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13637 1 RESOLUTION NO. 13,637 2 3 A RESOLUTION TO AUTHORIZE THE MAYOR AND CITY CLERK TO 4 EXECUTE A LEASE AND CONCESSION AGREEEMENT BETWEEN 5 THE CITY, THE ADVERTISING & PROMOTION COMMISSION, AND 6 FWH II LITTLE ROCK, LLC, FOR THE LEASE OF THE PROPERTY 7 COMMONLY REFERRED TO AS THE PEABODY HOTEL; TO 8 AUTHORIZE THE MAYOR AND THE CITY CLERK TO EXECUTE 9 AND ESTOPPEL CERTIFICATE AND TERMINATION OF LEASE 10 BETWEEN THE CITY, THE ADVERTISING & PROMOTION 11 COMMISSION, FWH II LITTLE ROCK, LLC, AND BG EXCELSIOR 12 LIMITED PARTNERSHIP, TO TERMINATE THE CURRENT LEASE 13 FOR THE PROPERTY COMMONLY REFERRED TO AS THE 14 PEABODY HOTEL; AND FOR OTHER PURPOSES. 15 16 WHEREAS,the City authorized the entry into a lease agreement between the City,the Advertising 17 &Promotion Commission("the Commission")and BG Excelsior Limited Partnership, on September 18, 18 2000, for the lease of the property generally referred to as the Peabody Hotel, and more completely 19 described in the lease,and authorized entry into an amendment to this lease on October 1,2002; and, 20 WHEREAS, these agreements also authorized certain control, operation and maintenance of the 21 property commonly referred to as the Statehouse Convention Center; and, 22 WHEREAS, pursuant to Little Rock, Ark., Resolution No. 13,621 (December 19, 2012), the City 23 authorized a letter of intent to be sent to FWH II Little Rock, LLC ("FWH"), as to terms and conditions 24 for a lease agreement between that entity, the City, and the Commission, for the lease of the property; 25 and, 26 WHEREAS, after negotiations between the City, the Commission, and FWH an agreement has been 27 reached as to the various terms and conditions; 28 NOW, THEREFORE,BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY 29 OF LITTLE ROCK,ARKANSAS: 30 Section 1. The Mayor and City Clerk are authorized to execute a Lease and Concession Agreement 31 between the City, the Commission, and FWH, in a form acceptable to the City Attorney, and in 32 substantially the same form as that attached as Exhibit A to this resolution, which will set forth the terms [Page 1 of 2] I and conditions for the use of Demised Premises and Excepted Premises at the area commonly referred to 2 as the Peabody Hotel and the Statehouse Convention Center. 3 Section 2. The Mayor and City Clerk are authorized to execute an Estoppel Certificate and 4 Termination of Lease document between the City, the Commission, FWH, and BG Excelsior Limited 5 Partnership, in relation to the same properties, as attached as Exhibit B to this resolution. 6 Section 3. The Mayor and the City Clerk are also authorized and directed to do any and all things 7 necessary to effect the preparation, execution and delivery of the Lease and Concession Agreement 8 referred to in Section 1, and the performance of all obligations of the City thereunder including, but not 9 limited to, the execution, and delivery of all papers, documents, certificates and other instruments that 10 may be required for the carrying out of such authority or to evidence the exercise thereof. 11 Section 4. Severability. In the event any title, section, paragraph, item, sentence, clause, phrase, or 12 word of this resolution is declared or adjudged to be invalid or unconstitutional, such declaration or 13 adjudication shall not affect the remaining portions of the resolution which shall remain in full force and 14 effect as if the portion so declared or adjudged invalid or unconstitutional were not originally a part of the 15 resolution. 16 Section 5. Repealer. All laws, ordinances, resolutions, or parts of the same, that are inconsistent 17 with the provisions of this resolution, are hereby repealed to the extent of such inconsistency. 18 ADOPTED: January 22,2013 19 ATTES • APPROVED: 20 1/121 L: /, 22 +u an :ngle City Clerk Mark Stodola, ayor 23 AP 'O ED AS TO LEGAL FORM: 24 /// 25 ` 7 v(/J 26 Thomas M. Carpenter,Cityorney 27 // �/ 28 // 29 // 30 // 31 // 32 // 33 // 34 // 35 // [Page 2 of 21 EXHIBIT A LEASE AND CONCESSION AGREEMENT KNOW ALL MEN BY THESE PRESENTS: This Lease and Concession Agreement (the "Lease Agreement") made and entered into at Little Rock, Arkansas, on the 28th day of February, 2013 (the "Effective Date"), by and between the City of Little Rock, Arkansas (the "City"), a municipal corporation organized under and existing by virtue of the laws of the State of Arkansas, acting by duly adopted resolution; and the City Advertising and Promotion Commission of Little Rock, Arkansas (the "Commission"), as agent of and for the City of Little Rock, acting by duly adopted resolution, (the City and the Commission being hereinafter referred to collectively as the "Lessor"), and FWH II Little Rock, LLC ("FWH"), a Delaware limited liability company, acting by and through Fairwood Hospitality Investors II, L.L.C. (the "Member"), a Delaware limited liability company, acting by and through Fairwood Investors II, LLC (the "Manager"), (FWH, acting through its Member and Manager, being hereinafter referred to as the "Lessee"). WITNESSETH: WHEREAS, Lessor and Lessee hereby acknowledge that pursuant to that certain Amended, Restated and Substituted Lease and Concession Agreement (the "Former Lease Agreement") made and entered into at Little Rock, Arkansas, on the 18th day of September, 2000, by and between Lessor, and BG Excelsior Limited Partnership (the "Limited Partnership"), an Arkansas limited partnership, acting by and through, BEX, Inc. (the "General Partner"), an Arkansas corporation, its duly authorized and empowered general partner, both the Limited Partnership and the General Partner thereof being authorized to do business in Arkansas, (the Limited Partnership and the General Partner being hereinafter referred to collectively as the "Former Lessee"), Lessor has heretofore leased to Former Lessee, and Former Lessee has heretofore leased from Lessor, the Demised Premises as described in the Former Lease Agreement; and WHEREAS, Lessee is acquiring certain assets from the Former Lessee, including without limitation, all of the Former Lessee's interest in the Demised Premises and other assets related to the hotel operations heretofore conducted by the Former Lessee on the Demised Premises; and WHEREAS, the City and the Commission consent to and approve all such transfers from the Former Lessee to Lessee; and WHEREAS, Lessee accepts the Demised Premises "as is", subject to the terms of this Lease Agreement; and 1 1160171-v1 WHEREAS, effective simultaneously with the Effective Date of this Lease Agreement, the Former Lease Agreement has been mutually terminated by Lessor and Former Lessee; and WHEREAS, the City is a duly organized municipality, existing as a City of the first class under and by virtue of the laws of the State of Arkansas with full and lawful power and authority to enter into this Agreement, acting by and through its Board of Directors, in the public interest and for public purpose, in securing Lessee's branding as a franchised Full Service Marriot Hotel, provided, however, Lessee shall have the option to elect to continue to operate as The Peabody Hotel for all of any portion of the initial six (6) months of the Term of this Lease Agreement, of the 418 key hotel property currently known as The Peabody Hotel located at Three Statehouse Plaza, Little Rock, Arkansas 72201 and Lessee's conformity with the Marriott Property Improvement Plan, such Hotel adding to the welfare of the City and its inhabitants, all pursuant to the laws and enactments of the State of Arkansas; and WHEREAS, the Commission has been duly authorized by the City to operate the Statehouse Convention Center adjacent to the Hotel, and the successful operation of the Statehouse Convention Center and the Hotel are inter-dependent through the Statehouse Convention Center and the Hotel, drawing patrons and providing service to patrons and guests at a substantially enhanced level in conformity with the Marriott brand or any other Approved Hotel; and WHEREAS, Lessee has agreed to use commercially reasonable efforts to undertake branding of the Hotel initially as a franchised Full Service Marriot Hotel utilizing the words "Little Rock" in the Hotel name, provided, however, Lessee shall have the option to elect to continue to operate as The Peabody Hotel for all or any portion of the initial six (6) months of the Term of this Lease Agreement, final approval of the Hotel name being subject to approval of the franchisor, and to undertake Lessee's conformity with the Marriott Property Improvement Plan, as set forth more fully herein, it being understood and agreed that the Lease shall not be contingent upon Lessee's obtaining a franchise from Marriott; and WHEREAS, Lessee shall have the right to manage the Hotel, or to engage separate professional management for the day to day operations of the Hotel, all in accordance with sound business practices and the requirements of the Approved Hotel franchise; and WHEREAS, the parties have agreed that the provisions of this Lease Agreement, including the branding of the Hotel as a franchised Full Service Marriot Hotel and Lessee's conformity with the Marriott Property Improvement Plan, all provide benefit to the City, the Commission, Lessee, and the general public. 2 1160171-�1 NOW, THEREFORE, For and in consideration of the mutual premises and promises herein contained, the Lessor and the Lessee covenant and agree as hereinafter stated, to-wit: ARTICLE I DEFINITIONS SECTION 1.1: SINGULAR, PLURAL AND GENDER. The Lessor and Lessee agree that any word contained in the text of this Lease Agreement shall be read as the singular or the plural and as the masculine, feminine or neuter gender as may be applicable in the particular context. More specifically, however, for the purposes of this Lease Agreement the Lessor and Lessee agree that the following words shall have the meanings attributed to them in this Section: (a) "Adjacent Property" means that real property which is adjacent to the Demised Premises. (b) "Annual Rent" and "Annual Rent Amount" means the amount of rental stated in Section 5.1. (c) "Approved Hotel" or "Approved Hotels" includes any Full Service hotel affiliated with Marriott, Hilton, Hyatt, or Starwood (but specifically excluding its Four Points brand) and their successors if of similar quality. The list of Approved Hotels may, upon the written request of Lessor or Lessee, be reviewed by Lessor and Lessee not more frequently than every five (5) years, subject to the then current expiration date of any then existing Approved Hotel franchise. (d) "Commission" means the City Advertising and Promotion Commission of Little Rock, Arkansas, or its successor. (e) "Concession Fee" means the fee payable by the Lessee to the Lessor as prescribed by Section 17.4. (f) "Conference Center" means that portion of the Demised Premises consisting of the property, real, personal and mixed as described on Exhibit "A" attached hereto, which comprises all of the property in the Survey designated as "Conference Center", as such Exhibit "A" may be amended and replaced by subsequent sheets, drawings, or surveys. (g) "Consumer Price Index" means the monthly indices for the applicable month published by the Bureau of Labor Statistics of the United States Department of Labor as "The Consumer Price Index for Urban Wage Earners and Clerical Workers-U.S. All Items, U.S. City Average (Base Period: 1967 = 100)." 3 1160171-v1 (h) "Control" (including correlated meanings such as the terms "controlling", "controlled by" and "under common control with"), as used with respect to any entity, means the possession of the power to direct or cause the direction of management decisions and policies of that entity. (i) "Demised Premises" means the property, real, personal and mixed, more particularly described on Exhibit "B" attached hereto and by this reference fully incorporated herein and made a part hereof as if set forth herein word for word and includes specifically the CONFERENCE CENTER. the HOTEL BUILDING and the IMPROVEMENTS, together with a license granted to Lessee during the Term of this Lease Agreement for the joint use with Lessor of any related furniture, fixtures, equipment, machinery, improvements, building systems, stairways, elevators, escalators, corridors, skywalks, shafts, plumbing, HVAC systems and controls, sprinkler systems and controls, alarm systems and controls, electrical systems, ducts, plenums, structural support, utility lines, pipes, all related software and computers, and similar infrastructure providing access to or serving the Demised Premises. (j) "Disposition" (including the correlated meaning "disposed") means any sale, assignment, transfer, distribution or conveyance by Lessee of the Hotel or the sale, assignment, transfer, distribution or conveyance by the Member of its Control of Lessee. Provided, however, the term Disposition as used herein does not mean a cash or property distribution to shareholders, partners (whether general or limited), venturers (whether joint or not), members or member-managers or other beneficial owners of the Lessee. Provided, further, the term "Disposition" as used herein does not mean any Permitted Mortgage or a foreclosure, deed in lieu of foreclosure, or other transfer to the holder of the Permitted Mortgage or to any acquirer of the holder's rights in or pursuant to the Permitted Mortgage. (k) "Effective Date" means the later of the date on which this Agreement is finally executed by Lessor and Lessee, or the date on which Lessee acquires from the Former Lessee all of its interest in any assets owned or used in the operation of the Hotel pursuant to that certain Purchase and Sale Agreement between the Former Lessee and Lessee dated June 25, 2012, as amended. (1) "Excepted Premises" means the real property and improvements, except for the Demised Premises, but including the Statehouse Convention Center, more particularly described on Exhibit "C" attached hereto and by this reference fully incorporated herein and made a part hereof as if set forth herein word for word. (m) "Event of Default" means the occurrence of any action or event specified in Section 25.1. (n) "Force Majeure" as used herein means that in the event performance of any of the respective obligations, covenants, conditions, promises or agreements set forth herein by either party hereto is prevented, interrupted or delayed by causes beyond that party's control, including, but not limited to, strike, riot, storm, flood, war, acts of God, 4 1160171-v1 fires, epidemics, quarantine restrictions, freight embargoes, and unusually severe weather, or delays of subcontractors due to such causes, and not caused by any act or failure to act by the party thereby delayed, interrupted or prevented in such performance or observance; then, and in such event, the date or time or times for performance or observation of such obligations, covenants, conditions, promises or agreements shall be extended for a period of time equal to the number of days the performance or observation of such obligations, covenants, conditions, promises or agreements is prevented, interrupted or delayed. In such case, neither party shall be liable for any costs, losses, damages, injuries or liabilities caused to or suffered or incurred by the other party in connection with such obligations, covenants, conditions, promises or agreements. PROVIDED, HOWEVER, in the event that either party intends to avail itself of the provisions of this section, that party must first give written notice of such intent to the other party within thirty (30) days from the date performance or observation of such obligations, covenants, conditions, promises or agreements was prevented, interrupted or delayed or be barred therefrom. (o) "Full Service" means, with respect to a hotel, an upscale or luxury hotel with a restaurant, lounge facilities and meeting space as well as service levels including, but not limited to, bell service, valet service, concierge, full service catering and room service. (p) "Hotel" means the Approved Hotel operated on the Demised Premises by Lessee. (q) "Hotel Building" means all buildings and structures situated, now or hereafter, on and within the Demised Premises. (r) "Imposition" means all of the ad valorem taxes, special assessments, or other taxes, charges, levies and any other type governmental charges levied or assessed against the Lessee or the Demised Premises. (s) "Improvements" means all buildings, structures and improvements of any nature whatsoever (including all supports, foundations, structures, landscaping, sidewalks, skywalks, driveways, ramps, porches, bridges, tunnels and fixtures) located or to be located upon and on the Demised Premises or appurtenant thereto (including the Renovation and Enhancement Work described in Article IV hereof), as well as all apparatus and equipment necessary for the complete and comfortable use, occupancy, enjoyment, operation, maintenance and repair of the Demised Premises at any time situated on or upon the Demised Premises, including but not limited to all fittings, appliances, machinery, garage equipment, ventilating equipment, wiring, controls, communications equipment, switchboards, antennae, escalators, floor coverings, hot water heating equipment, all furniture, furnishings, buildings materials, supplies, machines, chillers, motors, engines, boilers, stokers, pumps, fans, vents, blowers, dynamos, furnaces, elevators, ducts, shafts, pipes, furniture, cabinets shades, blinds, screens, plumbing, heating, air conditioning, lighting, lifting, ventilating, refrigerating, cooking, medical, laundry and incinerating equipment; partitions, drapes, carpets, rugs 5 1160171-v1 and other floor coverings, awnings, signs, sign structures and supports, call and sprinkler systems, fire prevention and extinguishing apparatus and equipment, water tanks, swimming pools, compressors, vacuum cleaning systems, disposals, dishwashers, ranges, ovens, kitchen equipment, cafeteria equipment, recreational equipment, lawn and landscaping equipment and supplies. (t) "Legal Requirements" means all laws, statutes, codes, acts, ordinances, orders, judgments, decrees, injunctions, rules, requirements of any and all governmental, depal tments, commissions, boards, courts, authorities, or agencies now or at any time hereafter applicable to the Demised Premises. (u) "Lease Year" means 12 consecutive months. The first Lease Year shall begin on the date that Lessee takes possession of the Demised Premises if that date is the first day of the calendar month; if not, then the first Lease Year shall commence upon the first day of the calendar month next following the date that Lessee takes possession of the Demised Premises. Each succeeding Lease Year shall commence upon the anniversary date of the first Lease Year. (v) "Permitted Mortgagee" or "Permitted Mortgage" means a mortgagee or mortgagees holding a mortgage or mortgages and transferee of a security interest permitted by Sections 6.1(a) or 6.1(b). (w) "Person" means any natural person, firm, partnership, corporation or any other entity. (x) "Plans and Specifications" means the information required by Section 4.2 herein. (y) "Product Improvement Plan" or "PIP" shall mean the renovations and enhancements to the Demised Premises or to the Hotel which Lessee is required to perform in order to obtain or continue a franchise for an Approved Hotel. (z) "Rents" means the Annual Rent Amount as defined herein. (aa) "Rent Start Date" means the date that the Lessee takes possession of the Demised Premises. (bb) "Renovation and Enhancement Work" means the work described in Article IV herein. (cc) "Statehouse Convention Center" or "Convention Center" means the portion of the Excepted Premises used and operated by Lessor as the Lessor's premier convention center. (dd) "Sublease and Sublessee" The term "Sublessee" herein shall mean any subtenant, concessionaire, licensee or occupant of space in or on the Demised Premises holding by or through the Lessee; the term "Sublease" shall mean any lease, license, 6 1160171-v1 concession or other agreement for the use or occupancy of the Demised Premises made by the Lessee or any person holding by or through the Lessee. (ee) "Substantial Completion" (including the correlated term "substantially completed") means that the Renovation and Enhancement Work described in Article IV hereof has been so completed that it is finished and/or ready for the beneficial use, enjoyment and occupancy of the Lessee under the Lease Agreement. (ff) "Survey" means the survey of the Demised Premises and the Excepted Premises prepared by McCaskill &Associates, Inc., dated February 21, 2013. SECTION 1.2: EXECUTION AND EFFECTIVENESS. This Agreement, and the respective rights, obligations and duties of the parties hereunder, shall be effective upon the later of the date (i) Lessee and Lessor have each executed and delivered four (4) counterpart originals of this Agreement; or (ii) Lessee has completed the acquisition from the Former Lessee of all of its interest in any assets owned or used in the operation of the Hotel pursuant to that certain Purchase and Sale Agreement between the Former Lessee and Lessee dated June 25, 2012, as amended. ARTICLE II THE DEMISE SECTION 2.1: THE DEMISE. The Lessor, for and in consideration of the Rents reserved and of the covenants and agreements made by the Lessee to be kept, observed and fully performed, does demise, let, rent and lease to the Lessee and the Lessee does accept, rent and lease from the Lessor the Demised Premises, subject to all matters of record, for the term and upon and under the conditions herein stated. TO HAVE AND TO HOLD the same unto the said Lessee for the term hereof and upon and under the conditions herein stated, together with all rights and privileges appurtenant thereto. SECTION 2.2: DEMISED PREMISES TO BECOME PROPERTY OF LESSOR. Upon termination of this Agreement, whether by the passage of time, by surrender(which, if applicable, is consented to by a Permitted Mortgagee) or by an Event of Default (which, if applicable, a Permitted Mortgagee has elected to forego its rights under Article VI herein to cure or make a new lease), the Demised Premises shall become the sole property of the Lessor in fee simple and free and clear of all encumbrances excepting (i) only the lien of taxes assessed, if any, but not yet due and payable (for which the Lessee shall remain obligated to pay to the extent that they are allocable to the period prior to the termination of this Agreement); and (ii) those matters approved by the parties hereto and reflected as Exceptions in Schedule B-II of Lessee's title insurance commitment dated as of the Effective Date of this Lease Agreement. 7 1160171-v1 SECTION 2.3: COVENANTS TO PERFORM. This Agreement is made upon the foregoing and the following covenants and conditions, each of which the party bound by such covenants and conditions agrees to perform, irrespective of whether the particular provision is in the form of a covenant, an agreement, a condition, a direction or otherwise, and each party agrees to provide the other party with the documents or further assurances as may be required to carry out the expressed intention of the parties. ARTICLE III THE TERM; RENEWALS SECTION 3.1: THE TERM. The term of this Agreement shall commence at 12:01 A.M. on the Effective Date and shall end at 12:00 Midnight, December 31, 2052, unless sooner extended or terminated as provided herein. Simultaneously with the Effective Date of this Agreement, Lessor and Lessee shall amend the terms of each of the 3 parking leases to be equal to the term of this Lease Agreement, including any renewal terms, and Lessor shall reaffirm and extend for the benefit of Lessee the "Ashley Street Parking Franchise" for such same term, all in the form of the "Assignment, Assumption, and First Amendment to Parking Lot Lease Agreements and Reaffirmation and Extension of Ashley Street Parking Franchise" attached hereto as Exhibit"D". SECTION 3.2: RENEWALS. So long as Lessee is not then otherwise in default hereunder, Lessee shall have the option to elect two (2) successive renewals of this Lease Agreement, each such renewal to be for a term of twenty-five (25) years and to be subject to the terms and conditions of this Lease Agreement, provided that written notice of the renewal is given by Lessee to Lessor on or before January 1, 2052, for the first 25-year renewal and on or before January 1, 2077 for the second renewal term. The Rent during the renewal periods shall be as stated in Section 5.1(a)(viii) of this Lease Agreement. ARTICLE IV DELIVERY OF POSSESSION, PLANS AND SPECIFICATIONS AND CONSTRUCTION SECTION 4.1: POSSESSION AND DISCLAIMER. Lessor and its Former Lessee and predecessors in interest have been and are in lawful possession of the Demised Premises since September 15, 1980, and have accepted possession thereof with any and all rights, privileges and obligations attendant thereto. The Lessor acknowledges and represents that, immediately prior to the Effective Date, the Former Lease Agreement is in full force and effect without any defaults under it or under any other agreement between Lessor and the Former Lessee with respect to the Demised Premises, and that all work required to have been performed by the Former Lessee has been fully completed in a manner satisfactory to Lessor, except for any repairs or renovations that are ongoing currently. Lessor shall deliver to Lessee, and shall cause Lessor's Former Lessee to 8 1160171-v1 deliver to Lessee, an Estoppel Statement dated as of the Effective Date containing terms suitable to Lessee in Lessee's absolute discretion and being substantially in the form attached hereto as Exhibit"E". SECTION 4.2: RENOVATIONS AND ENHANCEMENTS TO DEMISED PREMISES. (a) Lessee, at its sole cost and expense, shall perform such Renovation and Enhancement Work that the Lessee is required to perform in order to comply with the PIP, such work to be performed in accordance with the schedule required by the PIP or as otherwise permitted by the franchisor. Lessor acknowledges receipt of the initial PIP and a copy of Lessee's overall initial capital budget and consents to all items required by such initial PIP and initial capital budget and, to the extent not prohibited by the applicable franchisor, Lessee agrees to provide to Lessor copies of any subsequent PIP or other requirements imposed by the applicable Approved Hotel during the Term of this Lease Agreement. The Renovation and Enhancement Work, when completed, is intended to enable the Lessee to operate, manage, maintain, repair and replace the Demised Premises as a franchised Full Service Marriott Hotel or other Approved Hotel in accordance with the standards mandated and required by Article VII hereof (b) To the extent, if any, that the Renovation and Enhancement Work required by the PIP or any other work required by the Approved Hotel franchisor at any time includes work to be performed which materially alters the structural support of the Hotel Building, Lessee shall cause plans and specifications for such alterations to be prepared and submitted by the Lessee to the Lessor. Such plans and specifications shall be examined and reviewed by the Lessor and such persons as it designates and within thirty (30) days of its receipt of said plans and specifications, the Lessor shall notify the Lessee of any objections which the Lessor has thereto and such plans and specifications shall be redesigned, redrawn and reworded by the Lessee to the reasonable satisfaction of the Lessor, such approval not to be unreasonably withheld, conditioned, or delayed. If the Lessor fails to notify Lessee of its objections to the plans and specifications within the 15 day period aforesaid, then the Lessor shall be deemed to have approved the plans and specifications as submitted. (c) The Lessor shall not be required to review the PIP or any Plans and Specifications in detail and the Lessor shall not be responsible for or liable in any way to anyone for any error or omission therein or the failure of the PIP or Plans and Specifications to comply with any building code or regulation or for any inconsistency or incompatibility therewith. (d) Upon completion of any Renovation and Enhancement Work or other work which materially alters the structural support of the Hotel Building, Lessor and Lessee, or their advisors, shall inspect the construction for substantial conformity to the PIP and/or, if applicable, conformity to any related Plans and Specifications applicable to material structural alterations, and Lessee shall deliver to Lessor a copy of the franchisor's documentation confirming that the PIP has been completed. If applicable, 9 1160171-v1 Lessee shall furnish Lessor, without cost, one copy in reproducible form of the final Plans and Specifications applicable to material structural alterations, together with Lessee's written authorization to use said Plans and Specifications without further cost or expense to Lessor. Concurrent with the delivery of the Plans and Specifications required hereunder, Lessee shall make good faith efforts to cause the architects or engineers who prepared said Plans and Specifications to execute and deliver to the Lessor written authorization empowering the Lessor to use said Plans and Specifications after termination of this Agreement. (e) Any non-structural changes desired by the Lessee or required by the PIP or otherwise required by the Approved Hotel franchisor at any time are hereby consented to and approved by Lessor and shall not require further review or approval by Lessor. If subsequent PIP requirements are implemented or imposed by the franchisor of the then applicable Approved Hotel which require material structural alterations, the structural elements of such subsequent PIP shall be submitted by Lessee to Lessor, shall be examined and reviewed by Lessor and such other persons as it may choose for compliance with this Article IV, and Lessor shall notify Lessee of Lessor's objections to any material structural work required pursuant to such subsequent PIP within fifteen (15) days of Lessee's receipt thereof. If the Lessor fails to notify Lessee of its objections to the said PIP within the 15 day period aforesaid, then the Lessor shall be deemed to have approved the PIP as submitted. (f) The parties recognize that the anticipated cost of the Renovation and Enhancement Work required by the PIP and the initial capital budget is currently estimated by Lessee to be approximately Sixteen Million Dollars ($16,000,000) subject to itemization of estimated costs to be submitted by Lessee to Lessor within six (6) months following the Effective Date. The parties recognize that the work required by the PIP shall determine the actual cost thereof. The parties further recognize that the Renovation and Enhancement Work and related alterations required by the PIP are of significant benefit to the Lessor, the Lessee and the citizens of Little Rock. SECTION 4.3: COMMENCEMENT OF CONSTRUCTION. Construction of the Renovation and Enhancement Work required by the PIP shall begin on or before the date required by the PIP, unless extended by mutual agreement of the franchisor and Lessee, and shall be conducted by Lessee and its contractors in a manner that minimizes disruption of operation of the Hotel. The Lessee covenants with Lessor that at no time during the terms hereof shall the Demised Premises be closed down or operations thereof completely suspended, except closure or suspension resulting from Force Majeure as defined herein, although it is acknowledged by the parties hereto that it will be necessary to temporarily close portions of the Demised Premises and temporarily suspend operations of portions of the Demised Premises during the course of completion of the Renovation and Enhancement Work, which temporary closures and suspensions the Lessee will use its reasonable efforts to keep at a minimum. SECTION 4.4: COMPLETION OF CONSTRUCTION. The Renovation and Enhancement Work shall be substantially complete on or before the date required by the 10 1160171-v1 PIP, unless extended by agreement of the franchisor and Lessee or unless due to Force Majeure. SECTION 4.5: USE OF DEMISED PREMISES AND EXCEPTED PREMISES DURING CONSTRUCTION. During the course of completion of the Renovation and Enhancement Work, should an area of the Demised Premises or the Excepted Premises whereat an event has been previously scheduled be unusable because of construction work; then and in that event, and only to the extent space in the Excepted Premises is available and not otherwise in use, the Lessor agrees to allow the Lessee to occupy space in the Excepted Premises at no charge for the purpose of conducting the meeting, event or banquet of the Lessee's guest originally scheduled in the Demised Premises, and likewise the Lessee agrees to allow Lessor to occupy space in the Demised Premises at no charge for the purpose of conducting the meeting, event or banquets of the Lessor's licensee originally scheduled in the Excepted Premises. Notwithstanding the foregoing, additional charges such as security, janitorial, setup, and audio visual are not included in the free use of such space and, to the extent that either party has received a fee from a licensee for the use of such space, that fee shall be passed through to the other party for use of its space. Both Lessor and Lessee will give each other as much advance notice of their respective need for space and each will make every effort to accommodate each other's need so as to keep the loss of business at a minimum. ARTICLE V RENT SECTION 5.1: DEMISED PREMISES RENT. (a) The Lessor and Lessee covenant and agree that the term "Annual Rent Amount" shall mean the annual amount of rent due and payable by the Lessee to the Lessor in a particular year as stated below. In addition to the other obligations undertaken herein by the Lessee to be well, truly and fully performed, the Lessee covenants and agrees to pay to the Lessor as Rent of and for the Demised Premises the following amounts: (i) For the period from the Effective Date through December 31, 2013, the Lessee covenants and agrees to pay to the Lessor as Rent of and for the Demised Premises the sum of EIGHTY-FIVE THOUSAND AND NO/100 ($85,000.00) DOLLARS PER ANNUM (the Annual Rent Amount for this period); (ii) For the period from January 1, 2014 through December 31, 2014, the Lessee covenants and agrees to pay to the Lessor as Rent of and for the Demised Premises the sum of NINETY THOUSAND AND NO/100 ($90,000.00) DOLLARS PER ANNUM (the Annual Rent Amount for this period); (iii) For the period from January 1, 2015 through December 31, 2015, the Lessee covenants and agrees to pay to the Lessor as Rent of and for 11 1160171-v1 the Demised Premises the sum of NINETY FIVE THOUSAND AND NO/100 ($95,000.00) DOLLARS PER ANNUM (the Annual Rent Amount for this period); (iv) For the period from January 1, 2016 through December 31, 2016, the Lessee covenants and agrees to pay to the Lessor as Rent of and for the Demised Premises the sum of ONE HUNDRED FIVE THOUSAND AND NO/100 ($105,000.00) DOLLARS PER ANNUM (the Annual Rent Amount for this period); (v) For the period from January 1, 2017 through December 31, 2017, the Lessee covenants and agrees to pay to the Lessor as Rent of and for the Demised Premises the sum of ONE HUNDRED TWENTY THOUSAND AND NO/100 ($120,000.00) DOLLARS PER ANNUM (the Annual Rent Amount for this period); (vi) For the period from January 1, 2018 through December 31, 2018, the Lessee covenants and agrees to pay to the Lessor as Rent of and for the Demised Premises the sum of ONE HUNDRED THIRTY FIVE THOUSAND AND NO/100 ($135,000.00) DOLLARS PER ANNUM (the Annual Rent Amount for this period); (vii) For the period from January 1, 2019 through December 31, 2052, the Lessee covenants and agrees to pay to the Lessor as Rent of and for the Demised Premises the sum of ONE HUNDRED FIFTY THOUSAND AND NO/100 ($150,000.00) DOLLARS PER ANNUM (the Annual Rent Amount for this period); (viii) For each of the Renewal Terms from January 1, 2053 through the end of the Term of this Lease Agreement, including the Renewal Terms, the fixed Annual Rent Amount to be paid during each such Renewal Term; shall equal the greater of (a) FOUR HUNDRED THOUSAND AND NO/100 ($400,000.00) DOLLARS PER ANNUM, or (b) One Percent (1%) of the total gross revenue of the Hotel, as reported, for the last full operating year preceding the first day of the applicable Renewal Term (the Annual Rent Amount for this period). (b) The Annual Rent Amount applicable to each period as stated above shall be paid by the Lessee to the Lessor in equal quarterly installments, in advance, upon the first day of each January, April, July and October of each year during the term hereof, commencing on the Effective Date and continuing throughout the Term hereof. If the Effective Date is not the first day of January, April, July or October, then Lessee shall pay, on the Effective Date, a pro rata portion of the Annual Rent Amount with respect to the partial calendar quarter. If the Lease terminates on any day other than the last day of March, June, September or December, the Lessee shall pay only a pro-rata portion of the Annual Rent Amount with respect to the partial calendar quarter. 12 1160171-v1 (c) Lessee shall also pay to Lessor a facilities maintenance surcharge to offset a portion of the maintenance expenses incurred by Lessor resulting from (i) central plant property and casualty insurance premiums, (ii) central plant preventive maintenance contracts, and (iii) water treatment. The surcharge shall be initially set at $7,195 per month, of which $3,077 is a monthly fixed equipment depreciation expense for 25 years, and $4,118 is a variable amount based on 71% of the actual costs delineated in items (i), (ii), and (iii) above for calendar year 2012. If in subsequent years, the actual costs delineated in items (i), (ii), and (iii) above increase to levels in excess of the 2012 levels, then Lessee shall, within 30 days following the end of each calendar year, reimburse Lessor for 71% of such increase above 2012 levels; provided, however, the increased variable facilities maintenance surcharge assessed to Lessee shall not exceed the prior year's variable amount multiplied by the increase, if any, in the Consumer Price Index plus 1%. [For example, if the Effective Date is January 1, 2013 and if in 2014 Lessee's 71% share of the actual costs delineated in items (i), (ii) and (iii) is $6,500, and the CPI increases 2%, then Lessee's 71% share of such costs for 2014 shall be limited to $4,241.54 (prior year variable amount of $4,118 x 1.03), in which event the aggregate facilities maintenance surcharge would be limited to $7,318.54 for 2014.] In the event that the costs of central plant preventive maintenance contracts result in an overall increase in the facilities maintenance surcharge exceeding five percent (5%) in the aggregate in any calendar year, or in the event that new central plant preventive maintenance contracts are necessary after any applicable warranty periods expire, then upon request from Lessee the Lessor shall seek bids from alternative providers for mutual review and approval by Lessor and Lessee. Lessor shall be obligated to maintain the central plant facilities in good working condition; Lessor and Lessee, or their respective representatives, shall make annual inspections of the central plant facilities and of the then current mechanical preventative maintenance contractors to determine the compliance with required levels of upkeep and efficiency of the central plant and the furnishing of heated and chilled water. Any deficiencies shall be noted and addressed within sixty (60) days by Lessor, with the necessary resolution of any such deficiencies being promptly reported in writing to Lessor and Lessee. Seventy-one percent (71%) of any maintenance expense savings realized from the replacement of central plant facilities shall be applied to reduce on a dollar for dollar basis the facilities maintenance surcharge charged to Lessee. In addition, Lessor and Lessee shall each make a monthly payment of $1,000 which shall be deposited into a joint account for central plant mechanical expenditures related to heated and chilled water systems maintenance expenditures which are not covered by preventive maintenance contracts. SECTION 5.2: RENTS AND OTHER PAYMENTS NOT SUBORDINATED. Neither the Rents reserved herein and payable by the Lessee or any other sums required to be paid by the Lessee to the Lessor hereunder shall be subordinated to the payment of any other amounts, including but not limited to, the payment of any indebtedness secured by a mortgage on the leasehold estate granted hereby. 13 1160171-v1 SECTION 5.3: GAMING. In the event that gaming is legalized or authorized in the State of Arkansas, Pulaski County and the City of Little Rock, it is hereby agreed that the Demised Premises may be used for such gaming purposes, but only pursuant to licensing from the appropriate governmental authority and in such event, the Lessee hereby covenants and agrees with the Lessor that the Lessee shall pay to the Lessor, as additional rent hereunder on the same payment schedule as the Annual Rent Amount is paid, a percentage of the Lessee's annual net gaming win derived by the Lessee from gaming equal to the percentage charged by the owners of other reasonably comparable type of facilities in the states adjoining Arkansas where gaming is permitted and conducted from leased premises, which shall be agreed on by the parties. In the event they are unable to agree on the appropriate percentage, the parties shall select a national accounting firm experienced in gaming accounting to set the percentage. Lessee shall be solely responsible for all associated license and permit fees and costs. ARTICLE VI NONENCUMBRANCE OF DEMISED PREMISES PERMITTED MORTGAGE FINANCING SECTION 6.1 ENCUMBRANCE OF DEMISED PREMISES. (a) Encumbrances. Except as provided in Subsections (a) and (b) hereof and except with Lessor's prior written consent, the Lessee covenants and agrees for itself, its permitted successors and assigns, and every permitted successor in interest to the Demised Premises (collectively for purposes of this Article VI the "Lessee"), not to engage in any financing or other transaction creating any mortgage or other encumbrance or lien upon the Demised Premises whether by express agreement or operation of law, and not to place upon the Demised Premises, or suffer to be placed upon the Demised Premises, any lien or other encumbrance, other than a lien upon the Demised Premises for current real estate taxes and assessments, levied but not then due and payable, and not to suffer any levy or attachment to be made on the Demised Premises. Any mortgage, encumbrance or lien made in violation of this covenant shall be deemed a violation of this covenant on the date of its execution or filing of record regardless of whether or when it is foreclosed or otherwise enforced. Notwithstanding any other provisions contained herein, it is expressly agreed between the Lessor and the Lessee that the Lessee shall be free to create, substitute or refinance any mortgage lien or security interest for any amount upon the Demised Premises or the leasehold estate of the Lessee or the Lessee's limited liability company or other entity interests; provided, however, that this shall not be deemed an agreement on the part of the Lessor to subordinate its fee simple interest in the Demised Premises to the lien of any Permitted Mortgage now or later placed on the Demised Premises or leasehold estate of the Lessee in the Demised Premises. (b) Mortgages to Finance Acquisition, Renovation and Enhancement Work, or Other Purposes of Lessee. The Lessee and its members and affiliates may and shall have 14 1160171-v1 the right to encumber, pledge or convey its right, title and interest in and to its leasehold estate in the Demised Premises and their member interests, by way of a mortgage, deed of trust or indenture or security agreement ("Permitted Mortgage") to finance the acquisition of the leasehold estate and the Renovation and Enhancement Work (including the procurement of furniture, furnishings, fixtures and equipment used in connection with the operation of the Demised Premises), or refinance any loan or loans obtained by the Lessee to finance the acquisition of the leasehold estate and the Renovation and Enhancement work (including the procurement of furniture, furnishings, fixtures and equipment used in connection with the operation of the Demised Premises), or to finance other purposes determined by Lessee. Nothing in this Lease Agreement shall be deemed an agreement on the part of the Lessor to subordinate its fee simple interest in the Demised Premises to the lien of any Permitted Mortgage placed on the leasehold estate of the Lessee in the Demised Premises. Lessor further agrees that any Permitted Mortgagee of the leasehold estate shall have the right, in the event of taking possession of the Demised Premises or upon Lessee's default pursuant to the Permitted Mortgage, to cure any defaults by Lessee and to quiet possession of the Demised Premises, and such possession shall not be disturbed by Lessor as long as the Permitted Mortgagee pays the rent and complies with the other obligations imposed upon Lessee which accrue on and after the date of their taking possession of the Demised Premises. (c) Notwithstanding anything to the contrary in this Lease Agreement, it is expressly agreed by and between the Lessor and the Lessee and (by acceptance of the Permitted Mortgage) any Permitted Mortgagee of the leasehold estate that the Lessee's right to place a Permitted Mortgage against the Demised Premises is subject to the following: (1) That at the time the Permitted Mortgage is made, the Lessee has not been notified of any default which is continuing or uncured under this Lease Agreement; (2) That no Permitted Mortgagee or anyone claiming by, through or under the Permitted Mortgagee, shall, by virtue of it, acquire any greater rights in the Demised Premises than the Lessee had under this Lease Agreement; and (3) That the Permitted Mortgage shall be expressly subject and subordinate to Lessor's interest in all conditions and covenants of this Lease Agreement and to the rights of the Lessor. The Permitted Mortgagee of any Permitted Mortgage and the owner of the indebtedness secured by the Permitted Mortgage upon acquiring ownership of the legal and equitable title to the Demised Premises shall take the title subject to the covenants of this Lease Agreement. In the event of any conflict between Section 6.1(a) and 6.1(b), Section 6.1(b) shall control. (d) Lessee to Notify Lessor of Permitted Mortgage and Furnish Names and Addresses of Permitted Mortgagees. The Lessee shall notify the Lessor in advance of the execution and delivery of any Permitted Mortgages filed or recorded against the Demised Premises or leasehold estate and shall promptly furnish the Lessor with a copy of the 15 1160171-v1 Permitted Mortgage executed pursuant to this Lease Agreement and true and correct copies of all of the instruments of indebtedness, Permitted Mortgage and other security related to any Permitted Mortgage and the name and address of the Permitted Mortgagee. (e) Lessee to Notify Lessor of Other Encumbrance. The Lessee shall also promptly notify the Lessor of any other lien or encumbrance which has been created on or attached to the Demised Premises, whether by act of the Lessee or otherwise, of which Lessee has Notice. SECTION 6.2: PROTECTION TO PERMITTED MORTGAGEE. In the event there is a conveyance by way of a Permitted Mortgage of Lessee's leasehold interest in the Demised Premises of which the Lessor has received notice as provided in Section 6.1(d), the Lessor agrees that it will not accept a voluntary surrender of the Demised Premises or a voluntary cancellation of this Lease Agreement from the Lessee prior to the termination of this Lease Agreement by lapse of time and will not make any material amendment of this Lease Agreement without, in each case, the prior written consent of each Permitted Mortgagee under this Lease Agreement. SECTION 6.3: RIGHT OF PERMITTED MORTGAGEE TO MAKE A NEW LEASE AGREEMENT. If the Permitted Mortgagee or other party should succeed to the rights of the Lessee hereunder by reason of the uncured default of the Lessee or because of any foreclosure or any other action in lieu of foreclosure, then within 60 days after the Permitted Mortgagee or other party shall have succeeded to Lessee's rights hereunder, the Permitted Mortgagee or other party shall have the right to enter into a new lease with the Lessor; provided, however, that prior to the making of any such new lease the Permitted Mortgagee or other party shall have furnished satisfaction to the Lessor for payment of any and all liability, costs, claims and expenses arising out of the cancellation of the Lease Agreement by and between the Lessor and Lessee and the making of a new lease with the Permitted Mortgagee or other party, and the Permitted Mortgagee shall have cured all defaults on the part of the Lessee which are susceptible of being cured by payment of money. This right shall be exercisable, if at all, only by notice in writing from the Lessee to and received by the Lessor within 60 days after the Permitted Mortgagee or other party shall have succeeded to Lessee's rights hereunder. The new lease shall be for the remainder of the term of this Lease Agreement and any renewals and shall otherwise contain the same terms and conditions as are herein set forth (except for requirements which are no longer applicable because they have already been performed). Lessor shall not disturb the Permitted Mortgagee's or other party's possession of the Demised Premises during the Term of this Lease Agreement as long as such Permitted Mortgagee or other party complies with the provisions of this Lease Agreement. SECTION 6.4: PERMITTED MORTGAGEE'S GRACE PERIOD TO CURE DEFAULTS OR TO FILE FORECLOSURE PROCEEDINGS. If the Lessee is in default under this Lease Agreement by reason of the occurrence of any Event of Default set forth in this Lease Agreement, the Lessor will not terminate this Lease Agreement or invoke its right to take possession of the Demised Premises if: (i) the 16 1160171-v1 Permitted Mortgagee shall cure the default within the time and in the manner provided for in this Lease Agreement; or if(ii) in the case of any Event of Default described in Article XXV, within thirty days after notice of the default by the Lessor to the Permitted Mortgagee, the Permitted Mortgagee commences a foreclosure or action for possession under the laws of the State of Arkansas or the United States of America and diligently proceeds in good faith with its foreclosure (including seeking in good faith to be put in possession as Permitted Mortgagee or to obtain the appointment of a receiver in foreclosure), and seeks in good faith to cure or cause to be cured all defaults under this Lease Agreement and if, and only as long as, the Permitted Mortgagee fully performs all of the obligations of the Lessee under this Lease Agreement except the curing of those defaults which cannot be cured until Permitted Mortgagee is in possession of the Demised Premises or which cannot be cured within such period; provided, however, that the Permitted Mortgagee commences such cure and diligently pursues such cure. Notwithstanding the preceding provisions of this Section, the Lessor may invoke any and all of its remedies under this Lease Agreement, including the remedy of termination if: (i) a trustee in bankruptcy, a receiver, or any other officer of a court or governmental agency (other than a receiver, trustee, or any other officer appointed by a court of competent jurisdiction on motion of the Permitted Mortgagee) shall take possession of the Demised Premises; and (ii) the Permitted Mortgagee fails to diligently seek to cause possession of the Demised Premises to be relinquished by any trustee in bankruptcy, receiver or officer of a court or governmental agency; and (iii) the Permitted Mortgagee fails to cure all defaults of Lessee under this Lease Agreement except those defaults which cannot be cured until the Permitted Mortgagee completes its foreclosure in good faith and with diligence. In the event the purchaser at foreclosure sale or the assignee of the purchaser acquires the Demised Premises and/or the Lessee's interest in the Demised Premises, the purchaser or assignee of the purchaser (subject to the Lessor's reasonable right of approval of any purchaser or assignee of the purchaser other than the Permitted Mortgagee or an affiliate controlled by it, which approval shall not be unreasonably withheld) shall then become the Lessee under this Lease Agreement and shall be obligated to assume and by taking possession of the Demised Premises, it shall assume and perform each and all of the Lessee's obligations and covenants hereunder. Lessor shall not disturb the Permitted Mortgagee's or other party's possession of the Demised Premises during the Term of this Lease Agreement as long as such Permitted Mortgagee or other party complies with the provisions of this Lease Agreement. SECTION 6.5: COPY OF NOTICE OF BREACH OF COVENANT OR DEFAULT. Whenever the Lessor, pursuant to this Lease Agreement, shall deliver any notice or demand to the Lessee with respect to any breach of covenant or default by Lessee in any obligation of Lessee under this Lease Agreement, the Lessor shall, at the same time, furnish a copy of written notice or demand to any Permitted Mortgagee and any existing franchisor at the last address of that Permitted Mortgagee and franchisor as shown in the records of the Lessor. Conversely, any Permitted Mortgagee shall forward a similar notice to Lessor in the event of any alleged or declared default of the Lessee under any Permitted Mortgage permitted under this Lease Agreement, or any other instrument related to it. 17 1160171-v1 SECTION 6.6: RIGHT OF PERMITTED MORTGAGEE TO CURE BREACH OR DEFAULT BY LESSEE, Any Permitted Mortgagee or existing franchisor shall have the right, at its option, and within a period of the later to occur of 30 days after receipt of notice from Lessor as provided in Section 6.5, or 30 days after receipt of notice from the Lessor that Lessee has not cured or remedied its breach or default within the grace period provided for in this Lease Agreement, to cure or remedy any breach of covenant or default by the Lessee under this Lease Agreement, and as to any breach or default which cannot be cured within such 30 days, the Permitted Mortgagee or existing franchisor, as applicable, shall commence and diligently pursue cure of such default. Any Permitted Mortgagee may add the cost of so curing or remedying the breach of covenant or default to the debt secured by the Permitted Mortgage and to the lien of the Permitted Mortgage. SECTION 6.7: LESSOR TO NEGOTIATE WITH MORTGAGEE. Lessor hereby covenants and agrees to negotiate in good faith from time to time with one or more mortgagees or prospective mortgagees with respect to those terms of this Lease Agreement which affect or impact upon the financability of this Lease Agreement, it being the intention of Lessor to enter into a lease which Lessee shall be able to finance and/or mortgage from time to time. Lessor shall promptly furnish to any Permitted Mortgagees such Estoppel Certificates or Non-Disturbance Agreements as may be reasonably required by such Permitted Mortgagees. ARTICLE VII ADDITIONAL CONDITIONS OF LEASE AGREEMENT AND RESTRICTIONS UPON USE OF DEMISED PREMISES The Lessee, and every other Person who is a beneficiary of the Lessee or a permitted successor in interest in or to any part of the Demised Premises and who is able to control the use, occupancy and/or operation of the Demised Premises under the terms of this Agreement, in addition to all other conditions and restrictions described in this Lease Agreement or in any Exhibit to it, shall be subject to the following covenants and agreements which shall run with the Demised Premises, to-wit: SECTION 7.1: FRANCHISE. (a) Lessee covenants and agrees with the Lessor that the Lessee shall own, rename, operate, renovate, repair, maintain, manage and market the Demised Premises initially as a Marriott Hotel and subsequently throughout the Term of this Lease Agreement as an Approved Hotel (provided, however, Lessee shall have the option to elect to continue to operate as The Peabody Hotel for all of any portion of the initial six (6) months of the Term of this Lease Agreement) under and pursuant to the terms and provisions of a fully executed franchise agreement and the Lessee further covenants and agrees that Lessee shall own, operate, renovate, repair, maintain, manage and market the Demised Premises initially as a Marriott Hotel (and subsequently throughout the Term of this Lease Agreement as an Approved Hotel) under the franchise agreement and in accordance with the operating and maintenance standards 18 1160171-v1 initially of a Marriott Hotel (and subsequently throughout the Term of this Lease Agreement as an Approved Hotel) in effect from time to time. (b) So long as no event of default has occurred hereunder which remains uncured within any applicable grace periods, Lessee may at its election own, operate, renovate, repair, maintain, manage and market the Demised Premises under a franchise agreement as any other Approved Hotel. If the Lessee exercises its election, then and in that event, the Lessee covenants and agrees with the Lessor that the Lessee shall thereafter and throughout the term or terms hereof own, operate, renovate, repair, maintain, manage and market the Demised Premises under and in accordance with a franchise agreement as one of the Approved Hotels and none others except with the prior written consent of the Lessor. (c) On every 5-year anniversary date of this Lease Agreement, the parties may review the list of Approved Hotels and by mutual agreement amend it as they may deem appropriate to maintain the standard of operation and maintenance for the Demised Premises comparable to those of the Approved Hotels on the Effective Date. (d) That portion of the Demised Premises consisting of the Conference Center shall not be used as guest rooms for overnight stays,but as a conference center. SECTION 7.2: INCORPORATION OF FRANCHISE STANDARDS. Lessee represents to Lessor that each of the Approved Hotels has a set of standards and conditions precedent which must be met in order to comply with the applicable franchise agreement. Accordingly Lessee covenants and agrees with Lessor that, subject to the prior written consent of the franchisor, within 90 days of the Effective Date hereof, Lessee will make good faith efforts to obtain a written statement of all standards and conditions precedent which the Lessee must meet and complete in order to be granted the Marriott Hotel franchise agreement. Furthermore, should Lessee elect to exercise its options as stated in Section 7.1(b) above to own, operate, maintain and market the Demised Premises as one of the Approved Hotels, then Lessee covenants and agrees that, subject to the prior written consent of the applicable Approved Hotel, within sixty (60) days of the exercise of its election the Lessee will make good faith efforts to obtain a written statement of all standards and conditions precedent which the Lessee must meet and complete in order to be granted the applicable franchise agreement of one of the Approved Hotels. Except as to defaults in monetary obligations owed by Lessee to Lessor pursuant to this Lease Agreement and subject to the rights granted pursuant to any Permitted Mortgage, Lessor and Lessee understand and agree that the performance standards and other requirements of the franchisor of an Approved Hotel shall have priority over any such requirements of this Lease Agreement and that satisfactory compliance with such franchisor's requirements shall constitute compliance with any similar requirements of this Lease Agreement. Lessor further agrees that any then applicable franchisor of the Approved Hotel shall have the right to cure any defaults by Lessee under this Lease Agreement. The rights to cure granted to the franchisor of the Approved Hotel shall also 19 1160171-v1 be granted to any substitute franchisor of an Approved Hotel. If for any reason the franchise of the Approved Hotel is terminated, Lessee shall have six (6) months thereafter within which Lessor shall have the right to appoint a substitute franchisor of an Approved Hotel. Lessee shall have the right, in the interim, to continue to operate the Hotel as reasonably necessary until such substitute franchisor of an Approved Hotel shall have been appointed. SECTION 7.3: COVENANT TO RENOVATE, OPERATE, MAINTAIN AND REPAIR IN CONFORMITY WITH THE REOUIREMENTS OF THE FRANCHISE. At all times during the term and any renewal terms hereof, Lessee covenants and agrees with Lessor that Lessee will own, renovate, operate, maintain, occupy, repair, market and possess the Demised Premises in substantial conformity with the terms, provisions, covenants, conditions, requirements and obligations of this Article VII. Upon Lessor's written request, Lessee will provide to Lessor copies of the franchisor's (initially Marriott) most recent periodic inspection reports, if any, for the Hotel to the extent permitted by the applicable franchisor or otherwise allowed by the then applicable franchise or license agreement for the Approved Hotel. SECTION 7.4: CERTAIN CONDITIONS OF LEASING. The Lessee shall: (a) Devote and operate the Demised Premises only for those uses specified herein and allowed by applicable laws and ordinances; and, (b) In conformity with all local, state and federal laws and regulations prohibiting discrimination with regard to hiring, promotion and operation. ARTICLE VIII ASSIGNMENT AND TRANSFERS OF DEMISED PREMISES SECTION 8.1: LESSEE ACKNOWLEDGMENTS. The Lessee acknowledges and confirms to the Lessor that any Disposition is for practical purposes a sale, transfer, assignment or conveyance or disposition of the leasehold in the Demised Premises then leased by the Lessee and that the qualifications and identity of the Lessee and the Member are of particular concern to the Lessor. Further the Lessee acknowledges and confirms that it is because of such qualifications and identity that the Lessor is entering into this Lease Agreement and in doing so, is further willing to accept and rely on the obligations of the Lessee for the faithful performance of all undertakings and covenants by it to be performed. SECTION 8.2: PROHIBITION AGAINST TRANSFER OF THE LEASE AGREEMENT OR LEASEHOLD ESTATE AND ASSIGNMENT. For the foregoing described reasons, and except for customary licenses or sub-leases of space for operations of specialized products or services such as restaurants, gift shops, newspaper stands, coffee shops, spa and health clubs, and similar facilities for the benefit of guests, or as otherwise permitted by this Lease Agreement, without the prior written approval of 20 1160171-v1 the Lessor, Lessee has not made or created (and will not make or create, or suffer to be made or created) any total or partial sale, assignment, conveyance, or transfer of part or all of the leasehold estate granted hereby or the Demised Premises or make any Disposition, or contract or agree to do so (unless such contract or agreement is made expressly subject to Lessor's consent); PROVIDED, HOWEVER, the Lessor's consent to any such sale, assignment, conveyance, transfer or Disposition may only be withheld and denied if the Lessee fails to demonstrate to the Lessor's reasonable good faith satisfaction that (i) the proposed successor lessee or transferee has the financial capability to fully perform the Lessee's obligations hereunder, and, (ii) the proposed successor lessee or transferee, either personally or as a result of contractual engagements, has the qualifications to own, operate and maintain the Demised Premises as a Full Service convention center hotel and perform the concession granted herein. Lessee shall have no right to contest said successor lessee's qualifications under (i) above if the successor lessee has a net worth, computed in accordance with GAAP of at least $10 million and under (ii) above if said successor lessee is acceptable to an Approved Brand. Upon the consummation of any Disposition as provided for in this Section, Lessee shall reimburse (or cause to be reimbursed to Lessor) any of Lessor's direct out of pocket reasonable expenses to any third party incurred as a result of such disposition, but in any event not to exceed $50,000. SECTION 8.3: LESSEE NOT RELIEVED OF OBLIGATIONS BY DISPOSITION OR TRANSFER OF DEMISED PREMISES OR ASSIGNMENT OF LEASE AGREEMENT. The Lessee covenants and agrees that it will not make any sale, assignment, conveyance or transfer of the Lease Agreement, the leasehold estate created hereby or the Demised Premises or make any Disposition, as defined in Section 1.1(i), except in conformity with the terms of this Agreement. Upon the written consent of the Lessor to any sale, assignment, conveyance or transfer of the Lease Agreement, the leasehold estate created hereby or the Demised Premises or any Disposition, the Lessee shall, upon such sale, assignment, conveyance, transfer or Disposition and the assumption by the successor lessee or transferee of all obligations under this Agreement, be fully released of and from its obligations and liabilities under this Agreement; otherwise, no Disposition or any sale, conveyance, assignment, or transfer of the leasehold estate granted hereby or the Demised Premises shall be deemed to relieve the Lessee, or any other party bound in any way by this Lease Agreement or otherwise with respect to the obligations under the Lease Agreement. SECTION 8.4: ASSIGNEE'S LIABILITY. Unless otherwise agreed to by the Lessor and Lessee, if an assignment shall be made by Lessee or any successor of the Lessee pursuant to and after complying with the conditions and in the manner set forth in this Article VIII, the assignee shall be subject to the same terms and conditions as to future assignments, and to all the covenants, agreements, provisions and conditions contained in this Lease Agreement. 21 1160171-v1 7 ARTICLE IX EXCEPTED PREMISES SECTION 9.1: EXCEPTED PREMISES. Lessor covenants and agrees with the Lessee that the Lessor shall keep, maintain, operate and repair the Excepted Premises (including, without limitation, the Statehouse Convention Center) and all personal property owned by the Lessor used in connection with the operation of the Excepted Premises or of the Demised Premises in a condition reasonably comparable to the public spaces and meeting rooms in the Demised Premises and to similar levels of decor and finish as those of the franchise requirements of Marriott or the other applicable Approved Hotel. Such obligation of Lessor shall include, without limitation, the operation of the Statehouse Convention Center as a premier convention center in the City of Little Rock throughout the Term of this Lease Agreement and any Renewal Terms. Furthermore, the Lessor covenants and agrees with the Lessee that the Lessor shall establish and annually fund a maintenance and replacement reserve account in an amount sufficient to enable Lessor to keep, maintain and repair the Excepted Premises and all personal property owned by the Lessor used in connection with the operation of the Excepted Premises or of the Demised Premises in such condition. The current maintenance and replacement reserve account established by Lessor as of the Effective Date shall be in the sum of not less than $1,000,000.00, and the initial annual payment by Lessor into the maintenance and replacement reserve account shall be in the sum of$500,000.00. SECTION 9.2: OBLIGATION TO OPERATE AND RECONSTRUCT EXCEPTED PREMISES. Lessor covenants and agrees that it will throughout the terms hereof so long as no Event of Default as defined by Article XXV hereof has occurred and remains uncured at the expiration of any applicable grace period, operate the Excepted Premises continuously in accordance with the standards set out in Section 9.1 above, and repair and reconstruct any damage or destruction to the Excepted Premises and that such repair and reconstruction shall restore the Excepted Premises at least to the condition the same was in prior to the damage or destruction. In addition thereto, as further provided in Article XX Lessor shall immediately repair and replace the mechanical renovations consisting of (i) installation of the final metering phase and mechanical control system for the heated and chilled water system serving the Demised Premises; and (ii) replacement of the Conference Center water chiller. SECTION 9.3: USE OF EXCEPTED PREMISES. The Lessor shall equip, occupy, staff, own, operate, manage, maintain, repair and replace the Excepted Premises as a public convention center with related facilities in accordance with the standards set out in Article IX herein. SECTION 9.4: REPLACEMENT OF EXCEPTED PREMISES. During the term hereof and any renewals thereof, Lessor agrees to repair and replace as promptly as practicable the Excepted Premises in the event of destruction by fire or other casualty. 22 1160171-v1 „— SECTION 9.5: LESSOR OBLIGATION TO INSURE. (a) At all times during the term hereof and any renewal term or terms, the Lessor shall, at the Lessor's sole cost and expense, purchase, procure and maintain the following insurance: (i) ALL RISK Property insurance on the Excepted Premises in an amount at least equal to the full replacement cost of the Excepted Premises, with a maximum deductible at the commencement of the Lease Agreement of Ten Thousand Dollars for all lines purchased, protecting against loss or damage by ALL PERILS, including, but not limited to: (i) fire and lightning; (ii) the risks commonly included within the term "extended coverage” (including but not limited to windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles and smoke); and (iii) vandalism and malicious mischief, all as these terms are used in insurance policies from time to time issued by insurance companies licensed to do business by the State of Arkansas. If the Lessee decides, based on a reliable appraisal, that the amount of replacement cost insurance procured by the Lessor is inadequate, then replacement cost of the Excepted Premises for which insurance shall be thereafter procured shall be determined every two years during the term of this Lease Agreement by an appraiser selected and paid jointly by the Lessor and Lessee. The appraiser shall submit a written report of the appraised replacement cost to the Lessor and the Lessee. If the Lessor or the Lessee is not satisfied with this report, this party shall serve upon the other a notice of dissatisfaction (the notice of dissatisfaction to set forth in a general manner the grounds for dissatisfaction) within 30 days after receipt of the report. Unless within 30 days after service of the notice of dissatisfaction the parties shall have arrived at an agreed replacement cost, the dispute shall be resolved by the Lessor and Lessee appointing appraisers, then said appraisers selecting a third appraiser, with the average of the three appraisals being the valuation for purposes of this section. During this period of dispute the Lessor shall continue to maintain insurance. Immediately upon receipt of the agreed upon appraiser's report, the Lessor shall procure and deliver to the Lessee written confirmation from the insurer or insurers evidencing any increase in insurance which may be required to comply with the provisions above. (ii) Boiler and machinery insurance on a comprehensive basis covering repair and replacement of all boilers and machinery serving or benefiting the Excepted Premises, the policies of insurance to be endorsed so as to provide "use and occupancy" coverage for the Excepted Premises in the amount of at least 90% of the replacement costs thereof (iii) Comprehensive commercial general public liability or its contemporary equivalent on an occurrence basis and property damage insurance, including but not limited to elevator, premises and operations, owners and contractors protective coverage; product and completed operations coverage, fire damage, legal liability, personal and advertising injury, 23 1160171-v1 medical payments, broad form property damage coverage including completed operations, blanket contractual liability insurance, personal injury coverages, and contingency liability coverages, protecting and indemnifying the Lessor, the Lessee, and others reasonably designated by the Lessor or Lessee against any and all claims (including all costs and expenses of defending against same) for bodily injury, sickness, disease or death or for damage or injury to or destruction of property (including loss of use) arising out of ownership, maintenance or use of the Excepted Premises, the limits of which insurance shall be not less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) general aggregate. The foregoing insurance shall also include insurance for storage tank liability with respect to the underground diesel fuel tank which services the emergency generator for both the Excepted Premises and the Demised Premises. (iv) Worker's compensation insurance and employer's liability insurance with a minimum equal to that statutorily required by law covering all liability imposed under the provision of any worker's compensation law, employer's liability act or similar laws of the State of Arkansas that may at any time or from time to time be enacted, or such other amount as may be required by umbrella policy to effect umbrella coverage. (v) Business Auto Liability Insurance in the amount of One Million .Dollars combined single limits for bodily injury and/or property damage liability including, (i) owned autos, (ii) hired or borrowed autos, and (iii) non-owned autos. (vi) Umbrella Insurance on a follow form basis with a per occurrence and annual aggregate limit of not less than Nine Million Dollars ($9,000,000.00) per occurrence for bodily injury and/or property damage liability listing the general liability, employer's liability and comprehensive auto liabilities policies required as underlying policies. Coverage shall be excess of commercial general public liability (including product completed operations coverage), auto liability and employer's liability with such coverage being concurrent with and not more restrictive than underlying insurance. (vii) Insurance company certificates evidencing the existence of all of these policies of insurance and the respective interests of Lessor and Lessee shall be delivered to the Lessee. All general liability policies shall show the Lessee as an Additional Insured and all certificates shall provide that they shall not be amended or canceled on less than 30 days' prior written notice to the Lessee and all insureds and beneficiaries of the policies. The Lessee shall have no obligation to pay premiums or make contributions to the insuring company or any other person. Not less than 30 days prior to the expiration date of any policy required to be carried pursuant to this Article, the Lessor shall deliver to the Lessee insurance company certificates evidencing all policies of insurance and renewals required to be maintained. (viii) All insurance proceeds paid for a loss under (a) above shall be 24 1160171-v1 applied and paid toward repairing and restoring the Excepted Demised. (ix) All policies required shall be primary and non contributory except with respect to commercial general public liability insurance of Lessor covering the Lessee's day to day operations of the property within the scope of Lessee's activities. ARTICLE X RESERVATION, EASEMENTS, AND OTHER PROVISIONS,RELATIVE TO THE EXCEPTED PREMISES AND DEMISED PREMISES SECTION 10.1: EASEMENTS. The Lessor and Lessee reserve to themselves, their guests, invitees, successors and assigns, and to any utility company the following permanent and perpetual rights in and to the Demised Premises and the Excepted Premises: reasonable rights of ingress and egress to and from interests and areas necessary for the operation, maintenance and repair of the Demised Premises and Excepted Premises, including installation, operation, maintenance, repair, replacement, relocation, and removal of water lines, sanitary and storm sewers, gas mains, electrical power lines, telephone lines and other utility lines and facilities, for support and access to and within the respective areas for the effective use and operation of the Demised Premises and Excepted Premises (including, in particular, operation and maintenance by the Lessee of the public's right to ingress and egress Riverfront Park by way of the elevators in the Conference Center and the Concourse portions of the Demised Premises), but subject to any franchisor requirements or reasonable security measures consistent with safety of life and property, 24 hours a day, 7 days a week; provided that the exercise of any entry and other rights under this reciprocal easement grant shall not unreasonably interfere with security measures or the use and enjoyment by any party of interests, sites or areas or by anyone claiming by, through or under the respective party to this Lease Agreement. SECTION 10.2: STRUCTURAL SUPPORT. If due to the fault or negligence of Lessee, the structural support for any portion of the Demised Premises is reduced below the support required for the structural integrity and safety of the balance of the Demised Premises or the Excepted Premises, whether above-grade or below-grade, the Lessee shall promptly provide substitute adequate structural support. At the request of the Lessor, the Lessee shall engage the services of a licensed architect or structural engineer, reasonably acceptable to the Lessor and Lessee, to determine the extent of any reduction and the adequacy of the remedial or substitute support which shall be constructed in accordance with plans and specifications prepared by the architect and reasonably acceptable to the Lessor. In the event that the architect or structural engineer determines that substitute structural support is required in a portion of the Demised Premises in which the structural support has been reduced due to the fault or negligence of Lessee and the Lessee fails to commence the construction of substitute support within a reasonable time, as determined 25 1160171-v1 by the architect or structural engineer, or having commenced such construction, the Lessee fails to proceed diligently to its completion, the Lessor shall have the right to complete the construction of the substitute support. All reasonable costs and expenses incurred by the Lessor in connection with such construction shall be promptly due and payable to the Lessor from the Lessee on demand and, if not paid by Lessee on demand, shall be secured as additional rent and a lien against any insurance proceeds payable to the Lessee to secure the repayment of that sum of money. Otherwise, if for any reason other than any reduction due to the fault or negligence of Lessee, the structural support for any portion of the Demised Premises or Excepted Premises is reduced below the support required for the structural integrity and safety of the balance of the Demised Premises or the Excepted Premises, whether above- grade or below-grade, the Lessor shall promptly provide substitute adequate structural support. At the request of the Lessee, the Lessor shall engage the services of a licensed architect or structural engineer, reasonably acceptable to the Lessor and Lessee, to determine the extent of any reduction and the adequacy of the remedial or substitute support which shall be constructed in accordance with plans and specifications prepared by the architect and reasonably acceptable to the Lessee. In the event that the architect or structural engineer determines that substitute structural support is required in a portion of the Demised Premises or Excepted Premises in which the structural support has been reduced other than any reduction due to the fault i or negligence of Lessee and the Lessor fails to commence the construction of substitute support within a reasonable time, as determined by the architect or structural engineer, or having commenced such construction, the Lessor fails to proceed diligently to its completion, the Lessee shall have the right to complete the construction of the substitute support. All reasonable costs and expenses incurred by the Lessee in connection with such construction shall be promptly due and payable to the Lessee from the Lessor on demand, and if not paid by Lessor on demand, shall be secured as a lien in favor of the Lessee on the Excepted Premises and on any insurance proceeds payable to the Lessor to secure the repayment of that sum of money. In the event the Lessor fails to promptly reimburse Lessee for all such costs and expenses within thirty (30) days of written demand from Lessee, then Lessee shall have the right to setoff subsequent Rent owed to Lessor against the obligations owed by Lessor to Lessee. ARTICLE XI PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS SECTION 11.1: PAYMENT OF IMPOSITIONS. The Lessee agrees to pay or cause to be paid as additional Rent, before delinquency and any fine, penalty, interest or cost is added for nonpayment, all gross receipts tax on hotel and restaurant sales levied by the City and collected by the Commission, from time to time, and all real estate taxes, personal property taxes or other ad valorem taxes on tangible property, assessments, water rates and charges and other governmental charges, general and special, ordinary 26 1160171-v1 and extraordinary, unforeseen as well as foreseen, of any kind and nature whatsoever, including but not limited to, assessments for public improvements or benefits, which are assessed, levied, confirmed, imposed or become a lien upon the Demised Premises or the leasehold estate granted hereby or any or all of them or become payable during the term of this Lease Agreement, except as otherwise provided for in this Section 11.1. Lessee shall not be obligated to pay any portion of any such taxes applicable or attributable to any portion of the Excepted Premises (other than income or sales taxes, or taxes of that nature, imposed on Lessee relating to its sale of food and beverages on any portion of the Excepted Premises). The Lessee shall only be responsible for payment of Impositions that accrue on or after the Effective Date. Notwithstanding any other provision of this Lease Agreement, the Lessee shall have the right to contest any taxes, charges or assessments that it disputes and shall not be required to pay any tax so long as the Lessee shall in good faith proceed to contest the bill by appropriate proceedings. If by law any Imposition is payable or may at the option of the taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of the Imposition), the Lessee may pay the same (and any accrued interest on the unpaid balance of the Imposition), in installments as they respectively become due and before any fine, penalty, interest or cost is added for the nonpayment of any installment and interest. Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included within the terms of this Lease Agreement and a part of which is included in a period of time after the termination of the term of this Lease Agreement (whether or not the Imposition shall be assessed, levied, confirmed, imposed or become a lien upon the Demised Premises or shall become payable during the term of this Lease Agreement), shall be adjusted as between the Lessor and the Lessee as of the termination of the term of this Lease Agreement, so that the Lessor shall pay that proportion of the Imposition which that part of the fiscal period included in the period of time after the termination of the term of this Lease Agreement bears to the fiscal period, and the Lessee shall pay the remainder. Lessor shall pay any Imposition on or for the Excepted Premises for which it or the Excepted Premises are determined to be liable. SECTION 11.2: TAX ON RENTS. If at any time during the term a tax or excise on rents or income or other tax however described (called "Rent Tax") is levied or assessed by the State of Arkansas or any political subdivision on account of the Rents or the interest of the Lessor under this Lease Agreement, and if the Rent Tax is in lieu of or as a substitute for real estate taxes or other ad valorem taxes, Rent Tax shall be treated as an Imposition and the Lessee covenants to reimburse the Lessor on account of it to the extent provided in this Article XI. In no event shall the Lessee be obligated (a) to pay for any year any greater amount by way of the Rent Tax than would have been payable by the Lessor had the rentals paid under this Lease Agreement upon which the Rent Tax is imposed been the sole taxable income of the Lessor for the year in question, or(b) to pay or to reimburse the Lessor for any tax of any kind assessed against Lessor on account of any Rent Tax reimbursement. 27 1160171-v1 SECTION 11.3: LESSEE NOT TO PAY CERTAIN TAXES. Nothing in this Lease Agreement shall require Lessee to pay any franchise, estate, inheritance, succession or transfer tax that is the financial obligation of and payable by the Lessor. SECTION 11.4: DEPOSIT ON ACCOUNT OF REAL ESTATE TAXES. In the event the Lessee defaults in or fails to pay any Imposition before it becomes delinquent, or within thirty (30) days thereafter, then and thereafter Lessee upon demand of the Lessor shall deposit with the Lessor on the first day of each calendar quarter after the Lessee's receipt of the demand aforesaid a sum equal to one-fourth of the last known general property taxes (or any other ad valorem tax or levy upon the Demised Premises) to the end that, after this date, there shall always be on deposit with the Lessor an amount at least equal to the taxes accrued and to accrue to the end of the calendar quarter following each deposit, for the year which then are most recently ascertainable. Each deposit when made shall be earmarked and held in trust by the Lessor for the taxes for the year in which the deposit falls due and if the amount deposited by the Lessee on account of the accrual of taxes for any period shall be insufficient to pay all of the taxes for that period when finally ascertained, the Lessee, commencing with taxes accrued in the year of this date, and billed in the next year, shall promptly upon demand deposit an additional amount as shall make the total deposit of the period equal the taxes for that period. In the event the deposits above provided for shall be insufficient, the Lessee shall make additional deposits with the Lessor in the amount of any deficiency from time to time on notice from Lessor of the amount or amounts levied or assessed against the Demised Premises or the Leasehold estate granted hereby or any part thereof. All deposits held by the Lessor shall be disbursed in accordance with the provisions hereof. In the event similar deposits on account of real estate taxes are required by the Lessee's Permitted Mortgagee, deposits required shall be made to Permitted Mortgagee (as the case may be) in lieu of to the Lessor, provided the Permitted Mortgagee shall by written agreement with the Lessor covenant to hold deposits in trust for the payment of such real estate taxes and so pay them when the same shall be due and payable. Any deposits made by the Lessee with the Lessor as provided in this Section 11.4 shall be held in trust by Lessor and invested by the Lessor in investments, obligations, or securities of the United States Government or insured by the United States Government or in commercial paper, certificates of deposit or other securities or savings accounts as reasonably directed by the Lessee and approved by the Lessor, which approval shall not be withheld unreasonably. All interest or other income from these investments shall be paid over to the Lessee within a reasonable time after receipt, provided the Lessee is not then in default under the terms of this Lease Agreement in respect of any matter of which notice of default has been served on the Lessee. SECTION 11.5: PROOF OF PAYMENT. Upon written request by Lessor, the Lessee shall furnish to Lessor, within 30 days after the date whenever any Imposition is payable by or in behalf of the Lessee, official receipts of the appropriate taxing authority, photocopies or other proof satisfactory to the Lessor, evidencing the payment. If the 28 1160171-v1 Lessor shall have paid any Imposition, it shall promptly provide the Lessee with a photocopy of each receipt and shall lend and permit the Lessee to retain the original receipt until its retention shall no longer be required by the Lessee. SECTION 11.6: TAX BILLS PRIMA FACIE EVIDENCE. The certificate, advice or bill or duplicate issued by the appropriate official designated by law to make or issue it or to receive payment of any Imposition indicating the nonpayment of any Imposition or any forfeiture, tax sale or tax foreclosure, shall be prima facie evidence that the Imposition is due and unpaid at the time of the issuance of such certificate, advice or bill or that the property involved has been forfeited or sold for taxes as the case may be. ARTICLE XII INSURANCE SECTION 12.1: INSURANCE ON DEMISED PREMISES. At all times during the term hereof and any renewal term or terms, the Lessee shall to the extent commercially available at reasonable premium rates, at the Lessee's sole cost and expense, but for the mutual benefit of the Lessor and the Lessee, purchase, procure and maintain the following insurance coverages: (a) ALL RISK Property insurance, including business interruption, on the Demised Premises in an amount at least equal to the full replacement cost of the Demised Premises, with a maximum deductible at the commencement of the Lease Agreement of Fifty Thousand Dollars for all lines purchased, protecting against loss or damage by ALL PERILS, including, but not limited to: (i) fire and lightning; (ii) the risks commonly included within the term "extended coverage" (including but not limited to windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles and smoke); and (iii) vandalism and malicious mischief, all as these terms are used in insurance policies from time to time issued by insurance companies licensed to do business by the State of Arkansas. If the Lessor reasonably decides, based on a reliable appraisal, that the amount of replacement cost insurance procured by the Lessee is inadequate, then replacement cost of the Demised Premises for which insurance shall be thereafter procured shall be determined every two years during the term of this Lease Agreement by an appraiser selected and paid jointly by the Lessor and Lessee. The appraiser shall submit a written report of the appraised replacement cost to the Lessor and the Lessee. If the Lessor or the Lessee is not satisfied with this report, this party shall serve upon the other a notice of dissatisfaction (the notice of dissatisfaction to set forth in a general manner the grounds for dissatisfaction) within 30 days after receipt of the report. Unless within 30 days after service of the notice of dissatisfaction the parties shall have arrived at an agreed replacement cost, the dispute shall be resolved by the Lessor and Lessee appointing appraisers, then said appraisers selecting a third appraiser, with the average of the three appraisals being the valuation for purposes of this section. During this period of dispute the Lessee shall continue to maintain insurance. 29 1160171-v1 Immediately upon receipt of the appraiser's report, the Lessee shall procure and deliver to the Lessor written confirmation from the insurer or insurers evidencing any increase in insurance which may be required to comply with the provisions above. During the Rehabilitation and Renovation Work on the Demised Premises or any part of it, the insurance required in this Section shall be in the form commonly known as Special Form Builder's Risk or at least its equivalent and shall be in the full estimated replacement cost of the Demised Premises. (b) Boiler and machinery insurance on a comprehensive basis covering repair and replacement of all boilers and machinery serving or benefiting the Demised Premises, the policies of insurance to be endorsed so as to provide "use and occupancy" coverage for the Demised Premises in the amount of at least 90% of the replacement costs thereof SECTION 12.2: OTHER INSURANCE TO BE CARRIED. At all times during the term hereof and any renewal term or terms, the Lessee shall to the extent commercially available at reasonable premium rates, at the Lessee's sole cost and expense but for the mutual benefit of the Lessor and the Lessee, purchase, procure and maintain the following insurance coverages: (a) Comprehensive commercial general public liability or its contemporary equivalent on an occurrence basis and property damage insurance, including but not limited to elevator, premises and operations, owners and contractors protective coverage; product and completed operations coverage, host liquor coverage, fire damage, legal liability, personal and advertising injury, medical payments, broad form property damage coverage including completed operations, blanket contractual liability insurance, personal injury coverages, and contingency liability coverages, protecting and indemnifying the Lessor, the Lessee, and others reasonably designated by the Lessor or Lessee against any and all claims (including all costs and expenses of defending against same) for bodily injury, sickness, disease or death or for damage or injury to or destruction of property (including loss of use) arising out of ownership, maintenance or use of the Demised Premises, the limits of which insurance shall be not less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) general aggregate. The Lessor shall have the right from time to time during the term of this Lease Agreement reasonably to require the Lessee to carry greater amounts of the insurance provided in this Subsection 12.2(a). (b) Worker's compensation insurance and employer's liability insurance with a minimum limit equal to that statutorily required by law covering all liability imposed under the provision of any worker's compensation law, employer's liability act or similar laws of the State of Arkansas that may at any time or from time to time be enacted, or such other amount as may be required by umbrella policy to effect umbrella coverage. 30 1160171-v1 (c) In the event of the Lessee's sale, merchandising, transfer or exchange of alcoholic liquors upon or from any part of the Demised Premises, the Lessee shall, at least 20 days before the commencement of this activity and continuously after that, provide the Lessor with insurance in form, substance and with insurers reasonably satisfactory to the Lessor, with total limits of not less than One Million Dollars ($1,000,000.00) in respect of bodily injury, sickness, disease or death of any one person resulting from any one occurrence, One Million Dollars ($1,000,000.00) in respect of loss of means of support, indemnifying the Lessor, the Lessee, and other persons the Lessor may designate against any and all liability by virtue of any enactment pertaining to the sale of intoxication liquors. (d) In the event that any other type of legislation may be enacted imposing special liability upon the owner of property by virtue of its use for any special purposes, before the Lessee shall so use the Demised Premises or any part of it, the Lessee shall to the extent commercially available at reasonable premium rates provide insurance in form and substance and with insurers and limits reasonably satisfactory to the Lessor indemnifying the Lessor, the Lessee, and other person the Lessor may designate against any and all liability. (e) Business Auto Liability Insurance in the amount of One Million Dollars ($1,000,000.00) combined single limits for bodily injury and/or property damage liability including, (i) owned autos, (ii) hired or borrowed autos, and (iii) non-owned autos. (f) Other insurance, in amounts and in form and substance and against insurable hazards as from time to time during the term of this Lease Agreement (including but not limited to excavation and/or construction periods, alteration periods, razing or demolition periods and restoration periods in the event of damage or destruction or condemnation) may reasonably be required by the Lessor and provided this insurance and amounts are consistent with insurance being issued by the insurance industry of the metropolitan area for buildings and operations of the type of building and operation of the Lessee upon the Demised Premises. (g) Umbrella Insurance on a follow form basis with a per occurrence and annual aggregate limit of not less than Nine Million Dollars ($9,000,000.00) per occurrence for bodily injury and/or property damage liability listing the general liability, employer's liability and comprehensive auto liabilities policies required as underlying policies. Coverage shall be excess of commercial general public liability (including product completed operations coverage), auto liability and employer's liability with such coverage being concurrent with and not more restrictive than underlying insurance. (h) All insurance required by this Section to be purchased by Lessee shall further provide for a maximum deductible at the commencement of the Lease Agreement of Fifty Thousand Dollars ($50,000.00) for all lines purchased, and Lessee may elect to self-insure losses up to $1,000,000.00. (i) All policies required shall be primary and non contributory. 31 1160171-v1 SECTION 12.3: DELIVERY OF POLICIES. All public liability, Worker's compensation and employer's liability policies shall be retained by the Lessee. Except as otherwise specifically provided, all other policies of insurance required to be furnished shall be held by the Lessee with the proceeds to be distributed in accordance with the terms of this Lease Agreement. Insurance company certificates evidencing the existence of all of these policies of insurance and the respective interests of Lessor, Lessee and any Permitted Mortgagee shall be delivered to the Lessor. Subject to the prior rights of the holder of any Permitted Mortgage, all policies of insurance required to be provided and obtained hereunder shall show the Lessor as a loss payee — all general liability policies shall show the Lessor as an Additional Insured and all certificates shall provide that they shall not be amended or canceled on less than 30 days' prior written notice to the Lessor and all insureds and beneficiaries of the policies. The Lessor shall have no obligation to pay premiums or make contributions to the insuring company or any other person. Upon the execution and delivery of this Lease Agreement and then not less than 30 days prior to the expiration date of any policy required to be carried pursuant to this Article, the Lessee shall deliver to the Lessor and the holder of any Permitted Mortgage the applicable respective policies or insurance company certificates evidencing all policies of insurance and renewals required to be furnished. SECTION 12.4: ADJUSTMENT OF LOSS. Subject to the rights of the holder of any Permitted Mortgage, a loss, if any, under all policies of the character described in Section 12.1 shall be adjusted and compromised by the Lessor, Lessee and any Permitted Mortgagee and, subject to the rights of the holder of any Permitted Mortgage each insurance company is hereby authorized and directed to make payment for all such losses jointly to the Lessor, the Lessee and the Permitted Mortgagee. Subject to the rights of the holder of any Permitted Mortgage and except to the extent provided in Section 16.2 hereof; all insurance proceeds paid for such losses shall be applied and paid toward repairing and restoring the Demised Premises. SECTION 12.5: INSURER TO BE APPROVED. All policies of insurance of the character described in Sections 12.1 and 12.2 shall be written in companies of recognized responsibility reasonably acceptable to the Lessor. On request by the Lessor, the Lessee shall provide photocopies of receipts showing the payment of premiums for all insurance policies required to be maintained by this Lease Agreement. SECTION 12.6: WAIVER OF SUBROGATION. Whenever: (i) any loss, cost, damage or expense resulting from fire, explosion or any other casualty or occurrence is incurred by either of the parties to this Lease Agreement, or anyone claiming under it in connection with the Demised Premises or Excepted Premises; and (ii) the party is then covered in whole or in part by insurance with respect to loss, cost, damage or expense required under this Lease Agreement to be so insured, then the party so insured (or so required) releases the other party from any liability the other party may 32 1160171-v1 have on account of the loss, cost, damage or expense to the extent of any amount recovered by reason of insurance (or which could have been recovered had insurance been carried as so required) and waives any right of subrogation which might otherwise exist in or accrue to any person on account of it, provided that the release of liability and waiver of the right of subrogation shall not be operative in any case where the effect thereof is to invalidate such insurance coverage or increase the cost thereof(provided that in the case of increased cost, the other party shall have the right, within 30 days following written notice, to pay the increased cost keeping the release and waiver in full force and effect). ARTICLE XIII USE OF THE DEMISED PREMISES AND ENTIRE BUILDING SECTION 13.1: NO REPRESENTATIONS BY LESSOR. (a) Lessor has provided to Lessee an Estoppel Statement in the form attached hereto as Exhibit "F" describing any hazardous or other adverse conditions of the Demised Premises which are known to Lessor. Subject to the items described in such Estoppel Statement and in reliance upon the disclosures made therein by Lessor, the Lessee acknowledges that it has examined the Demised Premises and other structures including the Excepted Premises presently located there and knows the patent condition of them and accepts them in their present condition and without any representations or warranties of any kind or nature whatsoever by the Lessor as to their condition or as to the use or occupancy which may be made of them. The Lessee assumes the sole responsibility for the condition, renovation, alteration and repair of the Demised Premises and other structures, parts, portions and components thereof, including but not limited to the exterior finishes, roof and windows, all as located on the Demised Premises in order that Lessee may operate, maintain, repair and manage the Demised Premises, and the Lessor shall not be required at any time to furnish any facilities or services to the Demised Premises or to make any repairs, replacements, changes (structural or otherwise), additions or alterations to the Demised Premises, or any part, portion or component thereof(including but not limited to, the exterior finishes, roof and windows), or any other property of any kind demised by this Lease Agreement, except as otherwise stated in this Lease Agreement. Notwithstanding the foregoing or any other provision of this Lease Agreement, the Lessee shall not assume any responsibility or liability for any condition, renovation, alteration or repair of the Demised Premises occurring or existing prior to the Effective Date or arising as a result of Lessor's or Prior Lessee's acts or omissions prior to the Effective Date, except to the extent contemplated in the initial PIP or Lessee's overall initial capital budget which has been delivered to Lessor (including without limitation any alterations or repairs proposed by Lessor in writing to Lessee and accepted by Lessee). (b) Except with respect to the items described in the aforesaid Estoppel Statement attached as Exhibit "F" and in reliance upon the disclosures made therein by Lessor, NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LESSOR, BY EXECUTION AND DELIVERY HEREOF, AND LESSEE, BY 33 1160171-v1 ACCEPTANCE HEREOF, COVENANT, AGREE AND ACKNOWLEDGE THAT THE LESSOR HAS NOT MADE AND DOES NOT HEREBY MAKE ANY REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE AMOUNT OF ACREAGE, MERCHANTABILITY, CONDITION, QUALITY, DURABILITY, DESIGN, BOUNDARY LINES, ZONING, LAND USE RESTRICTIONS, BUILDING CODES, ENVIRONMENTAL MATTERS, INCLUDING BUT NOT LIMITED TO, MATTERS CONCERNING HAZARDOUS MATERIALS, OPERATIONS, HABITABILITY, FITNESS FOR USE OR SUITABILITY OF THE DEMISED PREMISES HEREIN DESCRIBED, OR ANY COMPONENT THEREOF, IN ANY RESPECT WHATSOEVER; NOR DOES THE LESSOR MAKE ANY OTHER REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND, CHARACTER OR NATURE, EXPRESSED OR IMPLIED WITH RESPECT HERETO OR THE DEMISED PREMISES; SAID DEMISED PREMISES BEING LEASED TO AND ACCEPTED BY THE LESSEE, AS IS", "WHERE IS AND "HOW IS", WITHOUT EXCEPTION AND LESSEE ASSUMES FULL AND COMPLETE RESPONSIBILITY FOR ANY REPAIRS OR REPLACEMENTS WHATSOEVER. LESSOR REPRESENTS THAT, AS OF THE EFFECTIVE DATE OF THIS LEASE AGREEMENT, THERE ARE NO DEFAULTS HEREUNDER; THAT THERE ARE NO CONDITIONS IN EXISTENCE WHICH, TO THEIR KNOWLEDGE, WOULD GIVE RISE TO AN EVENT OF DEFAULT; AND THAT ALL RENTS, PAYMENTS AND OTHER CHARGES DUE HEREUNDER HAVE BEEN TIMELY MADE. Notwithstanding the foregoing provisions, Lessor shall, { as between Lessor and Lessee, be solely responsible for all claims and causes of action related to or arising out of any environmental conditions existing on the Demised Premises or the Excepted Premises on or prior to the Effective Date. SECTION 13.2: COMPLIANCE WITH THE LAWS. The Lessee and Lessor shall throughout the term of this Lease Agreement, at their respective sole expense, promptly comply with all the laws and ordinances and the orders, rules, regulations and requirements of all federal, state and municipal governments and appropriate departments, commissions, boards and officers (whether or not the same require structural repairs or alterations) and all other Legal Requirements, which may be applicable from time to time to the use of the Demised Premises and Excepted Premises, but the foregoing shall not be deemed to relieve the Lessor of its general municipal obligations. The Lessee and Lessor shall likewise observe and comply with the requirements of all policies of public liability, fire and all other policies of insurance at any time in force with respect to the Demised Premises and Excepted Premises. SECTION 13.3: RIGHT TO CONTEST COMPLIANCE, The Lessee shall have the right to contest by appropriate legal proceeding, without cost or expense to the Lessor, the validity of any Legal Requirement of the nature referred to, and if by the terms of any legal requirement compliance may legally be held in abeyance without the incurrence of any lien, charge or liability of any kind against the title to the Demised Premises or the Lessee's leasehold estate and without subjecting the Lessee or the Lessor to any liability of whatsoever nature for failure so to comply, the Lessee may postpone 34 1160171-v1 compliance until the final determination of any proceedings, provided that all proceedings shall be prosecuted with all due diligence and dispatch. SECTION 13.4: USE OF DEMISED PREMISES,. The Lessee shall equip, occupy, staff, own, operate, manage, maintain, repair and replace the Demised Premises only as a Full Service Marriott Hotel or other Approved Hotel with related amenities and Conference Center. ARTICLE XIV REPAIRS, MAINTENANCE AND IMPROVEMENTS SECTION 14.1: REPAIR OF DEMISED PREMISES. The Lessee shall throughout the term or terms of this Lease Agreement, at the Lessee's sole expense, continuously keep and maintain the Demised Premises in good, clean and orderly condition and repair and in a condition consistent with the standards prescribed by Article VII of this Agreement. The Lessee shall promptly, at the Lessee's own expense, make to the Demised Premises all necessary repairs, renewals and replacements, interior and exterior (including the roof and all exterior surfaces and finishes), structural and nonstructural, whether made necessary or caused by fire or other cause (but in the event of damage caused by fire or other casualty, only to the extent of insurance proceeds actually received by Lessee) or by ordinary wear and tear, except as provided in Section 16.1(b) herein. All repairs, renewals and replacements shall be of good quality sufficient for the proper maintenance and operation of the Demised Premises, again consistent with the standards prescribed by Article VII hereof Lessee and Lessor agree that the Lessor shall have no obligation whatsoever to make any repairs or expend any monies for the maintenance of the Demised Premises or the renewal, replacement or repair of the Demised Premises. SECTION 14.2: REPAIR AND REPLACEMENT RESERVES. Immediately upon execution hereof, the Lessee shall create an account, identified as the Repair and Replacement Reserves Account, into which account Lessee shall deposit, beginning in the second full calendar year after substantial completion of the Renovation and Enhancement Work, three (3%) per cent of the annual room sales derived from the Lessee's operation of the Demised Premises, but not more than Three Thousand Dollars ($3,000.00) per guest room in the aggregate shall be required to be held in reserve at any one time. The monies deposited into the Repair and Replacement Reserves Account shall be held by Lessee or its Permitted Mortgagee and be expended only for the repair and replacement of the Demised Premises, as determined by Lessee in its sole discretion, and for no other purpose; Lessor shall be entitled to annual confirmation of the account. In the event the applicable Approved Hotel franchise or any Permitted Mortgagee requires Lessee to maintain a repair and replacement reserve, such repair and replacement reserve required pursuant to the applicable franchise shall be a credit against the Repair and Replacement Reserve required pursuant to this Section 14.2. 35 1160171-v1 SECTION 14.3: REMOVAL OF DANGEROUS CONDITIONS. The parties shall during the term of this Lease Agreement, at their respective sole expense, do all things necessary to remove any known dangerous condition from time to time existing on the Demised Premises as to the Lessee, and the Excepted Premises as to the Lessor, including (without limiting the generality of the foregoing) promptly taking appropriate measures to prevent or repair any erosion, collapse or other unstable condition of each of the said Demised Premises and Excepted Premises. SECTION 14.4: ALTERATION OF IMPROVEMENTS. Except in compliance with the requirements of any applicable PIP or other requirement of the then applicable franchisor of the Approved Hotel, the Lessee shall not make or permit to be made any alteration of, addition to, or change in, Demised Premises, nor demolish all or any part of the Demised Premises, involving a material structural alteration without the prior written consent of the Lessor, which consent shall not be unreasonably withheld or delayed. Lessor hereby consents to any alteration, addition, change, or demolition made in compliance with the requirements of any applicable PIP or other requirement of the then applicable franchisor of the Approved Hotel. In requesting consent the Lessee shall comply with all applicable laws and ordinances, and shall submit to the Lessor detailed plans and specifications of the proposed structural work, an explanation of the needs and reasons for it, and a plan of full payment of the costs of it and the Lessor shall notify the Lessee of its approval or objections, as the case may be, as promptly as possible after reviewing the information, but not exceeding 30 days. If Lessor fails to notify Lessee of its objections within 30 days, the alterations and/or changes shall be deemed approved. This section shall not be applicable to upgrades or replacements of the furniture, furnishings, fixtures, equipment or inventory or to work done in compliance with the requirements of any applicable PIP or other requirement of the then applicable franchisor of the Approved Hotel. If Lessor desires to make or permit to be made any alteration of, addition to, or change in,.the Excepted Premises, or demolish all or any part of the Excepted Premises, involving a cost in excess of Five Hundred Thousand Dollars ($500,000.00) (subject to annual increases based upon increases in the Consumer Price Index from the Effective Date to each anniversary) it shall first submit its plans for such alteration, addition, changes or demolition to Lessee for its review, comment, and approval, which shall be delivered within thirty (30) days from its receipt of Lessor's plans, but the Lessee's consent to any such alteration, addition, or change to the Excepted Premises shall not be unreasonably withheld, subject always, however, to the continuing obligation of Lessor under Article IX, including, without limitation, continuing operation of the Statehouse Convention Center as a premier convention center in the City of Little Rock. 36 1160171-v1 ARTICLE XV RIGHT TO PERFORM COVENANTS; REIMBURSEMENT FOR AMOUNTS SO EXPENDED SECTION 15.1: PERFORMANCE OF COVENANTS TO PAY MONEY. If either party shall at any time default in the payment of any Impositions pursuant to the provisions of Article XI, shall fail to effect any insurance coverage and pay premiums therefor, or fail to make other payment (other than Rent) when due and the failure shall continue for ten business days after written notice from the other party, then the other party may, but shall not be obligated so to do, and without further notice to or demand and without waiving or releasing the defaulting party from any obligations in this Lease Agreement contained, pay any Imposition, effect any insurance coverage and pay premiums for it, or make any other payment in a manner and extent that the other party may deem desirable to protect the Demised Premises or Excepted Premises. SECTION 15.2: RIGHT TO CURE DEFAULT. (a) If there shall be an Event of Default as defined in Article XXV of this Lease Agreement, other than the events described in Section 15.1 above, which remain uncured upon the expiration of any applicable grace period, then the Lessor shall have the right, but shall not be required, to make good any default of the Lessee. Nothing in this Lease Agreement shall imply any duty upon the part of the Lessor to do any work which, under any provision of this Lease Agreement, the Lessee is required to perform, and the performance of it by the Lessor shall not constitute a waiver of the Lessee's default in failing to perform it. The Lessor may, during the progress of any work elected to be performed by it on the Demised Premises, enter with contractors, agents and servants and keep and store upon the Demised Premises or any part of it all necessary materials, tools and equipment. The Lessor shall not in any event be liable for inconvenience, annoyance, disturbance, loss of business or other damage of or to the Lessee by reason of bringing materials, supplies and equipment into or through the Demised Premises during the course of the work, and the obligations of the Lessee under this Lease Agreement shall not be affected in any manner whatsoever provided the Lessor uses reasonable care under the circumstances prevailing to avoid unnecessary inconvenience, annoyance, disturbance, loss of business or other damage of or to the Lessee. (b) If the Lessor fails to operate the Convention Center as a premier convention center in the City of Little Rock or fails to keep and repair the Excepted Premises in a condition reasonably comparable to the public spaces and meeting rooms in the Demised Premises, which failure remains uncured after the expiration of any applicable grace period, then the Lessee shall have the right, but shall not be required, to make good said failure to keep and repair the Excepted Premises. Nothing in this Lease Agreement shall imply any duty upon the part of the Lessee to do any work to keep and repair the Excepted Premises and the performance of it by the Lessee shall not constitute a waiver of the Lessor's default in failing to perform it. The Lessee may, during the progress of any work elected to be performed by it to keep the Excepted Premises in a condition reasonably comparable to the public spaces and meeting rooms in the Demised 37 1160171-v1 1 Premises, enter with contractors, agents and servants and keep and store upon the Excepted Premises or any part of it all materials, tools and equipment necessary to work thereon. The Lessee shall not in any event be liable for inconvenience, annoyance, disturbance, loss of business or other damage of or to the Lessor by reason of bringing materials, supplies and equipment into or through the Excepted Premises during the course of the work thereon, and the obligations of the Lessor under this Lease Agreement shall not be affected in any manner whatsoever provided the Lessee uses reasonable care under the circumstances prevailing to avoid unnecessary inconvenience, annoyance, disturbance, loss of business or other damage of or to the Lessor. SECTION 15.3: LESSOR'S AND LESSEE'S ATTORNEYS' FEES AND EXPENSES. To the extent not prohibited by law, all expenses, including reasonable attorneys' fees and court costs, incurred by the parties by reason of any default by the other party (whether or not any proceeding is instituted) or in connection with any action or proceeding affecting this Lease Agreement or the Demised Premises, shall be paid by the party found to be at fault. SECTION 15.4: REIMBURSEMENT OF LESSOR AND LESSEE. All sums advanced by either party pursuant to the provisions of Sections 15.1 and 15.2 and all necessary and incidental costs, expenses and reasonable attorneys' fees in connection therewith, together with interest at the prime interest rate per annum of J.P. Morgan Chase Bank, New York, or its successor, from the date of the making of advancements, shall be promptly payable in the respective amounts so advanced. This reimbursement shall be made on demand, or, at the option of the party to which reimbursement is due, may be added to or subtracted from any Rent then due or becoming due under this Lease Agreement. ARTICLE XVI DAMAGE OR DESTRUCTION SECTION 16.1: REPAIR AND REPLACEMENT OF DEMISED PREMISES AFTER DAMAGE. (a) Except as stated in (b) below, in the event of damage by fire or otherwise to the nonstructural elements of the Demised Premises, including any machinery, fixtures or equipment which are a part of or located on the Demised Premises, the Lessee shall within six months after settlement with the insurance carrier and collection of insurance proceeds and as much sooner as is reasonably possible, at the Lessee's sole expense (understanding that Lessee shall use any insurance proceeds available for that purpose and shall not be required to expend funds in excess of insurance proceeds actually received by Lessee), either repair or replace the damaged nonstructural elements of the Demised Premises, including any machinery, fixtures or equipment. In the event of damage by fire or otherwise to the structural elements of the Demised Premises, the Lessee shall within twenty-four (24) months after the damage and as much sooner as is reasonably possible at the Lessee's sole expense(understanding that Lessee shall use any insurance proceeds available for that purpose and shall not be required to expend funds in excess of insurance proceeds actually received by Lessee), 1160171-v1 38 repair and restore the Demised Premises as completely as possible to the condition it was in immediately prior to the damage or, if the Lessee so elects, replace, within thirty (30) months after the damage and as much sooner as is reasonably possible at the Lessee's sole expense (understanding that Lessee shall use any insurance proceeds available for that purpose and shall not be required to expend funds in excess of insurance proceeds actually received by Lessee), the Demised Premises with a HOTEL BUILDING and IMPROVEMENTS of the same general size and character as the damaged HOTEL BUILDING and IMPROVEMENTS. In either event the repairing, restoring or replacement shall be done in conformity with and subject to the provisions of Article IV applicable to the renovation and enhancement of the Demised Premises. (b) Notwithstanding anything contained herein to the contrary, if such damage or destruction to the Demised Premises shall occur during the last ten (10) years of the Term or any Renewal Term, then, and in such event, Lessee may, at its option, elect to terminate this Lease Agreement by delivering thirty (30) days' prior written notice to Lessor within a reasonable time following such damage or destruction to the Demised Premises, in which event after payment to Lessee of the portion of such insurance applicable to Lessee's furniture, fixtures, equipment, inventory, supplies and business interruption, and less the actual costs, if any, to the Lessee relating to recovery, the balance of all insurance proceeds payable on account of such damage or destruction to the Demised Premises shall be paid over to Lessor, and, upon such election by Lessee, this Lease Agreement shall terminate, as if by lapse of time, on the effective date of such notice. SECTION 16.2: PAYMENT FOR CONSTRUCTION AFTER DAMAGE OR DESTRUCTION. (a) Subject to the rights of any Permitted Mortgagee, except as provided in Section 16.1(b) or in subsection (b) below, after payment to Lessee of the portion of such insurance applicable to Lessee's furniture, fixtures, equipment, inventory, supplies and business interruption, all insurance proceeds recovered by any party on account of damage or destruction to the Demised Premises, less the actual costs, if any, to the applicable party relating to recovery shall be applied to payment of the cost to restore the Demised Premises. (b) For purposes of this Section 16.2 only, the term "Loan Period Event of Damage" as used in this Section 16.2 shall mean an event of damage by fire or otherwise to the structural elements of the Demised Premises occurring on or after the Effective Date hereof and before the payment in full of the original principal debt and accrued interest secured by the Permitted Mortgage. Accordingly, if a Loan Period Event of Damage occurs, then that portion of the insurance proceeds recovered on account of damage and destruction to the Demised Premises in an amount sufficient to satisfy the indebtednesses secured by the Permitted Mortgage shall be applied toward the cost to repair and restore the Demised Premises or in satisfaction of the indebtednesses secured by the Permitted Mortgage in accordance with the terms and provisions of the Permitted Mortgage. 39 1160171-v1 (c) Provided, further, a Permitted Mortgagee entitled to elect between applying a portion of the property insurance proceeds toward payment of the indebtednesses secured by the Permitted Mortgage or toward repair by the Lessee of the Demised Premises, shall make good faith efforts to give Lessor and Lessee written notice of that election within sixty(60) days of the date of the damage to the Demised Premises or be deemed to agree that all property damage insurance shall be used by the Lessee to repair the Demised Premises in accordance Section 16.1 hereof. (d) Notwithstanding an election by a Permitted Mortgagee to apply a portion of the property insurance proceeds toward payment of the indebtednesses secured by the Permitted Mortgage, all insurance proceeds recovered on account of damage or destruction to the Demised Premises, not used in payment of the indebtednesses secured by the Permitted Mortgage, shall be used by the Lessee to repair and restore the Demised Premises as required by Section 16.1 hereof. SECTION 16.3: RIGHT OF PERMITTED MORTGAGEES TO REPAIR. In case any Permitted Mortgage made by the Lessee shall be in force at the time of any damage to or destruction by fire or otherwise of the Demised Premises, and the Lessee is in default hereunder and its time to cure has expired, any Permitted Mortgagee is authorized, at its sole expense, to repair or restore the Demised Premises under the same terms and conditions of this Lease Agreement as would be applicable in the case of a repairing, restoring or construction by the Lessee. The Permitted Mortgagee so repairing, restoring or constructing the Demised Premises shall, subject to compliance with all the conditions contained in this Article XVI, Article IX and Article IV (to the extent applicable), be subrogated to the rights of the Lessee to all the insurance proceeds payable as a result of the damage or destruction, and shall be entitled to have all insurance proceeds paid out in the same manner in every respect as if said Permitted Mortgagee were Lessee under this Lease Agreement. SECTION 16.4: COLLECTION OF INSURANCE PROCEEDS. The Lessor shall in no event be responsible for the noncollection of any insurance proceeds under this Lease Agreement. SECTION 16.5: UNUSED INSURANCE PROCEEDS AND DEPOSITS. In the event any proceeds of insurance shall remain after completion of restoration or rebuilding, and the Lease is not in default, then the remaining funds shall belong to the Lessee. SECTION 16.6: RECIPROCAL OBLIGATIONS OF LESSOR UPON DAMAGE OR DESTRUCTION OF EXCEPTED PREMISES OR CONVENTION CENTER. Similar to the obligations of Article XVI of this Lease Agreement imposed upon Lessee, Lessor shall, in the event of damage or destruction of the Excepted Premises or Statehouse Convention Center, have the following obligations: (a) In the event of damage by fire or otherwise to the nonstructural elements of the Excepted Premises, including any machinery, fixtures or equipment which are a 40 1160171-v1 part of or located on the Excepted Premises, the Lessor shall within six months after settlement with the insurance carrier and collection of insurance proceeds and as much sooner as is reasonably possible, at the Lessor's sole expense (understanding that Lessor shall use any insurance proceeds available for that purpose and shall not be required to expend funds in excess of insurance proceeds actually received by Lessor plus any Replacement Reserve), either repair or replace the damaged nonstructural elements of the Excepted Premises, including any machinery, fixtures or equipment. In the event of damage by fire or otherwise to the structural elements of the Excepted Premises, the Lessor shall within twenty-four (24) months after the damage and as much sooner as is reasonably possible at the Lessor's sole expense (understanding that Lessor shall use any insurance proceeds available for that purpose and shall not be required to expend funds in excess of insurance proceeds actually received by Lessor plus any Replacement Reserve), repair and restore the Excepted Premises as completely as possible to the condition it was in immediately prior to the damage or, if the Lessor so elects, replace, within thirty (30) months after the damage and as much sooner as is reasonably possible at the Lessor's sole expense (understanding that Lessor shall use any insurance proceeds available for that purpose and shall not be required to expend funds in excess of insurance proceeds actually received by Lessor plus any Replacement Reserve), the Excepted Premises with a premier convention center and IMPROVEMENTS of the same general size and character as the damaged premier convention center and IMPROVEMENTS. In either event the repairing, restoring or replacement shall be done in conformity with and subject continuing standards applicable to a premier convention center. (b) After payment to Lessor of the portion of such insurance applicable to Lessor's furniture, fixtures, equipment, inventory, supplies and business interruption, all insurance proceeds recovered by any party on account of damage or destruction to the Excepted Premises, less the actual costs, if any, to the applicable party relating to recovery shall be applied to payment of the cost to restore the Excepted Premises. (c) In the event any proceeds of insurance shall remain after completion of restoration or rebuilding, and the Lease is not in default, then the remaining funds shall belong to the Lessor. ARTICLE XVII CONCESSIONS SECTION 17.1: CONCESSION GRANT. The Lessor hereby grants to Lessee the exclusive right and obligation throughout the term hereof and any extensions and renewals thereof, but only if the Lessee is not otherwise in default hereunder, to provide all "Concessions" (as hereinafter defined) within the Excepted Premises (including the Statehouse Convention Center), and any expansion thereof physically connected to the Excepted Premises. Lessee will maintain at all times in good standing such permits and licenses necessary and required to sell and serve alcoholic beverages, beer and wine as part of the concession; provided, however, Lessee shall allow such organizations and enterprises as are jointly approved by Lessor and Lessee to provide food service prepared 41 1160171-v1 other than by the Lessee to be served at functions conducted and held in the Excepted Premises. The term "Concessions" shall be deemed to include all vending machines, beverage services, banquet service and all other food, drink, food service and other sales which occur in the Excepted Premises. SECTION 17.2: LESSEE CONCESSION SERVICES. Lessee accepts the obligations associated with the concession grant and in consideration for the grant, Lessee covenants and agrees that throughout the term hereof and any extensions and renewals thereof, Lessee will fully and completely perform and observe the concession granted herein and in furtherance thereof covenants and agrees as follows: (a) To procure and provide adequate vending machines for the Excepted Premises and to keep same in good clean operating condition and adequately stocked at all times; and (b) To meet all reasonable requests and needs to provide and serve food and/or beverages, including alcoholic beverages, beers and wines, for all conventions, group meetings, private parties or assemblies using the Excepted Premises and to prepare, provide and serve all such food and beverages. SECTION 17.3: STANDARDS OF LESSEE CONCESSION SERVICES. Lessee covenants and agrees that it will at all times maintain the same standards of food { and beverage preparation and service at reasonably comparable prices as are applicable to the Demised Premises and that same will at all times conform to the requirements of Article VII. SECTION 17.4: CONCESSION FEE. As additional consideration for the concession granted herein, commencing on the Effective Date Lessee shall pay to Lessor (or its designee, the Little Rock Convention and Visitors Bureau ["LRCVB"]) a Concession Fee of four percent (4%) of the Lessee's gross receipts derived from the sales or service of and from the operations of all Concessions conducted by Lessee within the Excepted Premises, including all sales and service of and from all food, vending and beverage (including alcoholic beverages, beers and wines) and other items sold by Lessee within the Excepted Premises through September 30, 2015. Commencing on October 1, 2015, the Concession Fee shall be five percent (5%) of such gross receipts from Concessions conducted within the Excepted Premises by Lessee during each Lease Year for the remainder of the Term of this Lease Agreement, including any Renewals thereof. SECTION 17.5: PAYMENT AND ACCOUNTING FOR CONCESSION FEE. Throughout the term hereof, and any renewals and extensions thereof, Lessee shall pay to Lessor the Concession Fee monthly, beginning on the 15th day of each succeeding month after the Effective Date based on the applicable receipts for the preceding calendar month. Lessee covenants and agrees to maintain at all times during the term hereof and any and all renewals and extensions thereof, a complete accounting showing all applicable receipts earned by the Lessee from sales and service in the Excepted Premises under the Concession granted hereby and that the applicable receipts upon which the 42 1160171-v1 t monthly payment is based shall be reported to the Lessor along with each such payment in a form as approved by the Lessor and Lessee. Lessee or its Manager covenants and agrees to give Lessor an annual statement certified as correct by its chief financial officer showing the applicable receipts earned by the Lessee upon which the Concession Fee is calculated. Such annual report shall be delivered on or before the 15th day of March of the following calendar year during the term hereof, and such report shall be subject to review and audit by Lessor's designated accountant at Lessor's sole cost and expense. SECTION 17.6: KITCHEN EOUIPMENT. The Former Lessee has heretofore purchased from the Commission the fixtures, systems, equipment and appliances to be used by the Lessee in the performance of its food and beverage services in the Excepted Premises. The Lessor will, from time to time, provide, set up and dismantle a sufficient number of tables, chairs, portable stages and related furniture and equipment, all of good quality and adequately maintained, to serve the needs of patrons of the Excepted Premises. In connection with the Concession to be operated by Lessee, Lessee will set up, dismantle and properly clean within the confines of the Excepted Premises all other equipment and supplies, including but not limited to, dishes, silver and linens which are necessary for the service of food and beverages to the patrons of the Excepted Premises before and after each use by Lessee in connection with its food services. Lessee will also clean-up, sweep and mop (where applicable) all areas where food has been prepared, transported and served after each food service function and cause the removal of all trash and garbage relating to the operation of the concessions. SECTION 17.7: FURNISHING OF SUPPLIES. Except as above set forth, Lessee shall furnish all staff, equipment and supplies, including, but not limited to, dishes, silver and linens which are necessary for the service of food and beverage to the patrons of the Excepted Premises. Lessee shall be responsible for all trash and garbage removal relating to the operation of the Concessions. SECTION 17.8: COSTS OF OPERATIONS. Lessee shall be responsible for and shall pay all costs of operation of the Concession except as specifically set forth elsewhere in this Agreement, including, but not limited to, the costs of leasing or purchasing vending machines and the costs of its own personnel and equipment. All food, beverage and supplies required to be furnished by Lessee hereunder shall be purchased by Lessee in its own name and at its own expense, and all supervisory, clerical and operating personnel necessary to perform Lessee's functions hereunder shall also be employed by Lessee in its own name and at its own expense. Lessee agrees to hold the Lessor harmless of and from any and all costs, expense or damage (including reasonable attorney's fees) in connection with any claim by any party arising out of the operation of the Concessions by Lessee, including any alleged tort or contract liability. SECTION 17.9: COOPERATION IN OPERATION OF CONCESSION. The parties will cooperate in their booking, scheduling, operation and use of the Excepted Premises to facilitate efficient operation of the facilities and achieve maximum revenues through attracting additional conventions and visitors. 43 1160171-v1 I ARTICLE XVIII MECHANICS' LIENS SECTION 18.1: DISCHARGE OF MECHANICS' LIENS. The Lessee shall not suffer or permit any mechanics' liens to be filed against the title to the Demised Premises, nor against the Lessee's interest in the Demised Premises, by reason of work, labor, services or materials supplied or claimed to have been supplied to the Lessee or anyone having a right to possession of the Demised Premises as a result of an agreement with or the assent of the Lessee. Nothing in this Lease Agreement shall be construed as constituting the consent or request of the Lessor, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials for any specific improvement, alteration or repair of the Demised Premises, nor as giving the Lessee the right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanics' and materialmen's liens against the Lessor's interests in the Demised Premises. If any mechanics' and materialmen's lien shall at any time be filed against the Demised Premises, the Lessee shall cause it to be discharged of record within ten days after the date the Lessee has knowledge of its filing. If the Lessee shall fail to discharge such lien within that period, then in addition to any other right or remedy, the Lessor may, but shall not be obligated to, discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court or bonding, or in the event the Lessor shall be entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the lien by the lienor and to pay the amount of the judgment, if any, in favor of the lienor with interest, costs and allowances with the understanding that all amounts paid by the Lessor shall constitute additional Rent due and payable under this Lease Agreement and shall be repaid to the Lessor by the Lessee immediately upon rendition of an invoice or bill by the Lessor. Notwithstanding anything contained herein to the contrary, the Lessee shall not be required to pay or discharge any such lien so long as the Lessee shall in good faith proceed to contest the lien by appropriate proceedings and if the Lessee shall have given notice in writing to the Lessor of its intention to contest the validity of the lien and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to Lessor or other security reasonably satisfactory to Lessor in an amount sufficient to pay one hundred ten percent (110%) of the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it. ARTICLE XIX COVENANT AGAINST WASTE AND INSPECTION SECTION 19.1: WASTE. Except as otherwise permitted by this Lease Agreement, the Lessee covenants not to do or suffer any demolition, waste or damage, disfigurement or injury to the Demised Premises or any part of it, or permit or suffer any overloading of its structural members or floors. 44 1160171-vi SECTION 19.2: INSPECTION OF DEMISED PREMISES. (a) Lessor may inspect the Demised Premises annually, commencing on the 1st day of March of each year during the Term and any Renewal Term to determine compliance with the terms and provisions hereof and the Lessee hereby agrees to fully cooperate with the Lessor during the inspection and will make all parts of the Demised Premises available to the Lessor. Moreover, if the Lessor in good faith reasonably believes that the Lessee has not complied with its obligations hereunder the Lessor shall have the right to inspect the Demised Premises by giving the Lessee at least ten (10) days written notice specifying the non-conforming condition and the Lessee covenants and agrees to fully cooperate with the Lessor and will make all parts of the Demised Premises specified in the aforesaid notice available to the Lessor for inspection. (b) If the Lessor shall serve the Lessee with a notice of the occurrence of an Event of Default hereunder the Lessor shall have the right, upon the expiration of any applicable grace period, to inspect the Demised Premises in order to ascertain whether or not the subject event of default has, in fact, been cured and again the Lessee agrees to fully cooperate with the Lessor and will make all parts of the Demised Premises, which are the subject of the event of default available to the Lessor. (c) Notwithstanding anything contained herein to the contrary, Lessor's right to enter the Demised Premises in accordance with this Section shall be subject to the rights of any guests and tenants of the Lessee who shall not be disturbed; provided, however, that nothing contained herein shall limit Lessor's right or ability to enter the Demised Premises in an emergency in the exercise of its duties as a municipal corporation, including, without limitation in connection with the due exercise of its police power and in satisfying its public safety obligations. SECTION 19.3: INSPECTION OF EXCEPTED PREMISES. Lessee shall have the same rights to inspect the Excepted Premises as are set out in Section 19.2(a) and (b) above for the Demised Premises. SECTION 19.4: EXHIBITION AND INSPECTION OF DEMISED PREMISES. In the event that Lessee does not exercise the applicable renewal option, the Lessor is given the right during the last six months of the Term, with reasonable advance notice to Lessee, to enter the Demised Premises or any part of it, and to exhibit it in connection with the sale or leasing of the Demised Premises. The Lessor and its agents and architects may from time to time during usual business hours inspect any repairs, renewals or other construction on or in the Demised Premises. None of the Lessor's rights under this Section 19.4 shall be exercised in a manner that will interfere unreasonably with the Lessee's business, or the business of Sublessees. Notwithstanding anything contained herein to the contrary, Lessor's right to enter the Demised Premises in accordance with this Section shall be subject to the rights of any guests and tenants of the Lessee. 45 1160171-v1 ARTICLE XX UTILITY CHARGES SECTION 20.1: LESSEE TO PROVIDE AND PAY FOR UTILITIES. Except as provided in Section 20.2 below, the Lessee will pay, or cause to be paid, all proper charges for gas, electricity, light, heat, water and power, for telephone, protective and other communication services, and for all other public or private utility services, which shall be used, rendered or supplied upon or in connection with the Demised Premises or any part of it, at any time during the Term of this Lease Agreement, and the Lessee will comply with all contracts relating to any services and will do all other things required for the maintenance and continuance of all services as are necessary for the proper maintenance and operation of the Demised Premises. Lessor shall charge Lessee for any such utilities and services metered or billed through Lessor at the same rates paid by Lessor and its affiliates without markup or up-charge to Lessee. Lessor shall, at Lessor's expense, cause separate meters for water and electric service used in the Demised Premises to be installed and maintained. The Lessee will also at its sole expense.procure any and all necessary permits, licenses or other authorization required for the lawful and proper installation and maintenance upon the Demised Premises of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any such utilities, services or substitutes to the Demised Premises and the Lessor will cooperate with and assist the Lessee in such endeavor. In case any charge, cost or expense for any of the above mentioned utility services or for any of the other above- mentioned services shall not be paid when due and payable, the Lessor shall have the right, but shall not be obligated, to pay the same, with the understanding that all amounts paid by the Lessor shall be repaid to the Lessor by the Lessee promptly on rendition of a bill by the Lessor. SECTION 20.2: HOT AND CHILLED WATER. (a) Lessor has constructed and operates a plant on the Excepted Premises which produces adequate hot and chilled water (hereinafter referred to as "Hot and Chilled Water") for domestic water consummation and to heat and cool both the Demised Premises and part of the Excepted Premises. The Hot and Chilled Water is furnished by the Lessor to the Lessee, pursuant to estimates of the quantities and specifications supplied by the Lessee to the Lessor, at and to a specified reception location in the Demised Premises. The temperatures and pressures of the Hot and Chilled Water and the point of reception and the size of piping in which the same shall be received shall be as so specified by Lessee and controlled by the Lessor from time to time. (b) Lessor shall promptly (i) install the final metering phase and mechanical control system for the Hot and Chilled Water system serving the Demised Premises and part of the Excepted Premises; and (ii) replace the Conference Center water chiller. Lessor shall cause all such construction to be promptly performed with the total cost to be subject to competitive bids. All such design, engineering, construction, contracting, and testing shall be subject to the mutual approval of Lessor and Lessee. Lessee shall within 45 days following receipt of written notice of completion pay up to 1/2 of the actual cost of such renovations, but Lessee's share shall not exceed Three Hundred Fifty Thousand 46 1160171-v1 Dollars ($350,000.00) in the aggregate All other costs and expenses shall be borne by Lessor. SECTION 20.3: LESSOR NOT LIABLE FOR FAILURE OF UTILITIES. The Lessee hereby releases and agrees that the Lessor shall not be liable for any failure of the telephone, cable, sewer, gas or electric current or any other utility supplied by third parties, or for any injury or damage to persons or property caused by or resulting from gasoline, oil, steam, gas, electricity, utility or hurricane, tornado, flood, wind or similar storms or disturbances, or water, rain, snows or hazardous waste which may leak or flow from the street, sewer, gas mains or from any part of the Demised Premises or the Excepted Premises, or leakage of gasoline or gas from pipes, appliances, sewer or plumbing works therein, or from any other place, or for interference with light or other incorporeal hereditaments, nor shall Lessee be liable to Lessor for such events, or caused by operations by or of any public or quasi-public work, and the foregoing shall apply to the Lessor both in its capacity as a lessor of real property and in its capacity as a municipal corporation. ARTICLE XXI INDEMNIFICATION OF LESSOR SECTION 21.1: GENERAL INDEMNIFICATION OF LESSOR WITHOUT LIMITATION OF ANY OTHER INDEMNITY GIVEN HEREUNDER. The Lessee agrees to indemnify, defend and save harmless the Lessor against and from any and all claims and damages, other than due to the Lessor's gross negligence or willful misconduct, by or on behalf of any person, firm or corporation, arising on or after the Effective Date, arising out of or in any way connected to: (i) the Lessee's performance or non-performance of its obligations hereunder, (ii) the acts or omissions of the Lessee, its employees, agents, guests, patrons and invitees and from the conduct or management of or from any operation, maintenance, renovation, enhancement, repair or replacement, or thing whatsoever done in or about the Demised Premises (iii) any condition of the Demised Premises on or after the Effective Date hereof, or of any vaults, passageways or spaces appurtenant to it under the Lessee's control (except for adverse conditions known to Lessor and not disclosed in the Estoppel Statements attached hereto as Exhibits "E" or "F" and except the Excepted Premises), or arising from any breach or default on the part of the Lessee to be performed, pursuant to the terms of this Lease Agreement, (v) arising from any act or negligence of the Lessee or any of its agents, contractors, servants, employees, guests, patrons, invitees or licensees, or (vi) arising from any accident, injury or damage whatsoever caused to any Person occurring during the term of this Lease Agreement in or on the Demised Premises, and (vii) from and against all costs, counsel and legal fees, expenses and liabilities incurred in any of the aforesaid claims or actions or proceedings brought thereon. In case any action or proceeding be brought against the Lessor by reason of a claim (meaning a claim for damages arising, other than due to the Lessor's gross or wanton negligence or willful misconduct) during the term of this Lease Agreement from any condition of the Demised Premises or any vaults, passageways or spaces appurtenant 47 1160171-v1 to it under the Lessee's control, or on or after the Effective Date hereof, the Lessee upon notice from the Lessor shall at its expense resist or defend the action or proceeding by counsel reasonably satisfactory to the Lessor. If the Lessee be required to defend any action or proceeding pursuant to this Article to which action or proceeding the Lessor is made a party, the Lessor shall also be entitled to appear, defend, or otherwise take part in the matter involved at its election, and at the sole expense of the Lessee (except the Lessee shall not be obligated to pay counsel fees when an insurance carrier is obligated to and does defend the Lessor), by counsel of its own choosing, provided this action by the Lessor does not limit or make void any liability of any insurer of the Lessor or the Lessee in respect to the claim or matter in question. The foregoing agreements of indemnity are in addition to and not by way of limitation of any other covenants in this Lease Agreement to indemnify the Lessor. SECTION 21.2: LESSOR INDEMNITY. To the maximum extent allowed and permitted by the Constitution and laws of the State of Arkansas, Lessor, on the same terms and conditions set out in Section 21.1, indemnifies Lessee from liability and loss or from breaches by Lessor of any obligations imposed upon Lessor pursuant to this Lease Agreement except that any reference to Demised Premises with respect to such Lessee indemnification shall instead refer to the Excepted Premises. Accordingly, the Lessor agrees to indemnify, defend and save harmless the Lessee against and from any and all claims and damages, other than due to the Lessee's gross negligence or willful misconduct, by or on behalf of any person, firm or corporation, arising on or after the Effective Date, arising out of or in any way connected to: (i) the Lessor's performance or non-performance of its obligations hereunder, (ii) the acts or omissions of the Lessor, its employees, agents, guests, patrons and invitees and from the conduct or management of or from any operation, maintenance, renovation, enhancement, repair or replacement, or thing whatsoever done in or about the Excepted Premises (iii) any condition of the Excepted Premises on or after the Effective Date hereof, or of any vaults, passageways or spaces appurtenant to it under the Lessor's control (except for adverse conditions known to Lessee in the Demised Premises and not caused by Lessor), or arising from any breach or default on the part of the Lessor to be performed, pursuant to the terms of this Lease Agreement, (v) arising from any act or negligence of the Lessor or any of its agents, contractors, servants, employees, guests, patrons, invitees or licensees, or (vi) arising from any accident, injury or damage whatsoever caused to any Person occurring during the term of this Lease Agreement in or on the Excepted Premises, and (vii) from and against all costs, counsel and legal fees, expenses and liabilities incurred in any of the aforesaid claims or actions or proceedings brought thereon. In case any action or proceeding be brought against the Lessee by reason of a claim (meaning a claim for damages arising, other than due to the Lessee's gross or wanton negligence or willful misconduct) during the term of this Lease Agreement from any condition of the Excepted Premises or any vaults, passageways or spaces appurtenant to it under the Lessor's control, or on or after the Effective Date hereof, the Lessor upon notice from the Lessee shall at its expense resist or defend the action or proceeding by counsel reasonably satisfactory to the Lessee. If the Lessor be required to defend any action or proceeding pursuant to this Article to which action or 48 1160171-v1 proceeding the Lessee is made a party, the Lessee shall also be entitled to appear, defend, or otherwise take part in the matter involved at its election, and at the sole expense of the Lessor (except the Lessor shall not be obligated to pay counsel fees when an insurance carrier is obligated to and does defend the Lessee), by counsel of its own choosing, provided this action by the Lessee does not limit or make void any liability of any insurer of the Lessee or the Lessor in respect to the claim or matter in question. The foregoing agreements of indemnity are in addition to and not by way of limitation of any other covenants in this Lease Agreement to indemnify the Lessee. SECTION 21.3: REIMBURSEMENT OF COSTS OF OBTAINING POSSESSION. The Lessee covenants to pay, and to indemnify the Lessor against, all costs and charges, including, but not limited to, counsel and legal fees, lawfully and reasonably incurred in obtaining possession of the Demised Premises and establishing the Lessor's title free and clear of this Lease Agreement and any Leasehold Permitted Mortgage upon expiration or earlier termination of this Lease Agreement. ARTICLE XXII INTENTIONALLY DELETED ARTICLE XXIII PLAZA, STREETS AND SIDEWALKS SECTION 23.1: PLAZA, STREETS AND SIDEWALKS. The Lessor does not by this instrument lease to the Lessee any space under, in, upon or above any plaza, street, alley or sidewalk adjoining or adjacent to the Demised Premises, except as specifically included in the Demised Premises. It is further understood that upon the termination of this Lease Agreement in any way, whether by lapse of time or otherwise, all interests of the Lessee and of all parties claiming under the Lessee in any space (as described in this Section, however these interests may have been acquired, shall revert to the Lessor without any compensation being allowed or paid therefor. ARTICLE XXIV CONDEMNATION SECTION 24.1: SEPARATE DETERMINATION OF CONDEMNATION AWARDS. In the event that all or any part of the Demised Premises or any leasehold or other interest in the Demised Premises shall be taken or damaged by the exercise by any governmental authority(including but not limited to the exercise of the power of eminent domain by the Lessor) of the power of eminent domain, then (whether or not this Lease Agreement shall terminate by operation of law upon such exercise of the power of eminent domain) the amount of damages resulting to Lessor and Lessee, respectively, and to their respective interests in and to the Demised Premises, if applicable, and in, to and in connection with this Lease Agreement, by reason of the exercise of the power of eminent domain, shall be separately determined and computed by the court having 49 1160171-v1 jurisdiction and separate awards and judgments with respect to damages to Lessor and Lessee, respectively, and to each of their respective interests, shall be made and entered. In the event that a court shall make a single award without separately determining the respective interests of Lessor and Lessee, and if Lessor, Lessee, and Lessee's Permitted Mortgagee shall not agree in writing as to their respective portions of an award within 20 days after the date of the final determination by the court of the amount of it, Lessor and Lessee agree to submit the matter to the court on stipulation for the purpose of a judgment determinative of their respective shares. Notwithstanding anything contained herein to the contrary, if the full amount of any such condemnation proceeds, including, without limitation, Lessor's share, shall, when added to such amount of the Lessee's share, be sufficient to cause the portion of the Demised Premises not taken pursuant to such condemnation proceedings to be repaired and reconstructed for use in accordance with the requirements of Article VII, then the Lessee shall have the obligation to so repair and reconstruct such remaining portion of the Demised Premises using such condemnation proceeds (including, without limitation, Lessor's share) for use in accordance with Article VII. Provided, however, if the condemnation occurs during the last ten (10) years of the Term or any Renewal Term hereof, then, and in such event, Lessee may at its option, elect to terminate this Lease Agreement by delivering thirty(30) days prior written notice to the Lessor within 90 days following the date of the final determination of the condemnation award, no appeal having been taken, in which event the Lessor's share of any award shall be retained by the Lessor and the Lessee's share of any award shall be retained by the Lessee and, upon such election by the Lessee, this Lease Agreement shall terminate, as if by lapse of time, on the effective date of such notice. At the time of the execution of this Lease Agreement, no condemnation proceedings are contemplated by the Lessor in its municipal capacity with respect to the Demised Premises. SECTION 24.2: DEPOSIT OF CONDEMNATION AWARD WITH LESSOR. Unless the effect of a condemnation proceeding shall be to terminate this Lease Agreement by operation of law or as provided in Section 24.3 below, and except as may be provided in any Permitted Mortgage to, or agreement with, any Permitted Mortgagee described in this Lease Agreement, any award made in respect of the Demised Premises in a condemnation proceeding shall be deposited with the Lessor to be first paid out for the cost of restoring the Demised Premises and accomplishing the work (to the extent the work has not been substantially completed) and for other purposes in accordance with the terms of this Lease Agreement. Unless Lessee elects to exercise any applicable right to terminate the Lease, Lessee shall make additional deposits with Lessor (in lieu of deposits with the construction lender), if any are required, all in accordance with the terms of this Lease Agreement. SECTION 24.3: EFFECT OF TAKING ON RENT. In the event that all or substantially all of the Demised Premises shall be taken by the exercise of the power of eminent domain or sold in lieu thereof by agreement between Lessor, Lessee and those authorized to exercise the power of eminent domain, all rent, Impositions, Rent Tax and other sums or sums of money and other charges provided to be paid by Lessee and related 50 1160171-v1 to particular periods of time shall be apportioned and paid to the date of taking and the Lease Agreement shall terminate as of that date at the option of Lessee. Unless all or substantially all of the Demised Premises are taken by the exercise of the power of eminent domain or by agreement or unless this Lease Agreement is terminated by agreement or by operation of law as a result of the exercise of eminent domain, this Lease Agreement shall continue in full force and effect. Substantially all of the Demised Premises shall be deemed to have been taken if and only if the remaining portion of the Demised Premises are not sufficient to economically justify the continuance of the operation of the Demised Premises as a convention center hotel franchised pursuant to Article VII. In the event all or substantially all of the Excepted Premises is taken by the exercise of the power of eminent domain, or sold in lieu thereof by agreement, Lessee shall have the option to continue this Lease Agreement or terminate this Lease Agreement. Substantially all of the Excepted Premises shall be deemed to have been taken if and only if the remaining portion of the Excepted Premises are not sufficient to economically justify the continuance of the operation of the Excepted Premises pursuant to Article IX. If this Lease Agreement shall continue in effect under the foregoing provisions, then after the date of any taking, this Lease Agreement shall continue in full force and effect without any modification, except that the rent payable by Lessee shall be modified as follows: If the taking may reasonably be expected to cause a reduction in the level of the Lessee's average annual net operating income (that is, Lessee's gross revenues less operating expenses) from those received during the twelve (12) calendar months immediately prior to the taking, the Rent shall be reduced in the same proportion that the anticipated reduction in the Lessee's average annual net operating income, bears to the Lessee's average annual net operating income during the twelve (12) calendar months immediately prior to the taking. SECTION 24.4: RIGHTS OF PERMITTED MORTGAGEE. Lessor and Lessee shall not settle or compromise the amount or division of any award in any condemnation proceeding without any Permitted Mortgagee's consent. Any Permitted Mortgagee of Lessee shall be entitled to appear in any condemnation proceedings and make claim for the share of any award to which Lessee is entitled by the terms of this Article. Except as otherwise provided in any Permitted Mortgage to, or agreement with, any Permitted Mortgagee described in Article VI above, a Permitted Mortgagee shall only be entitled to that portion of Lessee's interest in the condemnation award after disbursements of costs; provided, however, the Permitted Mortgagee shall have first priority, after disbursements of costs, to all condemnation awards applicable to the Demised Premises or to Lessee's leasehold interest. SECTION 24.5: TEMPORARY TAKING. In the event that all or any portion of the Demised Premises shall be taken by the exercise of the right of eminent domain for 51 1160171-v1 governmental use or occupancy for a temporary period, this Lease Agreement shall not terminate and Lessee shall continue to perform and observe all of its obligations (including the obligation to pay rent as provided throughout this Lease Agreement) as though the temporary taking had not occurred except only to the extent that it may be prevented from so doing by the terms of the order of the authority which made the taking or by the conditions resulting from the taking, including the loss of its possession of all or any part of the Demised Premises. In the event the taking of the Demised Premises for governmental occupancy is for a period entirely within the term of this Lease Agreement, then Lessee shall be entitled to receive the entire amount of any award made for the taking, whether paid by way of damages, rent or otherwise. If the period of governmental occupancy extends beyond the termination of the term of this Lease Agreement, the amount of the award, after payment to Lessor of the estimated cost of restoration of the Demised Premises, shall be apportioned between Lessor and Lessee as of the date of the termination. Lessee covenants that if the taking for governmental occupancy is for a period entirely within the term of this Lease Agreement, and if termination of any governmental occupancy occurs prior to 10 years before the termination of this Lease Agreement, Lessee at its sole cost and expense will restore the Demised Premises as nearly as may be reasonably possible to the condition in which it was immediately prior to the taking to the extent of the proceeds of the condemnation. ARTICLE XXV DEFAULT PROVISIONS SECTION 25.1: EVENTS OF DEFAULT. Each of the following events is defined as an "Event of Default": (a) The failure of the Lessee to fully perform and comply with the provisions of Sections 7.1 and 7.2 within the time periods prescribed. (b) The failure of the Lessee to pay any installment of the Annual Rent Amount, any installment of Concession fees and/or any other payments or deposits of money (including the charges for Hot and Chilled Water) when due and the continuance of the failure for a period of 30 days after Lessee's receipt of written notice from the Lessor. (c) The failure of the Lessee to perform any of the other covenants, conditions and agreements of this Lease Agreement on the part of the Lessee to be performed, and the continuance of the failure for a period of 60 days after notice in writing (which notice shall specify the respects in which the Lessor contends that the Lessee has failed to perform any of the covenants, conditions and agreements) from the Lessor to the Lessee shall be an event of default, provided that this 60 day time period shall be reasonably extended if: (i) within 10 days of receipt of the written notice referred in this subsection, Lessee contacts Lessor and establishes to Lessor's reasonable satisfaction that for reasons 52 1160171-v1 beyond Lessee's control the covenant, condition or agreement cannot reasonably be performed within the 60 days of the written notice; (ii) and Lessee is otherwise making good faith efforts to perform the covenant, condition or agreement; and (iii) the reason that the covenant, condition and agreement cannot be performed by the Lessee is not the fact that the Lessee lacks the financial ability to fully perform same; and (iv) the failure to perform the covenant, condition and agreement by the Lessee within the time period of the extension will be an Event of Default. (d) The filing of an application by the Lessee (the term, for this purpose, to include any approved transferee other than a Sublessee of the Lessee's interest in this Lease Agreement): (i) for a consent to the appointment of a receiver, trustee or liquidator of itself or all its assets; (ii) of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing its inability to pay its debts as they come due; (iii) of a general assignment for the benefit of creditors; (iv) of an answer admitting the material allegations of, or its consenting to, or defaulting in answering, a petition filed against it in any bankruptcy proceeding; or (e) The entry of an order, judgment or decree by any court of competent jurisdiction, adjudicating the Lessee a bankrupt, or appointing a receiver, trustee or liquidator of it or of its assets, and this order,judgment or decree continuing unstayed and in effect for any period of 60 consecutive days, or if this Lease Agreement is taken under a writ of execution. *Note: In the event this Lease Agreement is assumed by or assigned to a trustee pursuant to the provisions of the Bankruptcy Reform Act of 1978, as amended, from time to time, (referred to as "Bankruptcy Code") (111 USC 1 et seq.), the trustee shall cure any default under this Lease Agreement and shall provide adequate assurances of future performance of this Lease Agreement as are required by the Bankruptcy Code (including, but not limited to, the requirement of Section 365(b)(1)) (referred to as "Adequate Assurances"). If the trustee does not cure such defaults and provide such Adequate Assurances under the Bankruptcy Code within the applicable time periods provided by the Bankruptcy Code, then this Lease Agreement shall be deemed rejected automatically and the Lessor shall have the right immediately to possession of the Demised Premises immediately and shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach or termination of this Lease Agreement. SECTION 25.2: REMEDIES OF LESSOR IN EVENT OF DEFAULT. Subject to the provisions of Article VI hereof, if an Event of Default as defined in Section 25.1 above and not excused by Force Majeure shall have occurred and remains uncured beyond any applicable grace period therein prescribed; then and thereafter the Lessor may at its option, in addition to other remedies provided by law or in equity, pursue any one or more of the following remedies: (a) The Lessor may terminate this Lease Agreement and the term created, in which event the Lessor may repossess the entire Demised Premises, and be entitled to recover any damages allowed by law. 1160171-v1 53 (b) The Lessor may terminate the Lessee's right of possession and may repossess the entire Demised Premises by forcible entry and detainer suit or otherwise, without demand or notice of any kind to the Lessee (except as above expressly provided for) and without terminating this Lease Agreement, in which event the Lessor may, but shall be under no obligation so to do, relet all or any part of the Demised Premises for Rent and upon terms as shall be satisfactory in the judgment reasonably exercised by the Lessor (including the right to relet the Demised Premises for a term greater or lesser than that remaining under the stated term of this Lease Agreement and the right to relet the Demised Premises as a part of a larger area and the right to change the use made of the Demised Premises). For the purpose of reletting, the Lessor may make any repairs, changes, alterations or additions in or to the Demised Premises that may be reasonably necessary or convenient in the Lessor's judgment reasonably exercised; and if the Lessor shall be unable after a reasonable effort to do so to relet the Demised Premises, or if the Demised Premises are relet and a sufficient sum shall not be realized from reletting after paying all of the costs and expenses of repairs, changes, alterations and additions and the expense of reletting and the collecting of the Rent accruing from it, to satisfy the Rent above provided to be paid, then the Lessee shall pay to the Lessor as damages a sum equal to the amount of the Rent reserved in this Lease Agreement for the period or periods as and when payable pursuant to Article V, or, if the Demised Premises or any part of it has been relet, the Lessee shall satisfy and pay any deficiency upon demand from time to time; and the Lessee acknowledges that the Lessor may file suit to recover any sums falling due under the terms of this Subsection (b) from time to time and that any suit or recovery of any portion due the Lessee shall be no defense to any subsequent action brought for any amount not previously reduced to judgment in favor of the Lessor. (c) In the event of any breach by the Lessee of any of the terms, covenants, agreements, provisions or conditions in this Lease Agreement, the Lessor shall have the right to invoke any right and remedy allowed at law or in equity or by statute or otherwise such as reentry, summary proceedings, and other remedies not provided for in this Lease Agreement. (d) Upon the termination of this Lease Agreement and the term created, or upon the termination of the Lessee's right of possession, whether by lapse of time or at the option of the Lessor, the Lessee will at once surrender possession of the Demised Premises to the Lessor and remove all its personal property from it; and if possession be not immediately surrendered, the Lessor may reenter the Demised Premises and repossess itself of it as of its former estate and remove all Persons and their personal property, using force as may be necessary without being deemed guilty of any manner of trespass or forcible entry or detainer. SECTION 25.3: WAIVERS AND SURRENDERS TO BE IN WRITING. The receipt of any sum due hereunder by the Lessee or the Lessor, with knowledge of any breach of this Lease Agreement by the other or of any default on the part of the other in the observance or performance of any of the conditions, agreements or covenants of this Lease Agreement, shall not be deemed to be a waiver of any provision of this Lease 54 1160171-v1 Agreement. No failure on the part of a party to enforce any covenant or provision contained in this Lease Agreement, or any waiver of any right under it, unless in writing, shall discharge or invalidate such covenant or provision or affect the right of a party to enforce it in the event of any subsequent breach or default. No covenant or condition of this Lease Agreement shall be deemed to have been waived unless the waiver is in writing, signed by a party or its agent duly authorized in writing. Consent of a party to any act or matter must be in writing and shall apply only with respect to the particular act or matter to which the consent is given and shall not relieve the other from the obligation, wherever required under this Lease Agreement, to obtain the consent to any other act or matter. The receipt by the Lessor of any Rent or any other sum of money or any other consideration paid by the Lessee after the termination, in any manner, of the term demised, shall not reinstate, continue or extend the term demised, unless agreed to in writing and signed by the Lessor and Lessee. SECTION 25.4: LESSEE'S REMEDIES IN THE EVENT OF LESSOR'S DEFAULT. The failure of the Lessor to perform any of the covenants, conditions and agreements of this Lease Agreement on the part of the Lessor to be performed not excused by Force Majeure, and the continuance of the failure for a period of 60 days after notice in writing (which notice shall specify the respects in which the Lessee contends that the Lessor has failed to perform any of the covenants, conditions and agreements) from the Lessee to the Lessor shall be an Event of Default, provided that this 60 day time period shall be reasonably extended if: (i) within 10 days of receipt of the written notice referred in this subsection, Lessor contacts Lessee and establishes to Lessee's satisfaction that for reasons beyond Lessor's control the covenant, condition or agreement cannot reasonably be performed within the 60 days of the written notice; (ii) and Lessor is otherwise making good faith efforts to perform the covenant, condition or agreement; and (iii) the reason that the covenant, condition and agreement cannot be performed by the Lessor is not the fact that the Lessor lacks the financial ability to fully perform same; and (iv) the failure to perform the covenant, condition and agreement by the Lessor within the time period of the extension will be an Event of Default. Upon occurrence of an Event of Default as defined in this Section 25.4, which remains uncured upon the expiration of any applicable grace period, then and in that event the Lessee may, at its option, exercise any one of the following remedies: (i) terminate this Lease Agreement, or (ii) pursue and invoke any right and remedy allowed at law or in equity or by statute or otherwise. ARTICLE XXVI INTENTIONALLY DELETED ARTICLE XXVII INVALIDITY OF PARTICULAR PROVISIONS SECTION 27.1: INVALIDITY OF PROVISIONS. If any provision of this Lease Agreement or the application of it to any Person or circumstances shall to any extent be invalid or unenforceable, the remainder of this Lease Agreement, or the 55 1160171-v1 application of such provision to Persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected, and each provision of this Lease Agreement shall be valid and be enforced to the fullest extent permitted by law. ARTICLE XXVIII QUIET ENJOYMENT SECTION 28.1: OUIET ENJOYMENT, The Lessor acknowledges that the Lessee, upon paying the Rent and all Impositions and other charges, and performing all the covenants and conditions of this Lease Agreement, shall (subject to the matters and things of record and the Lessor's rights specified in this Lease Agreement) lawfully and quietly occupy the Demised Premises during the term of this Lease Agreement without hindrance or molestation by Lessor or any persons claiming under the Lessor. ARTICLE XXIX LESSOR'S TITLE AND LIEN SECTION 29.1: TITLE PARAMOUNT. The Lessor shall have title to the Demised Premises and, upon termination of this Lease Agreement, the remainder or residual interest in the Demised Premises paramount to all others, subject only to the rights of the Permitted Mortgagee. SECTION 29.2: LESSEE NOT TO ENCUMBER LESSOR'S INTEREST. The Lessee shall have no right or power to and shall not in any way encumber the title of the Lessor in and to the Demised Premises or the title of the Lessor's remainder or residual interest in the Demised Premises. The fee simple estate of the Lessor in the Demised Premises and the interest of the Lessor in the Demised Premises shall not be in any way subject to any claim by way of lien or otherwise, whether claimed by operation of law or by virtue of any express or implied lease or contract or other instrument made by the Lessee and any claim to the lien or otherwise upon the Demised Premises arising from any act or omission of the Lessee shall accrue only against the leasehold estate of the Lessee in the Demised Premises and shall in all respects be subject to the paramount rights of the Lessor in the Demised Premises and the Lessor's remainder or residual interest in the Demised Premises. ARTICLE XXX PLATS SECTION 30.1: PLATS. If a party in the reasonable exercise of its judgment deems it necessary or desirable from time to time to have recorded a subdivision or resubdivision plat or plats relating to some or all of the Demised Premises (and which may include other land) the Lessee or Lessor and any Permitted Mortgagee of the Lessee when requested to do so by the Lessor or Lessee shall join in the signing of any such plat 56 1160171-v1 provided the same does not materially impair the rights of the Lessee, or any Permitted Mortgagee of the Lessee, the plat and recordation thereof to be at the requesting parties' expense. ARTICLE XXXI LIMITATION OF LIABILITY SECTION 31.1: LIABILITY AFTER OUSTER OF LESSEE. In no case shall the Lessor be liable under any express or implied covenant of this Lease Agreement for any damages whatsoever for the Lessee's ouster by a third party except that loss, if any, provided for by the next succeeding sentence. In the event the Lessee shall be evicted from possession of and/or be prohibited from performing the Renovation and Enhancement Work (in the ordinary course of construction) upon the Demised Premises by reason of any matter not of record, the Lessee shall not be required to pay any Rent or perform its other covenants under this Lease Agreement while it is so deprived of possession of the Demised Premises. The Lessor shall incur no liability by the ouster beyond the loss of Rent while or because the Lessee is so deprived of possession of the Demised Premises. If the Lessee has been so deprived of possession by reason of any such defect in title not of record for a period in excess of 365 days then Lessee may, in addition and at its option, terminate this Lease Agreement. ARTICLE XXXII ESTOPPEL CERTIFICATES SECTION 32.1: ESTOPPEL CERTIFICATES. The Lessor and the Lessee each agree at any time and from time to time, so long as this Lease Agreement shall remain in effect, upon not less than ten days prior written request by the other party, to execute, acknowledge and deliver to the other party a statement in writing, addressed to such Person or Persons that the requesting party request, certifying that this Lease Agreement is unmodified and in full force and effect or if modified, stating the modifications and describing the instrument so modifying this Lease Agreement, and the dates to which the Rent and other charges have been paid in advance, if any, and stating whether any default under the terms of this Lease Agreement is known by, or any notice of default has been served by, the party giving the certificate, it being intended that any statement delivered pursuant to this Article may be relied upon by any prospective purchaser of the Lessor's fee simple interest in the Demised Premises or of the Lessor's remainder interest in the Demised Premises or may be relied upon by any Permitted Mortgagee or assignee of any Permitted Mortgage. 57 1160171-v1 ARTICLE XXXIII REMEDIES CUMULATIVE SECTION 33.1: REMEDIES CUMULATIVE. No remedy conferred upon or reserved to the Lessor or Lessee shall be considered exclusive of any other remedy, but shall be cumulative and shall be in addition to every other remedy given under this Lease Agreement or existing at law or in equity or by statute; and every power and remedy given by this Lease Agreement to the Lessor or Lessee may be exercised from time to time and as often as occasion may arise or as may be deemed expedient by the Lessor or Lessee. No delay or omission of Lessor or Lessee to exercise any right or power arising from any default shall impair any right or power, nor shall it be construed to be a waiver of any default or any acquiescence in it. SECTION 33.2: WAIVER OF REMEDIES NOT TO BE INFERRED. No waiver of any breach of any of the covenants or conditions of this Lease Agreement shall be construed to be a waiver of any other breach or to be a waiver of, acquiescence in, or consent to any further or succeeding breach of the same or similar covenant or condition. SECTION 33.3: RIGHT TO TERMINATE NOT WAIVED. Neither the rights given to receive, sue for or distrain from any Rent,moneys or other payments, or to enforce any of the terms of this Lease Agreement, or to prevent the breach or nonobservance of it, nor the exercise of any such right or of any other right or remedy shall in any way impair or toll the right or power of the parties to declare ended the term granted and to terminate this Lease Agreement because of any Event of Default. ARTICLE XXXIV SURRENDER AND HOLDING OVER SECTION 34.1: SURRENDER AT END OF TERM. On the last day of the last Lease Year of the original term or any renewal term, or on the earlier termination of the term, the Lessee shall peaceably and quietly leave, surrender and deliver the entire Demised Premises to the Lessor in good, substantial and sufficient repair, order and condition, subject to among other things, casualty losses, acts of God and condemnations, reasonable use, wear and tear excepted, free and clear of any and all mortgages, liens, encumbrances and claims, except those permitted herein. At the time of the surrender the Lessee shall also surrender any and all tenant security deposits and rent advances of sublessees made pursuant to Article XXXV; provided, however, that Lessee shall be entitled to any and all revenues respecting the Demised Premises accruing prior to the date of termination of this Lease Agreement, any deposits made by Lessee with respect to any utility or other services provided to the Demised Premises and any deposits made by Lessee with respect to any leased furniture, fixtures, intellectual property and other personal property located at or used in connection with the Demised Premises; Lessee hereby covenants and agrees to reasonably cooperate, and to cause any other tenant or occupant of the Lessee after the term hereof to cooperate with Lessor in causing such sums promptly to be turned over to Lessor. If the Demised Premises are not so 58 1160171-v1 surrendered, the Lessee shall repay the Lessor for all expenses of repossession which the Lessor shall incur by reason of it, and in addition the Lessee shall indemnify, defend and hold harmless the Lessor from and against all claims made by any succeeding Lessee against the Lessor, founded upon delay occasioned by the failure of the Lessee to surrender the Demised Premises. SECTION 34.2: RIGHTS UPON HOLDING OVER. At the termination of this Lease Agreement by lapse of time or otherwise, the Lessee shall yield up immediate possession of the Demised Premises to the Lessor and, failing so to do, agrees, at the option of the Lessor, to pay to the Lessor for the whole time such possession is withheld a sum per day equal to two hundred percent times 1/365th of the aggregate of the Rent paid or payable to Lessor for the current Lease Agreement Year as set forth in Article V. The provisions of this Article shall not be held to be a waiver by the Lessor of any right of entry or reentry as set forth in this Lease Agreement, nor shall the receipt of a sum, or any other act in apparent affirmance of the tenancy, operate as a waiver of the right to terminate this Lease Agreement and the term granted for the period still unexpired for any breach of the Lessee under this Lease Agreement. ARTICLE XXXV SUBLEASES SECTION 35.1: LIMITATIONS ON SUBLEASES. All Subleases entered into demising all or any part of the Demised Premises shall be expressly subject and subordinate to this Lease Agreement and shall contain covenants on the part of the Sublessee that (a) neither the termination of this Lease Agreement nor the institution of any suit, action or proceeding (other than that of eminent domain) by Lessor to recover possession of the Demised Premises or to realize possession of Lessee's leasehold estate shall, by operation of law or otherwise, result in the cancellation or termination of the Sublease, or of the obligations of the Sublessee, and (b) if Lessor terminates this Lease Agreement, subject to the rights of any Permitted Mortgagee, any prior assignment of Lessee's interest in the Sublease or the rents due under the Sublease shall automatically terminate and Lessor shall be sublessor under the Sublease and the Sublessee will be deemed to have attorned to Lessor for the balance of the term of the Sublease. If any Sublessee is not in default of its Sublease, Lessor shall not have the right to disturb its possession or terminate the Sublease other than by action in eminent domain. If requested to do so by Lessee or any Sublessee, Lessor will deliver a written certificate reciting the terms contained in the last sentence. No Sublease entered into by Lessee demising any part of the Demised Premises shall permit or require the payment of rent in advance for a period longer than three months or the application of any security deposit in payment of rent in advance, nor shall any Sublease (including all agreements made in connection therewith) contain any provision permitting the Sublessee to set off against the rent due under the Lease 59 1160171-v1 Agreement any claims against Lessee. Lessee agrees not to accept or receipt for any advance payment of rent which is not permitted as provided. Lessor acknowledges that neither the termination of this Lease Agreement nor the institution of any suit, action or proceeding (other than that of eminent domain) by Lessor to recover possession of the Demised Premises or to realize possession of Lessee's leasehold estate shall, by operation of law or otherwise, result in the cancellation or termination of the Sublease, or of the obligations of the Sublessee. Upon Lessor's succeeding to the interest of Lessee under any Sublease, unless Lessor shall have actually received from Lessee any security deposit or advance rental of a Sublessee, Lessor shall not be liable for the refund or application of any such security deposit or advance rental. SECTION 35.2: SUBLEASE DATA. All Subleases shall contain a covenant on the part of the Sublessee to the effect that after Lessee shall have been notified of an Event of Default under this Lease Agreement and provided the Sublessee is given notice of the default, the Sublease shall not be terminated or canceled (except on account of Sublessee's default) without the written consent of Lessor, and that the Sublease shall not be surrendered, modified or amended so as to reduce, directly or indirectly, either the term of the Sublease or the rent payable without the written consent of Lessor. No Sublease shall be made for a term extending beyond the last day of the term of this Lease Agreement or contain terms or concessions inconsistent with prevailing market terms. SECTION 35.3: ASSIGNMENT OF LEASE AGREEMENTS TO LESSOR FOR SECURITY. Subject to the rights of any Permitted Mortgagee described herein, upon and Event of Default by Lessee pursuant to this Lease Agreement, Lessee assigns to the Lessor all Subleases and subtenancies and/or license and concession agreements to be made on the Demised Premises, as well as all rents or other sums of money which may become due and payable to the Lessee, and all security at any time deposited for the payment of rent and the performance of any other terms of Subleases, subtenancies and/or license and concession agreements, but the effective date of assignment and of Lessor's rights thereunder shall be the date of the happening of an Event of Default under the provisions of this Lease Agreement. From and after any Event of Default and until it is cured, any Subleases or subtenancies and license and concession agreements may not be canceled or modified without the written consent of the Lessor, and any cancellation or modification, whether by the Lessee or Permitted Mortgagee, shall be of no force or effect. Upon the curing of any Event of Default, the assignment shall no longer be effective unless and until the happening of another Event of Default. Notwithstanding anything to the contrary contained in this Section the assignment by Lessee to Lessor shall be junior to any similar assignments of Subleases and other agreements and rentals or other monies to any Permitted Mortgagee of Lessee. No collection or attempted collection of the rent by the Lessor from any assignee, subtenant or other occupant shall be deemed a waiver of any of the provisions of this Article XXXV including, without limitation, any applicable covenant against assignment, mortgage or hypothecation of this Lease Agreement, or a release of Lessee from the further performance of its obligations under this Lease Agreement. Lessor is authorized 60 1160171-v1 and directed, after first deducting any and all costs and expenses of collection, to apply all rents that it may collect under the assignment towards the maintenance and operation of the Demised Premises, the performance of Lessee's covenants, and the payment to Lessor of any and all sums that may be due under any provisions. In the event that an assignment becomes effective and operative as above provided, Lessee authorizes Lessor, in the name of Lessee, or otherwise as Lessor may elect, subject to the rights of any Permitted Mortgagee, to take all necessary steps and legal proceedings (whether by nonjudicial proceedings, ejectment or other legal or equitable suit or proceedings) to collect the rent and enforce the performance of the terms, covenants and conditions of the Subleases and subtenancies and/or license and concession agreements, or to restrain their breach, or in the event of a breach, to secure the removal of any Sublessees, subtenants, licensees or concessionaires from the Demised Premises and/or all of any part of it; and for this purpose Lessee consents to the use of its name by Lessor. ARTICLE XXXVI FINANCIAL REPORT SECTION 36.1: FINANCIAL REPORT. The Lessee or Lessee's Manager shall prepare and maintain statements of gross income relating to the operation of all of the Demised Premises certified as correct by its chief financial officer and prepared in accord with generally accepted accounting procedures customarily used by Lessee. At all reasonable times during the term hereof, subject to the consent of the franchisor, Lessee shall permit the Lessor and/or Lessor's agents access to and the ability to inspect the statements of gross income which it is required to prepare and maintain pursuant to the terms hereof; provided, however, Lessor and Lessor's agents shall maintain the confidentiality of all such financial reports and statements, except where disclosure is required by law (such disclosure to be limited to only such portions of such reports or statements required to be disclosed by law) and Lessee shall not be required to furnish any information in violation of the franchisor's requirements or restrictions or which may otherwise be exempt from public disclosure under applicable laws. ARTICLE XXXVII MODIFICATION SECTION 37.1: MODIFICATION. None of the covenants, terms or conditions of this Lease Agreement to be kept and performed by either party to this Lease Agreement shall in any manner be waived, modified, changed or abandoned except by a written instrument duly signed, acknowledged and delivered by both Lessor and Lessee. 61 > 1160171-v1 ARTICLE XXXVIII CONVEYANCE BY LESSEE TO LESSOR SECTION 38.1: CONVEYANCE BY LESSEE TO LESSOR. Effective upon the termination of this Lease Agreement, whether by passage of time or otherwise, the Lessee, in consideration of the granting of this Lease Agreement by the Lessor to the Lessee, grants and conveys unto the Lessor and Lessor's legal representatives and assigns forever the Demised Premises, this conveyance to be free and clear of all liens and encumbrances other than applicable building and zoning ordinances, easements now of record, and the lien of any real estate taxes assessed but not yet due and payable. ARTICLE XXXIX APPLICABLE LAW SECTION 39.1: LAW. This Lease Agreement shall be construed and enforced in accordance with the laws of the State of Arkansas. ARTICLE XL NOTICES ° SECTION 40.1: MANNER OF MAILING NOTICES. In every case where under any of the provisions of this Lease Agreement or otherwise it shall or may become necessary or desirable to make or give any declaration, demand or notice of any kind to the Lessor or the Lessee, it shall be sufficient if a copy of any declaration, demand or notice is sent by United States certified or registered mail, postage prepaid, return receipt requested, or, nationally recognized overnight courier service or fax followed by ordinary mail confirmation copy addressed: If to Lessor, at: City of Little Rock City Hall 500 West Markham Little Rock, AR 72201 Attention: Mayor 62 1160171-v1 with a copy to: City Attorney City of Little Rock 300 City Hall 500 West Markham Little Rock, AR 72201 and if to City Advertising and Promotion Commission of Little Rock, Arkansas, at: Little Rock Advertising and Promotion Commission 7 Statehouse Plaza Little Rock,Arkansas 72201 Attention: Executive Director with a copy to: Harry Hamlin, Esq. Mitchell, Williams, Selig, Gates & Woodyard, PLLC 425 W. Capitol Avenue, Suite 1800 Little Rock, AR 72201 and if to Lessee, at: FWH II Little Rock, LLC do Fairwood Capital, LLC 850 Ridge Lake Blvd., Suite 220 Memphis, TN 38120 Attention: Robert M. Solmson with a copy to: Fairwood Investors, II, LLC do Fairwood Capital, LLC 850 Ridge Lake Blvd., Suite 220 Memphis, TN 38120 Attention: Robert M. Solmson with copies to: Lee Harkavy, Esq. Wyatt, Tarrant & Combs, LLP 1715 Aaron Brenner Drive, Suite 800 Memphis, TN 38120 63 1160171-v1 { John William Spivey, III, Esq. Wright, Lindsey&Jennings LLP 200 West Capitol Avenue, Suite 2300 Little Rock, AR 72201 Fairwood Capital, LLC 850 Ridge Lake Blvd., Suite 220 Memphis, TN 38120 Attention: Robert M. Solmson Fairwood Capital, LLC 850 Ridge Lake Blvd., Suite 220 Memphis, TN 38120 Attention: Tom Defreece Lessor and Lessee agree that any declaration, demand or notice mailed to the Lessor or Lessee as aforesaid shall be deemed to have been delivered on the date of any receipt given which shows delivery has occurred. Each party from time to time may change its address for purposes of receiving declarations or notices by giving notice of the changed address, to become effective ten days following the giving of notice. SECTION 40.2: NOTICE TO PERMITTED MORTGAGEES. All notices, demands or requests which may be required to be given by the Lessor or the Lessee to any Permitted Mortgagee shall be sent as set out in Section 40.1. Copies of all notices shall simultaneously be sent to the other of the Lessor or the Lessee, as the case may be. SECTION 40.3: SUFFICIENCY OF SERVICE. Service of any demand or notice as in this Article provided shall be sufficient for all purposes. ARTICLE XLI MISCELLANEOUS PROVISIONS SECTION 41.1: CAPTIONS. The captions of this Lease Agreement and the index preceding it are for convenience and reference only and in no way define, limit or describe the scope or intent of this Lease Agreement, nor in any way affect this Lease Agreement. SECTION 41.2: CONDITIONS AND COVENANTS. All the provisions of this Lease Agreement shall be deemed and construed to be "conditions" as well as "covenants," as though the words specifically expressing or importing covenants and conditions were used in each separate provision. SECTION 41.3: ENTIRE AGREEMENT., There are no oral or other agreements contrary to the subject matter of this Lease Agreement, and this Lease Agreement contains the entire agreement between the parties and shall not be modified in 64 1160171-v1 any manner except by an instrument in writing executed by the parties or their respective successors or assigns in interest. SECTION 41.4: TIME OF ESSENCE AS TO COVENANTS OF LEASE AGREEMENT. Time is of the essence as to the covenants in this Lease Agreement. SECTION 41.5: INDEMNIFICATIONS SURVIVE. The indemnifications herein contained shall survive and be and remain in full force and effect, notwithstanding any assignment hereof and the termination of this Lease Agreement, whether by the passage of time or otherwise. SECTION 41.6: NO THIRD PARTY BENEFICIARIES. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person, firm or corporation, other than the parties hereto, their successors and assigns, any benefits, rights or remedies under or by reason of this Agreement. SECTION 41.7: SEVERABILITY. Should any provision of this Agreement be declared to be invalid by any court of competent jurisdiction, such provision shall be severed from and shall not affect the validity of the remaining provisions of this Agreement. SECTION 41.8: CONSTRUCTION. Each Party and counsel for each party have reviewed this Agreement and, accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. ARTICLE XLII SHORT FORM LEASE AGREEMENT SECTION 42.1: SHORT FORM LEASE AGREEMENT. This Lease Agreement shall not be recorded, but the parties agree, at the request of either of them, to execute and deliver a Memorandum of Lease Agreement for recording, containing the names of the parties, the legal description of the Demised Premises, the term of the Lease Agreement, the covenant set forth in Section 43.3, the Right of First Refusal set forth in Section 43.4, and any other pertinent provisions for which notice should be given to third parties. The Lessee agrees to bear the cost of recording the Short Form Lease Agreement. 1160171-v1 65 ARTICLE XLIII COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES AND TO RUN WITH THE DEMISED PREMISES SECTION 43.1: COVENANTS TO RUN WITH THE DEMISED PREMISES. All covenants, agreements conditions and undertakings in this Lease Agreement shall extend and inure to the benefit of and be binding upon the successors and assigns of each of the parties, the same as if they were in every case named and expressed, and they shall be construed as covenants running with the Demised Premises. Wherever in this Lease Agreement reference is made to any of the parties, it shall be held to include and apply to, wherever applicable, also the officers, directors, successors and assigns of each party, the same as if in each and every case so expressed. SECTION 43.2: SIGNAGE AND BANNERS. Lessee (and, subject to Lessee's prior written approval, Lessee's sub-lessees) shall have the right during the Term and any Renewal Terms of this Lease Agreement to erect such signage and banners as may be required by the franchisor of the Approved Hotel on the interior and exterior of the Demised Premises or the Excepted Premises, provided such signage and banners comply with all applicable laws, ordinances and regulations. Lessor agrees that it will act in good faith and use its reasonable best efforts to assist Lessee in obtaining any required approvals or authorizations with respect to any signage or banners required at the Approved Hotel in order to comply with all applicable laws, ordinances and regulations. SECTION 43.3: PROPERTY ALONG RIVER BANK. The City owns certain real property as described on attached Exhibit "G" which is located immediately North of the Demised Premises bounded by the Arkansas River. The City agrees that no buildings shall be constructed on the real property lying North of the Demised Premises and South of the Arkansas River between the Broadway Bridge on the West and the Main Street Bridge on the East without the Lessee's prior written consent, which consent shall not be unreasonably withheld, and it is agreed that this shall be a covenant running with the Demised Premises. SECTION 43.4: PARKING LOT. The Lessor (or its designee the Little Rock Advertising & Promotion Commission ["LRAPC"]) also owns a certain parking lot defined as the Northeast Quarter of Block 2, City of Little Rock and more particularly described on attached Exhibit "H" (the "Parking Lot Parcel"). Provided that there is no uncured default or circumstance which with the passage of time would lead to a default under this Lease Agreement, Lessor hereby grants to Lessee the right of first refusal (the "Right of First Refusal") to acquire and/or lease the Parking Lot Parcel, but only in the event that (i) Lessor (or the LRAPC) receives a bona fide offer (the "Offer") during the term (including any renewal periods) of the Lease Agreement to sell or lease the Parking Lot Parcel for the purpose of(a) development of a hotel, or (b) development of a parking structure or parking lot, or portion thereof, for use in conjunction with a hotel, and (ii) the Lessor desires to accept such Offer. In the event of a mixed-use development that includes a hotel or parking structure, this Right of First Refusal shall extend only to that 66 1160171-v1 portion of the property which is proposed to be developed as a hotel or a parking structure for use in conjunction with a hotel or as excess parking capacity in a parking structure beyond such parking as required and dedicated to the mixed-use development, provided, however, in the event such mixed use development is proposed, Lessee may elect to participate in the development of any such parking structure as an owner or lessee of parking spaces in lieu of exercising the Right of First Refusal. Notwithstanding the foregoing, in any event that any of the Parking Lot Parcel is intended.to be used for the purpose of developing any parking lot or parking structure (whether such triggers the Right of First Refusal or not), Lessor shall inform Lessee promptly of such intent and allow Lessee the opportunity to discuss with Lessor or its assigns Lessee's potential involvement in such parking lot or parking structure. Within thirty (30) days after receiving any Offer, Lessor shall deliver to Lessee written notice of such Offer, accompanied by a copy of the Offer. Lessee shall have thirty (30) days after receipt of such written notice from Lessor to elect to exercise its Right of First Refusal, and if Lessee exercises such Right of First Refusal, a written sales contract or lease shall be promptly entered into between Lessor and Lessee on materially identical terms and conditions as contained in the Offer. Closing of such transaction shall be in accordance with the provisions of such sales contract or lease on materially identical terms and conditions as contained in the Offer, provided however that in any event such closing will occur no sooner than sixty (60) days following Lessee's exercise of the Right of First Refusal, unless the Lessor and Lessee otherwise mutually agree. In the event that Lessee does exercise this Right of First Refusal and Lessee plans to develop parking on the site, then Lessee shall offer to LRCVB (but not to any of LRCVB's assigns or designees, without Lessee's prior written consent, such consent not to be unreasonably withheld) up to ten (10) reserved parking spaces, on a complimentary basis, during the Term of this Lease Agreement in any such parking facility owned and/or operated on the site by Lessee or its designated representative. ARTICLE XLIV GENERAL PROVISIONS SECTION 44.1: CONFLICT OF INTEREST. No member, official, or employee of the Lessor shall have any personal interest, direct or indirect, in this Lease Agreement, nor shall any member, official, or employee participate in any decision relating to this Lease Agreement which affects his or her personal interests or the interests of any other entity or Person in which he or she is, directly, or indirectly, interested. No member, official, or employee of the Lessor shall be personally liable to the Lessee, its successors and assigns, or anyone claiming by, through or under the Lessee or any successor in interest to the Demised Premises, in the event of any default or breach by the Lessor or for any amount which may become due to the Lessee, its successors and assigns, or any successor in interest to the Demised Premises, or on any obligation under the terms of this Lease Agreement. 67 1160171-v1 SECTION 44.2: BROKERAGE. The Lessee and the Lessor each represent and warrant to the other that neither has dealt with any broker or fmder in connection with the transactions contemplated and each agrees to indemnify, defend and hold the other harmless of and from any and all manner of claims, including, but not limited to, reasonable attorneys' fees and expenses, incurred by the other party and arising out of any claim by any broker or finder if it is ultimately determined that either party has dealt in contravention of its representation and warranty. SECTION 44.3: ASSIGNABILITY AND BINDING EFFECTS. Subject to all provisions respecting the rights of assignment of Subleasing, this Lease Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. SECTION 44.4: DUPLICATE ORIGINALS/COUNTERPARTS. This Lease Agreement may be executed in any number of copies, each of which shall constitute an original counterpart of this Lease Agreement. The warranties, representations, agreements and undertakings shall not be deemed to have been made for the benefit of any Person or entity, other than the Lessor or Lessee. SECTION 44.5: EOUAL EMPLOYMENT OPPORTUNITIES, The Lessee agrees that during the term or terms hereof, it will not discriminate against any employee or applicant for employment because of race, religion, creed, color or national origin and will take affirmative steps to assure that applicants are employed and that employees are treated during employment without regard to race, religion, creed, color or national origin. SECTION 44.6: DECLARATION OF TERMINATION. With respect to Lessor's rights to obtain possession of the Demised Premises or to revest title in itself with respect to the leasehold estate of the Lessee in the Demised Premises the Lessor shall have the right to institute such actions or proceedings as it may deem desirable to effectuate its rights including, without limitation, the right to execute and record or file with the Recorder of Deeds of Pulaski County, Arkansas, a written declaration of the termination of all rights and title of Lessee in the Demised Premises and the revesting of any title in the Lessor as specifically provided in this Lease Agreement. SECTION 44.7: AUTHORITY. (a) The Lessor represents to the Lessee as follows: (1) That Lessor has, and has exercised, the required corporate and municipal power and authority and has complied with all applicable Legal Requirements necessary to adopt, execute and deliver this Lease Agreement and perform its obligations; (2) That this Lease Agreement has been duly executed and delivered by Lessor and constitutes a valid and binding obligation of the Lessor enforceable in accordance with its terms, conditions, and provisions; and 68 1160171-v1 f?_ (b) Lessor specifically represents that the execution and delivery of this Lease Agreement has been duly authorized and is in accordance with and pursuant to all applicable laws and ordinances (including without limitation those of the Lessor) and the Constitution of the State of Arkansas and is effective to vest in the Lessee the rights, titles, interests and ownership provided for and due Lessor under the terms, conditions and provisions of this Lease Agreement. (c) The Lessee represents to the Lessor as follows: (1) That Lessee has, and has exercised, the required limited liability company power and authority and has complied with all applicable Legal Requirements necessary to adopt, execute and deliver this Lease Agreement and perform its obligations; and, (2) That this Lease Agreement has been duly executed and delivered by Lessee and constitutes a valid and binding obligation of the Lessee enforceable in accordance with its terms, conditions, and provisions. (d) Lessor does hereby reaffirm its nomination, appointment and delegation to the Little Rock Advertising and Promotion Commission and to its Executive Director the responsibilities and duty to act on behalf of the Lessor in all matters involving the obligations of the Lessor hereunder, including but not limited to, performing each and every one of the Lessor's obligations hereunder and exercising each and every option and enforceable right that the Lessor has or is granted herein and enforcing same and in furtherance of this delegation, the Lessor does hereby duly constitute, appoint and empower the Little Rock Advertising and Promotion Commission to act for and on behalf of the City of Little Rock, Lessor hereunder. SIGNATURES ON FOLLOWING PAGE 69 1160171-v1 !.. In witness, the Lessor has caused this Lease Agreement to be executed in its name and on its behalf by the Mayor and attested to by the City Clerk of the City of Little Rock, Pulaski County, Arkansas, and the Lessee has signed as of the date and year first above written. LESSOR: CITY OF LITTLE ROCK, • •NSAS BY: ///de TITLE: MAYOR •�EI I „\,.‘ • auttunrrrrru '., IrfIIUt11t11L [Signature page of the City of Little Rock] 70 Executed for certain purposes as agent: LITTLE ROCK ADVERTISING AND PROMOTI COMMISSION `: BY C1. Kr,,. ..__,-+r� Warren Sim on,\ hlinnan ATTEST: 2/L-1E b41--- E [Signature page of Little Rock Advertising and Promotion Commission] 71 F LESSEE: FWH II LITTLE ROCK, LLC, a Delaware limited liability company: BY: Fairwood Hospitality Investors II, L.L.C., its Member BY: Fairwood Investors II, LLC, its Manager By: Robert M.tohnson President ATTEST: /Amp r [Signature page of FWH; Fairwood Hospitality; Fairwood Investors] 72 ACKNOWLEDGMENT STATE OF ARKANSAS ) )§§ COUNTY OF PULASKI ) On this day before me, the undersigned being a Notary Public of and for the County and State aforesaid, personally appeared Mark Stodola and Susan Langley, who acknowledged themselves to be the Mayor and City Clerk, respectively, of the City of Little Rock, Arkansas, a city of the first class, and that they, as such officers, being authorized so to do, executed the foregoing instrument for the consideration, uses and purposes therein contained, by signing the name of the city of first class by themselves as such officers. WITNESS My hand and official seal on this day of February, 2013. OWL Pk2 - Notarl/Jublic C) My commission expires: an-e 10, q0W (SEAL) TOYA ROBINSON PULASKI COUNTY NOTARY PUBUC-ARKANSAS 10,Cann talar+Eagaire&Jurre 1O 2020 CzowrissicrtNs.12277434 73 ACKNOWLEDGMENT STATE OF ARKANSAS ) )§§ COUNTY OF PULASKI ) On this day, before me, the undersigned being a Notary Public of and for the County and State aforesaid, personally appeared WARREN SIMPSON, who acknowledged himself to be the CHAIRMAN of the LITTLE ROCK ADVERTISING AND PROMOTION COMMISSION, and that he, as such officer, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the city of first class by himself as such officer. IN WITNESS WHEREOF, I hereunto set my hand and official seal on this /-ZK day of February, 2013. rotary Public My commission expires: JAMIE HUTCHINS SALINE COUNTY NOVA'? -,v„v o‘o My Commleson Expires April 10,2018 ......._(„4"1/4731.,plon No.12385044 74 ACKNOWLEDGMENT STATE OF 7 'rI ) COUNTY OF S4 b ))§§ On this day personally appeared before the undersigned, a Notary Public within and for the County and State aforesaid, duly qualified, commissioned and acting, Rolp .€+-Wl. S t).,brr.) to me well known, who stated that he is the �rr�► de1•+k' of Fairwood Investors II, LLC, the Manager of Fairwood Hospitality Investors II, L.L.C., the Member of FWH II LITTLE ROCK, LLC, a Delaware limited liability company, and is duly authorized in his capacity to execute the foregoing instrument for and in the name and on behalf of Fairwood Investors II, LLC, as the Manager of Fairwood Hospitality Investors II, L.L.C., as the Member of FWH II LITTLE ROCK, LLC, a Delaware limited liability company, and further stated and acknowledged that he had so signed, executed and delivered this instrument for the consideration, uses and purposes therein mentioned by signing the name of the limited liability company by himself as said limited liability company officer. WITNESS My hand and official seal on this? rxday of February, 2013. Notary Public My commission expires: gs \ pK. N,0 TATE din OF TENNESSEE (SEAL) NOTARY PUBLfC .� *)'OF S*- MY COMMISSION EXPIRES AUGUST 16,2014 75 f LIST OF EXHIBITS Exhibit"A" Conference Center Exhibit"B" Demised Premises Exhibit"C" Excepted Premises/Statehouse Convention Center Exhibit "D" Assignment, Assumption, and First Amendment to Parking Lot Lease Agreements and Reaffirmation and Extension of Ashley Street Parking Franchise Exhibit"E" Estoppel Statement from Lessor and Lessor's Former Lessee Regarding Demised Premises Exhibit "F" Estoppel Statement regarding hazardous or other adverse conditions of Demised Premises Exhibit"G" Property along River Bank and Parking Lot—Restrictive Covenants Parcel Exhibit"H" Parking Lot Parcel—NE 'A of Block 2, City of Little Rock Right of First Refusal Parcel EXHIBIT A CONFERENCE CENTER 1160171-v1 EXHIBIT "A" Conference Center Parcel No.26: Conference Center Riverfront Park Level Air rights between mean sea level elevations 265.32 and 277.79 for lease area as described below: An area located in the Southeast 1/4, Northeast 1/4, Section 3, Township 1 North, Range 12 West, Pulaski County,Arkansas, being more particularly described as follows: Commencing at the Southeast corner of Block 79 of the Original City of Little Rock; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 123.89 feet; thence North 00 degrees 16 minutes 08 seconds East, 404.38 feet to the Point of Beginning; thence easterly 31.00 feet to a set cotton picker spindle on the Convention Center Tract 2 East property line; thence North 00 degrees 12 minutes 36 seconds East, 60.70 feet along said East property line to a chiseled "X" in a concrete sidewalk; thence westerly 43 .37 feet to a concrete walkway; thence along a curve to the left for a distance of 208.88 feet to a point 10.00 feet North of an existing brick wall, said curve having a radius of 72.88 feet and a central angle of 180 degrees 00 minutes 00 seconds; thence westerly along a line 10.0 feet North of and parallel to brick wall 123.64 feet to a set 1/2 inch rebar on the Convention Center Tract 2 West property line; thence South 00 degrees 12 minutes 36 seconds West, 60.70 feet along said west property line to a set 1/2 inch rebar; thence easterly 12.47 feet to the corner of a brick wall; thence easterly along the brick wall 267.91 feet to the Point of Beginning. Parcel No. 27: Conference Center Intermediate Level Air rights between mean sea level elevations 277.79 and 290.32 for lease area as described below: An area located in the Southeast 1/4, Northeast 1/4, Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas, being more particularly described as follows: Commencing at the Southeast corner of Block 79 of the Original City of Little Rock; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 123.89 feet; thence North 00 degrees 16 minutes 08 seconds East, 404.38 feet to the Point of Beginning; thence continuing North 00 degrees 16 minutes 08 seconds East, 3.37 feet to a corner; thence northerly along the exterior face of a brick building the following bearings and distances; northerly 26.60 feet to a corner; easterly 15.50 feet to a corner; northerly 14.02 feet to a corner; westerly 17.98 feet to a corner; northerly 4.38 feet to a corner; easterly 2.48 feet to a corner; northerly 2.33 feet to a corner; westerly 12.16 feet to a corner; thence along the exterior face of a brick wall along a curve to the left for a distance of 228.96 feet to a corner, said curve having a radius of 72.88 feet and a central angle of 180 degrees 00 minutes 00 seconds; thence westerly 110.70 feet; thence southerly 50.70 feet to a corner; thence easterly along the exterior face of a brick building 267.91 feet to the Point of Beginning. All as shown in that certain survey prepared by McCaskill & Associates, Inc. dated February 21, 2013. A-1 EXHIBIT "B" DEMISED PREMISES EXHIBIT"B" Demised Premises Parcel No. 1: La Hann Level - Service Area (Hotel) Air rights between mean sea level elevations 271.03 and 290.32 for demised premises as described below: An area lying in Lots 1 and 2 of Fractional Block 80, Lot 6 of Block 79, and part of the abandoned right of way of North Louisiana Street between West Markham Street and La Harpe Boulevard, all in the Original City of Little Rock, Pulaski County, Arkansas, being more particularly described as follows: Commencing at the Southeast corner of said block 79; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 434.03 feet; thence North 00 degrees 16 minutes 08 seconds East, 178.98 feet to a point of beginning on the Southeast corner of a loading dock at the Southwest corner of a concrete block wall; thence northerly along the West edge of a column line 98.36 feet to an "X" chiseled in a concrete paved truck access area; thence easterly 93.67 feet to a point on the northerly exterior face of a concrete block wall; thence southerly through the concrete block wall 0.65 feet to an interior room corner, thence continuing southerly 23.37 feet along the westerly face of a partition wall to an interior room corner; thence continuing southerly 0.60 feet through a partition wall to the southerly face of a partition wall, thence easterly along the face of the partition wall 18.47 feet to the westerly face of a column; thence southerly along the face of the column 1.67 feet to the Southwest corner of the column; thence easterly along the southerly face of the column 2.03 feet to a point on the westerly face of a partition wall; thence southerly along the westerly face of the wall 22.27 feet to a point on the interior of a column; thence easterly 0.60 feet to the intersection of the easterly face of the column and the southerly face of partition wall; thence easterly along the southerly face of the wall, 11.37 feet to the westerly face of a column; thence continuing easterly 2.63 feet through the column to the intersection of the easterly face of the column and the southerly face of a partition wall; thence continuing easterly 15.35 feet along the southerly face of the wall to an interior room corner on the westerly face of a concrete block wall; thence continuing easterly 0.65, feet through the concrete block wall to the easterly face of the concrete block wall; thence southerly along the easterly face of the concrete block wall 63.88 feet; thence westerly 0.65 feet through the concrete block wall to the northerly face of a partition wall; thence continuing westerly along the face of the partition wall 82.41 feet to an interior room corner; thence northerly along the easterly face of partition wall 6.50 feet, thence westerly 0.60 feet through the partition wall to the northerly face of a partition wall; thence continuing westerly along a partition wall 22.42 feet to a partition wall corner; thence northerly along the easterly face of a partition wall 9.46 feet to an interior wall corner, thence westerly 0.60 feet through the partition wall to a partition wall corner; thence westerly along the southerly face of a partition wall 9.00 feet to the easterly face of a concrete block wall; thence southerly along the easterly face of the concrete block wall 1.88 feet to the Southeast corner of the concrete block wall; thence westerly along the southerly face of the concrete block wall 27.92 feet to the corner of a non-structural sheetrock column; thence continuing westerly along the southerly face of the concrete block wall 1.17 feet to the Point of Beginning. B-1 1160171-v1 Parcel No. 2: La Harpe Level - Elevator Pit Exterior (Hotel) Air rights between mean sea level elevations 271.03 and 290.32 for demised premises as described below: An area lying in Lots 2 and 3 of Fractional Block 80 of the Original City of Little Rock, Pulaski County,Arkansas, being more particularly described as follows: Commencing at the Southeast corner of Block 79 of the Original City of Little Rock; thence North 89 degrees, 43 minutes, 52 seconds West along the North right of way line of Markham Street 464.31 feet; thence North 00 degrees, 16 minutes, 08 seconds East, 171.75 feet to a Point of Beginning at the westernmost exterior concrete block wall corner of an elevator pit; thence North 45 degrees East along the exterior face of a concrete block wall 19.57 feet to the northernmost corner of the elevator pit; thence South 45 degrees East along the exterior face of a concrete block wall 3.67 feet to a point on the exterior face of a concrete wall; thence North 45 degrees East along the exterior face of the concrete wall 1.01 feet to a corner; thence South 45 degrees East along the exterior face of a concrete wall 6.05 feet to the easternmost corner of the elevator pit; thence South 45 degrees West along the exterior face of a concrete wall 21.65 feet to the southernmost corner of the elevator pit; thence North 45 degrees West along a concrete wall 6.02 feet to the exterior corner of a concrete wall; thence North 45 degrees East along the exterior face of a concrete wall 1.07 feet to a point on the exterior face of a concrete block wall; thence North 45 degrees West along the exterior face of the concrete block wall 3.70 feet to the Point of Beginning. Parcel No. 3: La Harpe Level- Elevator Pit Interior (Hotel) Air rights between mean sea level elevations 271.03 and 290.32 for demised premises as described below: An area lying in Lot 2 of Fractional Block 80 and the East-West Alleyway of Fractional Block 80 of the Original City of Little Rock, Pulaski County, Arkansas, being more particularly described as follows: Commencing at the Southeast corner of Block 79 of the Original City of Little Rock; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 446.70 feet; thence North 00 degrees 16 minutes 08 seconds East, 153.97 feet to a Point of Beginning at the westernmost interior concrete corner of an elevator pit; thence North 45 degrees East along a concrete wall of the elevator pit 19.66 feet to the northernmost interior corner of the elevator pit; thence South 45 degrees East along a concrete wall 4.00 feet to a corner; thence continuing South 45 degrees East through a concrete wall 1.19 feet to an interior corner; thence continuing South 45 degrees East along the interior concrete wall 3.83 feet to a concrete block interior corner; thence southerly along the concrete block wall 4.21 feet to a corner; thence South 45 degrees West along the interior concrete block wall 13.79 feet to a corner; thence westerly along the interior concrete block wall 4.18 feet to a corner; thence North 45 degrees West along the interior concrete block and concrete wall 3.88 feet to a corner; thence continuing North 45 degrees West through an interior concrete wall 1.18 feet to a B-2 corner; thence continuing North 45 degrees West along the concrete wall 3.97 feet to the Point of Beginning. Parcel No.4: La Harpe Level—Lobby Fountain Access (Hotel) Air rights between mean sea level elevations 271.03 and 290.32 for demised premises as described below: An area lying in Lots 11 and 12 of Fractional Block 80 and the East-West alleyway of Fractional Block 80 of the Original City of Little Rock, Pulaski County, Arkansas; being more particularly described as follows: Commencing at the Southeast corner of Block 79, of the Original City of Little Rock; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 424.94 feet; thence North 00 degrees 16 minutes 08 seconds East 140.50 feet to a Point of Beginning on the face of a partition wall; thence northerly 0.60 feet through the partition wall to a corner of the partition wall; thence northerly along the exterior face of the partition wall 2.65 feet to a corner; thence North 45 degrees East along the exterior face of a partition wall 17.62 feet to a corner; thence easterly along the exterior face of a partition wall 11.77 feet; thence southerly 0.60 feet through a partition wall to an interior partition wall corner; thence continuing southerly along the East face of a partition wall 13.95 feet to a corner; thence continuing southerly 0.60 feet through a partition wall to its southerly face; thence westerly along the wall 24.27 feet to the Point of Beginning. Parcel No. 5: Markham Level -Lobby. Lounge and Food Services (Hotel) Air rights between mean sea level elevations 290.32 and 308.32 for demised premises as described below: A tract of land situated in Lot 1, part of Lots 2, 3, 10, 11 and 12, all of the East-West Alleyway of Fractional Block 80, and part of Lots 6 and 7 of Block 79 and the East-West Alleyway of Block 79, all in the Original City of Little Rock, Pulaski County, Arkansas; a part of the right of way of the Missouri Pacific Railroad; a part of the right of way of La Harpe Boulevard and part of the abandoned right of way of North Louisiana Street between West Markham Street and La Harpe Boulevard: being more particularly described as follows: Commencing at the Southeast corner of said Block 79; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 481.50 feet; thence North 00 degrees 16 minutes 08 seconds East, 41.65 feet to a Point of Beginning at the Southwest corner of an exterior brick wall; thence North along the exterior face of a bricked column line 22938 feet to an exterior corner of the brick wall; thence East along the brick wall 7.01 feet to a corner of the brick wall; thence North 45 degrees East along the brick wall 17.87 feet to a corner: thence northerly along the brick wall 13.30 feet to a corner; thence easterly along the brick wall 26.60 feet to a corner; thence North 45 degrees East along the brick wall 60.71 feet to a corner; thence northerly along the brick wall 90.82 feet to a northerly edge of the upper terrace to a corner; thence easterly along the brick wall 84.30 feet to a corner; thence northerly along the brick wall 2 3 .6 5 feet to the North face of a brick wall; thence easterly along the North face of the brick wall 13.75 feet; thence southerly along the westerly end of a brick wall B-3 2.47 feet to a corner; thence easterly along the brick wall 5.34 feet to a corner; thence southerly along a concrete block wall 9.74 feet; thence westerly along a brick wall 5.35 feet to a corner; thence southerly along a brick wall 21.99 feet to a corner; thence easterly along a brick wall 5.90 feet to a point on the exterior face of a door frame; thence southerly along the westerly face of the door frame 11.80 feet to a brick wall; thence westerly along a brick wall 2.34 feet to a corner; thence southerly along a brick wall 4.36 feet to a corner; thence easterly along the brick wall 2.34 feet to the exterior face of a door frame; thence southerly along the westerly face of the door frame 8.41 feet to the point of intersection of the doorway with the northerly face of a partition wall projected westerly; thence easterly along the projected face of the partition wall and the northerly face of the partition wall 7.25 feet; thence southerly along the westerly face of a column line 83.30 feet; thence westerly, parallel to and 3.5 feet South of a glass wall for a distance of 11.02 feet; thence South 45 degrees West, parallel to and 3.5 feet southeasterly from a glass wall for a distance of 7.72 feet; thence westerly, parallel to and 2.0 feet South of a partition wall for a distance of 10.27 feet; thence southerly across a foyer and through a column in the center of the foyer 22.00 feet; thence easterly, parallel to and 2.0 feet North of a partition wall for a distance of 10.25 feet; thence South 45 degrees East, parallel to and 3.5 feet northeasterly of a glass wall for distance of 8.0 feet; thence easterly parallel to and 3.5 feet northerly of a glass wall for a distance of 10.75 feet; thence southerly along the westerly face of a column line 104.87 feet to a partition wall; thence easterly along the partition wall 2.33 feet to a corner; thence southerly along the partition wall 33.75 feet to a corner; thence South 27 degrees 27 minutes West across the "Great Lobby" 33.36 feet a point on the interior of a column at the intersection with the easterly projection of the southerly face of a gutter line above the Markham Street level; thence westerly along the southerly gutter line and its projections easterly for distance of 67.01 feet; thence South 45 degrees West along the southeasterly gutter line 40.10 feet; thence southerly continuing along the easterly gutter line 11.50 feet; thence westerly along the center of the column line 28.92 feet to the easterly face of a brick wall; thence southerly along the brick wall 14.69 feet to a corner; thence westerly along a brick wall 16.54 feet to a corner; thence southerly along the brick wall 14.76 feet to a corner of the brick wall; thence westerly along the brick wall 47.48 feet to the Point of Beginning. Parcel No. 6: Markham Level - Retail (Hotel) Air rights between mean sea level elevations 290.32 and 308.32 for demised premises as described below: An area located in the Southeast Quarter, Northeast Quarter, Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas, and comprising part of the right of way of the Missouri Pacific Railroad and part of the right of way of La Harpe Boulevard; being more particularly described as follows: Commencing at the Southeast corner of Block 79 of the Original City of Little Rock; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 227.55 feet; thence North 00 degrees 16 minutes 08 seconds East 307.74 feet to a Point of Beginning situated on the exterior face of a brick wall; thence northerly along the exterior face of the brick wall 100.52 feet; thence West through the brick wall, along the northerly face of a column and along the southerly face of a partition wall 32.32 feet to the easterly face of a column line extended; thence southerly along the face of the column line B-4 87.25 feet to the intersection of the easterly face of the column line with the southerly face of a partition wall column projected westerly; thence easterly along the projected southerly face of the column 19.80 feet; thence South 45 degrees East, 18.20 feet along the northwesterly projection of a partition wall column, along the southwesterly face of the partition wall column, and through a brick wall to the Point of Beginning. Parcel No. 7: Markham Level - Escalator and Stairs (Hotel) Air rights between mean sea level elevations 290.32 and 308.32 for demised premises as described below: An area located in Lots 5 and 6 of Block 79 of the Original City of Little Rock, and in La Harpe Boulevard, all in the Southeast Quarter, Northeast Quarter of Section 3, Township 1 North, Range 12 West, Pulaski County,Arkansas; being more particularly described as follows: Commencing at the Southeast corner of Block 79; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 268.81 feet; thence North 00 degrees 16 minutes 08 seconds East, 287.08 feet to a Point of Beginning situated at the Southwest corner of a partition wall; thence northerly along the partition wall 18.60 feet to a corner; thence easterly along the partition wall 29.20 feet; thence southerly 18.60 feet; thence westerly 29.20 feet to the Point of Beginning. Parcel No. 8: Markham Level - Retail (Hotel) Air rights between mean sea level elevations 290.32 and 308.32 for demised premises as described below: An area located in Lots 5 and 6 of Block 79 of the Original City of Little Rock, Pulaski County, Arkansas; being more particularly described as follows: Commencing at the Southeast corner of said Block 79, thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 213.96 feet; thence North 00 degrees 16 minutes 08 seconds East, 258.46 feet to a Point of Beginning situated at the intersection of a concrete block wall and a partition wall; thence northerly along the easterly face of the partition wall and through a partition wall 22.20 feet to its northerly face; thence westerly along the northerly face of the partition wall 18.78 feet; thence South 45 degrees West, parallel to and 3.6 feet northwesterly of a glass wall 11.94 feet; thence westerly, parallel to and 2.0 feet North of a partition wall for a distance of 15.30 feet; thence southerly to and then along the partition wall 13.80 feet; thence easterly through the partition wall and along the northerly face of a concrete block wall 42.60 feet to the Point of Beginning. And also, beginning at the above described Point of Beginning, thence northerly along the easterly face of a partition wall and through a partition wall 22.20 feet to the northerly face of the corridor wall; thence easterly along the northerly face of the South corridor wall 13.70 feet to the end wall of the corridor; thence northerly 5.0 feet to the South face of a brick wall; thence easterly along the South face of the brick wall 9.2 feet; thence southerly along the West face of a brick wall 27.20 feet; thence westerly along the North face of a block wall 22.9 feet to the Point of Beginning. B-5 Parcel No. 10: Ballroom Level (Hotel) Air rights between the top of a floor slab at mean sea level elevation 308.32 and the center of a floor slab at elevation 329.25 for demised premises as described below: An area located in the Southeast Quarter, Northeast Quarter, Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas, and comprising all of Lot 1 and part of Lots 2, 3, 10, 11 and 12 and all of the East-West Alleyway of Fractional Block 80, and part of Lots 4, 5, 6 and 7 and part of the East-West Alleyway of Block 79, all of the Original City of Little Rock; part of the right of way of the Missouri Pacific Railroad; part of the right of way of La Harpe Boulevard; part of the abandoned right of way of North Louisiana Street between West Markham Street and La Harpe Boulevard, and part of the abandoned right of way of Ashley Street between La Harpe and West Markham; more particularly described as follows: Commencing at the Southeast corner of said Block 79; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 481.50 feet; thence North 00 degrees 16 minutes 08 seconds East 41.65 feet to a Point of Beginning situated on an exterior Southwest corner of a brick wall; thence northerly along the exterior face of a bricked column line 229.72 feet to a corner; thence easterly along the brick wall 6.90 feet to a corner; thence North 45 degrees East along the brick wall 17.87 feet to a corner; thence northerly along the exterior face of the brick wall 13.30 feet to a corner; thence easterly along the brick wall 26.60 feet to a corner; thence North 45 degrees East along the brick wall 60.71 feet to a corner; thence northerly along the brick wall 68.27 feet; thence easterly along a brick wall 164.86 feet to a corner; thence southerly along the brick wall 99.71 feet to a corner; thence southeasterly along the brick wall 9.67 feet to a corner; thence southerly along the brick wall 19.72 feet to a corner; thence easterly along the brick wall 27.97 feet to a corner; thence southerly along the brick wall 25.17 feet to a corner; thence westerly along the exterior face of the brick wall 62.85 feet to a corner; thence continuing westerly through the exterior wall and along the southernmost edge of a balcony for a total distance of 16.37 feet to a corner of the balcony; thence continuing along the outermost edges of the balcony southerly 93.90 feet and westerly 5.15 feet to the easterly wall of a stair enclosure; thence southerly along the projection of the wall of the stair enclosure 52.21 feet through the sloping glass wall to a point above the southernmost face of the gutter line at the toe of the sloping glass wall; thence westerly along the southerly face of the. gutter 85.40 feet to a corner of the gutter; thence South 45 degrees West along the southeasterly face of the gutter 40.10 feet to a corner of the canopy; thence southerly along the easterly face of the gutter 41.10 feet; thence westerly to and along the exterior face of a brick wall 92.94 feet to the Point of Beginning. Parcel No. 11: Ballroom Level -Skvwalk (Hotel) Air rights between mean sea level elevations 305.68 and 319.39 for demised premises as described below: A portion of Lot 11 of Fractional Block 80 of the Original City of Little Rock, Pulaski County, Arkansas, being more particularly described as follows: B-6 Commencing at the Southeast corner of Block 79 of the said Original City of Little Rock; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 424.38 feet to a Point of Beginning situated on the easternmost edge of a skywalk; thence North 00 degrees 23 minutes 21 seconds East along the easternmost edge of the skywalk 41.52 feet to the face of a brick building wall; thence North 88 degrees 53 minutes 46 seconds West along the brick wall 8.96 feet to a point on the Northwest corner of the skywalk; thence South 00 degrees 15 minutes 15 seconds West along the westernmost edge of the skywalk 41.65 feet to the North right of way line of West Markham Street; thence continuing South 00 degrees 15 minutes 15 seconds West along the edge of the skywalk 60 feet to the South right of way line of Markham Street; thence South 89 degrees 43 minutes 52 seconds East along the South right of way line of West Markham Street 8.72 feet to the easternmost edge of the skywalk; thence North 00 degrees 23 minutes 21 seconds East along the edge of the skywalk 60 feet to the Point of Beginning. Parcel No. 14: Hotel Guest Tower- All Levels (Hotell Air rights above elevation 329.25 for demised premises as described below: An area lying in Block 79, Fractional Block 80 and in the abandoned right of way of North Louisiana Street between West Markham Street and La Harpe Boulevard, all in the Original City of Little Rock, Pulaski County,Arkansas being more particularly described as follows: ( Commencing at the Southeast corner of said Block 79, thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 481.50 feet; thence North 00 degrees 16 minutes 08 seconds East, 56.15 feet to a Point of Beginning at the corner of the exterior edge of a brick tower; thence northerly along the westerly exterior edge of the tower 101.40 feet to a corner; thence easterly 12.7 feet to a point on the face of the brick wall where a circular wall intersects at the upper two floor levels; thence along the circular wall or its projections along a radius of 35 feet and arc of 55.0 feet to the westerly face of a brick wall; thence along the outermost perimeter of the tower structure the following courses and distances: Northerly 12.7 feet; easterly 157.55 feet; southerly 46.3 feet; westerly 14.1 feet; southerly 18.15 feet; westerly 111.4 feet; South 45 degrees West, 21.45 feet; southerly 83.2 feet; westerly 35.65 feet; northerly 5.5 feet; westerly 14.1 feet; northerly 9.0 feet; and westerly 14.6 feet to the Point of Beginning. Parcel No. 15: West Markham Street-Air Rights Air rights over a portion of West Markham Street between mean sea level elevation 304.33 and 319.39 for the tract of land described below: A tract of land located in the Southeast Quarter, Northeast Quarter, Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas, said tract being a portion of the right of way of West Markham Street adjacent to Fractional Block 80 and Block 81, Original City of Little Rock,said tract being more particularly described as follows: Commencing at the Southwest corner of said Fractional Block 80; thence along said North right of way line of West Markham Street South 89 degrees 43 minutes 52 seconds East,45.75 feet to the Point of Beginning; thence continue along said North right of way line of West Markham B-7 Street South 89 degrees 43 minutes 52 seconds East, 12.00 feet to a point; thence South 00 degrees 16 minutes 08 seconds West, 60.00 feet to a point, said point being on the South right of way line of West Markham Street; thence along the said South right of way line of West Markham Street North 89 degrees 43 minutes 52 seconds West, 12.00 feet to a point; thence North 00 degrees 16 minutes 08 seconds East, 60.00 feet to the Point of Beginning. Together with easements and cross easements for access, ingress, egress, support and maintenance over, through and across the following described tracts, as described on attached sheets as Convention Center Tract 1;Convention Center Tract 2; La Harpe Boulevard Air Rights and Easement Tract; Missouri Pacific Railroad - Air Rights; West Markham Street - air rights; North Main Street- Franchise Tract; West Markham Street - Franchise Tract and Ashley Street - Franchise Tract. Parcel No. 19: West Markham Street Franchise Tract A tract of land located in the Southeast Quarter, Northeast Quarter, Section 3, Township 1 North, Range 12 West,Pulaski County,Arkansas, said tract being a portion of the right of way of West Markham Street, South of and adjacent to a portion of Fractional Block 80 and Block 79,Original City of Little Rock,said tract being more particularly described as follows: Commencing at the Southwest corner of said Fractional Block 80; thence along said North right of way line of West Markham Street South 89 degrees 43 minutes 52 seconds East, 43.67 feet to the Point of Beginning; thence continue along said North right of way line of West Markham Street South 89 degrees 43 minutes 52 seconds East, 311.50 feet to a point; thence South 00 degrees 16 minutes 08 seconds, West 9.50 feet to a point; thence along a line that is 9.50 feet South of and parallel to said North right of way line of West Markham Street North 89 degrees 43 minutes 52 seconds West, 311.50 feet to a point; thence North 00 degrees 16 minutes 08 seconds East, 9.50 feet to the Point of Beginning. Parcel No. 23: Kitchen Area (Hotel) Air rights between mean sea level elevations 302.61 (finished floor elevation) and 317.65 to 318.32 (bottom of sloping roof deck) for lease are described below: An area located in the Southeast 1/4 Northeast 1/4, Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas, said area being a part of Lot 7, Block 1,Original City of Little Rock, and part of the abandoned right of way of North Main Street, said area being more particularly described as follows: Commencing at a found 1/2 inch rebar at the intersection of the North right of way line of West Markham Street and the East right of way line of Ashley Street, said point being 2.00 feet North 89 degrees 43 minutes 52 seconds West of the Original Southwest corner of Fractional Block 80, Original City of Little Rock; thence South 89 degrees 43 minutes 52 seconds East, 460.58 feet along the North right of way line of West Markham Street; thence North 00 degrees 16 minutes 08 seconds East 17.1 feet to the Southwest corner of an overhead exterior wall; thence northerly along the exterior wall 1.17 feet to the centerline of an East-West column line westerly extended; thence easterly along said East-West column line 55.5 feet to the centerline of a column; thence northerly along the centerline of a North-South column line 13.67 feet; B-8 thence easterly 1.00 feet to an interior wall corner and the Point of Beginning; thence along the interior face of a wall the following bearings and distances; northerly 23.33 feet to a corner; westerly 14.25 feet to a corner; northerly 11.42 feet to a corner; westerly 12.67 feet to a corner; northerly 22.17 feet to a corner; easterly 91.83, feet to a corner; southerly 17.83 feet to a corner; South 85 degrees 30 minutes West, 38.36 feet to a point in the face of a wall; southerly 6.08 feet to a corner; westerly 26.67 feet to the Point of Beginning. Parcel No. 25: Vacated Ashley Street R.O.W. (Hotel) The East 12 inches of the right of way of Ashley Street between Markham Street and La Harpe Boulevard in the City of Little Rock, Pulaski County, Arkansas as vacated by Ordinance No. 13,846 recorded August 19, 1980 as Instrument No. 80-35197 and the West 12 inches of the East 24 inches of the right of way of Ashley Street between Markham Street and LaHarpe Boulevard as vacated by Ordinance No. 14,428 recorded April 8, 1983 as Instrument No. 83- 16677. Parcel No. 26: Conference Center Riverfront Park Level (Hotel) Air rights between mean sea level elevations 265.32 and 277.79 for lease area as described below: An area located in the Southeast 1/4, Northeast 1/4, Section 3, Township 1 North, Range 12 West, Pulaski County,Arkansas, being more particularly described as follows: Commencing at the Southeast corner of Block 79 of the Original City of Little Rock; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 123.89 feet; thence North 00 degrees 16 minutes 08 seconds East, 404.38 feet to the Point of Beginning; thence easterly 31.00 feet to a set cotton picker spindle on the Convention Center Tract 2 East property line; thence North 00 degrees 12 minutes 36 seconds East, 60.70 feet along said East property line to a chiseled "X" in a concrete sidewalk; thence westerly 43 .37 feet to a concrete walkway; thence along a curve to the left for a distance of 208.88 feet to a point 10.00 feet North of an existing brick wall, said curve having a radius of 72.88 feet and a central angle of 180 degrees 00 minutes 00 seconds; thence westerly along a line 10.0 feet North of and parallel to brick wall 123.64 feet to a set 1/2 inch rebar on the Convention Center Tract 2 West property line; thence South 00 degrees 12 minutes 36 seconds West, 60.70 feet along said west property line to a set 1/2 inch rebar; thence easterly 12.47 feet to the corner of a brick wall; thence easterly along the brick wall 267.91 feet to the Point of Beginning. Parcel No. 27: Conference Center Intermediate Level (Hotel) Air rights between mean sea level elevations 277.79 and 290.32 for lease area as described below: An area located in the Southeast 1/4, Northeast 1/4, Section 3, Township 1 North, Range 12 West, Pulaski County,Arkansas,being more particularly described as follows: Commencing at the Southeast corner of Block 79 of the Original City of Little Rock; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 123.89 feet; thence North 00 degrees 16 minutes 08 seconds East, 404.38 feet B-9 to the Point of Beginning; thence continuing North 00 degrees 16 minutes 08 seconds East, 3.37 feet to a corner; thence northerly along the exterior face of a brick building the following bearings and distances; northerly 26.60 feet to a corner; easterly 15.50 feet to a corner; northerly 14.02 feet to a corner; westerly 17.98 feet to a corner; northerly 4.38 feet to a corner; easterly 2.48 feet to a corner; northerly 2.33 feet to a corner; westerly 12.16 feet to a corner; thence along the exterior face of a brick wall along a curve to the left for a distance of 228.96 feet to a corner, said curve having a radius of 72.88 feet and a central angle of 180 degrees 00 minutes 00 seconds; thence westerly 110.70 feet; thence southerly 50.70 feet to a corner; thence easterly along the exterior face of a brick building 267.91 feet to the Point of Beginning. Parcel No. 28: Markham Level-Plaza Public Lobby, Promenade and Lobby (Hotel) Air rights between mean sea level elevations 290.32 and 308.32 for lease area as described below; promenade and public lobby height varies, extending above elevation 308.32 to existing ceiling structure; plaza area bounded only by lower elevation 290.32. A tract of land located in the Southeast 1/4, Northeast 1/4, Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas, said tract comprising part of Lots 10, 11, 12, Fractional Block 80, and part of Lots 6 and 7, Block 79, all in the Original City of Little Rock, Pulaski County, Arkansas; a part of the abandoned right of way of North Louisiana Street between West Markham Street and La Harpe Boulevard; a part of the right of way of La Harpe Boulevard; a part of the right of way of the Union Pacific Railroad; and an area North of and adjacent to stated area of right of way of said Union Pacific Railroad; said tract being more particularly described as follows: Commencing at the Southeast corner of said Block 79; thence North 89 degrees 43 minutes 52 seconds West along the North right of way of West Markham Street 255.35 feet to the Point of Beginning; thence continuing North 89 degrees 43 minutes 52 seconds West along said North right of way line 226.15 feet; thence North 00 degrees 16 minutes 08 seconds East, 41.65 feet to the Southwest corner of an exterior brick wall; thence easterly along the brick wall 47.48 feet to the corner of the brick wail; thence northerly along the brick wall 14.76 feet to a corner of the brick wall; thence easterly along a brick wall 16.54 feet to a corner; thence northerly along the brick wall 14.69 feet to a corner; thence easterly along the center of the column line 28.92 feet to a point of intersection of said column line and the easterly face of a gutter line above the Markham Street level; thence northerly along said easterly gutter line 11.50 feet; thence continuing along said easterly gutter line North 45 degrees East, 40.10 feet to a point of intersection of said easterly gutter line and southerly face of a gutter line; thence easterly along said southerly gutter line and its projections easterly for a distance of 67.01 feet to a point on the interior of a column; thence North 27 degrees 27 minutes East across the "Great Lobby" 33.36 feet to a partition wall corner; thence northerly along the partition wall 33.75 feet to a corner; thence westerly along the partition wall 2.33 feet to a point of intersection of the partition wall and the westerly face of a column line; thence northerly along the westerly face of a column line 104.87 feet; thence westerly parallel to and 3.5 feet northerly of a glass wall for a distance of 10.75 feet; thence North 45 degrees West, parallel to and 3.5 feet northeasterly of a glass wall for a distance of 8.0 feet; thence westerly, parallel to and 2.0 feet North of a partition wall for a distance of 10.25 feet; thence northerly across a foyer and through a column in the center of the foyer 22.00 feet; thence easterly, parallel to and 2.0 feet south of a partition wall B-10 for a distance of 10.27 feet; thence North 45 degrees East, parallel to and 3.5 feet southeasterly of a glass wall for a distance of 7.72 feet; thence easterly, parallel to and 3.5 feet South of a glass wall for a distance of 11.02 feet; thence northerly along the westerly face of it column line 83.30 feet; thence westerly along the projected face of the partition wall and the northerly face of the partition wall 7.25 feet to the point of intersection of a doorway and the northerly face of a partition wall projected westerly; thence northerly along the westerly face of the door frame 8.41 feet to a brick wall; thence westerly 2.34 feet to a corner; thence northerly along a brick wall 4.36 feet to a corner; thence easterly along a brick wall 2.34 feet to the westerly face of a door frame; thence northerly along the westerly face of the door frame 11.80 feet to a brick wall; thence westerly along a brick wall 5.90 feet to a corner; thence northerly along a brick wall 21.99 feet to a corner; thence easterly along a brick wall 5.35 feet; thence northerly along a concrete block wall 9.74 feet to a corner; thence westerly along a brick wall 5.34 feet to a corner, thence northerly along the westerly end of a brick wall 2.47 feet to a corner; thence easterly along a brick wall 65.80 feet to a corner; thence southerly along a brick wall 46.42 feet; thence westerly through a brick wall, along the northerly face of a column and along the southerly face of a partition wall 32.32 feet to the easterly face of a column line extended; thence southerly along the easterly face of the column line 103.26 feet to a partition wall; thence westerly along the partition wall 7.95 feet to a corner; thence southerly along a partition wall 18.60 feet to a corner; thence easterly along a partition wall 11.18 feet; thence southerly to and then along a partition wall 287.14 feet to the Point of Beginning. Parcel No. 29: Markham Level -Escalator Lobby (Hotel) Air rights between mean sea level elevations 290.32 and 308.32 for demised premises as described below: An area located in Lots 5 and 6 of Block 79 of the Original City of Little Rock, and in La Harpe Boulevard, all in the Southeast Quarter, Northeast Quarter of Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas; being more particularly described as follows: Commencing at the Southeast corner of Block 79; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 255.35 feet; thence North a distance of 287.14 feet to the Point of Beginning; thence easterly a distance of 18.02 feet to a point; thence northerly a distance of 18.60 feet to a point; thence westerly a distance of 21.25 feet to a point; thence northerly a distance of 15.13 feet to a point; thence easterly a distance of 20.89 feet to a point; thence S 45 degrees 00 minutes 00 seconds E a distance of 21.40 feet to a point; thence easterly a distance of 2.38 feet to a point; thence S 00 degrees 16 minutes 08 seconds W a distance of 25.28 feet to a point; thence westerly a distance of 10.29 feet to a point; thence S 45 degrees 00 minutes 00 seconds W a distance of 11.94 feet to a point; thence westerly a distance of 16.32 feet to a point; thence northerly a distance of 15.13 feet to the Point of Beginning. All as shown in that certain survey prepared by McCaskill & Associates, Inc. dated February 21, 2013. B-11 EXHIBIT "C" EXCEPTED PREMISES STATEHOUSE CONVENTION CENTER 1160171-v1 r EXHIBIT "C" Excepted Premises Parcel No. 16: Convention Center Tract 1 A tract of land located in the Southeast Quarter, Northeast Quarter, Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas, said tract comprising part of Block 79, all of Fractional Block 80, the abandoned right of way of North Louisiana Street between West Markham Street and La Harpe Boulevard, and part of the Ashley Street right of way between West Markham Street and La Harpe Boulevard, all a part of the Original City of Little Rock; said tract being more particularly described as follows: Beginning at the Southwest corner of the Original Fractional Block 80; thence along a westerly extension of the North right of way line of West Markham Street North 89 degrees 43 minutes 52 seconds West, 2.00 feet to a point; thence along a line that is 2.00 feet West of and parallel to the East right of way line of Ashley Street North 00 degrees 12 minutes 36 seconds East, 300.05 feet to a point, said point being on a westerly extension of the South right of way line of La Harpe Boulevard; thence South 89 degrees 43 minutes 52 seconds East 2.00 feet to a point, said point being the intersection of the East right of way line of Ashley Street with the South right of way line of La Harpe Boulevard; thence continuing along said South right of way line of La Harpe Boulevard South 89 degrees 43 minutes 52 seconds East, 330.13 feet to a point, said point being the Northwest corner of Lot 3, said Block 79; thence South 79 degrees 46 minutes 17 seconds East, 152.35 feet to a point, said point being on the West right of way line of North Main Street; thence along said West right of way line of North Main Street South 00 degrees 13 minutes 50 seconds West, 248.70 feet to a point; thence South 45 degrees 15 minutes 08 seconds West 35.34 feet to a point, said point being on the North right of way line of West Markham Street; thence along the said North right of way line of West Markham Street North 89 degrees 43 minutes 52 seconds West 455.06 feet to the Point of Beginning. Parcel No. 17: Convention Center Tract 2 A tract of land located in the Southeast Quarter, Northeast Quarter Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas, said tract being more particularly described as follows: Commencing at the Southwest corner of Fractional Block 80, Original City of Little Rock; thence along a northerly extension of the East right of way line of Ashley Street North 00 degrees 12 minutes 36 seconds East, 397.13 feet to a point on the North right of way line of the Missouri Pacific Railroad; thence northeasterly along said North right of way line along a curve to the left having a radius of 865.32 feet for a distance of 66.25 feet, said curve having a chord bearing and distance of North 88 degrees 58 minutes 35 seconds East, 66.23 feet; thence continuing along said North right of way line North 86 degrees 46 minutes 59 seconds East, 10.00 feet to the Point of Beginning; thence North 00 degrees 12 minutes 36 seconds East, 74.35 feet to a point; thence South 89 degrees 47 minutes 24 seconds East, 101.38 feet to a point; thence North 00 degrees 12 minutes 36 seconds East 23.00 feet to a point; thence North 45 degrees 12 minutes 36 seconds East 61.63 feet to a point; thence South 89 degrees 47 minutes 24 C-1 seconds East, 96.14 feet to a point; thence South 44 degrees 47 minutes 24 seconds East, 99.39 feet to a point; thence South 00 degrees 12 minutes 36 seconds West, 80.00 feet to a point on the North right of way line of the Missouri Pacific Railroad; thence northwesterly along said North right of way line along a curve to the left having a radius of 1166.08 feet for a distance of 116.33 feet, said curve having a chord bearing and distance of North 83 degrees 30 minutes 19 seconds West, 116.28 feet; thence continuing along said North right of way line a curve to the left having a radius of 1166.08 for a distance of 139.49 feet, said curve having a chord bearing and distance of North 89 degrees 47 minutes 24 seconds West, 139.41 feet; thence continuing along said North right of way line South 86 degrees 46 minutes 59 seconds West, 56.49 feet to the Point of Beginning. Parcel No. 18: La Harpe Boulevard - Air Rights and Easement Tract Air rights above mean sea level elevation 286.4 and for easement as required for intermediate supports for structures to be constructed on said right of way, for the tract of land described below: A tract of land located in the Southeast Quarter, Northeast Quarter, Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas, said tract consisting of a portion of the right of way of La Harpe Boulevard, said tract being more particularly described as follows: Commencing at the Southwest corner of Fractional Block 80, Original City of Little Rock; thence along the West line of Fractional Block 80 North 00 degrees 12 minutes 36 seconds East, 300.05 feet to a point, said point being on the North line of Lot 3, said Block 80 and the Point of Beginning; thence continuing North 00 degrees 12 minutes 36 seconds East, 63.57 feet to a point, said point being on the North right of way line of La Harpe Boulevard; thence northeasterly along said North right of way line of La Harpe Boulevard along a curve to the left having a radius of 898.82 feet for a distance of 68.25 feet, said curve having a chord bearing and distance of North 88 degrees 57 minutes 30 seconds East, 68.24 feet; thence continuing along said North right of way line North 86 degrees 46 minutes 59 seconds East, 66.49 feet to a point; thence southeasterly along said North right of way line along a curve to the right having a radius of 1132.58 feet for a distance of 137.49 feet, said curve having a chord bearing and distance of South 89 degrees 44 minutes 22 seconds East, 137.41 feet; thence South 00 degrees 12 minutes 36 seconds West, 69.20 feet to a point, said point being on the North line of Lot 5, Block 79, Original City of Little Rock; thence North 89 degrees 43 minutes 52 seconds West 272.00 feet to the Point of Beginning. Parcel No. 20: North Main Street- Franchise Tract A tract of land located in the Southeast Quarter, Northeast Quarter, Section 3 and in the Southwest Quarter Northwest Quarter, Section 2, all in Township 1 North, Range 12 West, Pulaski County, Arkansas, said tract being a portion of the right of way of North Main Street adjacent to Block 79, Original City of Little Rock, said tract being more particularly described as follows: Commencing at the Southeast Corner of said Block 79, said point being the intersection of the North right of way line of West Markham Street with the West right of way line of North Main C-2 ( Street; thence along said West right of way line of North Main Street North 00 degrees 13 minutes 50 seconds East, 133.00 feet to the Point of Beginning; thence South 89 degrees 46 minutes 10 seconds East, 21.33 feet to a point; thence North 00 degrees 13 minutes 50 seconds East, 31.83 feet to a point; thence South 89 degrees 46 minutes 10 seconds East, 10.67 feet to a point; thence North 00 degrees 13 minutes 50 seconds East, 40.83 feet to a point; thence North 56 degrees 31 minutes 20 seconds East, 104.58 feet to a point; thence North 84 degrees 57 minutes 58 seconds West, 119.42 feet to a point, said point being on said West right of way line of North Main Street; thence along said West right of way line of North Main Street South 00 degrees 13 minutes 50 seconds West, 140.70 feet to the Point of Beginning. Parcel No.21: Missouri Pacific Railroad - Air Rights Air rights above mean sea level elevation 287.75, for the tract of land described below: A tract of land located in the Southeast Quarter, Northeast Quarter, Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas, said tract consisting of a portion of the right of way of the Missouri Pacific Railroad, said tract being more particularly described as follows: Commencing at the Original Southwest corner of Fractional Block 80, Original City of Little Rock; thence along the westerly line of said Block 80 North 00 degrees 12 minutes 36 seconds East, 363.62 feet to a point, said point being on the South right of way line of the Missouri Pacific Railroad and the Point of Beginning; thence continuing North 00 degrees 12 minutes 36 • seconds.East, 33.51 feet to a point, said point being on the North right of way line of the Missouri Pacific Railroad; thence northeasterly along said North right of way line of the Missouri Pacific Railroad along a curve to the left having a radius of 865.32 feet for a distance of 66.25 feet, said curve having a chord bearing and distance of North 88 degrees 58 minutes 35 seconds East, 66.23 feet; thence continuing along said North right of way line North 86 degrees 46 minutes 59 seconds East, 66.49 feet to a point; thence southeasterly along said North right of way line along a curve to the right having a radius of 1166.08 feet for a distance of 139.49 feet, said curve having a chord bearing and distance of South 89 degrees 47 minutes 24 seconds East, 139.41 feet; thence South 00 degrees 12 minutes 36 seconds West, 33.56 feet to a point, said point being on the South right of way line of the Missouri Pacific Railroad; thence northwesterly along said South right of way line of the Missouri Pacific Railroad along a curve to the left having a radius of 1132.58 feet for a distance of 137.49 feet, said curve having a chord bearing and distance of North 89 degrees 44 minutes 22 seconds West, 137.41 feet; thence continuing along said South right of way line South 86 degrees 46 minutes 59 seconds West, 66.49 feet to a point; thence southwesterly along said South right of way line along a curve to the right having a radius of 898.82 feet for a distance of 68.25 feet, said curve having a chord bearing and distance of South 88 degrees 57 minutes 30 seconds West, 68.24 feet to the Point of Beginning. Parcel No. 24: Ashley Street Parking and Access Franchise Franchise rights as granted by Ordinance No. 18,286 recorded August 24, 2000 as Instrument No. 2000059888 and being more particularly described as follows: C-3 A tract of land located in the Southeast 1/4, Northeast 1/4, Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas, said tract being West of Fractional Block 80, Original City of Little Rock and being more particularly described as follows: Beginning at a found 1/2 inch rebar at the intersection of the North right of way line of West Markham Street and the East right of way line of Ashley Street, said point being 2.00 feet North 89 degrees 40 minutes 23 seconds West, of the Original Southwest corner of said Fractional Block 80; thence North 00 degrees 12 minutes 36 seconds East, 300.05 feet along said East right of way line of Ashley Street to a found "X" in concrete being the intersection of the East right of way line of Ashley Street and the South right of way line of La Harpe Boulevard; thence North 89 degrees 18 minutes 24 seconds West, 57.73 feet along said South right of way line of La Harpe Boulevard to a found "X" on a concrete retaining wall being the intersection of the South right of way line of La Harpe Boulevard and the West right of way line of Ashley Street; thence South 00 degrees 12 minutes 36 seconds West, 300.42 feet along said West right of way line of Ashley Street to the point of intersection of said West right of way line of Ashley Street and the North right of way line of West Markham Street; thence South 89 degrees 40minutes 23 seconds East, 57.73 feet along said North right of way line of West Markham Street to the Point of Beginning. Parcel No. 30: La Harpe Level— Common Use Area (Subject to License Agreement) Air rights between mean sea level elevations 271.03 and 290.32 for excepted premises as described below: An area lying in Lots 1, 2, & 3 of Fractional Block 80 and the East-West Alleyway of Fractional Block 80 of the Original City of Little Rock, Pulaski County, Arkansas, being more particularly described as follows: Commencing at the Southeast corner of said block 79; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 434.03 feet; thence North 00 degrees 16 minutes 08 seconds East, 178.98 feet to a point of beginning on the Southeast corner of a loading dock at the Southwest corner of a concrete block wall; thence easterly a distance of 29.02 feet to a point; thence northerly a distance of 1.88 feet to a point; thence easterly a distance of 9.60 feet to a point; thence southerly a distance of 9.46 feet to a point; thence easterly a distance of 5.00 feet to a point; thence S 00 degrees 16 minutes 08 seconds W a distance of 15.26 feet to a point; N 89 degrees 43 minutes 52 seconds W a distance of 10.48 feet to a point; thence continuing westerly a distance of 11.77 feet to a point; thence S 45 degrees 00 minutes 00 seconds W a distance of 17.62 feet to a point; thence S 00 degrees 52 minutes 06 seconds W a distance of 2.69 feet to a point; thence N 89 degrees 43 minutes 52 seconds W a distance of 11.20 feet to a point; thence northerly a distance of 6.48 feet to a point; thence N 45 degrees 00 minutes 00 seconds E a distance of 13.79 feet to a point; thence northerly a distance of 4.21 feet to a point; thence N 45 degrees 00 minutes 00 seconds W a distance of 9.02 feet to a point; thence S 45 degrees 00 minutes 00 seconds W a distance of 19.66 feet to a point; thence westerly a distance of 6.09 feet to a point; thence northerly a distance of 15.55 feet to a point; thence N 45 degrees 00 minutes 00 seconds E a distance of 13.29 feet to a point; easterly a distance of 9.48 feet to the point of beginning. C-4 Parcel No. 31: La Harpe Level—Dock Area (Subject to License Agreement) Air rights between mean sea level elevations 271.03 and 290.32 for excepted premises as described below: An area lying in Lots 2 & 3 of Fractional Block 80 of the Original City of Little Rock, Pulaski County, Arkansas, being more particularly described as follows: Commencing at the Southeast corner of said block 79; thence North 89 degrees 43 minutes 52 seconds West along the North right of way line of West Markham Street 434.03 feet; thence North 00 degrees 16 minutes 08 seconds East, 178.98 feet to a point of beginning; thence westerly a distance of 9.48 feet to a point; thence N 45 degrees 00 minutes 00 seconds E a distance of 0.84 feet to a point; thence N 45 degrees 00 minutes 00 seconds W a distance of 6.05 feet to a point; thence S 45 degrees 00 minutes 00 seconds W a distance of 1.01 feet to a point; thence N 45 degrees 00 minutes 00 seconds W a distance of 3.67 feet to a point; thence S 45 degrees 00 minutes 00 seconds W a distance of 9.39 feet to a point; thence N 89 degrees 43 minutes 52 seconds W a distance of 22.34 feet to a point; thence N 00 degrees 16 minutes 08 seconds East a distance of 98.15 feet to a point; thence easterly a distance of 45.00 feet to a point; thence S 00 degrees 02 minutes 54 seconds E a distance of 98.36 feet to the point of beginning. Parcel No. 32: Markham Level Entrance Drive (Subject to License Agreement) An area located in the Southeast 1/4, Northeast %, Section 3, Township 1 N, Range 12 W, Pulaski County, Arkansas more particularly described as follows: Commencing at the Southeast corner of Block 79 of the Original City of Little Rock; thence N 89°43'52" W along the North line of Markham Street a distance of 255.35' to the point of beginning; thence North a distance of 17.44' to a point; thence S 89°43'52" E a distance of 131.08' to a point of curvature; thence along a curve to the right (R= 15.50') an arc distance of 9.41' to a point; thence S 53°46'26" E a distance of 23.91' to the North line of Markham Street; thence along said North line N 89°43'52" W a distance of 159.32' to the point of beginning. All as shown in that certain survey prepared by McCaskill & Associates, Inc. dated February 21, 2013. LESS AND EXCEPT FROM ANY AND ALL OF THE ABOVE PARCELS, the Demised Premises; Together with any and all other parts of the Convention Center currently existing, and any additions thereto in the future, including without limitation, all that part of the Convention Center lying east of Parcel 16, Convention Center Tract 1 and Parcel 20, North Main Street Franchise Tract and bounded, generally, by Markham Street on the South, LaHarpe Boulevard on the North and the south ramp of the Main Street Bridge on the East within which is located Parcel 23 which is a part of the Demised Premises. C-5 EXHIBIT "D" ASSIGNMENT, ASSUMPTION, AND FIRST AMENDMENT TO PARKING LOT LEASE AGREEMENTS AND REAFFIRMATION AND EXTENSION OF ASHLEY STREET PARKING FRANCHISE 1160171-v1 EXHIBIT "D" Form of Assignment, Assumption, and First Amendment to Parking Lot Lease Agreements and Reaffirmation and Extension of Ashley Street Parking Franchise Prepared By and Return To: Sumpter M.McGowin II,Esq. Wyatt,Tarrant&Combs,LLP 1715 Aaron Brenner Drive,Suite 800 Memphis,Tennessee 38120 (901)537-1000 ASSIGNMENT, ASSUMPTION, AND FIRST AMENDMENT TO PARK NG LOT LEASE AGREEMENTS AND REAFFIRMATION AND EXTENSION OF ASHLEY STREET PARKING FRANCHISE This Assignment, Assumption, and First Amendment to Parking Lot Lease Agreements and Reaffirmation And Extension of Ashley Street Parking Franchise (the "Agreement") is entered into as of this day of February, 2013, by and among FWH II Little Rock, LLC, a Delaware limited liability company("Lessee"), the City of Little Rock, a municipal corporation organized and existing under and by virtue of the laws of the State of Arkansas acting by and through its agent, the City Advertising and Promotion Commission of Little Rock, Arkansas ("Lessor"), and BG Excelsior Limited Partnership, an Arkansas limited partnership ("BGE"). RECITALS WHEREAS, Lessor and BGE are parties to that certain Parking Lease Agreement, as amended, dated the 16th day of September, 1988, which was assigned to BGE pursuant to that Assignment of Parking Lease filed in the Official Records of Pulaski County, Arkansas (the "Filing Office") on October 3, 2000, at Instrument Number 2000070054 (the "Block 99 Lease") pursuant to which Lessor has leased to BGE 50 parking spaces in the lots described in Exhibit A attached hereto; WHEREAS, Lessor and BGE are parties to that certain Parking Lot Lease Agreement (E1/2 of Block 3 Original City), as amended, dated the 1st day of April, 1998, which was assigned to BGE pursuant to that Assignment of Parking Lease filed in the Filing Office on October 3, 2000, at Instrument Number 2000070054 (the "E1/2 of Block 3 Lease") and pursuant to which Lessor has leased to BGE certain parking facilities described more fully in Exhibit B attached hereto; WHEREAS, Lessor and BGE are parties to that certain Agreement to Rent Parking Spaces in the 2nd and Main Deck, as amended, dated the 1st day of April, 1998, which was assigned to BGE pursuant to that Assignment of Parking Lease filed in the Filing Office on October 3, 2000, at Instrument Number 2000070054 (the "2nd and Main Deck Parking Lease" and, together with the Block 99 Lease and the E1/2 of Block 3 Lease, the"Parking Leases") and pursuant to which Lessor has leased to BGE 100 parking spaces in the lots described more fully in Exhibit C attached hereto (collectively, the"Demised Premises"); D-1 WHEREAS, the Lessor and BGE, are parties to that certain Amended, Restated, and Substituted Lease and Concession Agreement dated September 18, 2000, as amended by that certain First Amendment to Amended, Restated, and Substituted Lease and Concession Agreement dated May 16, 2001, and by that certain Second Amendment to Amended, Restated, and Substituted Lease and Concession Agreement dated October 1, 2002 (collectively, the "Prior Hotel Lease"); WHEREAS, Lessee, URCO, Inc., a Tennessee corporation, and BGE are parties to that certain Purchase and Sale Agreement dated 25th day of June, 2012, (the "Purchase Agreement"), as amended, pursuant to which Lessee will purchase the leasehold interest represented by the Prior Hotel Lease from BGE; WHEREAS, in connection with the execution of the Purchase Agreement, Lessor has terminated the Prior Hotel Lease and Lessor and Lessee have entered into that certain Lease and Concession Agreement dated day of February, 2013 (the"Hotel Lease"); WHEREAS, in connection with the execution of the Purchase Agreement and the Hotel Lease, BGE wishes to assign the Parking Leases, Lessee wishes to assume the Parking Leases, and Lessor wishes to give certain assurances to Lessee with regard to BGE's performance of its obligations under the Parking Leases; WHEREAS, Lessor adopted Ordinance No. 18,286 on June 6, 2000, which Ordinance was recorded in the Filing Office on August 24, 2000, at Instrument No. 2000059888 ("Ordinance No. 18,286"), as amended by Ordinance No. 20,690, adopted by the City on January 22, 2013 and recorded in the Filing Office on January 24, 2013, at Instrument No. 2013006955 ("Ordinance No. 20,690," and together with Ordinance No. 18,286, the "Ordinance"), pursuant to which Lessor has granted to BGE an exclusive franchise"in and to the right-of-way of Ashley Street laying between the eastern and western portions of Block 80, Original City of Little Rock, Pulaski County, Arkansas, as configured on the date of the grant of[the] franchise," (the"Ashley Street Parking Lot") as more particularly described in Exhibit D attached hereto, "for the exclusive use of the surface of Ashley Street, including the right to control access to said street for any purpose whatsoever, subject to Grantor's right to access said street for police, fire and governmental purposes, and the right of access as needed by any utilities for which a valid and enforceable franchise with the City is in place" (the"Franchise"); WHEREAS, in connection with the Lessor and Lessee entering into the Hotel Lease and the assumption by the Lessee of the Parking Leases, the Lessor wishes to reaffirm and extend to Lessee the benefits granted pursuant to the Ordinance with respect to the Franchise; NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants contained herein, the sufficiency of which are hereby acknowledged, the parties hereby agree as follows. 1. Estoppel. A. Lessor hereby represents and warrants that: D-2 [1] Lessor is the lessor under the Parking Leases, and, as of the date hereof, the Parking Leases are valid and in full force and effect without modification or amendment (except as noted above) and are enforceable against Lessor in accordance with their respective terms. Lessor is the owner of fee simple title to the Demised Premises; [2] the Parking Leases, respectively and together, embody the entire agreement between Lessor and BGE with respect to the use and occupancy of the Demised Premises. There are no other agreements or understandings between Lessor and BGE with regard to the use or occupancy of the Demised Premises; [3] BGE has no monetary obligation to Lessor in respect to the use and occupancy of the Demised Premises, except for the rents specifically set forth in the Parking Leases. BGE is current in the payment of all rentals due and payable under the Parking Leases; [4] there have been and are no defaults under the terms and conditions of the Parking Leases by either Lessor or BGE and there are no events which have occurred which, with the giving of notice or the passage of time, or both, would constitute a default by either Lessor or BGE thereunder; [5] the Demised Premises are not subject to any other lease, contract, bill of assurance or other agreement that would in any way prevent or restrict Lessee's full access to the Demised Premises; and [6] Lessor is the grantor of the Franchise approved pursuant to the Ordinance, the Franchise is in full force and effect and has not been repealed, revoked or otherwise amended since the date of the Lessor's adoption of Ordinance No. 20,690. The Lessor is the owner of fee simple title to the Ashley Street Parking Lot. . B. BGE hereby represents and warrants that: [1] BGE is the lessee under the Parking Leases, and, as of the date hereof, the Parking Leases are valid and in full force and effect without modification or amendment (except as noted above) and are enforceable against Lessee in accordance with their respective terms; [2] the Parking Leases, respectively and together, embody the entire agreement between Lessor and BGE with respect to the use and occupancy of the Demised Premises. There are no other agreements or understandings between Lessor and BGE with regard to the use or occupancy of the Demised Premises; [3] BGE has no monetary obligation to Lessor in respect to the use and occupancy of the Demised Premises, except for the rents specifically set forth in the Parking Leases. BGE is current in the payment of all rentals due and payable under the Parking Leases; D-3 [4J there have been and are no defaults under the terms and conditions of the Parking Leases by either Lessor or BGE and there are no events which have occurred which, with the giving of notice or the passage of time, or both, would constitute a default by either Lessor or BGE thereunder; and [5] BGE is the grantee of the Franchise and has fully complied with and is not in default of, its obligations thereunder, nor has BGE received notice of the existence of a default under the Franchise or of Lessor's intention to revoke, repeal or otherwise modify the terms of the Ordinance. 2. Assignment and Assumption. A. BGE hereby assigns all of its right, title and interest in and to the Parking Leases to Lessee and Lessee hereby assumes such right, title and interest to the Parking Leases and agrees to be bound by all the terms and conditions of the Parking Leases. B. Lessor hereby consents to such assignment and hereby releases BGE from all obligations under the Parking Leases. 3. Amendment of Parking Leases. The provisions of each Parking Lease are hereby amended and superseded to the extent of any conflict therewith, as follows: A. CANCELLATION. "In addition to any other right to cancel the Parking Leases, Lessee shall have the right to cancel a Parking Lease or any of the Parking Leases, immediately upon the delivery of written notice to the Lessor in the event of the termination for any reason of that certain Lease and Concession Agreement dated day of February, 2013, as amended (the "Hotel Lease") to which Lessee is a party." B. RENEWAL. "So long as the Lessee is not in default under the terms of the Parking Leases, or any one of the Parking Leases, Lessor grants to Lessee the right, privilege and option to extend the Parking Leases in successive periods of three (3) years each for so long as the Lessee is a party to the Hotel Lease, upon and subject to the terms, provisions and conditions of this Agreement." C. USE, ALTERATIONS AND TITLE TO IMPROVEMENTS. The words "Excelsior Hotel" shall be deleted and replaced with the words "Marriott or other full- service hotel described in the Hotel Lease," wherever such term shall appear in any of the Parking Leases. D. ASSIGNMENT. "The Parking Leases shall be assignable by the Lessee without the consent of the Lessor to any assignee or other successor in interest of the Lessee with respect to the Hotel Lease." 4. Reaffirmation and Extension of Franchise. Lessor, as grantor of the Franchise pursuant to the Ordinance, hereby reaffirms the grant of and extends to Lessee the exclusive D-4 Franchise, and further agrees as requested by Lessee, to adopt such amendatory ordinance or ordinances confirming such reaffirmation and extension for the benefit of Lessee or its successors and assigns. In addition, Lessor hereby further agrees as follows: A. the Franchise shall expire on the date the Hotel Lease expires or is sooner terminated as provided therein; B. this Agreement, and any ordinance amending the Ordinance, shall benefit and extend in favor of Lessee, and its successors and assigns, in accordance with the terms and provisions of the Hotel Lease; and C. notwithstanding the foregoing provisions, the Board of Directors of the Lessor reserves to itself the right to exercise any and all legislative authority with respect to the Ordinance and any ordinances amendatory thereto. 5. Miscellaneous. The provisions of this Agreement may not be modified or terminated orally, and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, including any subsequent owner of the Demised Premises. The provisions of this Agreement shall run with the land. 6. Governing Law. This Agreement shall be construed, interpreted, enforced and governed by and in accordance with the laws of the State of Arkansas. 7. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. [SIGNATURE PAGE TO FOLLOW] D-5 f [COUNTERPART SIGNATURE PAGE TO ASSIGNMENT, ASSUMPTION, AND FIRST AMENDMENT TO PARKING LOT LEASE AGREEMENTS AND REAFFIRMATION AND EXTENSION OF ASHLEY STREET PARKING FRANCHISE] IN WITNESS HEREOF, the parties execute this Agreement as of the date first above written. BG EXCELSIOR LIMITED PARTNERSHIP By: BEX, INC., its general partner By: Name: Title: D-6 ACKNOWLEDGEMENT STATE OF COUNTY OF Before me, the undersigned, a Notary Public, duly commissioned, qualified and acting within and for said County and State, appeared in person the within named , to me personally known, who stated that he was the of BEX, Inc., the general partner of BG Excelsior Limited Partnership, a Tennessee limited partnership, and is duly authorized in his capacity to execute the foregoing instrument for and in the name and behalf of said limited partnership; and he further stated and acknowledged that he had so signed, executed and delivered the foregoing instrument for the consideration,uses and purposes therein mentioned and set forth. WITNESS my hand and official seal, this the day of February, 2013. Notary Public My commission expires: D-7 [COUNTERPART SIGNATURE PAGE TO ASSIGNMENT, ASSUMPTION, AND FIRST AMENDMENT TO PARKING LOT LEASE AGREEMENTS AND REAFFIRMATION AND EXTENSION OF ASHLEY STREET PARKING FRANCHISE] IN WITNESS HEREOF, the parties execute this Agreement as of the date first above written. FWH II LITTLE ROCK, LLC, a Delaware limited liability company: By: Fairwood Hospitality Investors II, L.L.C., its member By: Fairwood Investors II, LLC, its manager By: Robert M. Solmson, President D-8 1 ACKNOWLEDGEMENT STATE OF COUNTY OF Before me, the undersigned, a Notary Public, duly commissioned, qualified and acting within and for said County and State, appeared in person the within named , to me personally known, who stated that he was the of Fairwood Investors, LLC, a Delaware limited liability company and the manager of Fairwood Hospitality Investors II, L.L.C., a Delaware limited liability company and the sole member of FWH II Little Rock, LLC, a Delaware limited liability company, and is duly authorized in his capacity to execute the foregoing instrument for and in the name and behalf of said limited liability company; and he further stated and acknowledged that he had so signed, executed and delivered the foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. WITNESS my hand and official seal, this the day of February, 2013. Notary Public My commission expires: D-9 [COUNTERPART SIGNATURE PAGE TO ASSIGNMENT, ASSUMPTION,AND FIRST AMENDMENT TO PARKING LOT LEASE AGREEMENTS AND REAFFIRMATION AND EXTENSION OF ASHLEY STREET PARKING FRANCHISE] IN WITNESS HEREOF, the parties execute this Agreement as of the date first above written. CITY OF LITTLE ROCK By: Mark Stodola, Mayor ATTEST: By: Susan Langley, City Clerk D-10 ACKNOWLEDGEMENT STATE OF ARKANSAS ) )§§ COUNTY OF PULASKI ) On this day before me, the undersigned being a Notary Public of and for the County and State aforesaid, personally appeared Mark Stodola and Susan Langley, who acknowledged themselves to be the Mayor and City Clerk, respectively, of the City of Little Rock, Arkansas, a city of the first class, and that they, as such officers, being authorized so to do, executed the foregoing instrument for the consideration, uses and purposes therein contained, by signing the name of the city of first class by themselves as such officers. WITNESS My hand and official seal on this day of February, 2013. Notary Public My commission expires: D-11 [COUNTERPART SIGNATURE PAGE TO ASSIGNMENT, ASSUMPTION, AND FIRST AMENDMENT TO PARKING LOT LEASE AGREEMENTS AND REAFFIRMATION AND EXTENSION OF ASHLEY STREET PARKING FRANCHISE] IN WITNESS HEREOF, the parties execute this Agreement as of the date first above written. EXECUTED FOR CERTAIN PURPOSES AS AGENT: LITTLE ROCK ADVERTISING AND PROMOTION COMMISSION BY: WARREN SIMPSON, CHAIRMAN D-12 ACKNOWLEDGEMENT STATE OF ARKANSAS ) )§§ COUNTY OF PULASKI ) On this day before me, the undersigned being a Notary Public of and for the County and State aforesaid, personally appeared Warren Simpson, who acknowledged himself to be the Chairman of the Little Rock Advertising and Promotion Commission, and that he, as such officer, being authorized so to do, executed the foregoing instrument for the consideration, uses and purposes therein contained, by signing the name of the commission by himself as such officer. WITNESS My hand and official seal on this day of February, 2013. Notary Public My commission expires: D-13 EXHIBIT A Lots 7, 8 and 9 inclusive, Block 99, Original City of Little Rock, Pulaski County, Arkansas and Lots 1 through 12 inclusive, Block 100, original City of Little Rock Pulaski County, Arkansas and the East-West Alleys located within Blocks 99 and 100, original City of Little Rock, Pulaski County, Arkansas and Spring Street between the North right-of-way of Markham Street extended and the South right-of-way line of Garland Street extended, all as provided on the plat for Original City of Little Rock as recorded in Pulaski County records in Book "L" at Pages 330 and 331 and as vacated by Ordinance No. 12,471, recorded April 21, 1971 in Book 1143, Page 403. Lots 4, 5 and 6 inclusive, Block 99, Original City of Little Rock, Pulaski County, Arkansas. (Now known as Vinson Plaza.) D-14 /-- EXHIBIT B Lots 1 through 6 inclusive, Block 3, Original City of Little Rock, Pulaski County, Arkansas and the West half of an alley located in Block 3 lying easterly of Lots 1 through 6 inclusive, now closed by Ordinance No. 12,163, of record in Book 1057, Page 403, records of Pulaski County, Arkansas. • D-15 EXHIBIT C Lots 7 through 12 inclusive, Block 3, Original City of Little Rock, Pulaski County, Arkansas and the East half of an alley located in Block 3 lying westerly of Lots 7 through 12 inclusive, now closed by Ordinance No. 12,163, of record in Book 1057, Page 403, records of Pulaski County, Arkansas. Less and except a strip conveyed to the City of Little Rock, for the purpose of a public street and the installation and maintenance of public utilities and other public purposes, described as: a tract of land being a part of Block 3, Original City of Little Rock, Arkansas, being more particularly described as follows: Beginning at a found 1/2" rebar at the Southeast corner of said Block 3; thence North 80 degrees 26 minutes 19 seconds West along the North right of way line of East 3rd Street, 22.68 feet; thence along a curve to the left having a 20 foot radius and a chord bearing and distance of North 54 degrees 35 minutes 20 East, 28.27 feet for a distance of 31.4 feet; thence North 9 degrees 37 minutes 00 seconds East, 261.33 feet to a tangent curve to the left; thence along said curve to the left having a radius of 20.00 feet, and a chord bearing and distance of North 35 degrees 16 minutes 17 seconds West for a distance of 28.23 feet to the South right of way line of East 2nd street; thence South 80 degrees 09 minutes 34 seconds East, along said South right of way line, 22.62 feet to a found "X" at the Northeast corner of said Block 3; thence South 9 degrees 37 minutes 00 seconds West, along the East line of said Block 3, for a distance of 301.22 feet to the Point of Beginning. D-16 EXHIBIT D A tract of land located in the Southeast 1/4, Northeast 1/4, Section 3, Township 1 North, Range 12 West, Pulaski County, Arkansas, said tract being West of Fractional Block 80, Original City of Little Rock and being more particularly described as follows: Beginning at a found 1/2 inch rebar at the intersection of the North right of way line of West Markham Street and the East right of way line of Ashley Street, said point being 2.00 feet North 89 degrees 40 minutes 23 seconds West, of the Original Southwest corner of said Fractional Block 80; thence North 00 degrees 12 minutes 36 seconds East, 300.05 feet along said East right of way line of Ashley Street to a found "X" in concrete being the intersection of the East right of way line of Ashley Street and the South right of way line of La Harpe Boulevard; thence North 89 degrees 18 minutes 24 seconds West, 57.73 feet along said South right of way line of La Harpe Boulevard to a found "X" on a concrete retaining wall being the intersection of the South right of way line of La Harpe Boulevard and the West right of way line of Ashley Street; thence South 00 degrees 12 minutes 36 seconds West, 300.42 feet along said West right of way line of Ashley Street to the point of intersection of said West right of way line of Ashley Street and the North right of way line of West Markham Street; thence South 89 degrees 40minutes 23 seconds East, 57.73 feet along said North right of way line of West Markham Street to the Point of Beginning. D-17 r EXHIBIT "E" ESTOPPEL STATEMENT FROM LESSOR AND LESSOR'S FORMER LESSEE REGARDING DEMISED PREMISES EXHIBIT "E" Form of Estoppel Statement from Lessor and Lessor's Former Lessee Regarding Demised Premises ESTOPPEL CERTIFICATE AND TERMINATION OF LEASE This Estoppel Certificate and Termination of Lease (the "Certificate") is made this day of February, 2013 by and among the City of Little Rock, a municipal corporation organized under and existing by virtue of the laws of the State of Arkansas (the "City"), the City Advertising and Promotion Commission of Little Rock, Arkansas, as agent of the City (the "Commission," or, together with the City, the "Lessor") and BG Excelsior Limited Partnership, an Arkansas limited partnership ("BGE") for the benefit of FWH II Little Rock, LLC, a Delaware limited liability company("FWH"). RECITALS WHEREAS, the Lessor and BGE are parties to that certain Amended, Restated, and Substituted Lease and Concession Agreement dated September 18, 2000, as amended by that certain First Amendment to Amended, Restated, and Substituted Lease and Concession Agreement dated May 16, 2001, and by that certain Second Amendment to Amended, Restated, and Substituted Lease and Concession Agreement dated October 1, 2002 (collectively, the "Lease"); WHEREAS, FWH, URCO, Inc., a Tennessee corporation, and BGE are parties to that certain Purchase and Sale Agreement dated June 25, 2012, as amended (the "Purchase Agreement"), pursuant to which FWH will purchase the leasehold interest represented by the Lease from BGE; WHEREAS, the City has consented to the sale of such leasehold interest to FWH and has agreed to terminate the Lease and enter into that certain Lease and Concession Agreement (the "New Lease") with FWH immediately upon and simultaneously with the closing of the Purchase Agreement and consummation of the transfer contemplated thereby; WHEREAS, in consideration of the foregoing, the Lessor and BGE wish to terminate the Lease, with such termination being effective immediately prior to the effective date of the New Lease; and WHEREAS, as required by the terms of the New Lease and as an inducement for FWH to enter into such New Lease, the City and BGE wish to give certain assurances to FWH regarding their respective performance of the terms and conditions of the Lease. NOW, THEREFORE, the Lessor and BGE acknowledge and recognize that FWH will rely upon the statements and certifications made herein as a material inducement to purchase the leasehold interest represented by the Lease and to enter into the New Lease with the Lessor and hereby represent, warrant and certify the following: E-1 fes_ 1. Termination of Lease. Lessor and BGE hereby agree that the Lease will be terminated along with all rights and obligations of all parties thereto as of the moment immediately prior to the effective date and time of the New Lease, except that Lessor shall remain obligated to pay any remaining and unpaid Enhancement Maintenance Payment, as that term is defined in the Lease, owed to BGE under the Lease, including the final such Enhancement Maintenance Payment which is due and payable to BGE on or before March 15, 2013. 2. Estoppel Certificate. A. As of the date hereof, the Lessor hereby acknowledges, represents, warrants, and certifies the following to FWH: [1] Lessor is the lessor under the Lease, and, as of the date hereof, the Lease is valid and in full force and effect without modification or amendment and is enforceable against Lessor in accordance with its terms. Lessor is the owner of fee simple title to the real property underlying the Demised Premises; [2] the Lease embodies the entire agreement between Lessor and BGE with respect to the use and occupancy of the Demised Premises. There are no other agreements or understandings between Lessor and BGE with regard to the use or occupancy of the Demised Premises; [3] BGE has no monetary obligation to Lessor in respect to the use and occupancy of the Demised Premises, except for the rents specifically set forth in the Lease. BGE is current in the payment of all rentals due and payable under the Lease through March 31, 2013; and [4] there have been and are no defaults under the terms and conditions of the Lease by either Lessor or BGE and there are no events which have occurred which, with the giving of notice or the passage of time, or both, would constitute a default by either Lessor or BGE thereunder. B As of the date hereof, the BGE hereby acknowledges, represents, warrants, and certifies the following to FWH: [1] BGE is the lessee under the Lease, and, as of the date hereof, the Lease is valid and in full force and effect without modification or amendment and is enforceable against BGE in accordance with its terms; [2] the Lease embodies the entire agreement between Lessor and BGE with respect to the use and occupancy of the Demised Premises. There are no other agreements or understandings between Lessor and BGE with regard to the use or occupancy of the Demised Premises; E-2 3 BGE has no monetary] obligation to Lessor in respect to the use and occupancy of the Demised Premises, except for the rents specifically set forth in the Lease. BGE is current in the payment of all rentals due and payable under the Lease through March 31, 2013; and [4] there have been and are no defaults under the terms and conditions of the Lease by either Lessor or BGE and there are no events which have occurred which, with the giving of notice or the passage of time, or both, would constitute a default by either Lessor or BGE thereunder. 3. Entire Agreement. This Certificate supercedes all prior representations, warranties, and certifications with respect to the subject matter set forth in Section 2 hereof and any prior or contemporaneous agreement, promise, or representation, whether oral or written, relating to the subject matter of this Certificate and not expressly set forth or referenced in this Certificate or a proper amendment hereto shall be of no force or effect. 4. Amendment. This Certificate may be amended only by the mutual written consent of the parties, and no oral modification or amendment shall be permitted or binding on the parties. 5. Binding Effect. This Certificate shall be binding upon and shall inure to the benefit of the respective parties hereto and their successors and permitted assigns. 6. Severability. In the event that any provision of this Certificate is rendered invalid or unenforceable, such provision shall be severed from this Certificate and the remaining provisions of this Certificate shall continue in full force and effect. 7. Governing Law. This Certificate shall be governed by and construed in accordance with the law of the State of Arkansas. 8. Counterparts. This Certificate may be executed in any number of counterparts, each of which shall be deemed to be an original. Signatures exchanged by electronic means shall be enforceable as if they were originals. [Signature Page to Follow] E-3 [SIGNATURE PAGE TO ESTOPPEL CERTIFICATE AND TERMINATION OF LEASE] IN WITNESS HEREOF, the below parties execute this Certificate as of the date first above written. CITY OF LITTLE ROCK By: Name: Title: EXECUTED FOR CERTAIN PURPOSES AS AGENT: LITTLE ROCK ADVERTISING AND PROMOTION COMMISSION BY: WARREN SIMPSON, CHAIRMAN FWH II LITTLE ROCK, LLC By: FAIRWOOD HOSPITALITY INVESTORS II, L.L.C., its Member By: FAIRWOOD INVESTORS II, LLC, its Manager By: Name: Title: E-4 [SIGNATURE PAGE TO ESTOPPEL CERTIFICATE AND TERMINATION OF LEASE] IN WITNESS HEREOF, the below parties execute this Certificate as of the date first above written. BG EXCELSIOR LIMITED PARTNERSHIP By: BEX, INC., its general partner By: Name: Title: E-5 EXHIBIT "F" ESTOPPEL STATEMENT REGARDING HAZARDOUS OR OTHER ADVERSE CONDITIONS OF DEMISED PREMISES EXHIBIT "F" Form of Estoppel Statement regarding hazardous or other adverse conditions of Demised Premises ENVIRONMENTAL ESTOPPEL CERTIFICATE This Environmental Estoppel Certificate (the "Certificate") is entered into by the City of Little Rock, Arkansas (the "City"), a municipal corporation organized under and existing by virtue of the laws of the State of Arkansas, acting by duly adopted resolution and the City Advertising and Promotion Commission of Little Rock, Arkansas (the "Commission"), as agent of and for the City of Little Rock, acting by duly adopted resolution, (the City and the Commission being hereinafter referred to collectively as the "Lessor") for the benefit of FWH II Little Rock, LLC, a Delaware limited liability company("FWH"). RECITALS WHEREAS, FWH and the Lessor are both parties to that certain Lease and Concession Agreement dated_day of February, 2013 (the "New Lease"); and WHEREAS, pursuant to the terms of the Lease and as an inducement to FWH to enter into the Lease, Lessor wishes to make certain assurances to FWH regarding its compliance with Environmental Laws. NOW, THEREFORE, Lessor acknowledges and recognizes that FWH will rely upon the statements and certifications made herein as a material inducement to enter into the New Lease with the Lessor, and Lessor hereby represents, warrants and certifies as follows: 1. Environmental Representations and Warranties. To the best of its knowledge: (a) there are no Hazardous Substances or underground storage tanks in, on, or under the Demised Premises or the Excepted Premises, as such terms are defined in the Lease, except those that are both (i) in compliance with Environmental Laws and, if required, with permits issued pursuant thereto and (ii) fully disclosed to FWH in writing; (b) there are no past, present or threatened Releases of Hazardous Substances in, on, under or from the Demised Premises or the Excepted Premises; (c) there is no threat of any Release of Hazardous Substances migrating to the Demised Premises or the Excepted Premises; (d) there is no past or present non-compliance with Environmental Laws, or with permits issued pursuant thereto, in connection with the Demised Premises or the Excepted Premises; (e) Lessor does not know of, and has not received, any written or oral notice or other communication from any Person relating to Hazardous Substances or Remediation thereof, any possible liability of any Person pursuant to any Environmental Law, or any other environmental conditions in connection with the Demised Premises or the Excepted Premises, or any actual or potential administrative or judicial proceedings in connection with any of the foregoing; and (f) Lessor has truthfully and fully provided to FWH, in writing, any and all information relating to conditions in, on, under or from the Demised Premises or the Excepted Premises that is known to the Lessor and that is contained in files and records of the Lessor, including, without limitation, any reports relating to Hazardous Substances in, on, under or from F-1 the Demised Premises or the Excepted Premises and/or to the environmental condition of the Demised Premises or the Excepted Premises. 2. Definitions. A. `Environmental Law" means any federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, relating to protection of human health or the environment, relating to Hazardous Substances, relating to liability for or costs of Remediation or prevention of Releases of Hazardous Substances or relating to liability for or costs of other actual or threatened danger to human health or the environment. "Environmental Law" includes, but is not limited to, the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any state or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Substances Transportation Act; the Resource Conservation and Recovery Act (including, without limitation, Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; the River and Harbors Appropriation Act and the Residential Lead-Based Paint Hazard Reduction Act. "Environmental Law" also includes, but is not limited to, any federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law: conditioning transfer of property upon a negative declaration or other approval of a governmental authority of the environmental condition of the property; requiring notification or disclosure of Releases of Hazardous Substances or other environmental condition of the Demised Premises or the Excepted Premises to any governmental authority or other Person, whether or not in connection with transfer of title to or interest in property; imposing conditions or requirements in connection with permits or other authorization for lawful activity; relating to nuisance, trespass or other causes of action related to the Demised Premises or the Excepted Premises; and relating to wrongful death, personal injury, or property or other damage in connection with any physical condition or use of the Demised Premises or the Excepted Premises. B. "Hazardous Substances" includes but is not limited to any and all substances (whether solid, liquid or gas) defined, listed, or otherwise classified as pollutants, hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes, or words of similar meaning or regulatory effect under any present Environmental Laws or that may have a negative impact on human health or the environment, including, without limitation, petroleum and petroleum products, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead, materials containing lead-based paint, radon, radioactive materials, flammables and explosives. C. "Person" means any natural person, firm, partnership, corporation or any other entity. F-2 D. "Release" with respect to any Hazardous Substance includes but is not limited to any release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Substances. E. "Remediation" includes but is not limited to any response, remedial, removal, or corrective action, any activity to cleanup, detoxify, decontaminate, contain or otherwise remediate any Hazardous Substance, any actions to prevent, cure or mitigate any Release of any Hazardous Substance, any action to comply with any Environmental Laws or with any permits issued pursuant thereto, any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or evaluation relating to any Hazardous Substances or to anything referred to herein. 3. Entire Agreement. This Certificate supercedes all prior representations, warranties, and certifications with respect to the subject matter set forth in Section 1 hereof and any prior or contemporaneous agreement, promise, or representation, whether oral or written, relating to the subject matter of this Certificate and not expressly set forth or referenced in this Certificate or a proper amendment hereto shall be of no force or effect. 4. Amendment. This Certificate may be amended only by the mutual written consent of the parties, and no oral modification or amendment shall be permitted or binding on the parties. 5. Binding Effect. This Certificate shall be binding upon and shall inure to the benefit of the respective parties hereto and their successors and permitted assigns. 6. Severability. In the event that any provision of this Certificate is rendered invalid or unenforceable, such provision shall be severed from this Certificate and the remaining provisions of this Certificate shall continue in full force and effect. 7. Governing Law. This Certificate shall be governed by and construed in accordance with the law of the State of Arkansas. 8. Counterparts. This Certificate may be executed in any number of counterparts, each of which shall be deemed to be an original. Signatures exchanged by electronic means shall be enforceable as if they were originals. [Signature Page to Follow] F-3 C EXHIBIT "G" PROPERTY ALONG RIVER BANK AND PARKING LOT RESTRICTIVE COVENANTS PARCEL EXHIBIT "G" Restricted Area Riverfront Park Restricted Area An area located in the Southeast 'A, Northeast 'A, Section 3, Township 1 N, Range 12 W, Pulaski County, Arkansas more particularly described as follows: Commencing at a point being the Southwest corner of Block 182 of the Original City of Little Rock; thence West a distance of 60.00' to a point; thence N 86°31'54" W a distance of 330.73' to a point; thence N 87°08'30" W a distance of 268.43' to the point of beginning; thence N 87°08'30" W a distance of 15.27' to a point; thence North a distance of 7.10' to a point; thence N 84°28'28"W a distance of 142.22' to a point; thence N 81°17'13"W a distance of 27.58' to a point; thence N 80°46'00"W a distance of 64.16' to a point; thence N 80°49'32"W a distance of 2.40' to a point being the Southeast corner of the Convention Center Tract 2; thence N 00°12'36"E a distance of 80.00' to a point; thence N 44°47'24"W a distance of 99.39' to a point; thence N 89°47'24"W a distance of 96.14' to a point; thence S 45°12'36"W a distance of 61.63' to a point; thence S 00°12'36"W a distance of 74.35' to a point; thence S 86°27'00"W a distance of 10.00' to a point; thence N85°18'09"W a distance of 248.26' to a point; thence N12°56'43"W a distance of 11.00' to a point; thence N69°19'30"W a distance of 33.95' to a point; thence N79°25'42"W a distance of 6.33' to a point; thence N71°30'21"W a distance of 25.08' to a point; thence S 20°32'03"W a distance of 1.08' to a point; thence N 69°27'57"W a distance of 45.08' to a point; thence 70°12'20"W a distance of 118.87' to a point; thence N 70°45'52"W a distance of 148.42' to a point; thence N 80°04'00"W a distance of 356.71' to a point in the East line of the Broadway Street bridge; thence North 35.00' to a point at the High Water Line of the Arkansas River; thence eastwardly along said High Water Line approximately 1575' +\- to the West line of the Main Street bridge; thence South a distance of approximately 200' +\- to the point of beginning. ti G-1 EXHIBIT "H" PARKING LOT PARCEL - NEI/4 OF BLOCK 2, CITY OF LITTLE ROCK RIGHT OF FIRST REFUSAL PARCEL EXHIBIT "H" Parking: Right of First Refusal Lot Parking: Right of First Refusal Tract A tract of land located in the Southeast IA, Northeast IA, Section 3, Township 1 N, Range 12 W, Pulaski County, Arkansas said tract being Lots 11, 12 and the North 20' of Lot 10, Block 2 all in the Original City of Little Rock, Pulaski County, Arkansas and more particularly described as follows: Beginning at the Northeast corner of Block 2 thence southward along the West line of Scott Street a distance of 120.00' to a point; thence westwardly and parallel to the South line of Markham Street a distance of 140.00' to a point in the West line of Lot 10; thence northward and parallel to Scott Street a distance of 120.00' to the Northwest corner of Lot 12; thence eastward along the South line of Markham Street a distance of 140.00' to the point of beginning containing 0.39 acres more or less. H-1 EXHIBIT B Prepared by: John William Spivey III Wright,Lindsey&Jennings LLP 200 West Capitol Avenue,Suite 2300 Little Rock,Arkansas 72201 ESTOPPEL CERTIFICATE AND TERMINATION OF LEASE This Estoppel Certificate and Termination of Lease (the "Certificate") is made this 28th day of February, 2013 by and among the City of Little Rock, a municipal corporation organized under and existing by virtue of the laws of the State of Arkansas (the "City"), the City Advertising and Promotion Commission of Little Rock, Arkansas, as _agent of the City (the "Commission," or, together with the City, the "Lessor") and BG Excelsior Limited Partnership, an Arkansas limited partnership ("BGE") for the benefit of FWH II Little Rock, LLC, a Delaware limited liability company ("FWH"). RECITALS WHEREAS, the Lessor and BGE are parties to that certain Amended, Restated, and Substituted Lease and Concession Agreement dated September 18, 2000, as amended by that certain First Amendment to Amended, Restated, and Substituted Lease and Concession Agreement dated May 16, 2001, and by that certain Second Amendment to Amended, Restated, and Substituted Lease and Concession Agreement dated October 1, 2002, as reflected in that certain Memorandum of Amended, Restated and Substituted Lease and Concession Agreement recorded October 3, 2000 at Instrument No. 2000070053 in the Records of Pulaski County Arkansas (collectively, the"Lease"); WHEREAS, FWH, URCO, Inc., a Tennessee corporation, and BGE are parties to that certain Purchase and Sale Agreement dated June 25, 2012, as amended (the "Purchase Agreement"), pursuant to which FWH will purchase the leasehold interest represented by the Lease from BGE; WHEREAS, the City has consented to the sale of such leasehold interest to FWH and- has ndhas agreed to terminate the Lease and enter into that certain Lease and Concession Agreement (the "New Lease") with FWH immediately upon and simultaneously with the closing of the Purchase Agreement and consummation of the transfer contemplated thereby; 1160308-v1 WHEREAS, in consideration of the foregoing, the Lessor and BGE wish to terminate the Lease, with such termination being effective immediately prior to the effective date of the New Lease; and WHEREAS, as required by the terms of the New Lease and as an inducement for FWH to enter into such New Lease, the City and BGE wish to give certain assurances to FWH regarding their respective performance of the terms and conditions of the Lease. NOW, THEREFORE, the Lessor and BGE acknowledge and recognize that FWH will rely upon the statements and certifications made herein as a material inducement to purchase the leasehold interest represented by the Lease and to enter into the New Lease with the Lessor and hereby represent, warrant and certify the following: 1. Termination of Lease. Lessor and BGE hereby agree that the Lease will be terminated along with all rights and obligations of all parties thereto as of the moment immediately prior to the effective date and time of the New Lease, except that Lessor shall remain obligated to pay any remaining and unpaid Enhancement Maintenance Payment, as that term is defined in the Lease, owed to BGE under the Lease, including the final such Enhancement Maintenance Payment which is due and payable to BGE on or before March 15, 2013. 2. Estoppel Certificate. A. As of the date hereof, the Lessor hereby acknowledges, represents, warrants, and certifies the following to FWH: [1] Lessor is the lessor under the Lease, and, as of the date hereof, the Lease is valid and in full force and effect without modification or amendment and is enforceable against Lessor in accordance with its terms. Lessor is the owner of fee simple title to the real property underlying the Demised Premises; [2] the Lease embodies the entire agreement between Lessor and BGE with respect to the use and occupancy of the Demised Premises. There are no other agreements or understandings between Lessor and BGE with regard to the use or occupancy of the Demised Premises; [3] BGE has no monetary obligation to Lessor in respect to the use and occupancy of the Demised Premises, except for the rents specifically set forth in the Lease. BGE is current in the payment of all rentals due and payable under the Lease through March 31, 2013; and [4] there have been and are no defaults under the terms and conditions of the Lease by either Lessor or BGE and there are no events which have occurred which, with the giving of notice or the passage of time, or both, would constitute a default by either Lessor or BGE thereunder. 2 1160308-v1 B. As of the date hereof, the BGE hereby acknowledges, represents, warrants, and certifies the following to FWH: [1] BGE is the lessee under the Lease, and, as of the date hereof, the Lease is valid and in full force and effect without modification or amendment and is enforceable against BGE in accordance with its terms; [2] the Lease embodies the entire agreement between Lessor and BGE with respect to the use and occupancy of the Demised Premises. There are no other agreements or understandings between Lessor and BGE with regard to the use or occupancy of the Demised Premises; [3] BGE has no monetary obligation to Lessor in respect tothe useand occupancy of the Demised Premises, except for the rents specifically set forth in the Lease. BGE is current in the payment of all rentals due and payable under the Lease through March 31, 2013; and [4] there have been and are no defaults under the terms and conditions of the Lease by either Lessor or BGE and there are no events which have occurred which, with the giving of notice or the passage of time, or both, would constitute a default by either Lessor or BGE thereunder. 3. Entire Agreement. This Certificate supercedes all prior representations, warranties, and certifications with respect to the subject matter set forth in Section 2 hereof and any prior or contemporaneous agreement, promise, or representation, whether oral or written, relating to the subject matter of this Certificate and not expressly set forth or referenced in this Certificate or a proper amendment hereto shall be of no force or effect. 4. Amendment. This Certificate may be amended only by the mutual written consent of the parties, and no oral modification or amendment shall be permitted or binding on the parties. 5. Binding Effect. This Certificate shall be binding upon and shall inure to the benefit of the respective parties hereto and their successors and permitted assigns. 6. Severability. In the event that any provision of this Certificate is rendered invalid or unenforceable, such provision shall be severed from this Certificate and the remaining provisions of this Certificate shall continue in full force and effect. 7. Governing Law. This Certificate shall be governed by and construed in accordance with the law of the State of Arkansas. 8. Counterparts. This Certificate may be executed in any number of counterparts, each of which shall be deemed to be an original. Signatures exchanged by electronic means shall be enforceable as if they were originals. [Signature Page to Follow] 3 1160308-v1 [SIGNATURE PAGE TO ESTOPPEL CERTIFICATE AND TERMINATION OF LEASE] IN WITNESS HEREOF, the below parties execute this Certificate as of the date first above written. CITY OF LITTLE ROCK IS/4B Name: alr - Title: "46'7' 4 1160308-v1 I ACKNOWLEDGEMENT STATE OF ARKANSAS ) )§§ COUNTY OF PULASKI ) On this day before me, the undersigned being a Notary Public of and for the County and State aforesaid, personally appeared Mark Stodola, who acknowledged himself to be the Mayor of the City of Little Rock, Arkansas, a city of the first class, and that he, as such officer, being authorized so to do, executed the foregoing instrument for the consideration, uses and purposes therein contained, by signing the name of the city of first class by himself as such officer. WITNESS My hand and official seal on this ,,5 day of �i�,/a,,,,/ , 2013. aa_..07, - /4 Z_ /-7°F— Public 6N7fary 7 My commission expires: JAMIE HUJTCHINS SALINE COUNTY — ee My Commission Expires April 10.2016 Commission No 12385044 l 5 1 1160308-v1 l E r [SIGNATURE PAGE TO ESTOPPEL CERTIFICATE AND TERMINATION OF LEASE] EXECUTED FOR CERTAIN PURPOSES AS AGENT: LITTLE ROCK ADVERTISING AND PROMOTION COMMISSION B ,K.A.,N\ WARREN SIAWN,N,CHAAN 1160308-v1 ACKNOWLEDGEMENT STATE OF ARKANSAS ) )§§ COUNTY OF PULASKI ) On this day before me, the undersigned being a Notary Public of and for the County and State aforesaid, personally appeared Warren Simpson, who acknowledged himself to be the Chairman of the Little Rock Advertising and Promotion Commission, and that he, as such officer, being authorized so to do, executed the foregoing instrument for the consideration, uses and purposes therein contained, by signing the name of the commission by himself as such officer. WITNESS My hand and official seal on this day of, , 2013. "No Public My commie . JAMIE HUT IN. SAUNE COUNTY NOTARY PUBUC-ARKANSAS } com My comm 2016 sa canmlefu n N6'12365°44 1 7 1160308-v1 [SIGNATURE PAGE TO ESTOPPEL CERTIFICATE AND TERMINATION OF LEASE] FWH II LITTLE ROCK,LLC By: FAIRWOOD HOSPITALITY INVESTORS II, L.L.C., its Member By: FAIRWOOD INVESTORS II, LLC, its Manager By: 1: //;( Name: be., - yr kir•Irj. Title:___Pie ; '': 6 1160308-v1 ACKNOWLEDGEMENT STATE OF TENNESSEE COUNTY OF SHELBY Before me, the undersigned, a Notary Public, duly commissioned, qualified and acting within and for said County and State, appeared in person the within named Robert M. Solmson, to me personally known, who stated that he was the President of Fairwood Investors, LLC, a Delaware limited liability company and the manager of Fairwood Hospitality Investors II, L.L.C., a Delaware limited liability company and the sole member of FWH II Little Rock, LLC, a Delaware limited liability company, and is duly authorized in his capacity to execute the foregoing instrument for and in the name and behalf of said limited liability pany; and he further stated and acknowledged that he had so signed, executed and delivered the foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. WITNESS my hand and official seal,this the 28th day of February,2013. Notary Public My commission expires: PSORAKN/Cy°, /��TATE CI OF TENNESSEE NOTARY PUBLIC OOG, OF 5‘<>t MY COMMISSION EXPIRES AUGUST 16,2014 1160308-v 1 [SIGNATURE PAGE TO ESTOPPEL CERTIFICATE AND TERMINATION OF LEASE] IN WITNESS HEREOF, the below parties execute this Certificate as of the date first above written. BG EXCELSIOR LIMITED PARTNERSHIP By: BEX, INC., its gene e p ner By: Name: 4.1 & .Wtt{C4lks Title: '...i` G S c siev 60290279.4 ACKNOWLEDGEMENT STATE OF 7eNS5EE COUNTY OF --(-1..6?--in Before me, the undersigned, a Notary Public, duly commissioned, qualified and acting within and for said County and State, appeared in person the within named Jt A( .. • (fit dict: ,;s, , to me personally known, who stated that he was the ,, ,, tr.. " •r a Zfr of BEX, Inc., the general partner of BG Excelsior Limited Partnership, a Tennessee limited partnership, and is duly authorized in his capacity to execute the foregoing instrument for and in the name and behalf of said limited partnership; and he further stated and acknowledged that he had so signed, executed and delivered the foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. WITNESS my hand and official seal, this the 22$.c da - r' .�'.e , 2013. 4.....-----'7/66e. Notary Public " '`"//" My commission expires: �/' \0.D.Kgp4 --/ -- /?-Z 0( 5- STATE # OF ; VMS NOMet FUDIJO a �i of S� ID `�� NTY � ysio 0 5 est 1160308-v1