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EXHIBIT 10.58
MARRIOTT CITY CENTER, DENVER
FIRST AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT
This FIRST 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 MANAGEMENT, LLC, a Delaware limited liability company
("Lessee") and CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP, a Delaware
limited partnership ("Lessor").
RECITALS:
WHEREAS, Lessor and Lessee entered into that certain Amended and
Restated Lease Agreement dated as of June 30, 1995 (the "Lease"), pursuant to
which Lessee leased from Lessor a hotel and related assets located in Denver
County, Colorado, and known as the "Marriott City Center, Denver" (hereinafter
called 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 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 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.
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2. Amendment to Lease. The Lease is hereby amended as follows:
a. 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."
b. 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.
c. 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.
d. 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 $386,452.00 (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.
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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.d above, including without limitation, Section 7.4 of
the Lease, Lessor and Lessee agree that Section 2.d 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.
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 EQUITIES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Crescent Real Estate Equities, Ltd.,
a Delaware corporation, General Partner
By:
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Name:
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Title:
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LESSEE:
ROSESTAR MANAGEMENT, LLC, a Delaware
limited liability company
By:
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Name:
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Title:
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