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108641 2 0 16 RESOLUTION NO 10, 864 s A RESOLUTION TO APPROVE AN AMENDMENT TO 4 THE AMENDED, RESTATED AND SUBSTITUTED s LEASE AND CONCESSION AGREEMENT THAT 6 PERTAINS TO THE EXCELSIOR HOTEL, THE CITY, 7 AND THE LEASE TO THE PEABODY GROUP; TO 8 AMEND LITTLE ROCK, ARK., RESOLUTION NO. 9 18,286 (JUNE 6,2000); AND FOR OTHER PURPOSES. 10 11 WHEREAS, the City previously approved an escrow agreement to 12 accomodate the entry into an Amended, Restated and Substituted Lease and 13 Concession Agreement ( "Amended Lease') that pertains to the Statehouse 14 Convention Center and the Excelsior Hotel and the lease to the Peabody Group of 15 Memphis, and 16 WHEREAS, the BG Excelsior Limited Partnership, an Arkansas limited 17 partnership, acting by and through BEX, Inc., an Arkansas corporation and its duly 18 authorized and empowered general partner ( "BGE "), has requested that the time to 19 enter into and execute the Amended Lease, be extended to an including 4:00 P.M., 20 Central Daylight Time, August 29, 2000, in order to complete the last necessary work 21 on its financing, 22 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS 23 OF THE CITY OF LITTLE ROCK, ARKANSAS: 24 SECTION 1. Little Rock, Ark., Resolution No. 18,286 (June 6, 2000), is 25 hereby amended as set forth in Exhibit A to this Resolution in order to permit BGE 26 the right to execute four counterpart originals of the Amended Lease by no later 27 than 4:00 PM, Central Daylight Time, August 29, 2000. 111 0 0 1 SECTION 2. Severability. In the event any title, subtitle, chapter, 2 subchapter, section, subsection, subdivision, paragraph, subparagraph, item, 3 sentence, clause, phrase, or word of this resolution is declared to adjudged to be 4 invalid or unconstitutional, such declaration or adjudication shall not affect the 5 remaining portions of the resolution which shall remain in full force and effect as if 6 the portion so declared or adjudged invalid or unconstitutional was not originally 7 a part of the resolution. 8 SECTION 3. Repealer. All resolutions and matters in conflict with the 9 provisions of this resolution are hereby repealed to the extend of such inconsistency. 10 ADOPTED: July 25, 2000 11 ATTEST APPROVED 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 �i�,•...i a %GlJez Natfcy W od, City Clerk APPROVED AS TO LEGAL FORM: Thomas M. Carpenter, CiW Attorney [2] Brenda J. Krick, A sistant Mayor ,TUL.24'2000 14:39 501 372 5553 KDSCA ATTY #1127 P.004 /010 • • Amended Escrow Agreement WHEREAS, BGE has requested that the Escrow Agreement be amended to prescribe that it shall have until 4:00 P.M. C.D.S.T on August 29, 2000 within to execute the four (4) counterpart originals of the Amended Lease Agreement. NOW THEREFORE, WITNESSETH: That for and in consideration of the promises, premises and covenants herein contained, which the Parties hereto confirm and acknowledge to be mutually beneficial, and other good and valuable consideration, the Parties hereto by their execution hereof, covenant and agree as hereinafter set forth: I. The Escrow Agreement at Section 2 be and hereby is amended as follows: Section 2. (a) The Escrow Agent is hereby authorized and directed to allow BGE to execute each of the four (4) counterpart originals of the Amended, Restated and Substituted Lease and Concession Agreement at any time between the date hereof and 4:00 o'clock, P.M., C.D.S.T., August 29, 2000 upon the delivery by BGE to the Escrow Agent of: (1) a file marked copy of the Order of Dismissal with prejudice (the, "Order ") in the form attached hereto marked as Exhibit "A" and incorporated herein by this reference; (2) a file marked copy of the Assignment of leasebold (the, "Leasehold Assignment ") in the form attached hereto marked as Exhibit "B" and incorporated herein by this reference; (3) a file marked copy of the Assignment of parking leases (the, "Parking Assignments ") in the form attached hereto marked as Exhibit "C" and incorporated herein by this reference; (4) a true and correct copy of BGE's limited partnership agreement as well as an Authorizing Resolution (collectively the, "Partnership Agreement and Resolution ") empowering the General Partner of BGE to make, execute and perform the Amended Lease and Concession Agreement; -2- hjkpn,npcomm.P"bodyg,cwv n5122nOW 11:43 AM JUL.24'2000 14:39 501 372 5553 KDSCA ATTY #1127 P.005 /010 • • Amended Escrow Agreement (5) the Estoppel Certificate (the, "Estoppel ") in the form attached hereto marked as Exhibit "D" and incorporated herein by this reference; and. (6) the Opinion Letter of counsel to BGE (the, "Opinion Letter") in the form attached hereto marked as Exhibit "E" and incorporated herein by this reference; and, (7) the Indemnification Ratification (the "Ratification's in the form attached hereto marked as Exhibit "F" and incorporated herein by this reference. (b) If BGE delivers the Order, Assignment of leasehold, the Parking Assignment, the Partnership Agreement and Resolution, Estoppel, Opinion Letter, and Ratification to the Escrow Agent and executes each of the four (4) counterpart originals of the Amended, Restated and Substituted Lease and Concession Agreement, all on or before 4:00 o'clock, P.M., C.D.S.T., August 29, 2000; then and only in that event, the Escrow Agent shall deliver one (1) fully executed original of the Amended, Restated and Substituted Lease and Concession Agreement to BGE and shall deliver the remaining three (3) fully executed original of the Amended, Restated and Substituted Lease and Concession Agreement to the City. (c) Otherwise, if BGE does not deliver the Order, the Assignment of leasehold, the Parking Assignment, the Partnership Agreement and Resolution, Estoppel, Opinion Letter and Ratification and does not execute the four (4) counterpart originals of the Amended, Restated and Substituted Lease and Concession Agreement, all on or before 4:00 o'clock, P.M., C.D.S.T., August 29, 2000; then the Escrow Agent must deliver the four (4) counterpart originals of the Amended, Restated and Substituted Lease and Concession Agreement, bearing only the City's signature, back to the City. 2. All other terms and provisions of the Escrow Agreement shall be and remain in full force and effect, save and except to the except the same are amended and modified hereby. City of Little Roc Arkansas: BY: FrruF--.- Mayo -3- Wkpn.npcnmmVwbodYP.scro W 0512220M 11:43 M1 JUL.24'2000 14:39 501 372 5553 KDSGA ATTY #1127 P.006 /010 Amended Escrow Agreement ATTEST: City Clerk BGE: BG Excelsior Limited Partnerships an Arkansas limited Partnership, by and through its General Partner: BEX, Inc., an Arkansas corporation BY- TITLE: ATTEST: -4- bjkPa.openmm.Penbudy &.crow 03122WOO 11:43 n --Wr JUL.24'2000 14:39 501 372 5553 KDSCA ATTY #1127 P.007 /010 • • Amended Escrow Agreement pjkpo .p�minn.VdMdyEacmr 05A7200n 11 43 AM ESCROW AGENT: Beach Abstract & Guaranty Company 1A N TITLE: -5- ,TUL.24'2000 14:39 501 372 5553 KDSCA ATTY #1127 P.008 /010 0 • Amended Escrow Agreement ACKNOWLEDGMENT STATE OF ARKANSAS ) §§ COUNTY OF PULASKI ) On this the day of . 2000, before me, the undersigned being a Notary Public of and for the County and State aforesaid, personally appeared and , who acknowledged themselves to be the Mayor and City Clerk of the City of Little Rock, Arkansas, city of the first class, and that they, as such officers, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the city of first class by themselves as such officers. IN WITNESS WHEREOF I hereunto set my band and official sea] on this day of .2000. Notary Public My commission expires: -6- hj4m.,p"nm.PubodyExm W 05222000 1 Lel AM JUL.24'2000 14:40 501 372 5553 KDSCA ATTY #1127 P.009 /010 • • Amended Escrow Agreement ACKNOWLEDGMENT STATE OF ARKANSAS ) §§ COUNTY OF PULASKI ) On this day personally appeared before the undersigned., a Notary Public within and for the County and State aforesaid, duly qualified, commissioned and acting, and , to me well known, who statcd that they are the and of BEX, Inc., an Arkansas corporation, the General Partner of BG Excelsior Limited Partnership, an Arkansas limited partnership, and were duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf the said corporation as the General Partner of BG Excelsior Limited Partnership, an Arkansas limited partnership, and further stated and acknowledged that they had so signed, executed and delivered this instrument for the consideration, uses and purposes therein mentioned by signing the name of the corporation by themselves as said corporate officers. WITNESS My hand and official seal on this _ day of , 2000. Notary Public My commission expires: (SEAL) -7- hj kpe. epcomm.Pe*A ytlemow OSP2L201NI I I A3 AM JUL.24'2000 14:40 501 372 5553 KDSCA ATTY #1127 P.010 /010 • • Amended Escrow Agreement ACKNOWLEDGMENT STATE OF ARKANSAS ) M COUNTY OF PULASKI ) On this the day of 2000, before me, the undersigned being a Notary Public of and for the County and State aforesaid, personally appeared , who acknowledged himself to be the President of Beach Abstract & Guaranty Company, an Arkansas corporation, and that he, as such officer, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the corporation by himself as such officer. IN WITNESS WHEREOF I hereunto set my hand and official seal on this day of 12000. Notary Public My commission expires: -g- Iplryaapenn .PwbwylknmW 092212/00 11:43 AM