premises and Improvements, the policies of insurance
to be endorsed so as to provide "use and occupancy" coverage for the
Demised Premises and Improvements in the amount of $500,000.00.
SECTION 12.2; OTHER INSURANCE TO BE CARRIED. At all
times during the term hereof and any renewal term or terms, the Lessee shall,
at the Lessee's sole cost and expense but for the mutual benefit of the Lessor
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and the Lessee, purchase, procure and maintain the following insurance
coverages:
(a) Comprehensive general public liability on an occurrence basis
and property damage insurance, including but not limited to elevator,
premises and operations coverage with X, C and U exclusions deleted, if
applicable, owners and contractors protective coverage; product and
completed operations coverage, broad form property damage coverage
including completed operations, blanket contractual liability insurance,
personal injury coverages, and contingency liability coverages, protecting and
indemnifying the Lessor, the Lessee, and others designated by the Lessor
against any and all claims (including all costs and expenses of defending
against same) for bodily injury, sickness, disease or death or for damage or
injury to or destruction of property (including loss of use) arising out of
ownership, maintenance or use of the Hotel Building, the Improvements, and
the Demised Premises, the limits of which insurance shall be not less than
One Million Dollars (subject to annual increases based upon increases in the
Consumer Price Index, from the commencement date to each anniversary).
The Lessor shall have the right from time to time during the term of this Lease
Agreement reasonably to require the Lessee to carry greater amounts of the
insurance provided in this Subsection 12.2(a).
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(b) Worker's compensation insurance and employer's liability
insurance with a minimum limit of Five Hundred Thousand Dollars (subject to
annual increases based upon increases in the Consumer Price Index from the
commencement date to each anniversary) covering all liability imposed under
the provision of any workers compensation law, employer's liability act or
similar laws of the State of Arkansas that may at any time or from time to
time be enacted.
(c) During periods of excavation and/or construction or during
periods of alteration or during periods of renovation or during periods of
restoration in the event of damage or destruction or condemnation or during
periods of razing or demolition at, in or on the Demised Premises, the Hotel
Building or any part of it or the Improvements, "All Risk Builder's Risk"
insurance in an amount equal to the replacement cost as provided for in
Section 12.1.(a).
(d) In.the event of the sale, merchandising, transfer or exchange of
alcoholic liquors upon or from any part of the Hotel Building or any of the
Demised Premises, the Lessee shall, at least 20 days before the
commencement of this activity and continuously after that, provide the Lessor
with insurance in form, substance and with insurers satisfactory to the Lessor,
with total limits of not less than One Million Dollars (subject to annual
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increases based upon increases in the Consumer Price Index, from the
commencement date to each anniversary) in respect of bodily injury, sickness,
disease or death of any one person resulting from any one occurrence, One
Million Dollars (subject to annual increases based upon increases in the
Consumer Price Index, from the commencement date to each anniversary) in
respect of loss of means of support, indemnifying the Lessor, the Lessee, and
other persons the Lessor may designate against any and all liability by virtue
of any enactment pertaining to the sale of intoxication liquors.
(e) In the event that any other type of legislation may be enacted
imposing special liability upon the owner of property by virtue of its use for
any special purposes, before the Lessee shall so use the Demised Premises,
the Hotel Building or any part of it, the Lessee shall provide insurance in form
and substance and with insurers and limits satisfactory to the Lessor
indemnifying the Lessor, the Lessee, and other person the Lessor may
designate against any and all liability.
(f) Business Auto Liability Insurance in the amount of One Million
Dollars combined single limits for bodily injury and/or property damage
liability including, (i) owned autos, (ii) hired or borrowed autos, and (iii) non-
owned autos.
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(g) Other insurance, in amounts and in form and substance and
against insurable hazards as from time to time during the term of this Lease
Agreement (including but not limited to excavation and/or construction
periods, alteration periods, razing or demolition periods and restoration
periods in the event of damage or destruction or condemnation) may
reasonably be required by the Lessor and provided this insurance and
amounts are consistent with insurance being issued by the insurance industry
of the metropolitan area for buildings and operations of the type of building
and operation of the Lessee upon the Demised Premises.
(h) Excess "umbrella" Bodily Injury and/or Property Damage
Insurance with limits of not less than Four Million Dollar per occurrence for
bodily injury and/or property damage liability listing the general liability,
employer's liability and comprehensive auto liabilities policies required as
underlying policies.
(i) All insurance required by this Section to be purchased by Lessee
shall further provide for a maximum deductible at the commencement of the
Lease Agreement of Ten Thousand Dollars for all lines purchased.
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SECTION 12.3: DELIVERY OF POLICIES. All public liability,
Worker's compensation and employer's liability policies shall be retained by
the Lessee.
Except as otherwise specifically provided, all other policies of
insurance required to be furnished shall be held by and be payable jointly to
the Lessor and the Lessee with the proceeds to be distributed in accordance
with the terms of this Lease Agreement. Insurance company certificates
evidencing the existence of all of these policies of insurance shall be
delivered to the Lessor. All policies of insurance required to be provided and
obtained hereunder shall show the Lessor as an additional Insured and
provide that they shall not be amended or canceled on less than 30 days' prior
written notice to the Lessor and all insureds and beneficiaries of the policies.
The Lessor shall have no obligation to pay premiums or make contributions to
the insuring company or any other person.
Upon the execution and delivery of this Lease Agreement and then not
less than 30 days prior to the expiration date of any policy required to be
carried pursuant to this Article, the Lessee shall deliver to the Lessor and the
holder of any Mortgage the applicable respective policies or insurance
company certificates evidencing all policies of insurance and renewals
required to be furnished.
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SECTION 12.4: ADJUSTMENT OF LOSS. The loss, if any, under
all policies of the character described in Section 12.1 shall be adjusted by the
Lessee if the loss is less than One Hundred Thousand Dollars (subject to
annual increases based upon increases in the Consumer Price Index from the
commencement date to each anniversary), or by the Lessor, the Lessee and
any leasehold Mortgagee if the loss exceeds One Hundred Thousand Dollars
(subject to annual increases based upon increases in the Consumer Price
Index from the commencement date to each anniversary). With respect to a
loss under One Hundred Thousand Dollars (subject to annual increases based
upon increases in the Consumer Price Index from the commencement date to
each anniversary) the Lessee shall keep the Lessor advised of its negotiations
and settlements and shall have the right to institute litigation in order to
collect insurance proceeds.
SECTION 12.5: INSURER TO BE APPROVED. All policies of
insurance of the character described in Sections 12.1 and 12.2 shall be written
in companies of recognized responsibility reasonably acceptable to the
Lessor. On request by the Lessor, the Lessee shall provide photocopies of
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receipts showing the payment of premiums for all insurance policies required
to be maintained by this Lease Agreement.
SECTION 12.6: WAIVER OF SUBROGATION. Whenever: (i)
any loss, cost, damage or expense resulting from fire, explosion or any other
casualty or occurrence is incurred by either of the parties to this Lease
Agreement, or anyone claiming under it in connection with the Demised
Premises, or Public Improvements; and (ii) the party is then covered in whole
or in part by insurance with respect to loss, cost, damage or expense required
under this Lease Agreement to be so insured, then the party so insured (or so
required) releases the other party from any liability the other party may have
on account of the loss, cost, damage or expense to the extent of any amount
recovered by reason of insurance (or which could have been recovered had
insurance been carried as so required) and waives any right of subrogation
which might otherwise exist in or accrue to any person on account of it,
provided that the release of liability and waiver of the right of subrogation
shall not be operative in any case where the effect thereof is to invalidate such
insurance coverage or increase the cost thereof (provided that in the case of
increased cost, the other party shall have the right, within 30 days following
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written notice, to pay the increased cost keeping the release and waiver in full
force and effect).
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ARTICLE XIII
USE OF THE DEMISED PREMISES AND ENTIRE
BUILDING
SECTION 13.1: NO REPRESENTATIONS BY LESSOR. The
Lessee acknowledges that it has examined the Demised Premises and the
present Hotel Building, and other structures including any public
improvements and parking lot presently located there and knows the
condition of them and accepts them in their present condition and without any
representations or warranties of any kind or nature whatsoever by the Lessor
as to their condition or as to the use of occupancy which may be made of
them. The Lessee assumes the sole responsibility for the condition and
demolition, alteration and renovation of the Hotel Building and other
structures located on the Demised Premises in order that Lessee may
construct, operate, maintain and manage the Improvements and the Hotel
Building upon the Demised Premises and the Lessor shall not be required at
any time to furnish any facilities or services to the Demised Premises or the
Improvements or to make any repairs, replacements, changes (structural or
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Construct and Lease, Parking and
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otherwise), additions or alterations to the Demised Premises, the Hotel
Building and Improvements, or any other property of any land demised by
this Lease Agreement, but the foregoing shall not be deemed to relieve the
Lessor of its general municipal obligations, or its obligations respecting the
Public Improvements.
SECTION 13.2: COMPLIANCE WITH THE LAWS. The Lessee
shall throughout the term of this Lease Agreement, at the Lessee's sole
expense, promptly comply with all the laws and ordinances and the orders,
rules, regulations and requirements of all federal, state and municipal
governments and appropriate departments, commissions, boards and officers
(whether or not the same require structural repairs or alterations) and all other
legal requirements, which may be applicable from time to time to the use of
the Demised Premises or the Hotel Building or Improvements, but the
foregoing shall not be deemed to relieve the Lessor of its general municipal
obligations. The Lessee shall likewise observe and comply with the
requirements of all policies of public liability, fire and all other policies of
insurance at any time in force with respect to the Demised Premises and
Hotel Building.
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SECTION 13.3: RIGHT TO CONTEST COMPLIANCE. The
Lessee shall have the right to contest by appropriate legal proceeding, without
cost or expense to the Lessor, the validity of any Legal Requirement of the
nature referred to, and if by the terms of any legal requirement compliance
may legally be held in abeyance without the incurrence of any lien, charge or
liability of any kind against the title to the Demised Premises, the Lessee's
leasehold estate or the Lessee's title to the Hotel Building and without
subjecting the Lessee or the Lessor to any liability of whatsoever nature for
failure so to
comply,
the Lessee may postpone compliance until
the final
determination
of any
proceedings, provided that all proceedings
shall be
prosecuted with all due diligence and dispatch.
SECTION 13.4: USE OF DEMISED PREMISES, HOTEL
BUILDING AND IMPROVEMENTS. The Lessee shall equip, occupy,
own, operate, manage, maintain and repair the Demised Premises, the Hotel
Building and the Improvements in substantial conformity with the Plans and
Specifications, the terms, provisions, conditions and covenants of the
Franchise and the terms and provisions hereof.
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ARTICLE XIV
REPAIRS, MAINTENANCE AND IMPROVEMENTS
SECTION 14.1: REPAIR OF DEMISED PREMISES. The Lessee
shall throughout the term of this Lease Agreement, at the Lessee's sole
expense, maintain in good, clean and orderly condition and repair the
Demised Premises, the Hotel Building and Improvements. The Lessee shall
promptly, at the Lessee's own expense, make to the Demised Premises, Hotel
Building and Improvements all necessary repairs, renewals and replacements,
interior and exterior, structural and nonstructural, whether made necessary or
caused by fire or other cause or by ordinary wear and tear. All repairs,
renewals and replacements shall be of good quality sufficient for the proper
maintenance and operation of the Demised Premises, Hotel Building and
Improvements and shall be constructed and installed in compliance with all
legal requirements of all governmental authorities having jurisdiction and of
the appropriate Board of Fire Underwriters. The Lessee covenants that it will
continuously keep and maintain the Demised Premised, Hotel Building and
Improvements in a first class condition consonant with standards prevailing
from time to time for first class fire resistant constructed convention hotel,
office and retail commercial buildings, or for buildings and improvements
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used for the same purpose or purposes for which the Demised Premises may
be used as provided in this Lease Agreement, as the case may be, in the
Metropolitan Area, and will so operate the same. The Lessee, fitrther, shall
not permit the accumulation of waste or refuse matter, nor permit anything to
be done upon the Demised Premises which would invalidate or prevent the
procurement of all insurance policies which may at any time be required
pursuant to the provisions of Article XH. The Lessee shall not obstruct or
permit the obstruction of the streets or sidewalks, access ways or alleys
adjoining the Demised Premises except as may be permitted by the Lessor or
other municipal authorities having jurisdiction, and shall keep the Demised
Premises clean and free of dirt, rubbish, snow and ice. All proceeds of
insurance on account of any loss or damage shall, to the extent required, be
applied on the cost of any repairs, renewals and replacements as provided for
in this Article XIV. Nothing contained in this Lease Agreement shall impose
on the Lessor the obligation to make any repairs or expend any monies for the
maintenance of the Demised Premises or the renewal, replacement or repair
of the Demised Premises, the Hotel Building and/or the Improvements.
SECTION 14.2: CONTROL OVER REPAIRS. The provisions of
Section 14.5 applicable to changes or alterations involving an estimated cost
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of more than Two Hundred Thousand Dollars (subject to annual increases
based upon increases in the Consumer Price Index from the commencement
date to each anniversary) shall apply to all repairs to all or any part of the
Demised Premises and required to be done under this Article. The provisions
of Section 14.5 shall not apply to repairs involving an estimated cost of Two
Hundred Thousand Dollars or less (subject to annual increases based upon
increases in the Consumer Price Index from the commencement date to each
anniversary), except that permits shall be obtained as required in Article IV.
This section shall not be applicable to upgrades or replacements of the
furnishings, fixtures, equipment or inventory.
SECTION 14.3: FUNDING OF REPAIR AND REPLACEMENT
RESERVES. Immediately upon execution hereof, the Lessee shall create an
account, identified as the Repair and Replacement Reserves Account, into
which account Lessee shall deposit, beginning in the Second Lease year,
three (3 %) per cent of the Annual Room Sales derived from the Lessee's
operation of the Demised Premises. The monies deposited into the Repair and
Replacement Reserves Account shall be expended only for the repair and
replacement of the Demised Premises and for no other purpose; provided,
however, that the proceeds of the Repair and Replacement Reserves Account
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shall (i) be and remain at all times the property of the Lessee, and (ii) be
turned over to the Lessee upon termination of this Agreement.
SECTION 14.4: REMOVAL OF DANGEROUS CONDITIONS.
The Lessee shall during the term of this Lease Agreement, at the Lessee's sole
expense, do all things necessary to remove any known dangerous condition
from time to time existing on the Demised Premises including (without
limiting the generality of the foregoing) promptly taking appropriate measures
to prevent or repair any erosion, collapse or other unstable condition of the
Demised Premises.
SECTION 14.5: ALTERATION OF IMPROVEMENTS. The
Lessee shall not make or permit to be made any alteration of, addition to, or
change in, Demised Premises, Hotel Building or Improvements, nor demolish
all or any part of the Hotel Building, involving a cost in excess of Two
Hundred Thousand Dollars (subject to annual increases based upon increases
in the Consumer Price Index from the commencement date to each
anniversary) without the prior written consent of the Lessor, which consent
shall not be unreasonably withdield. In requesting consent the Lessee shall
comply with all applicable laws and ordinances, and shall submit to the
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Lessor detailed plans and specifications of the proposed work, an explanation
of the needs and reasons for it, and a plan of full payment of the costs of it
and the Lessor shall notify the Lessee of its approval or objections, as the
case may be, as promptly as possible after reviewing the information, but not
exceeding 30 days. If Lessor fails to notify Lessee of its objections within 30
days, the alterations and/or changes shall be deemed approved. The
provision of this Section shall not apply to items which are strictly the
Lessee's obligation to finish, unless required by law or ordinance. This
section shall not be applicable to upgrades or replacements of the furnishings,
fixtures, equipment or inventory.
ARTICLE XV
LESSOR'S RIGHT TO PERFORM LESSEE'S
COVENANTS; REIMBURSEMENT OF LESSOR
FOR AMOUNTS SO EXPENDED
SECTION 15.1: PERFORMANCE OF LESSEE'S COVENANTS
TO PAY MONEY. The Lessee covenants that if it shall at any time default
in the payment of any Impositions pursuant to the provisions of Article XI, or
shall fail to make any other payment (other than Rent) due and the failure
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shall continue for ten business days after written notice to the Lessee, then the
Lessor may, but shall not be obligated so to do, and without further notice to
or demand upon the Lessee and without waiving or releasing the Lessee from
any obligations of the Lessee in this Lease Agreement contained, pay any
Imposition, effect any insurance coverage and pay premiums for it, or make
any other payment in a manner and extent that the Lessor may deem
desirable.
SECTION 15.2: LESSOR'S RIGHT TO CURE LESSEE'S
DEFAULT. If there shall be an event of default as defined in Article XXV
of this Lease Agreement involving the failure of the Lessee to keep the Hotel
Building in good condition and repair in accordance with the provisions of
this Lease Agreement, to make any necessary renewals or replacements or to
remove any dangerous condition in accordance with the requirements of this
Lease Agreement or to take any other action required by the terms of this
Lease Agreement, then the Lessor shall have the right, but shall not be
required, to make good any default of the Lessee. Nothing in this Lease
Agreement shall imply any duty upon the part of the Lessor to do any work
which, under any provision of this Lease Agreement, the Lessee is required to
perform, and the performance of it by the Lessor shall not constitute a waiver
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of the Lessee's default in failing to perform it. The Lessor may, during the
progress of any work elected to be performed by it on the Demised Premises
or the Hotel Building, enter with contractors, agents and servants and keep
and store upon the Demised Premises and in the Hotel Building or any part of
it all necessary materials, tools and equipment. The Lessor shall not in any
event be liable for inconvenience, annoyance, disturbance, loss of business or
other damage of or to the Lessee by reason of bringing materials, supplies and
equipment into or through the Hotel Building during the course of the work,
and the obligations of the Lessee under this Lease Agreement shall not be
affected in any manner whatsoever provided the Lessor uses reasonable care
under the circumstances prevailing to avoid unnecessary inconvenience,
annoyance, disturbance, loss of business or other damage of or to the Lessee.
SECTION 15.3: LESSOR'S AND LESSEE'S ATTORNEYS'
FEES AND EXPENSES. To the extent not prohibited by law, all expenses,
including reasonable attorneys' fees and court costs, incurred by the Lessor by
reason of any default by the Lessee, without the default on the Lessor's part
(whether or not any proceeding is instituted) or in connection with any action
or proceeding affecting this Lease Agreement or the Demised Premises, shall
be paid to the Lessor by the Lessee on demand. Conversely, the Lessee. shall
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be entitled to similar expenses incurred because of the Lessor's default,
without default on the Lessee's part.
SECTION 15.4: REIMBURSEMENT OF LESSOR AND
LESSEE. All sums advanced by the Lessor pursuant to the provisions of
Sections 15.1 and 15.2 and all necessary and incidental costs, expenses and
attorneys' fees in connection with the performance of any acts, together with
interest at the Prime Interest Rate per annum from the date of the maldng of
advancements, shall be deemed additional Rent and shall be promptly payable
by the Lessee, in the respective amounts so advanced, to the Lessor. This
reimbursement shall be made on demand, or, at the option of the Lessee, may
be added to any Rent then due or becoming due under this Lease Agreement
and the Lessee covenants to pay the sum or sums with interest, and the Lessor
shall have (in addition to any other right or remedy) the same rights and
remedies in the event of the nonpayment by the Lessor as in the case of
default by the Lessee in the payment of any instalhnent of Rent as provided in
Article XXV. Conversely, the Lessee shall be entitled to receive from the
Lessor prompt payment or reimbursement on any sums due and owing from
the Lessor to the Lessee, together with interest at the prime Interest Rate.
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The Lessee is entitled to offset or credit any sums due and owing from the
Lessor against Rent.
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ARTICLE XVI
DAMAGE OR DESTRUCTION
SECTION 16.1: REPAIR AND REPLACEMENT OF HOTEL
BUILDING AND ANY SUBSEQUENT BUILDING AFTER
DAMAGE. In the event of damage by fire or otherwise to the nonstructural
elements of the Improvements including any machinery, fixtures or equipment
which are a part of the Hotel Building located on the Demised Premises, the
Lessee shall, within six months after this damage and as much sooner as is
reasonably possible, at the Lessee's sole expense (but using along with the
Lessee's own funds insurance proceeds available for that purpose), either
repair or replace the machinery, fixtures or equipment. In the event of
damage by fire or otherwise to the structural elements of the Hotel Building,
the Lessee shall, within eighteen months after the damage and as much sooner
as is reasonably possible at the Lessee's sole expense (but using along with
the Lessee's own funds insurance proceeds available for that purpose), repair
and restore the Hotel Building as completely as possible to the condition it
was in immediately prior to the damage or, if the Lessee so elects, replace,
within twenty-four months after the damage and as much sooner as is
reasonably possible at the Lessee's sole expense (but using along with the
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Lessee's own funds insurance proceeds available for that purpose), the Hotel
Building (including all machinery, fixtures and equipment situated there) with
a Hotel Building of the same general size and character as the damaged Hotel
Building. In either event the repairing, restoring or replacement shall be done
in conformity with and subject to the provisions of Article IV applicable to
the renovation and rehabilitation of the hotel building and other improvements
on the Demised Premises.
SECTION 16.2: PAYMENT FOR CONSTRUCTION AFTER
DAMAGE OR DESTRUCTION. All insurance proceeds recovered by any
party on account of damage or destruction to the Hotel Building, less the
actual costs, if any, to the applicable party relating to recovery shall be
applied by the parties to payment of the cost of the Work (pursuant to this
Article and Article IV) to restore the Hotel Building and for other purposes in
accordance with the terms hereof. The insurance proceeds shall be paid out,
the Work shall be performed, and the Lessee shall make additional deposits
with the Lessor (in lieu of deposits with the construction lender), if any are
required, all in accordance with the terms hereof, as may be applicable.
Lessor hereby agrees to negotiate such reasonable modifications to this Lease
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Agreement concerning the use and application of insurance proceeds with the
Lessee as a Mortgagee may reasonable require from time to time.
SECTION 16.3: RIGHT OF MORTGAGEES TO REPAIR. In
case any Mortgage made by the Lessee shall be in force at the time of any
damage to or destruction by fire or otherwise of the Hotel Building, any
Mortgagee is
authorized,
at its sole
expense, to repair or restore
the Hotel
Building or
construct a
subsequent
Building under the same
terms and
conditions of this Lease Agreement as would be applicable in the case of a
repairing, restoring or construction by the Lessee. The Mortgagee so
repairing, restoring or constructing the Building shall, subject to compliance
with all the conditions contained in this Article XVI and Article IV, be
subrogated to the rights of the Lessee to all the insurance proceeds payable as
a result of the damage or destruction, and shall be entitled to have (and
Lessee authorized the Lessor so to pay) all insurance proceeds paid out by the
Lessor upon architect's certificates in the same manner in every respect as if
said Mortgagee were Lessee under this Lease Agreement.
. SECTION
16.4:
COLLECTION OF
INSURANCE PROCEEDS.
The Lessor shall
in no
event be responsible
for the noncollection of any
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insurance proceeds under this Lease Agreement but only for insurance money
that shall come into its hands.
SECTION 16.5: UNUSED INSURANCE PROCEEDS AND
DEPOSITS. In the event any proceeds of insurance or sums deposited with
the Lessor by the Lessee in connection with any restoration or rebuilding of
the Hotel Building shall remain in the hands of the Lessor after completion of
restoration or rebuilding, and if the respect of any matter or thing of which
notice of default has been served on the Lessee, then the remaining funds
shall be paid, first on any unpaid or accrued Rent and other sums due the
Lessor, and, second, to the Lessee.
ARTICLE XVII
CONCESSIONS
SECTION 17.1: CONCESSION GRANT. The Lessor hereby grants
to Lessee the exclusive right and obligation throughout the term hereof and
any extensions and renewals thereof, but only if the Lessee is not otherwise in
default hereunder, to provide all concessions within the area of the Center,
including but not limited to the Lessee will maintain at all times in good
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standing such permits and licenses necessary and required to sell and serve
alcoholic beverages, beer and wine as part of the concession; provided,
however, this exclusive concession grant does not apply to and Lessee shall
allow such organizations and enterprises as are jointly approved by Lessor
and Lessee to provide food service prepared other than by the Lessee to be
served at functions conducted and held in the Center. Concessions shall be
deemed to include all vending machines, beverage services, banquet service
and all other food or food service which occurs in the Center.
SECTION 17.2: LESSEE CONCESSION SERVICES. Lessee
accepts the obligations associated with the concession grant and in
consideration for the grant, Lessee covenants and agrees that throughout the
term hereof and any extensions and renewals thereof, Lessee will fully and
completely perform and observe the concession granted herein and in
furtherance thereof covenants and agrees as follows: (a) To procure
and provide adequate vending machines for the Center and to keep same in
good clean operating condition and fully stocked at all times; and,
(b) To meet all reasonable requests and needs to provide and serve
food and/or beverages, including alcoholic beverages, beers and wines, for all
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conventions, group meetings, private parties or assemblies using the Center
and to prepare, provide and serve all such food and beverages.
SECTION 17.3: STANDARDS OF LESSEE CONCESSION
SERVICES. Lessee covenants and agrees
that it will
at all
times maintain
the same standards of food and beverage
preparation
and
service as are
applicable to the Demised Premises and that same will at all times conform to
the requirements of the Franchise.
SECTION 17.4: CONCESSION FEE. As additional consideration
for the concession granted herein, Lessee shall pay to Lessor through out the
term hereof an Annual Concession Fee of seven (7 %) per cent of the Lessee's
Gross Receipts derived from the sales or service of and from the operations
of all concessions conducted within the Center and of all sales and service of
and from all food, vending and beverage (including alcoholic beverages, beers
and wines) sold within the Center.
SECTION 17.5: PAYMENT AND ACCOUNTING FOR
CONCESSION FEE. Throughout the term hereof, and any renewals and
extensions thereof, Lessee shall pay to Lessor the Annual Concession Fee
monthly, beginning with the first full month at the Rent Start Date, by the
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10th day of each succeeding month thereafter based on the total Gross
Receipts for the preceding calendar month. Lessee covenants and agrees to
maintain at all times during the term hereof and any and all renewals and
extensions thereof, a complete statement of accountings showing all Gross
Receipts earned by the Lessee under the Concession granted hereby and that
the Gross Receipts upon which the monthly payment is based shall be
reported to the Lessor along with each such payment in a form as approved
by the Lessor and Lessee covenants and agrees to give Lessor an audited
financial statement showing the Gross Receipts earned by the Lessee upon
which the Concession Fee is calculated and based on or before the 15th day
of March of each calendar year during the term hereof. Further Lessee
covenants and agrees to provide Lessor or its designees with full and
complete access to Lessee's accounting records to review and audit same.
SECTION 17.6: SERVICES FACILITIES. Lessor agrees to
provide to Lessee convenient and adequate space, to be approved by Lessee,
to be used as a serving pantry or pantries. Such space will be provided with
roughed -in utilities and interior surfaces which will conform to local building
codes and sanitary regulations. Lessee will be permitted to install such
serving equipment in such space as may be necessary to meet the
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requirements of service to the Center and its patrons. Such equipment may or
may not be attached to the building. In the event this Lease is terminated for
any reason Lessee shall be entitled to remove all of its equipment and
supplies from the premises so Iong as Lessee shall restore the portion of the
premises to which any such equipment may be attached to its former
condition, ordinary wear and tear alone excepted. Lessee shall use the serving
pantries or areas and the Concession areas for the purpose of providing
Concessions to the patrons of the Center and for no other purpose without the
expressed consent of the Lessor.
SECTION 17.7: USE OF CENTER EQUIPMENT. Lessee shall
have the use of all tables, chairs, stages and other equipment which are
owned by or in the possession of the Lessor used in connection with the
operations of the Center for group functions conducted in the Center. The
Lessor will, from time to time, provide, set up and dismantle a sufficient
number of tables, chairs, portable stages and related furniture and equipment,
all of good quality and adequately maintained, to serve the needs of patrons
of the Center. In connection with the Concession to be operated by Lessee,
Lessee will set up, dismantle and properly clean and store within the confines
of the Center all other equipment and supplies, includine but not limited to.
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dishes, silver and linens which are necessary for the service of food and
beveraees to the patrons of the Center before and after each use by Lessee in
connection with its food services. Lessee will also sweep and mop all areas
where food has been served after each food service function and for the
removal of all trash and garbage relating to the operation of the concessions.
Lessee will exercise reasonable care and control of the equipment described
in this paragraph supplied by the Lessor, but will not be responsible for
normal wear and tear thereof, but will be responsible for the negligent and
intentional acts of itself or its servants, agents or employees.
SECTION 17.8: FURNISHING OF SUPPLIES.: Except as above
set forth, Lessee shall furnish all equipment and supplies, including, but not
limited to, dishes, silver and linens which are necessary for the service of
food and beverage to the patrons of the Center. Lessee shall be responsible
for all trash removal relating to the operation of the Concessions.
SECTION 17.9: COSTS OF OPERATIONS. Lessee shall be
responsible for and shall pay all costs of operation of the Concession except
as specifically set forth elsewhere in this Agreement, including, but not
limited to, the costs of leasing or purchasing vending machines and the costs
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of its own personnel and equipment. All food, beverage and supplies
required to be furnished by Lessee hereunder shall be purchased by Lessee in
its own name and at its own expense, and all supervisory, clerical and
operating personnel necessary to perform Lessee's functions hereunder shall
also be employed by Lessee in its own name and at its own expense. Lessee
agrees to hold the Lessor harmless of and from any and all costs, expense or
damage (including reasonable attorney's fees) in connection with any claim by
any party arising out of the operation of the Concessions by Lessee, including
any alleged tort or contract liability.
ARTICLE XVIII
MECHANICS' LIENS
SECTION 18.1: DISCHARGE OF MECHANICS' LIENS. The
Lessee shall not suffer or permit any mechanics' liens to be filed against the
title to the Demised Premises, nor against the Lessee's interest in the property,
nor against the Hotel Building or the Improvements by reason of Work, labor,
services or materials supplied or claimed to have been supplied to the Lessee
or anyone having a right to possession of the Demised Premises or Hotel
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Building as a result of an agreement with or the assent of the Lessee. Nothing
in this Lease Agreement shall be construed as constituting the consent or
request of the Lessor, expressed or implied, by inference or otherwise, to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for any specific Improvement,
alteration or repair of the Demised Premises or of the Hotel Building, nor as
giving the Lessee the right, power or authority to contract for or permit the
rendering of any services or the furnishing of any materials that would give
rise to the filing of any mechanics' and materialmen's liens against the Lessor's
interests in the Demised Premises or Hotel Building. If any mechanics' and
materialmen's lien shall at any time be filed against the Demised Premises
including the Hotel Building and Improvements, the Lessee shall cause it to
be discharged of record within ten days after the date the Lessee has
knowledge of its filing. If the Lessee shall fail to discharge such lien within
that period, then in addition to any other right or remedy, the Lessor may, but
shall not be obligated to, discharge the lien either by paving the amount
claimed to be due or by procuring the discharge of the lien by deposit in court
or bonding, or in the event the Lessor shall be entitled, if it so elects, to
compel the prosecution of any action for the foreclosure of the lien by the
Lienor and to pay the amount of the judgment, if any, in favor of the.lienor
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with interest, costs and allowances with the understanding that all amounts
paid by the Lessor shall constitute additional Rent due and payable under this
Lease Agreement and shall be repaid to the Lessor by the Lessee immediately
upon rendition of an invoice or bill by the Lessor. The foregoing provisions
notwithstanding, the Lessee shall not be required to pay or discharge any such
lien so long as the Lessee shall in good faith proceed to contest the lien by
appropriate proceedings and if the Lessee shall have given notice in writing to
the Lessor of its intention to contest the validity of the lien and shall furnish
and keep in effect a surety bond of a responsible and substantial surety
company reasonably acceptable to Lessor or other security reasonably
satisfactory to Lessor in an amount sufficient to pay one hundred ten percent
of the amount of the contested lien claim with all interest on it and costs and
expenses, including reasonable attorneys' fees, to be incurred in connection
with it.
ARTICLE XIX
COVENANT AGAINST WASTE AND INSPECTION
SECTION 19.1: WASTE. Except as otherwise permitted by this
Lease Agreement, the Lessee covenants not to do or suffer any demolition,
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waste or damage, disfigurement or injury to the Demised Premises or the
Hotel Building or any part of it, or permit or suffer any overloading of its
structural members or floors.
SECTION 19.2: INSPECTION OF DEMISED PREMISES. The
M e
Lessee shall permit the authorized representatives of Lessor to enter the
Demised Premises or any part of it at all times during usual business hours
after reasonable notice under the circumstances prevailing for the purpose of
malting reasonable inspections.
SECTION 19.3: EXHIBITION AND INSPECTION OF
DEMISED PREMISES. The Lessor is given the right during usual business
hours to enter the Demised Premises or any part of it, including the Hotel
Building, and to exhibit it in connection with the sale of the Demised
Premises. The Lessor and its agents and architects may from time to time
during usual business hours inspect the construction of the Hotel Building or
any part of it and may inspect any subsequent repairs, renewals or other
construction on or in the Demised Premises. During the final Lease Year of
this Lease Agreement, or any extension of it, the Lessor shall have the further
right during usual business hours to enter the Demised Premises including the
EN
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Hotel Building or any party of it for the purpose of exhibiting it in connection
with renting or leasing it. . None of the Lessor's rights under this Section
19.3 shall be exercised in a manner that will interfere unreasonably with the
Lessee's business or the business of Sublessees.
ARTICLE XX
PUBLIC UTILITY CHARGES
SECTION 20.1: LESSEE TO PROVIDE AND PAY FOR
UTILITIES. The Lessee will pay, or cause to be paid, all proper charges for
gas, electricity, light, heat, water and power, for telephone, protective and
other communication services, and for all other public or private utility
services, which shall be used, rendered or supplied upon or in connection
with the Demised Premises and Hotel Building or any part of it, at any time
during the term of this Lease Agreement, and the Lessee will comply with all
contracts relating to any services and will do all other things required for the
maintenance and continuance of all services as are necessary for the proper
maintenance and operation of the Demised Premises and Hotel Building. The
Lessee will also at its sole expense procure any and all necessary permits,
licenses or other authorization required for the lawful and proper installation
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and maintenance upon the Demised Premises of wires, pipes, conduits, tubes
and other equipment and appliances for use in supplying any such utilities,
services or substitutes to the Demised Premises and the Lessor will cooperate
with and assist the Lessee in such endeavor. In case any charge, cost or
expense for any of the above mentioned utility services or for any of the other
above - mentioned services shall not be paid when due and payable, the Lessor
shall have the right, but shall not be obligated, to pay the same, with the
understanding that all amounts paid by the Lessor shall constitute additional
Rent due and payable under this Lease Agreement and shall be repaid to the
Lessor by the Lessee immediately on rendition of a bill by the Lessor.
SECTION 20.2: LESSOR NOT LIABLE FOR FAILURE OF
UTILITIES. The Lessor shall not be liable for any failure of water supply,
sewer, gas or electric current, or for any injury or damage to persons or
property caused by or resulting from gasoline, oil, steam, gas, electricity, or
hurricane, tornado, flood, wind or similar storms or disturbances, or water,
rain, snows or hazardous waste which may leak or flow from the street,
sewer, gas mains or from any part of the Hotel Building or the Demised
Premises, or leakage of gasoline or gas from pipes, appliances, sewer or
plumbing works therein, or from any other place, or for interference with light
SO
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or other incorporeal hereditaments, or caused by operations by or of any
public or quasi- public work, but the foregoing shall apply to the Lessor in its
capacity as a Lessor of real property and shall not be deemed to release or
relieve the Lessor from any responsibility or liability it would otherwise have,
if any, in its capacity as a municipal corporation.
ARTICLE XXI
INDEMNIFICATION OF LESSOR
SECTION 21.1: GENERAL INDEMNIFICATION OF LESSOR
WITHOUT LIMITATION OF ANY OTHER INDEMNITY GIVEN
HEREUNDER. The Lessee agrees to indemnify, defend and save harmless
the Lessor against and from any and all claims by or on behalf of any person,
firm or corporation, arising, other than due to the Lessor's gross or wanton
negligence, from the conduct or management of or from any Work or thing
whatsoever done in or about die Demised Premises and Hotel Building. The
Lessee also agrees to indemnify, defend and save the Lessor harmless against
and from any and all claims and damages arising, other than due to the
Lessors gross or wanton negligence, during the term of this Lease Agreement
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from any condition of the Hotel Building and Demised Premises, or of any
vaults, passageways or spaces appurtenant to it under the Lessee's control
(except the Public Improvements, unless due to the Lessee's negligence), or
arising, other than due to the Lessor's gross or wanton negligence, from any
breach or default on the part of the Lessee to be performed, pursuant to the
terms of this Lease Agreement, or arising from any act or negligence of the
Lessee or any of its agents, contractors, servants, employees or licenses, or
arising, other than due to the Lessor's gross or wanton negligence, from any
accident, injury or damage whatsoever caused to any Person occurring during
the term of this Lease Agreement in or on the Demised Premises, and from
and against all costs, counsel and legal fees, expenses and liabilities incurred
in any claim or action or proceeding brought thereon, and in case any action
or proceeding be brought against the Lessor by reason of a claim, the Lessee
upon notice from the Lessor shall at its expense resist or defend the action or
proceeding by counsel reasonably satisfactory to the Lessor. If the Lessee be
required to defend any action or proceeding pursuant to this Article to which
action or proceeding the Lessor is made a party, the Lessor shall also be
entitled to appear, defend, or otherwise take part in the matter involved at its
election, and at the sole expense of the Lessee (except the Lessee shall not be
obligated to pay counsel fees when an insurance carrier is obligated to and
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does defend the Lessor), by counsel of its own choosing, provided this action
by the Lessor does not limit or make void any liability of any insurer of the
Lessor or the Lessee in respect to the claim or matter in questions. The
foregoing agreements of indemnity are in addition to and not by way of
limitation of any other covenants in this Lease Agreement to indemnify the
Lessor. The foregoing agreements of indemnity by the Lessee do not apply to
any claims of damages arising out of the failure of the Lessor to perform acts
or render services in its municipal capacity.
SECTION 21.2: REIMBURSEMENT OF COSTS OF
OBTAINING POSSESSION. The Lessee covenants to pay, and to
indemnify the Lessor against, all costs and charges, including, but not limited
to, counsel and legal fees, lawfully and reasonably incurred in obtaining
possession of the Demised Premises and establishing the Lessor's title free
and clear of this Lease Agreement and any Leasehold Mortgage upon
expiration or earlier termination of this Lease Agreement or in enforcing any
agreement by the Lessee. The Lessee covenants to pay, and indemnify the
Lessor against all costs and charges, including counsel and legal fees,
lawfully and reasonably incurred in enforcing any agreement by the Lessee.
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ARTICLE XXII
LIEN FOR RENT AND OTHER CHARGES
545
SECTION 22.1: LIEN FOR RENT. The whole amount of the Rent,
and each and every installment, and the amount of all taxes, assessments,
water rates, insurance premiums and other charges and Impositions paid by
the Lessor under the provisions of this Lease Agreement, and all costs,
attorneys' fees and other expenses which may be incurred by the Lessor in
enforcing the provisions of this Lease Agreement or on account of any
delinquency of the Lessee in carrying out any of the provisions of this Lease
Agreement, shall be and they are declared to constitute a valid and prior lien
upon the Hotel Building, including the Improvements, and upon the Lessee's
leasehold estate, subject, however, to the rights of any Mortgagee under
Article VI, and may be enforced by equitable remedies including the
appointment of a receiver.
ARTICLE XXIII
PLAZA, STREETS AND SIDEWALKS
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SECTION 23.1: PLAZA. STREETS AND SIDEWALKS. The
Lessor does not by this instrument lease to the Lessee any space under, in,
upon or above any plaza, street, alley or sidewalk adjoining or adjacent to the
Demised Premises. It is further understood that upon the termination of this
Lease Agreement in any way, whether by lapse of time or otherwise, all
interests of the Lessee and of all parties claiming under the Lessee in any
space (as described in this Section, however these interests may have been
acquired, shall revert to the Lessor without any compensation being allowed
or paid therefor.
ARTICLE XXIV
CONDEMNATION
SECTION 24.1: SEPARATE DETERMINATION OF
CONDEMNATION AWARDS. In the event that all or any part of the
Demised Premises, the Hotel Building, the Improvements, or any leasehold or
other interest in the property shall be taken or damaged by the exercise by
any governmental authority (including but limited to the exercise of the power
of eminent domain by the Lessor) of the power of eminent domain, then
(whether or not this Lease Agreement shall terminate by operation of law
:•
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upon such exercise of the Power of eminent domain) the amount of damages
resulting to Lessor and Lessee, respectively, and to their respective interests
in and to the Demised Premises, the Hotel Building, and the Parking Facility,
if applicable, and in, to and in connection with this Lease Agreement, by
reason of the exercise of the power of eminent domain, shall be separately
determined and computed by the court having jurisdiction and separate
awards and judgments with respect to damages to Lessor and Lessee,
respectively, and to each of their respective interests, shall be made and
entered. In the event that a court shall make a single award without
separately determining the respective interests of Lessor and Lessee, and if
Lessor and Lessee's Mortgagee shall not agree in writing as to their respective
portions of an award within 20 days after the date of the final determination
by the court of the amount of it, Lessor and Lessee agree to submit the matter
to the court on stipulation for the purpose of a judgment determinative of their
respective shares.
In the event of a single award without determination as to interest, the
Lessor or Lessee, for purposes of determining Lessor's damages resulting
from any exercise of the power of eminent domain, whether to be determined
by the parties, the court or pursuant to arbitration the value of Lessor's fee
interest in and to the Demised Premises or the condemned portion of it, as the
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case may be (in addition to and without limitation of its right to any award
covering its interest in any parking spaces), shall be based upon the greater of
(a) the then value of the Demised Premises as unimproved real estate
unencumbered by this Lease Agreement, and provided that all indebtedness
under any Mortgage of Lessee is paid in full, or (b) the then value of the
Demised Premises as then improved and subject to this Lease Agreement, or
(c) 54,000,000; and no portion of the condemnation award shall be payable to
Lessee or for its benefit (including payment of expenses and attorneys' fees)
or the restoration of the Hotel Building unless and until Lessor shall have
been paid the amount determined on this basis. At the time of the execution
of this Lease Agreement, no condemnation proceedings are contemplated by
the Lessor in its municipal capacity with respect to the Demised Premises.
SECTION 24.2: DEPOSIT OF CONDEMNATION AWARD
WITH LESSOR. Unless the effect of a condemnation proceeding shall be
to terminate this Lease Agreement by operation of law or as provided in
Section 25.3 below, and except as may be provided in any Mortgage to, or
agreement with, any Mortgagee described in this Lease Agreement, any
award made in respect of the Hotel Building in a condemnation proceeding
shall be deposited with the Lessor to be paid out for the cost of restoring the
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Hotel Building and accomplishing the Work and for other purposes in
accordance with the terms of this Lease Agreement. Lessee shall make
additional deposits with Lessor (in lieu of deposits with the construction
lender), if any are required, all in accordance with the terms of this Lease
Agreement.
SECTION 24.3: EFFECT OF TAKING ON RENT. In the event
that all or substantially all of the Demised Premises and the Hotel Building
shall be taken by the exercise of the power of eminent domain or by
agreement between Lessor, Lessee and those authorized to exercise the
power of eminent domain, all rent, Impositions, Rent Tax and other sums or
sums of money and other charges provided to be paid by Lessee and related
to particular periods of time shall be apportioned and paid to the date of
taking and the Lease Agreement shall terminate as of that date. Unless all or
substantially all of the Demised Premises and Hotel Building are taken by the
exercise of the power of eminent domain or by agreement or unless this Lease
Agreement is terminated by agreement or by operation of law as a result of
the exercise of eminent domain, this Lease Agreement shall continue in full
force and effect. Substantially all of the Demised Premises and the Hotel
Building shall be deemed to have been taken if and only if the remaining
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portion of the Demised Premises and Hotel Building are not sufficient to
economically justify the continuance of this Lease Agreement.
If this Lease Agreement shall continue in effect under the foregoing
provisions, then after the date of any taking, this Lease Agreement shall
continue in full force and effect without any modification, except that the rent
payable by Lessee shall be modified as follows:
If the taking may reasonably be expected to cause a
reduction in the level of Net Revenues from those received
immediately prior to the tatting, the Annual Rent Amount and the
Annual Parking Space Rent Amount referred to in this Lease
Agreement shall be reduced in the same proportion that the
anticipated reduction in Net Revenues bears to the Net Revenues
immediately prior to the taking.
SECTION 24.4: RIGHTS OF MORTGAGEE. Lessor and Lessee
shall not settle or compromise the amount or division of any award in any
condemnation proceeding without any Mortgagee's consent, which consent
shall not be unreasonably withheld. Any Mortgagee of Lessee shall be
entitled to appear in any condemnation proceedings and make claim for the
share of any award to which Lessee is entitled by the terms of this Article.
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Except as otherwise provided in any Mortgage to, or agreement with, any
Mortgagee described in Section 6.8 above, a Mortgagee shall only be entitled
to that portion of Lessee's interest in the condemnation award remaining after
disbursements from the deposit, if any, with Lessor of Lessee's interest in the
award pursuant to the provisions hereoof.
SECTION 24.5: TEMPORARY TAKING. In the event that all or
any portion of the Hotel Building or the Demised Premises shall be taken by
the exercise of the right of eminent domain for governmental use or
occupancy for a temporary period, this Lease Agreement shall not terminate
and Lessee shall continue to perform and observe all of its obligations
(including the obligation to pay rent as provided throughout this Lease
Agreement) as though the temporary taking had not occurred except only to
the extent that it may be prevented from so doing by the terms of the order of
the authority which made the taking or by the conditions resulting from the
taking, including the loss of its possession of all or any part of the Hotel
Building or the Demised Premises. Inn the event the taking for governmental
occupancy is for a period entirely within the term of this Lease Agreement,
then Lessee shall be entitled to receive the entire amount of any award made
for the taking, whether paid by way of damages, rent or otherwise. If the
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period of governmental occupancy extends beyond the termination of the term
of this Lease Agreement, the amount of the award, after payment to Lessor of
the estimated cost of restoration of the Hotel Building, shall be apportioned
between Lessor and Lessee as of the date of the termination.
Lessee covenants that if the taking for governmental occupancy is for a
period entirely within the term of this Lease Agreement, and if termination of
any governmental occupancy occurs prior to 10 years before the termination
of this Lease Agreement, Lessee at its sole cost and expense will restore the
Hotel Building as nearly as may be reasonably possible to the condition in
which it was immediately prior to the taking.
ARTICLE XXV
DEFAULT PROVISIONS
SECTION 25.1: EVENTS OF DEFAULT. Each of the following
events is defined as an "Event of Default ":
(a) The failure of the Lessee to submit the Plans and Specifications
required by Section 4.2 hereof to the Lessor within the time period therein
prescribed.
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(b) The failure of the Lessee to complete the Rehabilitation and
Renovation Work within the time period prescribed by Section 4.5 hereof.
(c) The failure of the Lessee to fully perform and comply with the
provisions of Sections 7.1 and 7.2 within the time periods prescribed.
(d) The failure of the Lessee to pay any installment of the Annual
Rent Amount, any installment of the Annual Parking Space Rent Amount, any
installment of Additional Parking Rent, any installment of Concession fees
and/or any other payments or deposits of money, or furnish receipts for
deposits as required, when due and the continuance of the failure for a period
of 30 days after Lessee receipt of written notice from the Lessor.
(e) The failure of the Lessee to perform any of the other covenants,
conditions and agreements of this Lease Agreement on the part of the Lessee
to be performed, and the continuance of the failure for a period of 60 days
after notice in writing (which notice shall specify the respects in which the
Lessor contends that the Lessee has failed to perform any of the covenants,
conditions and agreements) from the Lessor to the Lessee, provided that this
•e
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60 day time period shall be reasonably extended if (i) within 10 days of
receipt of the written notice referred in this subsection, Lessee contacts
Lessors and establishes to Lessor's satisfaction that for reasons beyond
Lessee's control the covenant, condition or agreement cannot reasonably be
performed within the 60 days of the written notice; (ii) and Lessee is
otherwise making good faith efforts to perform the covenant, condition or
agreement; and (iii) the reason that the covenant, condition and agreement
cannot be performed by the Lessee is not the fact that the Lessee lacks the
financial ability to fully perform same; and (iv) the failure to perform the
covenant, condition and agreement by the Lessee within the time period of
the extension will be an event of default.
(g) The filing of an application by the Lessee (the term, for this
purpose, to include any approved transferee other than a Sublessee of the
Lessee's interest in this Lease Agreement): (i) for a consent to the
appointment of a receiver, trustee or liquidator of itself or all its assets; (ii) of
a voluntary petition in bankruptcy or the filing of a pleading in any court of
record admitting in writing its inability to pay its debts as they come due; (iii)
of a general assimment for the benefit of creditors; (iv) of an answer
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admitting the material allegations - of, or its consenting to, or defaulting in
answering, a petition filed against it in any bankruptcy proceeding; or
(h) The entry of an order, judgment or decree by any court of
competent jurisdiction, adjudicating the Lessee a bankrupt, or appointing a
receiver, trustee or liquidator of it or of its assets, and this order, judgment or
decree continuing unstayed and in effect for any period of 60 consecutive
days, or if this Lease Agreement is taken under a writ of execution.
Note: In the event this Lease Agreement is assumed by or assigned to a
trustee pursuant to the provisions of the Bankruptcy Reform Act of 1978
(referred to as 'Bankruptcy Code ") (111 USC 1 et seq.), and the trustee shall
cure any default under this Lease Agreement and shall provide adequate
assurances of future performance of this Lease Agreement as are required by
the Bankruptcy Code (including, but not limited to, the requirement of Section
365(b)(1)) (referred to as "Adequate Assurances "), and if the trustee does not
cure such defaults and provide such Adequate Assurances under the
Bankruptcy Code within the applicable time periods provided by the
BanIc uptcy Code, then this Lease Agreement shall be deemed rejected
automatically and the Lessor shall have the right immediately to possession of
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the Demised Premises immediately and shall be entitled to all remedies
provided by the Bankruptcy Code for damages for breach or termination of
this Lease Agreement.
SECTION 25.2: REMEDIES IN EVENT OF DEFAULT. If an
Event of Default as defined in Section 25.1 above shall have occurred and
remains uncured for any applicable grace period therein prescribed; then and
thereafter the Lessor may at its option, in addition to other remedies provided
by law, pursue any one or more of the following remedies:
(a) The Lessor may terminate this Lease Agreement and the term
created, in which event the Lessor may repossess the entire Demised
Premises and Hotel Building and Improvements, and be entitled to recover
any damages allowed by law.
(b) The Lessor may terminate the Lessee's right of possession and
may repossess the entire Demised Premises and Hotel Building and
Improvements by forcible entry and detained suit or otherwise, without
demand or notice of any hind to the Lessee (except as above expressly
provided for) and without terminating this Lease Agreement, in which event
the Lessor may, but shall be under no obligation so to do, relet all or any part
of the Demised Premises for Rent and upon terms as shall be satisfactory in
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the judgment reasonably exercised by the Lessor (including the right to relet
the Demised Premises and Hotel Building for a term greater or lesser than
that remaining under the stated term of this Lease Agreement and the right to
relet the Demised Premises and Hotel Building as a part of a larger area and
the right to change the use made of the Demised Premises). For the purpose
of reletting, the Lessor may make any repairs, changes, alterations or
additions in or to the Demised Premises and Hotel Building that may be
reasonably necessary or convenient in the Lessor's judgment reasonably
exercised; and if the Lessor shall be unable after a reasonable effort to do so
to relet the Demised Premises, or if the Demised Premises and Hotel Building
are relet and a sufficient sum shall not be realized from reletting after paying
all of the costs and expenses of repairs, changes, alterations and additions and
the expense of reletting and the collecting of the Rent accruing from it, to
satisfy the Rent above provided to be paid, then the Lessee shall pay to the
Lessor as damages a sum equal to the amount of the Rent reserved in this
Lease Agreement for the period or periods as and when payable pursuant to
Article V, or, if the Demised Premises or any part of it has been relet, the
Lessee shall satisfy and pay any deficiency upon demand from time to time;
and the Lessee acknowledges that the Lessor may file suit to recover any
sums falling due under the terms of this Subsection (b) from time to time and
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that any suit or recovery of any portion due the Lessee shall be no defense to
any subsequent action brought for any amount not reduced to judgment in
favor of the Lessor.
(c) In the event of any breach or threatened breach by the Lessee of
any of the terms, covenants, agreements, provisions or conditions in this
Lease Agreement, the Lessor shall have the right to invoke any right and
remedy allowed at law or in equity or by statute or otherwise as though
reentry, summary proceedings, and other remedies not provided for in this
Lease Agreement.
(d) Upon the termination of this Lease Agreement and the term
created, or upon the termination of the Lessee's right of possession, whether
by lapse of time or at the option of the Lessor, the Lessee will at once
surrender possession of the Demised Premises, the Hotel Building and the
Improvements to the Lessor and remove all its personal property from it; and
if possession be not immediately surrendered, the Lessor may reenter the
Demised Premises, the Hotel Building and the Improvements and repossess
itself of it as of its former estate and remove all Persons and their personal
property, using force as may be necessary without being deemed guilty of any
manner of trespass or forcible entry or detainer.
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SECTION 25.3: WAIVERS
AND SURRENDERS TO
BE
IN
WRITING. The receipt of any sum
due hereunder by the Lessee
by
the
Lessor, with knowledge of any breach of this Lease Agreement by the Lessee
or of any default on the part of the Lessee in the observance or performance
of any of the conditions, agreements or covenants of this Lease Agreement,
shall not be deemed to be a waiver of any provision of this Lease Agreement.
No failure on the part of the Lessor to enforce any covenant or provision
contained in this Lease Agreement, or any waiver of any right under it by the
Lessor, unless in writing, shall discharge or invalidate such covenant or
provision or affect the right of the Lessor to enforce it in the event of any
subsequent breach or default. No covenant or condition of this Lease
Agreement shall be deemed to have been waived by the Lessor unless the
waiver be in writing, signed by the Lessor or the Lessor's agent duly
authorized in writing. Consent of the Lessor to any act or matter must be in
writing and shall apply only with respect to the particular act or matter to
which the consent is given and shall not relieve the Lessee from the
obligation, wherever required under this Lease Agreement, to obtain the
consent of the Lessor to any other act or matter. The receipt by the Lessor of
any Rent or any other sum of money or any other consideration paid by the
Lessee after the termination, in any manner, of the term demised, shall not
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reinstate, continue or extend the term demised, unless agreed to in writing and
signed by the Lessor and Lessee.
SECTION 25.4: RIGHTS AND DUTIES OF MORTGAGEE
AND LESSOR UPON LESSEE'S DEFAULT.
(a) Copy of Notice of Breach of Covenant or Default. Whenever
the Lessor, pursuant to this Lease Agreement, shall deliver any notice_ or
demand to the Lessee with respect to any breach of covenant or default by the
Lessee in any obligation of the Lessee under this Lease Agreement, the
Lessor shall, at the same time, furnish a copy of the written notice or demand
to any Mortgagee at the last address of the Mortgagee, if there be any, as
shown in the records of the Lessor. Conversely, the Lessee shall require that
any Mortgagee shall forward a similar written notice to Lessor in the event of
any alleged or declared default of the Lessee under any Mortgage permitted
under this Lease Agreement, or any other instrument in relation to it.
(b) Right of Lessor to Cure Breach or Default by Lessee. In the
event of any breach or default by the Lessee in its obligations or covenants
under this Lease Agreement, or under any Mortgage, the Lessor may, at its
option, and within a period of forty-five days of its receipt of notice from the
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Mortgagee as provided in Section 25.4(a) cure or remedy the breach or
default.
(c) Right of Mortgagee to Cure Breach or Default by Lessee. Any
permitted Mortgagee shall have the right, at its option and within any
applicable grace period to cure or remedy any breach of covenant or default
by the Lessee hereunder.
(d) Breach or Default of Mortgage. If the Lessee should breach any
covenant or otherwise default in its obligations or covenants under any
Mortgage and the Mortgagee shall declare a default and commence
foreclosure proceedings or other action in lieu of foreclosure or otherwise
seek to acquire the leasehold estate of the Lessee in the Demised Premises,
then in that event, the Mortgagee shall comply with the then applicable
provisions of this Lease Agreement.
ARTICLE XXVI
RESERVED
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ARTICLE XXVII
INVALIDITY OF PARTICULAR PROVISIONS
SECTION 27.1: INVALIDITY OF PROVISIONS. If any
provision of this Lease Agreement or the application of it to any Person or
circumstances shall to any extent be invalid or unenforceable, the remainder
of this Lease Agreement, or the application of such provision to Persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected, and each provision of this Lease Agreement shall be valid
and be enforced to the fullest extent permitted by law.
ARTICLE XXVIII
QUIET ENJOYMENT
SECTION 28.1: QUIET ENJOYMENT. The Lessor
acknowledges that the Lessee, upon paying the Rent and all Impositions and
other charges, and performing all the covenants and conditions of this Lease
Agreement, shall (subject to the matters and things specified as Permitted
Exceptions and the Lessor's rights specified in this Lease Agreement) lawfully
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and quietly occupy the Demised Premises during the term of this Lease
Agreement without hindrance or molestation by Lessor or any persons
claiming under the Lessor.
ARTICLE XXIX
LESSOR'S TITLE AND LIEN
SECTION 29.1: TITLE AND LIEN PARAMOUNT. The Lessor
shall have title to the Demised Premises and, upon termination of this Lease
Agreement, the remainder or residual interest in the Building and Demised
Premises paramount to all others. The Lessor's lien for Rent and other
charges subject to the rights of any Mortgagee under Article VI shall be
paramount to all other liens on the Demised Premises and the Building.
SECTION 29.2: LESSEE NOT TO ENCUMBER LESSOR'S
INTEREST. The Lessee shall have no right or power to and shall not in any
way encumber the title of the Lessor in and to the Demised Premises, except
as provided in Article VI or the title of the Lessor's remainder or residual
interest in the Hotel Building and/or the other Improvements. The fee simple
estate of the Lessor in the Demised Premises and the interest of the Lessor in
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the Hotel Building and other Improvements shall not be in any way subject to
any claim by way of lien or otherwise, whether claimed by operation of law
or by virtue of any express or implied lease or contract or other instrument
made by the Lessee and any claim to the lien or otherwise upon the Demised
Premises or in the Hotel Building and/or other Improvements arising from any
act or omission of the Lessee shall accrue only against the leasehold estate of
the Lessee in the Demised Premises and the Lessee's interest in the Hotel
Building and/or other Improvements and shall in all respects be subject to the
paramount rights of the Lessor in the Demised Premises and the Lessor's
remainder or residual interest in the Hotel Building and/or other
Improvements.
ARTICLE XXX
PLATS
SECTION 30.1: PLATS. If the Lessor in the reasonable exercise of
its judgment deems it necessary or desirable from time to time to have
recorded a subdivision or resubdivision plat or plats relating to some or all of
the Demised Premises (and which may include other land) the Lessee and any
Mortgagee of the Lessee when requested to do so by the Lessor shall join in
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the signing of any such plat provided the same does not materially impair the
rights of the Lessee, or any Mortgagee of the Lessee.
ARTICLE XXXI
LIMITATION OF LIABILITY
SECTION 31.1: LIABILITY AFTER OUSTER OF LESSEE. In
no case shall the Lessor be liable under any express or implied covenant of
this Lease Agreement for any damages whatsoever for the Lessee's ouster of
or by a third party except that loss, if any, provided for by the next
succeeding sentence. In the event the Lessee shall be evicted from
possession of and/or be prohibited from construction of the Improvements (in
the ordinary course of construction) upon the Demised Premises by reason of
any defect not specified as a Permitted Exception in the title of the Lessor to
the Demised Premises, the Lessee shall not be required to pay any Rent or
perform its other covenants under this Lease Agreement while it is so
deprived of possession of the Demised Premises; and the Lessor shall incur
no liability by the ouster beyond the loss of Rent while or because the Lessee
is so deprived of possession of the Demised Premises. If the Lessee has been
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so deprived of possession by reason of any such defect in title not specified
as a Permitted Exception for a period in excess of 365 days then either party
by notice to the other, at any time after that while Lessee continues to be so
deprived of possession, may terminate this Lease Agreement.
ARTICLE XXXII
ESTOPPEL CERTIFICATES
SECTION 32.1: ESTOPPEL CERTIFICATES. The Lessor and
the Lessee each agree at any time and from time to time, so long as this Lease
Agreement shall remain in effect, upon not less than ten days prior written
request by the other party, to execute, acknowledge and deliver to the other
party a statement in writing certifying that this Lease Agreement is
unmodified and in full force and effect or if modified, stating the
modifications and describing the instrument so modifying this Lease
Agreement, and the dates to which the Rent and other charges have been paid
in advance, if any, and stating whether any default under the terms of this
Lease Agreement is known by, or any notice of default has been served by,
the party giving the certificate, it being intended that any statement delivered
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pursuant to this Article may be relied upon by any prospective purchaser of
the Lessor's fee simple interest in the Demised Premises or of the Lessor's
remainder interest in the Demised Premises or may be relied upon by any
Mortgagee or assignee of any Mortgage upon the fee of the Demised
Premises or upon the Lessor's remainder interest in the Demised Premises or
by any permitted assignee or Mortgagee of the Lessee's leasehold estate or
the Lessee's interest in the Demised Premises or by any permitted assignee or
Mortgagee of the Lessee's leasehold estate or the Lessee's interest in the
Demised Premises or by a Sublessee of all or any part of the Demised
Premises as the case may be.
ARTICLE XXXIII
REMEDIES CUMULATIVE
SECTION 33.1: REMEDIES CUMULATIVE. No remedy
conferred upon or reserved to the Lessor or Lessee shall be considered
exclusive of any other remedy, but shall be cumulative and shall be in
addition to every other remedy given under this Lease Agreement or existing
at law or in equity or by statute; and every power and remedy given by this
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Lease Agreement to the Lessor or Lessee may be exercised from time to time
and as often as occasion may arise or as may be deemed expedient by the
Lessor or Lessee. No delay or omission of Lessor or Lessee to exercise any
right or power arising from any default shall impair any right or power, nor
shall it be construed to be a waiver of any default or any acquiescence in it.
SECTION 33.2: WAIVER OF REMEDIES NOT TO BE
INFERRED. No waiver of any breach of any of the covenants or conditions
of this Lease Agreement shall be construed to be a waiver of any other breach
or to be a waiver of, acquiescence in, or consent to any further or succeeding
breach of the same or similar covenant or condition.
SECTION 33.3: RIGHT TO TERMINATE NOT WAIVED.
Neither the rights given to receive, sue for or distrain from any Rent, moneys
or other payments, or to enforce any of the terms of this Lease Agreement, or
to prevent the breach or nonobservance of it, nor the exercise of any such
right or of any other right or remedy shall in any way impair or toll the right
or power of the Lessor to declare ended the term granted and to terminate this
Lease Agreement because of any Event of Default.
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ARTICLE XXXIV
SURRENDER AND HOLDING OVER
SECTION 34.1: SURRENDER AT END OF TERM. On the last
day of the last Lease Year of the original term, or on the earlier termination of
the term, the Lessee shall peaceably and quietly leave, surrender and deliver
the entire Demised Premises to the Lessor, together with the Parking Spaces
and the Hotel Building and all alterations, changes, additions and other
Improvements made upon the Demised Premises, and together with any and
all Improvements, furniture, trade fixtures, machinery, equipment or other
personal property of any kind or nature, which the Lessee may have installed
or affixed to the Demised Premises or Building for use in connection with the
operation and maintenance of the Deinised Premises and Hotel Building and
other Improvements (whether or not the property is deemed to be fixtures), in
good, substantial and sufficient repair, order and condition, subject to among
other things, casualty losses and condemnations, reasonable use, wear and
tear excepted, free and clear of any and all mortgages, liens, encumbrances
and claims. At the time of the surrender the Lessee shall also surrender any
and all security deposits and rent advances of sublessees made pursuant to
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Article XXXV. If the Demised Premises and Hotel Building and other
Improvements are not so surrendered, the Lessee shall repay the Lessor for
all expenses which the Lessor shall incur by reason of it, and in addition the
Lessee shall indemnify, defend and hold harmless the Lessor from and against
all claims made by any succeeding Lessee against the Lessor, founded upon
delay occasioned by the Failure of the Lessee to surrender the Demised
Premises and Hotel Building and other Improvements.
SECTION 34.2: RIGHTS UPON HOLDING OVER. At the
termination of this Lease Agreement by lapse of time or otherwise, the Lessee
shall yield up immediate possession of the Demised Premises to the Lessor
and, failing so to do, agrees, at the option of the Lessor, to pay to the Lessor
for the whole time such possession is withheld a sum per day equal to two
hundred percent times 1/365th of the aggregate of the Rent paid or payable to
Lessor for the current Lease Agreement Year as set forth in Article V.
The provisions of this Article shall not be held to be a waiver by the
Lessor of any right of entry or reentry as set forth in this Lease Agreement,
nor shall the receipt of a sum, or any other act in apparent affirmance of the
tenancy, operate as a waiver of the right to terminate this Lease Agreement
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and the term granted for the period still unexpired for any breach of the
Lessee under this Lease Agreement.
ARTICLE XXXV
SUBLEASES
SECTION 35.1: LIMITATIONS ON SUBLEASES. All
Subleases entered into demising all or any part of the Demised Premises shall
be expressly subject and subordinate to this Lease Agreement and shall
contain covenants on the part of the Sublessee that (a) neither the termination
of this Lease Agreement nor the institution of any suit, action or proceeding
(other than that of eminent domain) by Lessor to recover possession of the
Demised Premises or to realize possession of Lessee's leasehold estate shall,
by operation of law or otherwise, result in the cancellation or termination of
the Sublease, or of the obligations of the Sublessee, and (b) if Lessor
terminates this Lease Agreement any prior assignment of Lessee's interest in
the Sublease or the rents due under the Sublease shall automatically terminate
and Lessor shall be sublessor under the Sublease and the Sublessee will be
deemed to have attomed to Lessor (subject to the rights of any Mortgagee
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hereunder) for the balance of the term of the Sublease. If any Sublessee is
not in default of its Sublease, Lessor shall not have the right to disturb its
possession or terminate the Sublease other than by action in eminent domain.
If requested to do so by Lessee or any Sublessee, Lessor will deliver a written
certificate reciting the terms contained in the last sentence.
No Sublease entered into by Lessee demising any pan of the Demised
Premises shall permit or require the payment of rent in advance for a period
longer than three months or the application of any security deposit in payment
of rent in advance, nor shall any Sublease (including all agreements made in
connection therewith) contain any provision permitting the Sublessee to set
off against the rent due under the Lease Agreement any claims against
Lessee. Lessee agrees not to accept or receipt for any advance payment of
rent which is not permitted as provided.
Lessor acknowledges that neither the termination of this Lease
Agreement nor the institution of any suit, action or proceeding (other than that
of eminent domain) by Lessor to recover possession of the Demised Premises
or to realize possession of Lessee's leasehold estate shall, by operation of law
or otherwise, result in the cancellation or termination of the Sublease, or of
the obligations of the Sublessee. Upon Lessor's succeeding to the interest of
Lessee under any Sublease, unless Lessor shall have actually received from
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Lessee any security deposit or advance rental of a Sublessee, Lessor shall not
be liable for the refund or application of any such security deposit or advance
rental.
SECTION 35.2: RENT ROLL AND SUBLEASE DATA. All
Subleases shall contain a covenant on the part of the Sublessee to the effect
that after Lessee shall have been notified of an Event of Default under this
Lease Agreement and provided the Sublessee is given notice of the default,
the Sublease shall
not be terminated or
canceled (except on account
of
Sublessee's default)
without the written
consent of Lessor, and that
the
Sublease shall not be surrendered, modified or amended so as to reduce,
directly or indirectly, either the term of the Sublease or the rent payable
without the written consent of Lessor. No Sublease shall be made for a term
extending beyond the last day of the term of this Lease Agreement.
Upon
reasonable
request of Lessor during each Lease Year,
Lessee
shall deliver
to Lessor
(a) a copy of each cornmercial or business
leases
affecting any part of the Demised Premises which have not been previously
furnished, (b) a copy of the standard lease form used for leasing any part of or
all of the Demised Premises, and (c) a complete rent roll of the Lessee's
Sublessees showing as of the beginning of such Lease Year the name of each
Sublessee, the space occupied by such sublessee, the rent payable by the
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Sublessee, the date to which the rent has been paid and the date of the last
day of the term of the Sublease. Lessor shall retain and maintain all of the
foregoing information in strict confidence, except to the extent prohibited by
law.
SECTION 35.3: ASSIGNMENT OF LEASE AGREEMENTS
TO LESSOR FOR SECURITY. Subject to the rights of any Mortgagee
described herein, Lessee assigns to the Lessor all Subleases and subtenancies
and/or license and concession agreements to be made on the Demised
Premises, as well as all rents or other sums of money which may become due
and payable to the Lessee, and all security at any time deposited for the
payment of rent and the performance of any other terms of Subleases,
subtenancies and/or license and concession agreements, but the effective date
of assignment shall be the date of the happening of an Event of Default under
the provisions of this Lease Agreement. From and after any Event of Default
and until it is cured, any Subleases or subtenancies and license and
concession agreements may not be canceled or modified without the written
consent of the Lessor, and any cancellation or modification, whether by the
Lessee or Mortgagee, shall be of no force or effect. Upon the curing of any
Event of Default, the assignment shall no longer be effective unless and until
the happening of another Event of Default. Notwithstanding anything to the
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contrary contained in this Section the assignment by Lessee to Lessor shall be
junior to any similar assignments of Subleases and other agreements and
rentals or other monies to any Mortgagee of Lessee as long as the Lessee's
Mortgagee is curing any Event of Default of Lessee or is otherwise diligently
proceeding in good faith to enforce its foreclosure remedy and is performing
its other obligations in accordance with the provisions of this Lease
Agreement. During the time the Mortgagee is so proceeding, all rights of
Lessor acquired under this Section by reason of assignment by Lessee are
subject and subordinate to all rights of the Mortgagee acquired by way of
assignment by Lessee to Mortgagee as additional security of all Subleases
and subtenancies and/or license and concession agreements to be made of the
Demised Premises or the Improvements, and of all rents and other sums of
money which may become due and payable to the Lessee, and all security at
any time deposited for the payment of rent and the performance of any other
terms of the Sublease, subtenancies and/or license and concession
agreements.
No collection or attempted collection of the rent by the Lessor from
any assignee, subtenant or other occupant shall be deemed a waiver of any of
the provisions of this Article XXXV including, without limitation, any
applicable covenant against assignment, mortgage or hypothecation or
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transfer of this Lease Agreement or against subletting, or a release of Lessee
from the further performance of its obligations under this Lease Agreement.
Lessor is authorized and directed, after first deducting any and all costs and
expenses of collection, to apply all rents that it may collect under the
assignment towards the maintenance and operation of the Improvements and
Demised Premises, the performance of Lessee's covenants, and the payment
to Lessor of any and all sums that may be due under any provisions. In the
event that an assignment becomes effective and operative as above provided,
Lessee authorizes Lessor, in the name of Lessee, or otherwise as Lessor may
elect, to take all necessary steps and legal proceedings (whether by
nonjudicial proceedings, ejectment or other legal or equitable suit or
proceedings) to collect the rent and enforce the performance of the terms,
covenants and conditions of the Subleases and subtenancies and/or license
and concession agreements, or to restrain their breach, or in the event of a
breach, to secure the removal of any Sublessees, subtenants, licensees or
concessionaires from the Demised Premises and/or all of any part of it; and
for this purpose Lessee consents to the use of its name by Lessor.
ARTICLE XXXVI
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FINANCIAL STATEMENTS
SECTION 36.1: FINANCIAL STATEMENTS. At all times
durine the term hereof, the Lessee shall prepare and maintain balance sheets
and statements of income and expense relating to the operation of all of the
Demised Premises dulv reviewed by a firm of independent certified public
accountants and prepared in accord with izenerally accepted accounting
principles. At all times during the term hereof. Lessee shall permit the Lessor
and/or Lessor's agents access to and the abilitv to inspect and audit the
balance sheets and statements of income and expense which it is required to
prepare and maintain pursuant to the terms hereof.
ARTICLE XXXVII
MODIFICATION
SECTION 37.1: MODIFICATION. None of the covenants, terms
or conditions of this Lease Agreement to be kept and performed by either
party to this Lease Agreement shall in any manner be waived, modified,
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changed or abandoned except by a written instrument duly signed,
acknowledged and delivered by both Lessor and Lessee.
ARTICLE XXXVIII
CONVEYANCE BY LESSEE TO LESSOR
SECTION 38.1: CONVEYANCE BY LESSEE TO LESSOR.
Effective upon the termination of this Lease Agreement, whether by passage
of time or otherwise, the Lessee, in consideration of the granting of this Lease
Agreement by the Lessor to the Lessee, grants and conveys unto the Lessor.
and Lessor's legal representatives and assigns forever the Demised Premises,
this conveyance to be free and clear of all liens and encumbrances other than
Permitted Exceptions, applicable building and zoning ordinances, easements
now of record, and the lien of any real estate taxes assessed but not yet due
and payable.
ARTICLE XXXIX
APPLICABLE LAW
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SECTION 39.1: LAW. This Lease Agreement shall be construed
and enforced in accordance with the laws of the State of Arkansas.
ARTICLE XL
NOTICES
SECTION 40.1: MANNER OF MAILING NOTICES. In every
case where under any of the provisions of this Lease Agreement or otherwise
it shall or may become necessary or desirable to make or give any declaration
or notice of any kind to the Lessor or the Lessee, it shall be sufficient if a
copy of any declaration or notice is sent by United States certified or
registered mail, postage prepaid, return receipt requested, addressed: If to
Lessor at:
Mayor and City Manager
City Hall
Little Rock, Arkansas 72201
with a copy to: City Clerk at address listed above; and if to Lessee, at:
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Each party from time to time may change its address for purposes of
t
receiving declarations or notices by giving notice of the changed address, to
become effective ten days following the giving of notice.
SECTION 40.2: NOTICE TO MORTGAGEES. All notices,
demands or requests which may be required to be given by the Lessor or the
Lessee to any Mortgagee shall be sent in writing, by United States registered
or certified mail, postage prepaid, addressed to the Mortgagee at a place as
the Mortgagee may from time to time designate in a written notice to the
Lessor and Lessee. Copies of all notices shall simultaneously be sent to the
other of the Lessor or the Lessee, as the case may be.
SECTION 40.3: SUFFICIENCY OF SERVICE. Service of any
demand or notice as in this Article provided shall be sufficient for all
purposes.
SECTION 40.4: WHEN NOTICE DEEMED GIVEN OR
RECEIVED. Whenever a notice is required by this Lease Agreement to be
given by any party to the other party or by any party to a Mortgagee, the
notice shall be considered as having been given when a registered or certified
notice is placed in the U.S. Post Office mail as provided by this Article and
shall be deemed received on the third business day thereafter and for all
purposes under this Lease Agreement of starting any time period after notice,
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the time period shall be conclusively deemed to have commenced three
business days after the giving of notice and whether or not it is provided that
a time period commences after notice is given or after notice is received.
ARTICLE XLI
MISCELLANEOUS PROVISIONS
SECTION 41.1: CAPTIONS. The captions of this Lease
Agreement and the index preceding it are for convenience and reference only
and in no way define, limit or describe the scope or intent of this Lease
Agreement, nor in any way affect this Lease Agreement.
SECTION 41.2: CONDITIONS AND COVENANTS. All the
provisions of this Lease Agreement shall be deemed and construed to be
"conditions" as well as "covenants," as though the words specifically
expressing or importing covenants and conditions were used in each separate
provision.
SECTION 41.3: ENTIRE AGREEMENT. This Lease Agreement
contains the entire agreement between the parties and shall not be modified in
any manner except by an instrument in writing executed by the parties or their
respective successors or assigns in interest.
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SECTION 41.4: TIME OF ESSENCE AS TO COVENANTS OF
LEASE AGREEMENT. Time is of the essence as to the covenants in this
Lease Agreement.
ARTICLE XLII
SHORT FORM LEASE AGREEMENT
SECTION 42.1: SHORT FORM LEASE AGREEMENT. This
Lease Agreement shall not be recorded, but the parties agree, at the request of
either of them, to execute and deliver a Memorandum of Lease Agreement for
recording, containing the names of the parties, the legal description of the
Demised Premises, the term of the Lease Agreement and any other pertinent
provisions for which notice should be given to third parties. The Lessee
agrees to bear the cost of recording the Short Form Lease Agreement.
ARTICLE XLIII
Covenants to Bind and Benefit
Respective Parties and to Run with the
Demised Premises
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SECTION 43.1: COVENANTS TO RUN WITH THE
DEMISED PREMISES. All covenants, agreements conditions and
undertakings in this Lease Agreement shall extend and inure to the benefit of
and be binding upon the successors and assigns of each of the parties, the
same as if they were in every case named and expressed, and they shall be
construed as covenants running with the Demised Premises. Wherever in this
Lease Agreement reference is made to any of the parties, it shall be held to
include and apply to, wherever applicable, also the officers, directors,
successors and assigns of each party, the same as if in each and every case so
expressed.
SECTION 43.2: INTEREST IN DEPOSITS AUTOMATICALLY
TRANSFERRED. The sale, conveyance or assignment of the interest of the
Lessee (pursuant to the terms of this Lease Agreement) or of the Lessor in
and to this Lease Agreement and in and to the shall act automatically as a
transfer to the assignee of the Lessor or of the Lessee, as the case may be, of
its respective interest in any funds on deposit with and held by the
construction lender and the Lessor, and every subsequent sale, conveyance or
assignment by any assignee of the Lessor or of the Lessee also shall act
automatically as a transfer of their respective rights to the deposits with the
construction lender and the Lessor to the subsequent assignee.
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� M M M
ARTICLE XLIV
0
WAIVER OF REDEMPTION
M M M M
ME
SECTION 44.1: WAIVER OF REDEMPTION. The Lessee, for
itself and for all persons claiming through or under it, expressly waives any
and all rights and equities, whether created by operation of law or by any
present or future statute or otherwise, to redeem the leasehold estate of the
Lessee in the Demised Premises or to any new trial in any action of ejectment
or forcible detainer under any provision of law after reentry by the Lessor
after a final judgment or court order, or after any warrant to dispossess or writ
of restitution after a final nonappealable judgment in eminent domain,
ejectment, or forcible detainer. If the Lessor shall have acquired possession
of the Demised Premises by summary proceedings, it shall be deemed a
reentry within the meaning of that word as used in this Lease Agreement.
The foregoing provisions and rights of Lessee or Lessor are junior and
subordinate to the rights of any Mortgagee described in Section 6.8 and will
not apply to the Mortgagee or to the possession of the Demised Premises by
the Mortgagee.
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Construct and Lease, Parldng and
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ARTICLE XLV
NONPAYMENT OF REAL ESTATE TAXES
SECTION 45.1: NONPAYMENT OF REAL ESTATE TAXES.
In the event that the real estate taxes on the Demised Premises are not paid by
the Lessee within ten days from the date that the taxes are due and owing
during any time that tax increment allocation obligations of the Lessor are
outstanding during the term of this Lease Agreement or the term of any
applicable tax increment financing program, the Lessor may, at its option (and
in addition to, but not in limitation of, any other right or remedy under this
Lease Agreement) ------------------- --------- ------
The amounts paid by the Lessor, pursuant to the provisions of the
preceding Subsections, shall bear interest from the date of payment at a rate
equal to the Prime Interest Rate in effect from time to time until the Lessor is
paid in full. The Lessor shall also have a lien upon the Demised Premises for
all the amounts paid pursuant to the provisions of this Lease Agreement,
together with interest and all expenses incurred in the recovery of the amounts
from the
Lessee. The
Lessor
may bring actions appropriate to enforce
payment
of the amounts
by the
Lessee and/or foreclose its lien upon the
Demised Premises.
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Construct and Lease, Parking and
Concession Agreement:
ARTICLE XLVI
GENERAL PROVISIONS
[ - -><---�
586
SECTION 46.1: CONFLICT OF INTEREST. No member,
official, or employee of the Lessor shall have any personal interest, direct or
indirect, in this Lease Agreement, nor shall any member, official, or employee
participate in any decision relating to this Lease Agreement which affects his
or her personal interests or the interests of any other entity or Person in which
he or she is, directly, or indirectly, interested. No member, official, or
employee of the Lessor shall be personally liable to the Lessee, its successors
and assigns, or anyone claiming by, through or under the Lessee or any
successor in interest to the Demised Premises, in the event of any default or
breach by the Lessor or for any amount which may become due to the Lessee,
its successors and assigns, or any successor in interest to the Demised
Premises, or on any obligation under the terms of this Lease Agreement.
SECTION 46.2: BROKERAGE. The Lessee and the Lessor each
represent and warrant to the other that neither has dealt with any broker or
finder in connection with the transactions contemplated and each agrees to
indemnify, defend and hold the other harmless of and from any and all
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Construct and Lease, Parking and
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manner of claims, including, but not limited to, reasonable attorneys' fees and
expenses, incurred by the other party and arising out of any claim by any
broker or finder if it is ultimately determined that either party has dealt in
contravention of its representation and warranty.
SECTION 46.3: ASSIGNABILITY AND BINDING EFFECTS.
Subject to all provisions respecting the rights of assignment of Subleasing,
this Lease Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto.
SECTION 46.4: DUPLICATE ORIGINALS. This Lease
Agreement may be executed in any number of copies, each of which shall
constitute an original of this Lease Agreement. The warranties,
representations, agreements and undertakings shall not be deemed to have
been made for the benefit of any Person or entity, other than the Parties.
SECTION 46.5: EQUAL EMPLOYMENT OPPORTUNITIES.
The Lessee agrees that during construction of the Improvements: (a) it will
not discriminate against any employee or applicant for employment because
of race, creed, color or national origin and will take affirmative steps to
assure that applicants are employed and that employees are treated during
employment without regard to race, creed, color or national origin; (b) post in
conspicuous places, available to employees and applicants for employment,
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Construct and Lease, Parking and
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bm
notices the form of which is to be provided by the Lessor setting forth
provisions of this nondiscrimination clause; (c) in all solicitations or
advertisements for employees placed by or on behalf of the Lessee state that
all qualified applicants will receive consideration for employment without
regard to race, creed, color or national origin; and (d) to send to each labor
union or representative or workers with which the construction contractor has
a collective bargaining agreement or other contract or understanding a notice,
the form of which is to be provided by the Lessor, advising the union or
representative of the Lessee's commitments and posting copies of the notice
in conspicuous places available to employees and applicants for employment.
SECTION 46.6: DECLARATION OF TERMINATION. With
respect to Lessor's rights to obtain possession of the Demised Premises or to
revest title in itself with respect to the leasehold estate of the Lessee in the
Demised Premises the Lessor shall have the right to institute such actions or
proceedings as it may deem desirable to effectuate its rights including,
without limitation, the right to execute and record or file with the Recorder of
Deeds of Pulaski County, Arkansas, a written declaration of the termination
of all rights and title of Lessee in the Demised Premises and the revesting of
any title in the Lessor as specifically provided in this Lease Agreement.
SECTION 46.7: AUTHORITY.
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Construct and Lease, Parking and
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(a) The Lessor and Lessee represent to each other as follows:
(1) That each has, and has exercised, the required
corporate and municipal power and authority and has complied
with all applicable Legal Requirements necessary to adopt,
execute and deliver this Lease Agreement and perform its
obligations;
(2) That this Lease Agreement has been duly executed
and delivered by each and constitutes a valid and binding
obligation of each enforceable in accordance with its terms,
conditions, and provisions; and
(b) Lessor specifically represents that the execution and delivery of
this Lease Agreement has been duly authorized and is in accordance with and
pursuant to all applicable laws and ordinances (including without limitation
those of the Lessor) and the Constitution of the State of Arkansas and is
effective to vest in the Lessee the rights, titles, interests and ownership
provided for and due Lessor under the terms, conditions and provisions of this
Lease Agreement.
(c) Lessor does hereby nominate, constitute, appoint and delegate to
the Little Rock Advertising and Promotion Commission and to its Executive
Director the responsibilities and duty to act on behalf of the Lessor, in all
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matters involving the obligations of the Lessor hereunder, including but not
limited to, performing each and every one of the Lessor's obligations
hereunder and exercising each and every option and enforceable right that the
Lessor has or is granted herein and enforcing same and in furtherance of this
delegation, the Lessor does hereby duly constitute, appoint and empower the
Little Rock Advertising and Promotion Commission to act for and on behalf
of the City of Little Rock, Lessor hereunder.
In witness, the Lessor has caused this Lease Agreement to be executed
in its name and on its behalf by the Mayor and attested to by the City Clerk of
the City of Little Rock, Pulaski County, Arkansas, and the Lessee has signed
as of the date and year first above written.
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