Loading...
6200 RESOLUTION NO. 6,200 A RESOLUTION AUTHORIZING THE MAYOR OF THE CITY OF LITTLE ROCK TO CONSENT TO THE "CONSENT TO ASSIGNMENT OF LEASE" (SAVERS SKY WALKS) AGREE- MENT ON BEHALF OF THE CITY OF LITTLE ROCK, ARKANSAS ; AND FOR OTHER PURPOSES . BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK, ARKANSAS : SECTION 1. That the Mayor of the City is hereby authorized to consent to an agreement known as the "Consent to Assignment of Lease; (Savers Sky Walks) on behalf of the City. SECTION 2 . This Resolution shall be in full force and effect from and after its adoption. ADOPTED: September 4, 1979 ATTEST: APPROVED: �� C�I�GCiI✓ i City Clerk Mayor CONSENT TO ASSIGIT OF LASE WHEREAS, that certain Amended and Substituted Lease and Agreement ("Lease") was made January 29, 1979, by and between the City of Little Rock, Arkansas, as Lessor, and Savers Federal Savings and Loan Association, a Federal savings and loan association organized and existing under the laws of the United States of America with its principal place of business located in Little Rock, Arkansas ("Savers") , as Lessee, for the lease of certain air space as more particularly described on the attached Exhibit "A"; and WHEREAS, the Lease requires the prior written consent of Lessor to the assignment by the Lessee of any of its rights under the Lease except as specifically provided therein; and tiJEEREAS, Lessor desires to grant hereby its written consent to the assignment of Lessee as herein provided. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lessor does hereby consent to and approve the Sub-Lease by Lessee of its rights under the Lease to Lessee and the S.A.M. Limited Partnership, an Arkansas limited partnership ("S.A.M.") , jointly and as tenants-in-common, doing business as Savers/S.A.M. , a partnership under the laws of the State of Arkansas, under the terms and conditions contained in that certain Land Lease Agreement dated May 1, 1979, a copy of which is attached hereto as Exhibit "B" and made a part hereof for all purposes. EXECUTED this /a thday of , 1979. City of Little Po ,c, Ar sas By �/�� ""� Mayor Attest: 6;4/4/ Ci Clerk • PARCEL A All that certain airspace beginning 14 ' 6" above existing pavement on the following described property located West of Lot 5, Block 95, Original City, Little Rock, Arkansas: Beginning at the Southwest corner of Lot 6 , Block 95, • Original City, Little Rock, Arkansas ; thence N 6°48 ' 24"E 73 ' to the point of beginning; thence N 83°14 ' 41 "W 60 ' ; thence N 6°48 ' 24"E 19 . 0 ; thence S 83°14 ' 41 "E 60 ' ; thence S 6°48 ' 24"W 19. 0 ' to the point of beginning. PARCEL B All that certain airspace beginning 15 ' above existing pavement on the following described property located North of Lot 1 , Block 95, Original City, Little Rock, Arkansas: Beginning at the Northeast corner of Lot 1 , Block 95, Original City, Little Rock, Arkansas; thence N 83°14 ' 11 "W 30 '- to the point of beginning; thence N 83°14 ' 11 'W 16 ' ; thence N 6°48 ' 24"E 60 ' ; thence S 83°14 ' 11 "E 16 ' ; thence S 6°48 ' 24"W 60 ' to the point of beginning . • PARCEL C All that certain airspace beginning 13 ' 7" above existing pavement on the following described property located in Block 96, Original City of Little Rock, Arkansas. • Beginning at the Southeast corner of Lot 6, Block 96, Original City; then N 6°48 ' 07"E 120. 0 ' ; then S 83 014 ' 41 "E 20. 0 ' ; thence S 6°48 ' 07"N 120. 0 ' ; thence N 83°14 ' 11 "W 20. 0 ' to the point of beginning. • • • eaa,/- "4 " i ■ P LAND LEASE AGREEMENT This Land Lease Agreement ("Lease") dated the 1 ' day of MAY , 1979 , by and between Savers Federal Savings and Loan Association (formerly Pulaski Federal Savings and Loan Association) ("Savers") , a domestic savings and loan association, chartered under the laws of the United States of America with its principal place of business i4 Little Rock, Arkansas (hereinafter referred to as "Landlord") and Savers and the S.A.M. Limited Partnership, an Arkansas Limited Partnership (S .A.M. ) , jointly and as tenants-in- common, doing business as Savers/S.A.M. , a partnership under the laws of the State of Arkansas (hereinafter referred to as "Tenant") . It is agreed and understood that S .A.M. as Tenant, has a ninety-five percent (95%) ownership interest in this Lease and in all leasehold improvements now existing or hereinafter constructed, and Savers, as tenant, has a five percent (5%) ownership interest. W I T N E S S E T H: WHEREAS , Landlord is the owner of real estate, certain valuable plans for improvements, air rights and skyway agreement (hereinafter referred to as the "demised lands" ) located in Pulaski County, Arkansas, more fully described in Exhibit 1 attached to this Lease; and WHEREAS , Landlord desires to lease the demised lands for the construction thereon of an office building, parking deck and skyways in accordance with certain plans and specifi- cations drawn by Wittenberg, Delony & Davidson Inc/BRC, a joint venture, an index of which is made a part of the Book of Exhibits in that certain Agreement of even date herewith between the parties hereto (the "Improvements" ) ; and WHEREAS, Tenant is willing to lease the demised lands for the construction and operation of the Improvements, and Landlord has previously applied for and secured the necessary akilL/- • . approval from the Federal Home Loan Bank Board , Washington, D. C. for the location of its home savings and loan facility in the Improvements ; and WHEREAS , Landlord and Tenant, respectively, are not prohibited under the terms of any outstanding trust indentures , deed(s) of trust, mortgages , or other similar instruments from entering into this Lease Agreement, and from discharging all covenants , provisions and obligations on their respective parts to be performed under and pursuant to this Lease Agreement and affirmatively so represent to each other; NOW, THEREFORE , for valuable consideration, receipt of which is hereby acknowledged by the parties hereto , and in consideration of the mutual benefits and covenants herein contained, Landlord and Tenant agree as follows : Section 1. Premises : Landlord hereby demises and leases to Tenant, and Tenant hereby accepts under the terms and conditions herein from Landlord the demised lands , together with any appurtenances , rights , privileges and easements benefiting, belonging or pertaining thereto. Section 2 . Term: (a) The term of this Lease shall commence on the date (hereinafter referred to as the "Com- mencement Date" ) hereof . (b) Initial term of this Lease shall be for a period of forty-nine (49 ) years beginning on the Commencement Date , unless sooner terminated or extended as herein provided. The term of this Lease shall thereafter be extended auto- matically for five (5) additional periods of time at the rent and upon all of the other terms , conditions , covenants and provisions set forth herein and shall each be for a term of ten (10) years . Provided, however , that Tenant may cancel this Lease , effective as of the date of the expiration of the initial term or as of the date of the expiration of any of the extended periods of time above specified , by -2- • •� giving Landlord written notice of such cancellation on or prior to the date ninety (90) days before the effective date of such cancellation. Such extension shall be automatic without the necessity of any new lease or other instruments or agreements or any notice being executed or given. Not- withstanding the aforesaid right of cancellation granted to Tenant hereunder, Tenant may, at any time during the initial term of this Lease or any extended period thereof?, give Landlord written notice that Tenant elects to waive its option to cancel this Lease at the end of the initial term or any extended period hereof (in which event this Lease will thereupon be extended through the next extended period only, unless such written notice shall specifically state that this Lease is to be extended for more than one extended period) , and Tenant shall thereafter be unable to exercise its right of cancellation with reference to the extended period referred to in the notice provided for herein. Hereinafter, all reference to the term of this Lease shall be deemed to be a reference as well to such additional periods of time for which the term shall be so extended. It is understood by the Landlord and Tenant that S .A.M. shall have the sole right to exercise the option not to extend the Lease into any of the option periods . (c) In the event Landlord shall contribute the demised lands as provided in Section 4 . 2 of the Agreement of even date herewith between the parties hereto , this Lease shall terminate. Section 3 . Rent: For the period commencing on the Commencement Date and ending on September 30 , 1979 (first lease year) , Tenant agrees to pay a rental of One Dollar ($1. 00) plus forty-seven and four-tenths percent (47-4/100) of the cash flow derived from the operations by Tenant of the demised lands and Improvements for said period. Thereafter, for each twelve (12) month period during the term of this Lease commencing on October 1, and ending on September 30th • (hereinafter referred to as a Lease Year) , Tenant agrees to pay a rental of One Dollar ($1. 00) plus forty-seven and four-tenths percent (47-4/10%) of the cash flow derived from the operations by the Tenant of the demised land 'an Improve- ments for said Lease Year. Rental shall be payable on the later of three (3) months after the end of each Lease Year or within thirty (30) days after Tenant' s Certified Public Accountant determines what the cash flow is for the Lease Year. The term "cash flow" when used with respect to any period of time shall mean the excess of cash receipts which constitutes income from operations (thus among the items excluded from cash flow are proceeds from loans to the Partnership, proceeds of any sale, exchange, condemnation award, casualty loss recovery, liquidation or other disposition of all or any part of the assets of the Partnership and the capital contributions of the partners) over the sum of cash disbursements with respect to such period. Among the items included in the cash disbursement are: (1) operating expenses of the Partnership, (2) fixed costs (including payments under Section 6 of this Lease) of the Partnership, (3) capital improvements made by the Partnership , (4) management fees paid by the Partnership, and (5) payment of any Partnership debt and any interest associated with such debt (Partnership debt shall include loans from the interim lender, permanent lender, partners , or any other third person) . It is under- stood that for the purpose of computing land rent, the land rent paid to Landlord shall not be considered as a deduction in computing cash flow. If the demised lands are not contributed to the Tenant as provided for in Section 4 . 2 of the Agreement of even date herewith between the parties hereto prior to August 31 , -4- Y• • 2000 , then the rental for each Lease Year thereafter shall be the sum of One Dollar ($1 . 00) plus forty percent (40%) of cash flow derived from the operation by Tenant of the demised lands and Improvements for each Lease Year. Section 4 . Reserves : Savers , in its capacity as Landlord, shall, during the term of this Lease, remain bound to establish reserves as provided in Section 6 . 1 of the \ Agreement of even date herewith between the parties hereto. Section 5. Use of the Land: The demised lands may be used for any lawful purpose. Section 6 . Taxes and Utility Expenses : (a) (1) Tenant shall, during the term of this Lease, pay and discharge punctually, as and when the same shall become due and payable, all taxes, special and general assessments , water rents , rates and charges, sewer rents and other governmental imposi- tions and charges of every kind and nature whatsoever, extraordinary as well as ordinary (hereinafter referred to as "Taxes" ) , and each and every installment thereof which shall or may during the term of this Lease be charged, levied, laid, assessed, imposed, become due and payable, or liens upon or for or with respect to the demised lands or any part thereof, or any buildings, appurtenants or equipment owned by Tenant thereon or therein or any part thereof, together with all interest and penalties thereon, under or by virtue of all present or future laws , ordinances , require- ments, orders, directives , rules or regulations of the Federal, State, County, Town and City Governments and of all other governmental authorities whatsoever (all of which shall also be included in the term "Taxes" as heretofore defined) and all sewer rents and charges for water, steam, heat, gas , hot water, electricity, light and power, and other service or services , furnished to the demised lands or the occupants thereof during the term of this Lease (herein- after referred to as "Utility Expenses" ) . However , the real -5- property taxes due upon the demised lands for 1979 shall be prorated between the Tenant and Landlord to the Commencement Date hereof. (2) To the extent that the same may be permitted by law, Tenant or its designees shall have the right to apply for the conversion of any assessment for local Improvements assessed during the term of this Lease in order to cause the same to be payable in annual installments, and upon such conversion, Tenant shall pay and discharge punctually said installments as they shall become due and payable during the term of this Lease. Landlord agrees to permit the application for the foregoing conversion to be filed in Landlord' s name, if necessary, and shall execute any and all documents requested by Tenant to accomplish the foregoing result. (3) Tenant shall be deemed to have complied with the covenants of this paragraph (a) if payment of such Taxes shall have been made either within any period allowed by law or by the governmental authority imposing the same, during which payment is permitted without penalty or interest or before the same shall become a lien upon the demised lands , and Tenant shall produce and exhibit to Landlord satisfactory evidence of such payment, if Landlord shall demand the same in writing. _ (b) All such Taxes , including assessments which have been converted into installments as set forth in the preceding paragraph (a) , which shall become payable during each of the calendar or fiscal tax years , as the case may be , in which the term of this Lease terminates , shall be apportioned pro rata between Landlord and Tenant in accordance with the respective portions of such year during which such term shall be in effect. (c) (1) Tenant or its designees shall have the right to contest or review all such Taxes by legal proceedings , or -6- . 4 / in such other manner as it may deem suitable (which, if instituted, Tenant or its designees shall conduct promptly at its own cost and expense , and free of any expense to Landlord, and, if necessary, in the name of and with the cooperation of Landlord and Landlord shall execute all documents necessary to accomplish the foregoing) . Not- withstanding the foregoing, Tenant shall promptly pay all such Taxes if at any time the demised lands or any\part hereof shall then be immediately subject to forfeiture, or if Landlord shall be subject to any criminal liability, arising out of the nonpayment thereof. (2) The legal proceedings referred to in the preceding subparagraph (1) shall include appropriate certiorari pro- ceedings and appeals from orders therein and appeals from any judgments , decrees or orders. In the event of any reduction, cancellation or discharge, Tenant shall pay the amount finally levied or assessed against the demised lands or adjudicated to be due and payable on any such contested Taxes. (d) Landlord covenants and agrees that if there shall be any refunds or rebates on account of the Taxes paid by Tenant under the provisions of this Lease such refund or rebate shall belong to Tenant. Any refunds received by Landlord shall be deemed trust funds and as such are to be received by Landlord in trust and paid to Tenant forthwith. Landlord will, upon the request of Tenant, sign any receipts which may be necessary to secure the payment of any such refund or rebate, and will pay over to Tenant such refund or rebate as received by Landlord. Landlord further covenants and agrees on request of Tenant at any time, and from time to time, but without cost to Landlord, to make application individually (if legally required) or to join in Tenant' s application (if legally required) for separate tax assessments -7- r for such portions of the demised lands as Tenant shall at any time, and from time to time, designate. Landlord hereby agrees upon request of Tenant to execute such instruments and to give Tenant such assistance in connection with such applications as shall be required by Tenant. (e) Nothing herein or in this Lease otherwise contained shall require or be construed to require Tenant to pay any ti inheritance, estate, succession, transfer, gift, franchise, income or profit taxes, that are or may be imposed upon Landlord, its successors or assigns. Section 7. Improvements , Repairs , Additions , Replacements : (a) Tenant shall have the right at its. own cost and expense, to construct on any part or all of the demised lands , at any time and from time to time, such buildings , parking areas, driveways, walks, gardens , skyways and other similar and dissimilar Improvements as Tenant shall from time to time determine, provided that the same shall be in compliance with all then applicable building codes and ordinances. (b) Tenant may, subject to the approval of any mortgage lender, at its option and at its own cost and expense, at any time and from time to time, make such alterations, changes , replacements, improvements and additions in and to the demised lands , and the buildings and Improvements thereon, as it may deem desirable, including the demolition of any building (s) and Improvement (s) and/or structure (s) that now or hereafter may be situated or erected on the demised lands. (c) Until the expiration of this Lease , title to any building or buildings or Improvements situated or erected on the demised lands and the building equipment and other items installed thereon and any alteration , change or addition thereto shall remain solely in Tenant; and Tenant alone shall be entitled to deduct all depreciation on Tenant' s income tax returns for any such building or buildings , -8- building equipment and/or other items , improvements, additions , changes or alterations. It is agreed and understood that S.A.M. has a ninety-five percent (95%) ownership interest in said building or buildings or Improvements, and Savers has a five percent (5%) ownership interest in said building or buildings or Improvements and deductions for depreciation for any of the said building or buildings or Improvements shall be allocated ninety-five percent (95%) to Mintz and five percent (5%) to Savers. (d) On the last day or sooner of the termination of the term of this Lease, Tenant shall quit and surrender the demised lands and the buildings and permanent Improvements then thereon, if any, in its then condition. Section 8 . Requirements of Public Authority: (a) During the term of this Lease, Tenant shall, at its own cost and expense, promptly observe and comply with all present and future laws , ordinances, requirements , orders, directives , rules and regulations of the State, County, and City Govern- ments affecting the demised lands or appurtenances thereto or any part thereof whether the same are in force at the commencement of the term of this Lease or may in the future be passed, enacted or directed, and Tenant shall pay all costs, expenses, liabilities, losses , damages , fines , penalties, claims and demands, including reasonable counsel fees , that may in any manner arise out of or be imposed because of the failure of Tenant to comply with the covenants of this Section 8 . (b) Tenant shall have the right to contest by appropriate legal proceedings diligently conducted in good faith, in the name of the Tenant, or Landlord (if legally required) , or both (if legally required) , the validity or application of any law, ordinance , rule , regulation or requirement of the nature referred to in paragraph (a) of this Article and, if -9- name and address of the purchaser, transferee, or assignee. Upon any such sale, transfer, or assignment, Tenant shall be relieved of all further obligations hereunder and shall no longer have any liability under this Lease or with respect to the demised lands. Section 11. Signs : Tenant and Tenant' s subtenants shall have the right to install, maintain and replace in, on or over or in front of the demised lands or in any part thereof such signs and advertising matter as Tenant may desire, and Tenant shall comply with any applicable require- ments of governmental authorities having jurisdiction and shall obtain any necessary permits for such purposes . As used in this Section 11, the word "sign" shall be construed to include any placard, light or other advertising symbol or object, irrespective of whether same be temporary or permanent. Section 12. Transfer of Interest in Demised Lands : Landlord shall not transfer its interest in the demised lands in a manner which would be inconsistent with its obligations under the Agreement of even date herewith between the parties hereto. Section 13. Insurance : (a) Tenant shall provide, at its expense and keep in force during the term of this Lease , general liability insurance with a good and solvent insurance company or companies selected by Tenant in such amount and according to such terms as shall be reasonably satisfactory to the holder of any mortgage permitted under the provisions of Section 17 or Section 19 hereof (all of such mortgages. being hereinafter collectively referred to as "Mortgage" or "Mortgages" and the holder (s) thereof as "Mortgagee (s) " ) , or, if there shall not be such a Mortgage, in the amount of at least One Million Dollars ($1, 000 , 000 . 00) with respect to injury or death to any one person and Five Hundred Thousand Dollars ($500 , 000. 00) with respect to property damage. Such policy or policies shall include Landlord and Tenant and -11- each such Mortgagee (if required by Mortgagee) as assureds . Tenant agrees to deliver certificates of such insurance to Landlord at the beginning of the term of this Lease and thereafter not less than ten (10) days prior to the expi- ration of any such policy. Such insurance shall be non- cancellable without ten (10) days ' written notice to Landlord and to each such Mortgagee (if required by Mortgagee) . , (b) During the term of this Lease, Tenant shall keep all buildings and Improvements erected by Tenant on the demised lands at any time insured for the benefit of Landlord and Tenant and the holder of any such Mortgage as their respective interests may appear, against loss or damage by fire and customary extended coverage in a minimum amount necessary to avoid the effect of co-insurance provisions of the applicable policies . Tenant shall also carry such other insurance as may be required by any Mortgagee of the demised lands. All such policies or certificates thereof, shall be held by the holder of any such Mortgage, if any, or by Tenant, so long as there shall be no such Mortgages. All proceeds payable at any time and from time to time by any insurance company under such policies shall be payable to such Mortgagee, if any, or, if none, to Tenant. If any such proceeds are paid to such Mortgagee, Tenant shall be entitled to receive the full amount thereof in accordance with the terms of such Mortgage, and Landlord shall not be entitled to, and shall have no interest in, such proceeds or any part thereof. Any proceeds paid directly to Tenant shall be - retained by Tenant and Landlord shall not be entitled to, and shall have no interest in, such proceeds or any part thereof. Landlord shall, at Tenant' s cost and expense , cooperate fully with Tenant in order to obtain the largest possible recovery and execute any and all consents and other instruments and take all other actions necessary or desirable -12- • • . in order to effectuate the same and to cause such proceeds to be paid as hereinbefore provided and Landlord shall not carry any insurance concurrent in coverage__and contributing in the event of loss with any insurance required to be furnished by Tenant hereunder if the effect of such separate insurance would be to reduce the protection or the payment to be made under Tenant' s insurance. (c) Any insurance required to be provided by Tenant pursuant to this Lease may be provided by blanket insurance covering the demised lands and other locations of Tenant provided such blanket insurance complies with all of the other requirements of this Lease with respect to the insurance involved and such blanket insurance is acceptable to any Mortgagee. Section 14 . Waiver of Subrogation: All insurance policies carried by either party covering the demised lands , including, but not limited to, contents , fire and casualty insurance, shall expressly waive any right on the part of the insurer against the other party. The parties hereto agree that their policies will include such waiver clause or endorsement so long as the same shall be obtainable without extra cost, or if extra cost shall be charged therefor, so long as the other party pays such extra cost; If extra cost shall be chargeable therefor, each party shall advise the other thereof and of the amount of the extra cost, and the other party, at its election, may pay the same, but shall not be obligated to do so. Section 15. Destruction: (a) In the event that, at any time during the term of this Lease , the office building, parking deck or improvements on the demised lands shall be destroyed or damaged in whole or in part by fire or other cause within the extended coverage of the fire insurance policies carried by Tenant in accordance with this Lease, -13- by the terms of any such law, ordinance, order, rule, regulation or requirement, compliance therewith may legally be delayed pending the prosecution of any such proceeding, Tenant may delay such compliance therewith until the final determination of such proceeding. (c) Landlord agrees to execute and deliver any appropriate papers 'or other instruments which may be necessary or proper to permit Tenant so to contest the validity or application of any such law, ordinance, order, rule, regulation or requirement and to fully cooperate with Tenant in such contest. Section 9 . Access to Premises : Landlord or Landlord' s agents and designees shall have the right, but not the obligation, to enter upon the demised lands at all reason- able times to examine same and to exhibit the demised lands to prospective purchasers and prospective tenants , but in the latter case only during the last six (6) months of this term of this Lease. Landlord shall be permitted to affix a "To Let" or "For Sale" sign on the demised lands during the last ninety (90) days of the term of this Lease in such place as shall not interfere with the business then being conducted at the demised lands . Section 10 . Assignment and Subletting: _ Tenant may sell, transfer, assign, sublease (in whole or in part or parts) , mortgage or otherwise encumber this Lease (in whole or in part or parts) or any sublease of all or any part of the demised lands and may permit its subtenant or subtenants to assign, sublease (in whole or in part or parts) , mortgage or otherwise encumber this Lease or any sublease of all of any part of the demised lands , without requiring Landlord ' s consent therefor . Tenant agrees to furnish to Landlord written notice of the sale , transfer , or assignment of this Lease within thirty (30) days thereafter , together with the -10- then, Tenant, at its own cost and expense, shall, subject to the provisions of paragraph (b) of this Section 15, cause the same to be repaired, replaced or rebuilt within a period of time which, under all prevailing circumstances , shall be reasonable, provided Tenant receives all the insurance proceeds for the purpose to repair, replace or rebuild the damaged Improvements. Tenant shall have no obligation to rebuild, repair or replace if it does not receive '11 of said insurance proceeds , or if the damage is uninsured. If the cost of such repairs or restorations is less than the insurance proceeds, any amount remaining shall be treated as cash flow. (b) In the event that at any time during the term of this Lease, either the office building or the parking deck shall have been damaged or destroyed by fire or any other cause whatsoever, and, as a result of such damage or destruc- tion, any one or more of the subleases covering such office building or parking deck shall be terminated by the subtenant thereunder or by Tenant, then, notwithstanding the provisions of paragraph (a) of this Section 15 or any other provision of this Lease : (1) If the aggregate floor area of the office building or parking deck, as the case may be , damaged by such fire or other cause shall exceed fifteen percent (15%) of the floor area of said office building or parking deck immediately prior to such damage or destruction, or if such destruction shall occur during the last ten (10) years of the initial term or any extended term thereof , and if Tenant is obligated to restore under paragraph (a) of this Section ) 5 , Tenant shall have the right, but not the obligation, to elect not to repair , replace or rebuild such damaged office building or parking deck, as the case may be , and to terminate this Lease by giving written notice of termination to Landlord on or prior to six (6) months -14- .car after the occurrence of such damage or destruction, and upon the giving of such notice of termination, the term of this Lease shall expire and come to an end on the last day of the calendar month in which such notice shall be given, with the same force and effect as if said day had been originally fixed herein as the expiration date of the term of this Lease, and neitherl_party shall have any further rights or liabilities hereunder. If the Lease is terminated hereunder, any insurance proceeds remaining after satisfaction of all obligations to the mortgagee shall belong to Tenant. (2) If Tenant shall not have the right to terminate this Lease pursuant to subparagraph (1) above or, having such right, shall not elect to terminate this Lease, Tenant shall not be required to repair, replace or rebuild said damaged office building or parking deck because of termination of the initial sublease of Savers until such time as Tenant shall resublet the space covered by the said sublease to a new subtenant or the prior subtenant, if such prior subtenant shall relet the said damaged office building. (c) This Lease shall not terminate by reason of destruction of part or all of the Improvements unless Tenant elects to terminate. Section 16 . Eminent Domain: (a) If the whole of the demised lands shall be taken for any public or quasi-public use under any statute or by right of eminent domain or by private purchase in lieu thereof , then this Lease shall automatically terminate as of the date that possession has been taken. In the event of a partial taking (or purchase) or the demised lands pursuant to which more than fifteen percent (15%) of the demised lands are so taken (or so purchased) or if as a result of a taking (or purchase) of any part of the demised lands , one or more subleases covering -15- 7 ' more than fifteen percent (15%) of the floor area in the office building or parking deck shall be terminated auto- matically or by the subtenant thereunder or by Tenant, then Tenant shall have the right, but not the obligation, to terminate this Lease by giving written notice of such termination to Landlord on or prior to the date one hundred eighty (180) days after the date of such taking (or purchase) , and upon the giving of such notice of termination, the term of this Lease shall expire and come to an end on the last day of the calendar month in which such notice shall be given, with the same force and effect as if said day had been originally fixed herein as the expiration date of the term of this Lease. In the event the Lease shall terminate or shall be terminated, the rental shall, if and when necessary, be adjusted to the day of the taking (or purchase) and neither party shall have any further rights or liabilities hereunder. (b) In the event of a taking (or purchase) resulting in the termination of this Lease pursuant to the provisions of paragraph (a) of this Section 16 , the parties hereto agree to cooperate in applying for and in prosecuting any claim for such taking and further agree that the aggregate net award or purchase price, after deducting all expenses and costs, including attorneys ' fees , incurred in connection therewith, payable to both Landlord and Tenant shall be paid to Tenant (or if required, to any Mortgagee) and distributed as follows : (1) So much of such net award as is available for distribution shall first be paid to the holder or holders of any Mortgage or Mortgages to the extent of the then unpaid principal amount of such Mortgage or Mortgages . (2) Then, any balance (herein called the "Fund" ) of the net award, if any, remaining after such payments shall be treated as cash flow, with "cash flow" to be determined as though the Land Lease were still in effect. -16- (c) (1) In the event of a partial taking (or purchase) not resulting in the termination of this Lease , pursuant to the provisions of paragraph (a) of this Section 16 , Tenant shall, at its own cost and expense, make all repairs to the buildings and Improvements on the demised lands affected by such taking (or purchase) to the extent necessary to restore the same to a complete architectural unit (to the extent , permitted, however, taking into consideration t� amount of land remaining after any such taking or purchase) , provided, however, that Tenant shall not be obligated to expend an amount in excess of the proceeds available to Tenant for such purposes, as hereinafter provided. (2) All compensation available or paid to Landlord and Tenant upon such a partial taking (or purchase) shall be paid to Tenant for the purpose of paying towards the cost of such restoration, or, in the event that the parties hereto agree that only a portion of the aggregate award is sufficient to so restore, then only such portion as agreed upon shall be paid to Tenant for such purpose and the balance shall be distributed pursuant to subparagraph (3) of this paragraph (c) of this Section 16 . (3) All compensation available or paid to Landlord and Tenant upon such a partial taking (or purchase) in excess of the amount thereof needed by Tenant to repair and restore the buildings and Improvements shall be treated as cash flow. This Lease shall not terminate in the event of a partial taking (or purchase) unless the Tenant elects to terminate. Section 17 . Mortgages : (a) Landlord hereby covenants and agrees that during the term of this Lease (and extensions thereof) , Landlord shall not have the right or power to mortgage or otherwise create any security or other liens or encumbrances upon or affecting the fee interest in the demised lands , or buildings, Improvements , fixtures , equipment or other property thereon, or any part thereof, at any time and from time to time , and Landlord shall not have the right -17- or power to mortgage or to modify, extend, renew, replace, refinance or otherwise change or affect any Mortgage at any time or from time to time created by Tenant pursuant to this • Lease, and Landlord covenants and agrees that all such rights and powers are hereby exclusively and irrevocably vested in and granted to Tenant, subject to the terms and conditions hereinafter set forth. These provisions shall not be construed to prevent or excuse Landlord frost, executing and delivering the mortgages and other agreements , instruments and documents referred to in paragraph (b) of this Section 17 in order to enable Tenant and every successor and assign of Tenant, including but not limited to_, any sublessee of Tenant, but only with Tenant' s prior consent (all of the aforesaid entities being hereinafter referred to collectively as "Tenant" , for purposes of this Section 17) , to exercise and effectuate such rights and powers. (b) Tenant shall have the right, at any time and from time to time, during the term of this Lease (as the same may be renewed and extended) to subject the fee interest of Landlord in the demised lands, or any part or parts thereof, including all rights and easements appurtenant thereto and all buildings and other Improvements thereon, at any time and from time to time, to any one or more "Permitted Mortgages" (as defined in paragraph (d) of this Section 17) , and to renew, modify, consolidate, replace, extend and/or refinance (any and all of the foregoing being hereinafter included in the term "Refinance" or "Refinancing" as used herein and such terms shall also include the replacement of any Permitted Mortgage which shall be satisfied when due or by prepayment) any one or more such Permitted Mortgages . If Tenant shall desire and obtain a commitment for such a Permitted Mortgage or Refinancing , Tenant shall give Landlord written notice thereof and of the closing date therefor, at least fifteen (15) days prior thereto, and Landlord agrees that it shall , at or prior to the closing of such Permitted Mortgage or Refinancing, execute , acknowledce and deliver the mortgage • -18- note, mortgage, and/or deed of trust and such other instru- ments and documents as shall be required or desired by, and in form satisfactory to, the Lending Institution (as defined in paragraph (d) ) , in order to effect such Permitted Mortgage or Refinancing and hereby irrevocably appoints Tenant its attorney in fact to execute, acknowledge and deliver any of the foregoing in the name and stead of Landlord. Tenant (subject to the exculpation provisions of this Lease and of each Mortgage) covenants and agrees to make all payments of interest and amortization under any such Permitted Mortgage and to pay all of the costs and expenses incurred in connection therewith, all of which shall be paid by Tenant directly to the aforesaid Lending Institution as and when the same shall be due and payable. Landlord covenants and agrees that Tenant alone shall be entitled to all of the proceeds from any such Permitted Mortgage at any time and from time to time effected pursuant to this Lease , and Landlord shall not be entitled to, and shall not receive and shall have no interest in, such proceeds or any part thereof, and hereby directs the aforesaid Lending Institution granting such Permitted Mortgage to pay the aforesaid proceeds directly to Tenant and hereby covenants to execute any further documents which may be required by the aforesaid Lending Institution for such purpose. If , nevertheless , the aforesaid Lending Institution shall refuse to pay the proceeds of such Permitted Mortgage to a party other than Landlord, or Landlord and Tenant jointly, then Landlord agrees to hold all checks (or other orders for the payment of money) or cash proceeds received by it from the said Lending Institution, in trust, and to forthwith endorse (if necessary) and turn same over to Tenant. (c) If Landlord shall fail or refuse to execute the documents referred to in paragraph (b) of this Section 17 , -19- . including but not -limited to the Mortgage Note, Mortgage and/or Deed of Trust and the documents otherwise indicated in this Section 17 , then Tenant shall be entitled to such remedies at law and/or equity to which it may be entitled (including specific performance and declaratory judgment) , and in addition thereto, all rent due to Landlord under the terms of this Lease shall abate until Landlord shall have complied with its obligation under this Section (d) Landlord and Tenant agree that this Lease and the fee interest of Landlord in the demised lands shall be, and hereby are made, subject and subordinate at all times to the lien of all Mortgages (herein called"Permitted Mortgage") • which may at any time, and from time to time, including those which may hereinafter affect all or any part of the fee of the demised lands , including all rights and easements appurtenant thereto and the buildings and improvements thereon, at any time and from time to time, and to any and all Refinancing thereof , obtained from a Lending Institution (as hereinafter defined) . For the purposes of this Lease, the term "Lending Institution" shall mean any insurance company, bank or trust company; college, university, charitable institution or union; pension, profit or retirement fund or trust; governmental agency or fund; or other financial or lending institution whose loans on real estate or with respect thereto are regulated by State or Federal law. (e) Tenant and Landlord each covenant to execute, whenever required by the other, a proper instrument of subordination evidencing the provisions of this Section 17 , and each and their respective successors and assigns , is hereby irrevocably appointed attorney in fact for and on behalf of the other to execute any instruments of subordi- nation in accordance with the provisions of this Section 17 . (f) The terms "Mortgage" and "Permitted Mortgage" as used herein shall include both so-called permanent financing -20- and so-called interim building and/or construction loan financing and all advances thereunder. All of the provisions hereof which shall apply with respect to Landlord' s oblica- tions with respect to permanent financing, shall apply as well to such so-called interim building and/or construction loan financing and all advances thereunder and Landlord shall execute any and all agreements and other instruments • necessary or desirable in connection therewith. Tenant, however, in connection with such interim building and/or construction loan financing, shall not be required to obtain any such financing from a Lending Institution, provided there shall be in existence at or about the time the Mortgage • securing such interim building and/or construction loan financing becomes a lien against the demised lands , a commitment from a Lending Institution for a so-called permanent loan in an amount equal to the amount of all advances actually made at said time pursuant to said interim building and/or construction loan financing. (g) Any Permitted Mortgage may also contain, at Tenant's option, so-called open-end provisions for further advances thereunder. All the provisions of this Section 17 shall apply to such subsequent advances as fully and with the same force and effect as with respect to the original advance and loan. The term "Mortgage, " whenever used herein, shall include whatever security instruments are used in the locale of the demised lands, such as , without limitation, deeds of trust, security deeds and conditional deeds , as well as financing statements , security agreements and other docu- mentation required pursuant to the Uniform Commercial Coda. The term "Mortgage" whenever used herein, shall also include any instruments required in connection with a sale-ieaseb_c:•_ transaction with a Lending Institution. (h) Landlord and Tenant agree to execute and derive= to each Lending Institution such instruments of assignment _,1 - and consent, and in such form, as shall be desired or required by such Lending Institution, as additional collateral and security, of its right, title and interest in, to and under this Lease and any sublease (s) affecting the demised lands , including, without limitation, the rents and additional rents payable hereunder and thereunder. • (i) Landlord and Tenant further agree to execute and deliver to any Lending Institution requiring same,\an Amendment of Lease incorporating such modifications of the terms and provisions of this Lease as such Lending Institution shall reasonably require as a condition precedent to their granting of a loan or a commitment secured by a Permitted Mortgage. Notwithstanding the foregoing, neither Landlord nor Tenant shall be required to execute any Amendment of Lease which shall modify the provisions of this Lease relating to the amount of rent reserved, the obligation on Tenant' s part to make payments of Taxes and Utility Expenses , the size and location of the demised lands , and the duration or Commencement Date of the term, and Landlord will have no action against Tenant if the demised lands or other assets are seized and sold for payment of and debt of the Tenant. Section 18 . Sublease : If , for any reason, this Lease and the leasehold estate of Tenant hereunder is terminated by Landlord by summary proceedings or otherwise in accordance with the terms of this Lease , Landlord covenants and agrees that such termination of this Lease shall not result in a termination of any sublease affecting the demised lands and that they shall all continue for the duration of their respective terms and any extension thereof as a direct Lease between Landlord hereunder and the sublessee thereunder , with the same force and effect as if Landlord hereunder had originally entered into such sublease as Landlord thereunder (subject, however, to the prior right of the holder of any leasehold Mortgage) . Any such sublessee shall not be named -22- or joined in any action or proceeding by Landlord under this Lease to recover possession of the demised lands or for any other relief. Landlord shall, upon request, execute, acknowledge and deliver such agreements evidencing and agreeing to the foregoing as each sublessee shall require. • Section 19 . Leasehold Mortgages : Tenant and every successor and assign of Tenant (including, but not limited to, any sublessee of Tenant, but only with Tenant' prior consent) is hereby given the right by Landlord in addition to any other rights herein granted, without Landlord' s prior written consent, to mortgage its interests in this Lease (s) , or any part or parts thereof , and any� sublease (s) under one or more first leasehold Mortgage (s) and/or under a purchase money first or second leasehold Mortgage (s) in connection with any sale of such interest, and assign this Lease, or any part or parts thereof , and any sublease (s) as collateral security for such Mortgage (s) , upon the condition that all rights acquired under such Mortgage (s) shall be subject to each and all of the covenants , conditions and restrictions set forth in this Lease, and to all rights and interests of Landlord herein, none of which covenants , conditions or restrictions is or shall be waived by Landlord by reason of the right given so to mortgage such interest in this Lease, except as expressly provided herein. If Tenant and/or Tenant' s successors and assigns (including, but not limited to, any sublessee of Tenant, but only with Tenant' s prior consent) shall mortgage this leasehold, or any part or parts thereof, and if the holder (s) of such Mortgage (s) shall , within thirty (30) days of its execution, send to Landlord a true copy thereof , together with written notice specifying the name and address of the Mortgagee and the pertinent recording date with respect to such Mortcaae (s) , Landlord agrees that so long as any such leasehold Mortgage (s) shall -?3- remain unsatisfied of record or until written notice of satisfaction is given by the holder (s) to Landlord, the following provisions shall apply: (a) There shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent in writing of the leasehold Mortgagee (s) ; (b) Landlord shall, upon serving Tenant with any notice of default, simultaneously serve a copy of such notice upon the holder (s) of such leasehold Mortgage (s) . The leasehold Mortgagee (s) shall thereupon have the same period, after service of such notice upon it, to remedy or cause to be remedied the defaults complained of , and Landlord shall accept such performance by or at the instigation of such leasehold Mortgagee (s) as if the same had been done by Tenant; (c) Anything herein contained notwithstanding, while such leasehold Mortgage (s) remains unsatisfied of record, or until written notice of satisfaction is given by the holder (s) to Landlord, if any default shall occur which, pursuant to any provision of this Lease , entitles Landlord to terminate this Lease, and if before the expiration of ten (10) days from the date of service of notice of termination upon such leasehold Mortgagee (s) , such leasehold Mortgagee (s) shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all rent and additional rent and other payments herein provided for, and then in default, and shall have complied or shall commence the work of complying with all of the other requirements of this Lease , except as provided in paragraph (g) of this Section 19 , if any are then in default, and shall prosecute the same to completion with reasonable diligence, then in such event, Landlord shall not be entitled to terminate this Lease and any notice -24- % of termination theretofore given shall be void and of no effect; (d) If the Landlord shall elect to terminate this Lease by reason of any default of Tenant, the leasehold Mortgagee (s) shall not only have the right to nullify any notice of termination by curing such default, as aforesaid, but shall also have the right to postpone and extend the specified date for the termination of this Lease as';fixed by Landlord in its notice of termination, for a period of not more than six (6) months , provided that such leasehold Mortgagee (s) shall cure or cause to be cured any then existing money defaults and meanwhile pay the rent and comply with and perform all of the other terms , conditions and provisions of this Lease on Tenant' s part to be complied with and performed, other than past nonmonetary defaults , and provided further that the leasehold Mortgagee (s) shall forthwith take steps to acquire or sell Tenant' s interest in this Lease by foreclosure of the Mortgage (s) or otherwise and shall prosecute the same to completion with all due diligence. If, at the end of said six (6) month period, the leasehold Mortgagee (s) shall be actively engaged in steps to acquire or sell Tenant' s interest herein, the time of said Mortgagee to comply with the provisions of this Section 19 shall be extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity; (e) Landlord agrees that the name of the leasehold Mortgagee (s) may be added to the "Loss Payable Endorsement" of any and all insurance policies required to be carried by Tenant hereunder on condition that the insurance proceeds are to be applied in the manner specified in this Lease and that the leasehold Mortgage (s) or collateral document shall so provide; -25- (f) Landlord agrees that in the event of termination of this Lease by reason of any default by Tenant other than for nonpayment of rent and other payments herein provided for, that Landlord will enter into a new Lease of the demised lands with the leasehold Mortgagee (s) or its nominee (s) , for the remainder of the term, effective as of the date of such termination, at the rent and upon the terms , provisions , covenants and agreements as herein contained and subject only to the same conditions of title as this Lease is subject to on the date of the execution hereof , and to the rights , if any, of any parties then in possession of any part of the demised lands, provided: (1) Said Mortgagee (s) or its nominee shall make written request upon Landlord for such new Lease within fifteen (15) days after the date of such termination and such written request is accompanied by payment to Landlord of sums then due to Landlord under this Lease; (2) Said Mortgagee (s) or its nominee (s) shall pay to Landlord at the time of the execution and delivery of said new Lease , any and all sums which would at the time of the execution and delivery thereof , be due pursuant to this Lease but for such termination, and in addition thereto, any expenses , including reasonable attorneys ' fees , to which Landlord shall have been subjected by reason of such default; (3) Said Mortgagee (s) or its nominee (s) shall perform and observe all covenants herein contained on Tenant' s part to be performed and shall further remedy any other conditions which Tenant under the terminated Lease was obligated to perform under the terms of this Lease ; and upon execution and delivery of such new Lease , any subleases which may have theretofore been assigned and transferred by Tenant to Landlord , as _:g_ . security under this Lease, shall thereupon be deemed to be held by Landlord as security for the performance of all of the obligations of Tenant under the new Lease; (4) Landlord shall not warrant possession of the demised lands to Tenant under the new Lease; (5) Such new Lease shall be expressly made subject to the rights , if any , of Tenant under the germinated Lease; (6) The Tenant under such new Lease shall have the same right, title and interest in and to the buildings and Improvements on the demised lands as Tenant had under the terminated Lease; (g) Nothing herein contained shall require the leasehold Mortgagee (s) or its nominee (s) to cure any default of Tenant under this Lease; (h) Landlord agrees promptly after submission to execute, acknowledge and deliver any agreements modifying this Lease requested by any leasehold Mortgagee (s) , provided that such modification does not decrease Tenant' s obligations or decrease Landlord' s rights pursuant to this Lease; (i) The proceeds from any insurance policies or arising from a condemnation are to be held by any leasehold Mortgagee (s) and distributed pursuant to the provisions of this Lease , but the leasehold Mortgagee (s ) may reserve its rights to apply to the mortgage debt all , or any part, of Tenant ' s share of such proceeds pursuant to such Mortgage (s) ; (j ) The leasehold Mortgagee (s) shall be given notice of any arbitration proceedings by the parties hereto, and shall have the right to intervene therein and be made a party to such proceedings , and the parties hereto do hereby consent to such intervention . In the event that the leasehold Mortgagee (s) shall not elect to intervene or become a party to such proceedings , the leasehold Mortgagee (s) shall receive -27- . notice of, and a copy of any award or decision made in said arbitration proceedings ; and (k) Landlord shall, upon request, execute , acknowledge and delivery to each leasehold Mortgagee (s) , an agreement prepared at the sole cost and expense of Tenant, in form satisfactory to such leasehold Mortgagee (s) , between Landlord, Tenant and leasehold Mortgagee (s) , agreeing to all of the provisions of this Section 19 . The _ term "Mortgage, " whenever used herein, shall include whatever security instruments are used in the locale of the demised lands , such as , without limitation, deeds of trust, security deeds and conditional deeds , as well as financing statements , security agreements and other documentation required pursuant to the Uniform Commercial Code. The term "Mortgage" whenever used herein, shall also include any instruments required in connection with a sale-leaseback transaction. Section 20 . Performance by Subtenant: Any act required to be performed by Tenant pursuant to the terms of this Lease may be performed by any sublessee of Tenant occupying all or any part of the demised lands and the performance of such act shall be deemed to be performance by Tenant and shall be acceptable as Tenant' s act by Landlord. Section 21. Agency: In addition to any other rights that Tenant may have pursuant to this Lease , if Landlord fails to execute , acknowledge and deliver any instrument or instruments required of Landlord to effectuate the provisions of this Lease, Landlord does hereby constitute and appoint Tenant as its attorney in fact, having the power coupled with an interest, to execute , acknowledge and deliver any such instrument or instruments for and on behalf of Landlord. Notwithstanding the foregoing , Tenant agrees that it shall not exercise its foregoing rights unless it shall have notified Landlord of its intention to do so and shall have given Landlord an additional period of five (5) days from -28- . r the date of such notice to execute , acknowledge and deliver such instrument or instruments , unless a shorter period is expressly provided under this Lease . In the event any person who may request to be or be a party to any such instrument or instruments refuses to recognize Tenant as the true and lawful attorney in fact of Landlord, Landlord shall cause a bank or trust company situated in the political • subdivision in which the demised lands are located to act as a substitute for Tenant, upon Tenant' s request therefor , and execute such instrument or instruments or take any action requested by Tenant which Tenant might otherwise execute or take in accordance with the provisions _,hereof. Said substitute shall execute such instrument or instruments in the name of and on behalf of Landlord in accordance with the terms of this Lease as a ministerial function, and shall not be empowered or required to determine the reasonableness , necessity or desirability thereof. Section 22 . Quiet Enjoyment : (a) Tenant, upon paying the rent and observing and keeping all covenants , warranties , agreements and conditions of this Lease on its part to be kept, shall quietly have and enjoy the demised lands during the term of this Lease , without hindrance or molestation by anyone. - (b) Landlord represents and warrants to Tenant that it has fee simple title to the demised lands and the power and authority to execute and deliver this Lease and to carry out and perform all covenants to be performed by it hereunder-. Landlord further represents and warrants to Tenant : (1) That the demised lands are free from all encumbrances , liens , defects in title , violations of law, leases , tenancies , easements , restrictions and agreements (other than those of record or relative to the construction of the office building and parking -29- respects to the interim lender, the First National Bank in Little Rock, Arkansas , and the permanent lender, Connecticut General Life Insurance Company, and that a true copy of said form of lease as modified in Exhibit D-3 of the said Tri- party Agreement is contained in the Book of Exhibits to this Agreement. (14) Savers represents and warrants that it has assigned, conveyed, leased and/or subleased (with the exception of fee ownership of the land) to Savers and S .A.M. as provided for Agreement under this/all the collateral required by Connecticut General Life Insurance Company to be incumbered so as to satisfy the commitment of the permanent lender, Connecticut General Life Insurance Company; and that the status of title to said collateral (including the Land) is satisfactory to the permanent lender, Connecticut General Life Insurance Company. (15) Savers warrants and represents that the legal description in the Land Lease Agreement dated May 1, 1979 , between Savers (Landlord) and Savers and S .A.M. (Tenant) and in this Agreement as provided for in Exhibit 1 of each correctly describes the land, skyway agreement, air rights and other collateral that Connecticut General Life Insurance Company requires to be encumbered to satisfy its commitment, and Connecticut General Life Insurance Company and Lawyers Title Insurance Company have approved the said description. 21. 2 Warranties and Representations by S .A.M. (1) S .A.M. warrants and represents that it is a valid Partnership under the laws of the State of Arkansas; (2) S.A.M. warrants and represents that it is duly authorized to make this investment; (3) S.A.M. warrants and represents that the party executing this Agreement has authority to bind the Partnership; (4) S.A.M. warrants and represents that all financial information which S.A.M. will give or has given to Connecticut General Life Insurance Company is true, complete and correct; -30- • (b) In the event that Landlord gives notice of a default of such a nature that it cannot be cured within such sixty (60) day period then such default shall not be deemed to continue so long as Tenant, after receiving such notice, proceeds to cure the default as soon as reasonably possible and continues to take all steps necessary to complete the same within a period of time which, under all prevailing circumstances, N shall be reasonable. No default shall be deemed o'continue if and so long as Tenant shall be so proceeding to cure the same in good faith or be delayed in or prevented from curing the same by any cause specified in Section 28 hereof. (c) Notwithstanding anything to the contrary contained in this Section 23, in the event that any default (s) of Tenant shall be cured in any manner hereinabove provided, such default (s) shall be deemed never to have occurred and Tenant' s rights hereunder shall continue unaffected by such default (s) . Section 24 . Nonmerger: It is the express agreement and understanding of the parties hereto that no provisions of this Agreement shall operate (whether alone or in con- junction with any other agreement between the parties hereto) to cause a merger of the leasehold interest of Savers in the demised lands with its interest as owner of the fee. Section 25. Waivers : Failure of Landlord or Tenant to complain of any act or omission on the part of the other party no matter how long the same may continue shall not be deemed to be a waiver by said party of any of its rights hereunder. No waiver by Landlord or Tenant at any time, express or implied, of any breach of any provision of this Lease shall be deemed a waiver of a breach cf anv other -31- 7 provision of this Lease or a consent to any subsequent breach of the same or any other provisions. Section 26 . Limitation of Liability: Subject to the provisions of Section 23 , if Tenant or any successor in interest of Tenant shall be a mortgagee, or an individual, • joint venture, tenancy in common, firm or partnership, general or limited, it is specifically understood and agreed that there shall be absolutely no personal liability on the part of such mortgagee or such individual or such tenants in common or on the part of the members of such firm, partnership or joint venture with respect to any of the terms , covenants and conditions of this lease , and Landlord shall look solely to the equity of Tenant or such successor in interest in the leasehold estate of Tenant in the demised lands for the satisfaction of each and every remedy of Landlord in the event of any breach by Tenant or by such successor in interest of any of the terms, covenants and conditions of this lease to be perfozmed by Tenant, such exculpation of personal liability to be absolute and without any exception whatsoever. Section 27 . Title: Upon the execution of this Lease, Landlord shall furnish to Tenant, at Landlord' s sole cost and expense, a title policy commitment to provide title insurance in an amount satisfactory to Tenant issued by a title company selected by Landlord and satisfactory to Tenant insuring Tenant' s marketable title in the leasehold estate created hereunder (including ownership of the improve- ments) free and clear of all liens , encumbrances and tenancies of any kind, nature and description, except as disclosed to Tenant in writing and accepted by Tenant prior to execution of this Lease. Section 28 . Force Majeure : In the event that Landlord or Tenant shall be delayed, hindered in or prevented from the performance of any act required hereunder by reason of strikes, lock-outs , labor troubles , inability to procure -32- materials, failure of power, restrictive governmental laws or regulations, riots , insurrection, the act, failure to act or default of the other party, war or other reason beyond their control , then performance of such act shall be excused for the period of the delay and the period for the perfor- mance of any such act shall be extended for a period equiva- lent to the period of such delay. Section 29 . Notices : Every notice, approval, consent or other communication authorized or required by this Lease shall not be effective unless same shall be in writing and sent postage prepaid by United States registered or certified mail, return receipt requested, directed to the other party at the addresses set forth below, or such other address as either party may designate by notice given from time to time in accordance with this Section 29 . The rent payable by Tenant hereunder shall be paid to Landlord at the same place where a notice to Landlord is herein required to be directed. For purposes of this Agreement, the addresses of the parties hereto are as follows : Savers Federal Savings and Loan Association P. 0. Drawer 2499 Little Rock, Arkansas 72203 S.A.M. Limited Partnership P . 0. Box 6058 Monroe, Louisiana 71201 and 4000 W. 65th Street Little Rock, Arkansas 72209 Section 30 . Certificates : Either party shall, without charge, at any time and from time to time hereafter, within ten (10) days after written request of the other , certify by written instrument duly executed and acknowledged to any mortgagee or purchaser, or proposed mortgagee or proposed purchaser, or any other person , firm or corporation specified in such request : (a) as to whether this Lease has been supplemented or amended, and if so, the substance and manner of such supplement or amendment; (b) as to the validity and -33- • • force and effect of this Lease, in accordance with its tenor as then constituted; (c) as to the existence of any default thereunder; (d) as to the existence of any offsets, counter- claims or defenses thereto on the part of such other party; (e) as to the commencement and expiration dates of the term of this Lease; and (f) as to any other matters as may reasonably be so requested. Any such certificate may be relied upon by the party requesting it and any other person, firm or corporation to whom the same may be exhibited or delivered, and the contents of such certificate shall be binding on the party executing same. Section 31. Governing Law: This Lease and the per- formance thereof shall be governed, interpreted, construed and regulated by the laws of the State of Arkansas. Section 32. Partial Invalidity: If any term, covenant, condition or provisicn of this Lease or the application thereof to any person or circumstance shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provisions to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, condition and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. Section 33 . Short Form Lease: The parties will at any time, at the request of either one, promptly execute duplicate originals of an instrument, in recordable form, which will constitute a short form of Lease , setting forth a description of the demised lands , the term of this Lease , and any other portions thereof , excepting the rental provisions , as either 1 party may request. Section 34 . Interpretation : Wherever herein the singular number is used, the same shall include the plural, and the masculine gender shall include the feminine and -34- 1 neuter genders, and vice versa, as the context shall require . The section headings used herein are for reference and convenience only, and shall not enter into the interpretation hereof. This Lease may be executed in several counterparts, each of which shall be an original , but all of which shall constitute one and the same instrument. The terms "Landlord" and "Tenant" whenever used herein shall mean only the owner at the time of Landlord ' s or Tenant ' s interest herein, and upon any sale or assignment of the interest of either Landlord or Tenant herein, their respective successors in interest and/or assigns shall, during the term of their ownership of their respective estates herein, be deemed to be Landlord or Tenant, as the case may be. Section 35 . Entire Agreement: No oral statement or prior written matter shall have any force or effect. Subject to the provisions of Section 37 , and that sub-lease with Savers Federal Savings and Loan Association dated May 1 , 1979 . Tenant agrees that it is not relying on any representations or agreements other than those contained in this Lease. This agreement shall not be modified or cancelled except by writing subscribed by all parties . Section 36 . Parties : Except as herein otherwise expressly provided, the covenants, conditions and agreements contained in this Lease shall bind and inure to the benefit of Landlord and Tenant and their respective heirs , successors, administrators and assigns. Section 37 . Companion Agreement: If any terms or conditions in this Land Lease Agreement are inconsistent with the terms and conditions of the Agreement of even date herewith between the parties hereto or if the terms or conditions in this Land Lease Agreement cause the terms and conditions of said Agreement to be ambiguous, then the terms and conditions of said Agreement shall control and such inconsistent terms and conditions in this Land Lease Agreement -35- will be considered as not written. Section 38 . Interim and Permanent Loans and Commitments: Nothing in this Land Lease Agreement shall release any of . Landlord' s obligations to comply with and do those acts and things required by the interim and permanent loan commitments or loans or mortgages. Section 39 . Tenant: Whenever the Landlord is obligated under this Lease to provide notice to the Tenant, such notice shall be sent to each party who constitutes a Tenant hereunder. Section 40 . Withdrawal of Partner from Tenant Partnership: Should S.A.M. exercise its right to withdraw from the Partnership created by the Agreement of even date herewith between the parties hereto, then S.A.M. shall have no obligations to Landlord under this Lease. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written. LANDLORD SAVERS FEDERAL SAVINGS AND LOAN • •CIATION Bvi Ai _1 ATTEST: ,� Ste,`y TENANTS SAVERS FEDERAL SAVINGS AND LOA ASSOCIA ION to BY,/A,1� �, a„'. AT EST: i V AOC % )( / / iO4,417/04 ) THE S .A.M. LIMITED PARTNERSHIP By I.�' /� WAy • ' A. Mint , General Partner -36- .. / Legal Desc options of Real Estates Involved in SAVERS-S .A.M. Transaction PARCEL I A fee simple estate of Savers Federal Savings and Loan Association ( SAVERS ) leased to SAVERS/S .A.M. by Land Lease dated May 1 , 1979 , in and to the surface and mineral estates of Lots 1 , 2 , 3 , 4 , 5 , and 6 , Block 95 , and the West 10 feet of alley running North and South through Block 95 , as closed by Ordinance No . 13441 , recorded June 2 , 1978, as Instrument No . 78-21971 , and the South 18 feet of Lot 4 , all of Lots 5, 6 , 7 , and 8 , and the South 18 feet of Lot 9 , Block 96 , Original City of Little Rock , Arkansas ; subject to that certain Mortgage dated August 2 , 1978 , and filed of record on August 11 , 1978 , as document No . 78- 3270§' ,with the Circuit Clerk of Pulaski County , Arkansas. PARCEL II A ninety-nine ( 99 ) year lease in favor of SAVERS acquired from the City of Little Rock , Arkansas , by Lease dated August 10 , 1978 , and filed of record on August 11 , 1978 as document No . 78-32708 with the Circuit Clerk of Pulaski County , Arkansas , a Correction Lease- and Agreement dated August 19 , 1978 , and filed of record November 16 , 1978 , as document No . 78-46244 with the Circuit Clerk of Pulaski County , Arkansas , and the Amended and Substituted Lease and Agreement dated January 29 , 1979 , and filed of record January 29 , 1979 , as document No . 79-03865 with the Circuit Clerk of Pulaski County , Arkansas , and leased to SAVERS/S . A . M . by Land Lease dated May 1 , 1979 , of an undivided one-half ( 1/2 ) interest in that certain airspace beginning 14 ' 6 " above existing pavement on the following described property located West of Lot 5 , Block 95 , Original City, Little Rock , Arkansas: Beginning at the Southwest corner of Lot 6 , Block 95 , Original City , Little Rock ,Arkansas ; thence N 6 degrees 48 minutes 24 seconds E 73 ' to the point of beginning ; thence N 83 degrees 14 minutes 41 seconds W 60 ' ; thence N 6 degrees 48 minutes 24 seconds E 19 . 0 ' ; thence S 83 degrees 14 minutes 41 seconds E 60 ' ; thence S 6 degrees 48 minutes 24 seconds W 19 . 0 ' to the point of beginning; Subject to that certain Skyway Agreement dated January 29 , 1979 , between Savers and The First National Bank in Little Rock , and filed of record as document No . 79-10384 with the Circuit Clerk of Pulaski County , Arkansas and leased to SAVERS/S .A.M. by Land Lease dated May 1 , 1979 . PARCEL III A ninety-nine ( 99 ) year lease in favor of SAVERS acquired from the City of Little Rock , Arkansas by Lease dated August 10 , 1978 , and filed or record on August 11 , 1978 as document No . 78 - 32708 with the Circuit Clerk of Pulaski County , Arkansas , a Correction Lease and Agreement dated August 19 , 1978 , and filed of record November 16 , 1978 , as document No . 78-46244 with the Circuit Clerk of Pulaski County, Arkansas and the Amended and Substituted Lease and Agreement dated January 29 , 1979 , as document No . 79-03865 with the Circuit Clerk of Pulaski County , Arkansas , and leased to SAVERS/S . A . M . by Land Lease dated May 1 , 1979 , in and to , hat certain a_ space beginning 15 ' above existing pavement on the following described property located North of Lot 1 , Block 95 , Original City , Little Rock , Arkansas: Beginning at the Northeast corner of Lot 1 , Block 95 , Original City , Little Rock , Arkansas ; thence N 83 degrees 14 minutes 11 seconds W 30 ' to the point of beginning ; thence N 83 degrees 14 minutes 11 seconds W 16 ' ; thence N 6 degrees 48 minutes 24 seconds E 60 ' ; thence S 83 degrees 14 minutes 11 seconds E 16 ' ; thence S 6 degrees 48 minutes 24 seconds W 60 ' to the point of beginning . PARCEL IV A ninety-nine ( 99 ) year lease in favor of SAVERS acquired from the City of Little Rock , Arkansas , by Lase dated August 10 , 1978 , and filed of record on August 11, 1978 as document No . 78-32708 with the Circuit Clerk of Pulaski County , Arkansas , a Correction Lease and Agreement dated August 19 , 1978 , and filed of record November 16 , 1978 , as document No . 78-46244 with the Circuit Clerk of Pulaski County , Arkansas , and the Amended and Substituted Lease and Agreement dated January 29 , 1979 ,. and filed of record January 29 , 1979 , as document No . 79-03865 with the Circuit Clerk of Pulaski County , Arkansas , and leased to SAVERS/S .A. M . by Land Lease dated May 1 , 1979 , in and to that certain airspace beginning 13 ' 7 " above existing pavement on the following described property located in Block 96, Original City, Little Rock , Arkansas: Beginning at the Southeast corner of Lot 6 , Block 96 , Original City; thence N 6 degrees 48 minutes 07 seconds E 120 . 0 ' ; thence S 83 degrees 14 minutes 41 seconds E 20 . 0 ' ; thence S 6 degrees 48 minutes 07 seconds W 120 . 0 ' ; thence N 83 degrees 14 minutes 11 seconds W 20 . 0 ' to the point of beginning . 2 • ACKNOWLEDGMENT STATE OF ARKANSAS COUNTY OF PULASKI On this day, personally appeared before me We 61e,(4 mil✓, and 44/ (cfred �+'I- ���?oU f1� both of Savers Federal Savings and Loan Association, known as Landlord herein, known to me to be the persons w\se names are subscribed to the within instrument and acknowledged that they executed the same for the purposes therein contained. WITNESS my hand and official seal this day of May, 1979. Ai Notar; ublic My Commission Expires : My Coma.:scion Expires Oct. 5, 1031 STATE OF ARKANSAS COUNTY OF PULASKI /�( On this day, personally appeared before me �V • ' ' and t4lf( lie /1 • O/3hu c de both � l of Savers Federal Savings and Loan Association, known as Tenant herein, known to me to be the persons whose names are subscribed to the within instrument and acknowledged that they executed the same for the purposes therein contained. WITNESS my hand and official seal this I5 day of May, 1979 . Notary ublic My Commission Expires : — , • • STATE OF ARKANSAS COUNTY OF PULASKI On this day, personally appeared before me, Saul A. Mintz, General Partner of S .A.M. Limited Partnership known to me to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained. WITNESS my hand and official seal this I5T— day of May, 1979. Iii tad Notar public My Commission Expires : My OormML-zion Exp:ms Oct. 5, 1961 •