Exhibit 10.11
GROUND LEASE WITH OPTION
This Ground Lease Agreement is made as of the 1st day of June, 1996
("Agreement"), by and between XXXX X. XXXXXXX, trustee of Xxxx X. Xxxxxxx
Revocable Trust dated December 28, 1989 (hereinafter referred to as "Lessor"),
and XXXX X. XXXXXXX HOTELS TWO, L.P., a Delaware limited partnership
(hereinafter referred to as "Lessee").
W I T N E S S E T H:
WHEREAS, Lessor owns certain unimproved real property located in Pulaski
County, Arkansas; and
WHEREAS, Lessor wishes to lease to Lessee, and Lessee wishes to lease the
property from Lessor, for the purpose of constructing a full service hotel and
convention center thereon.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties agree as follows:
1. PROPERTY. For and in consideration of the rent to be paid and the
covenants to be performed by Lessee hereunder, Lessor hereby leases to Lessee
the real property described in Exhibit "A" attached hereto and made a part
hereof (the "Property").
2. LEASE TERM. The term of this Lease shall be for a period of forty (40)
years (the "Lease Term"), commencing as of May 15, 1996 (the "Commencement
Date") and terminating on May 14, 2036, both dates inclusive.
3. RENT.
(a) Rent. Commencing upon the earlier of Lessee's receipt of a
certificate of occupancy from Pulaski County or the commencement of
business operations on the Property, Lessee agrees to pay to Lessor
rent (the "Rent") as follows:
Year 1 - $80,000 annually
Year 2 - $100,000 annually
Year 3 - $120,000 annually
Year 4 - $120,000 annually
Year 5 - $120,000 annually
For each successive lease year provided for in this Lease, the rental
amount will be increased to an amount equal to the product of the increase in
the Consumer Price Index ("CPI") comparing the CPI at the commencement date
with the starting date of the renewal term and multiplying the percentage
increase by the $120,000 annual rent, provided, however, that in no event shall
the rent be less than $120,000 per year.
If at any time required for the determination of the additional rent
the Index is no longer published or issued, the parties shall use such other
Index as is then generally recognized and accepted for similar determination of
purchasing power.
(b) Payment of Rent. The Rent shall be payable in quarterly
installments on the first day of January, April, July and October of
each year during the Lease Term.
Unless and until Lessee is otherwise notified in writing by
Lessor, Lessee shall pay all rent and other amounts payable to Lessor
under this Agreement by
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check or draft made payable to Lessor and either hand delivered or
mailed by Lessee to Lessor's address shown in Section 20 herein.
4. LESSOR'S REPRESENTATIONS, WARRANTIES, AND COVENANTS.
Lessor hereby represents, warrants, and covenants the following to Lessee:
(a) Suitability. Lessor knows of no circumstances or conditions
which would render the Property inappropriate for the construction and
operation of hotel and restaurant facilities.
(b) Title. Lessee has good and marketable fee simple title to
the Property.
(c) Contracts. It is understood by the parties hereto that
Lessee intends to use the Property for the construction and operation
of a hotel and accompanying restaurant facilities. There are no
licenses, contracts, or leases to which Lessor is a party and which
materially and adversely affect the ownership or management of the
Property, as set forth herein.
(d) Zoning. Under the zoning and ordinances applicable to the
Property, the anticipated use of the Property as a hotel with
accompanying restaurant facilities is proper and does not violate
those laws or ordinances.
(e) Availability. There are no adverse or other parties in
possession of the Property, or of any part thereof. No party has been
granted any license, lease, or other right relating to the use of a
possession of the Property or any party thereof.
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(f) Adverse Actions. There is no pending or threatened litigation or
governmental action which would adversely affect the value of the Property or
Lessee's right to lease the Property for Lessor. Lessor has received no notice
from any governmental authority of violations with respect to the Property
which have not been heretofore corrected, and there is no planned or commenced
public improvement which may result in special assessments or otherwise
materially affect the Property, or any government agency or court order
requiring repair, alteration, or correction of any existing with respect to the
Property.
(g) Disputes. Lessor is not aware of any boundary, survey, or title
questions or disputes with respect to the Property.
(h) Hazardous Materials.
(i) Definitions. The term "Hazardous Materials" shall mean any
substance, (1) the presence of which requires investigation or remediation
under any federal, state or local statue, regulation, ordinance or policy;
or (2) which is defined as a "hazardous waste" or "hazardous substance"
under any federal, state or local statute, regulation or ordinance; or (3)
which is toxic, explosive, corrosive, infectious, carcinogenic or otherwise
hazardous; or (4) without limitation, contains asbestos, polychlorinated
biphenyls (PCB's), oil, petroleum, petroleum products or fractions thereof,
volatile organic compounds, semi-volatile organic compounds, or heavy
metals. The term "Adverse Environmental Condition" shall mean any
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condition which has already caused, or can reasonably be expected
to cause, a serious diminution in the quality or quantity of the
air, water, land (including soil and subsurface), and wildlife
located on, above or below the Property.
(ii) Warranty and Covenant. Lessor warrants that the
Property has not been contaminated or polluted by, or used for
the storage or disposal of any Hazardous Material, and Lessor has
received no notice from any governmental authority concerning the
presence or removal of any Hazardous Material on or adjacent to
the Property. Lessor covenants that it will notify Lessee
immediately in the event that evidence of an adverse
environmental condition is discovered during the term of this
Lease, or an event occurs which may result in an adverse
environmental condition, including, but not limited to, release,
emission or spill of hazardous substances.
(iii) Correction of Adverse Condition. Upon the discovery
of evidence of an adverse environmental condition, Lessor shall
immediately undertake an investigation to determine whether an
adverse environmental condition does exist and, if so, the nature
and extent thereof. Lessor shall engage such experts as may
reasonably be required to perform its obligations hereunder.
Lessor shall provide to Lessee copies of all information and
reports which it receives in connection with the
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investigation. Lessor shall then formulate a plan of remediation (the "Plan").
Lessee shall be provided with a copy of the Plan. The Plan shall comply, in all
respects, with all applicable federal, state and local laws, regulations and
policies, and shall have the approval, if required, of all applicable
governmental authorities possessing jurisdiction.
(iv) Indemnification. Lessor agrees to fully indemnify, protect, defend
and hold Lessee, its successors and assigns, harmless from and against any
and all claims for damage, loss or liability, including reasonable attorney
fees, as a result of any discovery of Hazardous Materials on the Property or
other Adverse Environment Condition unless Lessee contributed to the presence
of the Hazardous Materials or caused the Adverse Environmental Condition.
Nothing contained herein shall be deemed to prohibit Lessor from collecting
some or all of the costs of remediation from other, potentially responsible
parties.
(i) Prior Uses. The Lessor knows of no prior uses of the Property which
would diminish the Property's value. For example, such prior uses might include
the Property's use as a cemetery, a site for chemical testing or manufacture, or
as a dumping ground for refuse.
(j) Continuing Suitability. From and after the date of this Agreement,
Lessor shall keep the Property free and clear of all easements, liens or
encumbrances.
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(k) Authority. Lessor warrants and represents to Lessee that
Lessor has full right and lawful authority to enter, execute and
deliver this Agreement to Lessee.
(l) Non-Competition. Lessor shall not permit or suffer to be
constructed or operated on property owned by Lessor or a related
entity under the control of Lessor within five (5) miles of the
Property as a hotel or motel business (including any business which
customarily rents rooms, suites or apartments for periods of less than
thirty (30) days) for a period of ten (10) years. Lessor shall record
a declaration or covenant restricting the use of the property affected
by this section.
6. CONDITIONS PRECEDENT. The obligations of Lessor and Lessee hereunder
shall be subject to the satisfaction of the following conditions precedent:
(a) That all representations and warranties made by the parties
herein shall be true and correct as of the Commencement Date.
(b) Lessee receives all necessary federal, state, and local
government approval for use of the Property and the improvements to be
constructed upon thereon as a hotel.
In the event that Lessee shall not receive approval as specified
in this Section 6(b), Lessee shall be discharged of all obligations
hereunder and relieved from any liabilities to Lessor.
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7. CONSTRUCTION OF HOTEL BY LESSEE.
(a) COnstruction Documents. Lessee has submitted to Lessor for its
approval and Lessor has approved the plans and specifications for the
construction of a hotel on the Leased Property.
(b) Construction. The Lessee shall commence construction of the hotel and
parking facilities on the Leased Property. The Lessee shall diligently pursue
the work to completion, and the hotel shall be fully ready to open for business
not later than September 1, 1997 except as such date may be extended by the
number of working days lost by reason of strikes, fire, acts of God, or other
events beyond the Lessee's control.
(c) Easements for Utilities. Lessee shall have the right to enter into
agreements with and grant easements and licenses over and across the Property
to suppliers of utility services including, without limitation, gas,
electricity, telephone, water and sewer, to the extent necessary to service the
improvements, and Lessor agrees to consent thereto and execute any documents,
agreements and instruments reasonably required in connection therewith.
(d) Completion Documents. Upon the completion of the hotel, the Lessee
shall deliver to the Lessor each of the following:
(i) A certificate of completion by the architect who supervised the
construction, which will state that all work has been completed in
accordance with the approved plans and specifications.
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(ii) A certificate of occupancy, or any equivalent permit or
certificate from Pulaski County, Arkansas indicating the hotel is
complete and ready for occupancy by the general public.
(iii) A survey of the Leased Property, showing the completed
hotel and parking facilities, indicating that there are no
encroachments by either on any adjoining premises.
(e) Certificate of Title. Within thirty (30) days after the completion
of the hotel, the Lessee shall deliver to the Lessor a certificate from a
title company doing business in Pulaski County, Arkansas currently dated,
that the time for the filing of mechanic's, materialman's, and similar
liens has expired, or, if such is not the case, that a search of the record
shows that no such liens then encumber the Leased Property. If the latter
information is furnished by the title company, within one hundred eighty
days (180) days thereafter, the Lessee shall deliver a further certificate
of the title company indicating that no such liens then encumber the Leased
Property.
8. LESSEE'S OPTION TO PURCHASE. At any time during the first ten (10)
years of the lease term from May 15, 1996 through May 14, 2006, both dates
inclusive, Lessee is hereby given the option to purchase the Property on the
terms and conditions as set forth in this Section 8. The option to purchase the
property must be exercised by Lessee no later than the 14th day of May, 2006.
Lessee shall exercise the option by notifying Lessor in writing sent by
registered or certified mail, return receipt requested, or by personal delivery
of its intention to
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exercise the option. The date on which said notice is received by Lessor shall
be considered the day on which the option is exercised. Receipt of such notice
by Lessor shall constitute a binding contract between Lessor and Lessee to
purchase the Property. The option to purchase under this Section 8 may only be
exercised by Lessee if the Lessee is not in default of any of its obligations
or covenants under this lease at the time the option is exercised. Lessee may
assign this option to purchase to any of its affiliated companies as defined
elsewhere in this agreement. In the event of exercise by Lessee of its option
to purchase the property, the following terms and conditions shall be
applicable to such sale:
(a) The purchase price for the Property shall be One Million Nine
Hundred Thousand and No/100 Dollars ($1,900,000.00) or the appraised
value, whichever is greater.
(b) The purchase price as set forth in Section 8(a) shall be paid
at closing (as hereinafter defined) with cash or certified funds.
(c) Lessee's rent obligation to Lessor shall cease as of the
closing date. No portion of rent paid or payable for any period prior
to the closing date shall be applied to the purchase price.
(d) Within ten (10) days following the date on which Lessee
exercises its option, Lessor shall provide at his expense, a title
insurance commitment from a company authorized to insure titles in the
state of Arkansas, showing merchantable title in Lessor in accordance
with the title examination standards of the Arkansas Bar, free and
clear of all liens and encumbrances except recorded
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restrictions and easements now or hereafter. At Lessee's option, Lessee shall
have the title insurance commitment examined within ten (10) days after receipt
thereof and any title requirements shall be communicated to Lessor and a
reasonable time will be allowed for Lessor to comply with such requirements. The
Lessor shall pay the search charge only for the title commitment and Lessee
shall pay the owner's policy fee. Lessor shall warrant at closing that there are
no unpaid bills for improvements within six months prior to closing except for
such improvements as made or caused to be made by Lessee and that Lessor has no
knowledge of any proposed sidewalk, street or sewer improvements or any
proceedings to result in special tax bills or assessments against the Property.
(e) The closing date shall be within thirty (30) days after receipt by
Lessor of a notice form Lessee exercising its option to purchase the property.
Possession of the Property shall be given to Lessee at closing.
(f) Lessor shall convey the property by General Warranty Deed.
(g) All rent, taxes, insurance and other ordinary expenses or assessments
shall be prorated as of the closing date. If taxes for the year in which the
option is exercised cannot be determined, proration shall be based on the
proceeding year's taxes.
(h) In the event a closing service is used by the parties to close the
transaction, the cost of such closing service shall be shared equally by the
parties.
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9. INSURANCE. At all times during the Lease Term, Lessee shall maintain in
force and effect, at its own cost and expense, a policy or policies of Public
Liability Insurance for the protection, indemnification and defense of Lessee
against claims, demands and causes of action arising out of or in connection
with the use, maintenance, operation and occupancy of the Property, which
policy or policies shall have limits of not less than One Million Dollars
($1,000,000.00) combined limits coverage per occurrence for bodily injury
liability and property damage liability. At Lessor's request, Lessee shall name
Lessor's mortgagee as an additional insured under any policy of liability
insurance. All insurance required to be maintained under the provisions of this
Lease shall be written by insurer(s) which Lessor shall reasonably approve as
to financial ability, and authorized to write insurance in the state where the
Property is located. Upon request of Lessor, Lessee shall cause the insurer(s)
to furnish Lessor certificate(s) evidencing the insurance required to be
maintained hereunder naming the Lessor as additional insured.
10. COVENANTS AGAINST LIENS. If, because of any act or omission of Lessee,
any mechanic's lien or other lien, charge or order for the payment of money
shall be filed against Lessor or against the Property or improvements, Lessee
shall, at its own cost and expense, cause the same to be discharged; and Lessee
shall indemnify and hold harmless Lessor against and from all costs,
liabilities, suits, penalties, claims and demands resulting therefrom. Lessor
and Lessee agree that Lessee shall have the right to contest any lien filed
against the Property or the improvements thereon.
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11. TAXES.
(a) Lessee to Pay Taxes. Lessee agrees to pay all "Taxes" (as that term is
hereinafter defined) against the Property becoming due or payable during the
term of this Lease, and a pro-rata portion of the installment of Taxes becoming
due and payable during the years that this Agreement commences and expires,
said pro-rata share to be determined as of the Commencement Date and expiration
date of this Agreement and in the customary method of prorating real estate
taxes in Pulaski County, Arkansas. Lessee shall not be obligated to pay any
installment of any special assessment which may be assessed, levied or
conformed during the Lease Term, but which does not fall due and is not
required to be paid until after the expiration of this Agreement, except for a
pro-rata share of the installment becoming payable next following the
expiration of this Agreement.
(b) Taxes Defined. As used herein, the term "Taxes" shall mean all taxes,
assessments and levies, whether general or special, ordinary or extraordinary,
of every nature and kind whatsoever, which may be taxed, charged, assessed,
levied or imposed at any time or from time to time during the Lease Term by any
governmental authority upon or against the Property or the possession or use
thereof. The term "Taxes" shall not include (and Lessee shall not be required
to pay) any franchise, estate, inheritance, transfer, income or similar tax of
Lessor, including, but not limited to, any income tax imposed with respect to
Lessor's income from the Property.
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(c) Payment of Taxes. The Taxes above provided to be paid by Lessee
shall be paid before any delinquency can occur therein or in any part or
installment thereof, and proof of payment shall be delivered at the request
of Lessor. In the event Lessee fails to pay such Taxes, Lessor may, but
shall not be required to, pay the same for the Lessee's account, and such
payment shall constitute and be collectible as additional rent.
(d) Tax Notices. Lessor will promptly deliver to Lessee any and all
tax notices or assessments which Lessor may receive relating to the
Property.
12. UTILITIES. Lessee, at its sole cost and expense, shall obtain and
promptly pay for all utility services required for the operation of or
furnished to or consumed on the Property, including, without limitation,
electricity, gas, water, sewer, heat, telephone, garbage collection, and all
charges for any of the foregoing.
13. DESTRUCTION BY FIRE OR OTHER CASUALTY. In the event that the
improvements to be constructed on the Property by Lessee shall be totally
destroyed by fire or other casualty, Lessee shall not be required to rebuild.
Instead, Lessee may elect, within ninety (90) days after the date of loss to
terminate this Agreement. If the improvements constructed upon the Property by
Lessee are only partially destroyed, Lessee shall promptly reconstruct the
improvements to its condition immediately proper to the fire or other casualty.
In the event of a complete loss and termination of this Agreement, the rent
shall cease to be payable as of the date of loss. In the event of a partial
loss, the rent shall be reduced the same percentage as the percentage of the
building which is unusable.
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14. ASSIGNMENT AND SUBLETTING. Lessee shall not assign this Lease in whole
or in part, or sublet all or any part of the Property, except as provided
herein, without obtaining the prior written consent of Lessor, which consent
shall not be unreasonably withheld. Lessee may sublet or assign this Lease to
an affiliated company. An affiliated company is any business entity in which
Xxxx X. Xxxxxxx Hotels, Inc. or Xxxx X. Xxxxxxx Hotels Two, L.P., together or
separately, hold a beneficial or equitable interest in greater than one-third
(1/3) of the company's assets.
15. INDEMNIFICATION OF LESSOR. Lessee shall defend, indemnify and hold
Lessor harmless from and against any claim, loss, expense or damage to any
person or property in or upon the Property or any area allocated to or used
exclusively by Lessee or their customers, agents, employees or invitees arising
out of Lessee's use or occupancy of the Property, or on adjoining sidewalks,
streets or ways, or any act or neglect of Lessee or Lessee's invitees,
employees, contractors, customers, or agents, except claims for damages or
injuries (including death) caused in whole or in part by the willful or
negligent act(s) of Lessor or the agents, servants, or employees of Lessor.
16. ADDITIONS AND IMPROVEMENTS BY LESSEE. At Lesses's sole expense, Lessee
may construct a hotel and accompanying facilities on the Property and may make
other alterations, additions or improvements in or to the Property. Lessee
shall provide Lessor with proposed architectural and engineering plans as soon
as practical after the execution of this Agreement. Lessor shall have the right
to review the proposed plans for improvements of the Property and to approve
the plans provided, however, Lessor may not unreasonably withhold their
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approval. All alterations, additions and improvements constructed on the
Property shall remain on the Property at the expiration of the Lease Term.
Outside signage will be allowed to identify and advertise activities
located on the Property. Lessee shall provide Lessor with proposed outside
signage plans prior to signage being erected. Lessor shall have the right to
review and approve proposed plans, and Lessor agrees that its approval will not
be unreasonably withheld.
17. CONDEMNATION. If, during the Lease Term, any part of the Property is
condemned or taken by eminent domain, or if any street or entrance providing
access to the Property is permanently closed or blocked, and the Property is
thereby rendered unsuitable or inadequate for the continuation of Lessee's
normal, full-scale business operations thereon as reasonably determined by
Lessee, then, at Lessee's option, Lessee may terminate this Lease as of the
date of such occurrence. If this Lease is so terminated, the entire award
attributable to the Property made by the condemning authority shall be paid to
Lessor, without, however, limiting the right of Lessee to assert a claim in the
condemnation proceeding for the value of its leasehold improvements and
goodwill. If such occurrence does not render the Property unsuitable or
inadequate for such purposes, this Lease shall remain in full force and effect;
and the entire award attributable to the Property made by the condemning
authority shall be paid to Lessor, although Lessee may assert a claim in the
condemnation proceeding for its business interruption or diminution loss.
18. DEFAULT. If Lessee should default in the performance of any covenant
or condition of this Lease (except for default in the payment of any rent or
other amount due to
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Lessor hereunder, which Lessee must cure within thirty (30) days after service
of written notice thereof upon Lessee and such default is not cured or removed
within ninety (90) days after service of written notice of default upon Lessee
and/or Lessee fails to make a reasonable effort to cure the default within the
ninety (90) day period set forth above, Lessor shall have the right to sublet
the premises for the benefit of Lessor and Lessee or terminate this Lease, in
which event Lessor shall pay to Lessee eighty percent (80%) of the fair market
value of the improvements constructed on the Property. The fair market value of
the improvements shall be determined as of the date of the termination of this
Agreement by independent appraisal and arbitration as follows: One appraiser
shall be selected by Lessor, one by the Lessee, and a third by the first two
appraisers chosen. The decision of a majority of the appraisers shall be
binding on Lessor and Lessee. In the event of arbitration as set forth herein,
closing shall occur no later than thirty (30) days following the decision by
the appraisers.
19. COVENANT OF QUIET ENJOYMENT. Upon payment by the Lessee of the rent
herein provided, and upon the observance and performance of all covenants,
terms and conditions on Lessee's part to be observed and performed by Lessee,
Lessee shall peaceably and quietly hold and enjoy the Property for the term
hereby demised without hindrance or interruption by Lessor or any other person
or persons lawfully or equitably claiming by, through, or under the Lessor
subject, nevertheless, to the terms and conditions of this Lease.
20. LESSEE'S RIGHT OF FINANCING.
(a) Encumbrance of Leasehold Interest. Lessee is given and has the
absolute right, without Lessor's consent, to encumber its interest in this
Lease so
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long as it is not in default hereunder and except that no such deed of
trust, mortgage or assignment shall extend to or affect the fee simple
interest of the Lessor. The holder of any deed of trust, mortgage or
assignment of this Lease or of Lessee's interest hereunder, and any one
claiming by, through, or under any such holder, shall not acquire any
greater rights hereunder than Lessee has (except the right to cure or
remedy Lessee's defaults), and shall not become entitled to a new Lease if
this Lease is terminated or Lessee fails to exercise any outstanding option
to extend this Lease. No mortgage, deed of trust or assignment of this
Lease or of Lessee's interest hereunder by Lessee or its successors and
assigns shall be valid unless this Lease is in full force and effect when
such mortgage, deed of trust or assignment is created and the mortgage,
deed of trust or assignment is subject to all the agreements, terms,
covenants and conditions of this Lease.
(b) Lessor to Subordinate. Lessor shall, within ten (10) days after
request by Lessee or Lessee's lender, execute and deliver a written
agreement subordinating this Agreement to any real estate mortgage
hereafter placed upon the Property and the improvements to be constructed
thereon.
(c) Notice of Lease Default. If, before any default occurs in this
Lease, the holder of any mortgage, deed of trust or assignment, gives
Lessor a written notice containing the holder's name and office address,
Lessor shall give the holder a copy of each notice of default by Lessee at
the same time that Lessor gives that
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notice to Lessee. Each copy of the notice shall be deemed duly given to the
holder when mailed to the holder at its last post office address furnished
to Lessor.
(d) Cure of Default. Lessor shall accept performance by the holder
of any mortgage, deed of trust, or assignment of any obligation of this
Lease that Lessee is required to perform, with the same force and effect as
if performed by Lessee, provided that at the time of that performance,
Lessor is furnished with satisfactory evidence that the person, firm, or
corporation tendering that performance or payment has the claimed interest
in the Leased Property. The holder of a mortgage, deed of trust or
assignment shall have ten (10) days after receipt of any notice of default
within which to cure any default in the payment of rent or additional rent
under this Lease, and a reasonable time (not less than thirty (30) days)
within which to cure any other default.
21. NOTICES. Any notices or inquires regarding this Agreement shall be
delivered to Lessor at 300 Xxxx X. Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxx 00000, and to Lessee at 300 Xxxx X. Xxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxx 00000, or to such other address as the parties may
designate in writing.
All notices shall be deemed received on the earlier of (1) actual receipt,
or (2) three (3) days (excluding Sundays and federal holidays) after delivery
to the United States Post Office. Any address to which notices are sent
hereunder may be changed by notice to the parties hereto in the manner
hereinabove provided.
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22. MEMORANDUM OF LEASE. The parties shall execute a Memorandum of
Lease for purposes of recording the same in the office of the Recorder of Deeds
for Taney County, Missouri, and the form as attached hereto as Exhibit "C".
23. EXECUTION. This Agreement is executed in multiple originals and
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, successors, assigns and legal representatives. The
rights of Lessor hereunder may be assigned in whole or in part. If Lessee
herein shall be more than one party, then the obligations of such parties
herein shall be joint and several. The paragraph captions used herein are for
convenience only and shall not be deemed to have been included for any other
purpose.
24. NO ORAL AGREEMENTS. It is expressly agreed between the Lessor
and the Lessee that there are no verbal understandings or agreements which in
any way change the terms, covenants and conditions herein set forth, and that
no modification of this Agreement and no waiver of any of its terms and
conditions shall be effective unless made in writing and approved and accepted
by both parties to this Agreement.
25. INVALID OR INAPPLICABLE CLAUSE. Should any covenant or condition
of this Agreement, to any extent, be held invalid or unenforceable by a final
judgment of a court of competent jurisdiction, the remaining terms and
conditions shall remain in full force and effect and shall be enforceable to
the full extent of the law.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
/s/ Xxxx X. Xxxxxxx
--------------------------------
XXXX X. XXXXXXX, Trustee of
Xxxx X. Xxxxxxx Revocable Trust
Dated December 28, 1989
"LESSOR"
XXXX X. XXXXXXX HOTELS TWO, L.P.
BY ITS GENERAL PARTNER
XXXX X. XXXXXXX HOTELS, L.P.
BY ITS GENERAL PARTNER
XXXX X. XXXXXXX HOTELS, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
XXXXX X. XXXXX, President and
Chief Operating Officer
"LESSEE"
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EXHIBIT "A"
The East 100 feet of the North 150 feet of Lot 38, West Highland Subdivision in
the City of Little Rock, Pulaski County, Arkansas, LESS AND EXCEPT Part of the
North 150 feet of the East 100 feet of Xxx 00, Xxxx Xxxxxxxx Xxxxxxxxxxx,
Xxxxxx Xxxx, Xxxxxxxx, more particularly described as follows: Beginning at
the Northeast corner of said Lot 38; thence South 0 degrees 22 minutes 05
seconds East along the East line of said Lot 38, 63.97 feet to a point; thence
North 83 degrees 14 minutes 08 seconds West 100.77 feet to a point on the West
line of the North 150 feet of the East 100 feet of said Lot 38; thence North 0
degrees 22 minutes 05 seconds West along the said West line 53.0 feet to the
Northwest corner of said North 150 feet of the East 100 feet of said Lot 38;
thence South 89 degrees 29 minutes 05 seconds East along the North line of said
Lot 38, 100.0 feet to the point of beginning.
AND
Lot 38, West Highland Subdivision in the City of Little Rock, Pulaski County,
Arkansas, LESS AND EXCEPT the East 100 feet of the North 150 feet thereof, and
LESS AND EXCEPT Part of Lot 38, West Highland Subdivision in the City of Little
Rock, Pulaski County, Arkansas more particularly described as: Beginning at the
Northwest corner of said Lot 38, thence South 89 degrees 29 minutes 05 seconds
East along the North line of said Lot 38, 205.15 feet to the Northwest corner
of the North 150 feet of the East 100 feet of said Lot 38; thence South 0
degrees 22 minutes 05 seconds East along the West line of said North 150 feet
of the East 100 feet, 53.0 feet to a point; thence North 88 degrees 56 minutes
44 seconds West, 205.19 feet to a point on the West line of said Lot 38; thence
North 0 degrees 22 minutes 05 seconds West along said West line, 51.07 feet to
the point of beginning.
AND
Lot 43, West Highland Subdivision in the City of Little Rock, Pulaski County,
Arkansas.
