113870 0
RESOLUTION 11,387
A RESOLUTION APPROVING THE TERMS AND PROVISIONS OF THAT
CERTAIN SECOND AMENDMENT TO AMENDED, RESTATED AND
SUBSTITUTED LEASE AND CONCESSION AGREEMENT (THE, "SECOND
AMENDMENT ") BY AND BETWEEN THE CITY OF LITTLE ROCK,
ARKANSAS (THE, "CITY ") AND BG EXCELSIOR LIMITED PARTNERSHIP,
A TENNESSEE LIMITED PARTNERSHIP, AUTHORIZING THE MAYOR'S
AND CITY CLERK'S EXECUTION OF THE SAME, AUTHORIZING,
EMPOWERING AND DIRECTING THE MAYOR AND CITY CLERK TO TAKE
ANY AND ALL STEPS AND ACTION NECESSARY OR DESIRABLE TO
FULLY EFFECTUATE THE CONSUMMATION OF THE TRANSACTION
CONTEMPLATED BY THE AFORESAID DOCUMENTS; DECLARING AN
EMERGENCY AND PRESCRIBING OTHER MATTERS PERTAINING
THERETO.
WHEREAS, the City and BG Excelsior Limited Partnership (`BGE ") did, effective
September 18, 2000, make and execute that certain Amended, Restated and Substituted Lease and
Concession Agreement (hereinafter referred to as the "Lease and Concession Agreement "); and,
WHEREAS, BGE and the City have reached agreement on revisions to the Lease and Concession
Agreement (hereinafter referred to as the "Second Amendment "), a true and correct copy of which is
attached hereto marked as Exhibit "A" and made a part hereof by this reference; and,
WHEREAS, the Second Amendment is hereby presented to the Board for consideration and
further action.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTOR OF THE
CITY OF LITTLE ROCK, ARKANSAS.
SECTION 1. That the terms and provisions of the Second Amendment be and the same are
hereby fully approved and, upon approval thereof by Regions Bank, N.A. Trustee and Arkansas Teachers
Retirement System, the Mayor and City Clerk be and hereby are authorized, empowered and directed to
make, execute and deliver the Second Amendment.
SECTION 2. In furtherance of the foregoing the Mayor and City Clerk be and hereby are
authorized, empowered and directed to make and execute any documentation and do, take and perform any
and all other steps, actions or things deemed necessary or desirable to fully effectuate the transactions
contemplated by the Second Amendment.
SECTION 3. The provisions of this Resolution are hereby declared to be severable. If any
provision of this Resolution shall be held to be invalid or to be inapplicable to any persons or
circumstances, such invalidity or inapplicability shall not affect the remainder of the provisions of this
Resolution.
-1-
hjkpa.apconvn.ord-pcabody
0 0
Resolution
SECTION 4. It has been found, and it is hereby declared, that the City urgently requires the
renovation and enhancement of the Peabody Hotel (formerly the Excelsior Hotel) in order to avoid a
negative impact upon the City's tourism and convention business and to continue the development of the
City and for the welfare of the inhabitants thereof. This Resolution, therefore, being necessary for the
preservation of the public peace, health and safety, an emergency is declared to exist, and this Resolution
shall be in effect from and after its passage and approval.
PASSED: October 1, 2002
ATTEST:
C' y Clerk
hjkpa. apconmr.ord- peabody
APPROVED: / &t
ayor
-2-
0
SECOND AMENDMENT
To -
AMENDED, RESTATED AND
SUBSTITUTED LEASE AND
CONCESSION AGREEMENT
By and between
the City of Little Rock, Arkansas,
a municipal corporation, and
the City Advertising and Promotion Commission
of Little Rock, Arkansas,
as agent of and for the City of Little Rock (Lessor)
and
BG Excelsior Limited Partnership,
an Arkansas limited partnership,
acting by and through BEX, Inc., an Arkansas corporation,
its duly authorized and empowered General Partner (Lessee)
59894.1
0X126/1_002 11.46 AM
• s
SECOND AMENDMENT
TO
AMENDED, RESTATED AND SUBSTITUTED
LEASE AND CONCESSION AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Second Amendment to Amended. Restated and Substituted Lease and Concession
Agreement is made and entered as of the 1st day of October
2002, by and among the City of Little Rock. Arkansas (the "City"). a municipal corporation
organized under and existing by virtue of the laws of the State of Arkansas. acting by duly
adopted resolution; and the City Advertising and Promotion Commission of Little Rock,
Arkansas (the "Commission "), as agent of and for the City of Little Rock, acting by duly adopted
resolution (the City and the Commission being hereinafter referred to collectively as "Lessor ");
and BG Excelsior Limited Partnership, an Arkansas limited partnership, acting by and through
BEX, Inc., an Arkansas corporation, its duly authorized and empowered General Partner, both
the limited partnership and the general partner thereof being authorized to do business in
Arkansas, hereinafter referred to as "BGE" or "Lessee ".
WHEREAS, the Lessor and Lessee made and entered into that certain Amended,
Restated and Substituted Lease and Concession Agreement, dated September 18, 2000
(hereinafter referred to as the "Lease and Concession Agreement "); and
WHEREAS, the Lessor and Lessee made and entered into a First Amendment to the
Lease and Concession Agreement, dated May 16, 2001; and
WHEREAS, the Lessor and Lessee are desirous of further amending the Lease and
Concession Agreement as hereinafter stated.
NOW, THEREFORE,
THAT FOR and IN CONSIDERATION of the mutual promises, covenants and
agreements herein contained to be well and fully performed and observed by the Lessor and
Lessee, and other good and valuable consideration, the receipt and sufficiency of which the
Lessor and the Lessee hereby acknowledge, the Lessor and Lessee covenant and agree as
hereinafter set forth:
SECTION 1: Definitions. All terms and definitions used in the Lease and Concession
Agreement, as amended, shall hace the same meaning herein unless specifically modified or
redefined as tallows:
(a) Article 1, Section [.I is hereby amended to add the following subsection:
59894.PHCR
08r62002 11:46 AM
SECOND AMENDiYNT
Amended, RestatedW Substituted is
Lease and Concession Agreement
(h) "Demised Premises" means the property, real, personal and mixed.
more particularly described on Exhibit 'A" attached hereto and by
this reference fully incorporated herein and made a part hereof as if
set forth herein word for word and includes specifically the
CONFERENCE CENTER, the HOTEL BUILDING and the
IMPROVEMENTS.
(cc) "Conference Center" means that portion of the Demised Premises
consisting of the property, real, personal and mixed, described on
Exhibit "A" attached hereto, which comprises all of the property
described on Sheets IS and 16, and the interior of that portion
designated "LOBBY" on Sheet 14, beginning at the north end of
the Promenade, as surveyed by Garver Engineers, Job No. 001310,
dated April, 2000.
SECTION 2: Completion of Construction. Article IV, Section 4.5 of the Lease and
Concession Agreement, as amended, is deleted in its entirety and the following substituted
therefor:
SECTION 4.5: Completion of Construction. The Renovation and
Enhancement work shall be substantially complete on or before 25 months from
the Effective Date hereof, unless extended by agreement of the parties due. to
Force Majeure.
SECTION 3: Bonded Indebtedness. Article VI of the Lease and Concession
Agreement, as amended, is hereby amended to add the following Section 6.8:
Section 6.8: Lessee's Ri2htto Secure Bonded Indebtedness. (a) Lessee
may and shall have the right to pledge any Enhancement Maintenance Payment
paid hereunder, pursuant to Article XXVI hereof, by way of a Trust Indenture
securing up to $6,500,000.00 in bonded indebtedness, to finance the cost to
complete the Lessee's Renovation and Enhancement Work on the Conference
Center and portion of the original Convention Center; provided, however, any
such pledge by the Lessee shall be subject to the following: (i) that at the time of
the pledge authorized by this Section 6.8, the Lessee has not been notified of any
default under this Lease Agreement; (ii) that neither the trustee under any Trust
Indenture nor any holder of any of the bonded indebtedness authorized by this
Section 6.8 or anv - person claiming by, through or under such a trustee or holder,
shall acquire any greater rights in the leasehold estate granted by the Lease
Agreement or the Demised Premises (including the Conference Center) or any
other rights. privileges or benefits of the Lessee under this Lease Agreement, than
the Lessee has under this Lease Agreement: and (iii) that the Lessee shall cause
any Trust Indenture or other documents intended to evidence or secure the
indebtedness authorized by this Section 6.8 to be, and to expressly state that the
;98w.5 /HCR
011R6POW I1 :46 AN1
SECOND AMENDMENT
Amended, Restated* Substituted .
Lease and Concession Agreement
same is, subject to and subordinate to all conditions and covenants of this Lease
Agreement and to the rights of the Lessor.
(b) Provided, further, the trustee under any Trust Indenture and any holder of
any of the bonded indebtedness authorized by this Section 6.3 by acceptance of
the pledge and the Lessor and Lessee agree that any pledge by the Lessee of any
Enhancement Maintenance Payment paid hereunder, pursuant to this Section 6.8,
by wav of a Trust Indenture securing up to $6,500,000.00 in bonded indebtedness.
to finance the cost to complete the Lessee's Renovation and Enhancement Work
on the Conference Center and portion of the original Convention Center shall not
be a Permitted Mortgage and that the trustee under any Trust Indenture or any
holder of any of the bonded indebtedness authorized by this Section 6.8 or any
person claiming by, through or under such a trustee or holder shall not be a
Permitted Mortgagee; and thus the rights, privileges and benefits attributed to a
Permitted Mortgagee or a Permitted Mortgage under this Lease Agreement,
including but not limited to those prescribed by the provisions of Sections 6.2,
6.3, 6.4, 6.5 and 6.6, shall not apply to the trustee under any Trust Indenture nor
any holder of any of the bonded indebtedness authorized by this Section 6.8 or
any person claiming by, through or under such a trustee or holder.
(c) Other than to make any Enhancement Maintenance Payments prescribed
by and in accordance with Article XXVI hereof, the Lessor shall have no other
obligations under and pertaining to this Section 6.8.
SECTION 4: Conference Center. Article VII, Section 7.1 of the Lease and Concession
Agreement, as amended, is hereby amended by adding thereto the follow subsection (d):
(d) Notwithstanding the above, that portion of the Demised Premises
consisting of the Conference Center shall be operated and marketed not as a hotel
but as a conference center.
SECTION 5: Enhancement Maintenance Pavment. Article XXVI, Section 26.1 of
the Lease and Concession Agreement, as amended, is hereby deemed deleted in its entirety, and
the following is substituted therefor:
SECTION 26.1: ENHANCEMENT MAINTENANCE PAYMENT. In
Section 4.3 of this Agreement, as amended by the First Amendment to Amended,
Restated and Substituted Lease and Concession Agreement dated May 16, 2001,
the Lessee has agreed to spend approximately Thirty Million Five Hundred
Thousand Dollars (530.500.000) for the Renovation and Enhancement Work on
the Demised Premises and in Article VII hereof. and after completion, the Lessee
has agreed thereafter to operate and maintain the Demised Premises at the
enhanced level of a Peabody Hotel or as an Approved Hotel. As a part of and
included in the Renovation and Enhancement Work described above, and in
Section 4.2 herein, Lessee will expend up to Six Million Five Hundred Thousand
59894.5/HCR J
0826!2002 11:46 AM
SECOND AMENDMENT
Amended, Restated•d Substituted •
Lease and Concession Agreement
Dollars ($6,500,000) solely for improvements to the Conference Center. the
original portion of the Convention Center, and related public areas. For and in
consideration of these covenants and promises by the Lessee, as well as the
Lessee's other covenants and promises herein contained, but only so long as there
is no Event of Default hereunder as prescribed by Section 25.1 hereto, Lessor
covenants and agrees to make in accordance with the Schedule of Payment set
forth in Section 26.2 below to Lessee or its desi =nee during the term hereof and
anv extension thereof an Enhancement Maintenance Payment, calculated as
prescribed in Section 26.3 below, until termination thereof as prescribed by
Section 26.4 below.
SECTION 6: Effect of Amendment. All terms and provisions of the Lease and
Concession Agreement, as amended, shall be and remain in full force and effect, save and except
to the extent amended and modified hereby.
SECTION 7: Miscellaneous. The Lessor and Lessee further agree as follows:
(a) This Agreement contains all the tetras and conditions agreed upon by the parties
hereto with respect to the transactions contemplated hereby, and shall not be amended or
modified except by written instrument signed by all of the parties.
(b) This Agreement shall be binding upon and inure to the benefit of the
representatives, heirs, estates,. Successors and assigns of the parties hereto.
(c) Nothing expressed or implied in this Agreement is intended, or shall be construed,
to confer upon or give any person, firm or corporation, other than the parties hereto, their
successors and assigns, any benefits, rights or remedies under or by reason of this Agreement.
(d) The obligations and undertakings of the Parties hereto shall be performed within
the time specified therefor, time being of the essence of this Agreement, and the failure to
perform within such time shall constitute a breach of and default under this Agreement on the
part of the Party who fails to perform.
(e) This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which shall constitute one and the same
instrument.
(t) This Agreement shall be governed by and construed under the laws of the State of
Arkansas.
0-0 In the e%ent tither Party to this Agreement shall employ legal counsel to protect
its rights under this .agreement or to entorce any term or provision of this Agreement, then the
Party prevailing in any such legal action shall have the right to recover from the other Party all of
its reasonable attorney's fees, costs and expenses incurred in relation to such claim.
59894.5iHCR 4
09126/2002 11:46 AM
SECOND AMENDI &T
Amended, Restated and Substituted
Lease and Concession Agreement
(h) Should any provision of this Agreement be declared to be invalid by any court of
competent jurisdiction, such provision shall be severed from and shall not affect the validity of
the remaining provisions of this Agreement.
(i) Each party and counsel for each Party have reviewed this Agreement and,
accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Agreement.
0) Nothing herein shall in any way be construed or intended to create a partnership
or joint venture between the parties or to create the relationship of principal and agent between or
among any of the parties. None of the parties hereto shall hold itself out in a manner contrary to
the terms of this Agreement.
Executed as of the day and year first above mentioned.
LESSOR:
City of Little Rock, Arkansas
By: 3��
Mayor
ATTEST:
City Clerk
59894.5/HCR
081262002 11 46A
City Advertising and Promotion Commission
LESSEE:
BG Excelsior Limited Partnership, an Arkansas
limited partnership, by and through its General
Partner:
SECOND AMENDMENT
Amended, Restated& Substituted •
Lease and Concession Agreement
ACKNOWLEDGMENT
STATE OF ARKANSAS )
COUNTY OF PULASKI )
On this the /ST day of Y h4W 2001 before me. the undersi�med
being- a Notary Public of and for the County and State aforesaid. personally appeared Jim Dailey
and Nancy Wood, 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.
WITNESS My hand and official seal on this
My commission expires:
6 - /B -lam
(SEAL)
OFFICIAL SEAL
NATAKI S. KNIGHT
NOTARY PUBLIC - ARKANSAS
PULASKI COUNTY
MY COMMISSION EXPIRES: 08.18.12
5V894.51HCR
082612002 11:46 AM
SECOND AMENDIGNT 40
Amended, Restated and Substituted
Lease and Concession Agreement
ACKNOWLEDGMENT
STATE OF ARKANSAS )
COUNTY OF PULASKI )
On this the 18th day of October , 2002, before me, the undersigned
being a Notary Public of and for the County and State aforesaid, personally appeared Mary Beth
Ringgold and Barry Travis, who acknowledged themselves to be the Chairman and Chief
Executive Officer of the Little Rock Advertising and Promotion Commission, 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 Commission by themselves as such officers.
WITNESS My hand and official seal on this —W_ day of 04 l_1, -2002.
�Ak I I A -k' n
Notary Public
My commission expires:
- i - ,ao i i
(SEAL)
599%.5/HCR 8
10107/2002 4:34 PM
SECOND AMENDIV&T
Amended, Restated and Substituted
Lease and Concession Agreement
ACKNOWLEDGMENT
STATE OF TENNESSEE )
§§
COUNTY OF SHELBY )
On this day personally appeared before the undersigned, a Notary Public within and for
the County and State aforesaid, duly qualified, commissioned and acting, Martin S. Belz
and Jimmie D. Williams, to me well known, who stated that they are the President and Secretary
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 25 day of S , 2002.
( / //
I / \
`
Notary
MY4W'8MfiW. B.,Q W.s:
January 20, 2004
(SEAL)
59894.5/HCR
082612002 1 L46AM
SECOND AMENDMENT
Amended, Restated•d Substituted •
Lease and Concession Agreement
MORTGAGEE'S CONSENT TO SECOND
AMENDMENT
That Arkansas Teacher Retirement System, for and in consideration of the benefits to
accrue to it from the terms and provisions hereof, which it acknowledges to be of mutual benefit.
does hereby consent to the Lessor's and Lessee's making and execution of the Second
Amendment to Amended, Restated and Substituted Lease and Concession A,-lreement
hereinabove set forth.
Dated this ZSa\ day of -'�eP•re 2002.
ARKANSASTEACHER
RETIREMENT SYSTEM
TITLE: I� �QR',✓ > Cer,. r;yc ,[ [);+tecz k
ATTEST:
Em
59894.5/HCR
08862002 11:+6 AM
SECOND AMEND NT
Amended, RestatedW Substituted
Lease and Concession Agreement
ACKNOWLEDGMENT
STATE OF ARKANSAS )
COUNTY OF PULASKI )
On this day personally appeared before the undersigned. being a Notary Public of and for
the County and State aforesaid, personally appeared and
whho acII,,,o led d to be the
nt r m Executive Retiremen'E'uns� Invs�ii
l�eeer and Supervisor o Arkansas Teacher
Retirement System, 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 Arkansas
Teacher Retirement System by themselves as such officers.
IN' WITNESS WHEREOF, I hereunto set my hand and official seal on this 7 S th day of
SPzotPmbPr 2002.
% c Notary Public
My.commission expires:
399x. /HCR
08!_612002 11:46 AM
C:RQrN 37;L =Y
PLJMT COUNTY
U
^es _
MEMOR.- `IDC }I
OF
AMENDED. RESTATED .kND SUBSTITUTED LEASE
-kND CONCESSION .AGREEMENT
K-NOV, ALL MIEN. BF THESE PRESENTS:
T*-
LIC; of Little Roc : -. A,'-a=s. a ^. umc: _. -'oration. =d i..e L: rtUl:'_
Rock. = oi 1nai: i2" e _ Ci _.-.= RCC =4 Pro -, r:on LOnmisslon of
BG Exteisicr L ;mred Pa, -.rS ". an. A.Y=as n te CSSCr
c
W 1O :iSO G_n DC�, Inc., an A::<ansas Co C)O CatlO %. !ts Cllr; .crzed
parser t, "Lessee °). have entered into an ..mended. Restated and Subsanned Lease a.
Concession A= *eement (the --Lease") dated September 1 S. =000. by which Lessor has demised a
leasehold interest. and other inte-es-s more particularly described in the Lease. in and to orooe ^:
ow-ned b% Lessor in Little Rock. Pulaski Counn. Arkarsas. ,.ore fully described in Exhibit `-a'
attached he -,vo and incorporated herein by reference as Demised Premises.
The term of the Lease extends to Midnight. September l4, 3033. unless sooner extended
or terminated as provided in the Lease. The Lease is sub iect to two (2) successive renewals of
twenty -five ('_') years each, subject to the terms and conditions of the Lease.
This Memorandum is executed and recorded by the parses to give notice of the existence
of the tenancy and the Lease. This Memorandum is subject to conditions, covenants and
provisions. including those pertaining to the payment of RenL set forth in the Lease. In the event
of anv conflict between the provisions of this Memorandum and the provisions of the Lease, the
provisions of the Lease shall control, it being the intent of the parties that this Memorandum
shall not alter or vary the terms of the Lease between the parties as set forth in the Lease.
IN IXITNESS WHEREOF, the parties have caused this Memorandum to be executed as
o.` SeptemberQ, 3000.
'Ti=p`
``e,�ogR AN5P,5
..
LESSOR:
Cin' o�Liale R
T;t!JJim ile•:
Mayor
EXHIBIT
I-
°` - -'� _z
n
U
NLEMOR.aNDUNI OF LE-ASE
Page Z
LESSEE:
3C L -__'s:cr L
6y. BEX, rN
0
z Nt='6n S. Betz
ATttST: Title: P^°sidmr
t•cn•1 "1—; et"i 3508 ,Snc' :,c [uS L.3 sc :,.i nni[,/Hn
NIEivIORA.N LDU t OF LSE
Page 3
ACKNOWLEDGMENT
STATE OF ARi:_A- SAS )
COG`Tl OF PULASKI )
•
0- fnU ua' before me. the unde.si• ned' CzlnII a Ncia': PIIDL'C of and for u- --
a'oresa!o cersonall appeared ! '
who acknowledged themselves td :5e the Nlzyc. and Cif-.
Clerk of City of Little Rock, Arkansas, cir: of the firs-, class. and Cnat they. as such officers.
being authorized so to do, executed the fore =oing instrw -:enf for the =oses therein .:ontaincd.
by signine the name of the city of first class by [ hemselves as such officers.
WITNESS WHEREOF I hereunto se: my hand and official seal on this o�
day of September, 2000. j n
a+
:'47 :��
OF LBW_
Page 4
A C KN 0 1,'L E 0 G M E N T
STATE OF kRK_kN'SAS )
COUNTY OF PULASKI )
0
rh -, N,)tzr-. anC 'or it Coun.�
is J_w before me. the unde73i'.Zr.t'_�.
Sc [e 4,i% c. ualiC-d. commissioner dczin B ei "e7,, - �7
C. Rule Ill. to kr
Kula well !sown. who stated th 'a: che,. are zh-. President and Assistant Sec-zzrary of
B EX. Inc.. an Arkansas corporation. The General Partner oi'-t5G Excelsior Limited Pannership. an
Arkans
_ limited partnership, and were duly authorized m their respective capacities to execute
the foregoing instrument for and in the name and behalf the said corporation as the General
Partner oC BG Excelsior Limited Partnership, an Arkansas limited partnership, and mu-her 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.
Lk[I-N,ESS My hand and official seal on this day of September, 2000.
IVIV corrmustron expires:
00
.............
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AFFIDAW 2908070057. i
/2888 81:97:97 =-'M
STATE OF ALAS ) 2080079066 t RecordeC.in ...t.
18/83/2888 HA x S PUFF W Records of
Filed d Recorded in CAROLYN STALff
COUNTY OF PULASKI ) Official Records of PULASKI CLERK
CAROLYN STALEY
PULASKI COUNTY Fees $18.88 p
CIRCUIT/MP(TT CLERK r 8C10 �y
Fees $a.ee F 849-5 /
Before me, the undersigned, a Notary Public in and for said County and State, on
this day personally appeared: 2009070067 2000070059
18/93/2888 81:97 :17 tin ° 18/83/2888 81:87389 PM
Filed d Recorded in Filed d Recorded in
Official Records of
Official Records of
CAROLYN STREET
CAROLYN STALEY PULASKI COUNTY
W'illaim E. Ruck
PULASKI COUNTY �f�g CUIT /COUNTY CLERK
CIRCUIT /COUNTY CL_LS No. `�Kl1is $A. 89
Fees $8.88
6898 -K F gs��c
Who, after being by me first duly swam, upon oath deposes and says that:
200(30700;
19/83 /ages- 61:87
Filed a Recorded
Official Records
CARMYN STALEY
PULASKI COUNTY
CIRCUIT /COUNry CL
Fees $8.98
f=' g9 ,5 -i3
2000070E
18/93/2988 81:
Filed a Recorde,
Official Record
CAROLTi STALEY
PULASKI COUNTY
CIRCUIT /COUNTY t
Fees 14.N
;r� gS8
The Exhibit A attached hereto and made a art hereof is provided as a more readable Fees SA.CraUIfTY CLE
P P Fees $A.9e
copy of that certain Exhibit A contained in the "Memorandum of Amended, Restated,
and Substituted Lease and Concession Agreement" dated September 25, 2000, recorded
as Instrument No. �)K)/�) /%DOS The description identified as
"Kitchen Area" is a definition of the kitchen shown on Exhibit C, Sheet 3 of 3, of said
Memorandum of Lease.
20900799e
1e /e3/2aee else:
�J
2008870063 / //�
Filed a Recorded
Official Records
10/83/2680 81:07:11
Filed a Recorded inj`
CAROLYN 'STS
PULASKI COUNTY
Official Records afl
CAROLYN STALEY
William E. Ruck
C a
IRCUIT /COIAITY
PULASKI COUNTY
Fees $A.�
SubscribRIMPMAefore me a No tary Public, on this 3'd day of October. 2000.
_
F -M-9
18183/2889 91:97:14 99
Filed A Recorded in
Official Records of
CAROLYN STALEY
PULASKI COUNTY
CIRCUIT /COUNTY CLERK
Fees $8,99
iNiv Commission Expires:
October 17. 2001
G J�
Lonnie neck, Jr. Notary Public CIRCUIT /COUNTY CLERK
,��.......... Irr' — is_P(1') Fees $8.99
•' NE C I R $.
O = e
o1
:¢ C-
:w
41
PM
• •
SECOND AMENDMENT
TO
AMENDED, RESTATED AND
SUBSTITUTED LEASE AND
CONCESSION AGREEMENT
By and between
the City of Little Rock, Arkansas,
a municipal corporation, and
the City Advertising and Promotion Commission
of Little Rock, Arkansas,
as agent of and for the City of Little Rock (Lessor)
and
BG Excelsior Limited Partnership,
an Arkansas limited partnership,
acting by and through BEX, Inc., an Arkansas corporation,
its duly authorized and empowered General Partner (Lessee)
59894.5
08262002 11:46 AM
Exhibit "A" to the Resolution
• •
SECOND AMENDMENT
TO
AMENDED, RESTATED AND SUBSTITUTED
LEASE AND CONCESSION AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Second Amendment to Amended, Restated and Substituted Lease and Concession
Agreement is made and entered as of the day of ,
2002, by and among the City of Little Rock, Arkansas (the "City "), a municipal corporation
organized under and existing by virtue of the laws of the State of Arkansas, acting by duly
adopted resolution; and the City Advertising and Promotion Commission of Little Rock,
Arkansas (the "Commission "), as agent of and for the City of Little Rock, acting by duly adopted
resolution (the City and the Commission being hereinafter referred to collectively as "Lessor ");
and BG Excelsior Limited Partnership, an Arkansas limited partnership, acting by and through
BEX, Inc., an Arkansas corporation, its duly authorized and empowered General Partner, both
the limited partnership and the general partner thereof being authorized to do business in
Arkansas, hereinafter referred to as `13GE" or "Lessee ".
WHEREAS, the Lessor and Lessee made and entered into that certain Amended,
Restated and Substituted Lease and Concession Agreement, dated September 18, 2000
(hereinafter referred to as the "Lease and Concession Agreement "); and
WHEREAS, the Lessor and Lessee made and entered into a First Amendment to the
Lease and Concession Agreement, dated May 16, 2001; and
WHEREAS, the Lessor and Lessee are desirous of further amending the Lease and
Concession Agreement as hereinafter stated.
NOW, THEREFORE,
THAT FOR and IN CONSIDERATION of the mutual promises, covenants and
agreements herein contained to be well and fully performed and observed by the Lessor and
Lessee, and other good and valuable consideration, the receipt and sufficiency. of which the
Lessor and the Lessee hereby acknowledge, the Lessor and Lessee covenant and agree as
hereinafter set forth:
SECTION 1: Definitions. All terms and definitions used in the Lease and Concession
Agreement, as amended, shall have the same meaning herein unless specifically modified or
redefined as follows:
(a) Article I, Section 1.1 is hereby amended to add the following subsection:
59894.5/HCR
08/2612002 11:46 AM
SECOND AMENDm*r 40
Amended, Restated and Substituted
Lease and Concession Agreement
(h) "Demised Premises" means the property, real, personal and mixed,
more particularly described on Exhibit "A" attached hereto and by
this reference fully incorporated herein and made a part hereof as if
set forth herein word for word and includes specifically the
CONFERENCE CENTER, the HOTEL BUILDING and the
IMPROVEMENTS.
(cc) "Conference Center" means that portion of the Demised Premises
consisting of the property, real, personal and mixed, described on
Exhibit "A" attached hereto, which comprises all of the property
described on Sheets 15 and 16, and the interior of that portion
designated "LOBBY" on Sheet 14, beginning at the north end of
the Promenade, as surveyed by Garver Engineers, Job No. 001310,
dated April, 2000.
SECTION 2: Completion of Construction. Article IV, Section 4.5 of the Lease and
Concession Agreement, as amended, is deleted in its entirety and the following substituted
therefor:
SECTION 4.5: Completion of Construction. The Renovation and
Enhancement work shall be substantially complete on or before 25 months from
the Effective Date hereof, unless extended by agreement of the parties due to
Force Majeure.
SECTION 3: Bonded Indebtedness. Article VI of the Lease and Concession
Agreement, as amended, is hereby amended to add the following Section 6.8:
Section 6.8: Lessee's Right to Secure Bonded Indebtedness. (a) Lessee
may and shall have the right to pledge any Enhancement Maintenance Payment
paid hereunder, pursuant to Article XXVI hereof, by way of a Trust Indenture
securing up to $6,500,000.00 in bonded indebtedness, to finance the cost to
complete the Lessee's Renovation and Enhancement Work on the Conference
Center and portion of the original Convention Center; provided, however, any
such pledge by the Lessee shall be subject to the following: (i) that at the time of
the pledge authorized by this Section 6.8, the Lessee has not been notified of any
default under this Lease Agreement; (ii) that neither the trustee under any Trust
Indenture nor any holder of any of the bonded indebtedness authorized by this
Section 6.8 or any person claiming by, through or under such a trustee or holder,
shall acquire any greater rights in the leasehold estate granted by the Lease
Agreement or the Demised Premises (including the Conference Center) or any
other rights, privileges or benefits of the Lessee under this Lease Agreement, than
the Lessee has under this Lease Agreement; and (iii) that the Lessee shall cause
any Trust Indenture or other documents intended to evidence or secure the
indebtedness authorized by this Section 6.8 to be, and to expressly state that the
59894.5/HCR 2
0826/2002 11:46 AM
SECOND AMENDM*I'
Amended, Restated and Substituted
Lease and Concession Agreement
same is, subject to and subordinate to all conditions and covenants of this Lease
Agreement and to the rights of the Lessor.
(b) Provided, further, the trustee under any Trust Indenture and any holder of
any of the bonded indebtedness authorized by this Section 6.8 by acceptance of
the pledge and the Lessor and Lessee agree that any pledge by the Lessee of any
Enhancement Maintenance Payment paid hereunder, pursuant to this Section 6.8,
by way of a Trust Indenture securing up to $6,500,000.00 in bonded indebtedness,
to finance the cost to complete the Lessee's Renovation and Enhancement Work
on the Conference Center and portion of the original Convention Center shall not
be a Permitted Mortgage and that the trustee under any Trust Indenture or any
holder of any of the bonded indebtedness authorized by this Section 6.8 or any
person claiming by, through or under such a trustee or holder shall not be a
Permitted Mortgagee; and thus the rights, privileges and benefits attributed to a
Permitted Mortgagee or a Permitted Mortgage under this Lease Agreement,
including but not limited to those prescribed by the provisions of Sections 6.2,
6.3, 6.4, 6.5 and 6.6, shall not apply to the trustee under any Trust Indenture nor
any holder of any of the bonded indebtedness authorized by this Section 6.8 or
any person claiming by, through or under such a trustee or holder.
(c) Other than to make any Enhancement Maintenance Payments prescribed
by and in accordance with Article XXVI hereof, the Lessor shall have no other
obligations under and pertaining to this Section 6.8.
SECTION 4: Conference Center. Article VII, Section 7.1 of the Lease and Concession
Agreement, as amended, is hereby amended by adding thereto the follow subsection (d):
(d) Notwithstanding the above, that portion of the Demised Premises
consisting of the Conference Center shall be operated and marketed not as a hotel
but as a conference center.
SECTION 5: Enhancement Maintenance Payment. Article XXVI, Section 26.1 of
the Lease and Concession Agreement, as amended, is hereby deemed deleted in its entirety, and
the following is substituted therefor:
SECTION 26.1: ENHANCEMENT MAINTENANCE PAYMENT. In
Section 4.3 of this Agreement, as amended by the First Amendment to Amended,
Restated and Substituted Lease and Concession Agreement dated May 16, 2001,
the Lessee has agreed to spend approximately Thirty Million Five Hundred
Thousand Dollars ($30,500,000) for the Renovation and Enhancement Work on
the Demised Premises and in Article VII hereof, and after completion, the Lessee
has agreed thereafter to operate and maintain the Demised Premises at the
enhanced level of a Peabody Hotel or as an Approved Hotel. As a part of and
included in the Renovation and Enhancement Work described above, and in
Section 4.2 herein, Lessee will expend up to Six Million Five Hundred Thousand
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08262002 11:46 AM
SECOND AMENDMOT
Amended, Restated and Substituted
Lease and Concession Agreement
Dollars ($6,500,000) solely for improvements to the Conference Center, the
original portion of the Convention Center, and related public areas. For and in
consideration of these covenants and promises by the Lessee, as well as the
Lessee's other covenants and promises herein contained, but only so long as there
is no Event of Default hereunder as prescribed by Section 25.1 hereto, Lessor
covenants and agrees to make in accordance with the Schedule of Payment set
forth in Section 26.2 below to Lessee or its designee during the term hereof and
any extension thereof an Enhancement Maintenance Payment, calculated as
prescribed in Section 26.3 below, until termination thereof as prescribed by
Section 26.4 below.
SECTION 6: Effect of Amendment. All terms and provisions of the Lease and
Concession Agreement, as amended, shall be and remain in full force and effect, save and except
to the extent amended and modified hereby.
SECTION 7: Miscellaneous. The Lessor and Lessee further agree as follows:
(a) This Agreement contains all the terms and conditions agreed upon by the parties
hereto with respect to the transactions contemplated hereby, and shall not be amended or
modified except by written instrument signed by all of the parties.
(b) This Agreement shall be binding upon and inure to the benefit of the
representatives, heirs, estates,. Successors and assigns of the parties hereto.
(c) Nothing expressed or implied in this Agreement is intended, or shall be construed,
to confer upon or give any person, firm or corporation, other than the parties hereto, their
successors and assigns, any benefits, rights or remedies under or by reason of this Agreement.
(d) The obligations and undertakings of the Parties hereto shall be performed within
the time specified therefor, time being of the essence of this Agreement, and the failure to
perform within such time shall constitute a breach of and default under this Agreement on the
part of the Party who fails to perform.
(e) This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which shall constitute one and the same
instrument.
(f) This Agreement shall be governed by and construed under the laws of the State of
Arkansas.
(g) In the event either Party to this Agreement shall employ legal counsel to protect
its rights under this Agreement or to enforce any term or provision of this Agreement, then the
Party prevailing in any such legal action shall have the right to recover from the other Party all of
its reasonable attorney's fees, costs and expenses incurred in relation to such claim.
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SECOND AMENDM,T •
Amended, Restated and Substituted
Lease and Concession Agreement
(h) Should any provision of this Agreement be declared to be invalid by any court of
competent jurisdiction, such provision shall be severed from and shall not affect the validity of
the remaining provisions of this Agreement.
(i) Each party and counsel for each Party have reviewed this Agreement and,
accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Agreement.
Q) Nothing herein shall in any way be construed or intended to create a partnership
or joint venture between the parties or to create the relationship of principal and agent between or
among any of the parties. None of the parties hereto shall hold itself out in a manner contrary to
the terms of this Agreement.
Executed as of the day and year first above mentioned.
LESSOR:
City of Little Rock, Arkansas
Mayor
ATTEST:
City Advertising and Promotion Commission
ATTEST:
Chairman
City Clerk Executive Director
LESSEE:
BG Excelsior Limited Partnership, an Arkansas
limited partnership, by and through its General
Partner:
BEX, Inc., an Arkansas corporation
TITLE:
ATTEST:
59894.5/HCR
082612002 11:46 AM
SECOND AMENDM.T
Amended, Restated and Substituted
Lease and Concession Agreement
MORTGAGEE'S CONSENT TO SECOND
AMENDMENT
That Arkansas Teacher Retirement System, for and in consideration of the benefits to
accrue to it from the terms and provisions hereof, which it acknowledges to be of mutual benefit,
does hereby consent to the Lessor's and Lessee's making and execution of the Second
Amendment to Amended, Restated and Substituted Lease and Concession Agreement
hereinabove set forth.
Dated this day of 2002.
ARKANSASTEACHER
RETIREMENT SYSTEM
L'3'!
Mrrr11%
ATTEST:
59894.51HCR
0826/2002 11:46 AM
SECOND AMENDMOT
Amended, Restated and Substituted
Lease and Concession Agreement
ACKNOWLEDGMENT
STATE OF ARKANSAS )
§§
COUNTY OF PULASKI )
On this the day of , 2002, before me, the undersigned
being a Notary Public of and for the County and State aforesaid, personally appeared Jim Dailey
and Nancy Wood, 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.
WITNESS My hand and official seal on this _ day of
Notary Public
My commission expires:
(SEAL)
59894.5/HCR 7
0826/2002 11:46 AM
2002.
SECOND AMENDM*T
Amended, Restated and Substituted
Lease and Concession Agreement
ACKNOWLEDGMENT
STATE OF )
§§
COUNTY OF )
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 stated
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 2002.
Notary Public
My commission expires:
(SEAL)
59894.5/HCR 8
08/262002 11:46 AM
SECOND AMENDM*T
Amended, Restated and Substituted
Lease and Concession Agreement
ACKNOWLEDGMENT
STATE OF ARKANSAS )
§§
COUNTY OF PULASKI )
On this day personally appeared before the undersigned, being a Notary Public of and for
the County and State aforesaid, personally appeared and
, who acknowledged themselves to be the
and of Arkansas Teacher
Retirement System, 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 Arkansas
Teacher Retirement System by themselves as such officers.
IN WITNESS WHEREOF, I hereunto set my hand and official seal on this day of
.2002.
Notary Public
My commission expires:
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08/26/2002 11:46 AM