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4438 l V ) • 4 • RESOLUTION NO. 4,438 A RESOLUTION APPROVING A LEASE AGREEMENT TO BE ENTERED INTO BETWEEN THE CITY OF LITTLE ROCK AND EASTERN ASSOCIATED TERMINALS COMPANY PER- TAINING TO THE CONSTRUCTION AND OPERATION OF A PORT FACILITY; AND FOR OTHER PURPOSES . BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK, ARKANSAS : SECTION 1. The Mayor and the City Clerk are hereby authorized to execute and deliver a Lease Agreement with Eastern Associated Terminals Company on behalf of the City of Little Rock , Arkansas , for the lease by the City of cer- tain property described in said Lease Agreement; said Lease Agreement to be in form and substance as follows : f r i r r r1 •r LEASE AGREEMENT This LEASE AGREEMENT, made and entered into this day of September, 1970 , by and between the CITY OF LITTLE ROCK, a City of the First Class organized and existing under the laws of the State of Arkansas (herein referred to as "Lessor") and EASTERN ASSOCIATED TERMINALS COMPANY, a corporation organized and existing under the laws of the State of Delaware, but authorized to do business in the State of Arkansas (hereinafter referred to as "Lessee") , and approved and accepted by the PORT AUTHORITY OF THE CITY OF LITTLE ROCK (hereinafter referred to as the "Port Authority") , W I T N E S S E T H: Lessor hereby lets and demises to Lessee the following described lands in the County of Pulaski , State of Arkansas , to-wit: Commencing at the Northwest corner of the North- west Quarter (NW 1/4) , Section 15 , Township 1 North, Range 11 West, run thence East 1858 .35 feet to a point; thence South 592 .72 feet to a point on the boundary of the property leased by the Little Rock Port Authority to the operator of the Little Rock Port; thence along the boundary of said leased property South 31° 44 ' 56" West, 676 .60 feet to a point; thence South 66° 15 ' 45" East, 758 .68 feet to a point; thence North 23° 44 ' 15" East, 250 .00 feet to a point; thence South 66° 15 ' 45" East, 150 .00 feet to a point of beginning; run thence from the point of beginning North 23° 44 ' 15" East, 170 .00 feet to a point; thence South 66° 15 ' 45" East, 306. 00 feet to a point; thence North 23° 44 ' 15" East, to the ordinary high water line of the Arkansas River; thence Southeasterly along said ordinary high water line approximately 1250 .00 feet to a point; thence South 38° 20 ' 50" West, 520 .00 feet to a point; thence North 66° 15 ' 45" West, 1470.00 feet to a point, said point being on the South right-of-way line of Lindsey Road; thence North 23° 44 ' 15" East, 80 feet to the point of beginning, containing 14 . 2 acres , more or less , together with the exclusive use of all riparian rights connected with and appurtenant thereto, subject however to any easements of record; for a term of ten (10) years commencing and ending on dates as hereinafter set out, subject to the following terms and condi- tions : ARTICLE I USE OF DEMISED PREMISES Section 101 . Lessee shall have the right to use the demised premises as a site for a port facility for the purpose of transferring cargo , commodities , and other bulk materials , including bauxite ore , from river barges on the Arkansas River into railroad cars and trucks and from railroad cars and trucks into river barges and for such other lawful purposes as Lessor shall permit. Lessor will furnish to Lessee all required occu- pancy and building permits and authorizations as may be required by the City of Little Rock, if any, authorizing construction, the occupancy and such use of the demised premises by Lessee. Section 102 . Lessee may, in its use of the demised premises and as incidental thereto, moor barges , tenders , tow- boats and related transportation and transshipment facilities and equipment in the Arkansas River alongside the demised Page 2 premises and, with the consent of Lessor, alongside adjacent lands of the Lessor so long as such additional use does not interfere with other tenants or with the Lessor. Lessee will not permit railroad cars to be positioned on the Lead Track (hereinafter defined) in such manner as to prevent reasonable access to and from the open storage areas of the Little Rock Port Terminal, except for such limited periods of time as shall be required to shift the cars into or out of the demised premises. ARTICLE II CONSTRUCTION OF IMPROVEMENTS BY LESSEE Section 201. Lessee shall , according to plans and specifications , and any necessary modifications thereof, pre- pared by Lessee at its expense and approved by Lessor, which approval shall not be unreasonably withheld, construct, or cause • to be constructed, on the demised premises such improvements and install, or cause to be installed, therein and on the de- mised premises such machinery and equipment and other facilities as Lessee may deem reasonable and necessary to transfer bauxite ore from river barges into railroad cars and/or trucks at a rated capacity of approximately 500 tons per hour, and construct, or cause to be constructed, the railroad facilities required by Lessee on the demised premises and a railroad track ("Lead Track") connecting such railroad facilities and the existing tracks of the Port Authority Railroad. Upon the execution of this Lease, Lessee shall promptly commence the preparation of such plans and specifications , and , upon their approval , commence the con- struction of improvements and the installation of machinery and equipment and proceed therewith without delay except for causes not reasonably within its control. From time to time thereafter Lessee shall have the right, subject to prior approval of Lessor, which approval shall not be unreasonably withheld, to construct, Page 3 or cause to be constructed , on the demised premises such improve- ments and to install , or cause to be installed, therein and on the demised premises such machinery and equipment and other facil- ities as Lessee may deem reasonable and necessary to utilize the premises for one or more of the aforesaid uses. Section 202. The parties hereto acknowledge that Lessee may elect to finance the costs of such construction of improve- ments and installation of machinery and equipment from the pro- ceeds of industrial revenue bonds proposed to be issued under the provisions of Act No. 9 of the First Extraordinary Session of the General Assembly of the State of Arkansas for the year 1960 (hereinafter referred to as "Industrial Revenue Bonds") and that, if Lessee shall so elect, the said improvements , machinery and equipment shall constitute the subject matter for a separate lease from Lessor to Lessee at a rental and under terms sufficient to pay in full the Industrial Revenue Bonds issued for the said purpose. Section 203 . Lessor and/or the Port Authority shall have the right to construct or cause to be constructed , at its or their expense and when and if desired or required by Lessor or the Port Authority , a switch in the Lead Track to be con- structed by Lessee connecting the railroad facilities on the demised premises and existing tracks of the Port Authority Railroad and to construct or cause to be constructed from such switch a railroad spur to serve third parties; provided, how- ever, that such railroad switch and spur shall be located by Lessor and operated in such manner that the railroad service so provided for third parties by means of such switch and spur will not unreasonably interfere with the switching of railroad cars from the demised premises across the Lead Track and will Page 4 not unreasonably interfere with the railroad service required to transport all of the bauxite ore and other cargo, commodit- ies and materials transshipped and to be transshipped on the demised premises. Lessee will maintain and repair the Lead Track; provided, however, that upon request by Lessee, Lessor will cause payments to be made to Lessee to offset a portion of such maintenance and repair, which payments shall bear approx- imately the same relationship to the total cost of such main- tenance and repair as the use of the Lead Track to serve third parties shall bear to the use of the Lead Track to serve the demised premises . Section 204 . Lessee agrees that the facilities to be constructed under this ARTICLE II shall be constructed and oper- ated in a manner to conform with all applicable laws and regula- tions including, in particular, laws and regulations respecting pollution abatement and control promulgated by all federal , state and local authorities. ARTICLE III CONSTRUCTION OF RAILROAD FACILITIES Section 301. Lessor will , with all funds necessary therefor provided by Lessee , cause its railroad to be extended across the railroad tracks of the Missouri Pacific Railroad Company to connect with the existing railroad tracks of the Chicago, Rock Island and Pacific Railroad Company. The plans and specifications for such railroad extension and the costs thereof shall be subject to the approval of Lessee , which approval shall not be unreasonably withheld. Section 302. Lessor shall cause to be furnished and shall see that there is in full force and effect at all times Page 5 during the construction of such extension of the railroad the usual insurance coverage applicable to similar construction projects, including, but not limited to, general accident and public liability insurance , workmen 's compensation insurance, or coverage, builder 's risk, and a performance and payment bond, or the guaranty of each principal contractor in connection with the said construction, all of which shall be subject to prior written approval as to amounts and companies by the parties hereto and shall be payable to the Lessor and Lessee as their interests may appear; PROVIDED, HOWEVER, that the general accident and public liability insurance need not name Lessor as an insured. Section 303 . The extension of the railroad , as pro- vided in Section 301 hereof , will not constitute any part of the demised premises or otherwise be subject to the terms of this Lease Agreement, except as specifically provided. Section 304 . The parties hereto acknowledge that the costs of such extension of the railroad together with interest thereon, whether financed from the proceeds of Industrial Revenue Bonds or otherwise , shall be paid from the rentals reserved hereunder as hereinafter provided. ARTICLE IV RAILROAD OPERATIONS Section 401. Lessor may grant to Chicago , Rock Island and Pacific Railroad Company and/or to Missouri Pacific Rail- road Company, trackage rights to make possible the transportation by the respective railroads to and from the demised premises of all bauxite ore and other cargo , commodities and materials Page 6 transshipped and to be transshipped on the demised premises , and for that purpose may enter into such agreements and execute such instruments with each of the said railroad companies as may be necessary, which agreements and instruments , however, shall be submitted to Lessee for its prior approval, and which approval shall not be unreasonably withheld. Section 402. Until such time as the said railroad companies , or either of them, shall assume the operation, Lessor will provide and operate, or cause to be operated, the locomo- tive power required to move railroad cars of the respective railroads , carrying all of the bauxite ore and other cargo, commodities and materials transshipped and to be transshipped on the demised premises , between the demised premises and the tracks of the respective railroad companies . Section 403 . The granting of such trackage rights to the Chicago, Rock Island and Pacific Railroad Company for the transportation of bauxite ore , as provided in Section 401 here- of , and/or the provision and operation of locomotive power to shift railroad cars of bauxite ore to the tracks of the Chicago, Rock Island and Pacific Railroad Company, as provided in Section 402 hereof , shall be in consideration of the payment to Lessor by Chicago, Rock Island and Pacific Railroad Company of at least three cents (30) for each ton of bauxite ore transshipped across the demised premises , such consideration being paid either by division of a joint through rate or as an absorption of charges by the said railroad or by another appropriate method. Section 404 . Lessor will maintain its railroad tracks and related railroad facilities (including, in its entirety, the extension as provided in ARTICLE III hereof) in good operat- Page 7 ing condition throughout the demised term and will maintain its certificate of authority to operate the railroad. ARTICLE V EASEMENTS Section 501. During the demised term and any extension or renewal thereof, Lessee shall have an unlimited easement to use in common with others all streets and roads located on the lands and all railroad tracks and related railroad facilities under the operation of the Port Authority and the use of public streets and highways in the City of Little Rock, consistent with City ordinances and regulations pertaining to commercial vehicles , in connection with Lessee ' s use of the demised premises and in the transportation of persons and the transportation of commodities to and from the demised premises and for the purpose of transshipment from the demised premises , which rights may be exercised by Lessee or on its behalf through the railroad companies , trucking companies , and other agencies . ARTICLE VI DEMISED TERM Section 601. The term herein demised shall be for a period of ten (10) years commencing with the completion of the improvements to be constructed by Lessee under the provisions of ARTICLE II of this Lease Agreement, and the completion of the railroad extension as provided in ARTICLE III of this Lease Agreement subject to the approval of Lessee , which approval by Lessee shall not be unreasonably withheld, and it shall end ten (10) years thereafter. When so determined , the said dates may be evidenced by a written memorandum thereof endorsed on the margin of this Lease Agreement and initialled by the parties hereto. Page 8 Section 602. Lessor shall deliver full possession of the demised premises to the Lessee immediately upon completion of the construction of the said improvements and the said exten- sion to the railroad, and thereupon Lessee will enter into full possession of and occupy the same under and pursuant to the terms of this Lease Agreement. ARTICLE VII RENT Section 701. Lessee shall pay as rent hereunder monthly on the 10th day of the month commencing with the second month of the demised term, the rent due for the preceding month at the rate of three cents (30) per ton of bauxite ore (and at such rates for commodities other than bauxite ore as the parties may agree upon) transshipped during the preceding month through the demised premises , which rental shall in no event be less than Twenty-seven Thousand Dollars ($27 ,000 .00) annually. Section 702. During such period or periods of time, if any, that Lessor provides locomotive power to move railroad cars to and from the demised premises and the tracks of Chicago, Rock Island and Pacific Railroad and Missouri Pacific Railroad, or either of them, Lessee shall pay to Lessor for such services as additional rent monthly on the 10th day of the month commenc- ing with the second month in which such services are performed, the rent due for such services for the preceding month at the rate of two cents (20) per ton of bauxite ore , or of commodities other than bauxite ore, transshipped during the preceding month through the demised premises. Section 703 . Lessee shall supply to Lessor such evi- dences as Lessor may reasonably require as to the quantity of Page 9 bauxite ore and of commodities other than bauxite ore trans- shipped through facilities of the demised premises. Section 704 . Until Lessee shall have been fully reim- bursed for all costs of extending the railroad as provided in ARTICLE III of this Lease Agreement, including interest at the rate payable (but not to exceed 8% per annum) on any Industrial Revenue Bond Issue the proceeds of which are used to finance such extension or at the rate payable on any other borrowing (but not to exceed 8% per annum) the proceeds of which are used to finance such extension and at the prime rate (but not to exceed 8% per annum) for the amount, if any, which is not bor- rowed but rather expended from Lessee ' s funds for such purpose, Lessee shall retain all of said monthly rentals provided by Section 701 hereof and apply them to the said costs of extend- ing the railroad as aforesaid, rendering to the Lessor an accounting for all rentals so applied, and when Lessee shall have been fully reimbursed for all costs of extending the said railroad, Lessee shall thereafter pay the said monthly rentals to such person and at such address as Lessor may from time to time in writing direct. ARTICLE VIII INSURANCE Section 801. Lessee shall , at Lessee' s sole cost and expense, throughout the term of this Lease Agreement, maintain: (a) General public liability insurance against claims for bodily injury or death occuring upon, in or about the demised premises , and on, in or about the adjoining streets , passageways , and water- ways , such insurance to afford protection to the limit of not less than $200 ,000 .00 in respect of Page 10 bodily injury or death to any one person, and to the limit of not less than $500 ,000 .00 in respect of any one accident; and (b) Property damage insurance against claims for damage or injury to property occuring upon, in or about the demised premises , and on, in or about the adjoining streets , passageways , and waterways , such insurance to afford protection to the limit of not less than $100 ,000 . 00 in respect of damage to the property of any one owner. All policies of insurance provided for in this ARTICLE shall provide that such policies shall not be cancelled with- out at least ten (10) days ' prior written notice to each assured named therein, PROVIDED, HOWEVER, the general public liability insurance provided for in this Section need not name Lessor as an insured so long as Lessor is not legally liable for any such injury, damage , or death covered by such policies. In the event such notice of termination is given, Lessee shall , prior to the expiration of such ten (10) day period, procure insurance to replace that so terminated. Section 802. Not less than ten (10) days prior to the expiration dates of the expiring policies , renewal policies or certificates thereof , issued by the respective insurers, each bearing notations evidencing the payment of premiums or accompanied by other evidence satisfactory to Lessor of such payment, shall be delivered by Lessee to Lessor. The Lessee may procure and keep in force , in place of separate policies , blanket policies of insurance having the same coverage and provisions as are herein required with respect to separate policies. If Lessee shall at any time fail to take out, pay for, maintain or deliver any of Page 11 the insurance policies provided for in this Section, and Lessee does not correct or remedy such failure within ten (10) days after written notice from the Lessor specifically setting forth the alleged failure of Lessee and notifying Lessee to correct or remedy the same , the Lessor may thereafter (but shall not be obligated to so do) , without waiving or releasing Lessee from any obligations of Lessee in this Lease Agreement contained, take out, pay for, maintain or deliver any of the insurance policies provided for in this Section. All sums so paid by Lessor, and all necessary incidental costs and expenses in con- nection therewith shall be deemed additional rent hereunder and shall be payable to Lessor on demand, and Lessee covenants to pay such sum or sums , and Lessor shall have (in addition to any other right or remedy of Lessor) the same rights and remedies in the event of the non-payment thereof by Lessee as in the case of default by Lessee in the payment of the rent. ARTICLE IX MAINTENANCE OF DEMISED PREMISES Section 901. Lessee shall , throughout the term of this Lease Agreement and any renewal or extension thereof, at Lessee' s sole cost and expense , maintain, and at the end of the demised term, or any renewal or extension thereof, yield up the demised premises in good and tenantable repair, order and condition, reasonable wear and tear excepted. ARTICLE X COMPLIANCE WITH ORDERS, ORDINANCES, ETC. Section 1001. Subject to the provisions of this ARTICLE, Lessee may use the demised premises for any lawful purpose. Lessee will , throughout the term of this Lease Agreement, at its Page 12 sole cost and expense, promptly comply with all statutes , laws, ordinances , orders, judgments , decrees , regulations , directions and requirement of all federal, state , county, municipal and other governments or governmental authorities , which now or at any time hereafter may be applicable to the demised premises or any part thereof or of adjoining public ways and waterways. Lessee shall likewise observe and comply with the requirements of all policies of public liability and all other policies of insurance at any time in force with respect to the demised prem- ises. Lessee agrees to comply with all ordinances of the City of Little Rock whether or not the demised premises become a part of the City of Little Rock. Section 1002 . Lessee shall have the right to contest by appropriate legal proceedings , in the name of the Lessee or Lessor or both, but without cost or expense to Lessor, the validity of any statute , law, ordinance , order, judgment, decree, regulation, direction or requirement of the nature herein re- ferred to, and if by the terms thereof compliance therewith may legally be held in abeyance without the incurrence of any lien against the fee of the demised premises , or Lessee ' s leasehold interest therein, for failure so to comply therewith, Lessee may postpone compliance therewith until the final deter- mination of any proceedings , provided that all such proceedings shall be prosecuted with all due diligence and dispatch, and if any lien against the fee of the demised premises is incurred by reason of non-compliance, Lessee may nevertheless make the contest aforesaid and delay compliance as aforesaid, provided that Lessee furnishes to Lessor security reasonably satisfactory to Lessor against any loss by reason of such lien and prosecutes the contest aforesaid with due diligence and dispatch, and satisfies the same before any foreclosure thereof. Page 13 Section 1003. Lessor will not adopt any laws , ordinances , rules or regulations which will interfere with the normal use of the demised premises for industrial purposes or participate in any action taken by others which will so interfere, except where necessary to avoid or eliminate demonstrated injury to the health of the public, generally. ARTICLE XI INDEMNIFICATION OF LESSOR Section 1101. Commencing with the demised term, Lessee shall indemnify and save Lessor harmless against and from any and all claims by or on behalf of any person or persons , firm or firms , corporation or corporations , other than Lessor, aris- ing from the conduct or management of or from any work or thing whatsoever done in and on the demised premises and will further indemnify and save Lessor harmless against and from any and all claims arising during the term of this Lease Agreement from any condition of the demised premises , or arising from any breach or default on the part of Lessee in the performance of any covenant or agreement on the part of Lessee to be performed, pursuant to the terms of this Lease Agreement, or arising from any act or negligence of Lessee , or any of its agents , con- tractors , servants , employees , or licensees , or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occuring during the term of this Lease Agreement, in or about the demised premises , and from and against all costs , expenses and liabilities incurred in or in connection with any such claim or action or proceeding brought thereon; and in case any action or proceeding be brought against Lessor by reason of any such claim, Lessee , upon notice from Lessor, covenants to resist or defend such action or proceedings. Page 14 ARTICLE XII DEFAULT PROVISIONS Section 1201. This Lease Agreement is made on condition also that if any one or more of the following events (herein referred to as an "event of default") shall happen : (a) Lessee shall default in the due and punctual payment of any rent payable hereunder, and such default shall continue for five (5) days after receipt of written notice from Lessor of such non- payment; or (b) Lessee shall neglect or fail to perform or observe any of the covenants herein contained on Lessee's part to be performed or observed (other than those referred to in Sub-section (a) of this Section 1201) and Lessee shall fail to remedy the same within ninety (90) days after Lessor shall have given to Lessee written notice specifying such neglect or failure (or within such additional period, if any, as may be reasonably required to cure such default if it is of such nature that it cannot be cured within said ninety (90) day period because of governmental restrictions or any other cause beyond the control of the Lessee) ; or (c) This Lease Agreement or the demised premises or any part thereof shall be taken upon execution or by other process of law directed against the Lessee, or shall be taken upon or subject to any attachment at the instance of any creditor Page 15 of or claimant against the Lessee, and such attach- ment shall not be discharged or disposed of within ninety (90) days after the levy thereof; or (d) Lessee shall be involved in financial diffi- culties as evidenced below and shall not cure the same within ninety (90) days after notice from Lessor : (i) by its admitting in writing its inability to pay its debts generally as they become due, or (ii) by its filing a petition in bankruptcy or for reorganization or for the adoption of an arrangement under the Bankruptcy Act (as now existing or in the future amended) , or an answer or other pleading admitting the material allegations of such a petition or seeking, con- senting to or acquiescing in the relief pro- vided for under such Act, or (iii) by its making an assignment of all or a substantial part of its property for the benefit of its creditors , or (iv) by its seeking or consenting to or acqui- escing in the appointment of a receiver or trustee for all or a substantial part of its property or of the demised premises or of its interest in this Lease Agreement, or (v) by the entry of a court order without its consent which order shall not be vacated, set aside or stayed within ninety (90) days from the date of entry (1) appointing a re- ceiver or trustee for all of a substantial part of its property or (2) approving a peti- tion filed against it for the effecting of an 1 Page 16 arrangement in bankruptcy or for a reorganiza- tion pursuant to said Bankruptcy Act or for any other judicial modification or alteration of the rights of creditors; then: 4 In any such event, Lessor shall have the right at its election, then or at any time thereafter while such event of default shall continue, either (1) To give Lessee written notice of intention to terminate this Lease Agreement on the date of such notice or on any later date specified therein, and on the date specified in such notice Lessee 's right to possession of the demised premises shall cease and this Lease Agreement shall thereupon be ter- minated, or (2) Without demand or notice , to re-enter and take possession of the demised premises or any part thereof and repossess the same as of Lessor ' s former estate and expel Lessee and those claiming through or under Lessee and remove the effects of both or either (forcibly if necessary) without being deemed guilty of any manner of trespass and without preju- dice to any remedies for arrears of rent or preceding breach of covenant. Should Lessor elect to re-enter as provided in this paragraph (2) or should Lessor take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may (a) terminate this Lease Agreement or (b) from time to time, without terminating this Lease Agree- ment relet the premises or any part thereof for such term or terms and at such rental or rentals and upon such other terms and conditions as Lessor Page 17 may deem advisable , with the right to make altera- tions and repairs to the demised premises . No such re-entry or taking of possession of the demised premises by Lessor shall be construed as an election on Lessor's part to terminate this Lease Agreement unless a written notice of such intention be given to Lessee or unless the termination thereof be decreed by a court of competent jurisdiction. Section 1202. No termination or repossession referred to in this ARTICLE XII shall relieve lessee of its liability for rental payments and its other obligations under this Lease Agreement all of which shall survive such termination or repos- session. In the event of any such termination, Lessee shall pay the rent hereinbefore provided up to the time of such termination, and thereafter Lessee , until the end of what would have been the term of this Lease Agreement in the absence of such termination, and whether or not the demised premises shall have been relet, shall be liable to Lessor for, and shall pay to Lessor , as liquidated current damages , (a) The rent hereinbefore provided which would otherwise be payable hereunder if such termination had not occurred, less (b) The net proceeds , if any, of any reletting of the demised premises , after deducting all Lessor 's expenses in connection with such reletting, including, without limitation, all repossession costs , brokerage commissions , legal expenses , attorney ' s fees , expenses of employees , alteration costs , and expenses of pre- paration for such reletting. Lessee shall pay such liquidated current damages to Lessor on the days on which the rent would have been payable hereunder Page 18 if this Lease Agreement had not been terminated, and Lessor shall be entitled to receive the same from Lessee on each such day. At any time after such termination, whether or not Lessor shall have col- lected any such current damages , Lessor shall be entitled to recover from Lessee , and Lessee shall pay to Lessor, on demand, as liquidated final dam- ages and in lieu of all such current damages beyond the date of such demand, an amount equal to the ex- cess , if any, of (x) the rent hereinabove provided which would be payable hereunder from the date of such demand (or, if it be earlier, the date to which Lessee shall have satisfied its obligations under this Section 1202 to pay current damages) for what would be the then unexpired term of this Lease Agreement if the same remained in effect, over (y) The then fair net rental value of the demised premises for the same period. If any statute or rule of law governing the proceedings in which such liquidated final damages are to be proved shall validly limit the amount thereof to an amount less than the amount agreed upon hereinabove , Lessor shall be entitled to the maximum amount allowable under such statute or rule of law. Section 1203 . In the event of any termination of this Lease Agreement by Lessor, Lessee shall have the right, from time to time , to provide Lessor with a satisfactory tenant for the demised premises for a substantial portion of the unexpired Page 19 term of this Lease Agreement as it existed immediately prior to such termination, and (a) if Lessor does not accept such tenant, or (b) if Lessor does accept such tenant then in either event the liquidated damages payable by Lessee hereunder shall be reduced by the amount such tenant paid, or would have been obligated to pay if the tenant had been accepted by Lessor, less Lessor 's expenses in connection with such re- letting as defined in Sub-paragraph (b) of Section 1202 hereof. Section 1204 . In the event of any termination of the term of this Lease Agreement, Lessee , so far as permitted by law, hereby expressly waives (a) any right of redemption or re-entry or repossession or to restore the operation of this Lease Agree- ment, (b) any right to a trial by jury in the event of summary proceedings , and (c) the benefits of any laws now or hereafter in force exempting property from liability for rent or for debt. ARTICLE XIII ASSIGNMENT Section 1301. Lessee may assign this Lease Agreement or sublet the premises or part thereof provided that no such assign- ment or subletting and no dealings or transactions between the Lessor and any sublessee or assignee shall relieve the Lessee of any of its obligations under the Lease Agreement, and Lessee shall remain as fully bound as though no assignment or subletting had been made, and performance by any assigneee or sublessee shall be considered as performance pro tanto by Lessee; PROVIDED, HOWEVER, that if Lessee shall assign and transfer this Lease and its en- tire interest in the demised premises to another corporation and Page 20 such other corporation shall expressly assume and agree to per- form all of Lessee ' s obligations under this Lease Agreement, then upon prior written consent of the Lessor, which shall not be unreasonably withheld, Lessee shall be relieved of all there- after accruing obligations under this Lease Agreement. ARTICLE XIV REMOVAL OF IMPROVEMENTS Section 1401 . Lessee shall have the right at the expira- tion of the demised term, or at the expiration of any renewal or extension thereof , if Lessee shall have complied substantially in all respects with the terms hereof , to remove at Lessee' s expense all improvements which Lessee may have constructed and all machinery and equipment which Lessee may have installed on the demised premises , provided that Lessee does so without sub- stantial damage to the demised premises . ARTICLE XV NOTICES Section 1501. All notices , demands and requests which may or are required to be given by either party to the other, shall be in writing, and each shall be deemed to have been pro- perly given when served personally on an executive officer of the party to whom such notice is to be given , or when sent post- . age prepaid by certified or registered mail by deposit thereof in an duly constituted United States Post Office or branch thereof located in one of the present States of the United States of America in a sealed envelope addressed as follows : Page 21 If intended for Lessee : Eastern Associated Terminals Company 1400 Provident Tower Cincinnati , Ohio 45202 If intended for Lessor : City Manager City Hall Little Rock , Arkansas 72201 If intended for the Port Authority : Executive Director Little Rock Port Authority P.O. Box 2300 Little Rock, Arkansas 72203 Any party may change the address and name of addressee to which subsequent notices are to be sent by notice to the other parties given as aforesaid. ARTICLE XVI CUMULATIVE REMEDIES - NO WAIVER Section 1601. The specific remedies to which Lessor or Lessee may resort under the terms of this Lease Agreement are cumulative and are not intended to be exclusive of any other remedies or means of redress to which each may be lawfully en- titled in the case of any breach or threatened breach by either of them of any provision of this Lease Agreement. The failure of Lessor or Lessee to insist in any one or more cases upon the strict performance of any of the covenants of this Lease Agree- ment or to exercise any option herein contained, shall not be Page 22 construed as a waiver or relinquishment for the future of such covenant or option. A receipt by Lessor of rent with knowledge of the breach of any covenant hereof shall not be deemed a waiver of such breach, and no waiver, change, modification or discharge by any party hereto of any provision in this Lease Agreement shall be deemed to have been made or shall be effective unless expressed in writing and signed by Lessor or Lessee. In addi- tion to the other remedies in this Lease Agreement provided, Lessor shall be entitled to the restraint, by injunction, of the violation or attempted or threatened violation of any of the covenants, conditions or provisions of this Lease Agreement or to a decree compelling performance of any such covenants , conditions or provisons . ARTICLE XVII PRIORITY OF LEASE Section 1701. Notwithstanding anything to the con- , trary in this Lease Agreement (and any amendment or supple- ment hereto) , the letting of the estate of Lessee hereunder is and shall continue to be superior and prior to any and all encumbrances , mortgages , deeds of trust and trust indentures , or any of them, now or hereafter a lien upon the demised premises or any part thereof or interest herein. ARTICLE XVIII COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES Section 1801 . The covenants and agreements herein con- tained shall , subject to the provisions of ARTICLE XIII hereof, bind and inure to the benefit of Lessor and Lessee, and their respective successors and assigns , subject, however , to the provisions of this Lease Agreement. Page 23 ARTICLE XIX QUIET ENJOYMENT AND POSSESSION Section 1901. The Lessee , on paying the rentals and performing the covenants and agreements herein on the Lessee 's part to be performed, shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term of this Lease Agreement and the Lessor will defend the Lessee ' s en- joyment and possession of said demised premises against all parties . ARTICLE XX GENERAL Section 2001. If any term or provision of this Lease Agreement or the application thereof to any person or circum- stance shall, to any extent, be determined to be invalid or unenforceable , the remainder of this Lease Agreement or the application of such term or provisions to persons or circum- stances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease Agreement shall be valid and be enforced to the fullest extent permitted by law. Section 2002. The ARTICLE captions in this Lease Agreement are for convenience and reference only and in no way define, limit or describe the scope or intent of this Lease Agreement or any part thereof, or in any way affect this Lease Agreement and shall not be considered in any construction thereof. Page 24 I Section 2003. This Lease Agreement shall be construed and enforced in accordance with the laws of the State of Arkansas . Wherever in this Lease Agreement it is provided that either party shall or will make any payment or perform or refrain from performing any act or obligation, each such pro- vision shall , even though not so expressed, be construed as an express covenant to make such payment or to perform, or not to perform, as the case may be, such act or obligation. ARTICLE XII RECORDING Section 2101. This Lease Agreement, or a Memorandum Lease in lieu thereof , and each and every assignment and modification hereof , shall be recorded in the office of the Circuit Clerk and Ex-officio Recorder of Deeds and Mortgages of Pulaski County, Arkansas . The Lease Agreement as originally executed shall be so recorded prior to the recordation of any mortgage or deed of trust or trust indenture with respect to the demised premises . ARTICLE XXII LESSEE ' S OPTIONS Section 2201. Provided this Lease Agreement is in full force and effect and Lessee shall have complied substantially in all respects with the terms hereof , Lessee shall have the right, at Lessee 's option, to extend this Lease for a further term of ten (10) years by giving notice thereof to Lessor in writing not less than ninety (90) days prior to the expiration of the demised term, which extended term shall be on the same Page 25 . • terms and conditions herein stated; provided, however, that the rates per ton payable throughout the extended term under Sections 701 and 702 hereof shall be increased or decreased at the commencement of such extended term in proportion to the increase or decrease since the commencement of the initial term demised hereunder in the average price of 99.5% purity unalloyed aluminum ingots , as quoted over the preceding year in the American Metal Market daily newspaper and provided, further, that the rent so payable under Section 701 shall in no event be less than Ten Thousand Dollars ($10 ,000 .00) per annum. Section 2202 . Provided Lessee shall have exercised the option provided by Section 2201 hereof and this Lease Agree- ment is in full force and effect and Lessee shall have complied substantially in all respects with the terms hereof, Lessee shall have the further right, at Lessee ' s option, to extend this Lease for a further term of ten (10) years by giving notice thereof to Lessor in writing not less than ninety (90) days prior to the expiration of the term as extended pursuant to Section 2201, which second extended term shall be on the same terms and conditions herein stated; provided, however, that the rates per ton payable throughout the second extended term under Sections 701 and 702 hereof shall be increased or decreased at the commencement of such second extended term in proportion to the increase or decrease since the commence- ment of the first extended term in the average price of 99 . 5% purity unalloyed aluminum ingots , as quoted over the preceding year in the American Metal Market daily newspaper and provided, further, that the rent so payable under Section 701 shall in no event be less than Ten Thousand Dollars ($10 ,000 . 00) per annum. Page 26 . . ARTICLE XXIII HOLDING OVER Section 2301. Should Lessee remain in possession of the demised premises after the expiration of the demised term, or any renewal thereof, then, unless a new agreement in writing shall have been entered into between Lessor and Lessee , Lessee shall be held to be a tenant from month to month only at the same annual rate of rental equal to the last annual rental rate payable hereunder and otherwise subject to all the terms and conditions of this Lease Agreement, except as to duration of tenancy. IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to be signed by their duly authorized officials and officers as of the day and year first herein- above written. CITY OF LITTLE ROCK, ARKANSAS By: M yor (Lessor) ATTEST: City Clerk (S E A L) EASTERN ASSOCIATED TERMINALS COMPANY By: Title : ATTEST: Title: (S E A L) Page 27 LITTLE ROCK PORT AUTHORITY By: Title : ATTEST: Title : (S E A L) STATE OF ARKANSAS) ss ACKNOWLEDGMENT COUNTY OF PULASKI) On this day, before me , the undersigned, a Notary Public within and for said County and State , duly commissioned, qualified and acting, appeared and , to me well known, who stated that they are the Mayor and City Clerk , respectively of the CITY OF LITTLE ROCK, Arkansas , and that they are duly authorized in that capacity to execute the foregoing instrument for and in the name and behalf of the CITY OF LITTLE ROCK, Arkansas , and further stated and acknowledged that they have so signed, executed and delivered said foregoing instrument for the con- sideration, uses , and purposes therein mentioned and set forth. IN WITNESS WHEREOF, I have hereunto set my hand and official seal this day of , 1970 . Notary Public My Commission will expire : (S E A L) Page 28 r r I w STATE OF ) ss. ACKNOWLEDGMENT COUNTY OF ) On this day before me , a Notary Public, duly commis- sioned and acting within and for said County and State, appeared in person the within named and , to me personally well known, who stated that they were , respectively, the and of EASTERN ASSOCIATED TERMINALS COMPANY, a corporation, and were duly authorized in their re- spective capacities to execute the foregoing instrument for and in the name and behalf of said corporation, and further stated and acknowledged that they had so signed, executed and delivered said foregoing instrument for the consideration, uses , and pur- poses therein mentioned and set forth. IN WITNESS WHEREOF, I have hereunto set my hand and official seal this day of , 1970 . Notary Public My Commission will expire : (S E A L) STATE OF ARKANSAS ) ss ACKNOWLEDGMENT COUNTY OF PULASKI ) On this day before me , a Notary Public , duly commis- sioned and acting within and for said County and State , appeared in person the within named and , to me personally well known, who stated that they were , respectively, the and of the LITTLE ROCK PORT AUTHORITY, and were duly authorized in their respective capa- cities to execute the foregoing instrument for and in the name and behalf of said Authority, and further stated and acknowledged that they had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN WITNESS WHEREOF, I have hereunto set my hand and official seal this day of , 1970. Notary Public My Commission will expire : (S E A L) Page 29 w •' • s I .. s V . • w SECTION 2. This Resolution shall be in full force and effect from and after its adoption. ADOPTED: September 8, 1970 ATTEST: '44'121.d hi 6 44 APPROVED: Al( fidlio City Clerk ayor