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EXHIBIT 10.60
FIRST AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT (the
"First Amendment") is made and entered into as of the 1st day of April, 1996,
by and between CRESCENT REAL ESTATE FUNDING II, L.P., a Delaware limited
partnership ("Lessor"), and ROSESTAR SOUTHWEST, LLC, a Delaware limited
liability company ("Lessee").
W I T N E S S E T H:
WHEREAS, on January 0, 0000, XXXXXXXX XXXX XXXXXX EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership ("Crescent"), as Lessor, and MOGUL
MANAGEMENT, LLC, a Texas limited liability company ("Mogul"), entered into that
certain Lease Agreement (hereinafter referred to as the "Original Lease")
covering a hotel and related assets located in the County of Eagle, State of
Colorado, and known as "Hyatt Regency Beaver Creek" (hereinafter referred to as
the "Leased Property"); and
WHEREAS, pursuant to that certain Amendment to Lease Agreement dated
October 6, 1995, the Original Lease was amended to provide for the
subordination of the leasehold estate created by the Original Lease to any lien
or encumbrance that may be placed against all or any part of the Leased
Property and to provide for the approval by Crescent of a proposed merger of
Mogul into RoseStar Management, LLC, a Texas limited liability company
("RoseStar"); and
WHEREAS, on October 6, 1995, the Leased Property and all of Crescent's
interest and estate as lessor under the Original Lease were conveyed by
Crescent to Lessor, who thereupon assumed all of Crescent's liabilities and
obligations under the Original Lease; and
WHEREAS, pursuant to that certain Amended and Restated Lease Agreement
dated January 1, 1996, executed by and between Lessor, Mogul and RoseStar, the
Original Lease was amended and restated (hereinafter the Original Lease as
amended and restated is referred to as the "Lease"); and
WHEREAS, on February 9, 1996, Mogul was merged with and into RoseStar;
and
WHEREAS, pursuant to that certain Assignment and Assumption of
Leasehold Estate dated March 29, 1996, all of RoseStar's interest and estate as
lessee under the Lease was sold and assigned to Lessee, who thereupon assumed
all of RoseStar's liabilities and obligations under the Lease; and
WHEREAS, Lessor and Lese desire to further modify the terms and
conditions of the Lease;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt,
accuracy and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Lessor and Lessee agree that Article 7.7 of the Lease is deleted
and replaced by the
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following new Article 7.7:
7.7 Net Worth. Lessee covenants that Lessee and RoseStar
shall at all times during the term of this Lease maintain a cumulative
"net worth" which shall be equal to no less than $200,000, For
purposes hereof, "net worth" shall mean the sum of (i) the aggregate
cash and fair market value of any property (other than cash)
contributed to the capital of Lessee and RoseStar by the members of
Lessee and RoseStar (net of amounts distributed other than
distributions out of earnings of Lessee and RoseStar) and (ii) the
aggregate balances of any line of credit (A) obtained by Lessee or
RoseStar and guaranteed by one or more of the members of Lessee or
RoseStar or (B) obtained by the members of Lessee or RoseStar to fund
capital contributions to Lessee or RoseStar (to the extent not already
included in (i)), to the extent such funds may be utilized by Lessee
or RoseStar to perform its obligations under the Lease or any other
lease between Lessor or any entity affiliated with Lessor and Lessee
or RoseStar and to comply with the terms of the Management Agreement,
and (iii) any commitments of the members of Lessee or RoseStar to make
additional capital contributions to Lessee or RoseStar. Lessee or
RoseStar shall provide Lessor with an annual written certification of
its compliance with the foregoing requirement on the Commencement Date
and the first day of each subsequent year of this Lease hereunder;
provided, however, that Lessor may, in addition, request more than
once during any year of this Lease that Lessee or RoseStar provide
Lessor with a certification as of the date of such request of its
compliance with the foregoing requirement. Such certifications must be
reasonably satisfactory to Lessor as to matters certified therein and
shall be accompanied by such supporting financial information as
Lessor may reasonably request.
2. Lessor and Lessee agree that Article 7.9 of the Lease is deleted
and replaced by the following new Article 7.9:
7.9 Limitation on Distributions. Lessee covenants that, until
such time as Lessee and any affiliate of Lessee such as RoseStar which
has entered into a long-term lease of a hotel either with Lessor or
any affiliate of Lessor such as Crescent has accumulated and is
holding in reserve funds in the aggregate which are sufficient in
amount to enable Lessee and each of such affiliated entities to pay at
least one (1) monthly payment of Base Rent under each lease between
Lessee and any of such affiliated entities and Lessor or an affiliate
of Lessor such as Crescent, Lessee shall retain all income generated
by the Leased Property and shall not distribute any earnings to its
beneficial owners except as needed for federal and state income taxes
payable on taxable income from the Leased Property. In no event,
however, shall any amounts be payable to the beneficial owners of
Lessee if any such payment would result in a violation of Lessee's net
worth covenants set forth in Article 7.7 hereinabove.
3. Lessor and Lessee agree that the following Article XXXVIII is added
to the Lease:
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ARTICLE XXXVIII
38.1. Business of Lessee. The sole purpose and nature of the
business to be conducted by Lessee is to:
(a) enter into and perform as lessee under this
Lease and as lessee under a long-term lease of the Hyatt Regency
Albuquerque located in Albuquerque, New Mexico (hereinafter the hotels
covered by the leases described in this subparagraph are collectively
referred to as the "Hotels");
(b) enter into long-term management agreements for
the Hotels with experienced and reputable hotel management companies;
and
(c) enter into and perform all other contracts and
undertakings, and engage in and carry out all other activities and
transactions, as may be necessary, appropriate, convenient, ancillary,
or incidental to the foregoing purposes (including but not limited to
borrowing and repaying loans, and granting security interests in
receivables, general intangibles and personal property (other than any
property that is part of the Leased Property) to secure such loans,
employing personnel and advisers, constructing and maintaining
improvements at the Hotels, and acquiring, holding, operating,
leasing, disposing of and otherwise dealing with personal property
located at the Hotels). Without limitation, Lessee shall qualify to
transact business in Colorado and New Mexico as a foreign limited
liability company and shall seek and obtain all such licensing and
permitting as may be required in connection with leasing and managing
the Hotels (including but not limited to alcoholic beverage permits
and licenses, if required).
Lessee shall not engage in any business unrelated to the
foregoing purposes and shall not own any assets other than those
related to leasing and managing the Hotels or otherwise in furtherance
of the purposes of Lessee as set forth above in this paragraph 38.1.
Lessee shall not incur any indebtedness other than indebtedness
incurred in connection with leasing and managing the Hotels or
otherwise in furtherance of the purposes of Lessee as set forth above
in this paragraph 38.1.
38.2. Single-Purpose Entity.
(a) Lessee at all times since its formation has
been, and will continue to be, a duly formed and existing
Delaware limited liability company and a Single-Purpose
Entity (as defined below). Lessee at all times since its
formation has been, and will continue to be, duly qualified
as a foreign limited liability company in each jurisdiction
in which the Hotels are located. RSSW Corp., the Managing
Member of Lessee and hereinafter referred to as "RSSW", at
all times since its formation has been, and will continue to
be, a duly formed and existing Delaware corporation and a
Single-Purpose Entity. RSSW at all times since its formation
has been, and will continue to be, duly qualified as a
foreign corporation in each jurisdiction in which the Hotels
are located.
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(b) Lessee at all times since its formation has
complied, and will continue to comply, with the provisions of
its formation documents and the laws of the State of Delaware
relating to limited liability companies. RSSW at all times
since its formation has complied, and will continue to
comply, with the provision of its certificate of
incorporation and its bylaws and the laws of the State of
Delaware relating to corporations.
(c) All customary formalities regarding the limited
liability company or corporate (as the case may be) existence
of each of Lessee and RSSW have been observed at all times
since its formation and will continue to be observed.
(d) Each of Lessee and RSSW has at all times since
its formation accurately maintained, and will continue to
accurately maintain, its financial statements, accounting
records and other corporate documents separate from those of
its partners, shareholders, affiliates of its shareholders or
partners, and any other person. Neither Lessee nor RSSW has
at any time since its formation commingled, and neither
Lessee nor RSSW will commingle, its assets with those of its
shareholders, partners, any affiliates of its shareholders or
partners, or any other person. Each of Lessee and RSSW has at
all times since its formation accurately maintained, and will
continue to accurately maintain, its own bank accounts and
separate books of account.
(e) Each of Lessee and RSSW has at all times since
its formation paid, and will continue to pay, its own
liabilities from its own separate assets.
(f) Each of Lessee and RSSW has at all times since
its formation identified itself, and will continue to
identify itself, in all dealings with the public, under its
own name and as a separate distinct entity. Neither Lessee
nor RSSW has at any time since its formation identified
itself, and neither Lessee nor RSSW will identify itself, as
being a division or a part of any other entity. Neither Lessee
nor RSSW has at any time since its formation identified, and
neither Lessee nor RSSW will identify, its shareholders,
partners or any affiliates of its shareholders or partners,
as being a division or pant of it.
(g) Each of Lessee and RSSW has been at all times
since its formation and will continue to be adequately
capitalized in light of the nature of its business.
(h) Neither Lessee nor RSSW has at any time since
its formation assumed or guaranteed, and neither Lessee nor
RSSW will assume or guarantee, the liabilities of its
shareholders, members or partners, any affiliates of its
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shareholders, members or partners, or any other persons.
Neither Lessee nor RSSW has at any time since its formation
acquired, and neither Lessee nor RSSW will acquire,
obligations or securities of its shareholders, members or
partners, or any affiliates of its shareholders, members or
partners. Neither Lessee nor RSSW has at any time since its
formation made, and neither Lessee nor RSSW will make, loans
to its shareholders, members or partners, or any affiliates
of its shareholders, members or partners, unless such loans
are made on terms which are no less favorable to Lessee or
RSSW than would be obtained in a comparable arm's length
transaction with an unrelated third party and Lessee or RSSW
acts in accordance with prudent lending standards to protect
itself from liability in connection with such loans.
(i) Neither Lessee nor RSSW has at any time since
its formation entered into, and neither Lessee nor RSSW has
been a party to, and, neither Lessee nor RSSW will enter into
or be a party to, any transaction with its shareholders,
members or partners or any affiliates of its shareholders,
members or partners (other than the making of distributions
to its shareholders, members or partners) except (x) for this
Lease and the lease of the Hyatt Regency Albuquerque, (y) for
loans made by Lessee or RSSW as described in the last
sentence of clause (h) above, or (z) in the ordinary course
of business of Lessee or RSSW, as the case may be, on terms
which are no less favorable to Lessee or RSSW, as the case
may be, than would be obtained in a comparable arm's length
transaction with an unrelated third party.
(j) The term "Single Purpose Entity" means a person
other than an individual, which (i) is formed or organized
solely for the purposes set forth in paragraph 38.1
hereinabove, (ii) does not engage in any business unrelated
to the business set forth in paragraph 38.1 hereinabove,
(iii) does not have any assets other than those related to
the business described in paragraph 38.1 hereinabove or any
indebtedness other than as permitted by this Lease, (iv) has
its own separate books and records and has its own accounts,
in each case which are separate and apart from the books and
records and accounts of any other person, (v) if a
corporation, at all times has an independent director
reasonably acceptable to Lessor, (vi) does not commingle its
assets with the assets of any other person, (vii) does not
guarantee the obligations of any other person and (viii)
holds itself out as being a person separate and apart from
any other person.
2. Except as specifically set forth above, all terms and conditions of
the Lease shall remain in full force and effect. All capitalized terms not
otherwise defined herein shall have the meaning given to such terms in the
Lease.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date and year first above written.
LESSOR:
CRESCENT REAL ESTATE FUNDING II, L.P.,
a Delaware limited partnership
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BY: CRE MANAGEMENT II CORP., a
Delaware corporation, its
General Partner
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
---------------------------
Its: Senior Vice President, Law
---------------------------
LESSEE:
ROSESTAR SOUTHWEST, LLC, a Delaware
limited liability company
BY: RSSW CORP., a Delaware corporation,
Its Managing Member
By: /s/ Xxxxxx Xxxxx
----------------------------
Xxxxxx Xxxxx, President
JOINDER OF ROSESTAR
RoseStar joins in the execution of this First Amendment in order to
evidence its agreement with the terms and conditions of Paragraphs 1 and 2 of
this First Amendment. RoseStar agrees to cooperate with Lessee in providing the
certifications required of Lessee under Paragraph 1 of this First Amendment.
ROSESTAR MANAGEMENT, LLC, a Texas
limited liability company
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx, President
----------------------------
Its: President
----------------------------
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XXXXX XXXXXXX XXXXXX XXXXX
SECOND AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT (the
"Amendment") is made and entered into effective as of the 31st day of December,
1998, between ROSESTAR SOUTHWEST, LLC, a Delaware limited liability company
("Lessee") and CRESCENT REAL ESTATE FUNDING II, L.P, a Delaware limited
partnership ("Lessor").
RECITALS:
WHEREAS, Crescent Real Estate Equities Limited Partnership, a Delaware
limited partnership ("Crescent") and Mogul Management, LLC ("Mogul") entered
into that certain Lease Agreement dated as of January 3, 1995 (the "Original
Lease Agreement"), pursuant to which Mogul leased from Crescent a hotel facility
and related assets located in Eagle County, Colorado, and known as the "Hyatt
Regency Beaver Creek" (hereinafter called the "Leased Property"); and
WHEREAS, pursuant to that certain Amendment to Lease Agreement dated
October 6, 1995, the Original Lease Agreement was amended to provide for the
subordination of the leasehold estate created by the Original Lease to any lien
or encumbrance that may be placed against all or any part of the Leased Property
and to provide for the approval by Crescent of a proposed merger of Mogul into
RoseStar Management, LLC, a Texas limited liability company ("RoseStar"); and
WHEREAS, on October 6, 1995, the Leased Property and all of Crescent's
interest and estate as lessor under the Original Lease Agreement were conveyed
by Crescent to Lessor, who thereupon assumed all of Crescent's liabilities and
obligations under the Original Lease Agreement; and
WHEREAS, pursuant to that certain Amended and Restated Lease Agreement
dated January 1, 1996 (the "Restated Lease"), executed by and between Lessor,
Mogul and RoseStar, the Original Lease Agreement was amended and restated in its
entirety; and
WHEREAS, on February 9, 1996, Mogul was merged with and into RoseStar;
and
WHEREAS, pursuant to that certain Assignment and Assumption of
Leasehold Estate dated as of March 29, 1996, all of RoseStar's interest and
estate as lessee under the Restated Lease was sold and assigned to Lessee, who
thereupon assumed all of RoseStar's liabilities and obligations under the
Restated Lease; and
WHEREAS, Lessor and Lessee amended the Restated Lease by First
Amendment to Amended and Restated Lease Agreement dated as of April 1, 1996 (the
Restated Lease, as amended, herein called the "Lease"); and
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WHEREAS, Lessor and Lessee agreed that if Lessor made substantial
capital investments in the Leased Property, the Lease would be amended to
increase the amount of rental payable thereunder and Lessor has made substantial
capital investment in the Leased Property; and
WHEREAS, Lessor has agreed to delete certain provisions of the Lease
that impose minimum net worth requirements on the Lessee and limit the
distributions by Lessee of its earnings to its beneficial owners in
consideration of the delivery of a guaranty of Lessee's obligations under the
Lease by Crescent Operating, Inc. ("COI"); and
WHEREAS, Lessor and Lessee mutually desire to quantify the value of
working capital contributed by Lessee for the operation of the Leased Property
upon the commencement of the term of the Lease and to evidence their mutual
understanding and agreement of the value of working capital to be reimbursed to
Lessee by Lessor at the expiration or earlier termination of the Lease; and
WHEREAS, Lessor and Lessee desire to amend the Lease to increase the
rental payable thereunder, to delete the provisions in the Lease described
above, to evidence their understanding regarding working capital and to make
certain other amendments thereto as hereinafter provided.
AGREEMENT:
NOW THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged by the parties hereto, the
parties hereby agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Lease.
2. Amendments to Lease. The Lease is hereby amended as follows:
a. Section 4.1 of the Lease is modified to increase the Base
Rent, effective as of January 1, 1999, by the amount of $630,000 per
year during the Term. Accordingly, the annual Base Rent payable under
the Lease is as follows:
Year Amount
---- ------
1999-2000 $4,330,000.00
2001-2003 $4,430,000.00
2004 $4,530,000.00
b. Section 4.2(a) of the Lease is deleted in its entirety, and
the following inserted in lieu thereof:
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(a) The term "Percentage Rent" as used herein, shall
mean the sum of the following:
(i) the amount determined by multiplying (A)
the amount, if any, by which the aggregate
amount of Gross Sales - Rooms for the
calendar month to which such Percentage
Rent is attributable exceeds the Gross
Sales Floor - Rooms for the applicable
month by (B) the Multiplier - Rooms; plus
(ii) the amount determined by multiplying (A)
the amount, if any, by which the aggregate
amount of Gross Sales - Food & Beverage
for the calendar month to which such
Percentage Rent is attributable exceeds
the Gross Sales Food & Beverage - Rooms
for the applicable month by (B) the
Multiplier - Food & Beverage; plus
(iii) the amount determined by multiplying (A)
thirteen and one-half percent (13.5%) by
(B) the amount of Spa Revenues for the
calendar month to which such Percentage
Rent is attributable.
c. Section 4.2(k) of the Lease is amended by inserting the
words "and Spa Revenues" after the word "Beverage" in line 5 thereof.
d. Section 4.2(l) of the Lease is modified by (1) inserting
the words "and Spa Revenues" after the word "Beverage" in lines 4 and 8
thereof and (2) deleting the period at the end of the next to last
sentence and inserting the following clause after the words "from
Lessee": "; provided, in no event shall Lessor be required to refund
any portion of the Guaranteed Percentage Rent (as hereinafter defined)
previously paid by Lessee to Lessor."
e. A new Section 4.2(n) is inserted in the Lease, to read in
its entirety as follows:
(n) The term "Spa Revenues", as used herein, shall
mean the aggregate dollar amount of all gross income and
receipts from all business done in, on or resulting from
the spa, pool, health club facility and beauty salon
located within the Leased Premises (the "Spa"), including,
without limitation, membership revenues, the actual price
of all services, goods, wares and merchandise (which shall
include, without limitation, food and beverages and other
items permitted to be sold) sold and the actual charges for
all services performed by Tenant or by any subtenant,
licensee or concessionaire in, at, from or arising out of
the use of the Spa, including, but not limited to fees for
Spa Services, membership fees, daily use fees, rentals,
sales of clothing and merchandise, personal training
services, whether
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wholesale or retail, whether for cash or credit, or
otherwise, and including the value of all consideration
other than money received for any of the foregoing. As used
herein, "Spa Services" shall mean ladies and men's hair
dressing, permanent waving, hair dying, manicuring, nail
extensions, pedicures, facials, body services,
electrolysis, aerobics training, weight training, health
and fitness activities, treatment baths and other services
customarily incident to the operation of a spa, pool,
health club facility and beauty salon.
f. A new subsection (o) is inserted at the end of Section 4.2
of the Lease, which shall read in its entirety as follows:
(o) Anything in this Lease to the contrary notwithstanding,
eighty-five percent (85%) of the Percentage Rent payable in any
quarter during the term of this Lease (herein called the
"Guaranteed Percentage Rent") shall not be subject to adjustment
under Section 4.2(l) or Section 4.2(m) hereof.
h. In consideration of the execution and delivery by COI of a
guaranty of all of Lessee's obligations under the Lease, Section 7.7
and Section 7.9 of the Lease are hereby deleted in their entirety and
shall be of no further force and effect.
i. A new Section 7.10 is added to the Lease, to read in its
entirety as follows:
Section 7.10. Working Capital. At the commencement of the
term of this Lease, there existed working capital pertaining to
the Leased Property (the "Working Capital") in the initial
aggregate negative balance of ($276,728.00) (the "Initial Working
Capital Balance"). Within thirty (30) after the date of
expiration or earlier termination of this Lease, Lessor and
Lessee will work together in good faith to determine the balance
of Working Capital as of such date (the "Ending Working Capital
Balance"). If the Ending Working Capital Balance is less than the
Initial Working Capital Balance, Lessee shall pay over to Lessor
cash in the amount of such deficiency, within thirty (30) days of
such determination. If the Ending Working Capital Balance exceeds
the Initial Working Capital Balance, Lessor shall pay over to
Lessee cash in the amount of such excess within thirty (30) days
of such determination. For purposes of comparing the Initial
Working Capital Balance and the Ending Working Capital Balance,
(i) the Ending Working Capital Balance will be less than the
Initial Working Capital Balance if and to the extent that the
Ending Working Capital Balance has a negative balance of more
than ($276,728.00), and that difference will be the "deficiency"
to be paid by Lessee to Lessor; and (ii) the Ending Working
Capital Balance will exceed the Initial Working Capital Balance
if the Ending Working Capital Balance has a negative balance of
less than ($276,728.00), has a balance of zero, or has a positive
balance, and the "excess" to be paid by Lessor to Lessee will be
the difference (expressed as a positive number) between the
Ending Working Capital
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Balance and the Initial Working Capital Balance. (By way of
example and illustration but not of limitation, if the Ending
Working Capital Balance had a negative balance of ($176,728.00),
then Lessor would pay Lessee $100,000.00; if the Ending Working
Capital Balance had a positive balance of $100,000.00, then
Lessor would pay Lessee $376,728.00.) Additionally, both the
Initial Working Capital Balance and the Ending Working Capital
Balance shall be calculated without the inclusion of any "in
circulation" operating or consumable supplies ("In-Circulation
Supplies"). Both Lessee and Lessor agree that the In-Circulation
Supplies represent items in use which Lessee does not include on
its balance sheet as of the Commencement Date. Lessee and Lessor
further agree that although no accounting value has been placed
on In-Circulation Supplies, such supplies have value and Lessee
agrees to have reasonable amounts of In-Circulation Supplies on
hand in a quantity and quality customary for a property such as
the Leased Property.
3. General Provision regarding Working Capital. Notwithstanding any
other provision of the Lease which is to the contrary or which is not consistent
with Section 2.i. above, including without limitation, Sections 7.4(b) and
38.1(d), Lessor and Lessee agree that Section 2.i. above represents the general
business terms under which Lessee has taken over the In-Circulation Supplies and
working capital of the Leased Property and the general terms under which Lessee
will return In-Circulation Supplies and working capital to Lessor at the
expiration or earlier termination of the Lease.
4. Modification Supersedes. Except as modified hereby, the Lease
remains in full force and effect, with no other modifications thereto. If there
arises by virtue of this Amendment any conflict between any provision of this
Amendment and any provision of the Lease, the provisions hereof shall supersede
any such conflicting provision of the Lease, but only to the extent of such
conflict, and all of the provisions of the Lease are hereby modified as
necessary so as to be consistent with the terms of this Amendment.
5. Successors and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of Lessor and Lessee and their respective successors
and permitted assigns.
6. Multiple Counterparts. This Amendment may be executed in multiple
counterparts, each of which is to be deemed an original for all purposes, and in
making proof of this Amendment it shall not be necessary to produce more than
one (1) counterpart hereof. A facsimile or similar transmission of a counterpart
signed by a party hereto will be regarded as signed by such party for purposes
hereof.
7. Captions. The captions, headings and arrangements used in this
Amendment are for convenience only and do not in any way affect, limit, amplify
or otherwise modify the terms and provisions hereof.
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8. Representations of Lessee. Lessee represents and warrants to Lessor
that (i) Lessee is the sole legal and beneficial owner of the leasehold estate
under the Lease and (ii) Lessee has the full power and authority to enter into
this Amendment without the joinder or consent of any other party.
9. Representations of Lessor. Lessor represents and warrants to Lessee
that Lessor has the full power and authority to enter into this Amendment.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment to be
effective as of the day and year first above written.
LESSOR:
CRESCENT REAL ESTATE FUNDING II, L.P.,
a Delaware limited partnership
By: CRE Management II Corp., a Delaware
corporation, General Partner
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
LESSEE:
ROSESTAR SOUTHWEST, LLC, a Delaware
limited liability company
By: RSSW Corp., a Delaware corporation,
its Managing Member
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
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CONSENT OF GUARANTOR
The undersigned, as the guarantor of the obligations of the Lessee
under the Lease, as defined in the Second Amendment to Lease Agreement (the
"AMENDMENT") to which this Consent is attached, (a) acknowledges and consents to
the terms of the foregoing Second Amendment, (b) agrees that the execution and
delivery of the Amendment and any other documents in connection therewith will
in no way change or modify the undersigned's obligations under the guaranty
executed by the undersigned in connection with the Lease, and (c) acknowledges
and confirms that such guaranty is in full force and effect and there are no
claims, counterclaims, offsets or defenses to such guaranty.
EXECUTED as of the 31st day of December, 1998.
ROSESTAR MANAGEMENT, LLC, a Texas limited
liability company
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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HYATT REGENCY ALBUQUERQUE
FOURTH AMENDMENT TO LEASE AGREEMENT
This FOURTH AMENDMENT TO LEASE AGREEMENT (the "Amendment") is made and
entered into effective as of the 31st day of December, 1998, between ROSESTAR
SOUTHWEST, LLC, a Delaware limited liability company ("Lessee") and CRESCENT
REAL ESTATE FUNDING II, L.P, a Delaware limited partnership ("Lessor").
RECITALS:
WHEREAS, Crescent Real Estate Equities Limited Partnership, a Delaware
limited partnership ("Crescent") and RoseStar Management, LLC ("RoseStar")
entered into that certain Lease Agreement dated as of December 19, 1995 (the
"Original Lease Agreement"), pursuant to which RoseStar leased from Crescent a
hotel facility and related assets located in Bernalillo County, New Mexico, and
known as the "Hyatt Regency Albuquerque" (hereinafter called the "Leased
Property"); and
WHEREAS, on March 11, 1996, the Leased Property and all of Crescent's
interest and estate as lessor under the Original Lease Agreement were conveyed
by Crescent to Lessor, who thereupon assumed all of Crescent's liabilities and
obligations under the Original Lease Agreement; and
WHEREAS, pursuant to that certain Assignment and Assumption of
Leasehold Estate dated as of March 29, 1996, all of RoseStar's interest and
estate as lessee under the Original Lease Agreement was sold and assigned to
Lessee, who thereupon assumed all of RoseStar's liabilities and obligations
under the Lease; and
WHEREAS, Lessor and Lessee amended the Original Lease Agreement by
First Amendment to Lease Agreement dated as of April 1, 1996, Second Amendment
to Lease Agreement dated as of November 22, 1996 and Third Amendment to Lease
Agreement dated as of August 12, 1998 (the Original Lease Agreement, as amended,
herein called the "Lease"); and
WHEREAS, Lessor and Lessee agreed that if Lessor made substantial
capital investments in the Leased Property, the Lease would be amended to
increase the amount of rental payable thereunder and Lessor has made substantial
capital investment in the Leased Property; and
WHEREAS, Lessor has agreed to delete certain provisions of the Lease
that impose minimum net worth requirements on the Lessee and limit the
distributions by Lessee of its earnings to its beneficial owners in
consideration of the delivery of a guaranty of Lessee's obligations under the
Lease by Crescent Operating, Inc. ("COI"); and
WHEREAS, Lessor and Lessee mutually desire to quantify the value of
working capital associated with the Leased Property and transferred from Lessor
to Lessee upon the commencement
16
of the term of the Lease and to evidence their mutual understanding and
agreement of the value of working capital associated with the Leased Property to
be redelivered to Lessor by Lessee at the expiration or earlier termination of
the Lease; and
WHEREAS, Lessor and Lessee desire to amend the Lease to increase the
rental payable thereunder as hereinafter provided, to delete the provisions in
the Lease described above, to evidence their understanding regarding working
capital and to make certain other amendments thereto as hereinafter provided.
AGREEMENT:
NOW THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged by the parties hereto, the
parties hereby agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Lease.
2. Amendments to Lease. The Lease is hereby amended as follows:
a. Section 4.1 of the Lease is modified to increase the Base
Rent, effective as of July 1, 1998, by the amount of $400,000 per year
during the Term. Accordingly, the annual Base Rent payable under the
Lease is as follows:
Year Amount
---- ------
1998 $3,700,000.00
1999-2001 $3,800,000.00
2002-2003 $3,900,000.00
2004-2005 $4,000,000.00
b. The period is deleted at the end of the next to last
sentence of Section 4.2(l) of the Lease and the following clause is
inserted after the words "from Lessee": "; provided, in no event shall
Lessor be required to refund any portion of the Guaranteed Percentage
Rent (as hereinafter defined) previously paid by Lessee to Lessor."
c. A new subsection (n) is inserted at the end of Section 4.2
of the Lease, which shall read in its entirety as follows:
(n) Anything in this Lease to the contrary notwithstanding,
eighty-five percent (85%) of the Percentage Rent payable in any
quarter during the term of this Lease (herein called the
"Guaranteed Percentage Rent") shall not be subject to adjustment
under Section 4.2(l) or Section 4.2(m) hereof.
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d. In consideration of the execution and delivery by COI of a
guaranty of all of Lessee's obligations under the Lease, Section 7.7
and Section 7.9 of the Lease are hereby deleted in their entirety and
shall be of no further force and effect.
e. A new Section 7.10 is added to the Lease, to read in its
entirety as follows:
Section 7.10. Working Capital. At the commencement of the
term of this Lease, there existed working capital pertaining to
the Leased Property (the "Working Capital") in the initial
aggregate positive balance of $377,080.00 (the "Initial Working
Capital Balance"). Within thirty (30) days after the date of
expiration or earlier termination of this Lease, Lessor and
Lessee will work together in good faith to determine the balance
of Working Capital as of such date (the "Ending Working Capital
Balance"). If the Ending Working Capital Balance is less than the
Initial Working Capital Balance, Lessee shall pay over to Lessor
cash in the amount of such deficiency, within thirty (30) days of
such determination. If the Ending Working Capital Balance exceeds
the Initial Working Capital Balance, Lessor shall pay over to
Lessee cash in the amount of such excess within thirty (30) days
of such determination. Additionally, both the Initial Working
Capital Balance and the Ending Working Capital Balance shall be
calculated without the inclusion of any "in circulation"
operating or consumable supplies ("In-Circulation Supplies").
Both Lessee and Lessor agree that the In-Circulation Supplies
represent items in use which Lessee does not include on its
balance sheet as of the Commencement Date. Lessee and Lessor
further agree that although no accounting value has been placed
on In-Circulation Supplies, such supplies have value and Lessee
agrees to have reasonable amounts of In-Circulation Supplies on
hand in a quantity and quality customary for a property such as
the Leased Property.
3. General Provision regarding Working Capital. Notwithstanding any
other provision of the Lease which is to the contrary or which is not consistent
with Section 2.e above, including without limitation, Section 7.4 of the Lease,
Lessor and Lessee agree that Section 2.e above represents the general business
terms under which Lessee has taken over the In-Circulation Supplies and working
capital of the Leased Property and the general terms under which Lessee will
return In-Circulation Supplies and working capital to Lessor at the expiration
or earlier termination of the Lease.
4. Modification Supersedes. Except as modified hereby, the Lease
remains in full force and effect, with no other modifications thereto. If there
arises by virtue of this Amendment any conflict between any provision of this
Amendment and any provision of the Lease, the provisions hereof shall supersede
any such conflicting provision of the Lease, but only to the extent
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18
of such conflict, and all of the provisions of the Lease are hereby modified as
necessary so as to be consistent with the terms of this Amendment.
5. Successors and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of Lessor and Lessee and their respective successors
and permitted assigns.
6. Multiple Counterparts. This Amendment may be executed in multiple
counterparts, each of which is to be deemed an original for all purposes, and in
making proof of this Amendment it shall not be necessary to produce more than
one (1) counterpart hereof. A facsimile or similar transmission of a counterpart
signed by a party hereto will be regarded as signed by such party for purposes
hereof.
7. Captions. The captions, headings and arrangements used in this
Amendment are for convenience only and do not in any way affect, limit, amplify
or otherwise modify the terms and provisions hereof.
8. Representations of Lessee. Lessee represents and warrants to Lessor
that (i) Lessee is the sole legal and beneficial owner of the leasehold estate
under the Lease and (ii) Lessee has the full power and authority to enter into
this Amendment without the joinder or consent of any other party.
9. Representations of Lessor. Lessor represents and warrants to Lessee
that Lessor has the full power and authority to enter into this Amendment.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have duly executed this Amendment to be
effective as of the day and year first above written.
LESSOR:
CRESCENT REAL ESTATE FUNDING II, L.P., a
Delaware limited partnership
By: CRE Management II Corp., a Delaware
corporation, General Partner
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LESSEE:
ROSESTAR SOUTHWEST, LLC, a Delaware
limited liability company
By: RSSW Corp., a Delaware corporation,
its Managing Member
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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CONSENT OF GUARANTOR
The undersigned, as the guarantor of the obligations of the Lessee
under the Lease, as defined in the Fourth Amendment to Lease Agreement (the
"AMENDMENT") to which this Consent is attached, (a) acknowledges and consents to
the terms of the foregoing Third Amendment, (b) agrees that the execution and
delivery of the Amendment and any other documents in connection therewith will
in no way change or modify the undersigned's obligations under the guaranty
executed by the undersigned in connection with the Lease, and (c) acknowledges
and confirms that such guaranty is in full force and effect and there are no
claims, counterclaims, offsets or defenses to such guaranty.
EXECUTED as of the 31st day of December, 1998.
ROSESTAR MANAGEMENT, LLC, a Texas limited
liability company
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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