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ORDINANCE NO. 11,515
AN ORDNCE AUTHORIZING A LEASE AND AGREE-
MENT BY AND BETWEEN THE CITY OF LITTLE ROCK,
ARKANSAS AS LESSOR AND STRICKLAND TRANSPORTATION
COMPANY, INC., A TEXAS CORPORATION, AS LESSEE,
IN SUBSTANTIALLY THE FORM AND WITH SUBSTANTIALLY
THE CONTENTS SET FORTH IN AND MADE A PART OF THIS
ORDINANCE; AUTHORIZING THE EXECUTION AND DELIVERY
OF SAID LEASE AND AGREEMENT; PRESCRIBING OTHER
MATTERS PERTAINING THERETO; AND DECLARING AN
EMERGENCY.
BE IT ORDAINED by the Board of Directors of the City
of Little Rock, Arkansas:
Section 1. That there be, and there is hereby, authorized
the execution and delivery of a Lease and Agreement wherein the
City of Little Rock, Arkansas (called "City ") is Lessor and Strick-
land Transportation Company, Inc., a Texas corporation (called
"Strickland ") is Lessee in substantially the form and with substant-
ially the contents hereafter set forth, and the Mayor and City Clerk
be, and they are hereby, authorized to execute, acknowledge and
deliver said Lease and Agreement nor and on behalf of the City.
The form and contents of said Lease and Agreement, which are here-
by approved and which are made a part hereof, shall be substantially
as follows:
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LEASE AND AGREEMENT
THIS LEASE AND AGREEMENT made this day of ,
1964 by and between the City of Little Rock, Arkansas (herein re-
ferred to as "Lessori0) and Strickland Transportation Company, Inc.,
a Texas corporation, but authorized to do business in the State of
Arkansas (herein referred to as P1Lessee ");
W I T N E S S E T H:
WHEREAS Lessor is a duly organized and existing munici-
pality, a city of the first class, under the laws of the State of
Arkansas with full and lawful power and authority to enter into
this Lease and Agreement, acting by and through its Board of
Directors, in the public interest and for a public purpose, in
securing and developing industry, providing employment and adding to
the welfare and propperity of the Lessor and its inhabitants, all
pursuant to the provisions of Act No. 9 of the First Extraordinary
Session of the Sixty- Second General Assembly of the State of Ark-
ansas, approved January 21, 1960, as amended (herein called 7 °Act
No. 9 "); and
WHEREAS Lessee is authorized under its Articles of In-
corporation and By -Laws and under the laws of the State of its
incorporation to enter into this Lease and Agreement and to perform
all covenants and obligations on its part to be performed under and
pursuant to this Lease and Agreement; and
WHEREAS Lessee is not prohibited under the terms of any
outstanding trust indentures, deeds of trust, mortgages, loan
agreements or other instruments or evidences of indebtedness of
whatever nature from entering into this Lease and Agreement and
discharging and performing all covenants and obligations on its part
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to be performed under and pursuant to this Lease and Agreement and
affirmatively so represents to Lessor; and
WHEREAS Lessor and Lessee hereby recite knowledge that
Lessor has undertaken to furnish the permanent financing of the
Project (hereafter described) by the issuance of Industrial Develop-
ment Revenue Bonds under Act No. 9 in the amount of One Million
Two Hundred Thousand Dollars ($1,200,000), herein referred to as
the f°bonds ". that pursuant to its undertaking to furnish said per-
manent financing the Lessor, as required by Act No. 9, submitted to
its electors the question of issuing the bonds at a special election
called for the purpose and held on the 28th day of April, 1964, that
the electors approved the issuance cf the bonds at the special elec-
tion, and that the Lessor will use the proceeds of the bonds to
furnish the permanent financing of the Project costs, hereafter
defined; and
WHEREAS Lessor and Lessee recite knowledge that a bank or
trust company will be Trustee for the holders and registered owners
of the bonds, with the original TL-l-stee being Mercantile National
Bank at Dallas, Dallas, Texas, and the bonds will be secured by a
Trust Indenture executed and delivered by and between Lessor and the
Trustee (the Trustee will be herein referred to as the "Trustee"
or the "Trustee for the bondholders ", and the Trust Indenture, which
will mortgage the Project as security for the payment of the
principal of and interest on the bonds, assign and pledge the lease
rentals hereunder and the revenues specified in the Trust Indenture
to the payment of the principal of and interest on the bonds and
otherwise state the terms and conditions upon which the bonds are
issued and secured, will be herein referred to as the
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"Trust Indenture" or the "Indenture "); and
WHEREAS in reliance upon the proposal that Lessor would
furnish the permanent financing, in the manner hereafter described,
of the cost of acquiring lands and constructing thereon a building
and improvements and facilities (herein sometimes referred to as
the "Project"), and lease the Project to Lessee, in order to under-
take and maintain a construction schedule essential to the programmed.
industrial operations of Lessee (a vital consideration in the loca-
tion of the Project in Lessor) and in order to expedite the antici-
pated public benefits hereunder by avoiding delays which would
otherwise occur before commencement of construction while procedural
requirements were being complied with and the funds made available
to Lessor, Lessee has acquired the necessary lands from Industrial
Development Company of Little Rock at a price and upon terms and
conditions satisfactory to Lessor and Lessee, and Lessee has entered
into an engineering contract for the preparation of plans, specifica-
tions and drawings (with the engineers involved being duly licensed
under the laws of the State of Arkansas), which will be herein
referred to as the "Engineering Contract", and has incurred other
costs and expenses in connection with the Project (all costs and
expenditures heretofore made by Lessee as hereinabove described
being sometimes.hereinafter referred to as "Reimbursable Project
Costs");
NOW, THEREFORE, for valuable consideration, receipt of
which is hereby acknowledged by Lessor and Lessee, and in considera-
tion of the mutual benefits and covenants herein contained, Lessor
and Lessee agree as follows;
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ARTICLE I
CONSTRUCTION OF PROJECT
Section 101. Concurrently with the delivery of this Lease
and Agreement:
(a) Lessor has acquired the fee simple title to the lands,
hereafter referred to in Section 201 of this Lease and Agreement;
(b) Lessee has assigned to Lessor the Engineering Con-
tract and the benefit of all credits and moneys theretofore accrued
to and paid under the Engineering Contract by Lessee, and Lessor has
and does hereby assume and agree to perform the hereafter accruing
obligations of the owner under the Engineering Contract, and the
Engineering Contract has been initialed by a duly designated repre-
sentative of the parties hereto and a true copy delivered to each
party, and such initialed copies are by reference made a part of this
Lease and Agreement; and
(c) Lessor has paid to Lessee and Lessee acknowledges
receipt of the sum of r
DOLLARS ($ ) as full consideration for the acquisition of
the lands and full reimbursement to Lessee for moneys theretofore ex-
pended by Lessee for Reimbursable Project Costs.
Lessor agrees to construct a building, improvements and
facilities on said lands in accordance with the plans, specifica-
tions and drawings prepared pursuant to the Engineering Contract,
and, in this regard, has advertised and awarded a construction con-
tract to Matson, Inc., Little Rock, Arkansas, for the construction
of the Project. The contractor, contract price and contract terms
and provisions have been approved by the Lessee and the construction
contract initialed by a duly designated representative of
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Lessee and an initialed copy delivered to each party, and such
initialed copies are by reference made a part of this Lease and
Agreement. Lessor covenants to cause the Project to be constructed
in accordance with the Construction Contract and to pay for the same
as provided in this Article I.
Lessor shall obtain all necessary approvals from any and
all governmental agencies requisite to the construction and the
Project shall be constructed and completed in compliance with all
federa, state and local laws, ordinances and regulations applicable
thereto. Upon completion of the Project, Lessor will furnish to
Lessee all required occupancy permits and authorizations from appro-
priate authorities, if any be required, authorizing the occupancy and
use of the Project by Lessee for the purposes contemplated by Lessee.
In this regard, it is understood that the Lessee proposes to operate
the Project for trucking and transportation operations and activi-
ties pertaining thereto and such other uses as Lessee shall deter-
mine. Lessor shall not amend, modify or authorize or undertake any
changes, alterations, extras or additions to or from the Construction
Contract until the same shall have been submitted to Lessee and until
both Lessor and Lessee, through their designated representatives,
shall have agreed in writing to such changes, alterations, extras or
additions. Lessor shall, however, cause to be made and shall author-
ize all reasonable requests by Lessee for changes, or for additional
or extra work. All requests, approvals and agreements required on
the part of Lessor and on the part of Lessee shall be in writing
signed by a duly authorized representative of the party making such
request, entering into such agreement or granting such approval.
With reference thereto, the duly designated representative of Lessor
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is the City Manager of Lessor, and concurrently with the delivery of
this Lease and Agreement, Lessee shall furnish Lessor the name and
signature of the duly designated representative or representatives
(Lessor may have more than one representative and may change the
representative or representatives from time to time with each change
to be in a writing forwarded to Lessor).
Section 102. Lessor and Lessee agree that the project
costs, hereafter defined, will not exceed the sum of One Million Two
Hundred Thousand Dollars ($1,200,000) plus any income from investments
of moneys in the Construction Fund, hereafter referred to, and less
any losses on investments of moneys in the Construction Fund, but that
if the project costs should exceed said amount, the Project will be
completed and Lessee hereby agrees to pay, at no cost or expense to
Lessor, the entire amount of the excess, if any, of the project
costs over and above said amount. Project costs, as that term is
used in this Lease and Agreement, shall include all costs and ex-
penses of every nature incurred in acquiring and constructing the
Project, all costs and expendituras incidental thereto, all reason-
able costs and expenses incurred in connection with the issuance of
the bonds, and the amount necessary to provide for debt service on
the bonds until lease rentals are available to pay the principal of
and interest on the bonds as the same become due and payable,
including, without limitation, the following:
(a) The amount paid to Lessee under the provisions of
Section 101(c) of this Lease and Agreement;
Contract;
(b) All amounts paid by Lessor under the Construction
(c) Amounts paid by Lessor for extras, changes or addi-
tions agreed to by Lessor and Lessee in accordance with the pro-
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visions of Section 101;
(d) Debt service on the bonds until lease rentals are
available under the terms of this Lease and Agreement in sufficient
amounts to provide for the payment of the principal of and interest
on the bonds until the same become due and payable;
(e) All reasonable costs and expenses incurred by Lessor
in the approval, authorization and issuance of the bonds; and
(f) Such other and additional fees, costs, expenses and
expenditures of whatever nature incidental or pertaining to the
Project as may from time to time be agreed upon in writing by Lessor
and Lessee, in accordance with the provisions of Section 101, as
constituting part of the project costs.
Lessor and Lessee agree that, concurrently with the de-
livery of the bonds, the proceeds will be handled as follows:
(1) The amount called for by Section 101(c) hereof
shall be disbursed to Lessee; and
(2) The remainder of the proceeds shall be deposited in
a Construction Fund to be establi6i7.ed by the Lessor pursuant to the
terms of the Trust Indenture.
It shall be provided in the Trust Indenture (the form
and contents of which shall be submitted to and must be approved by
the Lessee) that the moneys in the Construction Fund shall be dis-
bursed solely for the payment of project costs, and that said moneys,
while in the Construction Fund, shall be secured, invested and dis-
bursed in strict accordance with the provisions of the Trust In-
denture pertaining thereto. Any amount remaining in the Construction
Fund after payment of all project costs shall be transferred to and
deposited in the Bond Fund and up to but not exceeding the sum of
$60,000 shall be placed in a debt service reserve therein under and
pursuant to appropriate provisions in the Trust Indenture, and the
amount thereof in excess of $60,000, if any, shall be deposited in
and remain in the Bond Fund and Lessee shall be credited with said
amount against Lessee's basic rent obligations set forth in
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considered part of the project costs as defined in Section 102, and
Lessor agrees that the Lessee may, from time to time, in its own
name, or in the name of Lessor, take such action as may be necessary
or advisable, as determined by Lessee, to insure the construction
of the Project in accordance with the terms of the Construction
Contract, to insure the peaceable and quiet enjoyment of the leased
premises for the term of the Lease and Agreement, and to insure the
performance by Lessor of all covenants and obligations of Lessor
under this Lease and Agreement, but with all costs and expenses in-
curred by Lessee in connection therewith to be considered as part
of the project costs as defined in Section 102.
ARTICLE II
TERM OF LEASE AND RENTAL
Section 201. Lessor, for and in consideration of the
rents, covenants and agreements herein reserved, mentioned and con-
tained, on the part of Lessee to be paid, kept and performed, agrees
to and does hereby lease to Lessee, and Lessee agrees to, and does
hereby, lease, take and hire from Lessor, subject to the terms,
conditions and provisions of this Lease and Agreement expressed,
the following:
(a) The lands situated in Pulaski County, Arkansas,
described in Exhibit A attached hereto and made a part hereof.
(b) The building, improvements and facilities erected or
at any time hereafter erected and installed on the lands described
in (a) above, pursuant to the terms of this Lease and Agreement.
(c) All accretions, easements, rights of way and
appurtenances belonging or in any wise appertaining to the lands and
improvements described in (a) and !b) above.
The properties described in (a), (b) and (c) above are
herein collectively referred to as the "leased premises ".
TO HAVE AND TO HOLD the leased premises unto the Lessee
for the term of this Lease and Agreement as hereafter set forth.
Section 202. The initial term of this Lease and Agreement
shall commence June 1, 1964 and shall end at midnight Movembe— I J954.
Section 203. (a) Basic Rent.
(1) Subject to the credit provided for in Section.102,
Lessee covenants to pay Lessor, in the manner hereafter set forth
in Section 204, basic annual rent as follows, payable semiannually
on the dates and in the amounts indicated:
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April 20, 1965
October 20 ", 1965
April 20, 1966
October 20, 1966
April 20, 1967
October 20, 1967
April 20, 1968
October 20, 1968
April 20, 1969
October 20, 1969
April 20, 1970
October 20, 1970
April 20, 1971
October 20, 1971
April 20, 1972
October 20, 1972
April 20, 1973
October 20, 1973
April 20, 1974
October 20, 1974
April 20, 1975
October 20, 1975
April 20, 1976
October 20, 1976
April 20, 1977
October 20, 1977
April 20, 1978
October 20, 1978
April 20, 1979
October 20, 1979
April 20, 1980
October 20, 1980
April 20, 1981
October 20, 1981
April 20, 1982
October 20, 1982
April 20, 1983
October 203, 1983
April 20, 1984
October 20, 1984
$25,500
85,500
24,225
84,225
22,950
82,950
21,675
81,675
20,400
80,400
19,125
79,125
17,850
77,850
16,575
76,575
15,300
75,300
14,025
74,025
12s750
72,750
11,475
71,475
10,200
70,200
8,925
68,925
7,650
67,650
6,375
66,375
5,100
65,100
3,825
63,825
2,550
62,550
1,275
61,275
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(2) In addition to the basic rent payment specified in
(1) of this Section 203, Lessee shall pay in the manner hereafter
set forth in Section 204 and at the times hereafter in this sub-
section (2) specified, further basic rent in the total sum of $60,000
(less the amount, if any, deposited in the Bond Fund out of excess
bond proceeds after payment of the total project costs as set forth
in Section 102 hereof). The said total sum (reduced as aforesaid if
there are excess bond proceeds) shall be payable in equal annual
installments on November 1 of each of the years 1965, 1966, 1967,
1968 and 1969, with the privilege on the part of Lessee to prepay
the installments or any part thereof in inverse order at any time.
(3) If at any time the amount in the Bond Fund, hereafter
referred to in Section 204, is sufficient to pay in full the principal
of, interest on and Paying Agent's fees in connection with all of
the outstanding bonds of the Lessor, either at maturity or on
earlier redemption, then no more basic rent shall be payable here-
under, and any funds representing payment of basic rent which are
then held in the Bond Fund and which are in excess of the amount
required to pay in full the principal of, interest on and Paying
Agent's fees in connection with all outstanding Bonds of Lessor
either at maturity or on earlier redemption shall be refunded to
Leasee as excess rent.
(b) Additional Rent.
Lessee shall pay as additional rent the fees of the Paying
Agent of the bonds and the expenses and charges payable to the
Trustee, as provided in the Trust Indenture, and all impositions
(as defined in Section 301), costs, expenses, liabilities, obliga-
tions and other payments of whatever nature which Lessee has agreed
to pay or assume under the provisions of this Lease and Agreement.
If at any time any amounts paid by Lessee to the Lessor or the
Trustee or to a third party as or representing additional rent
hereunder are or become in excess of the amounts required for the
purpose for which they were paid, such excess shall be refunded to
the Lessee.
(c) So long as any of the bonds, or coupons relating
thereto, shall be outstanding and unpaid, or until payment thereof
has been duly provided for, the basic rent and the additional rent
shall be certainly payable on the dates or at the times specified
without notice or demand, and without abatement or set off, and re-
gardless of any contingencies whatsoever, and notwithstanding any
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circumstances or occurrences that may now exist or that may here-
after arise or take place, including, but without limiting the
generality of the foregoing:
(1) The unavailability of the leased premises for use
and occupancy by the Lessee at any time by reason of the failure to
complete the Project by any particular time or at all, or by reason
of any other contingency, occurrence or circumstance whatsoever;
(2) Damage to or destruction of the leased premises, or
any part thereof (except in the event Lessee exercises the option to
purchase and pays the purchase price specified in Section 1303
hereof);
(3) Condemnation under the power of eminent domain of
title to all or any part of the leased premises or of the right of
temporary use of all or any part of the leased premises (except in
the case of the taking of title to all or substantially all and the
payment by Lessee of the additional rent in the amount that the
total bond redemption expense exceeds the net amount awarded as
damages plus the funds in the Bond Fund, as specified in Section
1401A, and except in the event Lessee exercises the option to pur-
chase and pays the purchase price specified in Section 1403);
(4) Legal curtailment of Lessee's use and/or occupancy
of the leased premises or any part thereof; and
meet.
(5) Any default of the Lessor under this Lease and Agree-
Section 204. Payments of basic rent and further basic
rent shall be made to Lessor by Lessee remitting the same directly
to the Trustee, for the account of Lessor, and shall be deposited
by the Trustee in the Bond Fund provided for in the Trust Indenture,
to be used by Trustee as provided in the Trust Indenture. Lessor
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agrees to cause the Trustee to furnish to Lessee annually and at
other reasonable intervals as requested an accounting of the funds
in the Bond Fund, including the amount of bonds paid and outstanding.
Additional rent specified in Section 203(b) shall be paid by Lessee
remitting the same directly to the Trustee, for the account of
Lessor, in the case of Paying Agent's fees and in the case of
Trustee's expenses and charges, or in the case of Paying Agent's
fees of the alternate paying agent by remitting the same directly
to the alternate paying agent, and either making direct payment in
the case of impositions and other costs, expenses, liabilities,
obligations and payments assumed and agreed to be paid by Lessee
under this Lease and Agreement, or reimbursing Lessor or Trustee if,
pursuant to the provisions of this Lease and Agreement, Lessor or
Trustee shall make payment thereof.
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ARTICLE III
TAXES AND ASSESSMENTS (IMPOSITIONS)
Section 301. Subject to the provisions of Section 302,
Lessee shall pay all taxes and assessments, general and special, if
any, levied and assessed on the leased premises during the term, and
all water and sewer charges, assessments, and other governmental
charges and impositions whatsoever, foreseen and unforeseen, which if
not paid when due, would impair the lien of the Trust Indenture on
the leased premises or the security of the bonds, or encumber Lessor's
title, all of which are herein called 'impositions "; provided, how-
ever, that any imposition relating to a fiscal period of the taxing
authority, part of which extends beyond the term, shall be apportioned
as of the expiration of the term. Lessor shall promptly forward to
Lessee any notice, bill or other statement received by Lessor con-
cerning any imposition. Lessee may pay any imposition in install-
ments if so payable by law, whether or not interest accrues on the
unpaid balance.
Section 302. The parties hereto recite knowledge of the
decision of the Supreme Court of the State of Arkansas in Wayland
v_. Snapp, 232 Ark. 57, 334 S. W. 2d 633, concerning the exemption of
properties owned by municipalities and used for securing and develop-
ing industry under and pursuant to the provisions of Act No. 9.
Lessor covenants that it will not part with title to the leased
premises, or any part thereof, during the term or take any other
affirmative action which may reasonably be construed as tending to
cause or induce the levy or assessment of ad valorem taxes on the
leased premises, and should any such assessment or levy be threatened
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or occur, it will, at Lessee's request, fully cooperate with Lessee
in all reasonable ways to contest any such levy or assessment. Lessee
shall have the right in its own name to contest the validity or amount
of any imposition by appropriate proceedings timely instituted, pro-
vided Lessee gives Lessor and the Trustee written notice of its in-
tention to contest and diligently prosecutes such contest and at all
times effectively stays or prevents any official or judicial sale of
the leased premises by reason of non - payment of any imposition.
Lessee agrees to and shall hold Lessor whole and harmless from any
costs and expenses related to any such contest and Lessee shall
promptly pay any valid final adjudication enforcing any imposition
and shall cause any final adjudication to be satisfied of record.
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Section 401.
ARTICLE IV
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A. Lessee shall, at Lessee's sole cost and
expense, keep all improvements constituting part of the leased
premises insured against loss or damage by fire and the hazards
ordinarily included under standard extended coverage endorsements in
effect from time to time in Arkansas in amounts sufficient to prevent
Lessor or Lessee from becoming a co- insurer within the terms of
applicable policies, and subject to deductibles customarily assumed
by Lessee.
B. At all times during the term, Lessee shall, at no
cost or expense to Lessor, maintain or cause to be maintained:
(i) General public liability insurance against claims
for bodily injury or death occurring upon, in or about the leased
premises with such insurance to afford protection to the limit of
not less than $2009000 in respect of bodily injury or death to any
one person and to the limit of not less than $500,000 in respect of
any one accident; and
(ii) Property damage insurance against claims for damage
or injury to property occurring upon, in or about the leased premises
with such insurance to afford protection to the limit of not less
than $100,000 in respect of damage to the property of any one owner.
C. The insurance required by this Article IV shall be
maintained in full force and effect at all times during the term of
this Lease and Agreement, except:
(i) The insurance required by Section 401 A. need not be
placed into force and effect until the Completion of the construction
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of the Project, provided, however, that in no event shall the in-
surance required by Section 401 A. be placed into force and effect
later than the expiration of the builder's risk insurance carried
pursuant to the provisions of the Construction Contract; and
(ii) The insurance required by Section 401 B. need not be
placed into force and effect until Lessee occupies the Project, either
upon completion or before completion in the event Lessee undertakes
to perform work or store materials and supplies in the Project prior
to completion as permitted by the provisions of Section 103 hereof.
D. Copies or certificates of the insurance provided for
by this Article, each bearing notations evidencing payment of the
premiums or other evidence of payment satisfactory to the Lessor and
the Trustee, shall be delivered by Lessee to the Lessor and the
Trustee. And, in the case of expiring policies throughout the term,
copies or certificates of any new or renewal policies, each bearing
notations evidencing payment of the premiums or other evidence of
payment satisfactory to the Lessor and the Trustee, shall be de-
livered by Lessee to Lessor and the Trustee.
E. Policies of insurance provided for in Section 401 A.
of this Article IV shall name the Lessor and the Lessee as insureds
as their respective interests may appear, provided, however, that
the Trustee shall also be named as a party insured pursuant to a
standard mortgagee clause as its interests may appear.
F. All insurance required by this Section 401 shall be
effected with- insurance - companies authorised to do business in
Arkansas to be selected by Lessee. Lessee shall cause appropriate
.provisions to be inserted in each insurance policy making them non-
tan ble- Without at least ten (10) days' prior written notice to
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Lessor, Lessee and the Trustee. Also, it is agreed that no claim
shall be made and no suit or action at law or in equity shall be
brought by Lessor or by anyone claiming by, through or under Lessor,
against Lessee for any damage to the Improvements covered by the
insurance provided for by this Article IV, however.,caused, but
nothing in this sub - section F. shall diminish Lessee's obligation to
repair or rebuild as provided in Article XIII.
ARTICLE V
REPAIRS AND MAINTENANCE OF
PREMISES AND ALTERATIONS
Section 501. Lessee shall throughout the term, at no
cost and expense to Lessor, maintain, or cause to be maintained, and
at the expiration of the term hereof yield up or cause to be yielded
up, in good and tenantable repair, order and condition, reasonable
wear and tear excepted, the buildings and improvements now or at any
time erected on the lands included in the leased premises and
promptly at no cost and expense to Lessor make or cause to be made
all necessary repairs, interior and exterior, structural and non-
structural, foreseen as well as unforeseen, to the buildings and
improvements constituting part of the leased premises.
Section 502. Lessee shall have the right from time to
time to make additions, alterations and changes in or to the im-
provements constituting part of the leased premises and shall have
the right to construct any improvements, provided, however, that no
alterations shall be made which wc;:,d impair the usefulness of the
leased premises or change the character of the structures thereon
so that the same will not be appropriate and usable for industrial
Purposes. It is understood and agreed that in the event the Lessee
makes any additions, alterations and changes in or to the improve-
ments constituting part of the leased premises as authorized by
this Section 502, the Lessee shall be under no obligation to restore
the leased premises to their original condition prior to such addi-
tions, alterations or changes at the expiration of the term.
Section 503. All improvements and alterations made on
the leased premises by or on behalf of Lessee shall immediately
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upon completion thereof be and become the property of the he Lessor
without payment therefor by Lessor but subject to this Lease and
Agreement. All machinery and equipment, trade f
ixtures, movable
partitions, furniture and furnishings installed at th
Lessee shall r e expense of
amain the property of the Lessee with the right of r -
moval, whether or not affixed and /or attached to the e
and the Lessee shall, so long as it is n real estate,
entitled but shall not be Obligated to remove the same, or any part
thereof, during the term, or within a reasonable
but Lessee shall at its own cost and expense time thereafter,
repair any and all
damage to the leased premises resulting from or
caused by their re-
moval therefrom.
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ARTICLE VI
USE OF PREMISES - COMPLIANCE WITH ORDERS, ETC.
Section 601. Subject to the following provisions of this
Section 601, Lessor and Lessee agree that Lessee may use the premises
for any lawful purpose. Lessee shall during the term promptly comply
with all valid and enforced statutes, laws, ordinances, orders, judg-
ments, decrees, regulations, directions and requirements of all
federal, state, local and other governments or governmental authori-
ties, now or hereafter applicable to the leased premises or to the
adjoining public ways, as to the manner of use or the condition of
the leased premises or of adjoining public ways. Lessee shall, how-
ever, have the right to contest any of the foregoing, and if compli-
ance therewith may legally be held in abeyance during such contest
without incidence of any liens on the leased premises, Lessee may
postpone compliance until final determination of such contest, pro-
vided such contest shall be prosenuted with due diligence; and even
though a lien against the leased premises may be incurred by reason
of such non - compliance, Lessee may nevertheless delay compliance
therewith during contests thereof, provided Lessee, if required, fur-
nishes Lessor reasonably satisfactory security against any loss by
reason of such lien and effectively prevents foreclosure thereof.
Lessee shall during the term comply with the mandatory requirements,
rules and regulations of all insurers under the policies required to
be carried under the provisions of this Lease and Agreement.
Section 602. Lessor agrees that it will not adopt any laws
ordinances, rules or regulations which will interfere with the norm`
use of the leased premises for indtistrial purposes except where
necessary to avoid or eliminate demonstrated injury to the health
of the public, generally.
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ARTICLE VII
WORK PERFORMED BY LESSEE
Section 701. Lessee shall not do or permit others under
its control to do any work on the leased premises related to any
- xepair, rebuilding, alteration of or addition to the improvements
constituting part of the leased premises unless Lessee shall have
first procured and paid for all requisite municipal and other
governmental permits and authorizations. Lessor shall join in the
application for any such permit or authorization whenever required,
but Lessee shall indemnify and hold Lessor harmless against and
from all costs and expenses which may be thereby incurred by Lessor.
All such work shall be done in a good and workmanlike manner and in
compliance with all applicable building, zoning, and other laws,
,ordinances, governmental regulations and requirements and in ac-
cordance with the requirements, rules and regulations of all in-
surers under the policies required to be carried by the provisions
of this Lease and Agreement.
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ARTICLE VIII
MECHANICS' LIENS
Section 801. If any lien shall be filed against the in-
terest of Lessor, Lessee, or the Trustee in the leased premises or
asserted against any rent payable hereunder, by reason of work,
labor, services or materials supplied or claimed to have been
supplied on or to the leased premises at the request or with the
permission of Lessee, or anyone claiming under Lessee, Lessee shall,
within thirty (30) days after notice of the filing thereof or the
assertion thereof against such rents, cause the same to be dis-
charged of record, or effectively prevent the enforcement or f.Qre
closure thereof against the leased premises or such rents, by con-
test, payment, deposit, bond, order of court or otherwise. Nothing
contained in this Lease and Agreement shall be construed as con-
stituting the express or implied consent to or permission of Lessor
for the performance of any labor or services or the furnishing of
any materials that would give rise to any such lien against Lessors-,.,
interest in the premises.
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ARTICLE IX
INDEMNIFICATION OF LESSOR AND TRUSTEE
Section 901. Commencing with the completion of the Pro-
ject or when the Lessee takes possession if prior to the completion -
of the Project, Lessee shall and agrees to indemnify and save Lessor
and the Trustee harmless against and from all claims by or on behalf
of any person, firm or corporation arising from the conduct or manage-
ment of, or from any work or thing done on, the leased premises during
the term, and against and from all claims arising during the term
from (a) any condition of the leased premises, (b) any breach or
default on the part of Lessee in the performance of any of its
obligations under this Lease and Agreement, (c) any act or negligence
of Lessee or of any of its agents, contractors, servants, employees
or licensees, or (d) any act or negligence of any assignee or sub-
lessee of Lessee, or of any agents, contractors, servants, employees_
or licensees of any assignee or sublessee of Lessee. Lessee shall
indemnify and save Lessor and the Trustee harmless from and against
all costs and expenses incurred in or in connection with any such
claim arising as aforesaid, or in connection with any action or
proceeding brought thereon, and upon notice from Lessor, or the
Trustee, Lessee shall defend them or either of them in any such
action or proceeding.
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ARTICLE X
LESSOR MAY PERFORM LESSEE'S OBLIGATIONS
Section 1001. If Lessee shall fail to keep or perform
any of its obligations as provided in this Lease and Agreement in
respect of: (a) maintenance of insurance; (b) payment of impositions;
(c) repairs and maintenance of the leased premises; (d)-compliance
with legal or insurance requirements; (e) keeping the leased premises
lien free; or (f) making of any other payment or performance of any
other obligations, then Lessor may (but shall not be obligated to do
so), upon the continuance of such failure on Lessee's part for
thirty (30) days after written notice to Lessee, and without waiving
or releasing Lessee from any obligation,.and as an additional but
not exclusive remedy, make any such payment or perform any such
obligation, and all sums so paid by Lessor and all ;necessary inci-
dental costs and expenses incurred by Lessor in making such payment`
or performing such obligation shall be deemed additional rent and
shall be paid to Lessor on demand, or at Lessor's option may be added
to any installment of basic rent thereafter falling due, and if not
so paid by Lessee, Lessor shall have the same rights and- remedies as.
in the case of default by Lessee in the payment of basic rent.
ARTICLE XI
PUBLIC UTILITIES AND CHARGES
Section 1101. Lessee agrees to pay or cause to be paid
all charges for water, gas, sewer, electricity, light, heat or
power, telephone or other service used, rendered or supplied to or
for the Lessee upon or in connection with the leased premises
throughout the term of this Lease and Agreement, and to indemnify
Lessor and save it harmless against any liability or damage.ou.Buch
account.
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ARTICLE XII
INSPECTION OF PREMISES BY LESSOR
Section 1201. Lessee shall permit Lessor and the Trustee,
or either of them, by their respective authorized representatives,
to enter the leased premises at all reasonable times during usual
business hours for the purpose of inspection, and for the per -
formance of any work therein made necessary by reason of Lessee's
default under any of the provisions of this Lease and Agreement.
Lessor may, during the progress of any such work, keep and store
on the leased premises all necessary materials, supplies and equip-
ment and shall not be liable for inconvenience, annoyance, distur-
bance, loss of business or other damage to Lessee suffered by reason
of the performance of any such work or the storage of materials,
supplies and equipment.
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ARTICLE XIII
DAMAGE OR DESTRUCTION
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Section 1301. A. Lessee covenants and agrees that in the
event of damage to or destruction of the leased premises, or any
part thereof, by fire or other casualty, the Lessee shall immediately
notify the Lessor and the Trustee. If the damage is in an amount of
$50,000 or less, Lessee shall proceed to restore, repair, or rebuild
the same to the extent, if any, required so that, in the judgment of
Lessee, the Project is suitable for use for Lessee's purposes under
this Lease and Agreement. If the damage exceeds $50,0009 Lessee
shall, at no cost and expense to Lessor or Trustee, proceed to re-
store, repair or rebuild the same as nearly as possible to the con-
dition they were in immediately prior to such damage or destruction,
subject to such alterations as Lessee may elect to make in conformity
with the provisions of Article V hereof.
B. All insurance money paid on account of such damage or
destruction shall be applied to the payment of the cost of the afore-
said restoration, repairs, replacements, rebuilding or alterations,
including expenditures made for temporary repairs or for the pro-
tection of property pending the completion of permanent restoration,
repairs, replacements, rebuilding or alterations to the leased
premises, or to prevent interference with the business operated
thereon (hereinafter sometimes referred to as the "restoration ").
The insurance proceeds shall be paid to the Lessee upon receipt
by Lessor and the Trustee of a certificate signed by an officer
of Lessee that the restoration has been made, or is in the process
of being made in accordance with the provisions of sub - section A.
if the insurance money shall be insufficient to pay all costs of the
restoration, the Lessee shall pay the deficiency and shall neverthe-
less proceed to complete the restoration and pay the cost thereof.
Any balance of the insurance proceeds remaining over and above the
cost of the restoration shali'be paid to the Lessee upon receipt
by the Lessor and the Trustee of certificates as required by this
Article to the effect that the restoration has been completed.
Section 1302, Lessee's obligation to make payment of the
basic rent and all other charges on the part of Lessee.to be paid
and Lessee's obligation to perform all other covenants and agree-
ments on the part of Lessee to be performed shall not be affected-by
any such destruction or damage and Lessee hereby waives the pro-
visions of any statute or law now or hereafter in effect contrary to
such obligation of Lessee as herein set forth, or which releases
Lessee therefrom.
Section 1303. Notwithstanding the provisions of the fore-
going Sections of this Article XIII, Lessee shall not be required to
repair, restore, or rebuild the leased premises, or any part thereof,
if Lessee, pursuant to the provisions of Article XIX,shall elect to
purchase the leased premises and shall proceed to pay the purchase
price specified in Article XIX. If Lessee shall so elect and shall
pay the specified purchase price, the proceeds of all insurance shall
be paid to Lessee.
ARTICLE XIV
CONDEMNATION
Section 1401. A. If during the term of this Lease and
Agreement title to all or substantially all of the leased premises
shall be taken or condemned by a competent authority for any public
use or. purpose, then this Lease and Agreement shall terminate at
midnight on the fifteenth day after the vesting of title in such
authority and rent shall be paid to and adjusted as of that day.
The Lessor and Lessee will participate in the condemnation proceeding .
and award in accordance with paragraph "C" hereof. In the event the
net amount awarded Lessor as damages or paid as a result of such
taking (after deducting all attorneys' fees and other expenses and
costs in the condemnation proceeding), together with the amount then
in the Bond Fund, exclusive of the reserve for contingencies, shall
be insufficient to pay in full, on the first interest paying date
after receipt of the award and after the required bond redemption
notice can be given, the amount necessary to pay all principal, in-
terest, Paying Agent's fees, redemption premiums, and all other costs
of redemption (all of which, for purposes of this Section, shall be
called "total bond redemption expense "), Lessee agrees to pay,
as additional rent hereunder, the amount by which the total bond
redemption expense shall exceed the net amount awarded as damages
or paid (less such fees, expenses and costs) as a result of such
taking plus the amount then on deposit in the Bond Fund. The
Lessee's agreement pertaining to this Section 1401 shall survive
such termination. For purposes of this Article XIV "all or sub-
stantially all of the leased premises" shall be deemed to mean a
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taking of all of the leased premises or a taking of such a portion
of the leased premises that the Lessee cannot reasonably operate
in the remainder in substantially the same manner as before. In the
event the net amount awarded Lessor as damages or paid as a result of
such taking as defined above, together with the amount then in the
Bond Fund, exclusive of the reserve for contingencies, shall be
in excess of the amount necessary to pay the total bond redemption
expense, if Lessee is not in default in any of its other obligations
under this Lease and Agreement involving monetary matters, such
excess shall belong to and shall be paid to the Lessee, and if
Lessee is in default with reference to any of its monetary obliga-
tions, the amount of the excess in excess of the amount necessary
to satisfy said monetary obligations with reference to which Lessee
is in default shall be paid to Lessee. The Lessor agrees that it
will not voluntarily accept, without the prior approval of the
Lessee, any amount as damages fcr a taking, and the Lessor agrees
that it will cooperate with the Les See with reference to any award
with the end in view of ibtaining the maximum possible award justi-
fiable as damages for the taking.
B. If less than substantially all of the leased premises
shall be taken or condemned by a competent authority for any public
use or purpose, neither the term nor any of the obligations of
either party under this Lease and Agreement shall be affected or
reduced in any way except that Lessor and Lessee will participate
in the condemnation proceedings and award in accordance with para-
graph "C" hereof, and
A , a
(i) If any part of the improvements on the
leased premises is taken, Lessee shall proceed
to repair or rebuild the remaining part as nearly
as possible :o the condition existing prior to
such taking, to tha extent that the same may be
feasible, subject to the right on the part of
the Lessee to make alterations so as to improve
the efficien:y of the improvements; and
(ii) The entire condemnation award to Lessor
shall be paid to the Lessee and the Lesscr
hereby assigns the same to the Lessee for the
use of the Lessee in repairing and rebuildiag
as provided lai (i) above. If the net condemna-
tion award if in excess of the amount necescu=y
to repair an6 rebuild as specified in (i) above,
such excess ahall be paid to and belong to the
Lessor and the Lessee shall be credited against
basic rent next thereafter provided to be paid
by Lessee under the provisions of Section 203
hereof, and Lessee shall not be required to pay
any basic rest thereafter except when and to
the extent basic rent becomes due and payable
in excess of the amount so credited. If such
excess is more than the remaining total basic
rent obligations of the Lessee hereunder, and
if at that time Lessee is not in default with
respect to any of its obligations under this
Lease and Agreement, only that portion thereof
equal to the remaining total basic rent obliga-
tions of Lessee shall be paid to and belong
to the Lessor. If the net condemnation award
is less taan the amount necessary for the Lessee
to repair and rebuild as set forth in (i)
above, tie Lessee shall nevertheless complete
the repair and rebuilding work and pay the
cost thcwreo f; and
(iii) If no part of the Improvements is taken,
the net condemnation award to the Lessor shall
be paid to Lessor and credited against basic
rent obligations next thereafter provided to
be paid by Lessee under the provisions of Sec-
tion 203 hereof, and the Lessee shall not be
required to pay any basic rent thereafter except
when and to the extent basic rent becomes due
and payable in excess of the amount so credited.
C. In the event of a taking under either A or B above,
the Lessee shall have the right to prove in the condemnation proceed-
ings and to receive any award (by way of negotiation, settlement or
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judgment) which may be made for damages sustained by Lessee by reason
of the condemnation; provided, however, nothing in this sub - section
C. shall be construed to diminish or impair in any way Lessee's
obligation under sub-section A. of this Section 1401 to pay as
additional rent the amount of any insufficiency of the net condem-
nation award and the funds in the Bond Fund to pay the total bond
redemption expense as therein defined or to diminish or impair in
any way Lessee's obligations under sub - paragraph B. of this Section
1401.
D. If the use for a limited period of all or part of
the leased premises shall be taken by right of eminent domain,
this Lease and Agreement shall not be thereby terminated and the
parties shall continue to be obligated under all of its terms and
provisions. If such taking is for a period of time ending on or
prior to the expiration of the term, Lessee shall be entitled to
receive the entire amount of the award made for such taking, whether
by way of damages, rent or otherwise. If such taking is for a period
of time which extends beyond the expiration of the initial term, or
any renewal if Lessee exercises any of its options to renew under
Article XIX hereof, Lessee shall be entitled to receive that portion
of the entire award allocable to the period of time from the date of
such taking to the date of the expiration of the term and Lessor
shall be entitled to the amount allocable to the remainder of such
periods after an amount has been deducted for the Lessee if necessary
to make up any deficit which has been required of the Lessee because
the Lessee's award was not sufficient to pay the basic and additional
rent and other charges under this Lease and Agreement. Provided,
however, if Lessee exercises its option to purchase under Article XIX
hereof, the entire amount of the award shall belong to and shall be
paid to Lessee.
Section 1402. In the event of a taking of all or sub-
stantially all of the leased premises as provided in Section 1401 A.,
notwithstanding the provision therein that the rent shall be paid
to and adjusted as of the fifteenth day after vesting of title in
the taking authority, the Lessee agrees to continue to make pay-
ment of the basic rent and the additional rent until the condemna-
tion award shall be actually received by the Lessor; provided, how-
ever, the Lessee shall be repaid solely out of the net condemnation
award the amount of rent so paid after the date provided in Section
1401 A. for the adjustment of rent. This agreement to repay shall
not be construed in any way to impair or diminish Lessee's obliga-
tions under Section 1401 to pay as additional rent the amount of any
insufficiency of the net condemnation award and the funds in the
Bond Fund to pay the total bond redemption expense as therein de-
fined.
Section 1403. Notwithstanding the fact that all or any
part of the leased premises shall be taken by right of eminent
domain, Lessee shall have the right to exercise any option granted
to it by the provisions of Article XIX hereof and the foregoing pro-
visions of this Article XIV shall be construed in the light of the
effect of any option so exercised by Lessee. In the event of the
exercise of an option under Article XIX and payment of the required
amount, whether before or after such taking, the entire condemnation
award shall belong to Lessee.
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Ordinance #11,515 continued
ARTICLE XV
ASSIGNMENT
Section 1501. A. Lessee may assign this Lease or sub-
let the premises or part thereof provided that no such assignment or
subletting and no dealings or transactions between the Lessor or the
Trustee and any sublessee or assignee shall relieve the Lessee of any
of its obligations under this Lease and Agreement and Lessee shall re-
main as fully bound as though no assignment or subletting had been
made, and performance by any assignee or sublessee shall be considered
as performance pro tanto by Lessee; provided, however, that if Lessee
shall assign this Lease as part of a transaction involving the merger
or consolidation of Lessee with or into, or the sale of all or sub-
stantially all of Lessee's assets to, another corporation and such
other corporation shall expressly assume and agree to perform all of
Lessee's obligations under this Lease and Agreement, Lessee shall be
relieved of all thereafter accruing obligations under this Lease and
Agreement, but only upon condition that, and effective when, Lessee
shall have furnished Lessor and the Trustee with evidence in the form
of financial statements certified by an independent certified public
accountant or firm of independent certified public accountants, of
recognized standing, reflecting that such other corporation has the
financial ability to assume and carry out the obligations and re-
sponsibilities of Lessee under this Lease and Agreement.
B. Lessor may assign this Lease and Agreement, and /or
the rents hereunder, to the Trustee as security for the payment of
the principal of and interest on the bonds. Otherwise, Lessor will
make no assignment or disposition of all or any part of its rights,
title and interest in and to the leased premises and this Lease and
Agreement without the prior written consent of the Lessee.
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ARTICLE XVI
PRIORITY OF LEASE
Section 1601. Notwithstanding anything to the contrary in
this Lease and Agreement, this Lease and Agreement (and any amendment
or supplement hereto executed in accordance with and pursuant to the
provisions of this Lease and Agreement) and the estate of Lessee
hereunder are and shall continue to be superior and prior to the Trust
Indenture (and all supplements thereto) and any other and all en-
cumbrances, mortgages, deeds of trust and trust indentures, or any
of them, constituting or granting a lien upon the leased promises or
any part thereof or interest therein. All supplements and amendments
to the Trust Indenture must be approved by the Lessee as specified
in the Trust Indenture. The Lessor warrants that it has good and
merchantable title to the premises free from all liens and encum-
brances except the Trust Indenture and those that affect the title
at commencement of this Lease anc' "I reement, and that it will not
during the term of this Lease and .Agreement further mortgage or en-
cumber the leased premises without written permission of the Lessee.
ARTICLE XVII
REMEDIES ARE CUMULATIVE -
NO IMPLIED WAIVER
Section 1701. Lessor, Lessee and the Trustee shall each
be entitled to specific performance, and injunctive or other appro-
priate equitable relief for any breach or threatened breach of any
of the provisions of this Lease and Agreement, notwithstanding the
availability of an adequate remedy at law, and each party hereby
waives the right to raise such defense in any proceeding in equity.
The specific remedies provided for in this Lease and Agreement are
cumulative and are not exclusive of any other remedy. The failure
of either party to insist in any one or more cases upon strict per-
formance shall not be construed as a waiver or relinquishment for
the future. No acceptance of rent with knowledge of any default
shall be deemed a waiver of such default.
ARTICLE XVIII
DEFAULT PROVISIONS
Section 1801. This Lease is made on condition also that
if any one or more of the following events (herein referred to as
an 11event of default ") shall happen:
(a) Lessee shall default in the due and punctual payment
of the basic rent or any additional rent payable hereunder, and such
default shall continue for fifteen (15) days after receipt of
written notice from Lessor or the Trustee of such non - payment; or
(b) Lessee shall neglect or fail to perform or observe
any of the covenants herein contained on Lessee's part to be per-
formed or observed (other than those referred to in sub - section (a)
of this Section 1801) and Lessee shall fail to remedy the same
within sixty (60) days after.Lessor or the Trustee shall have given
to Lessee written notice specifying such neglect or failure (or
within such additional period, if any, as may be reasonably required
to cure such default if it is of such nature that it cannot be cured
within said sixty (60) day period because of governmental restricp
tion or any other cause beyond the control of the Lessee); or
(c) This Lease or the premises or any part thereof shall
be taken upon execution or by other process of law directed against
the Lessee, or shall be taken upon or subject to any attachment at
the instance of any creditor of or claimant against the Lessee, and
said attachment shall not be discharged or disposed of within ninety
(90) days after the levy thereof; or
(d) Lessee shall be involved in financial difficulties as
evidenced below and shall not cure the same within ninety (90) days
after notice from the Lessor,
(i) by its admitting in writing its inability to pay
its debts generally as they become due, or
. ,
(ii) by its filing a petition in bank-
ruptcy or for reorganization or for the
adoption of an arrangement under the
Bankruptcy Act (as now existing or in the
future amended) or an answer or other
pleading admitting the material allega-
tions of such a petition or seeking,
consenting to or acquiescing in the
relief provided for under such Act, or
(iii) by its making an assignment of all
or a substantial part of its property for
the benefit of its creditors, or
(iv) by its seeking or consenting to or
acquiescing in the appointment of a
receiver or trustee for all or a sub-
stantial part of its property or of the
leased premises or of its interest in
this Lease, or
(v) by its being adjudicated a bankrupt
or insolvent, or
(vi) by the entry of a court order without
its consent which order shall not be vacated,
set aside or stayed within ninety (90) days
from the date of entry (1) appointing a
receiver or trustee for all or a substantial
part of its property or (2) approving a peti-
tion filed against it fcr the effecting of
an arrangement in bankruptcy or for a reor-
ganization pursuant to said Bankruptcy Act
or for any other judicial modification or
alteration of the rights of creditors; then:
In any such event, Lessor shall have the right at its
election, then or at any time thereafter while such event of default
shall continue, either
(1) To give Lessee written notice of intention to termi-
nate this Lease on the date of such notice or on any later date
specified therein, and on the date specified in such notice Lessee's
right to possession of the premises shall cease and this Lease shall
thereupon be terminated, or
(2) Without demand or notice, to re -enter and take
possession of the premises or any part thereof and repossess the
same as of Lessor's former estate and expel Lessee and those claim-
ing through or under Lessee and remove the effects of both or either
(forcibly, if necessary) without being deemed guilty of any manner
of trespass and without prejudice to any remedies for arrears of
rent or preceding breach of covenant. Should Lessor elect to re-
enter as provided in this paragraph (2) or should Lessor take
possession pursuant to legal proceedings or pursuant to any notice
provided for by law, Lessor may (2) terminate this Lease, or (b)
from time to time, without terminating this Lease, relet the premises
or any part thereof for such term or terms and at such rental or
rentals and upon such other terms and conditions as Lessor may deem
advisable, with the right to make alterations and repairs to the
premises. No such re -entry or taking of possession of the premises
by Lessor shall be construed as an election on Lessor's part to
terminate this Lease unless a written notice of such intention be
given to Lessee or unless the termination thereof be decreed by a
court of competent jurisdiction.
Section 1802. In the event of any such termination, Lessee
shall nevertheless pay the basic r --nt and all additional rent and
other sums as hereinbefore provided.up to the time of such termina-
tion, and thereafter Lessee, until the end of what would have been
the term of this Lease in the absence of such termination, and
whether or not the leased premises shall have been relet, shall be
liable to Lessor for, and shall pay to Lessor, as liquidated current
damages,
(a) The basic rent and additional rent and other sums as
hereinbefore provided which would otherwise be payable hereunder if
such termination had not occurred, less,
(b) The net proceeds, if any, of any reletting of the
leased premises, after deducting all of Lessor's expenses in connec-
tion with such reletting, including, without limitation, all reposses-
sion costs, brokerage commissions, expenses of employees, alteration
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costs, and expenses of preparation for such reletting.
Lessee shall pay such liquidated current damages on the
days on which the basic rent would have been payable hereunder if
this Lease had not been terminated.
At any time after such termination, whether or not Lessor
shall have collected any such current damages, Lessor shall be en-
titled to recover from Lessee, and Lessee shall pay to Lessor, on
demand, as liquidated final damages and in lieu of all such current
damages beyond the date of such demand, an amount equal to
(x) The basic rent and additional rent and other
sums as hereinabove provided which would be payable
hereunder from the date of such demand (or, if it be
earlier, the date to which Lessee shall have satis-
fied its obligations under this Section 1802 to pay
current damages) for what would be the then unexpired
term of this Lease if the same remained in effect,
over
(y) The then fair net rental value of the leased
premises for the same period.
If any statute or rule of law governing a proceeding in
which such liquidated final damages are to be proved shall validly
limit the amount thereof to an amount less than the amount agreed
upon hereinabove, Lessor shall be entitled to the maximum amount
allowable under such statute or rule of law.
Section 1803. In the event of a termination of this Lease
by Lessor and prior to the time Lessor may have demanded final
liquidated damages, Lessee shall have the right, from time to time,
to provide Lessor with a tenant for the leased premises for a sub-
stantial portion of the unexpired term of this Lease as it existed
immediately prior to such termination, and
i
(a) If Lessor does not accept such tenant, or
(b) If Lessor does accept such tenant
then in either event the current liquidated damages payable by
Lessee hereunder shall be reduced by the amount such tenant paid
or would have been obligated to pay if the tenant had been accepted
by Lessor, less Lessor's expenses in connection with such releting
as defined in sub - paragraph (b) of Section 1802 hereof.
Section 1804. The foregoing provisions of this Article
relating to the payment of basic rent and additional rent beyond
the termination of this Lease, the payment of liquidated current
damages or liquidated final damages, and the receipt of rents by
Lessor upon a reletting, are each to be construed as providing that
all such payments by Lessee or others shall be made into the Bond
Fund referred to in Section 204, and Lessee's said obligations
shall further be subject to the provisions of Section 203(x)(3).
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ARTICLE XIL
LESSEE'S OPTIONS
Section 1901. Lessee shall have and is hereby granted
options to extend the term of this Lease and Agreement for
four ( 4 �) successive terms of five
(5 years each at a basic annual rental of One Dollar - - - - - --
------------- ($_1.00 ), payable in equal semiannual installments
in advance plus the additional rentals heretofore provided in
Article II hereof and, except as to rent and term,upon the same con-
ditions, provisions and terms of this Lease and Agreement. The
options granted in this Section 1901 shall be conclusively pre-
sumed to have been exercised by Lessee unless at least thirty (30)
days prior to the end of the initial term or of the extension term,
as the case may be, Lessee shall deliver Lessor written notice of
its desire to terminate the Lease and Pgreement as of the end of
such period. Said notice may be delivered personally or by certified
or registered mail, with or without return receipt requested. When-
ever used in this Lease and Agreement the words 'extension term" or
"renewal term" shall have the same meaning and shall refer to the
terms concerning which options are granted in this Section 1901.
Furthermore, whenever the unqualified word "term9° appears in this
Lease and Agreement the reference shall include the initial and all
renewal terms unless the context otherwise clearly indicates a
contrary meaning.
Section 1902. A. Prior to May 1, 1974 Lessee shall have
the right and option to purchase the leased premises if, but only
i£:
4-
(i) Lessor shall default in the performance of
any of its obligations under this Lease and
Agreement; or
(ii) The leased premises shall sustain major
damage or destruction; or
(iii) Title to or the temporary use of the
whole or any part of the leased premises shall
be condemned as provided in Article XIV hereof.
The term "major damage or destruction" as used in sub-
section (ii) is defined to mean any damage or injury to or
destruction of the leased premises or any part thereof (whether or
not resulting from an insured peril) such that the leased premises
cannot reasonably be restored to its condition immediately preceding
such damage, injury or destruction within a period of seventy -five
(75) working days, or which would prevent Lessee from carrying on
its manufacturing operations therein for a period of seventy -five
(75) working days, or the restoration cost of which would exceed the
total amount of insurance carried on the leased premises in accord-
ance with Article IV hereof.
B. On and after May 1, 1974 and during the remainder
of the initial term and during the whole of any extended term or
terms, Lessee shall have the unconditional right and option to
purchase the leased premises at any time.
C. Purchase Price. The purchase price payable if the
Lessee exercises Lessee's option to purchase the leased premises,
under the provisions of Paragraph A of this Section, shall be the
full amount necessary under the provisions of the Trust Indenture
to redeem (on the first date thereafter on which all outstanding
bonds may be redeemed after giving the necessary notice) all out-
standing bonds (including, without limitation, principal, interest,
redemption premiums, if any, expenses of redemption and paying
agent's fees) upon the happening of any of the contingencies set
forth in Paragraph A. of this Section, but after deduction of any
amount then in the Bond Fund and available for such redemption.
The purchase price payable if Lessee exercises Lessee's
option to purchase the leased premises under the provisions of
Paragraph B. of this Section shall be the applicable one of the
following:
(1) If no bonds shall be outstanding at the time of
purchase, or if the redemption or retirement of bonds shall be
or shall have been otherwise provided for, the purchase price shall
be the sum of $.,1.00.
(2) If there are bonds outstanding for the redemption
or retirement of which no provision has been made, the purchase
price shall be the price determined in accordance with the pro-
visions of (1) above plus the full amount necessary under the
provisions of the Trust Indenture to redeem (on the first date
thereafter on which all outstanding bonds may be redeemed after
giving the necessary notice) all outstanding bonds (including,
without limitation, principal, interest, redemption premiums, if
any, expenses of redemption and paying agent's fees), but after
deduction of any amount then in the Bond Fund and available for such
redemption.
D. Either of the foregoing options may be exercised
by giving written notice to Lessor of the exercise thereof specify-
ing the time and place of closing. At such closing, Lessor shall
upon payment of the purchase price hereinabove specified, deliver
to Lessee a general warranty deed and any other appropriate con-
veyance instrument transferring good and merchantable title to the
leased premises free and clear of all liens and encimbrances except
those to which title was subject when leased hereunder, or resulting
from any failure of Lessee to perform any of its obligations here-
under; provided, however, that if such closing shall be prior to
the redemption of the bonds, such purchase price shall be paid to
the Trustee with instructions to apply the same to the redemption
of the bonds at the earliest possible time, in which event such bonds
and the Trust Indenture may continue to be a lien on the leased
premises until redemption of the bonds; and provided further, that
if such option is exercised under the provisions of sub - paragraph
A (iii) of this Section, such title may be subject to the rights,
titles and interests of any party having taken or who is attempting
to take title to or use of all or part of the leased premises by
eminent domain.
r
those to which title was subject when leased hereunder, or resulting
from any failure of Lessee to perform any of its obligations here-
under; provided, however, that if such closing shall be prior to
the redemption of the bonds, such purchase price shall be paid to
the Trustee with instructions to apply the same to the redemption
of the bonds at the earliest possible time, in which event such bonds
and the Trust Indenture may continue to be a lien on the leased
premises until redemption of the bonds; and provided further, that
if such option is exercised under the provisions of sub - paragraph
A (iii) of this Section, such title may be subject to the rights,
titles and interests of any party having taken or who is attempting
to take title to or use of all or part of the leased premises by
eminent domain.
}
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ARTICLE XX
NOTICES
Section 2001. All notices, demands and requests which may
or are required to be given by either party to the other, or to the
Trustee, shall be in writing and each shall be deemed to have been
properly given when served personally on an executive officer of the
party to whom such notice is to be given, or when sent postage pre-
paid by certified or registered mail (either with or without request-
ing return receipt) by deposit thereof in a duly constituted United
States Post Office or branch thereof located in one of the present
States of the United States of America in a sealed envelope addressed
as follows:
If intended for Lessee:
Strickland Transportation Company, Inc.
P. 0. Box 5689
Dallas, Texas
Attention: D. H. Foley
If intended for Lessor:
City of Little Rock, krkansas
City Hall
Little Rock, Arkansas
Attention: City Manager
If intended for Trustee:
Mercantile National Bank
at Dallas
P. 0.. Bog 5415
Dallas 22, Texas
Either party or the Trustee may change the address and
name of addressee to which subsequent notices are to be sent by
notice to the other parties given as aforesaid.
Ll
ARTICLE )MI
RECORDING
Section 2101. This Lease and Agreement and every assign-
ment and modification thereof shall be recorded in the office of the
Circuit Clerk and Ex Officio Recorder of Pulaski County, Arkansas.
°s
4
Section 2201.
ARTICLE XXII
GENERAL
This Lease and Agreement shall be construed
and enforced in accordance with the laws of the State of Arkansas.
Wherever in this Lease and Agreement it is provided that either party
shall or will make any payment or perform or refrain from performing
any act or obligation, each such provision shall, even though not so
expressed, be construed as an express covenant to make such payment
or to perform, or not to perform, as the case may be, such act or
obligation.
Section 2202. If any provision of this Lease and Agreement
or the application thereof to any person or circumstances shall, to
any extent, be determined to be invalid or unenforceable, the re-
mainder of this Lease and Agreement and the application of its pro-
visions to persons or circumstances other than those as to which it
has been determined to be invalid or unenforceable, shall not be
affected thereby, and each provision of this Lease and Agreement
shall be valid and shall be enforced to the fullest extent permitted
by law.
Section 2203. The article captions in this Lease and
Agreement are for convenience and reference only and in no way define,
limit or describe the scope or intent of this Lease and Agreement
or any part thereof, or in anywise affect this Lease and Agreement
and shall not be considered in any construction thereof.
Section 2204. It is agreed that after the bonds are fully
paid and discharged, or adequate provision is made for their payment
and discharge, and all proper expenses of the Trustee and Paying
Agent are paid or adequate provision made for their payment, the
r 1t 7
Trustee shall cease to have any right, title and interest in, to or
under this Lease and Agreement. Thereafter, all rights of approval
or other rights herein specified with reference to said Trustee shall
inure to the benefit of and be applicable to Lessor.
Section 2205. It is agreed that in the event of any non-
payment of rent by Lessee or the failure or refusal by Lessee to
observe, keep or perform any other covenant, condition, promise or
agreement set forth in this Lease and Agreement to be observed, kept
or performed by the Lessee, the Trustee shall be entitled, in the
name of the Lessor, or in its own name (in accordance with the pro-
visions of the Trust Indenture) to enforce each and every right or
remedy herein accorded in this Lease and Agreement to Lessor in the
event of the non - performance or non - observance by Lessee of any such
promise, covenant or agreement.
Section 2206. The provisions of this Lease and Agreement
shall bind and inure to the benefit of the parties hereto and their
respective successors, assigns and subleases (it being understood
that assignments and subleasing are governed by the provisions of
Article XV hereof).
Section 2207. It is agreed that the Lessor and the Lessee
shall not alter, modify or amend any of the terms of this Lease and
Agreement without the prior written approval of the Trustee, which
consent will not be unreasonably withheld.
4L.
1 �
ARTICLE XXIII
EXPANSION OF FACILITIES
Section 2301. The progress of Lessee's business may justi-
fy an expansion of the industrial plant or the construction of addi-
tional industrial facilities (herein referred to as "additional facil-
ities") to such an extent that Lessee may not desire to proceed under
the provisions of Section 502 to construct such facilities. There-
fore, it is agreed, subject to all of the provisions of this Article
XXIII, as follows:
(a) If Lessee desires to construct additional facilities,
it may notify Lessor by registered or certified mail (with or without
return receipt requested) and Lessor agrees to proceed under the pro-
visions of Act No. 9 (or any similar then existing legislation
authorizing municipalities in the State of Arkansas to issue bonds
for the purpose of securing and developing industry) to issue addi-
tional bonds, subject to the requirements of Act No. 9, or any such
then existing law, to finance such additional facilities. In that
event, the Lessor and the Lessee agree to execute a separate Lease
and Agreement covering the financing of such additional facilities
and the leasing thereof to Lessee upon the same terms and conditions
as set forth in this Lease and Agreement, subject to any changes or
additions that may then be agreed upon by Lessor and Lessee, but
there must be included provision for basic annual rent in the amount
necessary to provide for the payment of the principal of and interest
on any such additional bonds, and the land involved in such expansion
program shall automatically be withdrawn from this Lease and Agree-
ment upon becoming subject to a separate Lease and Agreement between
Lessor and Lessee.
v t I
(b) if for any reason the additional facilities cannot
be financed under Act No. 9, or any then existing similar law, as
provided in sub- paragraph (a) above, or if Lessee desires to con-
struct additional facilities by the use of its own funds, Lessee
shall have the right, upon written notice to Lessor by certified or
registered mail (with or without return receipt requested), to re-
quire Lessor to convey the lands to be involved in said expansion
program to Lessee by general warranty deed free and clear of all
encumbrances except those to which title was subject when leased
hereunder. In the event the Lessee desires lands constituting part
or parts of the leased premises for the construction of facilities
for a supplier or suppliers of the Lessee, the Lessee may purchase
the same in order to make such land available for such use.
Section 2302. Lessor shall make appropriate provisions in
the Trust Indenture for a release of the lands to be involved in any
expansion program (under either Se ^tion 2301(a) or Section 2301(b)
from the lien of the Trust Indent -Ire. The consideration to be paid
by Lessee to Lessor upon conveyance of the lands pursuant to the pro-
visions of Section 2301(b) shall be One Dollar ($1.00) per acre and
the mutual benefits to be derived by the parties from such expan-
sion program.
Section 2303. The fact that the land involved in such ex-
pansion program shall cease to be subject to this Lease and Agreement
by virtue of becoming subject to a separate Lease and Agreement or
being acquired by Lessee shall not relieve, and shall not result in
the relieving of, Lessee of its obligation to pay basic rent and ad-
ditional rent or any of the other covenants and obligations on the
part of Lessee to be performed under this Lease and Agreement, or
result in any diminution thereof.
V&
it Is
Section 2304. Lessee's expansion program and the land
subject to said separate Lease and Agreement or said acquisition by
Lessee pursuant to the provisions of Section 2301 may include all or
any portion of the lands originally leased and demised by this Lease
and Agreement as shall not at such time be improved with a building
or buildings or other structure or structures, or necessary for
adequate ingress and egress to and from said buildings and structures,
as may be reasonably necessary for the proper and efficient use of
such buildings and structures for the purposes intended, if any.
Section 2305. The rights conferred upon Lessee by this
Article XXIII shall be in addition to,and not in limitation of any
of the options granted to Lessee by the provisions of Article XIX
hereof and the provisions of this Article XXIII are in addition to
and not a limitation upon Lessee's rights under Section 502 hereof.
X �
IN WITNESS WHEREOF, the parties hereto have caused this
Lease and Agreement to be signed in several counterparts, each of
which may be considered an original without the presentation of the
others, by their duly authorized officials and officers as of the
day and year first above written.
ATTEST:
City Clerk
(SEAL)
ATTEST:
Secretary
(SEAL)
CITY OF LITTLE ROCK, ARKANSAS
L E S S O R
By
Mayor
STRICKLAND TRANSPORTATION
COMPANY, INC. L E S S E E
ry
J
Title
W 41
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EXHIBIT A TO LEASE AND AGREEMENT
The following lands situated in Pulaski County, Arkansas:
A tract of land in the NE's, Section 30, T -1 -N,
R -12 -W, Pulaski County, Arkansas, more particularly
described as:
Starting at the southeast corner of NEk, said
Section 30; thence N 00081E, along the east line
of said Section 30, 80.0 feet to a point on-the
north right -of -way line of West 65th Street;
thence N 890181W along said north right -of -way
line, 400.0 feet to the point of beginning of
the tract of land herein described; thence
continue N 89018'W along said north right -of -way
line, 927.8 feet to a point on the west line of
the E'j NEk, said Section 30; thence N 0008'E along
said west line, 1,271.9 feet to a point; thence
S 89009'E, 1,051.9 feet to a point; thence along
the arc of a 301.5 foot radius curve to the left
a chord bearing and distance of S 27005'W, 273.8
feet to a point; thence S 0008'W, 1,023.6 feet
to the point of beginning containing 1,181,566.48
Square Feet or 27.12 Acres, more or less.
ACKNOWLEDGMENT
STATE OF ARKANSAS )
COUNTY OF PULA.SKI )
1f. -W
On this � — day of 1964, before
me, a Notary Public duly commissioned, qualified and acting, within
and for the State and County aforesaid, appeared in person the
within named Byron R. Morse and Pauline G. Beeson, Mayor and City
Clerk, respectively, of the City of Little Rock, Arkansas, a
municipality of the State of Arkansas, to me personally known, who
stated that they were duly authorized in their respective capacities
to execute the foregoing instrument for and in the name of said
municipality, and further stated and acknowledged that they had
signed, executed and delivered said foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this day of 1964.
Notary Public
My commission expires:
ACKNOWLEDGMENT
STATE OF ARKANSAS )
COUNTY OF PULASKI )
On this _ day of , 1964, before me,
a Notary Public duly commissioned, qualified and acting, within and
for the County and State aforesaid, appeared in person the within
named and ,
and respectively,
of Strickland Transportation Company, Inc., a Texas corporation, to
me personally known, who stated that they were duly authorized in
their respective capacities to execute the foregoing instrument for
and in the name and behalf of said corporation, and further stated
and acknowledged that they had so signed, executed and delivered
said foregoing instrument for the consideration, uses and purposes
therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this day of , 1964.
Notary Public
My commission expires;
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'Ile M► ` W
Section 2. That the mayor and City Clerk be, and they are
hereby, authorized and directed, for and on behalf of the City, to
do all things, execute all instruments and otherwise take all action
necessary to the realization of the City's rights and to the dis-
charge of the City's obligations as Lessor under said Lease and
Agreement.
Section 3. That the provisions of this ordinance are
hereby declared to be separable and if any section, phrase or pro-
vision shall, for any reason, be declared to be invalid, such
declaration shall not affect the validity of the remainder of the
sections, phrases or provisions.
Section 4. That all ordinances and parts thereof in con-
flict herewith are hereby repealed to the extent of such conflict.
Section 5. That there is hereby found and declared to be
an immediate need for the securing and developing of industry in
order to provide additional employment and increased payrolls,
alleviate unemployment and provide other benefits incidental to
the operation of a substantial industry, and the execution and
delivery of the Lease and Agreement authorized by this ordinance
are necessary for the accomplishment of these public benefits and
purposes. It is, therefore, declared that an emergency exists and
this ordinance, being necessary for the immediate preservation of
the public health, safety and welfare, shall be in force and take
effect immediately upon and after its passage.
ATTEST:
PASSED: August 17 , 1964.
.�. f-eaLIM4 //
City Clerk
APPROVED:
Mayor
At
v' E' ►
CERTIFICATE
The undersigned, City Clerk of the City of Little Rock,
Arkansas, hereby certifies that the foregoing pages are a true and
compared copy of an ordinance passed at a session of
the Board of Directors of Little Rock, Arkansas, held at the
regular meeting place of the Board of said City at o °clock
.m. on the day of , 1964, and that said
Ordinance is of record in Ordinance Record Book at page
now in my possession.
GIVEN under my hand and seal this day of ,
1964.
City Clerk
(SEAL)
CCf