EXHIBIT 10.42
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED LEASE AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LEASE AGREEMENT
(this "First Amendment") is made and entered into as of July 21, 2003 by and
between HPT CW PROPERTIES TRUST, a Maryland real estate investment trust ("HPT
CW"), XXXX X. XXXXXX, TRUSTEE OF HPT CW MA REALTY TRUST, under Declaration of
Trust dated as of July 18, 2003 ("HPT CW MA"), and HH HPTCW II PROPERTIES LLC, a
Delaware limited liability company ("HPTCW II" and, together with HPT CW and HPT
CW MA, collectively, "Landlord"), as landlord, and CANDLEWOOD LEASING NO. 1,
INC., a Delaware corporation ("Tenant"), as tenant.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Second Amended and Restated Lease
Agreement, dated as of April 12, 2002, between Landlord and HPT CW (the "Second
Amended Lease"), HPT CW and HPTCW II lease to Tenant, and Tenant leases from HPT
CW and HPTCW II, fifty-seven (57) hotel properties, all as further described in
the Second Amended Lease; and
WHEREAS, simultaneously herewith, HPT CW and HPT CW MA are acquiring
seven (7) additional hotel properties (the "First Amendment Leased Properties");
and
WHEREAS, Landlord and Tenant wish to amend the Second Amended Lease to
include the First Amendment Leased Properties among the Leased Property demised
thereby, subject to, and upon, the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the foregoing and for other
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant hereby agree that, effective as of the date hereof, the
Second Amended Lease is hereby amended as follows:
1. Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to such terms in the Second Amended Lease.
2. The definition of "Base Year" set forth in Section 1.12 of the
Second Amended Lease is hereby deleted in its entirety and replaced with the
following:
"BASE YEAR" shall mean (a) with respect to any Property other than a
New Leased Property or a First Amendment Leased Property, the period
commencing on the first anniversary of the first full day of the
first full calendar month following the Opening Date of the Hotel
located at such Property and expiring on the day preceding the second
anniversary of such Opening Date, (b) with respect to any New Leased
Property, the 2002 Fiscal Year and (c) with respect to any First
Amendment Leased Property, the 2003 Fiscal Year.
3. The definition of "Commencement Date" set forth in Section
1.20 of the Second Amended Lease is hereby deleted in its entirety and replaced
with the following:
"COMMENCEMENT DATE" shall mean (a) with respect to each Original Leased
Property, the date on which the terms of its Original Lease commenced,
(b) with respect to each Additional Leased Property, August 10, 2001,
(c) with respect to each New Leased Property, April 12, 2002, and (d)
with respect to each First Amendment Leased Property, July 21, 2003.
4. The definition of "FF&E Pledge" set forth in Section 1.39 of
the Second Amended Lease is hereby deleted in its entirety and replaced with the
following:
"FF&E PLEDGE" shall mean the Second Amended and Restated Assignment and
Security Agreement, dated as of the date hereof, made by Tenant for the
benefit of Landlord, as it may be amended, restated, supplemented or
otherwise modified from time to time.
5. A new definition of "First Amendment Leased Property" is
hereby added to the Second Amended Lease in a new Section 1.42(A) immediately
following Section 1.42 of the Second Amended Lease:
"FIRST AMENDMENT LEASED PROPERTY" shall mean any of the Leased
Properties located on the Land described on Exhibits A-58 through A-64
attached hereto and made a part hereof.
6. The definition of "Guaranty" set forth in Section 1.50 of the
Second Amended Lease is hereby deleted in its entirety and replaced with the
following:
"GUARANTY" shall mean the Third Amended and Restated Guaranty
Agreement, dated as of July 21, 2003, made by Candlewood for the
benefit of Landlord and Hospitality Properties Trust, as it may be
amended, restated, supplemented or otherwise modified from time to
time.
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7. The definition of "Minimum Rent" set forth in Section 1.76 of
the Second Amended Lease is hereby deleted in its entirety and replaced with the
following:
"MINIMUM RENT" shall mean Four Million Three Hundred Thirty-Three
Thousand Nine Hundred Forty Dollars ($4,333,940) per Accounting Period.
8. The definition of "Purchase Documents" set forth in Section
1.91 of the Second Amended Lease is hereby deleted in its entirety and replaced
with the following:
"PURCHASE DOCUMENTS" shall mean, collectively, (a) the Purchase and
Sale Agreement, dated as of November 19, 1997, by and among Hospitality
Properties Trust, Candlewood and certain of Candlewood's Subsidiaries
and the Agreement to Lease, dated as of November 19, 1997, by and among
Hospitality Properties Trust and Candlewood, as they may have been or
hereafter be amended, restated, supplemented or otherwise modified from
time to time, (b) the Purchase and Sale Agreement, dated as of May 14,
1998, as it may have been or hereafter be amended, restated,
supplemented or otherwise modified from time to time, (c) the Purchase
and Sale Agreement, dated as of August 10, 2001, by and among
Hospitality Properties Trust, Candlewood and certain of Candlewood's
Subsidiaries, as it may have been or hereafter be amended, restated,
supplemented or otherwise modified from time to time, (d) the Purchase
and Sale Agreement, dated as of April 12, 2002, by and among
Hospitality Properties Trust, Candlewood and certain of Candlewood's
Subsidiaries, as it may have been or hereafter be amended, restated,
supplemented or otherwise modified from time to time, and (e) the
Purchase and Sale Agreement, dated as of July 21, 2003, by and among
Hospitality Properties Trust, Candlewood and certain of Candlewood's
Subsidiaries, as it may have been or hereafter be amended, restated,
supplemented or otherwise modified from time to time
9. Section 2.1(a) of the Second Amended Lease is hereby amended
by deleting the reference therein to "A-57" and replacing it with a reference to
"A-64".
10. Section 2.4 of the Second Amended Lease is hereby amended by
adding the following paragraph at the end thereof:
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Notwithstanding anything contained in this Section 2.4 to the
contrary, in no event shall the Term of this Agreement (including both
the Fixed Term and Extended Term) for any Leased Property located in
the State of New York continue for a period in excess of forty-nine
(49) years.
11. Section 22.10(c) of the Second Amended Lease is hereby amended
by deleting the last notice address therein and replacing it with the following:
XxxxXxxxx, Xxxxx & Xxxxx
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxx, Esq.
[Telecopier No. 000-000-0000]
12. Section 22.11 of the Second Amended Lease is hereby amended by
deleting the first paragraph therein and replacing it with the following:
With respect to the HPT CW I Leased Property, the New Leased Property
and the First Amendment Leased Property, neither Tenant, Candlewood nor
any of their Affiliated Persons shall own, build, franchise, manage or
operate a hotel of the same brand as the Hotels within the designated
areas on Exhibit B-1 (the "Designated Areas One"), at any time during
the Term.
13. The following new Section 22.20 is hereby added to the Second
Amended Lease immediately following Section 22.19 thereof:
22.20 LANDLORD CREDIT AGAINST MINIMUM RENT. Tenant acknowledges and
agrees that (i) pursuant to an Amended and Restated Management
Agreement, dated of even date herewith (the "CMI Management Agreement")
between HPT TRS SPES, INC., an affiliate of Landlord, as owner ("HPT
TRS"), and Candlewood Management, Inc., an affiliate of Tenant, as
manager (the "CMI Manager"), the CMI Manager operates fifteen (15)
hotel properties on behalf of HPT TRS and (ii) Landlord and Tenant
shall each have the right to credit, or cause to be credited, the
management fee and any and all other amounts due and payable to the CMI
Manager under the CMI Management Agreement against the Minimum Rent due
and payable to Landlord under this Agreement, subject to the terms and
conditions of the CMI Management Agreement.
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14. Exhibit A to the Second Amended Lease is hereby amended by
adding Exhibits A-58 through A-64 attached hereto and made a part hereof
immediately following Exhibit A-57 to the Second Amended Lease.
15. Exhibit B-1 to the Second Amended Lease is hereby amended by
adding Exhibit B attached hereto and made a part hereof to the end of said
Exhibit B-1.
16. Exhibit C to the Second Amended Lease is hereby deleted in its
entirety and replaced with Exhibit C attached hereto and made a part hereof.
17. Each of the parties hereto acknowledges and agrees that HPT CW
MA is executing this First Amendment for purposes of joining into the Lease as a
landlord thereunder with respect to the Leased Property located in Burlington,
Massachusetts and that HPTCW II is executing this First Amendment for purposes
of joining into the Lease as a landlord thereunder with respect to the Leased
Property located in the State of Tennessee. Accordingly, all references in the
Lease to "Landlord" shall refer to any and all of HPT CW, HPT CW MA and HPTCW
II, and their successors and assigns, as applicable. Notwithstanding the
foregoing, each of the parties hereto further acknowledges and agrees that both
HPT CW MA and HPTCW II hereby appoint HPT CW as their agent for all purposes
under the Lease, including, without limitation (i) to receive all rent and other
charges payable to Landlord under the Lease and (ii) to give or receive notices,
demands, claims and other communications on behalf of either of them.
18. IN ADDITION TO ALL OTHER LIMITATIONS CONTAINED IN THE SECOND
AMENDED LEASE, AS AMENDED HEREBY, LANDLORD HEREBY NOTIFIES TENANT THAT THE
DECLARATION OF TRUST OF HPT CW PROPERTIES TRUST PROVIDES, AND TENANT HEREBY
AGREES, THAT NO TRUSTEE, OFFICER, DIRECTOR, GENERAL OR LIMITED PARTNER, MEMBER,
SHAREHOLDER, BENEFICIARY, EMPLOYEE OR AGENT (INCLUDING ANY PERSON OR ENTITY FROM
TIME TO TIME ENGAGED TO SUPERVISE AND OR MANAGE THE OPERATION OF HPT CW
PROPERTIES TRUST) OF HPT CW PROPERTIES TRUST SHALL BE HELD TO ANY LIABILITY,
JOINTLY OR SEVERALLY, FOR ANY DEBT, CLAIM, DEMAND, JUDGMENT, DECREE, LIABILITY
OR OBLIGATION OF ANY KIND (IN TORT, CONTRACT OR OTHERWISE) OF, AGAINST OR WITH
RESPECT TO HPT CW PROPERTIES TRUST OR ARISING OUT OF ANY ACTION TAKEN OR OMITTED
FOR ON BEHALF OF HPT CW PROPERTIES TRUST.
19. As amended hereby, the Second Amended Lease is hereby ratified
and confirmed.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this First
Amendment to be duly executed, as a sealed instrument, as of the date first
above written.
LANDLORD:
HPT CW PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
President
HPT CW MA REALTY TRUST
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
as Trustee and not individually
HH HPTCW II PROPERTIES LLC,
a Delaware limited liability company
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
President
TENANT:
CANDLEWOOD LEASING NO. 1, INC.,
a Delaware corporation
By: /s/ Xxx Xxxxxxx
------------------------------------
Xxx Xxxxxxx
Vice President Treasurer
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EXHIBITS A-58 THROUGH A-64
THE LAND
[See attached copies.]
EXHIBIT B
DESIGNATED AREAS ONE
Property Area
-------- ----
Santa Xxx (Orange County), CA 2 mile radius
Santa Clara, CA 2 mile radius
Hartford (Meriden), CT 5 mile radius
Boston (Burlington), MA 3 mile radius
Detroit (Farmington Hills), MI 5 mile radius
Xxxxxx Plains, NJ 3 mile radius
Rockland (Nanuet), NY 5 mile radius
EXHIBIT C
ALLOCABLE RENTS
Property Rent Per Accounting Period
-------- --------------------------
Louisville (Jefferstown), KY $ 41,497
Cincinnati (Blue Ash), OH $ 39,223
Phoenix, AZ $ 54,081
Wichita West, KS $ 43,645
Birmingham, AL $ 57,098
Salt Lake - Ft. Union, UT $ 58,606
Southfield, MI $ 75,253
Lake Forest (LA), CA $ 73,588
Philadelphia (Horsham), PA $ 60,820
Salt Lake - North Temple, UT $ 61,888
Denver (Englewood), CO $ 53,498
Wichita Northeast, KS $ 39,372
Omaha, NE $ 52,323
Houston (Town & Country), TX $ 66,769
Hampton, VA $ 55,673
Austin, TX $ 84,375
Baltimore, MD $ 89,063
Xx. Xxxxxx, XX $ 53,625
Las Vegas, NV $ 210,834
Huntsville, AL $ 58,333
Houston (Clear Lake), TX $ 59,167
Jacksonville, FL $ 60,833
Phoenix (Tempe), AZ $ 70,833
Detroit (Xxxxxx), MI $ 72,500
Pittsburgh, PA $ 69,167
Des Moines, IA $ 53,334
Austin (Xxxxxxxxx), TX $ 79,167
Irving (Las Colinas), TX $ 75,833
Charlotte, NC $ 65,833
Nashville (Brentwood), TN $ 66,667
Houston (Westchase), TX $ 65,834
Albuquerque, NM $ 70,833
Somerset, NJ $ 70,000
Richfield, MN $ 86,875
Boston/Braintree, MA $ 95,000
Denver (Lakewood), CO $ 67,500
Anaheim (Garden Grove), CA $ 67,687
Irvine, CA $ 68,229
Clearwater (St. Petersburg), FL $ 44,554
Miami (Miami Airport), FL $ 74,866
Orlando (Altamonte Springs), FL $ 57,311
Atlanta (Duluth), GA $ 63,970
Chicago (Libertyville), IL $ 61,393
Property Rent Per Accounting Period
-------- --------------------------
Chicago (X'Xxxx/Xxxxxxxx Park), IL $ 125,833
Chicago (Schaumberg), IL $ 67,284
Chicago (Warrenville), IL $ 72,561
Chicago (Waukegan), IL $ 60,678
Detroit (Xxx Arbor), MI $ 58,262
St. Louis (Earth City), MO $ 54,900
Cleveland (North Xxxxxxxx), OH $ 66,598
Columbus Airport (Gahanna), OH $ 53,930
Oklahoma City, OK $ 56,441
Knoxville, TN $ 37,600
Dallas (Arlington), TX $ 56,512
Dallas (Galleria), TX $ 65,909
Dallas (North Xxxxxxxxxx), TX $ 61,034
Houston, TX $ 57,782
Orange County (Santa Xxx), CA $ 77,193
Santa Clara, CA $ 81,380
Hartford (Meriden), CT $ 59,948
Boston (Burlington), MA $ 000,000
Xxxxxxx (Xxxxxxxxxx Xxxxx). MI $ 70,249
Xxxxxx Plains, NJ $ 73,002
Clarkstown (Nanuet), NY $ 79,278
