EXHIBIT 10.3
86-82744
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XXXX XXXXX XXXX,
XXXXXX XXXX, XXXXXXXX
CONSTRUCTION, OPERATION AND
RECIPROCAL EASEMENT AGREEMENT
by and among
CONSTRUCTION DEVELOPERS, INCORPORATED,
AN ARKANSAS CORPORATION,
XXXXXXX DEPARTMENT STORES, INC.,
A DELAWARE CORPORATION,
and
XXXXXXX-MARATHON MASTER PARTNERSHIP B,
A TEXAS GENERAL PARTNERSHIP
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[STAMP]
TABLE OF CONTENTS
PAGE
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PARTIES .............................................................................. 1
RECITALS ............................................................................. 1
DEFINITIONS .......................................................................... 2
PART I
ARTICLE I DESIGN ................................................................ 7
Section 1.1 Designing ............................................................. 7
Section 1.2 Plans for Common Area Site Work ....................................... 8
Section 1.3 Approval of Preliminary Plans ......................................... 8
Section 1.4 Plans and Specifications by Developer ................................. 9
Section 1.5 Approval of Final Plans ............................................... 10
Section 1.6 Design Schematics by Department Store ................................. 10
Section 1.7 Parking Requirements .................................................. 11
Section 1.8 Effect of Approval .................................................... 11
Section 1.9 Compliance with Laws .................................................. 11
Section 1.10 Preparation of Plans and Document Approval ............................ 11
PART II
ARTICLE II CONSTRUCTION OF SHOPPING CENTER ....................................... 12
Section 2.1 Common Area Site Work ................................................. 12
Section 2.2 Construction by Dillard ............................................... 12
Section 2.3 Changes in Buildings .................................................. 13
Section 2.4 Construction Requirements and Standards ............................... 13
Section 2.5 Progress Reports ...................................................... 15
Section 2.6 Future Expansion ...................................................... 15
Section 2.7 Insurance During Construction ......................................... 16
Section 2.8 Liens 17
PART III
ARTICLE III OPERATION ............................................................. 17
Section 3.1 Shopping Center Name .................................................. 17
Section 3.2 Tenant Selection ...................................................... 18
Section 3.3 Advertising and Promotional Service ................................... 18
Section 3.4 Common Areas Operation ................................................ 19
Section 3.5 Resident Manager ...................................................... 20
Section 3.6 Utilities ............................................................. 20
Section 3.7 Taxes ................................................................. 20
Section 3.8 Insurance During Operation ............................................ 20
Section 3.9 Maintenance ........................................................... 25
Section 3.10 Compliance with Laws .................................................. 27
Section 3.11 Signs ................................................................. 28
ARTICLE IV OPERATING COVENANTS ................................................... 29
Section 4.1 Developer Operating Covenant .......................................... 29
Section 4.2 Dillard Operating Covenant ............................................ 30
Section 4.3 Temporary Cessation of Business ....................................... 32
(i)
PAGE
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PART V
ARTICLE XI MISCELLANEOUS ..................................... 57
Section 11.1 Parties Not Partners .............................. 57
Section 11.2 No Waiver ......................................... 57
Section 11.3 Captions .......................................... 58
Section 11.4 Governing Law ..................................... 58
Section 11.5 Severable Provisions .............................. 58
Section 11.6 Modification ...................................... 58
Section 11.7 Counterparts ...................................... 58
Section 11.8 Developer's Liability ............................. 58
Section 11.9 Estoppel Certificate .............................. 59
Section 11.10 No Public Dedication .............................. 60
Section 11.11 No Third Party Beneficiary ........................ 60
Section 11.12 Land Covenants .................................... 60
Section 11.13 Force Majeure ..................................... 61
Section 11.14 Term .............................................. 61
Section 11.15 Termination Rights ................................ 61
Section 11.16 Recording ......................................... 62
Section 11.17 Notices ........................................... 62
Section 11.18 Successors ........................................ 63
Section 11.19 Mortgagee's Right to Cure Defaults ................ 63
Section 11.20 Limitation of Mortgagee's Liability ............... 63
SIGNATURE PAGE
EXHIBITS
EXHIBIT A Part I Shopping Center Tract
Part II Dillard Tract
Part III Condev Tract
Part IV Developer Tract
Part V Reserve Tract
EXHIBIT B Plot Plan
(ii)
CONSTRUCTION, OPERATION AND RECIPROCAL
EASEMENT AGREEMENT
THIS CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT (hereinafter
referred to as the "Agreement"), made as of the 15th day of December, 1986, to
be effective as of December 31, 1986 (such later date being hereinafter
sometimes referred to as the "Date of this Agreement"), by and among
XXXXXXX-MARATHON MASTER PARTNERSHIP B, a Texas general partnership, having its
principal place of business at One Galleria Tower, Suite 1200, 00000 Xxxx Xxxx,
Xxxxxx, Xxxxx 00000-0000 (hereinafter referred to as "Developer"), CONSTRUCTION
DEVELOPERS, INCORPORATED, an Arkansas corporation, having its principal place of
business at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 (hereinafter
sometimes referred to as "Condev"), and XXXXXXX DEPARTMENT STORES, INC., a
Delaware corporation, having its principal place of business at 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 (herein sometimes referred to as "Dillard
Store"; Condev and Dillard Store being hereinafter sometimes referred to
collectively as "Dillard").
W I T N E S S E T H:
WHEREAS, Developer, Dillard Store and/or Condev have heretofore or
simultaneously with the effectiveness of this Agreement each acquired fee simple
title to certain adjoining parcels of land (hereinafter referred to respectively
as the "Developer Tract", "Dillard Tract" and "Condev Tract"), each as shown on
the Plot Plan attached hereto as Exhibit B; and
WHEREAS, there is presently located (a) on the Developer's Tract a fully
improved and developed shopping center with a partially enclosed courtyard style
design which Developer shall modify and reconstruct as an enclosed mall, and (b)
on the Dillard Tract a fully improved and developed department store,
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each of which have been opened to the public and have carried on business for an
extended period of time; and
WHEREAS, Condev has heretofore or simultaneously with the effectiveness of
this Agreement acquired fee simple title to a tract of land hereinabove
described as the Condev Tract, which is adjacent to the Developer Tract upon
which Dillard Store and/or Condev shall construct or cause to be constructed a
department store and other improvements; and
WHEREAS, in order to make use of their Tracts as an integrated shopping
center, Developer, Dillard Store and Condev desire to exchange with each other
certain easements in, to, over, under and across their respective Tracts and to
make certain other covenants and agreements, all as hereinafter provided and
more specifically set forth; and
WHEREAS, it is the intention of this Agreement to set forth the rights,
obligations, duties and responsibilities of the Parties in connection with the
development and use of the buildings and the operation thereof.
NOW, THEREFORE, for valuable consideration paid by each of the Parties to
the other, the receipt and sufficiency of which are hereby acknowledged, and in
further consideration of the mutual covenants and agreements herein contained,
it is hereby contracted, covenanted and agreed as follows, to-wit:
DEFINITIONS
As used in this Agreement, the following words and phrases, shall mean:
(1) "BUILDING(S)" - all Improvements to and upon the Shopping Center
Tract, excluding the Common Areas, (except the Enclosed Mall), the
Outdoor Selling Area, if any, and the landscaping, if any, between
the exterior perimeter walls of Buildings and the Building Perimeter
Sidewalks.
(2) "BUILDING PERIMETER SIDEWALK" - sidewalks that adjoin either (a) the
exterior perimeter walls of the Buildings situated upon the Shopping
Center Tract, or (b) landscaping adjacent to the exterior perimeter
walls of said Buildings, all as shown on the Plot Plan.
(3) "COMMON AREA" - all areas within the exterior boundaries of the
Shopping Center Tract (including, but not limited to, all items of
Common Area shown on Exhibit B) which are for the general use,
convenience and benefit of all the Parties hereto (and their tenants,
subtenants,
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customers, employees, concessionaires and other Permittees) and not the
Floor Area intended for the exclusive use and occupancy of an Occupant (and
its customers, concessionaires and other Permittees), including but not
limited to:
(a) the Parking Area and individual Parking Spaces for motor vehicles of
customers and employees of each Department Store and other Occupants,
including multilevel Parking Spaces, if any;
(b) roadways, driveways, xxxxxx, xxxxxxx, entrances and exits to and from
public roadways and streets to provide vehicular access included in
such Parking Area;
(c) sidewalks, walkways, Building Perimeter Sidewalks and stairways to
provide pedestrian access included in such Parking Area;
(d) landscaped and exterior planted areas (except landscaping between the
exterior perimeter walls of the Buildings and the Building Perimeter
Sidewalks);
(e) the Enclosed Mall; and
(f) ramps, truck ways, loading areas (excluding those designed or intended
for the exclusive use of a Party hereto or Occupant as hereinafter
defined) delivery passages, truck tunnels and service corridors
connecting therewith.
(4) "COMMON AREA IMPROVEMENTS" - all construction and improvements in and to
the Common Area (except the Enclosed Mall) provided for in the Plans and
Specifications.
(5) "COMMON BUILDING COMPONENT" - any structural part of a Building, such as
footings, foundations, supports, walls and roofs, located on more than one
Tract situated within the Shopping Center Tract.
(6) "COMMON UTILITY FACILITIES" - storm drainage systems, gas pipelines, water
pipelines, fire protection systems, power and telephone cables and similar
utilities serving the Shopping Center Tract and located either within the
Common Areas or without the Shopping Center Tract but extending to the
Building Perimeter Sidewalks (but not closer than five (5) feet to Building
exterior walls) on the Tract of each Party and which are intended for the
common use of the Parties.
(7) "DEPARTMENT STORE" - Dillard.
(8) "DEPARTMENT STORE TRACTS" - the land belonging to Dillard Store and/or
Condev, being the Shopping Center Tract less the Developer's Tract,
consisting of the Dillard Tract and the Condev Tract, and each being fully
described by metes and bounds on Exhibit A hereto and as shown on the Plot
Plan attached as Exhibit B.
(9) "DESIGN SCHEMATICS" - drawings or renderings (including front and side
elevations and perspectives, for the exterior, of the Developer's
Buildings, and the landscaping, if any, between the exterior perimeter
walls of Buildings and the Building Perimeter Sidewalks) that show
the general appearance to be anticipated in certain Improvements to be
constructed.
(10) "DEVELOPER BUILDINGS" - all buildings located on the Developer Tract as
shown on Exhibit B.
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(11) "DEVELOPER TRACT" - the land belonging to Developer, being the Shopping
Center Tract less each Department Store Tract, and being fully described by
metes and bounds on Exhibit A hereto and as shown on the Plot Plan attached
as Exhibit B.
(12) "ENCLOSED MALL" - (herein sometimes called "Mall" when the context requires
"Mall" to mean "Enclosed Mall") that portion of the Building on the
Developer Tract designated "Enclosed Mall" on the Plot Plan which presently
is occupied by a partially enclosed, courtyard style mall, but which
Developer will modify and reconstruct as an enclosed mall, and including,
without limitation, covered and roofed malls, courts and arcades on one or
more levels, all of which are mechanically heated and air conditioned for
climatic control, but excluding those areas and Improvements designated or
used as "kiosks" or boutiques (or otherwise, for income-producing purposes)
and service corridors that are part of the Common Areas.
(13) "FLOOR AREA" - the space in a horizontal plane occupied by the surface of
each floor within a completed Building, and the space in a horizontal plane
occupied by the surface of each floor within a completed kiosk,
boutique or similar income producing Improvements not within a Building,
said space being measured in square feet, determined by the linear
dimensions in feet from the outside of the exterior Building perimeter
walls to the outside of the exterior Building perimeter walls (except party
walls as to which the center thereof, instead of the exterior faces
thereof, shall be used), including any such space covered by:
(a) basements and other similar subterranean areas;
(b) balconies and mezzanines, other than those used exclusively for stock
or storage purposes;
(C) walls and columns;
(d) elevators, dumbwaiters, stairs, escalators and conveyors; and
(e) mechanically heated or air conditioned Outdoor Selling Area;
but excluding any such space covered by:
(f) the Enclosed Mall;
(g) electrical and/or mechanical rooms and/or penthouses used to serve any
Occupant;
(h) transformer room or vault;
(i) sheds used exclusively for Common Area maintenance purposes;
(j) unenclosed truck docks;
(k) decked storage areas above floor level; and
(1) Outdoor Selling Areas not mechanically heated or air conditioned;
and the said Floor Area of each Party hereto shall be certified by said
Party's architect to the other Party.
(14) "GROSS LEASABLE AREA" - Floor Area intended and ready for the exclusive use
and occupancy of an Occupant,
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prospective or actual, measured in square feet, determined by the linear
dimensions in feet, from the center of joint partitions, party walls or
interior walls (or the outside of the exterior Building perimeter walls,
as applicable) to the center of joint partitions, party walls or interior
walls (or the outside of the exterior Building perimeter walls, as
applicable), excluding any Floor Area:
(a) in any public meeting hall or auditorium;
(b) in any public restroom that is neither leased by an Occupant nor a
Department Store;
(c) in Shopping Center management offices and in Advertising and
Promotional Service offices, all of which shall not exceed a total of
3,000 square feet; and
(d) to be used by or for the Occupants and their Permittees in common with
each other;
and the said Gross Leasable Area of each Party hereto shall be certified by
said Party's architect to the other Parties, provided that any dispute
about such certification shall be submitted to arbitration under the
provisions of Section 9.4 of this Agreement.
(15) "IMPROVEMENTS" - all improvements to land of every nature and kind,
including underground utility installations, upon the Shopping Center
Tract, including the Common Areas, the Enclosed Mall, the Buildings, and
the landscaping.
(16) "MALL TENANT" - any Occupant occupying Gross Leasable Area in the Developer
Buildings adjoining the Enclosed Mall.
(17) "OCCUPANT" - any person, including the Parties hereto, who is legally
entitled to the exclusive use and occupancy of any Floor Area under the
rights contained in a deed or written lease agreement.
(10) "OUTDOOR SELLING AREA" - the land, being a portion of the Shopping Center
Tract and any Improvements situated thereon, that may be from time to time
exclusively appropriated for permanent or temporary outdoor selling, as
designated on the Plot Plan or as agreed upon later by consent of all the
Parties hereto, said Outdoor Selling Area being exclusive of the Common
Areas, the Enclosed Mall, and the Buildings and the landscaping, if any,
between the exterior perimeter walls of Buildings and the Building
Perimeter Sidewalks situated upon the Shopping Center Tract.
(19) "PARKING AREA" - the land area within the Shopping Center Tract intended
for the use of permitting licensed motor vehicles to enter into, park upon
and exit from said Tract, together with the Improvements thereon (i.e., the
paved area used for bays, aisles, driveways, entrances and exits, and the
parking deck to be constructed by Developer, located upon said land and
within the areas designated for parking on the Plot Plan).
(20) "PARKING SPACE" - the paved land or parking deck area, marked by painted
striping and situated within the Parking Area, for the use of permitting
one automobile to be situated and parked thereon, and shown on Exhibit B.
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(21) "PARTY" - each separate principal business entity making, entering into and
signing this Agreement, whether or not such business entity is an
individual or individuals (that is, natural person or persons), a
partnership, a joint venture or a corporation, and being either Developer,
Dillard or Condev, or any successor to any such business entities permitted
under the provisions hereof, and being sometimes referred to collectively
herein as the "Parties" or individually as a "Party."
(22) "PHASE I" - the land and buildings on the Shopping Center Tract as of the
date of execution of this Agreement.
(23) "PHASE II" - the land and buildings on the Shopping Center Tract after
completion of the renovation and remodelling of the existing department
store owned by Dillard, the Developer Buildings and the new building to be
constructed on the Condev Tract and the site work to be performed in
conjunction therewith, the final configuration of said "Phase II" being
shown on Exhibit B hereof.
(24) "PERMISSIBLE BUILDING AREA" - the land within the Shopping Center Tract
upon which a designated Party may construct either its initial Building or
any expansion thereof or its future Building, if any, as provided herein
and as shown on the Plot Plan.
(25) "PERMITTEE" - any Occupant and any officer, director, partner, employee,
agent, contractor, customer, visitor, patient, client, invitee, licensee,
subtenant or concessionaire of any Occupant.
(26) "PLAN AND SPECIFICATIONS" - complete architectural and engineering drawings
and written requirements for the constuction of Improvements, including all
working drawings, Design Schematics and written requirements for
workmanship and materials, all of which show details adequate for the
commencement and pursuit of actual construction.
(27) "PLOT PLAN" - the drawing attached hereto as Exhibit B and made a part
hereof that shows the general nature, size, location and/or shape of:
(a) the Improvements situated or to be situated on the Shopping Center
Tract, including the Permissible Building Areas, the Building
Perimeter Sidewalks, the Common Areas, the Enclosed Mall and the
Buildings;
(b) adjoining and/or nearby public streets or highways; and
(c) the Shopping Center Tract and each component Tract of said Shopping
Center Tract.
(28) "PRELIMINARY PLANS" - those plans and specifications provided for in
Section 1.2.
(29) "RESERVE TRACTS" - those certain tracts of land adjacent to the Shopping
Center Tract, said Reserve Tracts being fully described by metes and bounds
on Exhibit A and shown on Exhibit B.
(30) "RING ROAD" - that portion of the Common Area which is crosshatched and so
designated on Exhibit B.
(31) "SHOPPING CENTER" - the Shopping Center Tract and all Improvements
situated thereon.
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(32) "SHOPPING CENTER TRACT" - the land containing the Developer's
Tract and each Department Store Tract, described by metes and
bounds on Exhibit A hereto and as shown on the Plot Plan attached
as Exhibit B.
(33) "SEPARATE AGREEMENT" - as to Dillard and Condev, the two
Supplemental Agreements between Dillard Store, Condev and
Developer that were made effective as of the Date of this
Agreement, which Separate Agreements set forth certain
confidential understandings and agreements between Developer,
Condev and Dillard Store not set forth herein but which relate to
and bind them and their respective successors in title to the
Developer Tract and the Department Store Tracts, respectively, and
which contain, among other things, specifications of each
Department Store's share and method of allocation of various
expenses relating to the Shopping Center, to which Separate
Agreements reference is hereby made for the sole purpose of
putting all Parties hereto on notice of such Separate Agreements
and each agreement is hereby incorporated herein for such purpose
only, it being understood that such Separate Agreements shall be
effective only as between Dillard Store and Condev, and their
respective successors and assigns, and Developer and its
successors and assigns.
(34) "TRACT" - the parcel of land situated within the Shopping Center
Tract belonging to any Party hereto.
PART I
ARTICLE I
DESIGN
Section 1.1 Designing. (a) Developer shall cause to be performed all
Common Area site work within the Shopping Center Tract in accordance with Plans
and Specifications prepared by it as provided for in Section 1.2 and approved
by the Department Store. Developer represents that it has retained the services
of Architecture +, Architects for the preparation of said Plans and
Specifications.
(b) On or before sixty (60) days after the Date of this Agreement,
Developer, at its expense, shall complete and deliver to the Department Store,
for informational purposes only, Design Schematics and material samples for all
buildings on the Developer Tract. Said Design Schematics shall be consistent
with the Plot Plan, contain not less than 200,000 square feet of Gross Leasable
Floor Area of Developer Buildings, be located completely within that portion
of the Developer Tract being within the area designated "Permissible Building
Area" on the Plot Plan and otherwise be in accordance with the provisions of
this Agreement. The Final Plans (as hereinafter defined) for
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Developer Buildings shall he consistent with the Design Schematics as delivered
to the Department Store as required by this Section.
Section 1.2 Plans for Common Area Site Work. Developer shall prepare at
its expense and submit to the Department Store for its approval, preliminary
plans and specifications ("Preliminary Plans") for the Phase II Common Area
Improvements (as hereinafter defined) on or associated with the Condev Tract and
Dillard Tract which shall provide for:
(a) Parking Areas on Phase II paved to the extent, in the areas and of the
character as shown on the Plot Plan and of the capacity referred to in
Section 1.7 hereof, which Developer represents is not less than the
parking area required by any applicable state, county or municipal
law, ordinance or regulation, and showing the lighting plan, grading,
drainage and the markings and directional signs for such parking area;
(b) driveways with exits and entrances, truck and delivery passages, truck
ways, truck loading areas, ramps, access and egress roads, retaining
walls (but not building foundation walls or combination
retaining building foundation walls), walkways (but not curbs and
walkways adjoining the Department Store Buildings), exterior
landscaped and planted areas (except between Building Perimeter
Sidewalks and the Department Store Buildings), and utility and other
service buildings on the Shopping Center Tract (including, but without
limitation, those shown on the Plot Plan) necessary for the proper
operation of the Buildings in Phase II in accordance with present
reasonable standards of good shopping center operation; and
(C) all other facilities and improvements on the Shopping Center Tract
necessary for the operation of the Shopping Center in accordance with
present reasonable standards of good shopping center operation,
including, but without limitation, Common Utility Facilities, fire
hydrants, water mains and taps adequately sized to deliver a water
supply at the maximum that can be supplied by the serving water
authority for sprinkler protection, storm sewers and sanitary sewers,
and underground power lines and telephone lines.
The foregoing Preliminary Plans shall include, but are not limited to, a
grading plan, parking layout plan, landscaping plan, irrigation plan, lighting
plan and plans for any work off the Shopping Center Tract required of Developer
in conjunction with the Phase II Common Area work. The work and improvements
provided for in the Preliminary Plans and the Final Plans as hereinafter defined
shall be deemed to be the "Phase II Common Area Improvements".
Section 1.3 Approval of Preliminary Plans. Within thirty (30) days
after the receipt of Developer's Preliminary Plans for
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the construction provided for under Section 1.2, the Department Store shall give
Developer notice in writing of its approval or disapproval thereof, specifying
in the latter event the reasons therefor. Failure by the Department Store to
give either notice of approval or disapproval within said period shall be deemed
to constitute approval given thereof by the Department Store.
Developer will, within thirty (30) days after the expiration of the
aforementioned thirty (30) day period, make all appropriate changes,
modifications and corrections to and of said Preliminary Plans which the
Department Store shall reasonably request. Upon completion thereof, Developer
will resubmit to the Department Store the plans as changed, modified or
corrected which it shall then approve subject to its reasonable satisfaction.
Failure by the Department Store to give notice in writing of either its approval
and disapproval within thirty (30) days after receipt of said changed, modified
or corrected plans shall be deemed to constitute approval.
Section 1.4 Plans and Specifications by Developer. As used herein, the
phrase "Final Plans" shall mean definitive architectural plans and
specifications, including all necessary working drawings in detail sufficient to
permit construction in full of the facilities and improvements referred to in
Section 1.2.
Following approval of the Preliminary Plans as provided in Section 1.3
hereof, Developer shall promptly proceed at its expense with the preparation of
Final Plans for the Phase II Common Area Improvements referred to in Section 1.2
hereof. Developer will, at the request of the Department Store, from time to
time, cause its engineer to consult with the Department Store and to incorporate
therein such changes and modifications as may be reasonably requested by the
Department Store, provided such requests are consistent with the approved
Preliminary Plans, the Plot Plan and this Agreement.
Final Plans for the construction provided for in Section 1.2 shall be
submitted to the Department Store in stages, but all such plans and
specifications shall be submitted no later than August 1, 1987.
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Section 1.5 Approval of Final Plans. Within thirty (30) days after receipt
of Final Plans prepared pursuant to Section 1.4 hereof, the Department Store
shall give Developer notice in writing of its approval or disapproval thereof,
specifying in the latter event that reasons therefor. The Department Store's
right to disapprove such Final Plans shall be limited to objections that they do
not provide for construction consistent with the approved Preliminary Plans, the
Plot Plan or this Agreement. Failure by the Department Store to give either
notice of approval or disapproval within said period shall be deemed to
constitute approval given thereof by the Department Store. The Department Store
shall not unreasonably withhold its approval and in the event of disapproval
shall specifically specify the basis therefore.
Developer will, within fifteen (15) days after the expiration of the
aforementioned thirty (30) day period, make all appropriate changes,
modifications and corrections to said Final Plans which the Department Store is
permitted to and may request within said period. Upon completion thereof,
Developer will resubmit to the Department Store the Final Plans as changed,
modified or corrected which it shall then approve subject to its reasonable
satisfaction. Failure by the Department Store to give notice in writing or
either its approval or disapproval, within fifteen (15) days after receipt of
said changed, modified or corrected Final Plan shall be deemed to constitute
approval.
Section 1.6 Design Schematics by Department Store. On or before sixty (60)
days after the Date of this Agreement, the Department Store, at its own cost
and expense, shall complete and deliver to Developer, for informational
purposes, Design Schematics relating to the exterior treatment of its Building
to be constructed on the Condev Tract and any intended exterior modifications to
its Building on the Dillard Tract.
The exterior appearance of the Buildings shall be architecturally
harmonious with the exterior appearance of the Buildings as shown in the Design
Schematics delivered to Department Store by Developer.
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Section 1.7 Parking Requirements. Each Party hereto shall provide on its
Tract at all times during the term of this Agreement a minimum parking area
capacity of no less than four (4) car spaces, of the minimum dimensions as shown
on the Plot Plan, for each 1,000 square feet of Gross Leasable Area located on
its Tract. The parking requirements on the Shopping Center Tract may be met by
deck parking to be constructed by Developer at its expense as shown on the Plot
Plan.
Section 1.8 Effect of Approval. Notwithstanding the approval by the
Department Store in this Article, Developer shall be solely responsible for the
design, supervision and inspection of the work to be performed pursuant to the
Final Plans and neither the reservation of such rights nor the granting by the
Department Store of any approvals shall be deemed to relieve Developer from such
responsibility or to constitute a waiver by the Department Store of any claim
arising out of Developer's failure to meet such responsibility.
Section 1.9 Compliance with Laws. Dillard, as to the construction to be
performed by or for it on the Condev Tract or the Dillard Tract, Developer, as
to the Common Area Improvements to be constructed by the Developer, and all
plans and specifications for the construction of Buildings and Improvements
shall comply with the building and zoning laws of the municipality or other
governmental subdivision wherein the Shopping Center Tract is situated and with
all laws, ordinances, orders, rules, regulations and requirements of all
federal, state, county and municipal governments and the appropriate
departments, commissions, boards and officers thereof.
Section 1.10 Preparation of Plans and Document Approval. The documents
required by this Article shall be prepared and sealed by a licensed engineer or
architect and shall be delivered in duplicate to the Party entitled to receive
such documents.
Approval of documents required to be submitted hereunder or any matter
pertaining to such work, construction or public improvements made by a Party
hereto under either the provisions of this Agreement or the requirement of a
governmental authority shall be made by a representative of such Party as
follows:
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FOR DILLARD:
XXXXXXX DEPARTMENT STORES, INC.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Mr. J. Story
Vice President Construction
FOR DEVELOPER:
Xxxxxxx Marathon Group Inc.
One Galleria Tower (Suite 1200)
00000 Xxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Mr. C. Xxxxx Xxxxxx
Senior Vice President
subject to the right of each Party to designate a different representative by
giving appropriate notice as set forth in Section 11.17 entitled "Notices"
hereof.
PART II
ARTICLE II
CONSTRUCTION OF SHOPPING CENTER
Section 2.1 Common Area Site Work. Developer hereby represents that it will
enter into a construction contract with Xxxxxxx Marathon Construction Group
Inc., a subsidiary or related entity or an independent contractor, as general
contractor for the performance of all construction related to Phase II Common
Area Improvements provided for in the Final Plans. Developer represents that
said contractor shall commence and proceed diligently with all of said
construction. All work shall be done in accordance with the approved Final
Plans. Developer represents that all construction of Phase II Common Area
Improvements shall be completed by July 6, 1988.
Section 2.2 Construction by Dillard. Provided that all matters to be done
or performed then or prior thereto by Developer under this Agreement and any
Supplemental Agreement shall have been duly done and performed, and provided
that it then appears to Dillard's reasonable satisfaction that Developer has met
or will meet it obligations as set forth in Section 2.1, Dillard will commence
or cause to commence construction of the Xxxxxxx Building on the Condev Tract
and the remodelling of the Dillard Building on the Dillard Tract by a date which
will permit
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the completion thereof for an opening by March 10, 1988. Said Buildings shall be
within the lines of the area designated "Permissible Building Area" on the Plot
Plan; shall have a major entrance abutting and fronting on the Enclosed Mall;
shall conform to this Agreement and be as shown on the Plot Plan. Any delay on
the part of Developer in completing its work by the date set forth above, which
completed work is necessary prior to Dillard's commencement or completion of
construction of the Dillard Buildings on the Condev Tract and/or the Dillard
Tract, shall extend the completion of construction date of the Dillard Buildings
by the period of said delay and shall extend Dillard's opening date as specified
in this Section 2.2 by the period of said delay.
Section 2.3 Changes in Buildings. Any Building on the Shopping Center
Tract may at any time be altered, provided that as so altered the exterior
appearance shall remain architecturally harmonious with the Shopping Center
Buildings after such alteration, and provided that any such Building shall (i)
continue to comply with Sections 1.7, 1.9, and 2.8 hereof, (ii) remain within
the "Permissible Building Area," (iii) not result in a condition inconsistent
with the improvements as shown or provided for on the Plot Plan or Final Plans,
(iv) not impair the structural integrity and soundness of the Building, (v) not
result in a substantially different exterior appearance than existed before, or
(vi) not render performance of any covenant hereunder on the part of any Party
impossible. During the term of the Parties' Operating Covenants, and subject to
the provisions of Articles VII and VIII hereof, a Building may not be
demolished.
Section 2.4 Construction Requirements and Standards.
A. Prior to commencement of construction, Dillard shall prepare and
deliver to Developer two (2) copies of a plot plan with designations thereon in
relation to its construction to be performed on the Condev Tract, of the
location of:
(a) material and equipment storage sites;
(b) construction shacks and temporary improvements incidental to its
respective construction;
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(C) assigned parking areas for its architects, contractors, subcontractors
and their agents, employees and representatives; and
(d) construction haul road location.
The Developer shall have the right, upon fifteen (15) days' notice to
Dillard, to suggest reasonable adjustments to the respective designated
locations in order to prevent unnecessary conflict between the respective
performance of construction by Developer and Dillard or in order to minimize
hazard, obstruction or substantial inconvenience to Occupants on the Shopping
Center Tract.
X. Xxxxxxx and Developer shall each, at their own cost and expense,
construct and maintain suitable construction barriers during at least the time
that hazards of construction exist.
C. The construction work to be performed by the Parties shall be subject to
and in accordance with the following requirements and standards to the maximum
applicable extent:
(a) All construction refuse and debris (other than that located within any
fenced staging area) shall be removed from the Common Area regularly
and if not removed it will be stored in containers. All construction
materials shall be kept within staging areas. All construction work
done or caused to be done by a Party shall be in strict compliance
with local, state and federal regulatory requirements, including
environmental requirements, for work done in buildings containing
asbestos.
(b) Each Party shall perform its respective construction so as not to: (i)
cause any unnecessary increase in the cost of construction of the
other, (ii) unreasonably interfere with the construction of the other,
and (iii) unreasonably impair the use, occupancy or enjoyment of the
existing Shopping Center by the Occupants thereof. All construction
once commenced shall be diligently pursued to completion to the end
that as little interruption to the operation of the Shopping Center as
possible will result.
(c) Each Party shall use its best efforts to cause its architects,
contractors and the subcontractors of its contractors to cooperate and
coordinate its construction with the other Parties' respective
architects, contractors and subcontractors to the extent reasonably
practicable to achieve the objectives set forth herein.
(d) In the event any of the construction work to be performed by a Party
shall not have been substantially completed (to the extent that the
remaining construction work to be performed thereon could reasonably
be deemed to constitute a hazardous condition) after a Party shall
have opened for business to the general public, or, in the event any
Party shall commence any construction work in accordance with the
provisions of this Agreement at any time or times after a Party shall
have opened for business to the general public (to the extent such
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construction work could reasonably be deemed to constitute a hazardous
condition), then the Party on whose Tract the construction is being
performed shall erect or cause to be erected adequate painted
construction barricades substantially enclosing the respective
construction not yet substantially completed and shall maintain such
barricades until such construction shall have been substantially
completed (to the extent necessary to remove such hazardous condition,
as aforesaid).
(e) Each Party shall at all times: (i) take any and all safety measures
reasonably required to protect the other Parties hereto and all
Permittees from injury or damage caused by or resulting from the
performance of its construction, (ii) indemnify, defend and hold
harmless the Parties hereto from and against all claims, costs,
expenses and liabilities arising from or in respect to the death or
accident, injury, loss or damage (except where caused in whole or in
part by the negligence or fault of the other Party hereto and their
respective contractors) whatsoever caused to any natural person or to
the property of any person as shall occur in the process of, during
the course of or by virtue of its said construction, and (iii)
indemnify, defend and hold the other Parties harmless from and against
mechanics, materialmen's and/or laborers' liens, and all losses
(direct and consequential), costs, expenses and liabilities in
connection with or arising from its said construction.
Section 2.5 Progress Reports. During the course of the aforesaid
construction, Dillard and Developer will submit to each other, from time to time
upon request, reports in reasonable detail regarding the progress of said
construction and give the others, their agents, employees, representatives and
contractors access to its Tract at all reasonable times.
Section 2.6 Future Expansion. Notwithstanding any other any provisions in
this Agreement, each Party shall have the right to expand any Building on its
Tract after completion of the construction described in the preceding articles
of this Agreement ONLY upon the following conditions:
(1) The Party expanding, at its sole expense, shall proceed simultaneously
with the construction and completion of both the Building expansion
and additional Parking Spaces on its Tract sufficient to maintain the
parking ratio for the Shopping Center required by this Agreement;
(2) No Party shall expand any Building upon its Tract outside its
Permissible Building Area as shown on the Plot Plan;
(3) With the exception of expansions by a Party shown on the Plot Plan,
the location of any Building expansion or additional Parking Spaces
permitted in accordance with this article shall be approved by each
Party prior to the beginning of construction, excluding the
relocation of interior walls and interior remodeling, but including
the relocation or remodeling of the Enclosed Mall;
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(4) No Party shall withhold approval of any such location or relocations
unreasonably or arbitrarily, the intention of the Parties being that
each Party shall be free to expand its Building(s), provided such
expansion is done in conformity with the provisions of this Agreement
and especially with the provisions for maintaining the parking ratio
and for the location of any such Building expansion within the
Permissible Building Areas as shown on the Plot Plan;
(5) No Party shall voluntarily dedicate, give or cause to be taken any
part of the Parking Spaces, roadways, drives, walks or any other
portion of the Common Areas on its respective Tract for any public or
exc1usive private use; and
(6) No Party shall expand the Building(s) upon its respective Tract except
in compliance with the provisions of this article.
Section 2.7 Insurance During Construction. Each Party shall cause each
of its contractors ("Contractor") to comply with the provisions of this Section.
Contractor shall accept and abide by the provisions of the Workers' Compensation
Act of the State of Arkansas. Until completion of the work (and during any
periods thereafter when any corrective work is being performed by Contractor),
Contractor shall furnish and maintain the insurance required by such Worker's
Compensation Act, which insurance shall include Employer's Liability protection
in limits of not less than $100,000 or such greater limit as shall be required
by law. Contractor shall furnish and maintain in full force and effect until at
least one year after completion of the work (or if Contractor is required to
perform any corrective work after completion of the work, until at least one
year after the last date on which corrective work was performed), comprehensive
general liability insurance in amounts not less than $3,000,000 combined single
limit for comprehensive public liability including, but not limited to, blanket
contractual, owners and contractors protective, personal injury (libel, slander,
wrongful eviction, etc.) product/completed operations, broad form property
damage, owned auto liability and no-owned and hired auto liability. Such
insurance shall:
(a) not be subject to any of the special property damage liability
exclusions, commonly referred to as X C U (explosions, collapse and
underground damage), if the work shall involve the use of explosives,
or structural alterations to a Building, or underground work;
(b) include coverage for damage to property in the care, custody or
control of any Contractor; and
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(C) include contractural liability coverage for the indemnity obligations
to be assumed by Contractor under Section 2.4C(e)(iii) hereto.
Each Party hereto hereby agrees to obtain and maintain, during the periods
of time in which any construction of improvements upon its respective tract is
in progress and incomplete, builders' risk and workmen's compensation insurance,
containing provisions and being in amount reasonably satisfactory to the other
Party hereto and adequate to protect the other Party from and against any and
all claims for death of, or injury to, persons, or damage to, or loss of,
property which may arise upon said Shopping Center premises during the periods
of construction thereon. Dillard may elect to satisfy the obligation under this
Section 2.7 by self-insurance provided they comply with the requirements of
Section 7.7.
Section 2.8 Liens. When, under the provisions of this Agreement,
construction is permitted to be performed by a Party and such construction is so
performed, it is understood and agreed that the Party performing such
construction shall not permit any mechanics' or materialmen's or other similar
liens to stand against any part of the Shopping Center Tract.
The Party performing such Construction may bond and contest the validity
and amount of any such lien upon its Tract, but upon final determination of the
validity and the amount of said lien, such Party shall immediately pay any
judgment rendered, together with all proper costs and charges, and shall have
the lien released at said Party's expense.
It is not the intention of the Parties that these provisions be for the
benefit of laborers, contractors, subcontractors, or materials suppliers.
PART III
ARTICLE III
OPERATION
Section 3.1 Shopping Center Name. For identification, operation, public
relations and advertising purposes, the name of the Shopping Center shall be:
PARK PLAZA, and such name shall
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not be changed during the term of this Agreement without the Department Store's
written consent.
Each Party agrees that it shall not issue any statement or publicity
release concerning this Agreement or otherwise publicize this Agreement except
in such form and at such time as may be approved by all the Parties.
Section 3.2 Tenant Selection. Developer agrees to maintain the Shopping
Center as an integrated, first-class shopping center, to contain a combination
of merchants and businesses which:
(1) represent a sound, balanced and generally compatible diversification
of merchandise and services;
(2) are well qualified and willing to direct an intensive and continuous
merchandising and promotional program;
(3) will be of strong financial condition and good repute;
(4) will fixture, decorate and maintain their respective Stores and
business premises in a clean, safe, sightly, tasteful and decorous
manner, having regard for the general standards of good appearance
prevailing in the Shopping Center.
In the general planning for the clean, safe, sightly, tasteful and decorous
condition and good appearance of such integrated, first-class, shopping center,
no portion of the Shopping Center shall be leased or used for or by any type of
Mall Tenant or Occupant which would clearly be objectionable to the uses
normally found in shopping centers, including, without limitation,
establishments selling or exhibiting pornographic materials, massage parlors, or
any other activity which could cause a public nuisance.
Section 3.3 Advertising and Promotional Service. Developer, at its option,
shall establish an Advertising and Promotional Service to furnish and maintain
professional advertising and sales promotions which will benefit all merchants
of the Shopping Center. In conjunction with said Service, Developer agrees to
provide personnel, including sufficient secretarial services, to pay salaries
for such personnel, and to pay for office rental, utilities, supplies, and
telephone and all other equipment expense necessary for efficient operation. A
committee composed of a representative of the Department Store,
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the Mall Tenants, and the Developer will review the advertising and promotional
activities sponsored by the Service. The function of said Committee shall be
only to advise the Developer and the Committee shall not have the right to
determine the advertising policies of the Advertising and Promotional Service
rendered by the Developer.
Section 3.4 Common Areas Operation. At all times during the term of this
Agreement, a Party shall not permit any fence, barricade, structure, building or
other obstruction of any kind whatsoever to be placed, kept, allowed or
maintained on the Common Areas or any part thereof without prior written consent
from the other Parties, except to the extent such obstruction shall be
reasonably required:
(1) in connection with the use of any easements granted to any Party by
the provisions of this Agreement; or
(2) in connection with the construction, expansion, repair or replacement
of any of the Improvements from time to time located in the Shopping
Center; or
(3) in connection with outdoor selling in Outdoor Selling Areas; provided,
however, that this restriction shall not preclude outdoor selling on
the Common Areas in those instances when the Advertising and
Promotional Service sponsors a promotional activity or when a majority
of the Occupants of the Stores in the Shopping Center join in a
promotional activity for a stipulated period of time to engage in
outdoor selling thereon, so long as the aforesaid promotional
activities do not occur on more than ten (10) occasions per calendar
year and each such occasion does not exceed five (5) days in
duration; or
(4) in connection with the prevention of dedication; in connection
therewith, the Parties shall have the right to temporarily close any
Common Areas on its Tract to prevent dedication by law or otherwise to
the general public, all as more particularly provided for in Section
6.15(b) hereof.
Each Party shall use its best efforts to prevent:
(1) the distribution of any handbills or other advertising materials on or
about any part of the Common Areas, subject, however, to all
applicable laws governing such distribution;
(2) the installation in, on or about the Common Areas of any amplifiers or
similar devices, or the use in or about any Building on the Common
Areas of any advertising medium, which may be heard or experienced
outside such Building, such as flashing lights, spotlights,
loudspeakers, phonographs or radio broadcasts;
(3) the burning of any papers, trash or garbage of any kind on the Common
Areas;
(4) the use of any portion or portions of the Common Areas (except for
kiosks in the Enclosed Mall) for the
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purposes of loading or unloading any truck or other delivery
vehicle, except in those portions so designated on each Tract as
"Loading Area", "Truck Dock" or "Truck Court" on Exhibit B; and
(5) the distribution or use of any printed or handwritten papers or
materials (including magazines and newspapers) of any kind or
character in, on or about any part of the Common Areas.
Section 3.5 Resident Manager. During the term of Developer's Operating
Covenant, Developer shall provide or cause to be provided a resident manager for
the Shopping Center.
Section 3.6 Utilities. During the term of this Agreement, each Party
shall maintain or cause to be maintained in good condition and repair all Common
Utility Facilities located upon its Tract. Each Party shall bear the cost of and
pay for all utility services furnished to and/or used or consumed by it, in
connection with the construction of its Building and other Improvements and the
use, occupation and operation of its Building and Tract and all Improvements
thereon.
Section 3.7 Taxes. Each Party shall pay when due all real estate taxes
and assessments upon its Tract that shall be assessed, levied, imposed or become
a lien thereon during the term of this Agreement.
In the event a Party shall deem any real estate tax or assessment
(including the rate thereof or the assessed valuation of the property in
question or any other aspect thereof) to be paid by it to be excessive or
illegal, it shall have the right, at its own cost and expense, to contest the
same by appropriate proceedings, and nothing contained in this article shall
require such Party to pay any such real estate tax or assessment so long as the
amount or validity thereof shall be contested in good faith if, in the opinion
of counsel for such Party, its Tract shall not thereby be in danger of being
forfeited.
Section 3.8 Insurance During Operation.
(a) By Developer. Developer, effective with the completion of
construction of the Developer's Building and all the other Improvements on the
Developer's Tract, and thereafter during the term of the Developer's Operating
Covenant, shall continuously keep all Developer Buildings and all the other
Improvements upon
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said Tract insured, at its sole expense, against loss or damage by fire and such
other risks as from time to time are included in extended coverage all-risk
insurance policies issued in the locality of the Shopping Center. The aforesaid
insurance shall include contractual liability coverage. Said insurance shall be
in amounts at least sufficient to avoid the effects of coinsurance provisions of
the policies, that is, not less than eighty percent (80%) of the actual
replacement cost of said Building and Improvements, including the Enclosed Mall,
but excluding foundations, excavation costs and the costs of underground flues,
pipes and drains if such costs are properly excludable under current coinsurance
requirements; provided, however, in the event that Developer's lender requires
greater insurance coverage, Developer will carry the insurance required by its
lender. The aforesaid insurance may have Developer's customary deductible
provisions.
(b) By Department Store. Dillard, during the term of its Operating Covenant
with respect to the Dillard Tract, and effective with the completion of
construction of all the Buildings and all the other Improvements on the Condev
Tract, and thereafter during the term of its Operating Covenant, shall
continuously keep all the Buildings and all the other Improvements upon said
Tracts insured, at its sole expense, against loss or damage by fire and such
other risks as from time to time are included in extended coverage provisions of
insurance policies issued in the locality of the Shopping Center. The aforesaid
insurance shall include contractual liability coverage. Said insurance shall be
in amounts at least sufficient to avoid the effects of coinsurance provisions of
the policies, that is, not less than eighty percent (80%) of the actual
replacement cost of said Buildings and Improvements, but excluding foundations,
excavation costs, and the costs of underground flues, pipes and drains if such
costs are properly excludable under current coinsurance requirements. The
aforesaid insurance may have the Department Store's customary deductible
provisions; provided, that the Department Store self-insures for such deductible
amounts.
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(c) Waiver of Subrogation. Each Party hereby waives each and every claim
which arises or may arise in its favor and against the other Parties during the
term of this Agreement for any and all loss of or damage to any of its property
located within or upon or constituting a part of the Shopping Center Tract which
was or could have been covered by valid and collectible fire, extended coverage
and all-risk insurance policies to the extent such loss or damage is or would
have been recoverable under said insurance policies, even though such loss or
damage might have been occasioned by the negligence of such Parties, its agents
or employees. Said waivers shall be in addition to, and not in limitation or
derogation of, any other waiver or release regarding any loss of or damage to
the said property of any Party. Inasmuch as the said mutual waivers will
preclude the assignment of any such claim by way of subrogation (or otherwise)
to an insurance company (or any other person, firm or corporation), each Party
shall give to each insurance company which has issued to it policies of fire,
extended coverage and all-risk insurance, written notice of the terms of said
mutual waivers, and shall have said insurance policies properly endorsed, if
necessary, to prevent invalidation of said insurance coverages by reason of said
waivers. Each of the waivers of each Party against the other Parties shall be
effective for so long as and to the extent that (x) as between waiving Parties
the waiver is reciprocal, and (y) the policy insuring the interest of the
waiving Party does not provide that such waiver will vitiate or adversely affect
its policy; provided, however, that if the insurer issuing the policy to the
waiving Party is willing to agree, for an additional premium, that such waiver
will not vitiate or adversely affect such policy, the waiving Party shall pay
such additional premium. The provisions of this Section 3.9(c) shall apply to
the Department Store's election to self-insure pursuant to the provisions of
Section 3.8(e) hereof, as fully and effectively as if the Department Store had
not so elected but in fact had so insured.
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(d) Liability Insurance. Commencing as of the Date of this Agreement and '
at all times during the term of this Agreement, Developer and the Department
Store each shall, at its sole expense, continuously maintain comprehensive
general liability insurance, naming itself as the insured, endorsed to cover
property damage, personal injury and false arrest occurring upon its Tract. Such
insurance shall afford protection to the limit of not less than:
(1) $3,000,000 per occurrence for death of or personal injury.
(2) Property damage to the limit of not less than $500,000 for each
occurrence.
Each party shall carry as part of the coverage under its liability insurance,
contractual liability insurance coverage specifically endorsed to cover its
liability to the other Parties under Article V of this Agreement, in the same
limits as are specified in this Section 3.08(d), workmen's compensation
insurance in the statutory amount, employers liability, owned auto liability and
non-owned and hired auto liability insurance. Each Party shall, upon request of
any other Party, furnish certificates of such insurance or other satisfactory
written evidence of such insurance at any time during the term hereof. Any
policy required hereunder shall provide that such policy shall not be
cancellable without at least fifteen (15) days' prior written notice to the
Parties hereto and shall name all Parties hereto as additional insureds. The
aforesaid insurance may have each Party's customary deductible provisions,
provided that each Party self-insures for such deductible amounts. The separate
policies provided for in this Article III shall cover only such portions of the
respective Tracts not covered by the joint policy provided for in Section
3.08(f).
(e) Self-Insurance. Dillard shall have the right, at its option, to comply
with and satisfy its obligations under this article by means of (i)
self-insurance, if guaranteed by Dillard, provided that the net worth and
financial condition of Dillard, or an entity guaranteeing performance of
Dillard, is equal to at least One Hundred Million Dollars ($100,000,000.00), or
if such
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self-insurance plan is furnished through an affiliate or parent corporation of
Dillard, such affiliate or parent corporation must have a pub1ished net worth of
at least One Hundred Million Dollars ($100,000,000.00), and/or (ii) any
so-called blanket policy or policies of insurance covering this and other
locations of such Party, provided that such policy or policies by the terms
thereof shall allocate to the Building and liabilities to be insured thereunder
an amount not less than the amount of insurance required to be carried hereunder
and shall not diminish the obligations of the particular Party to carry
insurance, so that the proceeds from such insurance shall be an amount not less
than the amount of proceeds that would be available if the Party was insured
under a unitary policy. On or prior to the commencement of this Agreement,
Dillard shall notify Developer in writing of whether Dillard elects to comply
with and satisfy its obligations under this article by means of self-insurance.
In the event no such notice is supplied, the joint coverage as provided in
paragraph (f) below shall apply, with the premiums therefor apportioned in
accordance with said paragraph (f). After the commencement of this Agreement,
Dillard may, upon the giving of written notice to Developer not less than thirty
(30) days prior to December 1 of any calendar year following the giving of such
notice, elect to withdraw or return to its participation in the joint insurance
referenced in paragraph (f) below.
As used herein, the term "net worth" shall mean the stockholder's or
shareholder's equity as determined in accordance with generally accepted
accounting practices. If the net worth of Dillard or its guarantor declines to
less than One Hundred Million Dollars ($100,000,000.00), then Dillard shall not
be entitled to self-insure and the provisions regarding payment of insurance
proceeds to a trustee pursuant to Section 7.7 shall apply to Dillard.
(f) Joint Policy. Developer and the Department Store may elect to satisfy
their obligation under paragraph (d) through joint comprehensive general
liability insurance covering the
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Common Areas and the Enclosed Mall in the Shopping Center, such insurance to
afford protection to Developer and the Department Store as additional insured in
the event that Dillard elects self-insurance on the Department Store Buildings,
and to both Developer and the Department Store as named insureds in the event no
such election is made, to the limit of not less than the limits required by
paragraph (d) above. Developer shall be designated the agent of the
participating Parties so electing for the purpose of obtaining such insurance,
provided that the approval of the participating Parties as to the insurer, terms
and cost shall first be obtained. The premiums for said policy shall be
apportioned between the participating Parties, in the proportion which each
contributes to the total risk insured by said policy, as determined by the
insurer. Developer hereby agrees to deliver to the participating Parties copies
of said insurance policy, or a certificate of other document evidencing its
existence, on or prior to the commencement of the term hereof, and thereafter
not less than fifteen (15) days prior to the expiration dates of the expiring
policy or policies during the term hereof. Failure of a participating Party to
request evidence of the joint policy shall not release Developer of the
obligation to obtain the joint policy. Any policy required hereunder shall
provide that such policy shall not be cancelled without at least fifteen (15)
days' prior notice to the participating Parties.
Section 3.9 Maintenance
(a) Building and Exterior Common Area. Each Party shall keep and maintain
all Improvements on its respective Tract in the Shopping Center (including,
without limitation, the Common Areas, Buildings, the landscaping, if any,
between the exterior perimeter wall of Buildings and Building Perimeter
Sidewalks, signs, Common Utility Facilities) in good order, condition and repair
at all times during the term of this Agreement and at such Party's sole expense.
Such maintenance shall include keeping the entire premises reasonably clean and
free of debris, ice, snow and trash.
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(b) Enclosed Mall. Dillard's acknowledges that the Enclosed Mall is to be
constructed by Developer through complete renovation and restructuring of the
present courtyard-style mall. To the extent possible during reconstruction, and
thereafter upon completion of the Enclosed Mall, Developer shall, during the
term of its Operating Covenant and except as otherwise provided herein, operate
and maintain, or cause to be operated and maintained, the said Enclosed Mall in
good order, condition and repair. In such operation and maintenance, Developer
shall observe the following standards:
(1) Maintain the surfaces of the concourses of the Enclosed Mall and
sidewalks level, smooth and evenly covered with the type of surfacing
material originally installed thereon or such substitute thereof as
shall be in all respects equal thereto in quality, appearance and
durability;
(2) Remove all papers, debris, filth and refuse and wash or thoroughly
sweep as required;
(3) Maintain such appropriate directional signs, markers and lights as
shall be reasonably required and in accordance with good, first-class,
regional shopping center practices;
(4) Clean lighting fixtures and relamp as needed;
(5) Maintain landscaping as necessary to keep in a first-class condition;
(6) Clean Developer's signs in the Enclosed Mall (as contrasted with those
of Occupants), including relamping and repairs being made as required;
(7) Maintain and keep in a sanitary condition public restrooms, if any,
and other common use facilities;
(8) provide security, when warranted, on a basis as reasonably determined;
(9) upon completion of the Enclosed Mall, keep and maintain the Enclosed
Mall as an enclosed, air conditioned mall and keep the Enclosed Mall
in a clean, safe and sightly condition and in good order and repair
and cause the same to be well lit during all periods that the
Department Store Buildings are open for business and for reasonable
periods, not less than one (1) hour in duration, before and after such
business hours, and keep and maintain the Enclosed Mall cooling system
in good operating condition so as to heat and cool the Enclosed Mall
to ASHRAE standards which are as follows:
(a) cool the Enclosed Mall to an average temperature of not more than
seventy-seven degrees (77(degrees)) Fahrenheit Dry Bulb and to
produce a relative humidity not exceeding fifty percent (50%)
when the outside Dry Bulb temperature is ninety-six degrees
(96(degrees)) Fahrenheit and the outside Wet Bulb temperature is
seventy-nine degrees (79(degrees)) Fahrenheit during each day
when local climatic conditions require; and
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(b) heat the Enclosed Mall with sufficient heat to maintain therein
an average temperature of at least sixty-eight degrees (68
(degrees)) Fahrenheit with an outside Dry Bulb temperature
ranging as low as twenty degrees (20 (degrees)) Fahrenheit during
each day when local climatic conditions require.
Notwithstanding the foregoing, in the event that Federal regulations
require different temperatures than the foregoing, Federal regulations
shall prevail, and Developer shall comply with same.
(10) Cause each Occupant of Gross Leasable Area which opens on the Enclosed
Mall upon the Developer's Tract to plan and operate such area in a
manner that shall not unreasonably utilize any heated or cooled air
from the Enclosed Mall or unreasonably burden the heating or cooling
of air in the Enclosed Mall. Developer shall cause the heating and air
conditioning systems in the Enclosed Mall to be planned and operated
in a manner that such systems shall not unreasonably utilize any
heated or cooled air from any Department Store Building or
unreasonably burden the heating or cooling of air in such Building.
Each Department Store shall operate its heating and air conditioning
system so as not to unreasonably utilize any heated or cooled air from
the Enclosed Mall. As used herein:
(a) "unreasonably utilize" means utilization by one Occupant of the
air of another Occupant to the extent that the cost of heating or
cooling of air by the Occupant utilizing such air of another
Occupant would thereby be markedly lower; and
(b) "unreasonably burden" means one Occupant discharging unheated or
uncooled air into the Enclosed Mall or the Gross Leasable Area of
another Occupant to such an extent that the cost of heating or
air conditioning the Enclosed Mall or such area of the other
Occupant is thereby markedly increased.
(11) Unless levied or imposed by any governmental agency or unless the
Parties otherwise consent and agree in writing, no charge of any type
shall be made to or collected from any Occupant or any Permittee for
parking or the right to park vehicles in the Parking Spaces.
Permittees shall not be prohibited or prevented from so parking so
long as Parking Spaces are available and so long as they do not
violate the reasonable rules and regulations covering the use of the
Parking Spaces promulgated from time to time by the Parties. The
Parties shall, by mutual agreement, prescribe certain sections within
the Common Areas, or on other land if acquired outside the Common
Areas within a reasonable distance from the nearest boundary of the
Shopping Center, for use as Parking Spaces for the employees, and
instruct such persons to use only such sections as are so prescribed
for parking. Each Party agrees to use reasonable efforts to enforce
the provisions hereof.
Section 3.10 With Compliance Laws. Except as heretofore provided for
initial construction as set forth in Section 1.9, each Party as to all Buildings
and Improvements on its Tract shall comply with the building and zoning laws,
now existing or hereafter enacted, of the municipal or other government
subdivisions wherein the Shopping Center Tract is situated and
-27-
with all laws, ordinances, orders, rules, regulations and requirements now
existing or hereafter enacted, of all federal, state, county and municipal
governments and the appropriate departments, commissions, boards and officers
thereof.
Section 3.11 Signs. Each Party shall use its best efforts to prohibit the
erection of any sign on its respective Tract, except in conformity with the
following policy:
(1) There shall be no flashing, rotating or moving signs or markers of any
type;
(2) There shall be no signs painted on the exterior masonry surface of any
Building;
(3) Paper signs in or on display windows shall not be permitted to remain
up or to be visible for more than (2) weeks at a time;
(4) All signs which front on the Enclosed Mall shall be (a) not more than
four (4) feet in height, (b) approximately flush with the wall of the
Building, and (c) of a length which does not exceed eighty percent
(80%) of the linear frontage on the store upon which it fronts;
(5) Signs which are under Building canopies, other than approximately
flush with the wall of the Building, shall be (a) at right angles to
the store front, (b) of a design which is uniform with other signs
similarly placed under Building canopies, and (c) not more than five
(5) feet wide and eighteen (18) inches high;
(6) Signs on the Enclosed Mall, other than as provided in subclause (4)
above, shall be (a) flush with the store front, (b) of a design which
is uniform with and at the same height measured from the floor of the
Enclosed Mall, and (c) not more than five (5) feet wide and eighteen
(18) inches high;
(7) There shall be no rooftop signs; provided, however, signs may be
placed on the sides of penthouses on the roofs;
(8) With respect to any Building constructed within the loading and
delivery areas as shown on the Plot Plan (in lieu of the requirements
set forth in subclauses (4), (5), and (6)), signs on the wall of such
Building shall be (a) not more than six (6) inches in height, and (b)
approximately flush with the wall of the Building, except that small
identification signs shall be permitted on delivery doors;
(9) No sign shall be permitted at or on the rear of any Building facing a
loading court area, except for delivery identification;
(10) Any sign on the outside of a Building in the Shopping Center that is
visible from any street or highway shall be (a) not than more eight
(8) feet in height and shall not extend above the roof of the
Building, (b) approximately flush with the wall of the Building, and
(c) of a length which does not exceed eighty percent (80%) of the
linear frontage of the store upon which it fronts. Developer
-28-
reserves the right without the consent of the other Parties to permit
signs on the outside of Developer's Building for theatres,
restaurants, drugstores, cafeterias, department or junior department
stores and financial institutions, provided same are in compliance
with subclauses (a), (b), and (c) immediately above, and are located
on the exterior of the premises named on the sign.
(11) Except for directories within the Enclosed Mall, any directory or
pylon signs on the Shopping Center Tract shall be subject to the prior
written approval of Department Store and Developer, except for those
pylon signs and marker signs shown on the Plot Plan, which are hereby
approved. Any of Developer's pylon signs may have theatre attraction
panels without the consent of Department Store; and
(12) There shall be no paper signs, cardboard signs or portable signs of
any kind or character on or about any part of the Common Areas.
The provisions of this Section, except as otherwise expressly provided in
this Section and except for the provisions of paragraph (10) of this Section,
shall not be applicable to the identification or directional signs of the
Department Store, it being understood and agreed that the Department Store may
have its usual identification signs on its Buildings, as the same may exist on
similar buildings operated by them from time to time in the States of Arkansas
and Texas; provided, however, there shall be no rooftop signs (except for signs
on rooftop penthouses as provided for hereinabove) or signs which are flashing,
moving or audible.
ARTICLE IV
OPERATING COVENANTS
Section 4.1 Developer Operating Covenant. Developer shall use and operate
the Developer's Tract solely for the purpose of operating and managing or
causing to be operated and managed a multi-unit retail and commercial facility
containing Developer Buildings of at least 200,000 square feet of Gross Leasable
Area (Developer using its best efforts to keep the aforesaid 200,000 square feet
of Gross Leasable Area leased), for so long as the Buildings on the Condev Tract
and Dillard Tract are opened for business as Dillard department stores in
accordance with the provisions of Section 4.2 (herein sometimes referred to as
"Developer's Operating Covenant").
-29-
The provisions of this article shall be subject to all the other provisions
of this Agreement, such as the provisions set forth in "EMINENT DOMAIN" and
"DESTRUCTION" hereof. Any failure to comply with the provisions of this article
for temporary periods of time during which the Developer's Building or any part
thereof is uninhabitable because of fire or other casualty shall not be deemed a
default under the provisions of this article; provided, however, such temporary
periods of time shall extend for only so long as diligent efforts are being made
to restore such Building to the condition it was in just prior to the happening
of such casualty or act.
During Developer's Operating Covenant, in no event shall more than
twenty-five percent (25%) of the Floor Area of the Developer's Building be used
for nonretail purposes, which nonretail purposes shall include, without
limitation, restaurants, theatres and fast food operations.
Section 4.2 Dillard Operating Covenant. Dillard covenants with the
Developer that the Dillard Tract and the Condev Tract shall be operated and used
solely for the purpose of operating on each of said Tracts a Dillard retail
department store, having a minimum store size of 198,000 square feet of Floor
Area on the Dillard Tract and 37,700 square feet of Floor Area the Condev Tract,
comparable to the majority of other retail department stores Dillard is
operating in the States of Arkansas and Texas, each with an entrance onto the
Enclosed Mall, commencing with the date of this Agreement in respect of the
Dillard Tract and continuing in respect of both the Dillard and Condev Tracts
for a period of at least fifteen (15) consecutive calendar years from the date
of the first opening of the Xxxxxxx department store Building on the Condev
Tract for business with the general public, but only for so long as (i)
Developer complies with the provisions of its Operating Covenant as provided in
this Agreement, and (ii) Mall Tenants occupying at least sixty percent (60%) of
the Gross Leasable Area of Developer's Buildings shall be operating their
businesses (which requirement shall not apply during the period of Developer's
construction). Throughout the
-30-
aforedescribed period, Dillard shall operate or cause to be operated on each
Tract a Dillard retail department store under the name of "Dillard" or under
such other name as Dillard shall be operating a majority of its comparable
stores. The aforedescribed period during which Dillard is required to operate a
Dillard retail department store is herein referred to as the "Dillard Operating
Covenant". Once any or all of the conditions stipulated in (i) and (ii) above
have not been met and subject to the provisions of this Article IV, the Dillard
Operating Covenant shall be deemed terminated.
The provisions of this article shall be subject to all the provisions of
this Agreement, such as the provisions set forth in "EMINENT "DOMAIN" and
"DESTRUCTION" hereof. Any failure to comply with the provisions of this article
for temporary periods of time due to fire or other casualty shall not be deemed
a default under the provisions of this article; provided, however, such
temporary periods of time shall extend for only so long as diligent efforts are
being made to restore such damaged Building, if possible, to the condition it
was in just prior to the happening of such casualty or act. Additionally,
Dillard shall have the right not to operate in accordance with its Operating
Covenant for remodeling purposes, provided that such period of nonoperation
shall not exceed ninety (90) consecutive calendar days and shall not be more
frequent than at five (5) year intervals.
Notwithstanding anything to the contrary contained herein, if a Building on
one or the other of the Condev Tract or Dillard Tract is being restored as a
result of damage to said Building or as the result of a partial condemnation,
then Dillard shall not be relieved of its Operating Covenant as to the Building
on said other Tract. Dillard shall also not be relieved of its Operating
Covenant even though condition (i) or (ii) of the first paragraph of Section 4.2
above shall not have been fulfilled unless Dillard (a) notifies Developer and
any holder of a mortgage or deed of trust on the Developer's Tract (of which it
has actual notice), or any portion thereof, that the aforesaid conditions are
not being met, and (b) affords Developer and any holder of a mortgage
-31-
THIS DOCUMENT
REPLACES.
DRAWING
2831
CORPORATE
OPERATING AGREEMENT -
TITLE PLOT PLAN - EXH B -
PHASE II PREPARED BY HMG
DATE/REVISION # 12-12-86
SHEET 1 OF 1
REFERENCE FILE PARK PLAZ GENERAL -
CLOSING DOCUMENTS - PURCHASE OF
STATUS DILLARD & CONDEV TRACTS
PARK PLAZA
SUPPLEMENT TO OPERATING AGREEMENT
(DILLARD NEW STORE)
THIS SUPPLEMENT TO OPERATING AGREEMENT, made as of the 15th day of
December, 1986, to be effective as of December 31, 1986, by and between
XXXXXXX-MARATHON MASTER PARTNERSHIP B, a Texas genera1 partnership, having its
principal place of business at One Galleria Tower, Suite 1200, 00000 Xxxx Xxxx,
Xxxxxx, Xxxxx 00000-0000 (hereinafter called "Developer"), and XXXXXXX
DEPARTMENT STORES, INC., a Delaware corporation, having its principal place of
business at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 (hereinafter
called "Xxxxxxx Store"), and CONSTRUCTION DEVELOPERS, INCORPORATED, an Arkansas
corporation, having its principal place of business at 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000 (hereinafer called "Condev"; Condev and Dillard
Store being hereinafter sometimes collectively called "Dillard").
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into a certain Construction,
Operation and Reciprocal Easement Agreement of even date herewith (herein called
the "Operating Agreement"), and the parties hereto desire to supplement said
Operating Agreement by this supplement thereto (hereinafter called the
"Supplement to Operating Agreement"), as between themselves, with the
understanding that this Supplement to Operating Agreement will not be filed for
record.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in the Operating Agreement, the parties hereto covenant and agree as
follows:
1. INCORPORATION BY REFERENCE. All of the terms, provisions, covenants and
conditions of the Operating Agreement are hereby incorporated herein and made a
part hereof as if fully repeated herein, except that in the event of a conflict,
this Supplement to Operating Agreement shall govern. The term "Dillard's
Building," as used herein, shall the mean retail store
to be constructed and operated by Dillard Store on the Condev Tract.
2. MALL MAINTENANCE CONTRIBUTION. In consideration of Developer
maintaining and operating the Enclosed Mall as provided for in the Operating
Agreement, Dillard agrees to pay Developer the following annual contribution in
equal monthly installments:
(a) For five (5) years commencing on the opening date to the public of
the store on the Condev Tract, the sum of Seventeen and One-half Cents
(l7-l/2c) per square foot of Floor Area in the Dillard's Buildings.
(b) For the following five (5) year period and for and during each
subsequent five (5) year period, the rate shall be increased by the
lesser of the CPI increase for such period, or Two and One-half
Cents (2-l/2c) over the rate for the preceding period.
(c) As used herein, "CPI" shall mean the Consumer Price Index for all
Urban Consumers for All Cities: All items (1967 = 100) published by
the Bureau of Labor Statistics, United States Department of Labor. In
the event that (i) the Consumer Price Index ceases to use the 1967
average of 100 as the basis of calculations; or (ii) a substantial
change is made in the number of items used in determining the Consumer
Price Index; or (iii) the Parties agree that the Consumer Price Index
does not accurately reflect, in relationship to the basic index, the
purchasing power of the dollar; or (iv) the Consumer Price Index shall
be discontinued for any reason; then, the Bureau of Labor Statistics
shall be requested to furnish a new index comparable to the Consumer
Price Index together with information which will make possible the
conversion to the new index in computing the adjusted variance amount
hereunder. If for any reason the Bureau of Labor Statistics does not
furnish such an index and such information, the parties hereto shall
thereafter accept and use such other index or comparable statistics on
the cost of living for the City of Little Rock as shall be computed
and published by an agency of the United States or by a responsible
financial periodical or recognized authority then to be selected by
the agreement of the Parties.
3. DEVELOPER MAINTENANCE CONTRIBUTION. Developer agrees to maintain the
Common Area of the Condev Tract in accordance with the provisions of Exhibit A
hereof, and, in addition, agrees to provide, at no cost to Dillard, the electric
power for the public 1ighting on the Common Area of the Condev Tract. In
consideration thereof, Dillard agrees to pay Developer the following amounts
annually in equal monthly installments:
(a) For five (5) years commencing on the opening date to the public of
the store on the Condev Tract, the sum of Seventeen and One-half
Cents (l7-1/2c) per square foot of Floor Area in the Dillard's
Buildings.
(b) For the following five (5) year period and for and during each
subsequent five (5) year period, the rate shall be increased by the
lesser of the CPI increase for such period, or Two and One-half Cents
(2-1/2c) over the rate for the preceding period.
-2-
(c) Notwithstanding anything to the contrary contained in the
Operating Agreement or in this Supplement to Operating Agreement:
(1) Subsequent to the fifth (5th) calendar year after Dillard
opens the Dillard retail department store on the Condev Tract for
business to the general public or in the event Developer shall
transfer its Tract and Buildings to a third party (not including
transfers to any lenders by means of a mortgage or deed of trust or to
any transferee in lieu of foreclosure of a mortgage or deed of trust),
Dillard shall have the right to terminate, with or without cause, the
obligation of Developer to maintain and operate the Common Area on the
Condev Tract as hereinabove provided in this Section 3 by giving six
(6) months' advance written notice to Developer. Such termination
shall be final, and thereafter Developer shall have no obligation to
perform Common Area operation and maintenance on the Condev Tract, and
Dillard shall only be required to make payments for Enclosed Mall
Maintenance to Developer. Upon such termination by Xxxxxxx, Xxxxxxx
shall thereafter operate and maintain the Common Area on the Condev
Tract as provided in the Operating Agreement and also as hereinafter
provided. In conjunction with such maintenance and operation by
Dillard of the Common Area on the Condev Tract, Dillard, at its sole
cost and expense, shall re-meter the electric power used for lighting
the Common Area on the Cordev Tract to Dillard's own electrical meters
and thereafter shall bear directly the cost and expense of the
electric power used to light the Common Area on the Condev Tract.
After such termination and changeover, Dillard shall keep the Common
Area on the Condev Tract lit during the same periods of time that the
Common Area on the Developer Tract are being lit by Developer in
accordance with the applicable provisions of the Operating Agreement.
Also, in the event of such termination and changeover by Xxxxxxx,
Xxxxxxx shall thereafter, during the remaining balance of the term of
the Operating Agreement, maintain and operate the Common Area on the
Condev Tract in good order, condition and repair in accordance with
the provisions of the Operating Agreement.
(2) Subsequent to the expiration or earlier termination of,
Developer's obligation to operate the Enclosed Mall, as provided in
the Operating Agreement, Developer shall have the right, but not the
obligation, upon six (6) months' advance written notice to Dillard, to
terminate its obligations to maintain the Common Area on the Condev
Tract pursuant to the provisions of this Supplement. In the event
Developer terminates its obligations to maintain the Common Area of
the Condev Tract, Dillard shall be required to maintain the Common
Area on the the Condev Tract and to operate and light the Common Area
on the Condev Tract in accordance with the provisions of the Operating
Agreement, but shall not have to make the payments set forth in 3(a)
and 3(b) above.
4. ADVERTISING AND PROMOTIONAL SERVICE. Pursuant to the Operating
Agreement, Developer shall establish an Advertising and Promotional Service to
furnish and maintain professional advertising and sales promotions for the
Shopping Center.
-3-
For a period of three (3) years and thereafter throughout the term of the
Dillard Operating Covenant for so long as Dillard desires to continue
contributions to said Advertising and Promotional Service, Dillard agrees to
contribute to said Advertising and Promotional Service an amount per year equal
to Seven Cents (7c) per square foot of Floor Area contained in the Dillard's
Building, payable in equal monthly installments on the first day of each month,
commencing as of the Opening Date; provided, however, that, should Dillard elect
to discontinue contributions to said Advertising and Promotional Service,
Dillard shall give notice to Developer ninety (90) days prior to the effective
date of such discontinuance. All monies received hereunder shall be used solely
for the purpose of advertising and promotional services of the Shopping Center,
and Developer agrees (1) to expend or cause to be expended the fees received for
advertising and promotion, (2) that the direct costs of the Advertising and
Promotional Service will be paid, plus the salaries of full-time employees and,
on a pro rata basis, salaries of part-time employees, plus other expenses
incidental thereto, out of such fees, and (3) within sixty (60) days from the
end of the calendar year, Developer shall provide Dillard Store for review, an
unaudited statement of disbursements of the Advertising and Promotional Service
fees received for that year. Developer hereby agrees to make a contribution to
the Advertising and Promotional Service equal to twenty percent (20%) of the
contributions made to the Advertising and Promotional Service by Dillard and the
tenants in the Shopping Center, which contribution may be made by means of
services to the Advertising and Promotional Service.
5. HOURS OF OPERATION. Subject to the force majeure provisions set forth in
the Operating Agreement and in conjunction with the Dillard Operating Covenant
as set forth in Section 4.3 of the Operating Agreement, Dillard Store hereby
agrees to operate its department store business in the Dillard's Building, as
required by the provisions of the Operating Agreement, for the customary hours
per calendar week that Dillard Store operates its other comparable department
stores.
-4-
6. COMMON AREA LIGHTING STANDARDS. Developer or Dillard, as required
under this Agreement, shall provide for an average maintained lighting intensity
of 1 foot candle, measured at 30 inches above grade at all points on the parking
areas on their respective Tracts.
7. WORK TO BE PERFORMED BY XXXXXXXX AND DEVELOPER Developer represents
that temporary power and water will be available at the boundary of the Condev
Tract and Dillard shall bear and pay the cost of all utility services, including
all power, required for the construction of any buildings on the Condev Tract.
Developer, at its own cost and expense, shall provide within five feet (5 feet)
of the building on the Condev Tract permanent utility lines at points designated
by Dillard, without metering or transforming. Dillard shall, at its cost and
expense, construct truck service areas and the curbing and gutters on the Condev
Tract separating walkways on the Condev Tract from the parking area roadways on
the Common Area. Developer shall develop or construct the building pad on the
Condev Tract, at Developer's expense, to Dillard specifications.
8. RESTRICTIONS ON USE. During the Developer Operating Covenant, no
portion of the Developer's Tract shall be leased or used for or by any of the
following types of businesses or activities:
(a) Funeral establishment;
(b) Used car lots;
(c) Any recreational activity involving illegal gambling;
(d) Pawn shops;
(e) Outdoor circus or other entertainment, but not excluding promotional
activities sponsored by the Advertising and Promotional Service;
(f) Outdoor meetings;
(g) Bowling alley;
(h) Pool or billiard establishment;
(i) Operation of "elephant trains" or similar transportation devices; and
(j) Flea circus
9. KIOSK RESTRICTION. During the term of the Developer's Operating
Covenant, Developer shall not erect or permit to be erected a kiosk in the
Enclosed Mall which exceeds nine (9) feet in height, ten (10) feet in width, and
fifteen (15) feet in length. No kiosk shall be erected in that area of the
Enclosed Mall within 90 feet measured from the middle of Dillard's
-5-
Building entrances fronting on the Enclosed Mall. Developer shall not permit,
during the Developer Operating Covenant, any stand-up fast-food restaurants for
off-premises consumption to be located within 100 feet measured from the middle
of Dillard's Building entrances fronting on the Enclosed Mall, and shall not
permit any other type of restaurant to be erected within 60 feet of the
Dillard's Building entrances measured as aforesaid. The foregoing restrictions
shall be applicable only with respect to those levels or floors of the Enclosed
Mall onto which the Dillard's Building possesses a customer entrance.
10. RESTRICTIONS ON RESERVE TRACTS. During the Developer Operating
Covenant, the Reserve Tracts shall only be used for retail and service
facilities normally associated with regional mall shopping centers, including,
without limitation, restaurants and fast-food restaurants, banks and savings and
loan institutions, office buildings, hotels and motels. In addition to the
foregoing conditions, Developer shall not construct or permit to be constructed
any building upon the Reserve Tracts except in conformity with the following
conditions:
(a) No building shall exceed one (1) story in height, which one story
shall not exceed twenty-one feet (21 feet) in height.
(b) There shall be no pylon signs within said Reserve Tracts except for
pylon signs for savings and loan institutions, banks and other similar
facilities.
(c) The greater of (i) 4.0 parking spaces for each 1,000 square feet of
floor area or (ii) the code requirements shall be maintained on a
Reserve Tract.
Prior to development of the Reserve Tracts, Developer shall maintain or
cause to be maintained the Reserve Tracts in a sightly condition. Nothing in
this Section 10 shall prohibit or restrict the current uses of the Reserve
Tracts as of the effective date of the Supplement to Operating Agreement; it
being understood and agreed that such current uses are ongoing and permitted.
11. LIMITATION ON DEVELOPER'S RIGHT TO TRANSFER. Notwithstanding the
provisions of Section 10.4 of the Operating Agreement, subsequent to the
permitted transfer date, Developer shall only have the right to transfer its
Tract and Buildings to
-6-
a transferee who is an experienced manager of regional mall shopping centers or
shall provide for experienced management of the shopping center through means of
contracting with or hiring an experienced regional mall shopping center manager.
12. PAYMENT FOR ON- AND OFF-SITE WORK. The sole consideration to
Developer for performing all on- and off-site work (including the building pad)
on the Condev Tract in accordance with the final Plans and Specifications
approved by Dillard in accordance with Article I of the Operating Agreement
shall be the obligations of Dillard to construct and operate the Dillard's
Building on the Condev Tract as required by the terms of the Operating Agreement
and no other sum shall be due Developer therefor.
13. COLLATERAL ASSIGNMENT OF THIS SUPPLEMENT TO OPERATING AGREEMENT.
Dillard hereby consents to the assignment of the Operating Agreement and this
Supplement to Operating Agreement to any holder of a deed of trust or mortgage
on the Developer Tract, its successors and assigns, in conjunction with the
financing of Improvements in and to the Shopping Center.
14. EXECUTION OF THIS SUPPLEMENT TO OPERATING AGREEMENT. This Supplement
to Operating Agreement may be executed in several counterparts, each of which
shall be deemed an original and all of which shall constitute but one and the
same instrument.
15. SUCCESSORS AND ASSIGNS. The provisions of this Supplement to
Operating Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
-7-
IN WITNESS WHEREOF, the parties hereto have duly executed this Supplement
to Operating Agreement as of the day and year first above written.
DEVELOPER:
---------
XXXXXXX-MARATHON MASTER PARTNERSHIP B,
a Texas general partnership,
General Partner,
By: XXXXXXX MARATHON GROUP INC.,
a Delaware corporation,
Managing Partner,
WITNESSES:
[ILLEGIBLE] By: /s/ X.X. Xxxxxxx, Xx.,
----------- -----------------------------------
X.X. Xxxxxxx, Xx.,
President
[ILLEGIBLE]
-----------
XXXXXXX STORE:
-------------
WITNESSES: XXXXXXX DEPARTMENT STORES, INC.,
A Delaware Corporation
[ILLEGIBLE] By: [ILLEGIBLE]
----------- ---------------------------------------
[ILLEGIBLE] Its Vice Chairman
----------- ------------------------------------
ATTEST:
[ILLEGIBLE] By: [ILLEGIBLE]
---------------------------------------
[ILLEGIBLE] Its Secretary
------------------------------------
CONDEV:
------
WITNESSES: CONSTRUCTION DEVELOPERS, INCORPORATED,
An Arkansas Corporation,
[ILLEGIBLE] By: [ILLEGIBLE]
----------- ---------------------------------------
[ILLEGIBLE] Its Vice President
----------- ------------------------------------
ATTEST:
[ILLEGIBLE] By: [ILLEGIBLE]
---------------------------------------
[ILLEGIBLE] Its Secretary
------------------------------------
-8-
Exhibit A
Common Area Maintenance Criteria
For Condev Tract
1. All hardsurfaced portions of the common facilities and improvements
shall be swept at intervals sufficient to maintain the same in a clean condition
and shall be kept reasonable clear of ice and snow before the retail stores
within the Shopping Center shall open for business to the public.
2. All sidewalks shall be swept at intervals sufficient to maintain the
same in a clean condition.
3. All trash and rubbish containers located in the common facilities for
use of the public, shall be washed at intervals sufficient to maintain the same
in a clean condition.
4. All landscaping shall be properly maintained, including removal of dead
plants, weeds and foreign matter and such replanting and replacement as the
occasion may require.
5. All hardsurfaced markings shall be inspected at regular intervals and
promptly repainted as the same shall become unsightly or indistinct from wear
and tear or other cause.
6. All sewer catch basins shall be cleaned on a schedule sufficient to
maintain all sewer lines in a free-flowing condition; and all mechanical
equipment a part of the storm and sanitary sewer facilities shall be regularly
inspected and kept in proper working order.
7. All asphalt paving shall be inspected at regular intervals and
maintained in a first-class condition, including the patching of pot holes,
provided, however, Developer shall not have to repave and restore asphalt
paving.
8. The improvements on and to the common facility shall be repaired or
replaced with materials, apparatus and facilities of quality at least equal to
the quality of the materials, apparatus and facilities repaired or replaced.
PARK PLAZA
SUPPLEMENT TO OPERATING AGREEMENT
(DILLARD EXISTING STORE)
THIS SUPPLEMENT TO OPERATING AGREEMENT, made as of the 15th day of
December, 1986, to be effective as of December 31, 1986, between
XXXXXXX-MARATHON MASTER PARTNERSHIP B, a Texas general partnership, having its
principal place of business at One Galleria Tower, Suite 1200, 00000 Xxxx Xxxx,
Xxxxxx, Xxxxx 00000-0000 (hereinafter called "Developer"), and XXXXXXX
DEPARTMENT STORES, INC., a Delaware corporation, having its principal place of
business at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 (hereinafter
called "Dillard Store"), and CONSTRUCTION DEVELOPERS, INCORPORATED., an Arkansas
corporation, having its principal place of business at 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000 (hereinafter called "Condev"; Condev and Dillard
Store being hereinafter sometimes collectively called "Dillard");
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into a certain Construction,
Operation and Reciprocal Easement Agreement of even date herewith (herein called
the "Operating Agreement"), and the parties hereto desire to supplement said
Operating Agreement by this supplement thereto (hereinafter called the
"Supplement to Operating Agreement"), as between themselves, with the under-
standing that this Supplement to Operating Agreement will not be filed for
record.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in the Operating Agreement, the parties hereto covenant and agree as
follows:
1. INCORPORATION BY REFERENCE. All of the terms, provisions, covenants and
conditions of the Operating Agreement are hereby incorporated herein and made a
part hereof as if fully repeated herein, except that in the event of a conflict,
this Supplement to Operating Agreement shall govern. The term "Dillard's
Building," as used herein, shall mean the existing retail department store
operated by Xxxxxxx Store on the Dillard Tract.
2. MALL MAINTENANCE CONTRIBUTION. In consideration of Developer
maintaining and operating the Enclosed Mall as provided for in the Operating
Agreement, Dillard agrees to pay Developer the following annual contribution in
equal monthly installments:
(a) For five (5) years commencing on the effective date of this
Supplement to Operating Agreement, the sum of Seventeen and One-half
Cents (l7-l/2c) per square foot of Floor Area in the Dillard's
Building
(b) For the following five (5) year period and for and during each
subsequent five (5) year period, the rate shall be increased by the
lesser of the CPI increase for such period, or Two and One-half
Cents (2-l/2c) over the rate for the preceding period.
(c) As used herein, "CPI" shall mean the Consumer Price Index for all
Urban Consumers for All Cities: All items (1967 = 100) published by
the Bureau of Labor Statistics, United States Department of Labor. In
the event that (i) the Consumer Price Index ceases to use the 1967
average of 100 as the basis of calculations; or (ii) a substantial
change is made in the number of items used in determining the Consumer
Price Index; or (iii) the Parties agree that the Consumer Price Index
does not accurately reflect, in relationship to the basic index, the
purchasing power of the dollar; or (iv) the Consumer Price Index shall
be discontinued for any reason; then, the Bureau of Labor Statistics
shall be requested to furnish a new index comparable to the Consumer
Price Index together with information which will make possible the
conversion to the new index in computing the adjusted variance amount
hereunder. If for any reason the Bureau of Labor Statistics does not
furnish such an index and such information, the parties hereto shall
thereafter accept and use such other index or comparable statistics on
the cost of living for the City of Little Rock as shall be computed
and published by an agency of the United States or by a responsible
financial periodical or recognized authority then to be selected by
the agreement of the Parties.
3. DEVELOPER MAINTENANCE CONTRIBUTION. Developer agrees to maintain the
Common Area of the Dillard Tract in accordance with the provisions of Exhibit A
hereof and, in addition, agrees to provide, at no cost to Dillard, the electric
power for the public 1ighting on the Common Area of the Dillard Tract. In
consideration thereof, Dillard agrees to pay Developer the following amounts
annually in equal monthly installments:
(a) For five (5) years commencing on the effective date years of this
Supplement to Operating Agreement, the sum of Seventeen and One-half
Cents (l7-1/2c) per square foot of Floor Area in the Dillard's
Building.
(b) For the following five (5) year period and for and during each
subsequent five (5) year period, the rate shall be increased by the
lesser of the CPI increase for such period, or Two and One-half Cents
(2-1/2c) over the rate for the preceding period.
(c) Notwithstanding anything to the contrary contained in the
Operating Agreement or in this Supplement to Operating Agreement:
-2-
(1) Subsequent to the fifth (5th) calender year after Dillard opens
the Dillard retail department store on the Condev Tract for business to the
general public or in the event Developer shall transfer its Tract and
Buildings to a third party (not including transfers to any lenders by means
of a mortgage or deed of trust or to any transferee in lieu of foreclosure
of a mortgage or deed of trust), Dillard shall have the right to terminate,
with or without cause, the obligation of Developer to maintain and operate
the Common Area on the Dillard Tract as hereinabove provided in this
Section 3 by giving six (6) months' advance written notice to Developer.
Such termination shall be final, and thereafter Developer shall have no
obligation to perform Common Area operation and maintenance on the Dillard
Tract, and Dillard shall only be required to make payments for Enclosed
Mall Maintenance to Developer. Upon such termination by Xxxxxxx, Xxxxxxx
shall thereafter operate and maintain the Common Area on the Dillard Tract
as provided in the Operating Agreement and also as hereinafter provided. In
conjunction with such maintenance and operation by Dillard of the Common
Area on the Dillard Tract, Dillard, at its sole cost and expense, shall
re-meter the electric power used for lighting the Common Area on the
Dillard Tract to Dillard's own electrical meters and thereafter shall bear
directly the cost and expense of the electric power used to light the
Common Area on the Dillard Tract. After such termination and changeover,
Dillard shall keep the Common Area on the Dillard Tract lit during the same
periods of time that the Common Area on the Developer Tract are being lit
by Developer in accordance with the applicable provisions of the Operating
Agreement. Also, in the event of such termination and changeover by
Xxxxxxx, Xxxxxxx shall thereafter, during the remaining balance of the term
of the Operating Agreement, maintain and operate the Common Area on the
Dillard Tract in good order, condition and repair in accordance with the
provisions of the Operating Agreement.
(2) Subsequent to the expiration or earlier termination of Developer's
obligation to operate the Enclosed Mall, as provided in the Operating
Agreement, Developer shall have the right, but not the obligation, upon six
(6) months' advance written notice to Dillard, to terminate its obligations
to maintain the Common Area on the Dillard Tract pursuant to the provisions
of this Supplement. In the event Developer terminates its obligations to
maintain the Common Area of the Dillard Tract, Dillard shall be required to
maintain the Common Area on the Dillard Tract and to operate and light the
Common Area on the Dillard Tract in accordance with the provisions of the
Operating Agreement, but shall not to make the payments set forth in 3(a)
and 3(b) above.
4. ADVERTISING AND PROMOTIONAL SERVICE. Pursuant to the Operating
Agreement, Developer shall establish an Advertising and Promotional Service to
furnish and maintain professional advertising and sales promotions for the
Shopping Center.
For a period of three (3) years and thereafter throughout the term of the
Dillard Operating Covenant for so long as Dillard desires to continue
contributions to said Advertising and Promotional Service, Dillard agrees to
contribute to said
-3-
Advertising and Promotional Service an amount per year equal to Seven Cents (7c)
per square foot of Floor Area contained in the Dillard's Building, payable in
equal monthly installments on the first day of each month, commencing as of the
effective date of this Supplement to Operating Agreement; provided, however,
that, should Dillard elect to discontinue contributions to said Advertising and
Promotional Service, Dillard shall give notice to Developer ninety (90) days
prior to the effective date of such discontinuance. All monies received
hereunder shall be used solely for the purpose of advertising and promotional
services of the Shopping Center, and Developer agrees (1) to expend or cause to
be expended the fees received for advertising and promotion, (2) that the direct
costs of the Advertising and Promotional Service will be paid, plus the salaries
of full-time employees and, on a pro rata basis, salaries of part-time
employees, plus other expenses incidental thereto, out of such fees, and (3)
within sixty (60) days from the end of the calendar year, Developer shall
provide Xxxxxxx Store for review, an unaudited statement of disbursements of the
Advertising and Promotional Service fees received for that year. Developer
hereby agrees to make a contribution to the Advertising and Promotional Service
equal to twenty percent (20%) of the contributions made to the Advertising and
Promotional Service by Dillard and the tenants in the Shopping Center, which
contribution may be made by means of services to the Advertising and Promotional
Service.
5. HOURS OF OPERATION. Subject to the force majeure provisions set forth in
the Operating Agreement and in conjunction with the Dillard Operating Covenant
as set forth in Section 4.2 of the Operating Agreement, Dillard Store hereby
agrees to operate its department store business in the Dillard's Building as
required by the provisions of the Operating Agreement, for the customary hours
per calendar week that Xxxxxxx Store operates its other comparable department
stores.
6. COMMON AREA LIGHTING STANDARDS. Developer or Dillard, as required under
this Agreement, shall provide for an average maintained lighting intensity of 1
foot candle, measured at 30"
-4-
above grade at all points on the parking areas on their respective Tracts.
7. WORK TO BE PERFORMED BY DEVELOPER. Developer shall, at its cost and
expense, construct on the Dillard Tract such roadways, parking areas, curbs and
walkways as may be necessary in connection with the reconstruction and
renovation of the Enclosed Mall.
8. RESTRICTIONS ON USE. During the Developer Operating Covenant, no
portion of the Developer's Tract shall be leased or used for or by any of the
following types of businesses or activities:
(a) Funeral establishment;
(b) Used car lots;
(c) Any recreational activity involving illegal gambling;
(d) Pawn shops;
(e) Outdoor circus or other entertainment, but not excluding promotional
activities sponsored by the Advertising and Promotional Service;
(f) Outdoor meetings;
(g) Bowling alley;
(h) Pool or billiard establishment;
(i) Operation of "elephant trains" or similar transportation devices; and
(j) Flea circus.
9. KIOSK RESTRICTION. During the term of the Developer's Operating
Covenant, Developer shall not erect or permit to be erected a kiosk in the
Enclosed Mall which exceeds nine (9) feet in height, ten (10) feet in width, and
fifteen (15) feet in length. No kiosk shall be erected in that area of the
Enclosed Mall within 90 feet measured from the middle of Dillard's Building
entrances fronting on the Enclosed Mall. Developer shall not permit, during the
Developer Operating Covenant, any stand-up fast-food restaurants for
off-premises consumption to be located within 100 feet measured from the middle
of Dillard's Building entrances fronting on the Enclosed Mall, and shall not
permit any other type of restaurant to be erected within 60 feet of the
Dillard's Building entrances measured as aforesaid. The foregoing restrictions
shall be applicable only with respect to those levels or floors of the Enclosed
Mall onto which the Dillard's Building possesses a customer entrance.
10. RESTRICTIONS ON RESERVE TRACTS. During the Developer Operating
Covenant, the Reserve Tracts shall only be used for
-5-
retail and service facilities normally associated with regional mall shopping
centers, including, without limitation, restaurants and fast-food restaurants,
banks and savings and loan institutions, office buildings, hotels and motels. In
addition to the foregoing conditions, Developer shall not construct or permit to
be constructed any building upon the Reserve Tracts except in conformity with
the following conditions:
(a) No building shall exceed one (1) story in height, which one story
shall not exceed twenty-one feet (21') in height.
(b) There shall be no pylon signs within said Reserve Tracts except for
pylon signs for savings and loan institutions, banks and other similar
facilities.
(C) The greater of (i) 4.0 parking spaces for each 1,000 square feet of
floor area or (ii) the code requirements shall be maintained on a
Reserve Tract.
Prior to development of the Reserve Tracts, Developer shall maintain or
cause to be maintained the Reserve Tracts in a sightly condition. Nothing in
this Section 10 shall prohibit or restrict the current uses of the Reserve
Tracts as of the effective date of the Supplement to Operating Agreement; it
being understood and agreed that such current uses are ongoing and permitted.
11. LIMITATION ON DEVELOPER'S RIGHT TO TRANSFER. Notwithstanding the
provisions of Section 10.4 of the Operating Agreement, subsequent to the
permitted transfer date, Developer shall only have the right to transfer its
Tract and Buildings to a transferee who is an experienced manager of regional
mall shopping centers or shall provide for experienced management of the
shopping center through means of contracting with or hiring an experienced
regional mall shopping center manager.
12. PAYMENT FOR ON- AND OFF-SITE WORK. The sole consideration to Developer
for performing all on- and off-site work on the Dillard Tract in accordance with
the final Plans and Specifications approved by Dillard in accordance with
Article I of the Operating Agreement shall be the obligations of Dillard to
operate the Dillard's Building on the Dillard Tract as required by the terms of
the Operating Agreement and no other sum shall be due Developer therefor.
-6-
13. COLLATERAL ASSIGNMENT OF THIS SUPPLEMENT TO OPERATING AGREEMENT.
Dillard hereby consents to the assignment of the Operating Agreement and this
Supplement to Operating Agreement to any holder of a deed of trust or mortgage
on the Developer Tract, its successors and assigns, in conjunction with the
financing of Improvements in and to the Shopping Center.
14. EXECUTION OF THIS SUPPLEMENT TO OPERATING AGREEMENT. This Supplement to
Operating Agreement may be executed in several counterparts, each of which shall
be deemed an original and all of which shall constitute but one and the same
instrument.
15. SUCCESSORS AND ASSIGNS. The provisions of this Supplement to Operating
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
-7-
IN WITNESS WHEREOF, the parties hereto have duly executed this Supplement
to Operating Agreement as of the day and year first above written.
DEVELOPER
---------
XXXXXXX-MARATHON MASTER PARTNERSHIP B,
a Texas general partnership,
General Partner,
By: XXXXXXX MARATHON GROUP INC.,
a Delaware corporation,
Managing Partner,
WITNESSES;
/S/ [ILLEGIBLE] BY: _______________________________________
------------------------- X. X. Xxxxxxx, Xx.,
[ILLEGIBLE] President
-------------------------
DILLARD STORE
-------------
WITNESSES: XXXXXXX DEPARTMENT STORES, INC.,
A Delaware Corporation,
/S/ [ILLEGIBLE] By: /S/ E. Xxx Xxxx, Xx.
------------------------- -------------------------------------------
/S/ ?????? Page Its Vice Chairman
------------------------- -------------------------------------------
ATTEST:
/S/ [ILLEGIBLE] By: /S/ [ILLEGIBLE]
------------------------- -------------------------------------------
/S/ ?????? Page Its ?????
------------------------- -------------------------------------------
CONDEV:
------
WITNESSES: CONSTRUCTION DEVELOPERS, INCORPORATED,
An Arkansas Corporation,
/S/ [ILLEGIBLE] By: /S/ E. Xxx Xxxx, Xx.
------------------------- -------------------------------------------
/S/ ?????? Page Its Vice President
------------------------- -------------------------------------------
ATTEST:
/S/ [ILLEGIBLE] By: /S/ [ILLEGIBLE]
------------------------- -------------------------------------------
/S/ ?????? Page Its ?????
------------------------- -------------------------------------------
-8-
Exhibit A
Common Area Maintenance Criteria
For Dillard Tract
1. All hardsurfaced portions of the common facilities and improvements
shall be swept at intervals sufficient to maintain the same in a clean condition
and shall be kept reasonable clear of ice and snow before the retail stores
within the Shopping Center shall open for business to the public.
2. All sidewalks shall be swept at intervals sufficient to maintain the
same in a clean condition.
3. All trash and rubbish containers located in the common facilities for
use of the public, shall be washed at intervals sufficient to maintain the same
in a clean condition.
4. All landscaping shall be properly maintained, including removal of dead
plants, weeds and foreign matter and such replanting and replacement as the
occasion may require.
5. All hardsurfaced markings shall be inspected at regular intervals and
promptly repainted as the same shall become unsightly or indistinct from wear
and tear or other cause.
6. All sewer catch basins shall be cleaned on a schedule sufficient to
maintain all sewer lines in a free-flowing condition; and all mechanical
equipment a part of the storm and sanitary sewer facilities shall be regularly
inspected and kept in proper working order.
7. All asphalt paving shall be inspected at regular intervals and
maintained in a first-class condition, including the patching of pot holes,
provided, however, Developer shall not have to repave and restore any asphalt
paving
8. The improvements on and to the common facility shall be repaired or
replaced with materials, apparatus and facilities of quality at least equal to
the quality of the materials, apparatus and facilities repaired or replaced.
XXXX XXXXX XXXX
XXXXXX XXXX, XXXXXXXX
FIRST AMENDMENT TO CONSTRUCTION, OPERATION AND RECIPROCAL
EASEMENT AGREEMENT
This FIRST AMENDMENT TO CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT
AGREEMENT (this "First Amendment") is made and entered into to be effective as
of the 31st day of December, ????, by and among XXXXXXX-MARATHON MASTER
PARTNERSHIP B, a Texas general partnership ("Developer"), CONSTRUCTION
DEVELOPERS, INCORPORATED, an Arkansas corporation ("Condev"), and XXXXXXX
DEPARTMENT STORES, INC., a Delaware corporation ("Xxxxxxx Store") Condev and
Dillard Store are hereinafter sometimes collectively referred to as "Dillard").
W I T N E S S E T H:
WHEREAS, Developer, Dillard Store and Condev are parties to that certain
Construction, Operation and Reciprocal Easement Agreement dated to be effective
as of December 31, 1986 (the "XXXXX") and filed for record on December 31, 1986
in the office of the Circuit Clerk of Pulaski County, Arkansas as Document No.
86-82744.
WHEREAS, it has come to the attention of the parties to the XXXXX that
the legal descriptions of certain property (the "Property") owned by such
parties located in Little Rock, Pulaski County, Arkansas contained in Exhibit A
attached to the XXXXX are inaccurate; and
WHEREAS, the Property has recently been surveyed on the ground, resulting
in accurate legal descriptions, and the parties hereto now desire to amend the
XXXXX to replace the legal descriptions thereof.
NOW, THEREFORE for and in consideration of Ten and No/100 Dollars
($10.00), the mutual covenants contained herein and in the XXXXX and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Exhibit A Parts I, II, III and IV of the XXXXX are hereby
deleted in their entirety and the Exhibit A Parts I, II, III and IV
attached hereto are substituted in their stead.
This Instrument Prepared by:
Xxxxx, Xxxxxx & Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000 (214) 741-7139
-1-
2. The parties hereto acknowledge that Exhibit A was inaccurate as of the
effective date of the XXXXX, and that, notwithstanding the date on which this
First Amendment is actually executed, the substitution therefor by Exhibit A
attached hereto shall be treated for all purposes as if such rep1acement had
been attached to the XXXXX as of is effective date.
3. Except as expressly amended hereby, all terms and provisions of the
XXXXX shall remain unchanged and in full force and effect.
(THIS SPACE IS INTENTIONALLY LEFT BLANK)
-2-
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to be effective as of the date and year first above written.
DEVELOPEE:
----------
WITNESSESS: XXXXXXX-MARATHON MASTER PARTNERSHIP B,
/s/ [ILLEGIBLE] a Texas general partnership,
--------------------------
/s/ [ILLEGIBLE] By: XXXXXXX MARATHON GROUP INC.,
-------------------------- a Delaware corporation,
Managing Partner,
ATTEST:
By: /s/ Xxxx X. Xxxxxxx By: /s/ X. X. Xxxxxxx, Xx.
---------------------- ----------------------------
Xxxx X. Xxxxxxx X. X. Xxxxxxx, Xx.,
Secretary President
DILLARD STORE:
--------------
WITNESSES: XXXXXXX DEPARTMENT STORES, INC.,
/s/ [ILLEGIBLE] a Delaware corporation,
--------------------------
/s/ [ILLEGIBLE]
--------------------------
ATTEST:
By: /s/ [ILLEGIBLE] By: /s/ E. Xxx Xxxx, Xx.
---------------------- --------------------------------
/s/ [ILLEGIBLE] E. Xxx Xxxx, Xx.,
---------------------- Vice Chairman
Secretary
CONDEV:
-------
WITNESSES: CONSTRUCTION DEVELOPERS, INCORPORATED,
/s/ [ILLEGIBLE] an Arkansas corporation,
--------------------------
/s/ [ILLEGIBLE]
--------------------------
ATTEST:
By: /s/ [ILLEGIBLE] By: /s/ E. Xxx Xxxx, Xx.
---------------------- --------------------------------
/s/ [ILLEGIBLE] E. Xxx Xxxx, Xx.,
---------------------- Vice President
Secretary
-3-
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BE IT KNOWN THAT on this date, before me, the undersigned authority,
personally came and appeared X. X. XXXXXXX, XX., President of Xxxxxxx Marathon
Group Inc., Managing Partner of Xxxxxxx-Marathon Master Partnership B, to me
personally known and known to me to be the person whose genuine signature is
affixed to the foregoing document, who signed said document before me and in the
presence of the two witnesses whose names are thereto subscribed as such, being
competent witnesses, and who acknowledged, in my presence and in the presence of
said witnesses, that he signed the above and foregoing document as his own free
act and deed and for the uses and purposes and in the capacity therein set forth
and apparent.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 22/nd/ day of July, 1988.
[SEAL] /s/ Xxxxx Xxxxxxx
--------------------------
Notary Public in and for
The State of Texas
My commission expires:
3-23-91
---------------------
THE STATE OF ARKANSAS )
)
COUNTY OF PULASKI )
BE IT KN0WN THAT on this date, before me, the undersigned authority,
personally came and appeared E. Xxx Xxxx, Xx., the Vice Chairman of XXXXXXX
DEPARTMENT STORES, INC., a Delaware corporation, to me personally known and
known to me to be the person whose genuine signature is affixed to the foregoing
document, who signed said document before me and in the presence of the two
witnesses whose names are thereto subscribed as such, being competent
witnesses, and who acknowledged, in my presence and in the presence of said
witnesses, that he signed the above and foregoing document as his own free act
and deed and for the uses and purposes and in the capacity therein set forth and
apparent.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 14/th/ day of July, 1988.
[SEAL] /s/ Xxxxxx Xxxxxxx
--------------------------
Notary Public in and for
Pulaski County, Arkansas
My commission expires:
9-1-91
---------------------
-0-
XXX XXXXX XX XXXXXXXX )
)
COUNTY OF PULASKI )
BE IT KNOWN THAT on this date, before me, the undersigned authority,
personally came and appeared E. Xxx Xxxx Xx., the Vice President of CONSTRUCTION
DEVELOPERS, INCORPORATED, an Arkansas corporation, to me personally known and
known to me to be the person whose genuine signature is affixed to the foregoing
document, who signed said document before me and in the presence of the two
witnesses whose names are thereto subscribed as such, being competent witnesses,
and who acknowledged, in my presence and in the presence of said witnesses, that
he signed the above and foregoing document as his own free act and deed and for
the uses and purposes and in the capacity therein set forth and apparent.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 18/th/ day of July, 1988.
[SEAL] /s/ Xxxxxx Xxxxxxx
--------------------------
Notary Public in and for
Pulaski County, Arkansas
My commission expires:
9-1-91
---------------------
-5-
Exhibit A
PART I
DEVELOPER TRACT
[COPY ILLEGIBLE]
EXHIBIT A
PART I
XXXXXXX DEPARTMENT STORES, INC.
[COPY ILLEGIBLE]
EXHIBIT A
PART I
CONSTRUCTION DEVELOPERS INCORPORATED
A PART OF THE NE1/4 NE1/4, XXXXXXX 0, XXXXXXXX 0 XXXXX, XXXXX 00 XXXX, XXXXXXX
XXXXXX, ARKANSAS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
FROM THE SOUTHEAST CORNER OF THE SAID NE1/4 NE1/4; RUN THENCE NORTH 88 DEGREES
38 MINUTES 23 SECONDS WEST AND ALONG THE SOUTH LINE OF THE SAID NE1/4 NE1/4 AND
XXX XXXXXXXXXX XX XXXX XXXXXXX XXXXXX (OF 60 FOOT WIDTH) FOR 651.67 FEET; THENCE
NORTH 01 DEGREE 21 MINUTES 37 SECONDS EAST FOR 30.0 FEET TO THE NORTH RIGHT OF
WAY LINE OF WEST MARKHAM STREET; THENCE NORTH 01 DEGREE 21 MINUTES 37 SECONDS
EAST FOR 190.81 FEET; THENCE NORTH 88 DEGREES 38 MINUTES 23 SECONDS WEST FOR
160.36 FEET TO A POINT WHICH IS IN LINE WITH THE EAST WALL OF A TWO STORY BRICK
BUILDING OCCUPIED BY XXXXXXX DEPARTMENT STORES, INC.; THENCE NORTH 01 DEGREE 24
MINUTES 36 SECONDS EAST AND ALONG THE EAST WALL AND EAST WALL PROJECTED NORTH
FOR 590.82 FEET TO THE NORTH LINE OF AN EAST-WEST ALLEY AND A POINT ON THE SOUTH
LINE OF LOT 11, XXXXX XXXXXXX ADDITION TO THE CITY OF LITTLE ROCK; THENCE SOUTH
88 DEGREES 50 MINUTES 28 SECONDS EAST AND ALONG THE SOUTH LINE OF XXXX 00, 00,
XXX 00, XXXXX XXXXXXX ADDITION TO THE CITY OF LITTLE ROCK, AND THE NORTH LINE OF
THE EAST-WEST ALLEY FOR 114.11 FEET TO THE SOUTHEAST CORNER OF SAID LOT 13;
THENCE NORTH 00 DEGREES 29 MINUTES EAST AND ALONG THE EAST LINE OF SAID XXX 00
XXX XXX XXXX XXXXX XX XXX LINE OF XXXXXX STREET FOR 26.12 FEET TO A POINT THENCE
SOUTH 89 DEGREES 03 MINUTES 32 SECONDS EAST FOR 637.63 FEET TO THE WEST RIGHT OF
WAY LINE OF UNIVERSITY AVENUE (OF 80 FOOT WIDTH) AND 40.0 FEET WEST OF THE EAST
LINE OF THE NE1/4 NE1/4; THENCE SOUTH AND ALONG THE WEST RIGHT OF WAY LINE OF
UNIVERSITY AVENUE AND PARALLEL WITH THE EAST LINE OF THE NE1/4 NE1/4 FOR 55.00
FEET TO THE POINT OF BEGINNING; THENCE NORTH 89 DEGREES 03 MINUTES 32 SECONDS
WEST FOR 200.00 FEET; THENCE SOUTH 01 DEGREE 21 MINUTES 37 SECONDS WEST FOR
200.00 FEET; THENCE NORTH 88 DEGREES 38 MINUTES 23 SECONDS WEST FOR 59.49 FEET;
THENCE SOUTH 01 DEGREE 26 MINUTES 04 SECONDS WEST FOR 368.75 FEET; THENCE NORTH
88 DEGREES 38 MINUTES 23 SECONDS WEST FOR 69.86 FEET; THENCE SOUTH 01 DEGREE 21
MINUTES 37 SECONDS WEST FOR 150.00 FEET; THENCE SOUTH 88 DEGREES 38 MINUTES 23
SECONDS EAST FOR 143.81 FEET; THENCE NORTH 01 DEGREE 21 MINUTES 37 SECONDS EAST
FOR 129.01 FEET; THENCE SOUTH 88 DEGREES 38 MINUTES 23 SECONDS EAST FOR 200.00
FEET TO THE WEST RIGHT OF WAY LINE OF UNIVERSITY AVENUE; THENCE NORTH AND ALONG
THE WEST RIGHT OF WAY LINE OF UNIVERSITY AVENUE AND PARALLEL WITH THE EAST LINE
OF THE NE1/4 NE1/4 FOR 591.37 FEET TO THE POINT OF BEGINNING, CONTAINING 3.7999
ACRES, MORE OR LESS.
EXHIBIT A
PART II
XXXXXXX DEPARTMENT STORES, INC.
[COPY ILLEGIBLE]
EXHIBIT A
PART III
CONSTRUCTION DEVELOPERS INCORPORATED
A PART OF THE NE1/4 NE1/4, XXXXXXX 0, XXXXXXXX 0 XXXXX, XXXXX 00 XXXX, XXXXXXX
XXXXXX, ARKANSAS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
FROM THE SOUTHEAST CORNER OF THE SAID NE1/4 NE1/4; RUN THENCE NORTH 88 DEGREES
38 MINUTES 23 SECONDS WEST AND ALONG THE SOUTH LINE OF THE SAID NE1/4 NE1/4 AND
XXX XXXXXXXXXX XX XXXX XXXXXXX XXXXXX (OF 60 FOOT WIDTH) FOR 651.67 FEET; THENCE
NORTH 01 DEGREE 21 MINUTES 37 SECONDS EAST FOR 30.0 FEET TO THE NORTH RIGHT OF
WAY LINE OF WEST MARKHAM STREET; THENCE NORTH 01 DEGREE 21 MINUTES 37 SECONDS
EAST FOR 190.81 FEET; THENCE NORTH 88 DEGREES 38 MINUTES 23 SECONDS WEST FOR
160.36 FEET TO A POINT WHICH IS IN LINE WITH THE EAST WALL OF A TWO STORY BRICK
BUILDING OCCUPIED BY XXXXXXX DEPARTMENT STORES, INC.; THENCE NORTH 01 DEGREE 25
MINUTES 36 SECONDS EAST AND ALONG THE EAST WALL AND EAST WALL PROJECTED NORTH
FOR 590.82 FEET TO THE NORTH LINE OF AN EAST-WEST ALLEY AND A POINT ON THE SOUTH
LINE OF LOT 11, XXXXX XXXXXXX ADDITION TO THE CITY OF LITTLE ROCK; THENCE SOUTH
88 DEGREES 50 MINUTES 28 SECONDS EAST AND ALONG THE SOUTH LINE OF XXXX 00, 00,
XXX 00, XXXXX XXXXXXX ADDITION TO THE CITY OF LITTLE ROCK, AND THE NORTH LINE OF
THE EAST-WEST ALLEY FOR 114.11 FEET TO THE SOUTHEAST CORNER OF SAID LOT 13;
THENCE NORTH 00 DEGREES 29 MINUTES EAST AND ALONG THE EAST LINE OF SAID XXX 00
XXX XXX XXXX XXXXX XX XXX LINE OF XXXXXX STREET FOR 26.12 FEET TO A POINT;
THENCE SOUTH 89 DEGREES O3 MINUTES 32 SECONDS EAST FOR 637.63 FEET TO THE WEST
RIGHT OF WAY LINE OF UNIVERSITY AVENUE (OF 80 FOOT WIDTH) AND 40.0 FEET WEST OF
THE EAST LINE OF THE NE1/4 NE1/4; THENCE SOUTH AND ALONG THE WEST RIGHT OF WAY
LINE OF UNIVERSITY AVENUE AND PARALLEL WITH THE EAST LINE OF THE NE1/4 NE1/4 FOR
55.00 FEET TO THE POINT OF BEGINNING; THENCE NORTH 89 DEGREES 03 MINUTES 32
SECONDS WEST FOR 200.00 FEET; THENCE SOUTH 01 DEGREE 21 MINUTES 37 SECONDS WEST
FOR 200.00 FEET; THENCE NORTH 88 DEGREES 38 MINUTES 23 SECONDS WEST FOR 59.49
FEET; THENCE SOUTH 01 DEGREE 26 MINUTES 04 SECONDS WEST FOR 368.75 FEET; THENCE
NORTH 88 DEGREES 38 MINUTES 23 SECONDS WEST FOR 69.86 FEET; THENCE SOUTH 01
DEGREE 21 MINUTES 37 SECONDS WEST FOR 150.00 FEET; THENCE SOUTH 88 DEGREES 38
MINUTES 23 SECONDS EAST FOR 143.81 FEET; THENCE NORTH 01 DEGREE 21 MINUTES 37
SECONDS EAST FOR 129.01 FEET; THENCE SOUTH 88 DEGREES 38 MINUTES 23 SECONDS EAST
FOR 200.00 FEET TO THE WEST RIGHT OF WAY LINE OF UNIVERSITY AVENUE; THENCE NORTH
AND ALONG THE WEST RIGHT OF WAY LINE OF UNIVERSITY AVENUE AND PARALLEL WITH THE
EAST LINE OF THE NE1/4 NE1/4 FOR 591.37 FEET TO THE POINT OF BEGINNING,
CONTAINING 3.7999 ACRES, MORE OR LESS.
Exhibit A
PART IV
DEVELOPER TRACT
[COPY ILLEGIBLE]
or deed of trust on the Developer's Tract, or any portion thereof, a period of
twelve (12) consecutive calendar months, inclusive of any periods of time caused
by Force Majeure hereof, after such notice to cause said conditions to be
satisfied, cured or fulfilled. In the event said conditions are fulfilled within
said twelve (12) month period, the Dillard Operating Covenant shall remain in
full force and effect.
After the expiration of the Dillard Operating Covenant, the Dillard Tract
and Condev Tract, if used at all, shall be used for retail purposes, subject,
however, to the same conditions as those stipulated in (i) and (ii) in the first
paragraph of this Section 4.2. Nothing herein contained shall require any
operation on the Dillard Tract or Condev Tract following the Dillard Operating
Covenant. During the term of this Agreement, provided sixty percent (60%) of the
Gross Leaseable Area of the Developer Buildings is being utilized for retail
purposes, Dillard will not use or permit the use of either the Dillard Tract or
Condev Tract for a purpose which is inconsistent with the operation of a
Shopping Center.
Section 4.3 Temporary Cessation of Business. Any temporary cessation of
business by any Party occasioned by the making of repairs or alterations, or by
Force Majeure or any temporary cessation of business not in excess of sixty (60)
days, shall not constitute a breach on the part of the Party so ceasing business
of such Party's Operating Covenant.
ARTICLE V
INDEMNITY
Section 5.1 Indemnity. Except for claims paid pursuant to the insurance
policy or policies carried by the Parties hereto under the provisions of the
"INSURANCE DURING CONSTRUCTION" and "INSURANCE DURING OPERATION" sections hereof
(1) Dillard shall indemnify and save Developer harmless from and against
any and all claims, actions, damages, liability and expense in
connection with bodily injury, loss of life, personal injury or death
to persons and damage to property, or any of them, occurring in or
upon the Shopping Center, occasioned in whole or in part by any
omission or act of negligence of the indemnifying Department Store,
its agents, contractors or employees,
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including, without limitation, all claims in respect of asbestos even
if occasioned in whole or in part by the acts or omissions of third
parties; and
(2) Developer shall indemnify and save Dillard harmless from and against
any and all claims, actions, damages, liability and expense in
connection with bodily injury, loss of life, personal injury or death
to persons, and damage to property, or any of them, occurring in or
upon the Shopping Center, occasioned in whole or in part by any
omission or act of negligence of Developer, its agents, contractors or
employees, including, without limitation, all claims in respect of
asbestos even if occasioned in whole or in part by the acts or
omissions of third parties.
PART IV
ARTICLE VI
GRANT OF EASEMENTS
Section 6.1 Definitions and Documentation. This Article sets forth the
easements and licenses and the terms and conditions thereof which the respective
Parties hereby grant to each other for the respective periods set forth in the
case of each such easement or license. As used in this Article:
(a) A Party granting an easement or license is referred to as the
"Grantor" thereof, it being intended that the grant shall thereby bind
and include not only such Party but its successors and assigns as
well; and
(b) A Party to which an easement or license is granted is referred to as
the "Grantee" thereof, it being intended that the grant shall benefit
and include not only such Party but its Permittees, successors and
assigns as well; and
(c) The word "in", in respect of an easement granted "in" a particular
Tract, shall be deemed to mean, as the context may require, "in,"
"to," "on," "over," "through," "upon," "across," and/or "under".
As to the easements herein granted:
(d) The grant of a particular easement by a Grantor shall bind and burden
its respective Tract(s), which shall, for the purpose of this Article,
be deemed to be the servient tenement, but where only a portion
thereof is bound and burdened by the particular easement, only that
portion so bound and burdened shall be deemed to be the servient
tenement; and
(e) The grant of a particular easement to a Grantee shall benefit its
respective Tract(s), which shall, for the purposes of this Article, be
deemed to be the dominant tenement, but where only a portion thereof
is so benefited, only that portion shall be deemed to be the dominant
tenement; and
(f) All easements and licenses granted in this Article shall exist by
virtue of this Agreement without the necessity of confirmation by any
other document; and likewise, upon the extinguishment, expiration or
termination of any easement or license, in whole or in part, or its
release in respect of all or any portion of any Tract, pursuant
hereto, the same shall be extinguished or
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released or be deemed to have expired or terminated without the
necessity of confirmation by any other document. However, each Party
will, as to any easement(s) or license(s), at the request of any other
Party, upon the submission by the requesting Party of an appropriate
document in form and substance acceptable to both Parties, execute and
acknowledge such a document memorializing the existence, or the
extinguishment (in whole or in part), or the release in respect of all
or any portion of any Tract, as the case may be, of any easement or
license; and
(g) All easements and licenses hereby granted are, unless limited or
otherwise provided herein, nonexclusive.
Section 6.2 Temporary License for Construction. During the period of
construction of the Dillard Building on the Condev Tract, the Phase II Common
Area Improvements, and the construction of the Enclosed Mall and parking deck,
each Party grants to the other, their architects, contractors, subcontractors,
materialmen and others engaged in performing such work for it, a temporary
license to use portions of the respective Tract of the Grantor as and to the
extent necessary for the purpose of performing the construction in question,
provided that Dillard during the construction of its Building shall limit its
construction of same to its construction staging area agreed upon between
Dillard and Developer and Grantee shall use every reasonable effort to confine
its ingress and egress to and from the Shopping Center Tract to the construction
haul roads to be designated by Developer as construction haul roads. Such
license shall end when the construction of the Grantee's Building shall be
completed.
Section 6.3 Easements for Use of Common Areas. (a) Each Party grants to the
other easements to use each portion of the Common Areas so constructed on its
respective Tract, other than (x) the Mall, (y) the Ring Road, and (z) Common
Utility Facilities, provision for which is herein made, for its respective
intended purposes, and each Party grants to the others the right to perform the
repairs and maintenance required or permitted under this Agreement to enjoy such
use, such easements to be for the use of the Grantee thereof. Included with the
easements granted by this paragraph are, without limitation:
(i) easements to use the respective parking facilities for the parking and
passage of passenger motor vehicles (and trucks, so long as
there is no unreasonable interference
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with customers and employee parking) and passage by pedestrians; and
(ii) easements to use such roadways to provide passage by motor vehicles
(passenger and truck) and pedestrians between each Tract in the
Shopping Center Tract and the abutting highways and to provide
passage between the various portions of each Tract in the Shopping
Center Tract; and
(iii) easements to use the various walkways and all other portions of the
Common Area for the general use of the Grantee and the Grantor.
(b) The easements provided in this paragraph are subject in each case to
(x) the rights to use the Common Areas for other purposes specifically provided
in this Agreement, and (y) the rights, if any, of each Grantor to change and
relocate portions of the Common Areas to the extent (but only to the extent)
specifically provided in this Agreement.
(c) The easements provided in this Section 6.3 shall terminate upon the
expiration or earlier termination of this Agreement; provided, however, that
said easements, rights and privileges granted upon or in favor of a Tract
which is excluded from the operation and effect of this Agreement pursuant to
Article VIII hereof shall terminate as to said Tract on the date it is so
excluded.
Section 6.4 Easements to Use the Mall. (a) Developer grants to Grantee
easements (i) to have its Buildings abut and open onto the Enclosed Mall and
(ii) to use the Enclosed Mall to provide ingress and egress between its
respective Buildings and between any other stores or Buildings opening on the
Enclosed Mall, for each of them in common with the Grantor. These easements are
subject to the right of Developer to relocate various elements of the
Enclosed Mall to the extent specifically provided in this Agreement.
(b) The easement provided in Section 6.4(a) shall terminate as to a
Grantee's Tract at such date as the Department Store Building thereon shall
cease being operated in accordance with Section 4.2, subject, however, to the
provisions of "FORCE MAJEURE," "EMINENT DOMAIN" and "IMPROVEMENTS DESTRUCTION"
set forth in this Agreement.
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Section 6.5 Easements for Footings and Canopies, Roofs and Other Building
Components. (a) Each Party hereto hereby grants to the other Party hereto owning
an adjoining Tract an easement in and to the area within five (5) feet of the
Grantor's Tract for the construction of footings, foundations and underground
supports for the Buildings constructed or to be constructed on the Grantee's
Tract. If Developer and the Department Store have utilized or shall agree to the
use of what are known in the construction trade as "common footings" for the
Enclosed Mall and/or Developer Buildings on the Developer's Tract and the
Department Store Building on the Dillard Tract and the Condev Tract, such
Parties hereby grant to each other an easement permitting the construction,
maintenance, use, replacement and repair of said common footings.
(b) Each Party hereby expressly grants to the others and to their
respective successors and assigns for the benefit of each Grantee's Tract, the
nonexclusive right and easement in connection with the construction and
operation of Grantee's Building to install, maintain, prepare and replace signs,
canopies, roofs, building overhangs and other like projections and encroachments
attached to the Grantee's Building and extending to the Grantor's Tract;
provided, however, no such projection shall interfere with the operation of
Grantor in its Building or extend more than five feet (5') (or such greater
distance as may be shown on the approved plans of the Department Store or the
Developer) into the Tract of the Grantor.
(c) The easements as provided in this Section 6.5 with respect to any
servient tenement shall last so long as the building or improvement (or element
thereof) which so encroaches, or any replacement thereof constructed during the
term of this Agreement, shall stand and so encroach and shall survive the
expiration of the term of this Agreement or the earlier exclusion by any Party
of its Tract from the operation of this Agreement.
Section 6.6 Easement to Perform Right of Self-Help. Each Party grants to
the other Party hereto and its employees, agents and contractors, easements to
enter upon Tract of the Grantor
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(herein called "Defaulting Party"), and into all Improvements thereon, for the
purpose of performing any obligation which the Grantor is required to perform
under this Agreement but fails or refuses to do and which the Grantee (herein
called "Performing Party") has the right then so to perform under this
Agreement, but the Performing Party shall not have the right to enter into
any Building containing Gross Leasable Area unless required in respect of any
emergency matter affecting the Common Utility Facilities; and in exercising
these easements, the Performing Party shall minimize, to the extent possible,
any interference or interruption of any business being conducted on the Tract(s)
affected. Such easements and the right to cure a default hereunder shall be
exercised only in accordance with the provisions of Section 9.2.
The easement provided in this Section 6.6 shall terminate as to any
obligation which the Performing Party has the right to perform pursuant to this
Agreement on the date that the Performing Party's right to perform terminates
pursuant to this Agreement, but in no event later than the termination of this
Agreement.
Section 6.7 Easement for Abutment of Mall. (a) The Department Store grants
to Developer the right to have the Enclosed Mall abut each of its respective
Department Store Buildings, as mutually to be approved or as presently
constructed. Developer grants to the Department Store the right to have its
respective Department Store Buildings abut the Enclosed Mall, as mutually to be
approved.
(b) The easements as provided in this paragraph shall terminate upon the
first to occur of:
(i) the Enclosed Mall and/or the Developer's Building are demolished or
destroyed and not replaced with reasonable promptness as required or
permitted by the terms of this Agreement.
(ii) a Department Store Building, insofar as the Enclosed Mall abuts upon
it, shall be demolished or destroyed and such Building is not replaced
with reasonable promptness as required or permitted by the terms of
this Agreement.
Section 6.8 Easements for Repair to Structure. (a) Each Party hereto grants
to the other easements for the purpose of
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maintaining, repairing or reconstructing any of the facilities of the Grantee
located in such proximity to the Tract of the Grantor that such facilities can,
as a practical matter, be so maintained, repaired or reconstructed most
advantageously from the Tract of the Grantor; such easements shall Permit the
Grantee and its employees, agents and contractors, to enter upon and use such
parts of the Tract of the Grantor, but not the Building of the Grantor, as are
adjacent to the perimeter of said facilities to such extent, in such manner
(including, without limitation, the erection of scaffolding) and for so long as
is reasonably necessary to the accomplishment of said purpose; provided, however
and on the condition that each such Grantee shall restore the portion of such
Tract and facilities thereon so used to the same or as good condition as existed
immediately before-such work was begun, and provided, further, that any such use
by Grantee (including erection of any scaffolding) shall not unreasonably
interrupt the business being conducted on the Tract so affected. Grantee shall,
in the course of maintaining, repairing or reconstructing its facilities from
the Grantor's Tract, fully indemnify and hold harmless Grantor from and all
expenses, costs or liability for any injury or damage arising out of Grantee's
actions.
(b) The easements provided for in this Section 6.8 with respect to any
servient tenement shall (except as required in order to repair the Ring Road and
Common Utility Facilities) last so long as the Building or Improvement (or
element thereof) which is being maintained, repaired or reconstructed, or any
replacement thereof constructed during the term of this Agreement shall stand,
and shall survive the expiration of the term of this Agreement or the earlier
exclusion by any Party of its Tract from the operation of this Agreement.
Section 6.9 Easement for Ring Road. (a) Each Party hereto hereby grants to
each of the other Parties hereto and additionally to the owners and tenants and
their invitees, successors and/or assigns of the Reserve Tract(s), easements,
for itself and its invitees and tenants, respectively, in common with
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the Grantor and its invitees and tenants, to use the portion of the Ring Road
located on the Tract(s) of the particular Grantor for the purposes of two-way
vehicular traffic (passenger vehicles and trucks) and pedestrian access between
the Tracts of each Grantee and abutting highways and between the various
portions of each such Tract(s).
(b) The easements provided in this Section 6.9 shall be perpetual;
provided, however, that Developer shall and does reserve hereby the right to
withdraw from the grant of easement herein made such portions of the Ring Road
as may interfere with or jeopardize the construction of the Enclosed Mall,
parking deck and other Improvements to be undertaken by Developer. Developer
shall, on behalf of Xxxxxxx and Condev, have the right to execute such documents
and instruments as may be necessary to accomplish the foregoing.
(c) In the event of a condemnation of any portion of the Ring Road, the
Parties will endeavor in good faith to agree on a substitute for the portion(s)
thereof condemned; failing such agreement, the matter shall be submitted to
arbitration for determination in accordance with the provisions of Section 9.4
hereof, it being intended that a Ring Road shall in such event continue to
exist.
(d) Notwithstanding anything to the contrary in this Agreement, but subject
to the provisions of 6.9(b) above,
(i) No person shall have the right, without the consent of the owner(s) of
all other Tracts which are benefited by these easements, applicable to
the Ring Road to (A) relocate any juncture point of the Ring Road on
its Tract with that on any other benefited Tract, or (B) narrow the
Ring Road on its Tract; or (C) change the grade of the Ring Road on
its Tract; and
(ii) The owner of any Tract on which is located an entrance or exit between
the Ring Road and an abutting highway or public right of way
shall not have the right, without the consent of the Grantee(s) of
these easements, applicable to the Ring Road to make any change in the
location, design or number, or reduce the size, of such entrance and
exit as shown on Exhibit "B", but (D) subject to the foregoing, and
following the termination of this Agreement, the owner of any burdened
Tract can change the location of the Ring Road within its Tract
provided that (x) it shall provide a reasonably direct route between
the juncture points or the juncture point(s) and terminus point(s) on
the boundary(ies) of its such Tract, and (y) such new location shall
provide a new Ring Road at least as wide, serviceable and safe as that
substituted for and be improved in a manner at
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least equal to that of the portion of the Ring Road for which it is a
substitute; provided, further, that any dispute among the Parties with reference
to the Ring Road, its juncture, any juncture points or any entrances or exits
between the Ring Road and the abutting highway(s) shall be determined in
accordance with the provisions of the "DEFAULT" article hereof.
Section 6.10 Easement for Common Utility Facilities. Each Party grants to
the other Parties hereto, the following perpetual easements in their respective
Tract for Common Utility Facilities and other utility facilities (the term
"pipe(s)", as used in this section shall mean "pipe(s)", and/or "line(s)",
and/or "conduit(s)", and/or "wire(s)", and/or "cable(s)", and/or "other means of
providing utility facilities", as the context may require):
(a) From and after the date of installation thereof, easements for all
Common Utility Facilities, to the extent that any or all of the same
are so installed, may be located in the Tracts of the respective
Grantor, for the purpose of using, operating, maintaining, repairing,
relocating, replacing or enlarging any of the Common Utility
Facilities, subject to the provisions of this Section 6.10, and each
Party grants to Grantee the right to perform the repairs and
maintenance required or permitted to enjoy such use.
(b) Easements in the Tract of the respective Grantor for the purpose of
connecting any and all of the pipe(s) or the Common Utility Facilities
referred to in (a) hereof with any facilities on the Tract of the
Grantee to the extent that location thereon is necessary and proper in
the Grantee's judgment so to service such facilities; and after any
such connection, for the purpose of using, operating, maintaining,
repairing, relocating, replacing and enlarging any or all of said
pipe(s), subject to the provisions in this Section 6.10.
(c) For the purpose of exercising the rights granted in (a) and (b) of
this Section 6.10, each Grantee and its respective employees, agents
and contractors shall have the right to enter upon and use the Tract
of each Grantor to such extent and so long as reasonably necessary to
accomplish such purposes, subject to the following conditions and
requirements:
(i) No less than ten (10) days' prior written notice shall be given
to the Grantor that Grantee anticipates doing such work, together
with notification of the proposed area of such work, plans and
specifications describing such work and the anticipated date of
start of such work; but if the work involved is emergency repair
work, only such advance notice, written or oral, as is reasonably
practicable need be given;
(ii) That after such work, the pipe(s) in question shall be
underground and not beneath or unreasonably close to (x) any
Floor Area on the Grantor's Tract, (y) any Outdoor Selling Area
thereon, or (z) any ground area shown in Exhibit "B" as a place
where Grantor may build Floor Area, but this (ii) shall not (A)
require the moving of any pipe(s) theretofore installed not in
violation of this
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Agreement, or (B) permit any such work if as a result thereof
any person(s) utilizing the Common Utility Facilities to provide
utilities to Improvement(s) owned by it would be required to
relocate any connection between any Common Utility Facilities
and such Improvements in order for such person to continue to be
able so to utilize the Common Utility Facilities therefor, or if
its ability so to utilize the same is otherwise materially
adversely affected, unless in any such case in this (B), all
such person(s) shall consent to such work or the Grantee
proposing to do such work shall agree (and place the money
therefor in escrow, if reasonably required by such person(s)) to
pay all (direct or indirect) costs of such person(s) contingent
upon the performance of such upon work by such Grantee;
(iii) That such work shall be done at the sole cost of the Grantee
undertaking the same in accordance with the plans and
specifications approved by the Grantor and shall be performed in
such a manner as not to cause (A) any interruption of or undue
interference with the business conducted on the Tract of the
Grantor, or (B) any unreasonable interruption in the services
provided in the pipe(s) servicing the Grantor's Tract; and
(iv) That after the completion of such work, the Grantee shall
restore the portion of the Tract and Improvements of the
respective Grantor so used to the same or as good condition as
existed immediately before the commencement of such work at its
own cost and expense.
(d) The easements granted in (a), (b) and (c) of this section shall be
exclusive insofar as they relate to pipe(s) (as lateral(s) to service
the Building in question) located within five (5) feet of the building
line of the respective Grantee and any other pipe(s) not a Common
Utility Facility, and nonexclusive insofar as they relate to Common
Utility Facilities. To the extent that any such easement is exclusive,
the Grantee in question shall at all times do all work necessary to
maintain the same and shall assume and pay all costs incurred in the
maintenance, repair, replacement and/or enlargement thereof.
(e) If any Party physically disconnects, other than temporarily, from any
pipe(s) which is a Common Utility Facility, it may reconnect only with
the consent of all Parties then using the pipe(s).
Section 6.11 Easements for Security Surveillance Equipment. The Department
Store, during the Term of this Agreement, so long as either of its Buildings
stands, hereby grants to Developer an easement for the installation, operation
and maintenance on or within both its Buildings, at locations to be selected by
Developer and approved by each Department Store as to each respective Building,
which approval shall not be unreasonably withheld, of closed circuit television
cameras or similar equipment for purposes of security surveillance of the
Common Areas on the Shopping Center Tract, including the right to
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install all wires, cables and support systems for such surveillance equipment.
Notwithstanding the foregoing, such easement as to a Department Store Building
shall be limited solely to the exterior of the building and shall include solely
two (2) television cameras and the wires and support system for each such
camera.
Section 6.12 Permanent Easements. With respect to such of the foregoing
easements as are in this article declared to be "perpetual", each such easement
shall, notwithstanding such characterization, expire, terminate, and be
extinguished in relation to any Grantee when such easement is no longer being
used by such Grantee, or those holding under or through such Grantee (non-use,
resulting from destruction or condemnation, or any reasonable interruptions
incidental to the conduct of a business or made reasonably necessary because of
construction, alterations, improvements or repairs shall not be deemed to be
non-use for the purposes hereof), and such easement has not been used for a
continuous period of two (2) years. An assertion by a Grantor that the easement
in question has ceased, terminated, or been extinguished in accordance with the
foregoing sentence shall be deemed to have been made when notice to that effect,
citing this Section 6.12, is given by the Grantor to, and is received by, the
Grantee in question; and such assertion shall be deemed to have been agreed to
by such Grantee unless it shall, within thirty (30) days thereafter by notice to
the Grantor, deny such assertion and give its reasons therefor. Pending the
resolution of such dispute, the easement(s) in question shall be deemed to
continue.
Section 6.13 Platting; and Easements to Public Authorities and Utilities.
Each Party covenants and agrees with the other Party hereto that it will grant
to governmental or public authorities or any public utility companies utility
line easements in, on or under the Common Areas on its respective Tract, all to
be in locations consistent with the Plans and Specifications and the Final Plans
and otherwise in form acceptable to the Grantor, for the installation and/or
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maintenance and operation of utility facilities reasonably required for all
Tracts and modifying existing easements, if required by Developer. Such
easement(s) shall be perpetual so long as such authorities or companies use the
same to provide utility services to any part of the Shopping Center Tract.
Section 6.14 Extinguishment of Easements. Any of the easements or
licenses granted hereby may be (a) released or extinguished, or (b) amended,
waived, or modified by instrument, in recordable form, executed by the owners of
all the Shopping Center Tracts benefited or burdened by the respective easements
or licenses affected thereby and consented to by the first mortgagee of such
benefited or burdened Tracts provided such first mortgagee has informed said
owners in writing addressed as provided for in Section 11.17 of the existence of
the mortgage and the mortgagee's address.
Section 6.15 No Public Dedication. (a) Nothing contained in this Article
VI, including the grant of any or all easements herein provided, shall be
deemed to constitute a dedication of any Tract or any portion or portions
thereof to any governmental body or agency or to the general public.
(b) Each Party hereby reserves the right from time to time to close off
all or any part of the Common Area on its Tract for such reasonable period of
time as may be necessary in order to avoid the possibility of dedicating the
same for public use or creating prescriptive rights therein. Before closing off
the Common Area on its Tract for such purpose, the Party so desiring to close
off its Common Area shall give notice to the other Parties of its intention to
do so and shall attempt to coordinate its closing with the activities of the
other Parties. In order to avoid unreasonable interference with the operation of
the Shopping Center, such closing shall take place, if possible, at a time or a
day when the Shopping Center is not open for business.
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ARTICLE VII
DESTRUCTION
Section 7.1 Destruction of Developer Buildings. In the event of the
destruction of or damage to the Buildings or other Improvements upon the
Developer's Tract or any part thereof at any time during the Developer Operating
Covenant, by fire, windstorm, or other casualty required to be insured against
pursuant to the provisions of Section 3.9 hereof, Developer shall rebuild,
repair and restore such Buildings and Improvements so that there shall then be
substantially the same number of square feet of Floor Area on the Developer's
Tract, in the same location as presently shown on Exhibit B, and of the same
general appearance, in as good condition and constituting an integrated,
first-class, regional shopping center, including the Enclosed Mall, as existed
prior to such damage or destruction. However, in the event such destruction or
damage occurs during the final five (5) years of the Xxxxxxx Operating Covenant,
Developer shall not be obligated to so rebuild, restore or repair unless
the Department Store agrees to extend the Xxxxxxx Operating Covenant for at
least five (5) years after the projected completion date of such rebuilding,
repairing and/or restoration (and subject to the same conditions as specified in
Article IV).
Section 7.2 Restoration by Developer. Any Building, Enclosed Mall or other
Improvements required to be rebuilt, repaired and restored by Developer pursuant
to this Agreement shall be rebuilt, repaired and restored and ready for
occupancy within twelve (12) consecutive calendar months from the time when the
loss or destruction occurred, subject, however, to unavoidable delays as
stipulated under the provisions of FORCE MAJEURE.
Section 7.3 Destruction of Department Store Buildings. In the event of the
destruction of or damage to any Buildings or other Improvements upon the
Xxxxxxx Tract or the Condev Tract, or any part thereof, at any time during the
Xxxxxxx Operating Covenant, by fire, windstorm or other casualty required to be
insured against pursuant to the provisions of Section 3.9 hereof,
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Xxxxxxx shall rebuild, repair and restore such Improvements so that there will
then be substantially the same number of square feet of Floor Area in Buildings
on the Condev Tract and Xxxxxxx Tract, in the same location as presently shown
on Exhibit B, and of the same general appearance, in as good condition, and
constituting integrated Buildings as existed prior to such damage or
destruction. Xxxxxxx, however, shall not be obligated to so rebuild unless the
Enclosed Mall is then open and operating on the Developer's Tract (or if
damaged is being repaired for reopening) and Developer is not in default of its
Operating Covenant, and shall not be required to rebuild in the event, pursuant
to the Xxxxxxx Operating Covenant, it has less than two (2) years remaining to
operate its retail department stores pursuant to the Xxxxxxx Operating Covenant.
Section 7.4 Restoration by Department Store. Any Building or other
Improvements required to be rebuilt, repaired and restored by the Department
Store pursuant to this Agreement shall be rebuilt, repaired and restored and
ready for occupancy within twelve (12) consecutive calendar months from the time
when the loss or destruction occurred, subject, however, to unavoidable delays
as stipulated under the provisions of FORCE MAJEURE.
Section 7.5 Reconstruction Requirements. Any repair, reconstruction and
replacement of any Building or other Improvements performed by Developer or the
Department Store pursuant to this article shall be performed in accordance with
the following requirements:
(1) Plans and Specifications therefor not previously approved for the
original construction of the Shopping Center as required in Sections
1.3 through 1.6 shall be approved by Developer and by the Department
Store, as to exterior architectural design, exterior construction and
location of Improvements being restored, prior to the commencement of
the work of such repair, reconstruction and replacement, which
approvals shall not be withheld without good and valid reason and
notice thereof made in writing. If a Party was required to submit said
Plans and Specifications or the Final Plans for informational purposes
only, then the same shall apply to any restoration or repair required
hereunder;
(2) The Buildings or other Improvements being restored shall be at least
of equal value per square foot and at least as usable for its intended
purpose as such Building or other Improvements were just prior to the
happening of such casualty;
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(3) Substantially the same public entrances in relation to location
on the Enclosed Mall shall exist as existed just prior to the
happening of such casualty; and
(4) Such repair, reconstruction and replacement shall be done in
conformity with the provisions of this Agreement.
Section 7.6 Sightly Condition. In the event that any Party shall not
be required to rebuild and restore its damaged Building or other Improvements
under the provisions of this article, and it does not, in fact, make such
restoration, such Party shall clear its Tract of all debris and hazardous
conditions and shall maintain its Tract in a clean, safe and sightly condition.
The foregoing shall not be construed to prohibit any Party from rebuilding its
Building in accordance with the Plot Plan and the terms of this Agreement.
Section 7.7 Insurance Proceeds. Any fire and extended coverage
insurance policy required under the provisions of the "INSURANCE DURING
OPERATION" or "INSURANCE DURING CONSTRUCTION" articles of this Agreement shall
contain the provision that any payment of a claim shall be paid to a trustee
acceptable to each Party hereof (a first mortgage lien holder of a Tract shall
be deemed acceptable), in order that any and all such payments shall be first
made available for the reconstruction or repairs of any Building or any
Improvements damaged or destroyed as required by the provisions of this
Agreement; provided that any such payment not exceeding One Hundred Fifty
Thousand Dollars ($150,000.00) may be made directly to the Party making the
claim for the sole purpose of reconstruction or repairs; and provided, further,
that the Department Store self-insuring as permitted hereunder or Department
Store (or an entity guaranteeing the performance of the Department Store) having
a then net worth equal to at least One Hundred Million Dollars ($100,000,000.00)
need not pay any proceeds of insurance or any funds to a trustee.
ARTICLE VIII
EMINENT DOMAIN
Section 8.1 Developer Tract. In the event that any part of the
Enclosed Mall or the Floor Area in the Developer Buildings
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or in the event that all or a substantial part (more than ten percent (10%) of
the automobile Parking Spaces) of the Common Areas on the Developer's Tract
should be taken for any public or quasi-public use under any governmental law,
ordinance or regulation, or by right of Eminent Domain, or by private purchase
in lieu thereof, then, and in any of such events, the Developer may elect by
notice given to the Department Store to terminate this Agreement, and the
Parties shall thereupon be released from any further liability hereunder, except
as to those provisions of this Agreement which expressly survive any such
termination. Such termination shall be effective on the earlier of the date of
(a) such taking or (b) the obtaining of possession by the condemning authority.
Section 8.2 Department Store Tracts. In the event that all or a substantial
part (more than fifteen percent (15%)) of the Floor Area in either of the
Department Store's Buildings, or in the event that all or a substantial part
(more than ten percent (10%) of the automobile Parking Spaces) of the Common
Areas on either the Condev Tract or Xxxxxxx Tract should be taken for any public
or quasi-public use under any governmental law, ordinance or regulation, or by
right of Eminent Domain, or by private purchase in lieu thereof, then, and in
any of such events, this Agreement as to the Tract so affected and Building
thereon shall terminate, with the Department Store being thereupon released from
any further liability hereunder as to said Tract, except as to those provisions
of this Agreement which expressly survive any such termination.
Section 8.3 Restoration. If this Agreement is not terminated following a
partial taking, all of its conditions and provisions shall continue in full
force and effect; provided, however, that each Party shall, at such Party's sole
expense, promptly begin and prosecute with diligence the making of all necessary
repairs, restorations and replacements to all Buildings and other Improvements
(including the Enclosed Mall on the Developer's Tract) on such Party's Tract
which shall have been partially taken. All Parking Spaces taken in a partial
taking
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shall be restored, either multilevel on such Party's Tract or upon land which is
adjacent and contiguous to the Shopping Center, in the event such land can be
acquired (all as more particularly described in Section 8.4(ii) hereof), to
provide at least the minimum ratio of Parking Spaces to Gross Leasable Area on
each Party's Tract, as required by the provisions set forth in Section 1.7
hereof. Notwithstanding the foregoing, no Party shall be required to replace
Parking Spaces taken in a partial taking if after such taking, such Party's
Tract contains at least ninety percent (90%) of the Parking Spaces required to
maintain the minimum ratio of Parking Spaces to Gross Leasable Area. The portion
of the Shopping Center so remaining shall be a complete architectural unit with
adequate Parking Spaces and an Enclosed Mall in accordance with the provisions
of this Agreement. Each Party (including the owners, lessees or other parties in
interest of the Reserve Tracts) waives its right to any portion of any award for
the taking of another Party's Tract.
Section 8.4 Application of Condemnation Award. The entire award made for
the condemnation of any land, Building(s) or other Improvements shall belong to
the Party upon whose Tract such land, Building(s) or other Improvements were
located. If this Agreement shall not have been terminated, or if such Party
shall not have excluded its Tract from the operation and effect of this
Agreement, then the entire award shall be applied first, before being devoted to
any other purpose, as follows:
(i) in the case of a taking involving a Department Store Building or a
Developer Building, or the Enclosed Mall, to the restoration of such
buildings) to a complete architectural and structural unit(s) as
similar as is reasonably possible in design, character and quality to
the building(s) so condemned, and in the case of the Enclosed Mall, to
the extent reasonably possible, connecting the Department Store
Buildings.
(ii) in the case of condemnation of Parking Area, if and to the extent that
such Party is either obligated or elects to replace Parking Spaces, to
the replacement of the Parking Spaces lost by such condemnation with
multi-deck parking facilities at a location acceptable to the other
Parties or towards the acquisition of contiguous land acceptable to
the other Parties; provided, however, that if a Party elects to
construct multi-deck parking facilities, such Party shall also submit
preliminary plans showing the dimensions and location of the proposed
multilevel parking facilities to the other Parties for their approval,
which approval may not be unreasonably withheld. In the event such
approval is
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not given by the other Parties hereto, then that Party shall be
relieved of the obligation to construct said multilevel parking
facility. No Party shall be obligated to expend a sum greater than the
amount of its condemnation award to meet any restoration obligation
hereunder.
ARTICLE IX
DEFAULT
Section 9.1 Default. Unless otherwise provided in this Agreement, no Party
shall be deemed to be in default hereunder until such Party shall have been
given written notice describing the nature of such impending default and, within
thirty (30) days after receipt of such notice, shall have failed to commence to
cure such impending default and to proceed diligently to complete the curing of
such impending default as promptly as possible, utilizing all reasonable means
to effectuate and expedite the curing of such impending default. Except as
otherwise expressly provided herein, no breach of the provisions of this
Agreement shall entitle any Party to cancel, rescind or otherwise terminate this
Agreement, but such limitation shall not affect, in any manner, any other rights
or remedies which any Party may have hereunder by reason of any breach of the
provisions of this Agreement. No breach of the provisions of this Agreement
shall defeat or render invalid the lien of any mortgage or deed of trust made in
good faith for value covering any part of the Shopping Center, and any
improvements thereon.
Section 9.2 Right to Cure Default of Another Party. In the event any Party
hereto shall be in default of this Agreement by reason of its failure to perform
any of the provisions, covenants and conditions hereof, and there is no other
remedy provided herein for the other Parties to cure such default, then, in such
event:
(1) By giving thirty (30) days' prior written notice to the Defaulting
Party, as defined in Section 6.6, the Performing Party, as defined in
6.6, shall have the right, but not the obligation to proceed to take
such action as shall be necessary to cure such Default in the name of
and for the account of the Defaulting Party, unless within such thirty
(30) day period the Defaulting Party shall have cured such default or
unless, in the case of a default which by its nature cannot be cured
within such thirty (30) day period, the Defaulting Party shall have
taken action reasonably calculated to begin and diligently prosecute
the curing thereof.
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Notwithstanding the foregoing, the other Parties shall in no event
have the right to enter the Gross Leasable Area of the Defaulting
Party to cure any default, except as provided in Section 6.6.
(2) In the event that a Performing Party shall, in good faith, believe
that a default has created an emergency, then no notice shall be
required to permit the Performing Party to act immediately and to take
such action as is necessary to cure said default.
All repairs shall be done in a careful manner. The Performing Party shall
repair any damage caused by such repair, and further agrees to defend, indemnify
and hold harmless the Defaulting Party from and against any claims, including
mechanics' or materialmen's liens, arising from or caused by said repair.
Nothing contained in this paragraph shall in any way modify, limit or lessen the
obligations of the Parties hereto elsewhere in this Agreement provided or in the
Separate Agreements. As used herein, the term "emergency" shall mean any sudden
unexpected happening in which a failure to act immediately would cause
appreciable damage to person or property.
At the election of the Performing Party, any amounts so expended for
repairs or maintenance under this self-help provision (i) may be withheld from
amounts, if any, otherwise payable to the Defaulting Party under this Agreement
or Separate Agreement(s) without prejudice, however, to the right of the other
Parties to make such repairs or perform such maintenance and to withhold such
amounts, or (ii) shall be payable on demand by the Defaulting Party to the
Performing Party along with interest at the prime rate being charged by Citibank
N.A. of New York on the date of said demand from the date of such expenditure by
the Performing Party. The Parties agree that a lien shall not be created in
favor of the Performing Party on the Defaulting Party's Tract.
Section 9.3 Mortgagee Notice. Each Party serving a notice of default
under this Agreement shall send by certified or registered United States mail,
postage prepaid, a copy of such notice to any holder of a first mortgage
(whether fee or leasehold) on the Tract of the Party so served provided such
holder shall have sent the Party serving the notice of default a notice
informing it of the existence of such mortgage and the
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address to which copies of such notices of default are to be sent, and such
mortgagee shall be permitted to cure any such default not later than thirty (30)
days after a copy of the notice of default shall have been sent to such
defaulting Party and its mortgagee, provided that in the case of a default which
cannot with diligence be remedied within such period of thirty (30) days, and if
such mortgagee, within such thirty (30) day period shall have commenced curing
such default, such mortgagee shall have such additional time as may be
reasonably necessary in order to remedy such default with diligence and
continuity.
ARTICLE X
ASSIGNMENT
Section 10.1 Subject To Provisions of Agreement. Any assignment of this
Agreement shall be subject to the terms and conditions of this article and any
other applicable provisions of this Agreement.
Section 10.2 General Assiqnment Right. Developer and Department Store
shall have the right, at any time or from time to time during the Term of this
Agreement, without obtaining the consent of the other Party, to assign
this Agreement to:
(1) a corporation resulting from a merger or consolidation of either
Developer or Department Store, or
(2) a wholly owned subsidiary corporation, or
(3) a successor corporation, or
(4) other business entity, including a parent corporation, to which all
or substantially all the assets of Developer or of Department Store
located in Arkansas and Texas shall be transferred;
provided that such assignee shall execute and deliver to the other Party a
written instrument, in recordable form, in which it assumes all of the
provisions, terms and covenants of this Agreement and of the Separate Agreements
to which its assignor was a party.
Upon such assumption by such assignee, the assignor, except in the event
of an assignment permitted by subclause (2) of this Section 10.2 to a
wholly-owned subsidiary corporation, and subject to the provisions of the
respective Operating Covenants
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of Developer and the Department Store set forth herein, shall be thenceforth
released of any and all liabilities, obligations and covenants pursuant to this
Agreement (subject to all other conditions in this article).
Section 10.3 Department Store Assignment Rights. Nothing contained in this
Agreement shall in any way restrict the right of the Department Store to sell or
otherwise convey its Tract, or to assign its rights and obligations under this
Agreement and thereby relieve itself of all future liabilities thereafter
accruing pursuant to this Agreement, except that the Department Store shall in
no event be released or relieved of its obligation to operate pursuant to its
Operating Covenant as set forth herein and provided that such assignee shall
execute and deliver to Developer a written instrument, in recordable form, in
which it assumes all of the provisions, terms and covenants of this Agreement
and of the Separate Agreements.
Notwithstanding anything to the contrary contained in this Agreement, but
subject to the provisions of the "SALE AND LEASEBACK" article hereof, the
Department Store may:
(a) as part of its operation, lease portions of its Buildings or license
departments thereof or grant concessions to other parties, subject to
the provisions of the respective Operating Covenants of this Agreement;
and
(b) mortqage its Tracts and/or sell and lease back, or lease and sublease
back, its Tracts and, in connection with any such transaction, assign
its interest in this Agreement. If any such mortgage is foreclosed or a
deed is delivered in lieu of foreclosure, or if the Department Store
shall have entered into a sale and leaseback transaction or a lease and
subleaseback transaction involving either of its Tracts under which
such Department Store or any parent company who owns all the
outstanding shares of such Department Store is the lessee or sublessee
thereunder, and such lessee or sublessee shall be deprived of
possession of such Tracts by reason of its failure to comply with the
terms of such leaseback or subleaseback, anyone who has acquired or
shall thereafter acquire title to such Tracts or a leasehold estate
therein shall hold the same free of any obligation to operate a retail
department store on such Tracts as set forth in this Agreement, but
subject to all other terms, provisions, covenants, conditions, and
restrictions contained in this Agreement; provided, however such Tracts
and Buildings shall only be used thereafter for retail department store
purposes during the term of the Operating Covenant of the Department
Store. In the event a mortgagee of any Department Store Tract or the
purchaser under a sale and leaseback transaction succeeds to the
interest of such Department Store in said Tract(s), the obligations of
such Department Store shall be binding upon such successor,
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or any person claiming by, through or under successor, only
during the period that it is in possession of such Tract, but
nothing contained herein shall obligate any such successor, or
any person claiming by, through or under such successor, to
operate a Xxxxxxx department store on such Tract, provided that
such successor is not a parent, subsidiary or affiliate of, or
otherwise related to or owned or controlled by, such Department
Store, directly or indirectly.
Notwithstanding the previous portions of this clause (b), the
Department Store deprived of possession of its Tract(s) by reason
of the foreclosure of such mortgage or delivery of a deed in lieu
of foreclosure or by reason of its failure to comply with such
leaseback or subleaseback, shall remain liable for breach of its
covenants and obligations under its respective Operating Covenant
set forth in this Agreement and for the payment of any and all
charges and sums of money provided for in the Separate Agreements
involving such Department Store, in the event a transferee or
successor comes into possession.
Section 10.4 Developer Assignment Rights. Nothing contained in this
Agreement shall in any way restrict Developer's right to sell or otherwise
convey the Developer's Tract and thereby relieve itself of all future liability
accruing thereafter pursuant to this Agreement, provided that any assignee or
transferee shall provide or cause to be provided good shopping center
management or be an experienced shopping center developer and any assignee or
transferee shall execute and deliver to the other Parties a written instrument,
in recordable form, in which it assumes all the provisions, terms and covenants
of this Agreement and the Separate Agreements. The foregoing, however, is not
intended nor shall it be construed to be a requirement that the Department Store
approve nor shall the Department Store have the right of approval, of any such
assignee or transferee. It is further agreed hereby that the first mortgagee of
Developer who acquires the Developer's Tract pursuant to foreclosure or the
acceptance of a deed in lieu of foreclosure is for all purposes of this Article
X an acceptable assignee.
Anything contained in this Agreement to the contrary notwithstanding,
until the date (i) Developer has substantially completed all of its work in
accordance with Article II of this Agreement, (ii) Developer has opened the
Enclosed Mall to the public for the purposes intended herein, and (iii) sixty
percent (60%) of the Floor Area occupied by Mall Tenants is open to the public
for business, Developer shall not have the right to sell,
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assign or otherwise sell, alienate, encumber, lease or otherwise dispose of any
portion of the Developer Tract, except for any first mortgage or deed of trust
necessary to defray the costs of purchase of the Shopping Center and
construction of the aforesaid improvements (which first mortgage or deed of
trust shall be subordinate to this Agreement), and except in the manner, for the
purposes and to the extent authorized by this Agreement, including, without
limitation, leasing required in Section 3.2.
Section 10.5 General Conditions.
(a) The terms "Developer" and "Department Store" as used in this Article X
shall mean the owner or owners, from time to time, of all parts of the
Developer's Tract and all parts of the Department Store Tracts, respectively, as
the case may be. The covenants, provisions and conditions contained in this
Agreement shall be binding on the Department Store, its successors and assigns,
only during such Party's period of such ownership as defined in subparagraph (e)
hereof, except as otherwise provided.
(b) Notwithstanding anything to the contrary herein contained, neither the
holder of the beneficial interest in a first deed of trust and the note secured,
thereby (sometimes hereinafter referred to as "holder" or "beneficiary)" on the
Developer Tract who may foreclose such deed of trust or accept a deed in lieu
thereof, nor anyone who acquires said Developer Tract from said holder or
beneficiary or at a sale held in connection with such foreclosure (sometimes
hereinafter referred to as "other person") shall have any personal obligation or
personal liability for the curing of any defaults which occur before the
earliest date on which either said holder or beneficiary or other person shall
have acquired either possession of or title to Developer Tract; provided,
however, that nothing herein contained shall relieve said holder or beneficiary
or other person of any obligations which it may have under this Agreement with
respect to defaults occurring before the aforesaid date but which continue
thereafter or which occur during the period that said holder or beneficiary or
other person is in
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possession of or holds title to the Developer Tract. It is further agreed that
said holder or beneficiary or other person shall, from and after the date on
which said holder or beneficiary or other person transfers or conveys its
interest in said Developer Tract to another, be freed and relieved of all
liability as respects the performance of any covenants or obligations on the
part of the Developer to be thereafter performed; provided, however, that said
holder or beneficiary or other person shall not be relieved of any liability
arising hereunder which shall have accrued prior to such transfer or conveyance
by reason of said holder's or beneficiary's or other person's failure while it
was in possession of or held title to the Developer Tract to perform the
obligations of the Developer hereunder. Anything in this Section to the contrary
notwithstanding, it is understood and agreed that: (i) the Department Store
shall have and retain all of the rights granted to it under Section 9.2 of this
Agreement captioned "Right to Cure Default of Another Party" in the event of the
failure on the part of Developer to perform any of the terms, provisions,
covenants or conditions of this Agreement to be performed by the Developer or
to make any payment which Developer is obligated to make under the terms of this
Agreement irrespective of whether such failure shall have occurred before or
after the aforesaid date or shall have occurred before such date, but continued
thereafter; and (ii) the provisions of this Section shall not be construed to
deny the Department Store or render ineffective or limit in any way any right
which such Department Store might otherwise have under this Agreement, because
of a default on the part of the Developer.
(c) Except as otherwise provided, the grantor, or other transferor thereof
(herein called "grantor") shall thenceforth stand released and discharged of any
and all liability which would thereafter (i.e., after such sale, transfer or
conveyance) arise for the keeping, performance and observance of said covenants,
provisions and conditions applicable to such ownership interest.
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(d) Any such grantor shall give written notice to the other Party of
any such sale, transfer or conveyance promptly, but not later than thirty (30)
days after the instrument effecting the same has been duly filed for record.
(e) Furthermore, any grantor or other transferor under this article
shall remain liable for any and all events which have occurred prior to such
sale, transfer or conveyance.
(f) The term "ownership" or "ownership interest" as used in this
article, shall mean or include the tenant interest in any long-term "ground
lease" or any other similar type of lease of all or any part of a Tract.
(g) In the event that under any circumstances a Tract shall be owned by
more than one person in divided or undivided ownership interest, such persons
shall nonetheless constitute only a single Party.
(h) Of all such persons constituting only a single Party, those persons
owning at least seventy percent (70%) of the divided or undivided ownership
interest in the Tract of such Party shall:
(1) designate one of their number to act as the agent authorized to act
for, and to bind and obligate, all of such persons constituting
only a single Party as the act and obligation of such Party; and
(2) notify the other Party hereunder, in writing, of such designation
as set out in the provisions of "NOTICES".
Section 10.6 Sale and Leaseback. Notwithstanding anything to the
contrary herein contained, if any Party shall (i) convey its Tract and assign
its interest under this Agreement in connection with a sale and leaseback or
lease and subleaseback financing, and it or its parent corporation or any other
subsidiary of its parent corporation shall simultaneously become vested with a
leasehold estate or similar possessory interest in its Tract by virtue of a
lease made by the grantee, or lessee, as the case may be, or (ii) shall convey
its Tract by way of a deed of trust or mortgage and retain its possessory
interest in its Tract, then in neither of such events shall the assignee of this
subleaseback, or any subsequent owner of its Tract, or the trustee, beneficiary
or mortgage under any such deed of trust or
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mortgage, be deemed to have assumed or be bound by and of such Party's
obligations hereunder for so long as such Party or its parent corporation or
other subsidiary of its parent corporation shall retain such possessory
interest, and such obligations shall continue to remain solely those of such
Party or parent corporation or other subsidiary of its parent corporation, as
the case may be, so long as such Party or its parent corporation or other
subsidiary of its parent corporation retains such possessory interest, and
performance by such Party or its parent corporation or other subsidiary of its
parent corporation of any act required to be performed under this Agreement by
it or fulfillment of any condition of this Agreement by such Party or its parent
corporation or other subsidiary of its parent corporation shall be deemed the
performance of such act or the fulfillment of such condition by such assignee,
lessee, subsequent owner, trustee, beneficiary or mortgagee, as the case may be,
and shall be acceptable to the Parties hereto with the same force and effect as
if performed or fulfilled by such assignee, lessee, subsequent owner, trustee,
beneficiary or mortgagee.
The Parties agree that any leases entered into pursuant to this provision
shall specifically require the Parties to perform and honor their obligations
under this Agreement and that no modifications shall be made to such lease(s)
that will abrogate such obligation.
PART V
ARTICLE XI
MISCELLANEOUS
Section 11.1 Parties Not Partners. Nothing contained in this Agreement
shall be construed to make the Parties hereto partners or joint venturers or to
render either of said Parties liable for the debts or obligations of the other,
except as in this Agreement expressly provided.
Section 11.2 No Waiver. No delay or omission by either of the Parties in
exercising any right or power accruing upon any
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noncompliance or failure of performance by the other Party under the provisions
of this Agreement shall impair any such right or power or be construed to be a
waiver thereof. A waiver by any Party of any covenant, condition, provision or
performance under this Agreement shall not be construed to be a waiver of any
succeeding breach thereof or of any other covenant, condition, provision or
performance of this Agreement.
Section 11.3 Captions. The Table of Contents preceding this Agreement and
the article headings, captions and other similar designations are for
convenience and reference only and in no way either define or limit the scope
or content of this Agreement or in any way affect its provisions.
Section 11.4 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Arkansas.
Section 11.5 Severable Provisions. In the event any provision, or any
portion thereof, of this Agreement or the application thereof to any person or
circumstance shall to any extent be held to be invalid or unenforceable, the
remainder of this Agreement and all of its other provisions, and all other
persons or circumstances, shall be severed therefrom and shall not be affected
thereby, and each such provision, or portion thereof, shall be valid and
enforceable to the fullest extent permitted by law.
Section 11.6 Modification. No agreement shall be effective to add to,
change, amend, modify, waive or discharge this Agreement, in whole or in part,
unless such agreement is in writing and signed by each Party and approved by the
Developer's first mortgagee.
Section 11.7 Counterparts. This Agreement is executed in several
counterparts, each of which shall be deemed an original and all which together
shall constitute one and the same instrument.
Section 11.8 Developer's Liability. If after (a) Developer has
substantially completed all of its work in accordance with Article II of this
Agreement, (b) Developer has opened the
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Xxxxxxxx Xxxx to the public for the purposes intended herein, and (c) sixty
percent (60%) of the Floor Area of the Mall Tenants is initially open and
operating businesses with the general public, Developer shall fail to perform
any covenant or obligation on its part to be performed and as a consequence
thereof the Department Store shall recover a money judgment against Developer,
such judgment shall be satisfied only out of (i) the proceeds of sale produced
upon execution of such judgment and levy thereon against Developer's interest in
the Shopping Center Tract and Improvements thereon, (ii) the rents or other
income from such property receivable by Developer, and (iii) the consideration
received by Developer from the sale or other disposition of all or any part of
Developer's interest in the Shopping Center Tract. The provisions of this
Section 11.8 are not designed to relieve Developer from the performance of any
of its obligations hereunder, but rather to limit Developer's liability in the
case of the recovery of a judgment against it, and the remedies of the
Department Store contained in this Section 11.8 shall not be exclusive remedies,
nor shall said remedies limit the rights of the Department Store to obtain
injunctive relief or specific performance of Developer's covenants under this
Agreement or to avail itself of any other right or remedy (not involving a
personal liability of Developer) which may be accorded to the Department Store
by law or under the terms of this Agreement by reason of Developer's failure to
perform its obligations hereunder.
Section 11.9 Estoppel Certificate. Each Party hereby severally covenants
that upon written request of the other Party, it will issue to such other
Party's prospective mortgagee or to a prospective purchaser of twenty-five
percent (25%) or more interest in such other Party's Tract or twenty-five
percent (25%) or more interest in such other Party, specified by such requesting
Party, an estoppel certificate stating: (i) whether to its knowledge there is
any default, right of set-off or defense to any sum payable under the Agreement,
specifying the nature thereof; (ii) whether the Agreement has been assigned,
modified
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or amended in any way (and if it has, stating the nature thereof); and (iii)
that the Agreement as of that date is in full force and effect. The issuance of
such certificate shall not subject the Party furnishing it to any liability,
notwithstanding the negligent or otherwise inadvertent failure of such Party to
disclose correct and/or relevant information. However, the Party furnishing the
certificate shall not be permitted to assert or enforce any claim against the
person to whom it is delivered (or against such person's property) which is
inconsistent with the statements contained in the certificate, except to the
extent that the person against whom the claim would otherwise be asserted or
enforced has actual knowledge of facts to the contrary. Any Party who is
requested to give an estoppel under this Section 11.9 may require, as a
condition of its obligation to give the estoppel, that the Party on whose behalf
the original request was made give a similar estoppel to the Party who was
originally requested to give an estoppel.
Section 11.10 No Public Dedication. No provision contained in this
Agreement shall be construed to grant any gift, dedication or any irrevocable
rights to the general public or to any public purpose whatsoever of, in, or to
any portion of the Shopping Center Tract or any Improvements thereon, it being
the intention of the Parties hereto that this Agreement shall be strictly
limited to or for the purposes herein expressed.
Section 11.11 No Third Party Beneficiary. Except as herein specifically
provided, no rights, privileges or immunities of any Party hereto shall inure to
the benefit of any tenant, customer, employee, or invitee of the Shopping Center
or any other third party, nor shall any tenant, customer, employee or invitee of
the Shopping Center or any other third party be deemed to be a third party
beneficiary of any of the provisions contained herein.
Section 11.12 Land Covenants. Except as otherwise expressly provided, all
covenants, conditions and agreements contained in this Agreement shall be deemed
independent real covenants (and not conditions) running with and binding the
land, and shall bind and inure to the benefit of each Party, its successors and/
or assigns.
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Section 11.13 Force Majeure. The time within which any Party hereto shall
be required to perform any act under this Agreement (except the obligation to
pay any sum of money) shall be extended by a period of time equal to the number
of days during which performance of such act is prevented, delayed, retarded or
hindered by acts of God; fire; earthquake; floods; explosion; actions of the
elements; war, declared or undeclared (including "police action"); invasion,
insurrection; riot; mob violence; sabotage; inability to procure labor,
equipment facilities, materials or supplies in the open market; failure of
transportation; strikes; laws; orders of government or civil or military
authorities; or any other cause, whether similar or dissimilar to the
foregoing, not within the reasonable control of such Party (excluding a Party's
inability to obtain required financing). Notwithstanding the foregoing, unless
the Party entitled to such extension shall give notice to the other Party of its
claim to such extension within fifteen (15) days after the event giving rise to
such claim shall have occurred, there shall be excluded in computing the number
of days by which the time for performance of the act in question shall be
extended, the number of days which shall have elapsed between the occurrence of
such event and the actual giving of such notice.
Section 11.14 Term. This Agreement (unless sooner terminated under
conditions contained in this Agreement) shall continue and the obligations
hereunder shall remain binding from the Date of this Agreement until December
31, 2031, upon which date this Agreement shall terminate; provided, however,
that the easements created pursuant to Article VI shall survive as provided in
that Article.
Section 11.15 Termination Rights. Upon termination of this Agreement in
accordance with its provisions and conditions, all rights and privileges derived
from, and all duties and obligations created and imposed by all provisions of
this Agreement shall terminate and thereafter cease to exist; except that the
rights conferred and granted by the "GRANT OF EASEMENTS" article hereof shall
not terminate except as therein provided, it
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being understood that certain easements granted in "GRANT OF EASEMENTS" are
perpetual and do not terminate upon the expiration or termination of this
Agreement.
Such termination of this Agreement shall not limit or affect any remedy at
law or in equity of any Party against any other Party with respect to any
liability or obligation arising or to be performed under this Agreement prior to
the date of such termination.
Section 11.16 Recording. The Parties hereby agree that upon execution of
this Agreement, the same shall be recorded of public record and the cost of
recording shared equally between Developer and Dillard.
Section 11.17 Notices. Any notice, demand, request, consent, approval or
other communication which any Party hereto is required or desires to give or
make or communicate to the other shall be in writing and shall be given or made
or communicated by prepaid United States Registered or Certified Mail, return
receipt requested (unless otherwise acknowledged in writing by the addressee):
and addressed, in the case of Dillard Store, to:
XXXXXXX DEPARTMENT STORES, INC.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
and addressed, in the case of Condev, to:
CONSTRUCTION DEVELOPERS, INCORPORATED
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
and addressed, in the case of Developer, to:
XXXXXXX-MARATHON MASTER PARTNERSHIP B
One Galleria Tower (Suite 1200)
00000 Xxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
Attention of Xx. X. X. Xxxxxxx, Xx.
subject to the right of any Party to designate a different address by notice
similarly given.
Any such notice, demand, request, consent, approval or other communication
so made shall be deemed to have been given, made or communicated receipt thereof
by the Party to whom addressed.
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Section 11.18 Successors. Except as herein otherwise expressly provided,
the covenants, conditions and agreements contained in this Agreement shall bind
and inure to the benefit of Developer, Department Store and their respective
devisees, heirs, successors, administrators and assigns.
Without limiting the exception stated in the preceding sentence hereof,
each transfer (i) of all or any portion of the Developer's Tract or of either
the Dillard Tract or Condev Tract, and (ii) of all or any portion of the rights,
benefits, obligations or duties of Developer or the Department Store,
respectively, under this Agreement shall expressly be made subject to the terms
and provisions of this Agreement, as supplemented by each Separate Agreement,
and in each case the transferee shall expressly assume all obligations of the
transferor, and will assume the same relationships with the other Parties hereto
as such transferor had, under this Agreement, as supplemented by the applicable
Separate Agreement(s).
Section 11.19 Mortgagee's Right to Cure Defaults. Each Party serving a
notice of default under this Agreement shall send by registered or certified
United States mail, postage prepaid, a copy of such notice to any lender of the
Party so served, provided such lender shall have sent the Party serving the
notice of default a notice informing it of the existence of such mortgage or
deed of trust and the address to which copies of such notices of default are to
be sent, and such Party and its lender shall be permitted to cure any such
default not later than thirty (30) days after a copy of the notice of default
shall have been sent to such Party and its lender, provided that in the case of
a default which cannot with diligence be remedied within such period of thirty
(30) days, such Party and/or its lender shall within such thirty (30) day period
commence curing default and thereafter proceed to remedy such default with
diligence and continuity upon the expiration of such time periods.
Section 11.20 Limitation of Mortgagee's Liability. Anything in this
Agreement to the contrary notwithstanding, if a mortgage or deed of trust on a
Tract is foreclosed or a deed delivered in
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lieu of foreclosure, any first mortgagee or beneficiary under a first deed of
trust of the said Tract acquiring title as a result thereof shall neither be
obligated to pay any money damages for defaults occurring prior to the date such
mortgagee or beneficiary acquired title nor to undertake or perform the
Developers' obligations pursuant to Articles I and II; provided, however, the
first mortgagee or beneficiary shall not be released from the obligation to
maintain its Tract and Building after completion as provided for in this
Agreement, it being understood that the first mortgagee's liability is limited
to its interest in the Developer Tract and the Improvements thereon.
-64-
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
signed by their respective duly authorized officers and/or partners on the date
first above written and to be effective as of December 31, 1986.
WITNESSES: DEVELOPER
XXXXXXX-MARATHON MASTER PARTNERSHIP B,
a Texas general partnership,
By: XXXXXXX MARATHON GROUP INC.,
a Delaware corporation,
/s/ [ILLEGIBLE]
---------------
/s/ [ILLEGIBLE] By: /s/ X. X. Xxxxxxx, Xx.,
--------------- --------------------------------
X. X. Xxxxxxx, Xx.,
President
WITNESSES: CONDEV:
CONSTRUCTION DEVELOPERS, INCORPORATED,
an Arkansas corporation,
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------- -------------------------------------
Xxxxxxx Xxxxxxx Its: Vice President
--------------- ----------------------------------
ATTEST:
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------- -------------------------------------
Xxxxxxx Xxxxxxx Its: [ILLEGIBLE]
--------------- --------------------------------
WITNESSES: DILLARD STORE
XXXXXXX DEPARTMENT STORES, INC.,
a Delaware corporation,
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------- -------------------------------------
Xxxxxxx Xxxxxxx Its: [ILLEGIBLE]
--------------- --------------------------------
ATTEST:
/s/ [ILLEGIBLE]
--------------- By: /s/ [ILLEGIBLE]
Xxxxxxx Xxxxxxx -------------------------------------
--------------- Its: /s/ [ILLEGIBLE]
--------------------------------
-00-
XXX XXXXX XX XXXXX (S)
(S)
COUNTY OF DALLAS (S)
BE IT KNOWN THAT on this date, before me, the undersigned authority,
personally came and appeared X. X. XXXXXXX, XX., President of Xxxxxxx Marathon
Group Inc., Managing Partner of Xxxxxxx-Marathon Master Partnership B, to me
personally known and known to me to be the person whose genuine signature is
affixed to the foregoing document, who signed said document before me and in the
presence of the two witnesses whose names are thereto subscribed as such, being
competent witnesses, and who acknowledged, in my presence and in the presence of
said witnesses, that he signed the above and foregoing document as his own free
act and deed and for the uses and purposes and in the capacity therein set forth
and apparent.
GIVEN UNDER MY AND SEAL OF OFFICE this 15/th/ day of December, 1986.
[S E A L] /s/ [ILLEGIBLE]
--------------------------------------
Notary Public in and for
The State of Texas
My commission expires:
_______________________ [STAMP]
THE STATE OF ARKANSAS (S)
(S)
COUNTY OF PULASKI (S)
BE IT KNOWN THAT on this date, before me, the undersigned authority,
personally came and appeared [ILLEGIBLE], the Vice President of CONSTRUCTION
DEVELOPERS, INCORPORATED, an Arkansas corporation, to me personally known and
known to me to be the person whose genuine signature is affixed to the foregoing
document, who signed said document before me and in the presence of the two
witnesses whose names are thereto subscribed as such, being competent witnesses,
and who acknowledged, in my presence and in the presence of said witnesses, that
he signed the above and foregoing document as his own free act and deed and for
the uses and purposes and in the capacity therein set forth and apparent.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 12/th/ day of December, 1986.
[S E A L] /s/ [ILLEGIBLE]
--------------------------------------
Notary Public in and for
Pulaski County, Ark
My commission expires:
00-0-00
-------
-00-
XXX XXXXX XX XXXXXXXX (S)
(S)
COUNTY OF PULASKI (S)
BE IT KNOWN THAT on this date, before me, the undersigned authority,
personally came and appeared, the [ILLEGIBLE] Vice Chairman of XXXXXXX
DEPARTMENT STORES, INC., a Delaware corporation, to me personally known and
known to me to be the person whose genuine signature is affixed to the foregoing
document, who signed said document before me and in the presence of the two
witnesses whose names are thereto subscribed as such, being competent witnesses,
and who acknowledged, in my presence and in the presence of said witnesses, that
he signed the above and foregoing document as his own free act and deed and for
the uses and purposes and in the capacity therein set forth and apparent.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 12/th/ day of December, 1986.
[S E A L]
/s/ [ILLEGIBLE]
-----------------------------
Notary Public in and for
Pulaski County, Arkansas
My commission expires:
10.4.91
-------------------
-67-
Exhibit A
PART I
Shopping Center Tract
ALL OF THE FOLLOWING:
XXXX 0, 0, 0, 00, 00, 00 and 13 OF XXXXX XXXXXXX ADDITION, LITTLE ROCK, PULASKI
COUNTY, ARKANSAS OF TRACT NO. 1.
[COPY ILLEGIBLE]
WAY LINE OF UNIVERSITY AVENUE [ILLEGIBLE] FEET; THENCE NORTH 89 DEGREES 47
MINUTES WEST FOR 227.46 FEET; THENCE SOUTH 00 DEGREES 54 MINUTES 35 SECONDS WEST
FOR 50.26 FEET; THENCE SOUTH 18 DEGREES 36 MINUTES 37 SECONDS EAST FOR 40.25
FEET; THENCE SOUTH 42 DEGREES 43 MINUTES [ILLEGIBLE] SECONDS EAST FOR 31.80
FEET; THENCE SOUTH 64 DEGREES 38 MINUTES 40 SECONDS EAST FOR 74.93 FEET; THENCE
SOUTH 75 DEGREES 46 MINUTES 10 SECONDS EAST FOR [ILLEGIBLE] FEET TO THE POINT OF
BEGINNING, CONTAINING ACREAGE AND LOTS 14 THRU 26, INCLUSIVE, XXXXX XXXXXXX
ADDITION AND PARTS OF [ILLEGIBLE] STREET AND XXXXXX STREET CLOSED BY CITY
ORDINANCE.
SAVE AND ACCEPT THE FOLLOWING:
A TRACT OF LAND
CONTAINING 0.2413 ACRES, MORE OR LESS
IN THE NE 1/4 NE 1/4, SECTION 1 T-1-
N, R-13-W, PULASKI COUNTY, ARKANSAS,
BEING MORE PARTICULALRLY DESCRIBED BY
METES AND BOUNDS AS FOLLOWS:
BEGINNING FOR REFERENCE at the Southeast corner of the NE 1/4 NE 1/4, Section 1,
T-1-W, E-13-N, Pulaski County, Arkansas,
THENCE, N 88 (degrees) - 46' W, 657.16 feet along the South Line of [ILLEGIBLE]
NE 1/4 NE 1/4 section of land, same line being the centerline of West Markham
Street, to a point,
THENCE N 01 (degrees)-22'-27" E, 30.00 feet to a point in the north right-of-way
line of West Xxxxxxx Xxxxxx (xx 00 foot width),
THENCE N 88 (degrees)-46'-00" W, 257.38 feet along the north right-of-way line
of Xxxx Xxxxxxx Xxxxxx to a point, and the POINT OF BEGINNING for this parcel of
land,
THENCE N 88 (degrees)-46'-00" W 250.00 feet along the north right-of-way line
of Xxxx Xxxxxxx Xxxxxx to a point;
THENCE N 00 (degrees)-29'-00" E, 42.00 feet to a point;
THENCE S 88 (degrees)-46-00" E, 250.55 feet to a point;
THENCE S 01 (degrees)-14'-00" W, 42.00 feet to a POINT OF BEGINNING and
containing 0.2413 acres of land, more or less.
Exhibit A
PART II
Dillard Tract
A TRACT OF LAND
CONTAINING 9.9620 ACRES, MORE OR LESS
IN THE NE 1/4 NE 1/4, SECTION 1, T-1-
N, R-13-W, PULASKI COUNTY, ARKANSAS,
BEING MORE PARTICULARLY DESCRIBED BY
METES AND BOUNDS AS FOLLOWS:
BEGINNING FOR REFERENCE at the Southeast corner of the NE 1/4 NE 1/4, Section 0,
X-0-X, X-00-X, Xxxxxxx Xxxxxx, Xxxxxxxx,
THENCE, N 88 (degrees)-46' W, 657.16 feet along the South Line of said NE 1/4 NE
1/4 section of land, same line being the centerline of West Markham Street, to a
point:
THENCE N 01 (degrees)-14' E, 30.00 feet to a point in the north right-of-way
line of West Xxxxxxx Xxxxxx (xx 00 foot width) and the POINT OF BEGINNING for
this parcel of land;
THENCE N 88 (degrees)-46'-00" W, 257.38 feet along the north right-of-way line
of Xxxx Xxxxxxx Xxxxxx to a point;
THENCE N 01 (degrees)-14'-00" E, 42.00 feet to a point;
THENCE N 88 (degrees)-46'-00" W, 250.55 feet to point;
THENCE N 00 (degrees)-29'-00" E, 168.03 feet to a point;
THENCE N 88 (degrees)-37'-00" W, 150.00 feet to a point in the east right-of-way
line of XxXxxxxx Street (of 60 foot width);
THENCE N 00 (degrees)-29'-00" E, 576.55 feet along the east right-of-way line of
XxXxxxxx Street to a point;
THENCE S 88 (degrees)-58'-00 E, 294.00 feet to a point;
THENCE N 00 (degrees)-29'-00" E, 140.00 feet to a point;
THENCE S 88 (degrees)-58'-00" E, 336.50 feet to a point;
THENCE S 00 (degrees)-29'-00" W, 141.96 feet to a point;
THENCE N 89 (degrees)-12'-00" W, 120.92 feet to a point;
THENCE S 01 (degrees)-22'-27" W, 586.31 feet to a point;
THENCE S 88 (degrees)-37'-33" E, 160.00 feet to a point;
THENCE S 01 (degrees)-22'-27" W, 199.53 feet to the POINT OF BEGINNING and
containing 9.9620 acres of land, more or less.
Exhibit A
Part III
Condev Tract
A TRACT OF LAND CONTAINING
3.7879 ACRES, MORE OR LESS, IN THE NE 1/4
NE 1/4, SECTION 1, T-1-N, R-13-W, PULASKI
COUNTY, ARKANSAS, BEING MORE PARTICULARLY
DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING FOR REFERENCE at the Southeast corner of the NE 1/4 NE 1/4, Section 0,
X-0-X, X-00-X, Xxxxxxx Xxxxxx, Xxxxxxxx;
THENCE N 00(degrees)-00'-00" W, 204.91 feet along the East line of said NE 1/4
NE 1/4 section of land, same line being the centerline of University Avenue to a
point;
THENCE N 90(degrees)-00'-00" W, 40.00 feet to a point on the west right-of-way
line of University Avenue (of 80 foot width), and the POINT OF BEGINNING for
this tract of land;
THENCE N 88(degrees)-37'-33" W, 200.00 feet to a point;
THENCE S 01(degrees)-22'-27" W, 125.97 feet to a point;
THENCE N 88(degrees)-37'-33" W, 143.49 feet to a point;
THENCE N 01(degrees)-22'-27" E, 150.00 feet to a point;
THENCE S 88(degrees)-37'-33" E, 70.00 feet to a point;
THENCE N 01(degrees)-22'-27" E, 364.90 feet to a point;
THENCE S 88(degrees)-37'-33" E, 59.33 feet to a point;
THENCE N 01(degrees)-22'-27" E, 200.00 feet to a point;
THENCE S 89(degrees)-12'-00" E, 200.00 to a point in the west
right-of-way line of University Avenue;
THENCE S 00(degrees)-00'-00" E, 591.11 feet along the west right-of-way line of
University Avenue to the POINT OF BEGINNING, and containing 3.7879 acres of
land, more or less.
Exhibit A
PART IV
DEVELOPER TRACT
All OF THE FOLLOWING:
XXXX 0, 0, 0, 00, 00, 00 and 13 OF XXXXX XXXXXXX ADDITION, LITTLE ROCK, PULASKI
COUNTY, ARKANSAS OF TRACT NO. 1.
[COPY ILLEGIBLE]
WAY LINE OF UNIVERSITY AVENUE [ILLEGIBLE] FEET; THENCE NORTH 89 DEGREES
[ILLEGIBLE] MINUTES WEST FOR 227.46 FEET; THENCE SOUTH 00 DEGREES 54 MINUTES 35
SECONDS WEST FOR 50.26 FEET; THENCE SOUTH 18 DEGREES 36 MINUTES 37 SECONDS EAST
FOR 40.25 FEET; THENCE SOUTH 42 DEGREES 43 MINUTES 49 SECONDS EAST FOR 31.80
FEET; THENCE SOUTH 46 MINUTES 10 SECONDS EAST FOR 18.28 FEET TO THE POINT OF
BEGINNING, CONTAINING ACREAGE AND LOTS 14 THRU 26, INCLUSIVE, XXXXX MEILROSE
ADDITION AND PARTS OF "3" FEET AND XXXXXX STREET CLOSED BY CITY ORDINANCE.
SAVE AND ACCEPT THE FOLLOWING TRACTS B, C, AND D
TRACT B:
A TRACT OF LAND
CONTAINING 0.2413 ACRES, MORE OR LESS
IN THE NE 1/4 NE 1/4, SECTION 1 T-1-
N, R-13-W, PULASKI COUNTY, ARKANSAS,
BEING MORE PARTICULALRLY DESCRIBED BY
METES AND BOUNDS AS FOLLOWS:
BEGINNING FOR REFERENCE at the Southeast corner of the NE 1/4 NE 1/4, Section 1,
T-1-W, E-13-N, Pulaski County, Arkansas,
THENCE, N 88 (degrees) - 46' W, 657.16 feet along the South Line of said NE 1/4
NE 1/4 section of land, same line being the centerline of West Markham Street,
to a point,
THENCE N 01 (degrees)-22'-27" E, 30.00 feet to a point in the north right-of-way
line of West Xxxxxxx Xxxxxx (xx 00 foot width),
THENCE N 88 (degrees)-46'-00" W, 257.38 feet along the north right-of-way line
of Xxxx Xxxxxxx Xxxxxx to a point, and the POINT OF BEGINNING for this parcel of
land,
THENCE N 88 (degrees)-46'-00" W 250.00 feet along the north right-of-way line
of Xxxx Xxxxxxx Xxxxxx to a point;
THENCE N 00 (degrees)-29'-00" E, 42.00 feet to a point;
THENCE S 88 (degrees)-46-00" E, 250.55 feet to a point;
THENCE S 01 (degrees)-14'-00" W, 42.00 feet to a POINT OF BEGINNING and
containing 0.2413 acres of land, more or less.
TRACT C:
A TRACT OF LAND CONTAINING 3.7879 ACRES,
MORE OR LESS, IN THE NE 1/4 NE 1/4, SECTION 1, T-1-N,
R-13-W, PULASKI COUNTY, ARKANSAS, BEING MORE PARTICULARLY
DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING FOR REFERENCE at the Southeast corner of the NE 1/4 NE 1/4, Section 0,
X-0-X, X-00-X, Xxxxxxx Xxxxxx, Xxxxxxxx;
THENCE N 00(degrees)-00(feet)-00(inches) W, 204.91 feet along the East line of
said NE 1/4 NE 1/4 section of land, same line being the centerline of University
Avenue to a point;
THENCE N 90(degrees)-00(feet)-00(inches) W, 40.00 feet to a point on the west
right-of-way line of University Avenue (of 80 foot width), and the POINT OF
BEGINNING for this tract of land;
THENCE N 88(degrees)-37(feet)-33(inches) W, 200.00 feet to a point;
THENCE S 01(degrees)-22(feet)-27(inches) W, 125.97 feet to a point;
THENCE N 88(degrees)-37(feet)-33(inches) W, 143.49 feet to a point;
THENCE N 01(degrees)-22(feet)-27(inches) E, 150.00 feet to a point;
THENCE S 88(degrees)-37(feet)-33(inches) E, 70.00 feet to a point;
THENCE N 01(degrees)-22(feet)-27(inches) E, 364.90 feet to a point;
THENCE S 88(degrees)-37(feet)-33(inches) E, 59.33 feet to a point;
THENCE N 01(degrees)-22(feet)-27(inches) E, 200.00 feet to a point;
THENCE S 89(degrees)-12(feet)-00(inches) E, 200.00 to a point in the west
right-of-way line of University Avenue;
THENCE S 00(degrees)-00(feet)-00(inches) E, 591.11 feet along the west
right-of-way line of University Avenue to the POINT OF BEGINNING, and containing
3.7879 acres of land, more or less.
TRACT D:
A TRACT OF LAND CONTAINING
9.9620 ACRES, MORE OR LESS IN THE NE 1/4
NE 1/4, SECTION 1, T-1-N, R-13-W, PULASKI
COUNTY, ARKANSAS, BEING MORE PARTICULARLY
DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING FOR REFERENCE at the Southeast corner of the NE 1/4 NE 1/4, Section 0,
X-0-X, X-00-X, Xxxxxxx Xxxxxx, Xxxxxxxx;
THENCE, N 88(degrees)-46' W, 657.16 feet along the South Line of said NE 1/4 NE
1/4 section of land, same line being the centerline of West Markham Street, to a
point;
THENCE N 01(degrees)-14' E, 30.00 feet to a point in the north right-of-way line
of West Xxxxxxx Xxxxxx (xx 00 foot width) and the POINT OF BEGINNING for this
parcel of land;
THENCE N 88(degrees)-46'-00" W, 257.38 feet along the north right-of-way line of
Xxxx Xxxxxxx Xxxxxx to a point;
THENCE N 01(degrees)-14'-00" E, 42.00 feet to a point;
THENCE N 88(degrees)-46'-00" W, 250.55 feet to a point;
THENCE N 00(degrees)-29'-00" E, 168.03 feet to a point;
THENCE N 88(degrees)-37'-00" W, 150.00 feet to a point in the east right-of-way
line of XxXxxxxx Street (of 60 foot width);
THENCE N 00(degrees)-29'-00" E, 576.55 feet along the east right-of-way line of
XxXxxxxx Street to a point;
THENCE S 88(degrees)-58'-00" E, 294.00 feet to a point;
THENCE N 00(degrees)-29'-00" E, 140.00 feet to a point;
THENCE S 88(degrees)-58'-00" E, 336.50 feet to a point;
THENCE S 00(degrees)-29'-00" W, 141.96 feet to a point;
THENCE N 89(degrees)-12'-00" W, 120.92 feet to a point;
THENCE S 01(degrees)-22'-27" W, 586.31 feet to a point;
THENCE S 88(degrees)-37'-33" E, 160.00 feet to a point;
THENCE S 01(degrees)-22'-27" W, 199.53 feet to the POINT OF BEGINNING and
containing 9.9620 acres of land, more or less.
