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EXHIBIT 10.63
MASTER GUARANTY
This MASTER GUARANTY ("Guaranty") is executed as of December 31, 1998,
by CRESCENT OPERATING, INC., a Delaware corporation ("Guarantor"), for the
benefit of CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP, a Delaware limited
partnership ("Crescent"), CRESCENT REAL ESTATE FUNDING II, L.P., a Delaware
limited partnership ("Crescent Funding II"), and CRESCENT REAL ESTATE FUNDING
VI, L.P., a Delaware limited partnership ("Crescent Funding VI") (Crescent,
Crescent Funding II and Crescent Funding VI are sometimes herein each
individually and collectively called "Lessor").
R E C I T A L S
A. Affiliates of Guarantor, as lessees (individually, a "Lessee" and
collectively, the "Lessees"), have entered into the Lease Agreements described
in Exhibit A attached hereto (the "Leases") with Lessor with respect to the
land, buildings, improvements and fixtures described in the Leases
(collectively, the "Leased Property");
X. Xxxxxx has agreed to modify the Leases to delete certain provisions
of the Leases that impose minimum net worth requirements on the Lessee and limit
the distributions by each Lessee of its profits to its beneficial owners,
conditioned and contingent upon Guarantor's unconditional guarantee of the
payment and performance of the Guaranteed Obligations (as defined in Section 1.2
below), subject to the limitations and terms set forth in this Guaranty; and
C. Guarantor is the owner of a direct or indirect interest in Lessee,
and Guarantor will directly benefit from the modification of the Leases as
described above.
A G R E E M E N T
NOW, THEREFORE, as an inducement to Lessor to modify the Leases as
described above, and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
NATURE AND SCOPE OF GUARANTY
1.1 Guaranty of Obligation.
(a) Subject to the limitations set forth in Section 1.1(b)
hereof, Guarantor irrevocably and unconditionally guarantees to Lessor
(and its successors and assigns), the payment and performance of the
Guaranteed Obligations as and when the same shall be due and payable.
Guarantor irrevocably and unconditionally agrees that it is liable for
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Guaranteed Obligations as a primary obligor, and that it shall fully
perform each and every term and provision hereof.
(b) Anything in this Guaranty to the contrary notwithstanding,
the right of recovery by Lessor against Guarantor under this Guaranty
is limited to Guarantor's interests in the Lessees, Wine Country Hotel,
LLC, Wine Country Golf Club, Inc. and COI Hotel Group, Inc., and such
parties permitted successors and assigns (whether by operation of law
or otherwise). Lessor shall not look to any other property or asset of
Guarantor in seeking to enforce Guarantor's obligations under this
Guaranty or to satisfy any judgement for Guarantor's failure to perform
its obligations under this Guaranty.
1.2 Definition of Guaranteed Obligations. As used herein, the term
"Guaranteed Obligations" shall mean all of the obligations and liabilities of
the Lessees under the Leases, including without limitation, the obligation to
pay all Base Rent, Percentage Rent, and Additional Charges (as those terms are
defined in the Leases) as and when due.
1.3 Nature of Guaranty. This Guaranty is an irrevocable, absolute,
continuing guaranty of payment and performance and is not a guaranty of
collection. This Guaranty may not be revoked by Guarantor and shall continue to
be effective with respect to any Guaranteed Obligations arising or created after
any attempted revocation by Guarantor. The fact that at any time or from time to
time the Guaranteed Obligations may be increased or reduced shall not release or
discharge the obligation of Guarantor to Lessor with respect to Guaranteed
Obligations. This Guaranty may be enforced by Lessor and any subsequent owner of
Lessor's interest under the Lease.
1.4 Payment by Guarantor. If all or any part of the Guaranteed
Obligations is not paid when due, Guarantor shall immediately upon demand by
Lessor pay in lawful money of the United States of America the amount due on the
Guaranteed Obligations to Lessor at Lessor's address as set forth herein. Such
demand(s) may be made at any time coincident with or after the time for payment
of all or part of the Guaranteed Obligations, and may be made from time to time
with respect to the same or different items of Guaranteed Obligations. Such
demand shall be deemed made, given and received in accordance with the notice
provisions hereof.
1.5 No Duty to Pursue Others. It shall not be necessary for Lessor
(and Guarantor hereby waives any rights which Guarantor may have to require
Lessor), in order to enforce such payment by Guarantor, first to (i) institute
suit or exhaust its remedies against Lessee or others liable under the Lease or
the Guaranteed Obligations or any other person, (ii) enforce Lessor's rights
against any collateral which shall ever have been given to secure Lessee's
obligations under the Lease, (iii) enforce Lessor's rights against any other
guarantors of the Guaranteed Obligations, (iv) join Lessee or any others liable
on the Guaranteed Obligations in any action seeking to enforce this Guaranty, or
(v) resort to any other means of obtaining payment of the Guaranteed
Obligations. Lessor shall not be required to mitigate damages or take any other
action to reduce, collect or enforce the Guaranteed Obligations.
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1.6 Waivers. Guarantor agrees to the provisions of the Leases, and
hereby waives notice of (i) acceptance of this Guaranty, (ii) any amendment or
extension of the Leases, (iii) the occurrence of any breach by any Lessee or
Event of Default as defined in the Leases, (iv) Lessor's transfer or disposition
of its interest under the Leases, or any part thereof, or (v) any other action
at any time taken or omitted by Lessor, and, generally, all demands and notices
of every kind in connection with this Guaranty, the Leases or relating to any of
the Guaranteed Obligations.
1.7 Payment of Expenses. If Guarantor fails to timely perform any
provisions of this Guaranty, Guarantor shall, immediately upon demand by Lessor,
pay Lessor all costs and expenses (including court costs and reasonable
attorneys' fees) incurred by Lessor in the enforcement hereof or the
preservation of Lessor's rights hereunder. The covenant contained in this
section shall survive the payment and performance of the Guaranteed Obligations.
1.8 Effect of Bankruptcy. If, pursuant to any insolvency,
bankruptcy, reorganization, receivership or other debtor relief law, or any
judgment, order or decision thereunder, Lessor must rescind or restore any
payment, or any part thereof, received by Lessor in satisfaction of the
Guaranteed Obligations, as set forth herein, any prior release or discharge from
the terms of this Guaranty given to Guarantor by Lessor shall be without effect,
and this Guaranty shall remain in full force and effect. Lessees and Guarantor
intend that Guarantor's obligations hereunder shall not be discharged except by
Guarantor's performance of such obligations and then only to the extent of such
performance.
1.9 Deferment of Rights of Subrogation, Reimbursement and
Contribution.
(a) Notwithstanding any payment or payments made by Guarantor
hereunder, Guarantor will not assert or exercise any right of Lessor or
of Guarantor against any Lessee to recover the amount of any payment
made by Guarantor to Lessor by way of subrogation, reimbursement,
contribution, indemnity, or otherwise arising by contract or operation
of law, and Guarantor shall not have any right of recourse to or any
claim against assets or property of any Lessee, whether or not the
obligations of such Lessee have been satisfied, all of such rights
being herein expressly waived by Guarantor. If any amount shall
nevertheless be paid to Guarantor by any Lessee prior to payment in
full of the Obligations (hereinafter defined), such amount shall be
held in trust for the benefit of Lessor and shall forthwith be paid to
Lessor to be credited and applied to the Obligations, whether matured
or unmatured. The provisions of this paragraph shall survive the
termination of this Guaranty, and any satisfaction and discharge of any
Lessee by virtue of any payment, court order or any applicable law.
(b) Notwithstanding the provisions of Section 1.9(a),
Guarantor shall be entitled to (i) all rights of subrogation otherwise
provided by applicable law in respect of any payment it may make or be
obligated to make under this Guaranty and (ii) all claims it would have
against Guarantor in the absence of Section 1.9(a) and to assert and
enforce same, in each case on and after, but at no time prior to, the
date (the "Subrogation Trigger
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Date") which is 91 days after the date on which all sums owed to Lessor
under the Leases (the "Obligations") have been paid in full, if and
only if the existence of Guarantor's rights under this Section 1.9(b)
would not make Guarantor a creditor (as defined in the United States
Bankruptcy Code [the "Bankruptcy Code"]) of any Lessee or any other
Guarantor in any insolvency, bankruptcy, reorganization or similar
proceeding commenced on or prior to the Subrogation Trigger Date.
1.10 Bankruptcy Code Waiver. The parties intend that Guarantor
shall not be deemed to be a "creditor" (as defined in Section 101 of the
Bankruptcy Code) of any Lessee by reason of the existence of this Guaranty, in
the event that such Lessee becomes a debtor in any proceeding under the
Bankruptcy Code, and in connection herewith, Guarantor waives any such right as
a "creditor" under the Bankruptcy Code. After such Lessee's obligations under
its Lease are discharged in full and there shall be no obligations or
liabilities under this Guaranty outstanding, this waiver as to such Lessee shall
be deemed to be terminated.
1.11 "Lessee." The term "Lessee" as used herein shall include any
new or successor corporation, association, partnership (general or limited),
joint venture, trust or other individual or organization formed as a result of
any merger, reorganization, sale, transfer, devise, gift or bequest of any
Lessee or any interest in any Lessee.
ARTICLE II
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR'S OBLIGATIONS
2.1 Guarantor's obligations under this Guaranty shall not be
released, diminished, impaired, reduced or adversely affected by any of the
following, and Guarantor waives any common law, equitable, statutory or other
rights (including without limitation rights to notice) which Guarantor might
otherwise have as a result any of the following:
(a) Modifications. Any renewal, extension, or modification of
all or any part of the Guaranteed Obligations or the Leases; provided
Guarantor is notified of same.
(b) Adjustment. Any adjustment, indulgence, forbearance or
compromise that might be granted or given by Lessor to any Lessee or
any Guarantor.
(c) Condition of Lessee or Guarantor. The insolvency,
bankruptcy, arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of any Lessee, Guarantor or
any other party at any time liable for the payment of all or part of
the Guaranteed Obligations; or any dissolution of any Lessee or
Guarantor, or any sale, lease or transfer of any or all of the assets
of any Lessee or Guarantor, or any changes in the shareholders,
partners or members of any Lessee or Guarantor; or any reorganization
of any Lessee or Guarantor.
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(d) Invalidity of Guaranteed Obligations. The invalidity,
illegality or unenforceability of all or any part of the Guaranteed
Obligations, or any document or agreement executed in connection with
the Guaranteed Obligations, for any reason whatsoever, including
without limitation the fact that (i) the Guaranteed Obligations, or any
part thereof, exceeds the amount permitted by law, (ii) the act of
creating the Guaranteed Obligations or any part thereof is ultra xxxxx,
(iii) the officers or representatives executing any of the Leases or
otherwise creating the Guaranteed Obligations acted in excess of their
authority, (iv) the Guaranteed Obligations violate applicable usury
laws, (v) any Lessee has valid defenses, claims or offsets (whether at
law, in equity or by agreement) which render the Guaranteed Obligations
wholly or partially uncollectible from such Lessee, (vi) the creation,
performance or repayment of the Guaranteed Obligations (or the
execution, delivery and performance of any document or instrument
representing part of the Guaranteed Obligations or executed in
connection with the Guaranteed Obligations, or given to secure the
repayment of the Guaranteed Obligations) is illegal, uncollectible or
unenforceable, or (vii) any Lease has been forged or otherwise is
irregular or not genuine or authentic, it being agreed that Guarantor
shall remain liable hereon regardless of whether any Lessee or any
other person be found not liable on the Guaranteed Obligations or any
part thereof for any reason.
(e) Release of Obligors. Any full or partial release of the
liability of any Lessee on the Guaranteed Obligations, or any part
thereof, or of any co-guarantors, or any other person or entity now or
hereafter liable, whether directly or indirectly, jointly, severally,
or jointly and severally, to pay, perform, guarantee or assure the
payment of the Guaranteed Obligations, or any part thereof, it being
recognized, acknowledged and agreed by Guarantor that Guarantor may be
required to pay the Guaranteed Obligations in full without assistance
or support of any other party, and Guarantor has not been induced to
enter into this Guaranty on the basis of a contemplation, belief,
understanding or agreement that other parties will be liable to pay or
perform the Guaranteed Obligations, or that Lessor will look to other
parties to pay or perform the Guaranteed Obligations.
(f) Offset. The Leases, the Guaranteed Obligations and the
liabilities and obligations of Guarantor to Lessor hereunder, shall not
be reduced, discharged or released because of or by reason of any
existing or future right of offset, claim or defense of any Lessee
against Lessor, or any other party, or against payment of the
Guaranteed Obligations, whether such right of offset, claim or defense
arises in connection with the Guaranteed Obligations (or the
transactions creating the Guaranteed Obligations) or otherwise.
(g) Merger. The reorganization, merger or consolidation of any
Lessee into or with any other corporation or entity.
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(h) Preference. Any payment by any Lessee to Lessor is held to
constitute a preference under bankruptcy laws, or for any reason Lessor
is required to refund such payment or pay such amount to such Lessee or
someone else.
(i) Other Actions Taken or Omitted. Any other action taken or
omitted to be taken with respect to any of the Leases, the Guaranteed
Obligations, whether or not such action or omission prejudices
Guarantor or increases the likelihood that Guarantor will be required
to pay the Guaranteed Obligations pursuant to the terms hereof, it is
the unambiguous and unequivocal intention of Guarantor that Guarantor
shall be obligated to pay the Guaranteed Obligations when due,
notwithstanding any occurrence, circumstance, event, action, or
omission whatsoever, whether or not contemplated, and whether or not
otherwise or particularly described herein, which obligation shall be
deemed satisfied only upon the full and final payment and satisfaction
of the Guaranteed Obligations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations. To induce Lessor to modify the Leases as
described above, Guarantor represents and warrants to Lessor as follows:
(a) Benefit. Guarantor is an affiliate of the Lessees, is the
owner of a direct or indirect interest in each of the Lessees, and has
received, or will receive, direct or indirect benefit from the making
of this Guaranty with respect to the Guaranteed Obligations.
(b) Familiarity and Reliance. Guarantor is familiar with, and
has independently reviewed books and records regarding, the financial
condition of the Lessees; however, Guarantor is not relying on such
financial condition or the collateral as an inducement to enter into
this Guaranty.
(c) No Representation by Lessor. Neither Lessor nor any other
party has made any representation, warranty or statement to Guarantor
in order to induce Guarantor to execute this Guaranty.
(d) Guarantor's Financial Condition. As of the date hereof,
and after giving effect to this Guaranty and the contingent obligation
evidenced hereby, Guarantor is, and will be, solvent, and has and will
have assets which, fairly valued, exceed its obligations, liabilities
(including contingent liabilities) and debts, and has and will have
property and assets sufficient to satisfy and repay its obligations and
liabilities.
(e) Legality. The execution, delivery and performance by
Guarantor of this Guaranty and the consummation of the transactions
contemplated hereunder do not, and will not, contravene or conflict
with any law, statute or regulation whatsoever to which Guarantor is
subject or constitute a default (or an event which with notice or lapse
of time
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or both would constitute a default) under, or result in the breach of,
any indenture, mortgage, deed of trust, charge, lien, or any contract,
agreement or other instrument to which Guarantor is a party or which
may be applicable to Guarantor. This Guaranty is a legal and binding
obligation of Guarantor and is enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to the enforcement of creditors' rights.
(f) Review of Documents. Guarantor has examined the Leases and
the above-described amendments to the Leases.
3.2 Survival. All representations and warranties made by Guarantor
herein shall survive the execution hereof.
ARTICLE IV
SUBORDINATION OF CERTAIN INDEBTEDNESS
4.1 Subordination of All Guarantor Claims. As used herein, the
term "Guarantor Claims" shall mean all debts and liabilities of any Lessee to
Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligations of any Lessee thereon be direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such debts or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by Guarantor. The Guarantor Claims shall include without limitation
all rights and claims of Guarantor against any Lessee (arising as a result of
subrogation or otherwise) as a result of Guarantor's payment of all or a portion
of the Guaranteed Obligations to the extent the provisions of Section 2.1(f)
hereof are unenforceable. Upon the occurrence of an Event of Default or the
occurrence of an event which would, with the giving of notice or the passage of
time, or both, constitute an Event of Default, Guarantor shall not receive or
collect, directly or indirectly, from Lessee or any other party any amount upon
the Guarantor Claims.
4.2 Claims in Bankruptcy. In the event of receivership,
bankruptcy, reorganization, arrangement, debtor's relief, or other insolvency
proceedings involving Guarantor as debtor, Lessor shall have the right to prove
its claim in any such proceeding so as to establish its rights hereunder and
receive directly from the receiver, trustee or other court custodian dividends
and payments which would otherwise be payable upon Guarantor Claims. Guarantor
assigns such dividends and payments to Lessor. Should Lessor receive, for
application upon the Guaranteed Obligations, any such dividend or payment which
is otherwise payable to Guarantor, and which, as between any Lessee and
Guarantor, shall constitute a credit upon the Guarantor Claims, then upon
payment to Lessor in full of the Guaranteed Obligations, Guarantor shall become
subrogated to the rights of Lessor to the extent that such payments to Lessor on
the Guarantor Claims have contributed toward the liquidation of the Guaranteed
Obligations, and such subrogation shall be
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with respect to that proportion of the Guaranteed Obligations which would have
been unpaid if Lessor had not received dividends or payments upon the Guarantor
Claims.
4.3 Payments Held in Trust. Notwithstanding anything to the
contrary in this Guaranty, if Guarantor should receive any funds, payments,
claims or distributions which are prohibited by this Guaranty, Guarantor agrees
to hold in trust for Lessor an amount equal to the amount of all funds,
payments, claims or distributions so received, and agrees that it shall have
absolutely no dominion over the amount of such funds, payments, claims or
distributions so received except to pay them promptly to Lessor, and Guarantor
covenants promptly to pay the same to Lessor.
4.4 Liens Subordinate. Any liens, security interests, judgment
liens, charges or other encumbrances upon any of the Lessee's assets securing
payment of the Guarantor Claims shall be and remain inferior and subordinate to
any liens, security interests, judgment liens, charges or other encumbrances
upon such Lessee's assets securing payment of the Guaranteed Obligations,
regardless of whether such encumbrances in favor of Guarantor or Lessor
presently exist or are hereafter created or attach. Without the prior written
consent of Lessor, Guarantor shall not (a) exercise or enforce any creditor's
right it may have against any Lessee, or (b) foreclose, repossess, sequester or
otherwise take steps or institute any action or proceedings (judicial or
otherwise, including without limitation the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor's relief or insolvency
proceeding) to enforce any liens, mortgages, deeds of trust, security interest,
collateral rights, judgments or other encumbrances on assets of any Lessee held
by Guarantor.
ARTICLE V
MISCELLANEOUS
5.1 Waiver. No failure to exercise, and no delay in exercising, on
the part of Lessor, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right. The rights of Lessor
hereunder shall be in addition to all other rights provided by law. No
modification or waiver of any provision of this Guaranty, nor consent to
departure therefrom, shall be effective unless in writing and no such consent or
waiver shall extend beyond the particular case and purpose involved. No notice
or demand given in any case shall constitute a waiver of the right to take other
action in the same, similar or other instances without such notice or demand.
5.2 Notices. Any notice, demand, statement, request or consent
made hereunder shall be in writing and shall be deemed to be received by the
addressee on the day such notice is tendered to a nationally recognized
overnight delivery service or on the third day following the day such notice is
deposited with the United States Postal Service first class certified mail,
return receipt requested, in either instance, addressed to the address, as set
forth below, of the party to
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whom such notice is to be given, or to such other address as either party shall
in like manner designate in writing. The addresses of the parties are as
follows:
Guarantor: Crescent Operating, Inc.
000 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Lessor: c/o Crescent Real Estate Equities Limited Partnership
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
5.3 Governing Law; Jurisdiction. This Guaranty shall be governed
by and construed in accordance with the laws of the State of Texas and the
applicable laws of the United States of America. Guarantor hereby irrevocably
submits to the jurisdiction of any court of competent jurisdiction located in
the State of Texas in connection with any proceeding out of or relating to this
Guaranty.
5.4 Invalid Provisions. If any provision of this Guaranty is held
to be illegal, invalid, or unenforceable under present or future laws effective
during the term of this Guaranty, such provision shall be fully severable and
this Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Guaranty, and the
remaining provisions of this Guaranty shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Guaranty, unless such continued effectiveness of this
Guaranty, as modified, would be contrary to the basic understandings and
intentions of the parties as expressed herein.
5.5 Amendments. This Guaranty may be amended only by an instrument
in writing executed by the party or an authorized representative of the party
against whom such amendment is sought to be enforced.
5.6 Parties Bound; Assignment. This Guaranty shall be binding upon
and inure to the benefit of the parties hereto and their respective successors,
assigns and legal representatives; provided, however, that Guarantor may not,
without the prior written consent of Lessor, assign any of its rights, powers,
duties or obligations hereunder.
5.7 Headings. Section headings are for convenience of reference
only and shall in no way affect the interpretation of this Guaranty.
5.8 Recitals. The recital and introductory paragraphs hereof are a
part hereof, form a basis for this Guaranty and shall be considered prima facie
evidence of the facts and documents referred to therein.
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5.9 Counterparts. This Guaranty may be executed in as many
counterparts as may be convenient or required. It shall not be necessary that
the signature or acknowledgment of, or on behalf of, each party, or that the
signature of all persons required to bind any party, or the acknowledgment of
such party, appear on each counterpart. All counterparts shall collectively
constitute a single instrument. It shall not be necessary in making proof of
this Guaranty to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, and the respective
acknowledgments of, each of the parties hereto. Any signature or acknowledgment
page to any counterpart may be detached from such counterpart without impairing
the legal effect of the signatures or acknowledgments thereon and thereafter
attached to another counterpart identical thereto except having attached to it
additional signature or acknowledgment pages.
5.10 Rights and Remedies. The rights of Lessor hereunder shall be
cumulative of any and all other rights that Lessor may ever have against
Guarantor. The exercise by Lessor of any right or remedy hereunder or under any
other instrument, or at law or in equity, shall not preclude the concurrent or
subsequent exercise of any other right or remedy.
5.11 Entirety. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT
OF GUARANTOR AND LESSOR WITH RESPECT TO GUARANTOR'S GUARANTY OF THE GUARANTEED
OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND LESSOR AS A
FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF
DEALING BETWEEN GUARANTOR AND LESSOR, NO COURSE OF PERFORMANCE, NO TRADE
PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE
USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY
AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LESSOR.
5.12 Special State Provisions (Texas). This Guaranty shall be
effective as a waiver of, and Guarantor expressly waives, any and all rights to
which Guarantor may otherwise have been entitled under any suretyship laws in
effect from time to time, including (without limitation) any rights pursuant to
Rule 31 of the Texas Rules of Civil Procedure, Section 17.001 of the Texas Civil
Practice and Remedies Code, and Chapter 34 of the Texas Business and Commerce
Code.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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EXECUTED as of the day and year first above written.
GUARANTOR:
CRESCENT OPERATING, INC., a Delaware
Corporation
By:
---------------------------------------
Name:
----------------------------------
Title:
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EXHIBIT A
TO MASTER GUARANTY
1. Lease Agreement covering a hotel facility and related assets located in
Bernalillo County, New Mexico, and known as "Hyatt Regency Albuquerque"
dated as of December 19, 1995, the lessee's interest under which is
currently held by ROSESTAR SOUTHWEST, LLC, a Delaware limited liability
company, and the lessor's interest under which is currently held by
CRESCENT REAL ESTATE FUNDING II, L.P, a Delaware limited partnership, as
such Lease Agreement is or has been amended and assigned from time to
time.
2. Amended and Restated Lease Agreement covering a hotel facility and related
assets located in Eagle County, Colorado, and known as the "Hyatt Regency
Beaver Creek", dated as of January 1, 1996, the lessee's interest under
which is currently held by ROSESTAR SOUTHWEST, LLC, a Delaware limited
liability company, and the lessor's interest under which is currently held
by CRESCENT REAL ESTATE FUNDING II, L.P, a Delaware limited partnership,
as such Amended and Restated Lease Agreement is or has been amended and
assigned from time to time.
3. Lease Agreement covering a resort facility and related assets located in
Berkshire County, Massachusetts, and known as the "Canyon Ranch-Lenox",
dated as of December 11, 1996, the lessee's interest under which is
currently held by WINE COUNTRY HOTEL, LLC, a Delaware limited liability
company, d/b/a VINTAGE RESORTS, LLC, and the lessor's interest under which
is currently held by CRESCENT REAL ESTATE FUNDING VI, L.P, a Delaware
limited partnership, as such Lease Agreement is or has been amended and
assigned from time to time.
4. Lease Agreement covering a hotel facility/resort and related assets
located in Sonoma County, California, and known as the "Sonoma Mission Inn
and Spa", dated as of November 18, 1996, between WINE COUNTRY HOTEL, LLC,
a Delaware limited liability company, as lessee, and CRESCENT REAL ESTATE
EQUITIES LIMITED PARTNERSHIP, a Delaware limited partnership, as lessor,
as such Lease Agreement is amended and assigned from time to time.
5. Lease Agreement covering a resort facility and related assets located in
Pima County, Arizona, and known as the "Canyon Ranch-Tucson", dated as of
July 26, 1996, the lessee's interest under which is currently held by
CANYON RANCH LEASING, L.L.C., an Arizona limited liability company, and
the lessor's interest under which is currently held by CRESCENT REAL
ESTATE EQUITIES LIMITED PARTNERSHIP, a Delaware limited partnership, as
such Lease Agreement is or has been amended and assigned from time to
time.
Exhibit A - Page 1
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6. Amended and Restated Lease Agreement covering a hotel facility and related
assets located in Denver County, Colorado, and known as the "Denver
Marriott City Center", dated as of June 30, 1995, between ROSESTAR
MANAGEMENT, LLC, a Delaware limited liability company, as lessee, and
CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP, a Delaware limited
partnership, as lessor, as such Amended and Restated Lease Agreement is
amended and assigned from time to time.
Exhibit A - Page 2
