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EXHIBIT 10.57
SONOMA MISSION INN AND SPA
FIRST AMENDMENT TO LEASE AGREEMENT
This FIRST AMENDMENT TO LEASE AGREEMENT (the "Amendment") is made and
entered into effective as of the 31st day of December, 1998, between WINE
COUNTRY HOTEL, 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 Lease Agreement
dated as of November 18, 1996 (the "Lease"), pursuant to which Lessee leased
from Lessor a hotel facility/resort and related assets located in Sonoma
County, California, and known as the "Sonoma Mission Inn and Spa" (hereinafter
called the "Leased Property"); and
WHEREAS, Lessee has requested that Lessor fund the costs of certain
capital improvements at the Leased Property contemplated by a master plan
submitted to Lessor and consisting of 30 suites, 12,000 square feet of spa
facilities, 224 vehicle parking spaces, 3,000 square feet of meeting space and
general upgrades to the Leased Property (collectively, the "Expansion
Project"); and
WHEREAS, Lessor has agreed to undertake the funding of the Expansion
Program in consideration of and subject to the agreement of Lessee to modify
the Lease to increase the amount of rental payable thereunder; 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.
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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. Amendment to Lease. The Lease is hereby amended as follows:
a. Section 4.1 of the Lease is modified to increase the
Base Rent, as follows:
YEAR ANNUAL RENT MONTHLY RENT PAYMENT
---- ----------- --------------------
2000 $8,200,000.00 $683,333.33
2001 $8,500,000.00 $708,333.33
2002 $9,000,000.00 $750,000.00
2003 $9,000,000.00 $750,000.00
2004 $9,500,000.00 $791,666.67
2005 $9,500,000.00 $791,666.67
2006 *$7,916,666.67 $791,666.67
*No rent payable November and December 2006 (Lease expires 10/31/2006).
Section 4.1 of the Lease is further modified to provide that the
monthly installments of Base Rent shall be due and payable on the last
day of the month following the end of the month in which such rent
accrues, commencing on December 31, 1998, and continuing on the last
day of each month thereafter, through and including November 30, 2006.
b. The period is deleted at the end of the next to last
sentence of Section 4.2(j) 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 (l) is inserted at the end of Section 4.2
of the Lease, which shall read in its entirety as follows:
(l) 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(j) or Section 4.2(k)
hereof.
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d. If the amount expended by Lessor to fund the Expansion
Project exceeds $17,500,000.00, Lessor and Lessee agree that the Base
Rent will be increased (in addition to the increases set forth in
paragraph 2.a. above) to provide to Lessor a twenty percent (20%)
annual return on such excess funds. The parties agree to further amend
the Lease as necessary to reflect such increase in Base Rent.
e. 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.
f. Section 7.11 of the Lease is hereby deleted in its
entirety and the following substituted in lieu thereof:
7.11 Working Capital. At the commencement of the
term of this Lease, there existed working capital pertaining
to the Leased Property in the categories listed on Exhibit B
attached hereto and made a part hereof (the "Working
Capital") in the initial aggregate negative balance of
($813,952.00) (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. 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 ($813,952.00),
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
($813,952.00), 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 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 ($213,952.00), then Lessor would pay
Lessee $600,000.00; if the Ending Working Capital Balance had
a positive balance of $100,000.00, then Lessor would pay
Lessee $913,952.00.) 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
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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.f above, including without limitation, Section 7.4 of
the Lease, Lessor and Lessee agree that Section 2.f 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:
WINE COUNTRY HOTEL, LLC, a Delaware limited
liability company
By:
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Name:
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Title:
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